WT/DS482/R/Add.1  
 
21 December 2016 
(16-6938) Page: 1/78 
  Original: English  
 
  CANADA – ANTI -DUMPING MEASURES ON IMPORTS OF  CERTAIN 
CARBON STEEL WELDED PI PE FROM THE  SEPARA TE CUSTOMS 
TERRITORY OF TAIWAN,  PENGHU, KINMEN AND M ATSU   
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to D to the Report of the Panel to be found  in document  
WT/DS482/ R. 
 
_______________  
 
 WT/DS482/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  (as amended)  A-2 
Annex  A-2 Additional Working Procedures on Business Confidential Information  A-7 
ANNEX B  
ARGUMENTS OF THE SEPARATE CUSTOMS  TERRITORY  
OF TAIWAN, PENGHU, K INMEN AND MATSU  
Contents  Page  
Annex B -1 Executive summary of the first written submission of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  B-2 
Annex B -2 Executi ve summary of the second written submission of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  B-9 
Annex B -3 Integrated executive summary of the statements of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu at the first meeting of the 
Panel  B-16 
Annex B -4 Integrated executive summary of the statements  of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu at the second meeting of the 
Panel  B-20 
ANNEX  C 
ARGUMENTS OF CANADA  
Contents  Page  
Annex C -1 Execu tive summary of the first written submission of Canada  C-2 
Annex C -2 Executive summary of the second written submission of Canada  C-10 
Annex C -3 Executive summary  of the statement  of Canada at the first meeting of the 
Panel  C-18 
Annex C -4 Executive summ ary of the statement  of Canada at the second  meeting of the 
Panel  C-23 
ANNEX  D 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex D -1 Executive summary of the arguments of Brazil  D-2 
Annex D -2 Executive summary of the arguments of the European Union  D-5 
Annex D -3 Executive summary of the arguments of Norway  D-11 
Annex D -4 Executive summary of the arguments of the United Arab Emirates  D-14 
Annex D -5 Executive summary of the arguments of the United States  D-16 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  (as amended)  A-2 
Annex  A-2 Additional Working Procedures on Business Confidential Information  A-7 
 WT/DS482/R/Add.1  
 
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  ANNEX  A-1 
CANADA – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN C ARBON  
STEEL WELDED PIPE FR OM THE SEPARATE CUSTOMS TER RITORY OF  
TAIWAN, PENGHU, KINM EN AND MATSU (WT/DS4 82)  
WORKING PROCEDURES O F THE PANEL  (AS AMENDED)  
Adopted on 12 August 2015  
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Proced ures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
2. The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Proce dures shall preclude a party to the dispute 
(hereafter  "party") from disclosing statements of its own positions to the public. Members shall 
treat as confidential information submitted to the Panel by another Member which the submitting 
Member has designat ed as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its submissions that could be di sclosed to  the public.  
3. The parties and third parties shall treat business confidential information in accordance with 
the procedures set forth in the Additional Working Procedures of the Panel Concerning Business 
Confidential Information  adopted by the Panel.  
4. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU 
(hereafter "third parties"), shall be present at the meetings only when i nvited by the Panel to 
appear before it. The Panel shall open its substantive meetings with the parties to the public, in 
accordance with procedures to be adopted by the Panel after consulting with the parties.  
5. Each party and third party has the right t o determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordance with the D SU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
6. Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance 
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the 
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable 
adopted by the  Panel.  
7. A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If Chinese Taipei 
requests such a ruling, Canada shall submit its respon se to the request in its first written 
submission. If Canada requests such a ruling, Chinese Taipei shall submit its response to the 
request prior to the first substantive meeting of the Panel, at a time to be determined by the Panel 
in light of the reques t. Exceptions to this procedure shall be granted upon a showing of good 
cause.  WT/DS482/ R/Add.1  
 
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  8. Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebutt al, answers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel 
shall accord the other party a period of time for comm ent, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
9. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working l anguage of the submission at the 
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised 
promptly in writing, no late r than the next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied by a 
detailed explanation of the grounds of objection and an alternative translation.  
10. To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of e ach exhibit on its 
cover page. For example, exhibits submitted by the complaining Member could indicate "Name of 
Complaining Member –1", "Name of Complaining Member –2", etc. If the last exhibit in connection 
with the first submission was "Name of Complainin g Member  -5", the first exhibit in connection 
with the next submission thus would be "Name of Complaining Member -6".  
Questions  
11. The Panel may at any time pose questions to the parties and third parties, orally or in 
writing, including prior to each sub stantive meeting.  
Substantive meetings  
12. Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5.00  p.m. the previous working day.  
13. The first substantive meeting of th e Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Chinese Taipei to make an opening statement to present its case 
first. Subsequently, the Panel shall invite Canada to present its point of view. Before 
each party takes the f loor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies for the 
interpreters, through the Panel Secre tary. Each party shall make available to the Panel 
and the other party the final version of its opening statement as well as its closing 
statement, if any, preferably at the end of the meeting, and in any event no later than 
5.00 p.m. on the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the Panel. Each party shall 
then have an opportunity to answer these questions orall y. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to the other 
party to which it wishes to receive a response in writing. Each party shall be invited to 
respond in writing to the other party's written ques tions within a deadline to be 
determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer these questions orally. The Panel shall send in writing, 
within a timeframe to be determ ined by it, any questions to the parties to which it 
wishes to receive a response in writing. Each party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Pa nel shall afford each party an opportunity 
to present a brief closing statement, with Chinese Taipei presenting its statement first.  WT/DS482/R/Add.1  
 
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  14. The second substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask Can ada if it wishes to avail itself of the right to present its case 
first. If so, the Panel shall invite Canada to present its opening statement, followed by 
Chinese Taipei. If Canada chooses not to avail itself of that right, the Panel shall invite 
Chinese Taipei to present its opening statement first. Before each party takes the 
floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, 
each party s hall provide additional copies for the interpreters, through the Panel 
Secretary. Each party shall make available to the Panel and the other party the final 
version of its opening statement as well as its closing statement, if any, preferably at 
the end of  the meeting, and in any event no later than 5.00  p.m. of the first working 
day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the Pane l. Each party shall 
then have an opportunity to answer these questions orally. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to the other 
party to which it wishes to receive a response in writing. Each pa rty shall be invited to 
respond in writing to the other party's written questions within a deadline to be 
determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer these questi ons orally. The Panel shall send in writing, 
within a timeframe to be determined by it, any questions to the parties to which it 
wishes to receive a response in writing. Each party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity 
to present a brief closing statement, with the party that presented its opening 
statement first, presenting its closing statement first.  
Third parties  
15. The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meeting of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
16. Each third party shal l also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.0 0 p.m. the previous 
working day.  
17. The third -party session shall be conducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. 
Third parties present at the third -party session and intending to present their views 
orally at that session, shall provide the Panel, the parties and other third -parties with 
provisional written versions of their statements be fore they take the floor. 
Third parties shall make available to the Panel, the parties and other third parties the 
final versions of their statements, preferably at the end of the session, and in any 
event no later than 5.00  p.m. of the first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on 
any matter raised in the third parties' submissions or statements. Each party shall 
send in  writing, within a timeframe to be determined by the Panel, any questions to a 
third party to which it wishes to  receive a response in writing.  WT/DS482/ R/Add.1  
 
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  d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportuni ty to answer these questions orally. The Panel shall send in 
writing, within a timeframe to be determined by it, any questions to the third parties 
to which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing  to such questions within a deadline to be determined by the Panel.  
Descriptive part  
18. The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist of executive summaries provided by the part ies and third parties, 
which shall be annexed as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.  
19. Each party shall submit executive summaries of the facts and arguments as presented to the 
Panel in its written submissions, other than responses to questions, and its oral statements, in 
accordance with the timetable adopted by the Panel. Each executive summary of a writt en 
submission shall be limited to no more than 10 pages, and each summary submitted by each party 
of both opening and closing statements presented at a substantive meeting shall be limited to no 
more than 5 pages. The Panel will not summarize in the descri ptive part of its report, or annex to 
its report, the parties' responses to questions.  
20. Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
21. The Panel reserves the right to request the parties and third parties to p rovide executive 
summaries of facts and arguments presented by a party or a third party in any other submissions 
to the Panel for which a deadline may not be specified in the timetable.  
Interim review  
22. Following issuance of the interim report, each par ty may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the  time the written request for review is submitted.  
23. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopted by th e Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
24. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
25. The following procedures regarding service of documents shall apply:  
a. Each party and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
b. Each party and third party shall f ile 2 paper copies of all documents it submits to the 
Panel. Exhibits may be filed in 2 copies on CD -ROM or DVD and 2 paper copies. The 
DS Registrar shall stamp the documents with the date and time of the filing. The 
paper version shall constitute the offi cial version for the purposes of the record of the 
dispute.  WT/DS482/R/Add.1  
 
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  c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD-ROM, a DVD or as an e -mail attachment. If the electronic 
copy is provided by e -mail, it should be addressed to DSRegistry@wto.org, with a 
copy to xxxxxx @wto.org . If a CD -ROM or DVD is provided, it shall be filed with the 
DS Registry.  
d. Each party sha ll serve any document submitted to the Panel directly on the other 
party. Each party shall, in addition, serve on all third parties its written submissions in 
advance of the first substantive meeting with the Panel. Each third party shall serve 
any documen t submitted to the Panel directly on the parties and all other third 
parties. Each party and third party shall confirm, in writing, that copies have been 
served as required at the time it provides each document to the Panel.  
e. Each party and third party s hall file its documents with the DS Registry and serve 
copies on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva 
time) on the due dates established by the Panel. A party or third party may submit its 
documents to another party or  third party in electronic format only, subject to the 
recipient party or third party's prior written approval and provided that the Panel 
Secretary is notified.  
f. The Panel shall provide the parties with an electronic version of the descriptive part, 
the interim report and the final report, as well as of other documents as appropriate. 
When the Panel transmits to the parties or third parties both paper and electronic 
versions of a document, the paper version shall constitute the official version for the 
purposes of the record of the dispute.  
26. The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
 
 WT/DS482/ R/Add.1  
 
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  ANNEX A -2 
CANADA – ANTI-DUMPING MEASURES ON IMPORTS OF CERTAIN C ARBON  
STEEL WELDED PIPE FR OM THE SEPARAT E CUSTOMS TERRITORY OF 
TAIWAN, PENGHU, KINM EN AND MATSU (WT/DS4 82)  
ADDITIONAL WORKING PROCEDURES ON BUSINESS  
CONFIDENTIAL INFORMA TION 
Adopted on 15 September 2015  
The following procedures apply to any business confidential information (BCI) submitted in t he 
course of the Panel proceedings in DS482.  
1. For the purposes of these Panel proceedings, BCI is any information that has been 
designated as such by the party submitting the information and that was previously treated as 
confidential within the meaning of Article 6.5 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 by the Canadian investigating authorities in the 
anti-dumping investigation at issue in this dispute. However, these procedures do not apply to any 
information that is available in the public domain. In addition, these procedures do not apply to 
any BCI if the person who provided the information in the course of the aforementioned 
investigation agrees in writing to make the information publicly  available.  
2. As required by Article 18.2 of the DSU, a party or third party having access to BCI submitted 
in these Panel proceedings shall treat it as confidential and shall not disclose that information other 
than to those persons authorized to receive  it pursuant to these procedures. Any information 
submitted as BCI under these procedures shall only be used for the purposes of this dispute and 
for no other purpose. Each party and third party is responsible for ensuring that its employees 
and/or outside  advisors comply with these working procedures to protect BCI. An outside advisor 
is not permitted access to BCI if that advisor is an officer or employee of an enterprise engaged in 
the production, sale, export, or import of the products that were the sub ject of the investigation at 
issue in this dispute, or an officer or employee of an association of such enterprises. All third party 
access to BCI shall be subject to the terms of these working procedures.  
3. No person may have access to BCI except a membe r of the Secretariat or the Panel, an 
employee of a party or third party under the terms specified in these procedures or an outside 
advisor to a party or third party for the purposes of this dispute.  
4. The party submitting BCI shall mark the cover and/o r first page of the document containing 
BCI, and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The 
first page or cover of th e document shall state "Contains Business Confidential Information", and 
each page of the document shall contain the notice "Contains Business Confidential Information" at 
the top of the page.  
5. Any BCI that is submitted in binary -encoded form shall be cl early marked with the 
statement "Business Confidential Information" on a label of the storage medium, and clearly 
marked with the statement "Business Confidential Information" in the binary -encoded files.  
6. In the case of an oral statement containing BCI,  the party or third party making such a 
statement shall inform the Panel before making it that the statement will contain BCI, and the 
Panel will ensure that only persons authorized to have access to BCI pursuant to these procedures 
are in the room to hear  that statement. The written versions of such oral statements submitted to 
the Panel shall be marked as provided for in paragraph 4.  
7. If a party or third party considers that information submitted by the other party or a 
third party contains information which should have been designated as BCI and objects to such 
submission without BCI designation, it shall forthwith bring this objection to the attention of the WT/DS482/R/Add.1  
 
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  Panel, the other party, and, where relevant, the third parties. The Panel shall deal with the 
objection as appropriate. Similarly, if a party or third party considers that the other party or a 
third party submitted information designated as BCI which should not be so designated, it shall 
forthwith bring this objection to the attention of the Panel, the other party, and, where relevant, 
the third parties, and the Panel shall deal with the objection as appropriate.  
8. Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents containing BCI in such a mann er as to prevent unauthorized access to such 
information.  
9. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion d rawn from such information. Before the Panel circulates its final report to the 
Members, the Panel will give each party an opportunity to review the report to ensure that it does 
not contain any information that the party has designated as BCI.  
10. Submiss ions containing BCI will be included in the record forwarded to the Appellate Body in 
the event of an appeal of the Panel's Report.  
 
 
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 WT/DS482/ R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE SEPARATE CUSTOMS  TERRITORY  
OF TAIWAN, PENGHU, K INMEN AND MATSU  
Contents  Page  
Annex B -1 Executive summary of the first written submission of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  B-2 
Annex B -2 Executive summary of the second written submission of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  B-9 
Annex B -3 Integrated executive summary of the statements of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu at the first meeting of the 
Panel  B-16 
Annex B -4 Integrated executive summary of the statements of the Separate C ustoms 
Territory of Taiwan, Penghu, Kinmen and Matsu at the second meeting of the 
Panel  B-20 
 WT/DS482/ R/Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  THE FIRST WRITTEN SU BMISSION OF THE SEPARATE  
CUSTOMS TERRITORY OF  TAIWAN, PENGHU, KINM EN AND MATSU  
1  INTRODUCTION  
1. On 14 May 2012,  the Canada Border Services Agency ( "CBSA ") initiated investigations with 
respect to the dumping of certain Carbon Steel Welded Pipe ( "CSWP ") originating in the 
Separate  Customs Territory of Taiwan, Penghu, Kinmen and Matsu ( "TPKM "), India, Oman, Korea, 
Thailand, Turkey and the UAE and the subsidizing of certain CSWP from India, Oman and the UAE. 
On 13 July 2012, the Canadian International Trade Tribunal ( "CITT") made a preliminary finding 
that there was reasonable indication that the dumping and subsidies of the subject goods had 
caused injury or retardation or were threatening to cause injury. Subsequently, the CBSA made a 
preliminary determination of dumping and subsidizing on 13 August 2012. Provisional 
anti-dumping duties were imposed on, among others, imports from TPKM, including the imports of 
those exporters whose margins of dumping were found to be zero or de minimis . 
2. The CBSA issued its final determination of dumping and subsidizing on 9 November 2012. 
The CITT made its final injury determination  on 11 December 2012, concluding that the dumping 
of certain CSWP originating in or exported from TPKM, India, Oman, Korea, Thailand and the UAE 
and the subsidizing of these goods from India were threatening to cause injury to the Canadian 
domestic industr y. Definitive anti -dumping duties were imposed on imports from, among others, 
TPKM, including the imports of those exporters whose final margins of dumping were found to be 
zero or de minimis . 
3. Canada initiated a normal value review on 7 January 2013, on e month after the imposition 
of the definitive anti -dumping duties. The CBSA issued a Notice of conclusion of the 
re-investigation on 7 May 2013.  
4. In the present dispute, TPKM challenges the provisional and definitive anti -dumping 
measures imposed by Can ada on imports of certain CSWP. TPKM submits that these measures 
violate Articles 1, 2.2, 3.1, 3.2, 3.4, 3.5, 3.7, 5.8, 6.8, 6.10, 7.1(ii), 7.5. 9.2, 9.3 and Annex II of 
the Anti -Dumping Agreement, and Article VI of the GATT 1994.  
5. In addition, TPKM also  challenges Sections 2(1), 30.1, 35(1), 35(2), 38(1), 41(1), 42(1), 
42(6) and 43(1) of the Special Import Measures Act ( "SIMA") and Section 37.1(1) of the Special 
Import Measures Regulations ( "SIMR"), as being as such inconsistent with Articles 1, 3.1, 3.2 , 3.4, 
3.5, 3.7, 5.8, 7.1(ii), 7.5, 9.2, and 18.4 of the Anti -Dumping Agreement as well as Article VI of the 
GATT 1994 and article XVI:4 of the Marrakesh Agreement.  
2  CLAIMS CONCERNING TH E PROVISIONAL AND DE FINITIVE ANTI -DUMPING 
MEASURES ON IMPORTS OF CERTAI N CSWP ORIGINATING I N, AMONG OTHERS, TPK M 
2.1  Treatment of exporters with a de minimis  margin of dumping  
6. TPKM submits that the treatment of exporters with a de minimis  margin of dumping by 
Canada in the present case amounts to a violation of Articles 1, 5.8 , 6.10, 7.1(ii), 7.5, 9.2 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994 as will be explained below.  
2.1.1   Claim under Article 5.8 of the Anti -Dumping Agreement  
7. Article 5.8 of the Anti -Dumping Agreement provides that "[t]here shall be immedia te 
termination in cases where the authorities determine that the margin of dumping is de minimis ". 
The term "margin of dumping ", as clarified by the Appellate Body, refers to the "individual " margin 
of dumping, as opposed to the "country -wide" margin of du mping. Therefore, Article 5.8 requires 
WTO Members to terminate anti -dumping investigations with respect to exporters that have an 
individual de minimis  margin of dumping, regardless of the country -wide dumping margin.  WT/DS482/ R/Add.1  
 
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  8. In the present case, two of the th ree cooperating exporters from TPKM, i.e. Chung Hung 
Steel Corporation ( "Chung Hung Steel ") and Shin Yang Steel Co. Ltd. ( "Shin Yang Steel "), received 
individual de minimis  dumping margins of 0.005% and 0.4%, respectively, in CBSA's final 
dumping determina tion. However, the CBSA did not terminate the investigation with respect to 
these two exporters, but rather continued the investigation and ultimately imposed definitive 
anti-dumping measures on all imports from TPKM on the basis that the final country -wide margin 
of dumping for TPKM was greater than de minimis , namely 8.9%.  
9. TPKM submits that by failing to immediately terminate the investigation, leading to the 
imposition of definitive anti -dumping measures, with respect to exporters whose individual fin al 
margins of dumping were found to be de minimis , Canada violated Article 5.8 of the 
Anti-Dumping  Agreement.  
2.1.2   Claim under Article 6.10 of the Anti -Dumping Agreement  
10. Article 6.10 of the Anti -Dumping Agreement provides that "[t]he authorities shall, as a rule, 
determine an individual margin of dumping for each known exporter or producer ". As confirmed by 
previous case law, the rule to calculate an individual margin of dumping for each known exporter 
or producer refers to a single margin of dumping. Thus,  only one individual dumping margin for 
each exporter or producer must be determined and used throughout the investigation.  
11. In the present case, although the CBSA calculated individual margins of dumping for each 
known exporter or producer, it used thi s information to calculate the weighted average margin of 
dumping for each country under investigation with the purpose of determining whether such 
country -wide margins of dumping were de minimis . TPKM submits that by calculating country -wide 
margins of du mping and by using those country -wide margins for the purpose of the de minimis  
test, Canada violated Article 6.10 of the Anti -Dumping Agreement since that provision imposes the 
obligation to determine a single margin of dumping for each individual exporte r or producer.  
2.1.3   Claim under Article 7.1(ii) of the Anti -Dumping Agreement  
12. Article 7.1 of the Anti -Dumping Agreement authorizes the application of provisional 
measures upon meeting three conditions, one of which is that "a preliminary affirmative 
determ ination has been made of dumping and consequent injury to a domestic industry ". 
As pointed out by the panel in EC – Salmon (Norway) , an exporter with a de minimis  margin of 
dumping cannot be treated as "dumping " for the purposes of injury analysis and the imposition of 
anti-dumping duties.  
13. It follows that the CBSA could not have reached a preliminary affirmative determination of 
dumping with respect to Shin Yang Steel, whose preliminary margin of dumping was found to 
be 0.5%, and thus was de minimis . By applying provisional anti -dumping duties without meeting 
the criteria provided for in Article 7.1(ii), Canada acted inconsistently with that provision.  
2.1.4   Claims under Articles 7.5 and 9.2 of the Anti -Dumping Agreement  
14. Article 9.2 of the Anti -Dumping A greement provides that when an anti -dumping duty is 
imposed in respect to any product, such anti -dumping duty shall be collected in the appropriate 
amounts and on a non -discriminatory basis on imports of such product "from all sources found to 
be dumped an d causing injury ". The Appellate Body clarified that the meaning of "sources " in 
Article 9.2 refers to the individual exporters or producers subject to the investigation and not to 
the country as a whole. Furthermore, a producer with a zero or de minimis  margin of dumping 
cannot be considered as "dumping " and thus his imports do not qualify as "sources found to be 
dumped ". 
15. Pursuant to Article 7.5, the relevant provisions of Article 9 shall be followed in the 
application of provisional measures. Article 9.2 is a relevant provision within the meaning of 
Article  7.5 as it deals with the issue "connected with " the imposition of provisional measures, 
namely the collection of such measures, but which is not directly addressed by Article 7 itself.  WT/DS482/ R/Add.1  
 
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  16. In the pr esent case, Canada was required to ensure that its provisional and definitive 
anti-dumping duties were to be collected only from sources "found to be dumped ", i.e. exporters 
with an individual margin of dumping greater than de minimis  (i.e. a margin of dum ping of 2% or 
more). Canada, however, failed to do so.  
17. TPKM submits that Canada violated Articles 7.5 and 9.2 of the Anti -Dumping Agreement 
because, by imposing provisional and definitive anti -dumping duties on imports from exporters 
with a de minimis  margin of dumping, Canada caused anti -dumping duties to be collected from 
sources found not to be dumped and causing injury.  
2.1.5   Claims under Article VI:2 of the GATT 1994 and Article 1 of the 
Anti-Dumping  Agreement  
18. Article VI:2 of the GATT 1994 provides  that "[i]n order to offset or prevent dumping, a 
contracting party may levy on any dumped product an anti -dumping duty not greater in amount 
than the margin of dumping in respect of such product ". Article 1 of the Anti -Dumping Agreement 
establishes a link  between that Agreement and Article VI of the GATT 1994, and provides that 
"[a]n anti -dumping measure shall be applied only under the circumstances provided for in 
Article  VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance  with 
the provisions of this Agreement ". 
19. Since there is no dumping to "offset or prevent " in case of exporters with a zero or 
de minimis  margin of dumping, TPKM submits that Canada acted inconsistently with Article VI:2 of 
the GATT 1994 when it imposed  provisional and definitive anti -dumping duties on all TPKM 
exporters, including Chung Hung Steel and Shin Yang Steel, whose individual margins of dumping 
were de minimis . As a consequence, Canada also violated Article 1 of the Anti -Dumping Agreement 
since it failed to apply its anti -dumping measures under the circumstances provided for in 
Article  VI of the GATT 1994.  
2.2  Treatment of non -dumped imports in the injury and causation analyses  
20. TPKM submits that Canada violated Articles 3.1, 3.2, 3.4, 3.5 and 3. 7 of the 
Anti-Dumping  Agreement because it treated as "dumped imports " for the purposes of the injury 
and causation analyses imports from exporters with a de minimis  margin of dumping.  
21. Article 3.1 refers to the volume and effects of the "dumped import s". The subsequent 
paragraphs of Article 3 similarly refer to "dumped imports ". 
22. As confirmed by case law, imports from exporters whose dumping margins are de minimis  
cannot be considered as "dumped ". Therefore, TPKM submits that by failing to exclude f rom the 
injury and causation analyses the imports of exporters for whom the CBSA determined in its final 
dumping determination a de minimis  dumping margin, Canada acted inconsistently with 
Articles  3.1, 3.2, 3.4, 3.5 and 3.7 of the Anti -Dumping Agreement.  
2.3  Treatment of factors other than dumped imports in the causation analysis  
23. Articles 3.1 and 3.5 of the Anti -Dumping Agreement require, as part of the causation 
analysis, that the investigating authorities carry out "an objective examination " on the basis  of 
"positive evidence " of "known factors " other than the dumped imports and do not attribute to 
dumped imports injury caused by such other factors which are injuring the domestic industry at 
the same time.  
24. In the present case, the CITT cross -cumulated  the effects of dumping and subsidizing and 
failed to ensure that the injury caused by the effects of subsidies was not attributed to the alleged 
dumped imports. Furthermore, despite noting the very low capacity utilization rates of the 
domestic industry d uring the period of investigation and receiving submissions from interested 
parties that called attention to the "very bad economic conditions " affecting the Canadian domestic 
industry, the CITT failed to examine the injurious effects of overcapacity and d istinguish such 
effects from those caused by the alleged dumped imports.  WT/DS482/ R/Add.1  
 
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  25. TPKM submits that by failing to examine all known factors other than the alleged dumped 
imports which at the same time were injuring the domestic industry, including the effects o f 
subsidies and overcapacity, and by failing to ensure that the injuries caused by such other factors 
were not attributed to the alleged dumped imports, Canada violated Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement.  
2.4  The determination of the dumping ma rgin and duty rate for "all other exporters " 
26. TPKM submits that Canada violated Article 6.8 and Annex II, paragraph 7, of the 
Anti-Dumping Agreement in its determination of the dumping margin and duty rate for "all other 
exporters ". 
27. In the course of  the investigation, the CBSA calculated individual dumping margins for the 
three cooperative TPKM exporters, i.e. Chung Hung Steel, Shin Yang Steel, and Yieh Phui 
Enterprise Co. Ltd. ( "Yieh Phui "). For "all other exporters ", a residual dumping margin of 54 .2% 
was determined on the basis of facts available pursuant to a ministerial specification under SIMA. 
For these exporters, the normal values were determined by advancing the export prices by the 
highest amount by which the normal value exceeded the export  price on an individual transaction 
for a cooperative exporter, i.e. 54.2%.  
28. Article 6.8 of the Anti -Dumping Agreement provides that in cases in which an interested 
party "refuses access to, or otherwise does not provide, necessary information ", determ inations 
may be made "on the basis of the facts available ". Annex II which is entitled "Best Information 
Available in Terms of Paragraph 8 of Article 6 " elaborates further on the recourse to "facts 
available ". As clarified by case law, "the facts available " to be employed by the investigating 
authorities are expected to be "the best information available ", which means information that is 
not simply correct or useful, but also "the most fitting or most appropriate ", with "no better 
information available to b e used in the particular circumstances ". 
29. TPKM submits that Canada's methodology for calculating the margin of dumping for the 
other exporters is inconsistent with Article 6.8 and Annex II, paragraph 7, of the 
Anti-Dumping  Agreement. First, the CBSA con sidered the failure to provide the information itself 
as being sufficient to justify the use of the highest dumping margin, thereby seeking to punish 
"other exporters " for having failed to co -operate. Second, by applying mechanistically the highest 
dumping  margin established in the course of the investigation, the CBSA failed to evaluate and 
assess in a comparative manner the information that was on the record in order to identify which 
information was the "best information available, and in particular, ign ored the information 
provided by the cooperating TPKM exporters. Finally, the highest dumping margin calculated on an 
individual transaction of one non -TPKM cooperating exporter from Oman is not the "best available 
information ". Indeed, there is no logical  relationship between the rate established for all other 
TPKM exporters, namely 54.2%, and the facts on the record concerning TPKM exports. The CBSA 
should have rather relied on the information pertaining to the cooperating producers from TPKM 
which was re presentative for the TPKM market as a whole.  
30. In light of the foregoing, TPKM requests the Panel to conclude that Canada violated 
Article  6.8 and Annex II, paragraph 7, of the Anti -Dumping Agreement by failing to use the "best 
information available " for the determination of the dumping margin and the determination of the 
anti-dumping duty rate of "all other exporters " as required by those provisions.  
2.5  Treatment of New Product Types to be exported by cooperating exporters  
31. TPKM submits that Canada viol ated Article 9.3, Article 6.8 and Annex II, as well as 
Articles  2.2 and 6.10 of the Anti -Dumping Agreement with regard to the treatment of new product 
types to be exported by cooperating exporters.  
32. In the final dumping determination and the notice of c onclusion of the re -investigation, the 
CBSA determined that for goods for which specific normal values have not been established, 
normal values will be based on the export price of the subject goods advanced by 54.2%.  
33. As a preliminary remark, TPKM rec alls that, in line with well -established case law, dumping 
and margins of dumping can be found to exist only for the product under investigation as a whole WT/DS482/ R/Add.1  
 
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  and not for a type, model, or category of that product. TPKM submits that Canada erred in treating 
separately, for the purposes of determining the applicable anti -dumping duty, the product types 
produced by each exporter during the investigation and the "new product types " of those 
exporters.  
34. First, by imposing the residual anti -dumping duty of 54.2 % on "new product types ", the 
CBSA applied on "new product types " an anti -dumping duty which exceeds the margin of dumping 
that has been established under Article 2 of the Anti -Dumping Agreement for each cooperating 
exporter and thus violated Article 9.3 o f the Anti -Dumping Agreement.  
35. Second, the CBSA erroneously resorted to "facts available " for determining the anti -dumping 
duty applicable to "new product types " even though the requirements laid down in Article 6.8 and 
Annex II of the Anti -Dumping Agre ement were not met. Indeed, the TPKM cooperating exporters 
never refused access to, or otherwise did not provide the necessary information or significantly 
impeded the investigation. Therefore, Canada's use of facts available is clearly inconsistent with 
Article 6.8 of the Anti -Dumping Agreement. Furthermore, the information used by the CBSA, was 
not the "best information available " as required by Annex II.  
36. Third, Canada violated Article 2.2 of the Anti -Dumping Agreement because it calculated 
normal va lues for new product types of cooperating exporters on the basis of a methodology which 
is not foreseen in Article 2.2 of the Anti -Dumping Agreement.  
37. Finally, Canada violated Article 6.10 of the Anti -Dumping Agreement because the CBSA 
ignored the indiv idual margins of dumping previously established for the cooperating exporters 
and determined a separate margin of dumping of 54.2% with respect to new product types to be 
exported by those exporters, thereby calculating more than one dumping margin for eac h 
cooperative exporter.  
2.6  Claims under Article 1 of the Anti -Dumping Agreement and Article VI of the 
GATT  1994  
38. TPKM submits that as a consequence of all the above -mentioned violations, the Panel should 
find that Canada also acted inconsistently with Art icle 1 of the Anti -Dumping Agreement and 
Article VI of the GATT 1994.  
3  CLAIMS CONCERNING CE RTAIN PROVISIONS OF THE SPECIAL IMPORT M EASURES 
ACT ( "SIMA ") AND OF THE SPECIAL  IMPORT MEASURES REGU LATIONS ( "SIMR ") 
3.1  Claims concerning Sections 2(1), 30.1, 35(1) and 35(2), 38(1) and 41(1) of SIMA  
3.1.1   Sections 2(1), 30.1, 35(1) and 35(2) and 38(1) of SIMA are inconsistent as such 
with Article  7.1(ii) of the Anti -Dumping Agreement  
39. SIMA calls for a preliminary dumping determination with respect to all goods from a coun try 
with a country -wide margin of dumping of 2% or more, and thus also with respect to exporters 
with individual de minimis  margins of dumping. As discussed in Section 2.1.3 above, Article 7.1(ii) 
provides that provisional measures may be applied only if "a preliminary affirmative determination 
has been made of dumping ". Since exporters with individual de minimis  margins of dumping 
cannot be considered as "dumping ", by mandating that an affirmative preliminary dumping 
determination be made every time the co untry -wide margin of dumping is 2% or more and by 
ignoring the fact that such determination cannot cover exporters with an individual de minimis  
margin of dumping, SIMA is inconsistent, as such, with Article 7.1(ii) of the 
Anti-Dumping  Agreement.  
3.1.2   Sections 2(1), 30.1, 35(1) and 35(2) and 41(1) of SIMA are inconsistent as such 
with Article 5.8 of the Anti -Dumping Agreement  
40. The abovementioned Sections of SIMA, do not allow for a termination of the dumping 
investigation with respect to exporters for which a  de minimis  margin of dumping has been 
determined but require that a final dumping determination be made with respect to those 
exporters if the country -wide margin of dumping is found to be 2% or more. It follows that these WT/DS482/ R/Add.1  
 
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  provisions are as such inconsist ent with Article 5.8 of the Anti -Dumping Agreement which requires 
the immediate termination of an investigation when the authorities determine that the individual 
margin of dumping is de minimis , i.e. less than 2%.  
3.1.3   Sections 2(1), 30.1, 35(1) and 35(2), 38 (1) and 41(1) of SIMA are inconsistent as 
such with Articles 7.5 and 9.2 of the Anti -Dumping Agreement  
41. Furthermore, Sections 2(1), 30.1, 35(1) and 35(2), 38(1) and 41(1) of SIMA are also, as 
such, inconsistent with Articles 7.5 and 9.2 of the Anti -Dump ing Agreement because in mandating 
that affirmative preliminary and definitive dumping determinations be made for exporters with a 
de minimis  margin of dumping when the country -wide margin of dumping is 2% or more, these 
provisions cause anti -dumping dutie s to be collected from sources found not to be "dumped " and 
"causing injury ". 
3.1.4   Sections 2(1), 30.1, 35(1) and 35(2), 38(1) and 41(1) of SIMA are inconsistent as 
such with Article 1 of the Anti -Dumping Agreement and Article VI:2 of the GATT 1994  
42. Finally,  the imposition of anti -dumping duties on exporters with individual de minimis  
margins of dumping but whose country -wide margin of dumping is greater than de minimis  is in 
violation of Article 1 of the Anti -Dumping Agreement and Article VI:2 of the GATT 19 94, which 
provide for the possibility to levy an anti -dumping duty only "in order to offset or prevent 
dumping" and therefore not with respect to imports from exporters with a de minimis  margin of 
dumping.  
3.2  Claims concerning Sections 42(1), 42(6) and 43(1) of SIMA and Section 37.1(1) 
of SIMR  
43. TPKM submits that Sections 42(1), 42(6), 43(1) of SIMA and Section 37.1(1) of SIMR are 
inconsistent as such with Articles 3.1, 3.2, 3.4, 3.5 and 3.7 of the Anti -Dumping Agreement 
because these provisions result in an  automatic inclusion in the category of "dumped imports ", in 
the context of the injury analysis, of imports of exporters with a de minimis  margin of dumping.  
44. Pursuant to the above -mentioned provisions, the imports of exporters with a de minimis  
margin  of dumping will always be included in the analysis of the volume of dumped imports and 
the analysis of the effects of dumped imports on prices contrary to Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement. They will be also taken into account in the anal ysis of the impact of the 
dumped imports on the domestic industry and for the purpose of the causation analysis in violation 
of Articles 3.4 and 3.5 of the Anti -Dumping Agreement. Lastly, the imports from exporters with a 
de minimis  margin of dumping will be included in the analysis of the existence of a threat of 
material injury in violation of Article 3.7 of the Anti -Dumping Agreement.  
3.3  Claims under Article XVI:4 of the Marrakesh Agreement and Article 18.4 of the 
Anti-Dumping Agreement  
45. Since, as explai ned above, Sections 2(1), 30.1, 35(1), 35(2), 38(1), 41(1), 42(1), 42(6) 
and 43(1) of SIMA and Section 37.1(1) of SIMR violate a number of provisions of the 
Anti-Dumping Agreement, it automatically follows that Canada failed to ensure the conformity of 
its laws, regulations and administrative procedures with the provisions of the 
Anti-Dumping  Agreement and of the GATT 1994, and therefore, also violated Article XVI:4 of the 
Marrakesh  Agreement and Article 18.4 of the Anti -Dumping Agreement.  
3.4  Claims under Arti cle 1 of the Anti -Dumping Agreement and Article VI of the 
GATT  1994  
46. Since the relevant Sections of SIMA and SIMR provide for the imposition of anti -dumping 
measures even when the circumstances described in Article VI of the GATT 1994 are not met and 
following investigations that do not comply with the provisions of the Anti -Dumping Agreement, 
these Sections are also inconsistent as such with Article 1 of the Anti -Dumping Agreement and 
Article VI of the GATT 1994.  WT/DS482/ R/Add.1  
 
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  4  CONCLUSIONS  
47. TPKM respectfully reques ts the Panel to find that the provisional and definitive anti -dumping 
measures imposed by Canada on imports of certain CSWP from, among others, TPKM, are 
inconsistent with Articles 1, 2.2, 3.1, 3.2, 3.4, 3.5, 3.7, 5.8, 6.8, 6.10, 7.1(ii), 7.5, 9.2, 9.3 and  
Annex II of the Anti -Dumping Agreement and Article VI:2 of the GATT 1994. The Panel should also 
find that, as a consequence of these violations, Canada acted inconsistently with Article 1 of the 
Anti-Dumping Agreement and Article VI of the GATT 1994.  
48. Furthermore, TPKM respectfully requests the Panel to find that Sections 2(1), 30.1, 35(1) 
and 35(2), 38(1), 41(1), 42(1), 42(6) and 43(1) of SIMA as well as Section 37.1(1) of SIMR are 
inconsistent as such with Articles 1, 3.1, 3.2, 3.4, 3.5, 3.7, 5.8, 7.1 (ii), 7.5 and 9.2 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994. TPKM requests the Panel to also find 
that, as a consequence of these violations Canada acted inconsistently with Articles 1 and 18.4 of 
the Anti -Dumping Agreement, Article V I of the GATT 1994 and Article XVI:4 of the 
Marrakesh  Agreement.  
49. In light of the above, TPKM respectfully requests the Panel to recommend that the 
DSB request Canada to bring its measures into conformity with its obligations under the 
Anti-Dumping Agre ement and the GATT 1994.  
 
 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE SECOND WRITTEN S UBMISSION OF THE SEP ARATE  
CUSTOMS TERRITORY OF  TAIWAN, PENGHU, KINM EN AND MATSU  
1. In this second written submission, TPKM will address the arguments advanced by Canada in 
its first written submission, during the first substantive meeting with the Panel, and those provided 
in Canada's responses to the Panel questions to the parties.  
1  TREATMENT OF EXPORTE RS WITH A DE MINIMIS  MARGIN OF DUMPING  
1.1  Canada violated Article 5.8 of the Anti -Dumping Agreement  
2. TPKM submits that Canada violated Article 5.8 of the Anti -Dumping Agreement because it 
failed to immediately terminate the investigation with respect to exporters whose final margins of 
dumping were de minimis . Contrary to Canada's assertion, the ordinary meaning of the terms used 
in Article 5.8 and their context do not indicate that the termination of an investigation is required 
on a country basis. Instead, the ordinary meaning of the words "termination", "investigation", 
"dumping" and "margin of dumping" used in Article 5.8 actually confirms that the investigation 
needs to be terminated with respect to exporters/producers with an individual final de minimis  
margin of dumping.  
3. Canada's position is also not supported by t he context of Article 5.8. First, the characteristics 
of investigation described in Article 5 of the Anti -Dumping Agreement do not suggest that the 
requirement to terminate such an investigation concerns the imports of the product at issue from 
one or more  countries and not from an individual exporter. While an investigation is product -
specific, it results in a different level of duties being imposed on the different exporters/producers 
and in that sense is also exporter -specific. Second, the language used in the different sentences of 
Article 5.8 does not indicate that the termination in case of de minimis  margin of dumping should 
be made on a country basis. Third, Canada's arguments relating to the use of the term 
"de minimis " in Articles 3.3 and Article 9 .4 of the Anti -Dumping Agreement distort the meaning of 
these provisions and simply do not stand.  
4. Canada also takes issue with the panel and the Appellate Body's findings in Mexico – 
Anti-Dumping Measures on Rice  invoked by TPKM. Canada's arguments must  all be rejected. 
Indeed, the panel and the Appellate Body's findings are legally sound and should be followed by 
the Panel in the present case. Furthermore, as the Appellate Body noted in US – Stainless Steel 
(Mexico) , the panel's failure to follow previo usly adopted Appellate Body reports addressing the 
same issues would undermine the development of a coherent and predictable body of 
jurisprudence.  
1.2  Canada violated Article 6.10 of the Anti -Dumping Agreement  
5. TPKM claims that Canada violated Article 6.10 of the Anti -Dumping Agreement because it 
failed to determine a single individual margin of dumping for each exporter or producer by 
calculating an additional country -wide margin of dumping and using that margin for the purpose of 
the de minimis  test r equired by Article 5.8.  
1.3  Canada violated Article 7.1(ii) of the Anti -Dumping Agreement  
6. TPKM submits that Canada violated Article 7.1(ii) of the Anti -Dumping Agreement because it 
applied provisional anti -dumping measures in the absence of a prelimin ary affirmative 
determination of dumping. According to Canada, "[n]othing in Article 7.1(ii) suggests that 
provisional measures cannot be applied to dumped imports from an exporter with a de minimis  
margin of dumping". This argument must be rejected. One o f the conditions set out in Article 7.1 
for the application of provisional measures is that the investigating authority has made a 
"preliminary affirmative determination" of dumping and consequent injury to a domestic industry 
(Article 7.1(ii)). The panel in EC – Salmon (Norway)  explained that in case of imports from WT/DS482/ R/Add.1  
 
- B-10 - 
 
  exporters with de minimis  margins of dumping, there is "no legally cognizable dumping". 
Thus,  Canada's investigating authorities could not have reached a preliminary affirmative 
determination o f dumping with respect to the exporters with a de minimis  dumping margin since 
such imports could not be treated as "dumped imports". Further, pursuant to Article 5.8 of the 
Anti-Dumping Agreement, an investigation needs to be terminated with regard to 
producers/exporters with a de minimis  dumping margin, and thus no definitive anti -dumping 
duties can be imposed on such imports. The consistent interpretation of the term "dumped" 
requires that the same reasoning applies in the context of Article 7.1(ii).  
7. TPKM submits that the balance between the need to safeguard free trade and the application 
of provisional measures necessary to prevent injury during the investigation, enshrined in 
Article  7.1, requires that in case of imports from exporters with de mini mis margin of dumping, 
while the investigation may continue, no measures should be applied during the remaining part of 
the investigation.  
8. Canada refers to the Appellate Body's findings in Mexico – Anti-Dumping Measures on Rice  
and argues that "provisio nal measures could still have been applied until the final determination of 
dumping and the finding of injury were made". This is an incorrect reading of the Appellate Body 
Report in that case, which only held that where the issuance of the order establish ing 
anti-dumping duties occurs after the final determination is made, the producers with a de minimis  
margin of dumping are excluded from the scope of the order. Finally, the Panel should dismiss the 
arguments put forward by the European Union and the Unit ed States in their responses to the 
Panel question No.  1.3 where both third parties erroneously refer to Article 7.2 of the 
Anti-Dumping Agreement and focus on the issue of the amount of provisional duties.  
1.4  Canada violated Article 7.5 and Article 9.2 of the Anti -Dumping Agreement  
9. TPKM submits that Canada violated Articles 7.5 and 9.2 of the Anti -Dumping Agreement 
because in imposing provisional and definitive anti -dumping duties on imports from exporters with 
a de minimis  margin of dumping, Canada c aused anti -dumping duties to be collected from sources 
found not to be dumped and causing injury. Canada argues that the CBSA respected the 
requirements of Articles 7.5 and 9.2. While addressing the requirements imposed by Article 9.2, 
Canada observes that  besides an exception for imports from exporters from which price 
undertakings have been accepted, Article 9.2 contains no further exception. This argument, 
however, does not stand. Indeed, since Article 9.2 requires an anti -dumping duty to be collected 
from all "sources found to be dumped" which does not cover producers with de minimis  margins of 
dumping, no such exception is needed. TPKM notes that the phrase "sources found to be dumped" 
should be interpreted in the context of Article 9.2 which deals with  the imposition of anti -dumping 
duties. Since Article 5.8 provides that the investigation needs to be immediately terminated in 
case of exporters with a de minimis  margin of dumping it is clear that no anti -dumping duties can 
be imposed on imports of such exporters and, thus, the phrase "sources found to be dumped" do 
not cover these exporters.  
10. With regard to the application of provisional measures, some of the third parties argue that 
Articles 7.5 and 9.2 "do not necessarily preclude the application of  provisional anti -dumping 
duties". TPKM submits that they erroneously focus on the issue of the "appropriate amounts" of 
provisional measures. What is relevant in the context of the imposition of provisional measures is 
that such measures can be collected only from "sources found to be dumped and causing injury". 
Exporters with a de minimis  margin of dumping cannot be treated as "sources found to be 
dumped".  
1.5  Canada violated Article VI:2 of the GATT 1994 and Article 1 of the 
Anti-Dumping  Agreement  
11. TPKM submits that by imposing provisional and definitive anti -dumping duties on imports 
from exporters with zero or de minimis  margin of dumping, Canada violated Article VI:2 of the 
GATT 1994 and Article 1 of the Anti -Dumping Agreement. In its first written  submission, Canada 
failed to rebut these arguments.  WT/DS482/ R/Add.1  
 
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  2  TREATMENT OF NON -DUMPED IMPORTS IN TH E INJURY AND CAUSATI ON ANALYSES  
12. TPKM submits that Canada violated Articles 3.1, 3.2, 3.4, 3.5 and 3.7 of the 
Anti-Dumping  Agreement because it treated imports from exporters with a de minimis  margin of 
dumping as "dumped imports" in its injury and causation analyses. Canada relies on the Appellate 
Body's findings in US – Carbon Steel  to argue that the term "dumping" is not limited to dumping at 
a rate equal to o r in excess of the de minimis  threshold. This reference is inapposite since that 
case related to the applicability of the de minimis  standard in Article 11.9 of the SCM Agreement to 
sunset reviews. Moreover, previous panels and the Appellate Body have cons istently found that 
"dumped imports" for the purpose of the injury analysis should be understood as imports 
attributable to producers or exporters with a margin of dumping greater than de minimis .  
13. Canada also erroneously claims that all previous cases  referred to in TPKM's first written 
submission concern companies with a zero and not de minimis  margin of dumping and that none 
of those cases contain any analysis as to why imports with de minimis  margin of dumping should 
be excluded from the injury anal ysis. This is factually incorrect. Indeed, in both EC – Salmon 
(Norway)  and EC – Bed Linen , de minimis  margins of dumping were found by the authorities and 
the panels in both cases reached the conclusion that imports of producers with zero or de minimis  
margin of dumping may not be considered as "dumped". Furthermore, as noted above, since there 
is "no legally cognizable dumping" in case of imports from exporters with de minimis  margins of 
dumping, such imports should not be treated as "dumped imports" for the purpose of injury 
analysis or, in fact, for any aspect of an anti -dumping investigation.  
3  TREATMENT OF FACTORS  OTHER THAN DUMPED IM PORTS IN THE CAUSATI ON 
ANALYSIS  
14. TPKM claims that Canada violated Articles 3.1 and 3.5 of the Anti -Dumping Agreeme nt 
because it failed to examine all known factors other than the alleged dumped imports which at the 
same time were causing injury to its domestic industry, in particular the effects of subsidies and 
overcapacity, and failed to ensure that the injuries cau sed by such other factors were not 
attributed to the alleged dumped imports.  
15. TPKM submits that the effects of subsidies constitute an "other factor", known to the 
Canadian authorities, the effects of which should have been separated and distinguished from the 
effects of dumping in the causation analysis. Canada's assertion that there is no requirement to 
separate and distinguish the effects of the Indian subsidization from the effects of the dumped 
imports would render inutile  the words "through the ef fects of dumping" contained in Article 3.5 of 
the Anti -Dumping Agreement. In TPKM's view, when the same goods are dumped and subsidized 
at the same time there may be effects of subsidization that are not directly reflected in the 
dumping margin. TPKM submi ts that without analysing the relationship between different subsidy 
programs and dumping in India, Canada could not have assumed that there is no need to 
distinguish between the effects of dumping and the effects of subsidization.  
16. With respect to over capacity, Canada argues that the CITT was not obliged to examine and 
to separate and distinguish the effects of overcapacity, since low capacity utilization rates are not 
a cause of injury but merely an injury indicator. TPKM considers that "low capacity u tilization 
rates" and "overcapacity" are two distinct concepts. While overcapacity can be the cause of injury, 
it is not in itself an injury indicator. Therefore, in order to satisfy the requirements of Article 3.5, 
"overcapacity" must be properly separate d and distinguished from the injury caused by the 
dumped imports. Since the CITT failed to do so, it violated Articles 3.1 and 3.5 of the 
Anti-Dumping Agreement.  
4  THE DETERMINATION OF  THE DUMPING MARGIN A ND DUTY RATE FOR "AL L OTHER 
EXPORTERS"  
17. TPKM s ubmits that Canada's determination of the dumping margin and duty rate for all 
other exporters is inconsistent with Article 6.8 and Annex II, paragraph 7, of the 
Anti-Dumping  Agreement. TPKM submits that the use of the highest dumping margin seeks to 
punis h TPKM other exporters from failing to cooperate. Canada argues that "the CBSA's ministerial 
specification cannot be considered punitive" because it was based on verified facts and on 
reasonable inferences concerning exporters that decided not to participa te in the investigation. WT/DS482/ R/Add.1  
 
- B-12 - 
 
  TPKM submits that, while a determination based on Article 6.8 must be based on "facts" and non -
cooperation may be one of the procedural circumstances that may be taken into account when 
selecting facts available, the investigating authority cannot choose whichever factual element it 
wishes on the sole basis that the exporter did not cooperate. The two cases referred by Canada, 
namely EC – Countervailing Measures on DRAM Chips  and US – Carbon Steel (India)  support 
TPKM's position. In  the present case, the CBSA mechanistically applied the rule laid down in the 
SIMA Handbook which calls for the use of the highest margin of dumping and thus used the worst 
possible information, thereby acting such as to punish all other exporters from fai ling to cooperate.  
18. TPKM also submits that the CBSA failed to make any comparative and evaluative 
assessment of the facts on the record. TPKM notes in particular that Canada has expressly 
confirmed that there is no evidence on the record showing any suc h assessment in order to select 
the "best" information available when determining the rate applicable to all other TPKM exporters.  
19. TPKM further submits that Canada violated Article 6.8 and Annex II, paragraph 7 because 
there is no "logical relationship " between the rate established for all other TPKM exporters and the 
facts on the record concerning TPKM exports. In particular, Canada ignored the data concerning 
TPKM cooperating exporters which were representative of the TPKM market as a whole. Canada 
argues that TPKM's argument "lacks support in the Anti -Dumping Agreement as it ignores the 
procedural character of the obligations under Annex II, paragraph 7" and that "[these] obligations 
do not guarantee a specific outcome". However, TPKM does not challen ge the outcome per se , 
namely, the 54.2% margin of dumping, but the methodology followed by the CBSA, which 
determines the rate for all other TPKM exporters on the basis of facts that are totally unrelated to 
them.  
5  TREATMENT OF NEW PRO DUCT TYPES TO BE EXPORTED BY COOPERAT ING EXPORTERS  
5.1  Canada violated Article 9.3 of the Anti -Dumping Agreement  
20. TPKM submits that Canada violated Article 9.3 of the Anti -Dumping Agreement because it 
imposed anti -dumping duties on new product types of cooperating expo rters that exceed their 
margin of dumping as established under Article 2.  
21. Canada's argument that TPKM's claim is based on speculation is entirely misplaced. Indeed, 
TPKM does not argue that its exporters are prevented from making a refund request purs uant to 
Article 9.3.2 or that Canada has failed to refund duties paid by importers. What is at issue is the 
fact that the anti -dumping duty applied on imports of new product types for cooperating exporters 
is based on the residual duty rate. This is incons istent with Article 9.3. Therefore, in order to 
succeed with this claim which is based on Article 9.3 and does not involve Article 9.3.2, TPKM is 
not required to provide any evidence that imports of new product types have been subject to an 
initial duty as sessment. Canada's further argument that it is only in the context of the duty refund 
procedure that the obligation in Article 9.3 must be complied with, must also be rejected. This 
position is not correct and not supported by the case -law referred to by C anada. In fact, Canada's 
position leads to the absurd outcome that every fully cooperating exporter with new product 
models to be imported into Canada must be subject to the residual duty rate – even those 
exporters with a zero margin of dumping.  
22. Finally, Canada's argument that "when an importer believes that anti -dumping duties were 
improperly collected it can apply for a refund", is misleading. In fact, the application of the residual 
duty rate on imports of new product types has effectively prevented  purchase of such new product 
types by Canadian importers.  
23. In conclusion, Article 9.3 is relevant not only in the context of the refund mechanism under 
Article 9.3.2. The "margin of dumping as established under Article 2" referred to in Article 9.3 al so 
refers to the margin of dumping which is established during the original investigation. By using a 
prospective normal value for new product types based on the "all others rate" instead of the 
individual rate determined for the relevant exporters, Canada  therefore violated Article 9.3 of the 
Anti-Dumping Agreement.  WT/DS482/ R/Add.1  
 
- B-13 - 
 
  5.2  Canada violated Article 6.8 and Annex II of the Anti -Dumping Agreement  
24. TPKM also submits that Canada violated Article 6.8 a nd Annex II of the 
Anti-Dumping  Agreement because it resorted  to facts available for the calculation of the normal 
value with respect to imports of new product types to be exported by the cooperating exporters. 
Canada should not have resorted to "facts available" because the conditions laid down in 
Article  6.8 were not fulfilled. Canada claims that "[w]ithout an ability  to apply facts available, 
anti-dumping duties could never be levied on new models, thereby creating a significant gap in the 
anti-dumping disciplines." However the CBSA did possess the "necessary info rmation", each TPKM 
cooperating exporter fully cooperated in the investigation and, on the basis of the information 
provided by each of them, the CBSA calculated a dumping margin of respectively 0.005% for 
Chung Hung Steel, 0.4% for Shin Yang Steel and of 4.7% for Yieh Phui. Canada manifestly fails to 
take into account that under the Anti -Dumping Agreement, dumping and dumping margin are 
determined and imposed with respect to the product under investigation as a whole. Therefore, if 
the anti -dumping duty is  calculated by reference to prospective normal values, the relevant 
"normal values" cannot be higher than those that have been determined for the purposes of 
determining the dumping margin for that product.  
25. The determination regarding the normal value  for new product types is also manifestly 
inconsistent with Annex II, paragraph 7. TPKM notes that the Appellate Body emphasised that 
"investigating authorities should not arrive at a "less favourable" outcome simply because an 
interested party fails to fu rnish requested information if, in fact, the interested party has 
"cooperated" with the investigating authorities, within the meaning of paragraph 7 of Annex II of 
the Anti -Dumping Agreement." Since the two TPKM exporters fully cooperated during the 
invest igation, the anti -dumping duty determined for new product types could not be based on facts 
available leading to a result which is less favourable to them. Furthermore, it appears that the 
information used was not the "best" information available, nor coul d it be considered as the 
"most  fitting" information. Canada failed to address these arguments.  
5.3  Canada violated Article 2.2 of the Anti -Dumping Agreement  
26. TPKM claims that Canada violated Article 2.2 of the Anti -Dumping Agreement because it 
calcula ted normal values for new product types of cooperating exporters on the basis of a 
methodology which is not foreseen in Article 2.2 of the Anti -Dumping Agreement. Canada argues 
that TPKM has failed to prove that a violation occurred because TPKM "has not r eferred to a single 
shipment of a new product model by one of its exporters that was subject to the treatment that 
[TPKM] alleges violates Article 2.2." Canada misses the point, because it is the calculation of the 
normal value which is at issue. Second, C anada submits that the investigating authority is not in a 
position to determine model -specific normal values for the new product types when they are 
imported as they have yet to be investigated and therefore, Article 6.8 of the 
Anti-Dumping  Agreement perm its the CBSA to use facts available. Since the conditions to resort to 
"facts available" were not fulfilled, the CBSA could only apply the methodologies provided for in 
Article  2.2. By failing to do so, Canada acted inconsistently with Article 2.2 of the 
Anti-Dumping  Agreement.  
5.4  Canada violated Article 6.10 of the Anti -Dumping Agreement  
27. TPKM submits that Canada violated Article 6.10 of the Anti -Dumping Agreement to the 
extent that Canada did not calculate one dumping margin for each cooperating expo rter but 
another additional dumping margin with respect to new product types.  
6  CLAIM  UNDER ARTICLE 1 OF T HE ANTI -DUMPING AGREEMENT AN D ARTICLE VI OF 
THE GATT 1994  
28. TPKM claims that all the above -mentioned violations resulted in a consequential violati on of 
Article 1 of the Anti -Dumping Agreement and Article VI of the GATT 1994. Since Canada failed to 
rebut any of TPKM's claims, the Panel should conclude that it has also acted inconsistently with the 
above two provisions.  WT/DS482/ R/Add.1  
 
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  7  CLAIMS CONCERNING CE RTAIN PR OVISIONS OF THE SPEC IAL IMPORT MEASURES 
ACT ("SIMA") AND OF THE SPECIAL IMPORT M EASURES REGULATIONS ("SIMR")  
7.1  Claims concerning Subsection 2(1), Section 30.1, and Subsections 35(1) and 35(2), 
38(1) and 41(1) of SIMA  
29. TPKM claims that Subsection 2(1) , Section 30.1, and Subsections 35(1) and 35(2), 38(1) 
and 41(1) of SIMA are inconsistent, as such, with Articles 1, 5.8, 7.1(ii), 7.5 and 9.2 of the 
Anti-Dumping Agreement as well as Article VI:2 of the GATT 1994 because they provide for a 
de minimis  test to be carried out on a country -wide basis instead of an exporter -specific basis.  
30. First, TPKM submits that Subsection 2(1), Section 30.1 and Subsections 35(1), 35(2) and 
38(1) are as such inconsistent with Article 7.1(ii) of the Anti -Dumping Agreement  because they 
mandate that an "affirmative preliminary dumping determination" be made for exporters with a 
de minimis  margin of dumping when the country -wide margin of dumping is 2% or more. One of 
the conditions spelled out in Article 7.1(ii) is that the investigating authority makes a "preliminary 
affirmative determination" of dumping. By mandating that such affirmative preliminary 
determination be made every time the country -wide margin of dumping is 2% or more and by 
ignoring the fact that such determin ation cannot cover exporters with an individual de minimis  
margin of dumping, the relevant provisions of SIMA are inconsistent, as such, with Article 7.1(ii) of 
the Anti -Dumping Agreement. Contrary to what Canada argues, the fact that investigation is not 
terminated with respect to exporters with a de minimis  margin of dumping does not imply that the 
investigating authority can impose provisional measures on imports from such exporters. TPKM 
also fails to see how the findings of the Appellate Body in Mexico  – Anti-Dumping Measures on Rice  
support Canada's position that an investigating authority is permitted to apply provisional 
measures on dumped imports until definitive anti -dumping duties can be imposed. In fact, 
paragraph 219 of the Appellate Body Report , referred to by Canada, does not even address the 
issue of the imposition of provisional measures.  
31. Second, Subsection 2(1), Section 30.1 and Subsection 41(1) of SIMA are inconsistent as 
such with Article 5.8 of the Anti -Dumping Agreement. Canada argu es that even if Article 5.8 were 
to be interpreted as requiring exporter -specific termination, SIMA could not be found to violate as 
such Article 5.8 because Subsection 43(1) of SIMA confers discretion to the CITT to terminate an 
investigation regarding th e dumped imports from an exporter with a de minimis  margin of 
dumping by excluding that exporter from the injury finding. TPKM disagrees. First, the text of 
Subsection 43(1) of SIMA does not indicate that the CITT enjoys discretion to terminate an 
investig ation with regard to exporters with a de minimis  margin of dumping. Canada also did not 
provide any evidence which would confirm that the CITT enjoys the alleged discretion. Second, 
even if the Panel were to conclude that the SIMA text confers some discret ion - quod non  - this 
would be still inconsistent with the requirements of the Anti -Dumping Agreement, as Article 5.8 
clearly requires an immediate termination of the investigation with respect to exporters with de 
minimis  margins of dumping and does not a llow for any discretion. It follows that to the extent 
SIMA grants any discretion for the CITT to act otherwise it is as such inconsistent with Article 5.8. 
Finally, TPKM notes that the alleged discretion cannot render the relevant provisions of SIMA 
consistent with Article 5.8. Indeed, excluding an exporter from an injury finding is not equal to 
terminating the investigation with respect to such exporter. Furthermore, even assuming – for the 
sake of argument – that SIMA provides for discretion to terminate  investigation with respect to 
exporters with de minimis  margins of dumping, such discretion would be provided only to 
the CITT, while pursuant to Article 5.8, the investigation should have already been terminated by 
the CBSA.  
32. Third, TPKM submits that  Subsection 2(1), Section 30.1, and Subsections 35(1), 35(2), 
38(1), and 41(1) of SIMA are as such inconsistent with Articles 7.5 and 9.2 of the Anti -Dumping 
Agreement because these provisions require affirmative preliminary and definitive dumping 
determin ations be made and anti -dumping duties collected for exporters with a de minimis  margin 
of dumping, even from sources found not to be dumped and causing injury. Canada asserts that 
"anti-dumping duties are to be collected on imports from all individual exp orters and producers 
found to be dumped and causing injury, including on imports from exporters with de minimis  
margins of dumping". This is incorrect, since the term "dumped" used in Article 9.2 requires a 
dumping margin that is more than de minimis . Cana da also refers to Subsection 43(1) of SIMA 
and the alleged discretion of the CITT to exclude exporters with de minimis  margins of dumping 
from an injury finding. As explained above, this Subsection does not provide for any discretion.  WT/DS482/ R/Add.1  
 
- B-15 - 
 
  33. Finally, TPKM mai ntains that the SIMA provisions requiring anti -dumping duties to be 
imposed on exporters with a de minimis  margin of dumping amount to an as such violation of 
Article VI:2 of the GATT 1994, which only allows the levying of anti -dumping duties "in order to 
offset or prevent dumping". Canada failed to rebut TPKM's claims in that regard.  
7.2  Claims concerning Subsections 42(1), 42(6) and 43(1) of SIMA and 
Subsection  37.1(1) of SIMR and any implementing or related measures  
34. TPKM claims that Subsections 42(1 ), 42(6) and 43(1) of SIMA and Subsection 37.1(1) of 
SIMR, as well as any implementing or related measures, are as such inconsistent with Articles 3.1, 
3.2, 3.4, 3.5 and 3.7 of the Anti -Dumping Agreement because they result in the automatic 
inclusion in th e category of "dumped imports", in the context of the injury analysis, of the imports 
from exporters with a de minimis  margin of dumping. Canada essentially repeats its previous 
arguments made in the context of the claims concerning anti -dumping measure at  issue and fails 
to rebut TPKM's claims.  
7.3  Claims under Article XVI:4 of the Marrakesh Agreement and Article 18.4 of the 
Anti-Dumping Agreement  
35. TPKM submits that since Canada failed to ensure the conformity of its laws, regulations and 
administrativ e procedures with the provisions of the GA TT 1994 and of the 
Anti-Dumping  Agreement, it has acted inconsistently with Article XVI:4 of the Marrakesh 
Agreement and Article  18.4 of the Anti -Dumping Agreement.  
7.4  Claims under Article 1 of the Anti -Dumping A greement and Article VI of the 
GATT  1994  
36. Since Canada failed to rebut any of TPKM's claims concerning as such violations, it is clear 
that Canada has also acted inconsistently with Article 1 of the Anti -Dumping Agreement and 
Article  VI of the GATT 1994 . 
 
 WT/DS482/ R/Add.1  
 
- B-16 - 
 
  ANNEX B -3 
INTEGRATED EXECUTIVE  SUMMARY OF THE STATE MENTS OF THE SEPARAT E 
CUSTOMS TERRITORY OF  TAIWAN, PENGHU, KINM EN AND MATSU AT  
THE FIRST MEETING OF  THE PANEL  
Opening Statement of the Separate Customs Territory  
of Taiwan, Penghu, Kinmen and Matsu  
1  INTRODUCTION  
1. The present proceedings concern provisional and definitive anti -dumping measures imposed 
by Canada on imports of certain Carbon Steel Welded Pipe. These measures, and the investigation 
that led to their imposition, are deeply flawed and vi olate several provisions of the 
Anti-Dumping  Agreement and the GATT 1994. Moreover, the underlying Canadian legislation, 
namely the Special Import Measures Act (or SIMA) and the Special Import Measures Regulations 
(or SIMR), is inconsistent as such with th e Anti -Dumping Agreement, the GATT 1994 and the 
Marrakesh Agreement.  
2. The economic impact of Canada's measures on our steel industry has been devastating as 
the value of our exports of the product at issue to Canada suffered a 75% drop – from 
16 million  US Dollars to 4 million between 2011 and 2013.  
2  TREATMENT OF EXPORTE RS WITH A DE MINIMIS  MARGIN OF DUMPING  
3. Canada puts forward a distorted interpretation of the relevant provisions of the 
Anti-Dumping Agreement in order to respond to the arguments ra ised by us. First, with regard to 
the claim under Article 5.8  of the Anti -Dumping Agreement , Canada argues that the 
requirement to terminate an investigation when the margin of dumping is de minimis  pertains to a 
country and not to an individual exporter. This interpretation of Article 5.8 is incorrect and goes 
against findings of the Appellate Body in Mexico – Anti-Dumping Measures on Rice . Canada 
erroneously argues that the Appellate Body in that case overlooked Articles 3.3 and 9.4 in its 
interpretation of Article 5.8 in the context of other provisions of the Anti -Dumping Agreement. 
Article 3.3 deals with situations "where imports of a product from more than one country are 
simultaneously subject to anti -dumping investigations", which explains the referen ce to the margin 
of dumping from "each country". Article 9.4 addresses the calculation criteria for the margin of 
dumping of non -sampled exporters where sampling is used by the investigating authorities. 
Contrary to what Canada argues, there is no conflict  between the requirement to terminate the 
investigation for individual exporters with de minimis  margins of dumping and the obligation to 
disregard such de minimis  margins of dumping in the calculations under Article 9.4. We submit 
that the Panel in the pr esent case should follow the interpretation adopted by the Appellate Body 
in previous cases dealing with similar issues, in order not to undermine the coherence and the 
predictability of the WTO legal system.  
4. Canada argues that it did not violate Articl e 6.10  because it had already determined an 
individual margin of dumping for each exporter and because the additional determination of a 
country -wide margin of dumping is irrelevant. Canada disregards that Article 6.10 requires a single 
company -specific ma rgin of dumping to be established for each exporter. The establishment of a 
second country -wide margin for each exporter for the purpose of the application of the de minimis  
test is inconsistent with Article 6.10.  
5. Canada argues that nothing in Article 7 .1(ii)  suggests that provisional measures cannot be 
applied to dumped imports from an exporter with a de minimis  margin of dumping. This argument 
must be rejected, since an exporter with a de minimis  margin of dumping cannot be treated as 
"dumping". The fa ct that the investigating authority may continue the investigation until it makes 
a final dumping determination does not mean that it can disregard the requirements of Article 7.1 
and apply a provisional anti -dumping duty on imports from exporters with a p rovisional de minimis  
margin of dumping.  WT/DS482/ R/Add.1  
 
- B-17 - 
 
  6. Canada further argues that it did not violate Articles 7.5  and 9.2  in applying provisional 
measures and imposing definitive measures on exporters with a de minimis  margin of dumping. 
This contention is in contrad iction with the Appellate Body's finding that a producer with a zero or 
de minimis  margin of dumping cannot be considered as "dumping" and thus his imports do not 
qualify as "sources found to be dumped". Finally, Canada violated Article VI:2 of the GATT 19 94 
because the possibility to levy an anti -dumping duty only applies "in order to offset or prevent 
dumping" and therefore does not apply to imports from exporters with a de minimis  margin of 
dumping. As a consequence, Canada also violated Article 1 of the  Anti-Dumping Agreement.  
3  TREATMENT OF NON -DUMPED IMPORTS IN TH E INJURY AND CAUSATI ON ANALYSES  
7. We submit that by failing to exclude from the category of "dumped imports" the imports of 
the exporters with a de minimis  margin of dumping, Canada violate d Articles 3.1, 3.2, 3.4, 3.5 
and 3.7 of the Anti -Dumping Agreement. Canada claims that nothing in these provisions suggests 
that "dumped imports" should exclude imports from exporters with de minimis  margins of 
dumping. This goes against a number of previ ous reports of panels and the Appellate Body, 
according to which the term "dumped imports" refers to imports of producers with a margin of 
dumping above de minimis . Canada claims that all previous cases referred to by our concern 
companies with a zero and not de minimis  margin of dumping. This is factually incorrect, since in 
EC – Salmon (Norway) , the EC calculated a de minimis  margin of dumping of 0.8% for one 
company and, likewise, in EC – Bed Linen , the EC found de minimis  margins for four Pakistani 
exporters. In both cases the panels reached the conclusion that imports of producers with zero or 
de minimis  margin of dumping may not be considered as "dumped".  
4  TREATMENT OF FACTORS  OTHER THAN DUMPED IM PORTS IN THE CAUSATI ON 
ANALYSIS  
8. We claim that Canad a failed to examine all known factors other than the alleged dumped 
imports, such as the effects of the subsidies and overcapacity, which at the same time were 
causing injury to the domestic industry. Concerning the effects of subsidies, Canada argues that  
the Anti -Dumping Agreement does not require that the effects of the subsidies be separated from 
the effects of the dumping. We argue  that subsidised imports constitute another factor, the effects 
of which should have been distinguished from the effects of  dumping in the causation analysis.  
9. With regard to overcapacity, Canada argues that low capacity utilization rates cannot be said 
to cause injury and thus do not have to be examined in the causation analysis. We maintai n that 
although the low capacity utilization rate is one of the injury factors under Article 3.4, the 
overcapacity which was present at the beginning of the investigation period was a known factor 
that the Tribunal failed to examine in the context of its non -attribution analysis. As a con sequence, 
the Canadian authorities violated Articles 3.1 and 3.5 of the Anti -Dumping Agreement.  
5  THE DETERMINATION OF  THE DUMPING MARGIN A ND DUTY RATE FOR "AL L OTHER 
EXPORTERS"  
10. Canada's methodology for calculating the margin of dumping for "all othe r exporters" is 
inconsistent with Article 6.8 and Annex II, paragraph 7, of the Anti -Dumping Agreement. Canada's 
automatic use of the highest dumping margin found for an individual transaction from another 
market to determine the duty applicable for all ot her exporters seeks to punish all other exporters 
on the sole basis that they were either unknown or failed to provide information. By applying 
mechanistically the rule in the SIMA Handbook – which requires the investigating authorities to 
apply the highes t margin of dumping found for one transaction of a cooperating exporter – Canada 
failed to evaluate in a comparative manner the information that was on the record. Canada failed 
to explain how the highest dumping margin of a single transaction in the inves tigation was 
appropriate for establishing the "all others rate". Nor did Canada provide any evidence that it has 
made a careful evaluation of the facts available.  
11. We submit  that there is no logical relationship between the residual rate established fo r our 
exporters, namely 54.2%, and the facts on the record. The Appellate Body clarified that the term 
"best information" means that information has to be the "most appropriate information" available. 
The data provided by cooperating exporters from us, whi ch was representative for our exports as a WT/DS482/ R/Add.1  
 
- B-18 - 
 
  whole, would clearly be the "most fitting" information available in the present case, but was 
nonetheless ignored.  
12. Finally, contrary to Canada's contention, we did not argue that Canada violated Annex II and 
Article 6.8 of the Anti -Dumping Agreement because it should have reached another or any specific 
outcome. We simply submit  that any outcome must be based on methodologies that comply with 
the rules of the Anti -Dumping Agreement. All the evidence on the reco rd demonstrates that there 
was no assessment of the facts before the investigating authorities and thus we ha ve made a 
prima  facie case that Canada violated Article 6.8 and Annex II of the Anti -Dumping Agreement.  
6  TREATMENT OF NEW PRO DUCT TYPES TO BE EX PORTED BY COOPERATIN G EXPORTERS  
13. Canada argued that, to the extent an importer can apply for a refund to ensure that final 
duty assessment is based on accurate normal values, the applied anti -dumping duties are 
consistent with Article 9.3. Under Canada' s approach, there would be no limitation as to how the 
prospective normal values must be determined. This would lead to the absurd situation where 
Members having a prospective system could use whichever prospective normal value they wish as 
long as they ha ve a refund system. We consider  that "the margin of dumping as established under 
Article 2" referred to in the chapeau of Article 9.3 relates to the margin of dumping which has been 
established during the original investigation. In a prospective normal val ue system, the normal 
value calculated for the purposes of determining the dumping margin during the original 
investigation constitutes the relevant benchmark for the determination of the anti -dumping duty. 
By using a prospective normal value for new model s based on the "all others rate" instead of a 
prospective value based on the individual rate determined for the relevant exporters, Canada 
violated the chapeau of Article 9.3.  
14. As to our claim under Article 6.8, Canada erroneously argues that without b eing able to 
apply facts available, anti -dumping duties could never be levied on new models. Our cooperating 
exporters provided relevant information and data for all the models they exported during the 
investigation period and Canada could have therefore u sed such information to determine relevant 
prospective normal values for new models.  
15. We do  not take issue with the Canadian system of prospective normal values but with the 
way Canada has determined the anti -dumping duty applicable to new product type s of our 
cooperating exporters. As a result, all exporters, including those with de minimis  or even zero 
dumping margins are subject to the residual duty of 54.2% if they decide to export new product 
types. In practice, this leads to a chilling effect wher eby the exporters are effectively prevented 
from exporting any new product types. This can never be remedied by the availability of a refund 
mechanism.  
7  CLAIMS OF "AS SUCH" VIOLATION REGARDING CERTAIN PROVISIONS O F SIMA 
AND SIMR  
16. Canada did not develo p any arguments in order to rebut our claims that certain provisions of 
SIMA and SIMR are as such inconsistent with the Anti -Dumping Agreement and the GATT 1994 
and essentially repeats the arguments used with regard to our challenge of the anti -dumping 
measures at issue. Concerning Article 5.8 of the Anti -Dumping Agreement, Canada argues that 
Subsection 43(1) of SIMA grants the Canadian International Trade Tribunal discretion to terminate 
an investigation regarding the dumped imports from an exporter with a  de minimis  margin of 
dumping by excluding that exporter from its injury finding. We disagree  as the text of 
Subsection  43(1) of SIMA does not indicate that the Tribunal enjoys discretion to terminate 
investigation with regard to exporters with a de minimi s margin of dumping. Moreover, Article 5.8 
provides for a positive obligation to immediately terminate an investigation with respect to 
exporters with de minimis  margins of dumping and does not allow for any type of discretion. 
Canada did not provide any p roof that the Tribunal has exercised its alleged discretion at least 
once in the past, let alone in the present case. Since Canada failed to rebut any of our claims, it is 
clear that it has also acted inconsistently with Article 1 of the Anti -Dumping Agree ment and 
Article  VI of the GATT 1994. It  also follows that since Canada failed to ensure the conformity of its 
laws with the provisions of the GATT 1994 and of the Anti -Dumping Agreement, it has acted 
inconsistently with Article XVI:4 of the Marrakesh Agre ement and Article 18.4 of the 
Anti-Dumping  Agreement.  WT/DS482/ R/Add.1  
 
- B-19 - 
 
  Closing statement of the Separate Customs Territory  
of Taiwan, Penghu, Kinmen and Matsu  
17. Our position is that exporters with a zero or de minimis  margin of dumping are not 
considered as "dumping" und er the Anti -Dumping Agreement as confirmed by previous panels as 
well as the Appellate Body. It is imports with a dumping margin of 2% or more that are "dumped 
imports" and only such imports can cause injury to domestic industry. Furthermore, if the 
invest igating authorities have determined that subsidies cause injury at the same time as dumped 
imports, they must review that known factor to ensure that particular injury would not be 
wrongfully attributed to dumped imports. The same applies to the pre -existi ng overcapacity in the 
concerned industry. With regard to the determination of t he "all others rate", we submit  that the 
investigating authorities are required to look into the information available on the record and to 
use the most appropriate one. The in vestigating authorities cannot resort to the worst information 
available. We further maintain that individual margins of dumping determined for cooperating 
exporters must be applied also to new models. Finally, we respectfully ask the Panel to look into 
the relevant Canadian laws and regulations and to decide whether they are written in such a 
manner that is as such inconsistent with several provisions of WTO law.  
 
 
 WT/DS482/ R/Add.1  
 
- B-20 - 
 
  ANNEX B -4 
INTEGRATED EXECUTIVE  SUMMARY OF THE STATE MENTS OF THE SEPARAT E 
CUSTOMS TERRITORY  OF TAIWAN, PENGHU, K INMEN AND MATSU AT  
THE SECOND MEETING O F THE PANEL  
Opening Statement of TPKM  
1 INTRODUCTION  
1. This oral statement focuses on addressing some of Canada 's newly developed arguments 
and providing clarifications regarding issues that are particularly relevant to our case. Canada 's 
selective reading of the Anti -Dumping Agreement is not only legally erroneous, it also ignores the 
realities of the investigation process and leads to absurd and unreasonable consequences. In each 
section, we wil l ask the Panel to examine the practical consequences of Canada 's interpretation 
and show that its outcomes are manifestly unreasonable.  
2 TREATMENT OF EXPORTE RS WITH A DE MINIMIS MARGIN OF DUMPING  
2. Canada repeats all of its previous arguments contending  that the margin of dumping for the 
Article 5.8  de minimis  test ought to  be determined on a country -wide basis and not an individual 
basis.  In doing so, Canada fails to provide any "cogent reasons " to depart from the 
Appellate  Body's ruling in Mexico – Anti-Dumping Measures on Rice . The ordinary meaning of the 
relevant terms of Article 5.8 as well as the broader context of Article 5 and the 
Anti-Dumping  Agreement confirm that the investigation must be terminated with respect to 
individual exporters. Further more, Canada erroneously argues that our interpretation of Article 5.8 
would result in an inconsistent treatment of new exporters under Article 9.5. In making this 
argument, Canada assumes incorrectly that Article 9.5 does not allow for the application of the 
de minimis standard under Article 5.8, when in fact, Article 9.5 is silent on this issue. In any event, 
Article 9.5 deals with a different stage of anti -dumping proceedings which is not at issue in the 
present dispute. Contrary to what Canada argues, o ur interpretation of Article 5.8 would also not 
render Article 9.4 inutile. Article 9.4 is not limited to a distinct phase in the anti -dumping 
proceedings and refers to the determination of the duty rate and not the imposition of 
anti-dumping duties. Thus,  there is no conflict between the requirement to terminate the 
investigation for individual exporters with de minimis margins of dumping under Article 5.8 and 
the obligation to disregard such margins in the calculations carried out under Article 9.4. Final ly, 
Canada 's position under Article 5.8, if held to be WTO -consistent, would result in a fundamentally 
unfair outcome that companies that have always traded at fair market price are still made subject 
to anti -dumping measures.  
3. With respect to the claim under Article 6.10 , Canada  ignores the established case law  that 
requires a single  margin of dumping determined for the individual exporter  for the purpose s of the 
de minimis  test. Thus, the fact that Canada calculated individual margins of dumping is irre levant, 
if it used another margin, namely the country -based margin of dumping , for the determination and 
imposition of anti -dumping duties.  
4. Canada  submits two new  arguments with respect to our claim under Article 7.1(ii) . 
First, it argues that Article 7 .1(ii), when read together with the chapeau of Article 7.1, 
Article  7.1(i) and Article 5, must refer to a determination of alleged dumping for the investigation 
as a whole. This argument is taken out of context as Article 7.1 relates to the initiation of t he 
investigation while Article 7 .1(ii) deals with the preliminary determination of dumping and injury. 
Furthermore, the term "determination of dumping " is inherently exporter -specific. Therefore, in 
order to apply provisional measures, the investigating au thority needs to reach a preliminary 
affirmative determination of dumping with regard to each individual exporter.  
5. Canada 's second argument that an investigating authority satisfies Article 7.1(ii) by merely 
making a preliminary affirmative determinatio n that the export price is less than the normal value 
is equally erroneous. As confirmed by case law, imports of exporters with a de minimis margin of WT/DS482/ R/Add.1  
 
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  dumping should not be treated as "dumped " because "no legally cognizable dumping " can be 
found with regar d to such exporters. In this regard, the terms "dumping " and "dumping margin " 
when read in the context of the provision governing the imposition of anti -dumping duties 
necessarily refer to dumping which exceeds the statutory de minimis  threshold of Article  5.8. We 
also note that Article 7.1 is designed to strike a balance between the need to safeguard free trade 
and the application of provisional measures "to prevent injury being caused during the 
investigation ". The  conditions to impose provisional measure s are also stricter than those for 
imposing definitive measures. Accordingly, if no definitive measures can be imposed on imports 
from exporters with a de minimis margin of dumping, a fortiori no anti -dumping duties may be 
applied at the provisional stage on imports of such exporters.  
6. Similarly, for claims under Articles 7.5 and 9.2 , Canada continues to base its interpretation 
of the phrase "from all sources found to be dumped " in Article 9.2, on the definition of dumping 
under Article 2.1. This argument  must be rejected, since Article 9.2 deals with the imposition of 
anti-dumping duties and Article 5.8 provides that the investigation needs to be immediately 
terminated in case of  imports with a de minimis  margin of dumping and thus no anti -dumping 
duties can be imposed on such imports. Finally, Canada 's argument pertaining to "appropriate 
amounts " is irrelevant  to this claim.  
3 TREATMENT OF NON -DUMPED IMPORTS IN TH E INJURY AND CAUSATI ON ANALYSES  
7. Similar to the argument made in relation to Article 7.1(ii ) and Article 9.2, Canada once again 
relies on the definition of dumping under Article 2.1 to argue that imports dumped at a margin 
below de minimis  are still "dumped imports " in the context of  Articles 3.1, 3.2, 3.4, 3.5 and 3.7 . 
As we have explained, imp orts from exporters with a de minimis  margin of dumping do not 
constitute "dumped imports " as in those cases there is "no legally cognizable dumping ". In other 
words, de minimis  margins of dumping are too "insignificant " to warrant any ac tion. It follows t hat 
both imports with de minimis and zero margins of dumping should be excluded from the injury and 
causation analysis.  
4 TREATMENT OF FACTORS  OTHER THAN DUMPED IM PORTS IN THE CAUSATI ON 
ANALYSIS  
8. Canada 's repeated arguments that it was not required to co nsider  the effects of the 
subsidies and overcapacity as factors other than the dumped imports in the non -attribution 
analysis should be rejected. With regard to overcapacity , Canada insists that the "low capacity 
utilization " is not a factor or cause of in jury but merely an injury indicator. However, "low capacity 
utilization rates " and "overcapacity " are two distinct concepts, and  overcapacity can be the cause 
of injury but is not in itself an injury indicator. In the present case, Canada failed to examine  the 
overcapacity present at the beginning of the investigation period and thus acted inconsistently with 
Articles 3.1 and 3.5 of the Anti -Dumping Agreement. The fact that the CITT made a determination 
only about a threat of injury and not actual injury do es not waive the obligation under Article 3.5.  
9. Regarding the "effects of subsidies ", Canada distorts the Appellate Body 's findings in 
Japan – DRAMS (Korea)  to argue that the Anti -Dumping Agreement does not require that the 
effects of subsidies be separa ted and distinguished from the effects of dumping. The Appellate 
Body merely stated that the SCM Agreement does not require the examination of the subsidies as 
distinguished from the effects of the subsidised imports . In failing to properly assess and 
distinguish the effects of subsidies from the effects of dumping, Canada acted inconsistently with  
Articles 3.1 and 3.5 of the Anti -Dumping Agreement . 
5 THE DETERMINATION OF  THE DUMPING MARGIN A ND DUTY RATE FOR "AL L OTHER 
EXPORTERS"  
10. With regard to the cla im under Article 6.8 and Annex II, paragraph 7, Canada 's repeated 
assertions are directly contradicted by the facts of the record. First, Canada 's argument that the 
methodology employed by the CBSA was not "mechanistic " because the SIMA Handbook indicates 
that the CBSA, as a general practice, considers whether it is necessary to disregard anomalous or 
aberrant transactions when selecting facts for the ministerial specification is inapposite. 
Second,  Canada 's argument that the CBSA analysed all the informati on on the record is irrelevant. 
Third, Canada 's attempt to explain that the CBSA did not base its determination solely on the WT/DS482/ R/Add.1  
 
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  procedural circumstances of the investigation, and that it selected verified facts and took into 
account the totality of informati on is also unsupported by any evidence and entirely unconvincing. 
It is clear from the record that the normal value was determined by using the highest dumping 
margin according to the rule laid down in the SIMA Handbook.  
11. Canada 's further argument that the CBSA  could have used the worse information from the 
petitioners ' complaint actually asks the Panel to lower the standard required by Article 6.8 to use 
the "best information available ". The all others rate determined in the present case, was a margin 
from a country that was found to have provided subsidies to its industry and fail s to bear any 
"logical relationship " with the information concerning  our cooperating exporters, which was 
represent ative of our market as a whole.  
12. Finally, while the invest igating authority should enjoy a certain degree of discretion with 
respect to the determination of the all others rate, it cannot choose whatever fact it wishes. To be 
clear, we are not asking the Panel to reach a specific outcome or decide on the specific  information 
the CBSA should have used to make its all others rate determination. Rather, we are asking the 
Panel to conclude that Canada violated Article 6.8 and Annex II since the methodology followed by 
the CBSA to determine the duty rate for our all ot her exporters does not comply with the 
requirements laid down in those provisions.  
6 TREATMENT OF NEW PRO DUCT TYPES TO BE EXP ORTED BY COOPERATING  EXPORTERS  
13. What is at issue with regard to our claim under Article 9.3 is not whether Canada has 
refunded o ur exporters, but the fact that the anti -dumping duties applied on imports of new 
product types for cooperating exporters are based on the residual duty rate. Under Canada 's 
approach, there would be no limitation as to how the prospective normal values mus t be 
determined. Canada 's interpretation of Article 9.3  would lead to the absurd results where Members 
having a prospective system could use whichever prospective normal value they wish as long as 
they have a refund system.  In our view, Article 9.3 mandate s that the dumping margin from the 
original investigation constitutes the relevant benchmark when applying the prospective normal 
value for the anti -dumping duty.  
14. As to our claim under Article 6.8, our position remains that Canada could not resort to "facts 
available " as the conditions laid down in Article 6.8 were not fulfilled. Canada erroneously asserts 
that its prospective application of facts available to new product models is necessary as otherwise 
it would lack information essential to the assess ment of duties on such products. In that regard, it 
is essential to underline that dumping and margin of dumping are determined in relation to the 
product as a whole and not on a model per model basis. In the present case, Canada did possess 
the "necessary  information " as our  cooperating exporters provided all relevant information for the 
purposes of determining the company specific dumping margin for the product as a whole.  
7 CLAIMS OF "AS SUCH" VIOLATION REGARDING CERTAIN PROVISIONS O F SIMA AND 
SIMR   
15. Canada has failed to respond to our as such  claims, and even its Article 5.8 arguments are 
repetitive at best. Contrary to Canada 's contention, we have made a prima facie  case that the 
challenged Sections of SIMA are,  as such , WTO -inconsistent since they only require terminating an 
investigation if the country -wide margin of dumping is de minimis . Neither the text nor any 
evidence provided by Canada supports its assertion that Subsection 43(1) of SIMA grants the CITT 
discretion to terminate an investigatio n with regard to exporters with a de minimis  margin of 
dumping. Article 5.8 bestows a positive obligation to terminate investigations with respect to 
exporters with de minimis  margins of dumping. To the extent that SIMA grants any discretion for 
the CITT t o act otherwise, it would lead to a violation of Article 5.8. Furthermore, any discretion 
provided by Subsection 43(1) to the CITT would, in any event, not ensure the consistency with 
Article 5.8 as it would not guarantee an "immediate termination " which s hould happen already at 
the CBSA level.  WT/DS482/ R/Add.1  
 
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  Closing statement of  TPKM  
16. With regard to the termination of investigation for exporters with de minimis  dumping 
margins, Canada has failed to provide any cogent reasons for the Panel to deviate from the 
well-established case -law. Article 5.8 also makes clear that no t all "dumping " warrants legal 
action, and thus imports with de minimis  margins of dumping need to be disregarded for the 
purpose of the injury analysis and the imposition of anti -dumping duties. Furth ermore, we have 
demonstrated that overcapacity and the effects of subsidies in India were known factors that 
should have been taken into account by the Canadian authorities. With respect to the "all others 
rate", it is clear that Canada had not engaged in a comparative and evaluative assessment  of the 
relevant facts, and the highest dumping margin applied from another country did not  bear any 
"logical relationship " with the information of our exporters . Canada 's use of the residual duty rate 
for the new pro duct types of cooperating exporters is all the more inconsistent with the 
Anti-Dumping Agreement, as that rate was significantly higher than the margin of dumping 
calculated for each cooperating exporter in the original investigation. Finally, Canada has f ailed to 
rebut our prima facie  case of as such  violations.  
 
_______________  
 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF CANADA  
Contents  Page  
Annex C -1 Executive summary of the first written submission of Canada  C-2 
Annex C -2 Executive summary of the second written submissi on of Canada  C-10 
Annex C -3 Executive summary  of the statement of Canada at the first meeting of the 
Panel  C-18 
Annex C -4 Executive summary of the statement of Canada at the second meeting of the 
Panel  C-23 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  THE FIRST WRI TTEN SUBMISSION OF CANADA  
I. INTRODUCTION  
1. This dispute concerns anti -dumping measures imposed by Canada on imports of certain 
Carbon Steel Welded Pipe (CSWP) from the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu (Chinese Taipei). Chine se Taipei claims that the investigation that led to the 
imposition of the anti -dumping measures, the measures themselves, and certain provisions of the 
Special Import Measures Act  (SIMA) and the Special Import Measures Regulations  (SIMR) are 
inconsistent w ith the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  (Anti-Dumping Agreement) and the General Agreement on Tariffs and 
Trade 1994  (GATT 1994).  
2. Canada demonstrates that the investigation and the application  of anti -dumping measures 
on CSWP from Chinese Taipei, as well as the relevant provisions of SIMA and the SIMR, are not 
inconsistent with the Anti -Dumping Agreement.  
II. CLAIMS CONCERNING THE PROVISIONAL AND DEFINITIVE ANTI -DUMPING 
MEASURES IMPOSED BY CANA DA ON IMPORTS OF CERTAIN CARBON STEEL 
WELDED PIPE ORIGINATING IN, AMONG OTHERS, CHINESE TAIPEI  
A. The CBSA's Treatment of Chinese Taipei Exporters with de Minimis  Margins of 
Dumping Did Not Violate Articles 1, 5.8, 6.10, 7.1(ii), 7.5, and 9.2 of the 
Anti-Dumping Agreement an d Article VI:2 of the GATT 1994  
1. The CBSA's Treatment of Chinese Taipei Exporters with de Minimis  
Margins of Dumping Did Not Violate Article 5.8 of the Anti -Dumping 
Agreement  
3. Chinese Taipei claims that Canada violated Article 5.8 of  the Anti -Dumping Agreement by 
failing to immediately terminate the CSWP investigation with respect to Chinese Taipei exporters 
whose margins of dumping were de minimis .  
4. Canada demonstrates that the ordinary meaning of the terms "termination", "investi gation", 
and "margin of dumping", which are essential to the interpretation of Article 5.8, is consistent with 
the termination of an investigation being required on a country basis. Canada also shows that the 
context within which these terms are found clea rly establishes that the termination of an 
investigation with respect to a country is what is required by the second sentence of Article 5.8 
when the country based margin of dumping is de minimis . As a result, interpreting Article 5.8 to 
require the termin ation of an investigation with respect to an individual exporter is inconsistent 
with the very terms of Article 5.8 when considered in their context.  
5. Chinese Taipei relies on the panel and Appellate Body decisions in Mexico – Anti-Dumping 
Measures on Ri ce to support its position that Article 5.8 of the Anti -Dumping Agreement requires 
that an investigation be terminated with respect to an individual exporter with a de minimis  
margin of dumping. These decisions are undermined by four significant flaws.  
6. First, the panel and the Appellate Body relied too heavily on the references to individual 
margins of dumping in the Anti -Dumping Agreement when interpreting the reference to the margin 
of dumping contained in Article 5.8. Second, the panel and the Appell ate Body failed to properly 
consider the scope of the investigation described in Article 5 and the context in which the 
termination of an investigation is required under Article 5.8. Third, the panel and the Appellate 
Body ignored that requiring exporter -specific termination contradicts Article 9.4 of the 
Anti-Dumping Agreement. Finally, the panel and the Appellate Body's flawed analysis led them to 
improperly read words into Article 5.8. Reading in the words " in respect of the individual exporter WT/DS482/ R/Add.1  
 
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  or produc er for which a zero or de minimis  margin is established " means that an exporter with a 
de minimis  margin of dumping is excluded from an investigation that nonetheless continues.  
7. Had the panel and the Appellate Body conducted a proper analysis of Articl e 5.8, giving its 
terms their ordinary meaning within their context, they could only have come to the conclusion 
that an investigation is terminated as a whole, and, consequently, that the reference to the 
de minimis  margin of dumping in that provision per tains to a country.  
2. The CBSA's Determination of an Individual Margin of Dumping for 
Each  Chinese Taipei Exporter Did Not Violate Article 6.10 of the 
Anti-Dumping Agreement  
8. Chinese Taipei claims that Canada violated Article 6.10 of the Anti -Dumping Ag reement 
because the CBSA failed to determine only one individual margin of dumping for each exporter by 
calculating a country -based margin of dumping and using that margin for the purpose of 
conducting the de minimis  test required by Article 5.8.  
9. Article 6.10 requires that "[t]he authorities shall, as a rule, determine an individual margin 
of dumping for each known exporter or producer concerned of the product under investigation". 
In this investigation, the CBSA determined an individual margin of dumpin g for each cooperating 
Chinese Taipei exporter as evidenced in the CBSA's Final Dumping Determination filed by Chinese 
Taipei. The additional determination by the CBSA of a country -based margin of dumping is simply 
irrelevant under Article 6.10. The CBSA t herefore did not violate Article 6.10.  
3. The CBSA's Application of Provisional Measures on Dumped Imports 
from a Chinese Taipei Exporter with a de Minimis  Margin of Dumping 
Did Not Violate Article 7.1(ii) of the Anti -Dumping Agreement  
10. Chinese Taipei c laims that Canada violated Article 7.1(ii) of the Anti -Dumping Agreement 
because the CBSA applied provisional measures on CSWP imports from one Chinese Taipei 
exporter with a de minimis  margin of dumping in the absence of a preliminary affirmative 
determin ation of dumping.  
11. Chinese Taipei's claim must fail because the CBSA satisfied the requirements of 
Article  7.1(ii) when applying provisional measures on a Chinese Taipei exporter found to have a 
de minimis  margin of dumping in the CBSA's preliminary det ermination of dumping. Furthermore, 
the Appellate Body has confirmed that the termination of an investigation with respect to an 
individual exporter with a de minimis  margin of dumping does not need to occur before the 
issuance of the order establishing th e definitive anti -dumping duties. Therefore, regardless of the 
proper interpretation to be given to Article 5.8, the CBSA cannot be found to have violated 
Article  7.1(ii) when it applied provisional measures on one Chinese Taipei exporter with a 
de minimis  margin of dumping.  
4. The CBSA's Application of Provisional Measures and Imposition of 
Definitive Anti -Dumping Duties on Dumped Imports from Chinese Taipei 
Exporters Did Not Violate Articles 7.5 and 9.2 of the 
Anti-Dumping  Agreement  
12. Chinese Taipei cla ims that Canada violated Articles 7.5 and 9.2 of the 
Anti-Dumping  Agreement because, in applying provisional measur es and imposing definitive 
anti-dumping duties on CSWP imports from Chinese Taipei exporters with de minimis  margins of 
dumping, the CBSA cau sed duties to be collected from sources found not to be dumped and 
causing injury.  
13. Canada demonstrates that, having complied with the three conditions set out in Article 7.1, 
the CBSA rightfully applied provisional measures on imports from a Chinese T aipei exporter with a 
de minimis  margin of dumping. Even accepting Chinese Taipei's interpretation of Article 5.8, the 
CBSA could still apply provisional measures on imports from that Chinese Taipei exporter until the 
time when definitive anti -dumping duti es were imposed. Given that Chinese Taipei's country -based 
margin of dumping was not de minimis , Canada, in compliance with Article 9.2, rightfully imposed 
definitive anti -dumping duties on all dumped imports from Chinese Taipei exporters.  WT/DS482/ R/Add.1  
 
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  14. For the afor ementioned reasons, the CBSA's application of provisional measures and 
imposition of definitive anti -dumping duties to offset dumping did not violate Articles 7.1(ii), 7.5, 
and 9.2. Consequently, Canada did not violate Article VI:2 of the GATT 1994 and Art icle 1 of the 
Anti-Dumping Agreement.  
B. The CITT's Treatment of Dumped Imports in its Injury Analysis Did Not 
Violate Articles 3.1, 3.2, 3.4, 3.5, and 3.7 of the Anti -Dumping Agreement  
15. Chinese Taipei claims that Canada violated Articles 3.1, 3.2, 3.4,  3.5, and 3.7 of the 
Anti-Dumping Agreement because the CITT treated imports from exporters with de minimis  
margins of dumping as dumped imports for the purposes of its injury analysis. Canada 
demonstrates that none of these provisions confines the meaning  of "dumping" to dumping at a 
rate equal to or in excess of the de minimis  threshold and, therefore, that the CITT's treatment of 
dumped imports, including those from exporters with de minimis  margins of dumping, did not 
violate the Anti -Dumping Agreement.  
16. There is no distinction to be drawn between imports that are dumped at a margin above 
de minimis  and those dumped at a margin below de minimis  – both are "dumped". It is only 
imports with a zero margin that should be considered as not dumped.  
17. Canada demonstrates that the CITT's approach in the CSWP injury inquiry is consistent with 
the Appellate Body's analysis in US – Carbon Steel . In that case, which was decided under the 
Agreement on Subsidies and Countervailing Measures  (SCM Agreement), the Ap pellate Body noted 
that the definition of injury in footnote 45 to the SCM Agreement makes no reference to the 
amount of subsidy involved. Article 3 of the Anti -Dumping Agreement contains a footnote with an 
identical definition of injury. Therefore, the An ti-Dumping Agreement similarly does not confine the 
meaning of "dumping" to dumping at a rate equal to or in excess of the de minimis  threshold.  
18. Canada also demonstrates that the decisions referred to by Chinese Taipei in its first written 
submission, to support its position that imports from exporters with de minimis  margins of 
dumping should not have been included by the CITT in its injury analysis, concerned companies for 
which the margin of dumping or definitive anti -dumping duty was zero. In each c ase, the panel 
concluded that the imports at issue were "non -dumped" and therefore should not have been 
included in the injury analysis. To the extent that these panels referred to de minimis  margins, 
these references should properly be considered as obiter dicta .  
19. Furthermore, no analysis was conducted in any of the decisions as to why imports with 
de minimis  margins should be excluded. Whereas it is logical to exclude imports that are not 
dumped, nothing in the text of the Anti -Dumping Agreement suppo rts an exclusion of imports that 
are dumped, irrespective of their margin of dumping.  
20. Chinese Taipei has failed to establish that Canada violated Articles 3.1, 3.2, 3.4, 3.5, 
and 3.7 of the Anti -Dumping Agreement when the CITT included "dumped imports" , including 
those from exporters with de minimis  margins of dumping, in its injury analysis.  
C. The CITT's Non -Attribution Analysis Did Not Violate Articles 3.1 and 3.5 of 
the Anti -Dumping Agreement  
1. The CITT Was Not Obligated to Examine and to Separate and 
Distinguish the Effects of Subsidies  
21. Chinese Taipei argues that by failing to separate and distinguish the effects caused by the 
subsidies from the effects caused by the dumping Canada acted inconsistently with Articles 3.1 
and 3.5 of the Anti -Dump ing Agreement.  
22. Canada demonstrates that, pursuant to the Appellate Body decision in Japan – DRAMs 
(Korea) , the CITT acted consistently with Article 3.5 of the Anti -Dumping Agreement in the CSWP 
inquiry by determining whether the dumped imports caused or threatened to cause injury to the 
domestic industry. The Anti -Dumping Agreement does not require an additional analysis as to 
whether the dumping, as opposed to the dumped imports, caused or threatened to cause injury. 
Given that there was no requiremen t to assess the effects of the dumping per se , there cannot be WT/DS482/ R/Add.1  
 
- C-5 - 
 
  a requirement to separate and distinguish the effects of the subsidization from the effects of the 
dumping.  
23. Second, contrary to Chinese Taipei's argument, the Appellate Body decision in US – Carbon 
Steel (India)  is not relevant to this case. In that decision, the Appellate Body held that the 
SCM Agreement only allows the cumulation of subsidized imports; it does not allow the cumulation 
of dumped but non -subsidized imports. In the CSWP inves tigation, there were no imports that 
were subsidized but not dumped. The CITT, consistent with Artic le 3.3 of the 
Anti-Dumping  Agreement, cumulated the effects of imports from India with those from 
Chinese  Taipei and four other subject countries because th e imports from all of these countries 
were dumped. The fact that the imports from India were also subsidized was irrelevant to the 
CITT's decision to cumulate the effects of all dumped imports.  
2. The CITT Was Not Obligated to Examine and to Separate and 
Distinguish the Effects of Overcapacity  
24. Canada submits that low capacity utilization rates (which Chinese Taipei refers to as 
overcapacity) are not a cause of injury and therefore do not result in effects that must be 
separated and distinguished from th e effects of the dumped imports. Low capacity utilization rates 
are merely an indicator  of injury and were treated as such by the CITT in its injury analysis.  
25. As an indicator and not a cause of injury, there was no need for the CITT to separate and 
distinguish the effects of the low utilization rates from the effects of the dumped imports on the 
domestic industry pursuant to Articles 3.1 and 3.5 of the Anti -Dumping Agreement.  
D. The CBSA's Use of Facts Available to Determine the Dumping Margin and 
Duty Rate for "All  Other Exporters" Did Not Violate Article 6.8 and Annex II 
of the Anti -Dumping Agreement  
26. Chinese Taipei claims that the ministerial specification used by the CBSA to determine the 
margin of dumping and the anti -dumping duty rate for "all o ther exporters" violated Article 6.8 and 
paragraph 7 of Annex II of the Anti -Dumping Agreement. Its arguments under these provisions, 
however, mischaracterize relevant facts and applicable law.  
27. First, Chinese Taipei argues that the CBSA's use of facts available effectively punished 
non-cooperating exporters. While Canada agrees that an investigating authority is prohibited from 
using facts available to punish non -cooperating parties, Chinese Taipei fails to recognize that an 
investigating authority is p ermitted to draw inferences, including adverse inferences, based on the 
procedural circumstances of the investigation. Contrary to Chinese Taipei's argument, the case law 
recognizes that where an interested party withholds necessary information, an unbiase d and 
objective investigating authority may take this procedural circumstance into account and use facts 
on the record in a manner which, as contemplated in paragraph 7 of Annex II of the 
Anti-Dumping  Agreement, may be less favourable, i.e. adverse, to tha t party than if it had 
cooperated. In this context, and contrary to Chinese Taipei's argument, the CBSA's ministerial 
specification cannot be considered punitive.  
28. Second, Chinese Taipei argues the CBSA's use of facts available was not based on a 
compar ative evaluation that took into account all of the information on the record. This allegation 
is factually incorrect. In particular, Chinese Taipei fails to recognize that the record of the CSWP 
investigation establishes either explicitly, or by necessary implication, that the CBSA engaged in a 
systematic evaluation of all of the facts on the record pursuant to which it determined the 
appropriate basis for establishing the normal values for non -cooperating exporters. Indeed, the 
CBSA's conduct in the CSWP i nvestigation can be distinguished from instances where an 
investigating authority was found to have contravened Article 6.8 and Annex II by simply using 
facts that were included in petitioner applications without further scrutiny, by corroborating the 
appropriateness of the selected facts in an arbitrary manner, or by making determinations that are 
devoid of any factual foundation.  
29. Third, Chinese Taipei argues that the CBSA's use of facts available was contrary to the "best 
information available" requir ement on the basis that there was no "logical relationship" between 
the rates established for "all other" Chinese Taipei exporters and the facts on the record WT/DS482/ R/Add.1  
 
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  concerning Chinese Taipei exports. While Canada agrees that the information selected in the 
application of facts available must have a "logical relationship" to the missing information from 
the record, Chinese Taipei fails to establish that the CBSA did not meet this requirement. Indeed, 
the methodology described above ensured that the CBSA used facts  that reasonably replaced the 
information missing from the record. It also ensured that the procedural circumstances of 
the investigation were taken into account, as well as the need to encourage cooperation and 
prevent anti -dumping duty circumvention.  
30. Moreover, to the extent Chinese Taipei argues that the CBSA should have relied on the 
information provided by the cooperating Chinese Taipei exporters, Canada submits such an 
argument lacks support in the Anti -Dumping Agreement as it ignores the procedura l character of 
the obligations under Annex II, paragraph 7. Those obligations do not guarantee a specific 
outcome to non -cooperating interested parties.  
31. For these reasons, Canada submits that Chinese Taipei's claims with respect to the 
treatment of "al l other exporters" must fail.  
E. The CBSA's Prospective Treatment of New Product Models Would Not Violate 
Articles 9.3 and 6.8, Annex II, and Articles 2.2 and 6.10 of the 
Anti-Dumping  Agreement  
32. Chinese Taipei also claims that the CBSA's prospective app lication of the ministerial 
specification to new product types ("new product models") exported by cooperating 
exporters  would violate Articles 9.3 and 6.8, Annex II, and Articles 2.2 and 6.10 of the 
Anti-Dumping  Agreement. These claims, however, are premis ed on a fundamental 
misunderstanding of Canada's prospective duty assessment system, rely on misinterpretations of 
the relevant legal obligations, and ignore the practical need to apply facts available to product 
models that have not been investigated.  
1. The CBSA's Prospective Use of Facts Available in the Calculation of 
Anti-Dumping Duties for New Product Models Would Not Violate 
Article  9.3 of the Anti -Dumping Agreement  
33. Chinese Taipei claims that the CBSA violated Article 9.3 of the Anti -Dumping Agre ement 
because it imposed anti -dumping duties on new models of subject goods from cooperating 
exporters in excess of their margin of dumping.  
34. Chinese Taipei's claim that the CBSA violated Article 9.3 is flawed, as it is premised on 
speculation. Article 9.3.2 conditions the availability of a refund on (i) an importer of subject goods 
paying anti -dumping duties; and (ii) that importer requesting a refund for overpayment with 
respect to those duties. Chinese Taipei has provided no evidence that any exporter  from Chinese 
Taipei has shipped a new model of subject goods to Canada that has been subject to the "all other 
exporters" rate determined by ministerial specification. Therefore, no Chinese Taipei exports of 
new models have been subject to an initial duty  assessment, let alone an assessment that has 
been subject to a refund request, as contemplated under Article 9.3.2. In this sense, not only is 
Chinese Taipei's claim premature, it does not even amount to a prima facie  case of a violation.  
35. Chinese Taip ei also incorrectly claims that the ceiling for anti -dumping duties under 
Article  9.3 is limited to the "margin of dumping" established in the original investigation. Chinese 
Taipei's theory is directly contradicted by the relevant jurisprudence on the lia bility for payment 
and collection of anti -dumping duties in prospective normal value systems, which indicates that 
the margin of dumping during duty assessment is not limited by the margin of dumping 
established for a particular exporter during the origina l investigation.  
36. Moreover, Chinese Taipei's claim that the application of the ministerial specification to new 
models will necessarily result in duties that exceed the margin of dumping for cooperating 
exporters ignores that under a prospective duty sy stem the initial collection of anti -dumping duties 
is not the final stage of duty assessment. Under Canada's prospective duty system, anti -dumping 
duties are assessed and collected on the basis of a comparison between normal values determined 
during an inv estigation or re -investigation and export prices determined during the enforcement WT/DS482/ R/Add.1  
 
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  period. When an importer believes that anti -dumping duties were improperly collected it can apply 
for a refund to ensure that final duty assessment is based on accurate norm al values.  
2. The CBSA's Prospective Use of Facts Available with Respect to New 
Product Models Would Not Violate Article 6.8 and Annex II of the 
Anti-Dumping Agreement  
37. Chinese Taipei also claims that the CBSA violated Article 6.8 and Annex II of the 
Anti-Dumping Agreement by resorting to facts available to determine normal values for new 
models of subject goods shipped by cooperating exporters. However, Chinese Taipei's claim is 
internally inconsistent and illogical.  
38. Chinese Taipei initially argues that the CBSA lacked the legal authority to rely on facts 
available with respect to new models of subject goods. However, it then criticizes the CBSA for its 
selection of certain available facts. In so doing, Chinese Taipei implicitly concedes that resorti ng to 
facts available was appropriate under these circumstances.  
39. This makes sense, as not being able to do so would prevent an investigating authority from 
establishing normal values for new models of subject goods that could not have been investigated  
during the initial investigation. Without an ability to apply facts available, anti -dumping duties 
could never be levied on new models, thereby creating a significant gap in the anti -dumping 
disciplines.  
40. Finally, when claiming that the CBSA's applicat ion of the ministerial specification 
contravenes paragraph 7 of Annex II, Chinese Taipei fails to recognize the variety of review 
procedures under Canada's trade remedies regime that fairly accommodate exporters and 
importers of new product models of subje ct goods.  
3. The CBSA's Prospective Use of Facts Available in the Calculation of 
Normal Values for New Product Models Would Not Violate Article 2.2 of 
the Anti -Dumping Agreement  
41. Chinese Taipei claims that the CBSA's application of the ministerial spec ification to establish 
normal values for new models of subject goods contravenes Article  2.2 of the 
Anti-Dumping  Agreement.  
42. Chinese Taipei fails to recognize that the obligations under Article 2.2 presuppose that an 
investigating authority has the info rmation necessary to calculate normal values. "New" product 
models are those shipped after an initial investigation. As a result, an investigating authority is not 
in a position to determine model -specific normal values for those products when they are imp orted 
as they have yet to be investigated. Chinese Taipei ignores this, and does not explain how the 
CBSA could properly apply one of the Article 2.2 methodologies to new models of subject goods 
exported to Canada after the original CSWP investigation.  
43. In the absence of the required information, Article 6.8 of the Anti -Dumping Agreement 
permits the CBSA to use facts available from the original investigation to determine a normal value 
for new product models. The use of facts available would cease, and i ndividual normal values 
would be calculated in accordance with one of the methodologies set out under Article 2.2, when 
cooperating exporters or importers of new models of subject imports seek a re -investigation or a 
re-determination.  
4. The CBSA's Prospec tive Use of Facts Available in the Calculation 
of Normal Values for New Product Models Would Not Violate Article 6.10 
of the Anti -Dumping Agreement  
44. Chinese Taipei also claims that the CBSA determined "two different dumping margins" for 
the same coopera ting exporter, one during the original investigation and another, for new product 
models, during the duty enforcement phase. Chinese Taipei claims that in so doing the CBSA 
violated the general rule under Article 6.10 that an investigating authority shall determine "an 
individual margin of dumping for each known exporter or producer concerned of the product under 
investigation".  WT/DS482/ R/Add.1  
 
- C-8 - 
 
  45. Chinese Taipei's claim is flawed, as it is premised on an incorrect interpretation of the term 
"margin of dumping" and a funda mental misunderstanding of Canada's prospective duty 
assessment system. Chinese Taipei fails to take into account that, under the 
Anti-Dumping  Agreement, "margins of dumping" are not specific to a particular product model or 
export transaction, but instead  are determined for all export transactions from a particular 
exporter or producer, pertaining to products within the same defined scope over a designated 
period of time. Hence, a "margin of dumping", by definition, cannot be based on transactions 
pertaini ng only to specific product models.  
46. By failing to acknowledge that the general rule under Article 6.10 has limited relevance after 
the conclusion of an anti -dumping investigation, Chinese Taipei also appears to fundamentally 
misunderstand the basic op eration of Canada's duty assessment system. Under the Canadian 
system, the margin of dumping for a particular exporter calculated during the investigation phase 
has no relevance to duty assessment. After an investigation is complete, the CBSA compares the 
relevant normal value to an individual export transaction to determine the appropriate amount of 
the anti -dumping duty to be collected, if any. The calculation of an anti -dumping duty on this basis 
does not constitute a determination of a "margin of dumpin g". This is the case regardless of 
whether the normal value for a particular product model was established during the investigation 
or is established by ministerial specification during the enforcement phase.  
F. Chinese Taipei Has Failed to Establish That Canada Violated Article 1 of the 
Anti-Dumping Agreement and Article VI of the GATT 1994  
47. Chinese Taipei also makes the consequential claims that Canada violated Article 1 of the 
Anti-Dumping Agreement and Article VI of the GATT 1994. As established abov e, however, the 
determinations of dumping and injury by the CBSA and the CITT did not violate the 
Anti-Dumping  Agreement and the GATT 1994. As a result, Chinese Taipei's claims under Article 1 
of the Anti -Dumping Agreement and Article VI of the GATT 1994 m ust fail.  
III. CLAIMS CONCERNING CERTAIN PROVISIONS OF THE SPECIAL IMPORT MEASURES 
ACT AND OF THE SPECIAL IMPORT MEASURES REGULATIONS  
A. Subsection 2(1), Section 30.1, and Subsections 35(1), 35(2), 38(1), and 
41(1) of SIMA Are Not Inconsistent with Article s 1, 5.8, 7.1(ii), 7.5, and 9.2 
of the Anti -Dumping Agreement and Article VI:2 of the GATT 1994  
48. Chinese Taipei claims that Subsection 2(1), Section 30.1, and Subsections 35(1), 35(2), 
38(1), and 41(1) of SIMA are inconsistent, as such, with Articles 1,  5.8, 7.1(ii), 7.5, and 9.2 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994, essentially because SIMA provides for 
a de minimis  margin of dumping test to be carried out on a country basis, and not on an 
exporter -specific basis.  
49. Canada d emonstrates that SIMA is not inconsistent with Articles 5.8, 7.1(ii), 7.5, and 9.2, 
and, consequently, with Article 1 of the Anti -Dumping Agreement and Article VI:2 of the 
GATT  1994. In conformity with the Anti -Dumping Agreement, SIMA requires the terminat ion of an 
investigation with respect to a country in certain situations, including when the margin of dumping 
of that country is de minimis . Unless the investigation is terminated as a whole, dumped imports 
are subject to the application of provisional mea sures and the imposition of definitive anti -dumping 
duties if injury is found, irrespective of an individual exporter's margin of dumping. However, 
Subsection 43(1) of SIMA confers discretion to the CITT to exclude an exporter with a de minimis  
margin of d umping from an injury finding.  
B. Subsections 42(1), 42(6), and 43(1) of SIMA and Subsection 37.1(1) of the 
SIMR Are Not Inconsistent with Articles 3.1, 3.2, 3.4, 3.5, and 3.7 of the 
Anti-Dumping Agreement  
50. Chinese Taipei submits that Subsections 42(1),  42(6), and 43(1) of SIMA and 
Subsection  37.1(1) of the SIMR are, as such, inconsistent with Articles 3.1, 3.2, 3.4, 3.5, and 3.7 
of the Anti -Dumping Agreement because they result in the automatic inclusion in the category of 
dumped imports, in the context  of the injury analysis, of the imports of exporters with a 
de minimis  margin of dumping.  WT/DS482/ R/Add.1  
 
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  51. According to Subsection 2(1) of SIMA, dumped "in relation to any goods, means that the 
normal value of the goods exceeds the export price thereof". Therefore, the  term "dumped goods" 
as used in SIMA covers goods of exporters with a de minimis  margin of dumping. This is consistent 
with the definition of dumping outlined in Article 2.1 of the Anti -Dumping Agreement, which does 
not distinguish between imports that are  dumped at a margin above de minimis  and those dumped 
at a margin below de minimis  – both are "dumped".  
52. The Appellate Body in US – Carbon Steel , when dealing with the meaning of subsidization 
under the SCM Agreement, stated that "[n]one of the provisio ns in the SCM Agreement that uses 
the term 'subsidization' confines the meaning of 'subsidization' to subsidization at a rate equal to 
or in excess of 1 percent ad valorem, or to any other de minimis  threshold". Similarly, none of the 
references to dumping  in Articles 3.1, 3.2, 3.4, 3.5, and 3.7 of the Anti -Dumping Agreement 
confines the meaning of "dumping" to dumping at a rate equal to or in excess of the de minimis  
threshold. Therefore, there is nothing in these provisions that requires the exclusion of imports 
with a de minimis  margin of dumping from dumped imports when an investigating authority 
conducts an injury analysis.  
53. Thus, Chinese Taipei has failed to demonstrate that Subsections 42(1), 42(6), and 43(1) 
of SIMA and Subsection 37.1(1) of the S IMR, as well as any implementing or related measures, 
are inconsistent, as such, with Articles 3.1, 3.2, 3.4, 3.5, and 3.7 of the Anti -Dumping Agreement.  
C. Chinese Taipei Has Failed to Establish that SIMA and the SIMR Are 
Inconsistent with Article  XVI:4 o f the WTO Agreement and Article 18.4 of the 
Anti-Dumping Agreement  
54. As Canada demonstrates above, Subsection 2(1), Section 30.1, Subsections 35(1), 35(2), 
38(1), 41(1), 42(1), 42(6), and 43(1) of SIMA and Subsection 37.1(1) of the SIMR are not 
inconsist ent, as such, with the Anti -Dumping Agreement. Therefore, Chinese Taipei's claim under 
Article XVI:4 of the WTO Agreement and Article 18.4 of the Anti -Dumping Agreement must fail.  
D. Chinese Taipei Has Failed to Establish that SIMA and the SIMR Are 
Inconsi stent with Article 1 of the Anti -Dumping Agreement and Article VI of 
the GATT 1994  
55. As Canada demonstrates above, Subsections 2(1), Section 30.1, Subsections 35(1), 35(2), 
38(1), 41(1), 42(1), 42(6) and 43(1) of SIMA and Subsection 37.1(1) of the SIMR a re not 
inconsistent with the Anti -Dumping Agreement. Therefore, Chinese Taipei's claim under Article 1 of 
the Anti -Dumping Agreement and Article VI of the GATT 1994 must fail.  
IV. CONCLUSION  
56. For the foregoing reasons, Canada respectfully requests that the Panel reject 
Chinese  Taipei's claims.  
 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE SECOND WRITTEN S UBMISSION OF  CANADA  
I. INTRODUCTION  
1. In this second written submission, Canada responds to the submissions of the Separate 
Customs Territory of Taiwan, Pengh u, Kinmen and Matsu (Chinese Taipei) at the first meeting of 
the Panel and in response to the Panel's questions. These submissions failed to prove that the 
Carbon Steel Welded Pipe (CSWP) investigation, the anti -dumping measures imposed as a result of 
the investigation, and the Special Import Measures Act (SIMA) are inconsistent with Canada's 
WTO obligations.  
2. In its submissions, Chinese Taipei has put forward a number of arguments based on a 
misunderstanding of the Canadian system, a misapprehension of k ey factual elements of the CSWP 
investigation, and flawed interpretations of the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (Anti -Dumping Agreement) and the General 
Agreement on Tariffs and Trade 1994 (GATT  1994).  
3. For the reasons that follow, in addition to the reasons in Canada's prior submissions, Canada 
submits that Chinese Taipei's claims have no merit and should be rejected by this Panel.  
II. CLAIMS CONCERNING THE PROVISIONAL AND DEFINITIVE ANTI -DUMP ING 
MEASURES IMPOSED BY CANADA ON IMPORTS OF CERTAIN CARBON STEEL 
WELDED PIPE ORIGINATING IN, AMONG OTHERS, CHINESE TAIPEI  
A. The CBSA's Treatment of Chinese Taipei Exporters with de Minimis  Margins of 
Dumping Did Not Violate Articles 5.8, 6.10, 7.1(ii), 7 .5, and 9.2 of the 
Anti-Dumping Agreement and Article VI:2 of the GATT 1994  
1. The CBSA's Treatment of Chinese Taipei Exporters with de Minimis  
Margins of Dumping Did Not Violate Article 5.8 of the 
Anti-Dumping  Agreement  
4. Chinese Taipei claims that the C anada Border Services Agency (CBSA) violated Article 5.8 of 
the Anti -Dumping Agreement by failing to terminate the CSWP investigation with respect to 
Chinese Taipei exporters with de minimis  margins of dumping.  
5. The Appellate Body has recognized that a p anel can depart from prior reasoning on a legal 
question if there are "cogent reasons" to do so. In the present dispute, there are cogent reasons to 
depart from the interpretation in Mexico – Anti-Dumping Measures on Rice  that Article 5.8 requires 
terminat ion of an investigation with respect to an individual exporter.  
6. The Panel must interpret Article 5.8 in accordance with the ordinary meaning of the terms 
"termination", "investigation", and "margin of dumping", and in accordance with the context of 
those terms, which altogether establish that the requirement for termination of an investigation 
must be on a country basis. Article 5.8 establishes the requirements for termination of the 
investigation as a whole, which is set out in Article 5 as being conduc ted in relation to a product of 
a country of export, not an individual exporter. The greater context of Articles 9.4 and 3.3 
confirms that the de minimis  margin of dumping referred to in Article 5.8 is country based.  
7. Furthermore, the interpretation in Mexico – Anti-Dumping Measures on Rice  requiring 
exporter -specific termination is irreconcilable with the text of Article 9.4. Article 9.4 pertains to the 
application of Anti -Dumping duties in the separate and distinct phase of duty assessment occurring 
after the original investigation. Any assessment of duties done in accordance with Article 9.4, 
where de minimis  margins would be disregarded, must necessarily be done following the definitive 
determination of dumping, injury, and causation made under Articl es 2 and 3. If an investigation 
had been terminated with respect to exporters with de minimis  margins of dumping, there would WT/DS482/ R/Add.1  
 
- C-11 - 
 
  be no need to disregard these margins of dumping when assessing definitive Anti -Dumping duties. 
The interpretation that terminatio n for a de minimis  margin of dumping under Article 5.8 pertains 
to an individual exporter therefore renders part of Article 9.4 inutile, contrary to the principle of 
effectiveness in treaty interpretation.  
8. Finally, Chinese Taipei's interpretation would result in inconsistent treatment between an 
exporter found to be dumping at a de minimis  margin during the original investigation and a new 
exporter found to be dumping at a de minimis  margin during the duty assessment phase in a 
review under Article 9.5. The latter exporter could not be subject to termination under Article 5.8, 
as the investigation would have already been completed. Definitive anti -dumping duties could thus 
be imposed on that exporter, while definitive duties could not be imposed on an exp orter dumping 
at a de minimis  margin during the original investigation.  
9. By contrast, there are no contradictions, inconsistencies, or redundancies in the 
Anti-Dumping Agreement if termination under Article 5.8 pertains to a country with a de minimis  
margin of dumping.  
2. The CBSA's Application of Provisional Measures on Dumped Imports 
from a Chinese Taipei Exporter with a de Minimis  Margin of Dumping 
Did Not Violate Article 7.1(ii) of the Anti -Dumping Agreement  
10. Chinese Taipei claims that the CBSA sho uld not have reached a preliminary affirmative 
determination of dumping against an exporter with a de minimis  margin of dumping, and thus was 
not permitted to apply provisional measures against that exporter.  
11. This claim must fail because the CBSA satis fied all the criteria of Article 7.1 in applying 
provisional measures. Article 7.1 of the Anti -Dumping Agreement requires an investigating 
authority to make a singular  determination that relates to the investigation as a whole, per 
Article  7.1(i), that wil l be affirmative if dumping has been preliminarily found to be occurring and 
causing consequent injury, per Article 7.1(ii). The same is true with respect to the determination 
that provisional measures are necessary to prevent injury being caused during th e investigation 
under Article 7.1(iii), which is determined with respect to the domestic industry of the country, not 
with respect to individual exporters.  
12. Furthermore, there is no legal basis for Chinese Taipei's assertion that exporters with a 
de minimis margin of dumping are not considered as "dumping", neither in terms of the definition 
of dumping nor the object and purpose of the Anti -Dumping Agreement. A product is considered to 
be dumped, per Article 2.1, if it is imported into a country at an ex port price less than its 
normal  value. The definition of dumping has the same meaning in all provisions of the 
Anti-Dumping  Agreement and does not distinguish between goods being dumped at a margin 
above de minimis  or below de minimis . 
13. In the CSWP inve stigation, an investigation was initiated, preliminary affirmative 
determinations of dumping and consequent injury were made, and, given that provisional 
measures were considered necessary to prevent injury during the investigation, provisional duties 
were applied on dumped imports from Chinese Taipei exporters in an amount not greater than 
their margins of dumping. As a result, all the requirements of Article 7.1 were satisfied and the 
CBSA therefore did not violate Article 7.1(ii).  
3. The CBSA's Applicati on of Provisional Measures and Imposition of 
Definitive Anti -Dumping Duties on Dumped Imports from Chinese Taipei 
Exporters Did Not Violate Articles 7.5 and 9.2 of the 
Anti-Dumping  Agreement  
14. Chinese Taipei claims that the CBSA violated Articles 7.5 and  9.2 of the 
Anti-Dumping  Agreement because the CBSA collected duties from sources found not to be dumped 
and causing injury by applying provisional measures and imposing definitive anti -dumping duties 
on CSWP imports from Chinese Taipei exporters with de minimis  margins of dumping.  WT/DS482/ R/Add.1  
 
- C-12 - 
 
  15. Chinese Taipei's position is irreconcilable with the definition of dumping and the meaning of 
the term "appropriate amounts". The appropriate amount means the amount by which the normal 
value exceeds the export price, which i s consistent with the definition of dumping referring to a 
product introduced into the commerce of another country at less than its normal value in that 
country. There is no exception or threshold for a de minimis  margin of dumping in this definition or 
in Article 9.2. Therefore, the CBSA's application of duties in the appropriate amounts on all 
exporters that were found to be dumping did not violate Articles 7.5 and 9.2.  
4. The CBSA's Determination of an Individual Margin of Dumping for Each 
Chinese Taipei  Exporter Did Not Violate Article 6.10 of the 
Anti-Dumping Agreement  
16. Chinese Taipei alleges that the CBSA violated Article 6.10 of the Anti -Dumping Agreement 
by calculating a country -based margin of dumping in addition to the individual margins of dump ing 
calculated for each exporter. It argues that Article 6.10 requires the calculation of a single margin 
of dumping and that the country based margin of dumping constitutes a second margin of 
dumping for each exporter.  
17. Chinese Taipei's argument must b e rejected. The calculation of a country based margin of 
dumping does not constitute the establishment of a second margin of dumping for an individual 
exporter. Article 6.10 simply requires that an investigating authority determine an individual 
margin of dumping for each known exporter, which was done by the CBSA in the CSWP case.  
B. The CITT's Treatment of Dumped Imports in Its Injury Analysis Did Not 
Violate Articles 3.1, 3.2, 3.4, 3.5, and 3.7 of the Anti -Dumping Agreement  
18. Contrary to Chinese Taipei 's claim, the Canadian International Trade Tribunal's (CITT) 
inclusion of all dumped imports in its injury analysis, including those from exporters with a 
de minimis  margin of dumping, was consistent with the Anti -Dumping Agreement. Nothing in 
Articles  3.1, 3.2, 3.4, 3.5, or 3.7 the Anti -Dumping Agreement confines the meaning of "dumping" 
to dumping at a rate equal to or in excess of the de minimis  threshold.  
19. The definition of dumping clearly does not provide for a distinction to be drawn between 
import s that are dumped at a margin above de minimis  and those dumped at a margin below 
de minimis  –both are "dumped". Furthermore, the references to the term "dumped" in Articles 3.1, 
3.2, 3.4, 3.5 and 3.7 are in no way qualified by any reference to de minimis  margins of dumping. 
It is therefore only imports with a zero margin that should be considered as not dumped. This was 
the approach taken by the CITT in its injury analysis in the CSWP investigation. The Appellate 
Body decision in US – Carbon Steel  is direc tly relevant to this issue and supports Canada's 
position.  
C. The CITT's Non -Attribution Analysis Did Not Violate Articles 3.1 and 3.5 of 
the Anti -Dumping Agreement  
1. The CITT Was Not Obligated to Examine and to Separate and 
Distinguish the Effects of Sub sidies  
20. Chinese Taipei criticizes the CITT for having failed, in its CSWP injury analysis, to separate 
and distinguish the effects of subsidies granted to Indian exporters.  
21. Article 3.5 of the Anti -Dumping Agreement provides that "[i]t must be demons trated that 
the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, 
causing injury within the meaning of this Agreement". It also provides that "[t]he authorities shall 
also examine any known factors other than the dumpe d imports which at the same time are 
injuring the domestic industry, and the injuries caused by these other factors must not be 
attributed to the dumped imports." These obligations are referred to as the causal link and 
non-attribution requirements. Pursua nt to the non -attribution requirement, an investigating 
authority must ensure that it separates and distinguishes the effects of other known factors of 
injury from the effects of the dumped imports.  WT/DS482/ R/Add.1  
 
- C-13 - 
 
  22. Subsidies provided to exporters of dumped imports are  not a factor other than the dumped 
imports  which can at the same time injure the domestic industry because subsidies provided to 
exporters of dumped imports can only injure the domestic industry through  the dumped imports. 
Therefore, a non -attribution ana lysis cannot be based on a requirement to separate and 
distinguish the effects of the subsidies from the effects of the dumped imports. A non -attribution 
analysis concerning subsidies could only be based on a requirement to separate and distinguish 
the eff ects of the subsidies from the effects of dumping. In turn, the only reason to conduct a 
non-attribution analysis of that nature under the Anti -Dumping Agreement would be if the required 
causal link were between dumping and injury. However, this is not the  case. In an injury analysis 
conducted in accordance with the Anti -Dumping Agreement, in line with the Appellate Body 
decision in Japan – DRAMs (Korea) , the central issue is whether the dumped imports are causing 
or are threatening to cause injury to a dom estic industry. The required causal link is thus between 
dumped imports and injury, not between dumping and injury.  
23. Given that there is no requirement that the effects of the dumping  be found to cause injury 
under the Anti -Dumping Agreement, there can be no requirement under the Agreement that, when 
goods are both dumped and subsidized, the effects of subsidies  be separated and distinguished 
from the effects of the dumping . 
24. In the CSWP inquiry, the CITT cumulated the effects of imports from India wi th those from 
Chinese Taipei and four other subject countries because the imports from all of these countries 
were dumped. The fact that the imports from India were also subsidized was not relevant to the 
CITT's injury analysis under the Anti -Dumping Agree ment. There was no requirement to examine 
and to separate and distinguish the effects of the subsidies provided by India.  
2. The CITT Was Not Obligated to Examine and to Separate and 
Distinguish the Effects of Excess Capacity  
25. Chinese Taipei argues that , in the CSWP inquiry, excess capacity1  was a known factor of 
injury that the CITT was required to examine in the context of its non -attribution analysis.  
26. Article 3.5 of the Anti -Dumping Agreement requires that the effects of other known factors 
of injury be separated and distinguished from the effects of dumped imports. As a general rule, 
excess capacity or low capacity utilization in a domestic industry is an indicator of injury, not a 
factor or cause of injury to that industry.  
27. Even assuming tha t excess capacity may be a cause of injury in certain cases, Chinese 
Taipei has not demonstrated that it was a known cause of injury in the CSWP inquiry that the CITT 
had to examine in its threat of injury analysis.  
28. First, contrary to Chinese Taipei's assertion, the CITT did not consider that there was excess 
capacity in the domestic CSWP industry constituting a cause of injury.  
29. Second, the only evidence to which Chinese Taipei refers to support its position that excess 
capacity as a cause of injury  was brought to the CITT's attention is a submission by Knightsbridge 
filed during the CITT's preliminary injury inquiry. Knightsbridge did not refer to any evidence to 
support its statement that "[w]e are all operating at less than 50% of where we were at ". Its 
ambiguous statement does not appear consistent with the data on capacity utilization in the CITT's 
pre-hearing staff report. Moreover, that statement does not indicate that excess capacity was a 
cause of injury in the CSWP investigation. Knightsbrid ge does not refer to excess capacity but 
rather to a decline in the utilization of capacity, an indicator of injury listed in Article 3.4 of the 
Anti-Dumping Agreement.  
30. Third, the CITT did not find that the subject imports had caused injury to the dome stic 
industry. Therefore, it was not required to examine other possible factors that could have caused 
injury. The CITT found that the subject imports threatened to cause material injury to the 
domestic industry in the future. In assessing threat of injury , the CITT considered two other 
possible factors or causes of injury. Chinese Taipei does not refer to any evidence on the record of 
                                                
1 While Chinese Taipei uses the term "overcapacity" in its submissions, Canada will use the term 
"excess  capacity" henceforth.  WT/DS482/ R/Add.1  
 
- C-14 - 
 
  the CITT indicating that the alleged excess capacity was a known factor that threatened to cause 
injury in the future, at t he same time as the dumped imports.  
D. The CBSA's Treatment of "All Other Exporters" Did Not Violate Article 6.8 and 
Annex II of the Anti -Dumping Agreement  
1. Chinese Taipei Misrepresents the Process by Which the CBSA Selected 
Information for the Ministeri al Specification in the CSWP Investigation  
31. According to Chinese Taipei, the process by which the CBSA applied facts available was 
inconsistent with Article 6.8 and Annex II of the Anti -Dumping Agreement. Chinese Taipei claims 
that the CBSA's methodolog y was inconsistent with the disciplines on facts available because it 
was "mechanistic", "automatic", and, ultimately, "punitive". It also alleges that the CBSA used the 
"worst information available" and outright failed to assess facts on the record of the  investigation.  
32. These arguments are directly contradicted by information on the record of the investigation, 
which indicates that the CBSA complied with the procedural obligations disciplining the use of facts 
available. Contrary to Chinese Taipei's c haracterization, the methodology employed by the CBSA 
was not "mechanistic" as it included an assessment of all export transactions from the period of 
investigation. The record to the investigation makes it clear that the CBSA conducted a systematic 
assess ment of all the information submitted by all interested parties in the CSWP investigation, 
including by Chinese Taipei exporters.  
33. Moreover, it cannot be said that the CBSA based its determination solely on the procedural 
circumstances of the investigat ion. Chinese Taipei's argument on this point ignores the process by 
which the CBSA selected available facts and improperly equates the use of adverse inferences with 
"punitive" conduct. In this respect, the CBSA's selection of reliable and representative f acts in the 
CSWP investigation is also distinguishable from violations of the disciplines on facts available in 
other WTO proceedings, particularly Mexico – Anti-Dumping Measures on Rice  and China – GOES . 
34. Finally, the proposition that the CBSA used the  "worst information available" to arrive at the 
worst possible result for "all other exporters" is unsubstantiated and irreconcilable with the facts 
on the record in the CSWP investigation. In particular, the CBSA's use of information from the 
application by the domestic industry could have led to a margin of dumping and duty rate for 
"all other exporters" higher than that prescribed in the ministerial specification.  
2. Chinese Taipei Ignores an Investigating Authority's Necessary 
Flexibility in the Applica tion of Facts Available  
35. In its submissions, Chinese Taipei has repeatedly implied that the CBSA was obligated to 
base its determination on information from Chinese Taipei exporters. Chinese Taipei suggests that 
the CBSA's failure to do so reflected a l ack of objectivity. This argument, however, ignores the 
flexibility inherent to an investigating authority's discretion when applying facts available.  
36. As noted in Canada's first written submission, the disciplines under Annex II are procedural 
in natur e and do not guarantee specific outcomes to non -cooperating parties. Where an exporter 
fails to participate in an investigation, or otherwise withholds certain information, an investigating 
authority necessarily has flexibility in determining the appropria te information to serve as a proxy.  
37. This flexibility is encompassed within the "reasonable replacement" standard articulated by 
the Appellate Body for determining the appropriateness of an investigating authority's selection of 
particular "facts". Flex ibility is also necessary so that an investigating authority can establish a 
residual duty rate that achieves the policy objectives outlined by the panel in China – Autos (US) . 
38. Furthermore, in addition to being inconsistent with the procedural obligati ons under 
Annex  II, a finding that the CBSA was required to use specific information would be contrary to 
Article  11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(DSU) and Article 17.6 of the Anti -Dumping Agreement. The  role of the Panel in this dispute is to 
determine whether the establishment of the "all other exporters" rate by the CBSA was consistent 
with the Anti -Dumping Agreement. It is not to decide what information the CBSA should have used 
to establish that rate . WT/DS482/ R/Add.1  
 
- C-15 - 
 
  E. The CBSA's Prospective Treatment of New Product Models Would Not Violate 
the Anti -Dumping Agreement  
1. The CBSA's Prospective Treatment of New Product Models Would Not 
Violate Article 9.3 of the Anti -Dumping Agreement  
39. Chinese Taipei continues to a rgue that the CBSA violated the chapeau of Article 9.3 of the 
Anti-Dumping Agreement by prospectively assigning a duty rate based on the ministerial 
specification to new product models in the CSWP investigation. This argument, however, is 
predicated on a f undamentally incorrect interpretation of Article 9.3.  
40. Chinese Taipei ignores that Members that employ prospective normal value systems, as is 
the case in Canada, comply with Article 9.3 by refunding excess duties collected, in accordance 
with Article 9 .3.2. Under Article 9.3.2, a refund for overpayment of duties is available if: 1) an 
importer of subject goods actually pays anti -dumping duties; and 2) that importer requests a 
refund for overpayment that is duly supported by evidence. In the present disp ute, because no 
evidence on the record indicates that Chinese Taipei exports of new product models have been 
subject to an initial duty assessment, let alone an assessment that has been subject to a refund 
request, the CBSA cannot be said to have violated Article 9.3.2 or the general obligation under 
Article 9.3. It is in this sense that Chinese Taipei's claim is premature, and must be rejected on the 
basis that Chinese Taipei has not established a prima facie  case of violation.  
41. A related point pertains  to the intermediate nature of the initial collection of duties under 
prospective duty assessment systems. By claiming that applying the ministerial specification to 
new models will necessarily result in duties that exceed the margin of dumping for coopera ting 
exporters, Chinese Taipei ignores that the initial collection of anti -dumping duties is not the final 
stage of duty assessment. When an importer believes that anti -dumping duties were improperly 
collected it can apply for a re -determination to ensure that final duty assessment is based on 
accurate normal values, and that any duties collected in excess of the appropriate amount are 
refunded.  
42. Chinese Taipei also incorrectly argues that the margin of dumping from the original 
investigation sets an upp er limit on duty assessment. Contrary to Chinese Taipei's claim, the panel 
decisions in Argentina – Poultry Anti -Dumping Duties  and EC – Salmon (Norway)  indicate that an 
investigating authority is not required to assess anti -dumping duties by reference to the margin of 
dumping established during the original investigation.  
43. Finally, Chinese Taipei fails to recognize that the Anti -Dumping Agreement does not 
prescribe a specific methodology according to which duties for new product models must be 
assessed.  In Canada's view, this silence permits investigating authorities a measure of flexibility 
with respect to the treatment of those models for duty assessment purposes. The CBSA's use of 
facts available to establish normal values for new product models shoul d be viewed in line with 
that flexibility. Following Chinese Taipei's position on what the CBSA "should" have done would not 
only ignore this flexibility, it would also be inconsistent with the Panel's role in adjudicating this 
dispute, as set out under Ar ticle 11 of the DSU and Article 17.6 of the Anti -Dumping Agreement.  
2. The CBSA's Prospective Application of Facts Available to New Product 
Models Is Both Necessary and Reasonable  
44. Chinese Taipei argues that the CBSA is prohibited from applying facts av ailable when 
assessing duties on new product models from cooperating exporters, yet it ignores that 
information pertaining to those models is necessary in order to determine their normal values.  
45. This is because different models of subject goods can hav e different characteristics. The 
normal value of one model cannot be assumed to be applicable to another for which there is no 
pricing information. In this respect, information pertaining to product models that were not 
investigated should be viewed as nec essary.  
46. Under Canada's prospective duty assessment system, anti -dumping duties are assessed 
based on a comparison between model -specific normal values and transaction -specific export 
prices. As "new" product models are those that have not been subject to an investigation or WT/DS482/ R/Add.1  
 
- C-16 - 
 
  re-investigation, the CBSA would not have pricing or cost information for those models to establish 
their normal values. Thus, at the time of duty assessment, the CBSA would be prevented from 
establishing normal values for uninvestig ated models if it were not able to rely on facts available, 
i.e. information pertaining to different  exporters or product models. In turn, this lack of 
information would prevent the CBSA from being able to assess duties on new product models, 
which would c reate a gap in the anti -dumping disciplines.  
47. Therefore, to the extent that any exporter from Chinese Taipei does not provide information 
pertaining to new product models, it would be appropriate for the CBSA to apply facts available, 
following the para meters of Annex II of the Anti -Dumping Agreement, in order to establish the 
normal values of those models.  
III. CLAIMS CONCERNING CERTAIN PROVISIONS OF THE SPECIAL IMPORT MEASURES 
ACT AND OF THE SPECIAL IMPORT MEASURES REGULATIONS  
A. SIMA Is Not Inconsiste nt "As Such" with Article 5.8 of the 
Anti-Dumping  Agreement with Respect to the Treatment of Exporters with 
de Minimis  Margins of Dumping  
48. Chinese Taipei claims that Subsection 2(1), Section 30.1, and Subsection 41(1) of SIMA are, 
as such, inconsistent with Article 5.8 of the Anti -Dumping Agreement because, when read 
together, they require that an affirmative dumping determination be made with respect to all 
goods of a country, including those of exporters with de minimis  margins of dumping, if that 
country's margin of dumping is two percent or more. Chinese Taipei further claims that the text of 
Subsection 43(1) of SIMA does not provide the CITT with discretion to terminate an investigation 
with respect to exporters with de minimis  margins of dumping.  
49. Canada has demonstrated that Article 5.8 of the Anti -Dumping Agreement does not require 
the termination of an investigation with respect to an exporter with a de minimis  margin of 
dumping. Even if Article 5.8 were to be interpreted as requiring exporter -specific termination, 
SIMA could not be found to violate, as such, Article 5.8. Canada acknowledges that 
Subsection  2(1), Section 30.1 and Subsection 41(1) of SIMA do not grant the CBSA discretion to 
terminate an investigation with regard to exporters with  de minimis  margins of dumping. However, 
Subsection 43(1) of SIMA provides the CITT with the discretion necessary to exclude such 
exporters from an injury finding and therefore to terminate the investigation with respect to those 
exporters.  
50. It is well settled that, as a general rule, the burden rests upon the complaining party to 
establish the inconsistency of the measure it challenges with a particular provision of a WTO 
covered agreement. When a measure is challenged "as such", the starting point for an analysis 
must be the measure on its face. If the meaning and content of a measure are clear on its face, 
then the consistency of the measure "as such" can be assessed on that basis alone. To warrant a 
finding of an "as such" violation, the measure must be determinative in precluding WTO consistent 
action.  
51. The CITT's discretion to exclude exporters, including exporters with de minimis  margins of 
dumping, is clear on the face of Subsection 43(1) of SIMA. The CITT's discretion to grant 
exclusions from a n affirmative injury or threat of injury finding is well established in Canadian law. 
In its statement of reasons in the CSWP inquiry, the CITT stated that "[t]he Tribunal has 
discretionary authority under subsection 43(1) of SIMA to grant exclusions from its findings". 
The CITT referred to Federal Court of Appeal of Canada and NAFTA Chapter 19 binational panel 
decisions confirming its discretion to grant product and producer exclusions. The CITT's discretion 
is illustrated by the fact that it granted two p roduct exclusions in its CSWP inquiry. The CITT used 
its discretion in deciding not to grant the producer exclusion requested. By addressing the request 
on its merits, the CITT implicitly confirmed that it had the discretion under Subsection 43(1) of 
SIMA to grant producer exclusions.  WT/DS482/ R/Add.1  
 
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  B. SIMA and the SIMR Are Not Inconsistent "As Such" with Articles 1, 3.1, 3.2, 
3.4, 3.5, 3.7, 7.1(ii), 7.5, 9.2, and 18.4 of the Anti -Dumping Agreement, 
Article VI of the GATT 1994, and Article  XVI:4 of the WTO Agreement  
52. Canada responded to these claims in its first written submission. Given that Chinese Taipei 
has not presented additional arguments in support of its claims related to these provisions, Canada 
will not address these claims further in this submission.  
IV. CONCLUSION  
53. For the reasons outlined above, Canada respectfully requests that the Panel reject 
Chinese  Taipei's claims.  
 
 
 WT/DS482/ R/Add.1  
 
- C-18 - 
 
  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE STATEMENT OF CANADA  
AT THE  FIRST MEETING OF THE  PANEL  
I. INTRODUCTION  
1. This dispute concerns an ti-dumping measures imposed by Canada on imports of certain 
Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu (or Chinese Taipei). Chinese Taipei claims that the investigation that led to the imposition of 
the anti-dumping measures, the measures themselves, and certain provisions of the Special 
Import Measures Act  (or SIMA) are inconsistent with the Anti -Dumping Agreement and the 
GATT  1994. Canada demonstrates that the investigation and the application of anti -dumping 
measures on Welded Pipe from Chinese Taipei, as well as the relevant provisions of SIMA, are not 
inconsistent with the Anti -Dumping Agreement.  
II. THE CBSA'S TREATMENT OF CHINESE TAIPEI EXPORTERS WITH DE MINIMIS  
MARGINS OF DUMPING DID NOT VIOLATE A RTICLE 5.8 OF THE ANTI -DUMPING 
AGREEMENT  
A. The Termination of an Investigation Pertains to a Country and Is Only 
Required When the Country -Based Margin of Dumping Is de Minimis  
2. The fundamental question raised by Chinese Taipei's claim is whether the re quirement in 
Article 5.8 to terminate an investigation when the margin of dumping is de minimis  pertains to a 
country or to an individual exporter. Canada submits that termination of an investigation is 
required when a country -based margin of dumping is de minimis , not when an individual exporter 
has a de minimis  margin of dumping.  
3. A treaty must be interpreted "in accordance with the ordinary meaning to be given to the 
terms of the treaty in their context and in the light of its object and purpose". The ordinary 
meaning of the terms "termination", "investigation", and "margin of dumping" is consistent with 
the termination of an investigation being required on a country basis.   
4. Canada has demonstrated that the context in which these terms are used conf irms that an 
investigation of dumped imports from a country must be terminated only when that country's 
overall margin of dumping is de minimis. According to Article 5, an investigating authority initiates 
and conducts only one investigation  – for a countr y. The investigating authority does not conduct 
as many investigations as there are exporters. Consequently, the requirement to terminate an 
investigation must pertain to a country, not to an individual exporter. All of the situations in 
Article  5.8 pertai n to country -based termination. In all situations, it is the investigation as a whole 
that must be terminated. An interpretation of Article 5.8 requiring termination of an investigation 
with respect to an individual exporter with a de minimis  margin of dum ping would render part of 
Article 9.4 redundant. In addition, the specific reference in Article 3.3 to the phrase de minimis  
strongly implies that the type of margin of dumping is the same in both Article 3.3 and Article  5.8 
– a margin of dumping with resp ect to a country.  
5. As a result, termination of an investigation with respect to an entire country is what is 
required under the second sentence of Article 5.8 when the country -based margin of dumping is 
de minimis . Even if the Panel agreed with Chinese T aipei's interpretation of Article 5.8, SIMA would 
nevertheless be consistent with the Anti -Dumping Agreement. When making an injury finding, the 
CITT has the discretion to exclude any exporter whose margin of dumping is less than two percent.  WT/DS482/ R/Add.1  
 
- C-19 - 
 
  B. The CBSA D id Not Violate Articles 6.10, 7.1(ii), 7.5, and 9.2 of the 
Anti-Dumping Agreement  
6. Chinese Taipei also makes three related claims of violations of other provisions of the 
Anti-Dumping Agreement that are premised on Article 5.8 requiring an exporter -specific 
termination. These claims must be rejected. First, Chinese Taipei claims that Canada violated 
Article 6.10, which requires an investigating authority to determine an individual margin of 
dumping for each exporter. However, Chinese Taipei admits that t he CBSA determined an 
individual margin of dumping for each exporter. The CBSA's additional determination of 
Chinese  Taipei's country -based margin of dumping is simply irrelevant under Article  6.10. 
Therefore, Chinese Taipei's claim of a violation "as appl ied" is without merit.  
7. Second, Chinese Taipei claims that Canada violated Article 7.1(ii) both "as applied" and "as 
such". Article 7.1(ii) requires that preliminary affirmative determinations of dumping and injury 
must be made in order for provisional d uties to be applied. In terms of the "as applied" claim, it is 
sufficient to point out that the CBSA made a preliminary dumping determination before applying 
provisional measures on dumped imports. This is shown by Chinese Taipei's own evidence. 
Accordingl y, the CBSA complied with the requirements under Article 7.1(ii). In response to the "as 
such" claim, nothing in Article 7.1(ii) suggests that provisional measures cannot be applied on 
dumped imports from an exporter whose provisionally estimated margin of  dumping is de minimis . 
8. Third, Chinese Taipei claims that Canada violated Articles 7.5 and 9.2, both "as applied" and 
"as such", because the CBSA collected duties on dumped imports from exporters with de minimis  
margins of dumping. Article 9.2 requires that anti -dumping duties be collected on imports from all 
individual exporters with the sole exception of exporters from which price undertakings have been 
accepted. In the Welded Pipe investigation, the CBSA imposed provisional and definitive 
anti-dumping  duties on all imports from Chinese Taipei exporters that had an export price less 
than their normal value. That is, it imposed duties on all dumped goods, including the dumped 
imports from any exporter with a de minimis  margin of dumping. This is what SIM A requires and it 
is consistent with the Anti -Dumping Agreement. Therefore, Chinese Taipei's "as applied" and 
"as such" claims of violation under Articles 7.5 and 9.2 must fail.  
III. THE CBSA'S USE OF FACTS AVAILABLE TO DETERMINE THE DUMPING MARGIN AND 
DUTY RATE FOR "ALL OTHER EXPORTERS" DID NOT VIOLATE ARTICLE 6.8 AND 
ANNEX II OF THE ANTI -DUMPING AGREEMENT  
9. Chinese Taipei claims that the CBSA's use of facts available to determine the margin of 
dumping and the anti -dumping duty rate for "all other exporte rs" violated Article 6.8 and 
paragraph 7 of Annex II of the Anti -Dumping Agreement.  Chinese Taipei's arguments must fail as 
they mischaracterize relevant facts and applicable law.  
10. First, Chinese Taipei argues that the CBSA's use of facts available eff ectively punished 
non-cooperating exporters. However, Chinese Taipei fails to recognize that an investigating 
authority has discretion to draw inferences, including adverse inferences, based on the procedural 
circumstances of the investigation. These infer ences must have a reasonable connection to the 
information available, but the express terms of Annex II clearly indicate that they may lead to a 
less favourable outcome for the non -cooperating party. In the Welded Pipe investigation, the 
CBSA's use of fact s available cannot be considered punitive: it was based not only on verified facts 
gathered during the investigation, but also on reasonable inferences concerning exporters that 
decided not to participate. Indeed, if the CBSA's approach were deemed punitiv e, exporters and 
foreign producers that have injuriously dumped could actually benefit from a lack of cooperation.  
11. Second, Chinese Taipei argues that the CBSA's use of facts available was not based on a 
comparative evaluation that took into account all  of the information on the record. This is factually 
incorrect. The record of the Welded Pipe investigation establishes either explicitly, or by necessary 
implication, that the CBSA engaged in a systematic evaluation of all of the information on the 
record , following which it determined how it would establish normal values  for non -cooperating 
exporters.  WT/DS482/ R/Add.1  
 
- C-20 - 
 
  12. Third, Chinese Taipei argues that the CBSA failed to select facts for "all other" 
Chinese  Taipei exporters that were logically related to facts on the r ecord concerning 
Chinese  Taipei exports. Yet, the methodology employed by the CBSA ensured that it used facts 
from the investigation that reasonably replaced information that was missing from the record. It 
also ensured that the procedural circumstances of  the investigation were taken into account, as 
well as the need to encourage cooperation and prevent anti -dumping duty circumvention. For 
these reasons, Chinese Taipei's claims under Article 6.8 and Annex II must fail.  
IV. THE CBSA'S PROSPECTIVE TREATMENT OF NEW PRODUCT MODELS WOULD NOT 
VIOLATE THE ANTI -DUMPING AGREEMENT  
A. The CBSA's Prospective Use of Facts Available in the Calculation of 
Anti-Dumping Duties for New Product Models Would Not Violate Article 9.3 of 
the Anti -Dumping Agreement  
13. Chinese Tai pei claims that the CBSA violated Article 9.3 of the Anti -Dumping Agreement 
because it imposed anti -dumping duties on new models of subject goods in excess of their margin 
of dumping.  Its claim, however, fails to address the relationship between Article 9. 3 and 
Article  9.3.2. Article 9.3.2 sets two primary conditions for the availability of a refund: first, an 
importer of subject goods must have paid anti -dumping duties; and second, an importer must 
have requested a refund for overpayment with respect to th ose duties. Here, Chinese Taipei has 
provided no evidence that any exports of new product models have been subject to an initial duty 
assessment, let alone an assessment that has been subject to a refund request. In this sense, not 
only is Chinese Taipei's  claim premature, it does not even amount to a prima facie  case of a 
violation.  
14. Chinese Taipei also incorrectly claims that the ceiling for anti -dumping duties under 
Article  9.3 is limited to the "margin of dumping" established in the original investig ation. Canada 
draws the Panel's attention to Argentina – Poultry Anti -Dumping Duties  and EC – Salmon 
(Norway) , which contradict Chinese Taipei's argument.  
15. Chinese Taipei further claims that applying the ministerial specification to new product 
models will necessarily result in duties that exceed an exporter's margin of dumping established in 
the original investigation. However, this claim ignores that under a prospective duty system, the 
initial collection of anti -dumping duties is not the final stage of duty assessment. The Appellate 
Body recognized this in US – Continued Zeroing . Under the Canadian duty assessment system, an 
importer can request updated normal values through a re -determination or a re -investigation. 
Any retroactive update of the norma l values can result in a refund if the updated normal values 
are lower than they were before the update.  
B. The CBSA's Prospective Use of Facts Available with Respect to New Product 
Models Would Not Violate Article 6.8 a nd Annex II of the 
Anti-Dumping  Agreement  
16. Chinese Taipei also claims that the CBSA violated Article 6.8 and Annex II of the 
Anti-Dumping Agreement by resorting to facts available to determine normal values for new 
product models. Chinese Taipei initially argues that the CBSA lacked the legal authority to rely on 
facts available with respect to new product models. However, it then criticizes the CBSA for its 
selection of certain available facts. In so doing, Chinese Taipei implicitly concedes that resorting to 
facts available was appropri ate under these circumstances. This is logical and reasonable, as not 
being able to rely on facts available would prevent an investigating authority from establishing 
normal values for new models of subject goods that could not have been investigated durin g the 
initial investigation.  
C. The CBSA'S Prospective Use of Facts Available in the Calculation of Normal 
Values for New Product Models Would Not Violate Article 2.2 or 6.10 of the 
Anti-Dumping Agreement  
17. Canada demonstrates that the claims of violatio n under Articles 2.2 and 6.10 with respect to 
new product models are without merit. With respect to Article 2.2, "new" product models are those 
shipped after an initial investigation. As a result, an investigating authority is not in a position to WT/DS482/ R/Add.1  
 
- C-21 - 
 
  determin e model -specific normal values for those products when they are imported as they have 
yet to be investigated.  
18. Chinese Taipei's claim that the CBSA violated Article 6.10 by calculating "two different 
dumping margins" for the same cooperating exporter f ails to take into account that, under the 
Anti-Dumping Agreement, "margins of dumping" are not specific to a particular product model or 
export transaction. Rather, "margins of dumping" are determined for all export transactions from a 
particular exporter or producer. Thus, contrary to Chinese Taipei's argument, a "margin of 
dumping" by definition cannot be based on only transactions pertaining to specific product models. 
In making this claim, Chinese Taipei's also appears to fundamentally misunderstand the  operation 
of Canada's duty assessment system under which anti -dumping duties are assessed on a 
transaction -specific basis.  
V. THE CITT'S TREATMENT OF DUMPED IMPORTS IN ITS INJURY ANALYSIS DID NOT 
VIOLATE ARTICLES 3.1, 3.2, 3.4, 3.5, AND 3.7 OF THE ANTI -DUMPING AGREEMENT  
19. Nothing in the provisions cited by Chinese Taipei confines the meaning of "dumping" to 
dumping at a rate equal to or in excess of a de minimis  threshold. There is no distinction to be 
drawn between imports that are dumped at a margin ab ove de minimis  and those dumped at a 
margin below de minimis  – both are "dumped". It is only imports for which the margin of dumping 
is zero that should be considered as not dumped. The CITT's approach in its injury analysis in the 
Welded Pipe investigatio n is consistent with the Appellate Body's analysis in US – Carbon Steel .  
20. On this issue, all of the decisions referred to by Chinese Taipei in its first written submission 
concerned companies for which the margin of dumping or definitive anti -dumping d uty was zero. 
In each case, the panel concluded that the imports at issue were "non -dumped" and therefore 
should not have been included in the injury analysis. Thus, to the extent that these panels referred 
to de minimis  margins of dumping, these reference s should be considered as obiter dicta.  
21. Furthermore, as outlined above, an investigation need not be terminated with respect to 
imports from an individual exporter for which a de minimis  margin of dumping has been 
calculated. Therefore, the CITT's tre atment of dumped imports, including those from exporters 
with de minimis  margins of dumping, did not violate the Anti -Dumping Agreement. Similarly, the 
relevant provisions of SIMA that require the CITT to include imports from de minimis  exporters in 
its injury analysis are not "as such" inconsistent with the Anti -Dumping Agreement.  
VI. THE CITT'S NON -ATTRIBUTION ANALYSIS DID NOT VIOLATE ARTICLES 3.1 
AND 3.5 OF THE ANTI -DUMPING AGREEMENT  
22. Chinese Taipei argues that that by failing to separate and disting uish the effects caused by 
the subsidies from the effects caused by the dumping, Canada acted inconsistently with 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement. This argument is incorrect for two reasons. 
First, the Appellate Body decision in Japan – DRAMs (Korea)  demonstrates that when the same 
goods are both dumped and subsidized, an investigating authority is not required to separate and 
distinguish the effects of the subsidies from the effects of the dumping of the goods. Hence, the 
CITT was not re quired to ensure that injury caused by the subsidizing was not attributed to the 
dumping. This is because the focus of an injury analysis is on the effects of the dumped imports, 
not on the effects of dumping or subsidizing.  
23. Second, Chinese Taipei inap propriately relies on the Appellate Body decision in US – Carbon 
Steel (India)  to support its position that the CITT should have separated the effects of the 
subsidies from those of the dumping. That decision essentially deals with cumulation rather than 
non-attribution. In the Welded Pipe inquiry, the effects of dumped imports from Chinese Taipei, 
India, and four other subject countries were cumulated by the CITT, consistent with Article 3.3 of 
the Anti -Dumping Agreement.  The fact that the imports from Ind ia were also subsidized was 
irrelevant to the CITT's decision to cumulate the effects of all dumped imports. Therefore, the CITT 
was not required to examine the effects of subsidies and ensure that any injury caused by such 
subsidies was not attributed to the dumped imports.  WT/DS482/ R/Add.1  
 
- C-22 - 
 
  24. Chinese Taipei also claims that Canada violated Articles 3.1 and 3.5 of the 
Anti-Dumping  Agreement because the CITT failed to examine overcapacity and to separate and 
distinguish the effects caused by overcapacity from the effects c aused by dumped imports. 
Declines in utilization rates, just as declines in sales and profits, are indicators  of whether the 
domestic industry has suffered injury. They do not cause  injury. Thus, the CITT did not violate 
Articles 3.1 and 3.5 of the Anti -Dumping Agreement by not separating and distinguishing the 
effects of low utilization rates, or overcapacity, from the effects of the dumped imports on the 
domestic industry.  
VII. CONCLUSION  
25. For the reasons presented, Canada submits that Chinese Taipei's  claims have no merit and 
should be rejected by this Panel.  
 
 
 WT/DS482/ R/Add.1  
 
- C-23 - 
 
  ANNEX C -4 
EXECUTIVE SUMMARY OF  THE STATEMENT OF CANADA  
AT THE  SECOND MEETING OF TH E PANEL  
I. INTRODUCTION  
1. In its submissions, Chinese Taipei has put forward a number of arguments based on a  
misunderstanding of the Canadian system, a misapprehension of key factual elements of the 
Welded Pipe investigation, and flawed interpretations of the Anti -Dumping Agreement, the 
GATT  1994, and corresponding jurisprudence.  
II. THE CBSA'S TREATMENT OF CHIN ESE TAIPEI EXPORTERS WITH DE MINIMIS  
MARGINS OF DUMPING DID NOT VIOLATE ARTICLES 5.8, 6.10, 7.1(II), 7.5, 
AND 9.2 OF THE ANTI -DUMPING AGREEMENT  
2. Chinese Taipei argues that Article 5.8 of the Anti -Dumping Agreement requires that an 
investigation be termin ated with respect to individual exporters with a de minimis  margin of 
dumping. This argument, however, cannot be reconciled with the text of the Agreement.  
3. Article 5.8 contemplates the termination of an investigation where the margin of dumping is 
de mi nimis , or where the volume of dumped imports or the injury is negligible. The first sentence 
of Article 5.8 explicitly states that it is the investigation as a whole that must be terminated when 
there is insufficient evidence of dumping. In this context, i t is clear in the second sentence that 
"immediate termination" when the margin of dumping is de minimis  also refers to the investigation 
as a whole. The volume, the injury, and the margin of dumping are all used in the singular, 
in reference to a single in vestigation, where each of these terms pertains to a country.  
4. Moreover, Article 9.4 would be rendered inutile under Chinese Taipei's interpretation. 
The Appellate Body has stated that Article 9.4 relates to the application of duties in "a separate 
and d istinct phase of an anti -dumping action that necessarily occurs after the determination of 
dumping, injury, and causation". Therefore, any of the rules contained in Article 9.4 must only be 
applicable after the completion of the investigation, meaning afte r any termination under 
Article  5.8 would have already taken place.  
5. In addition, Chinese Taipei's position on exporter -specific termination results in inconsistent 
treatment under Article 9.5. Under Chinese Taipei's interpretation of Article 5.8, an exp orter with a 
de minimis  margin of dumping would be subject to termination if it had exported during the 
original period of investigation, yet it would be subject to the application of anti -dumping duties if 
it had only begun exporting in the duty assessmen t phase. This inconsistency does not exist if 
termination under Article 5.8 for a de minimis margin of dumping pertains to a country.  
6. Chinese Taipei further argues that Canada violated Article 7.1(ii) in applying provisional 
measures against exporters w ith a de minimis margin of dumping because dumping at a 
de minimis margin cannot be considered "dumping". However, there is no "statutory threshold for 
the margin of dumping", as Chinese Taipei has argued, and no justification for altering the 
definition o f what constitutes dumping. Canada satisfied the requirement under Article 7.1(ii) that 
a single preliminary determination of dumping be made, in relation to the entire investigation.  
7. Moreover, Chinese Taipei argues that the CBSA's application of anti -dumping duties violates 
Articles 7.5 and 9.2 because the phrase "all sources found to be dumped" does not include 
exporters dumping at a de minimis margin.  Chinese Taipei thereby proposes reading in an 
exception for a de minimis  threshold where none is foun d in the text of the Agreement. 
Duties  collected on imports from "all sources found to be dumped" includes imports dumped at a 
de minimis  margin of dumping.  
8. Chinese Taipei also argues that the CBSA violated Article 6.10 because it calculated a 
country -based margin of dumping for all Chinese Taipei exporters and used this in applying the WT/DS482/ R/Add.1  
 
- C-24 - 
 
  de minimis  test. Article 6.10 does not preclude calculations other than determining an individual 
margin of dumping for each exporter from being performed. The calculatio n of a country -based 
margin of dumping, in addition to being required under Article 5.8, is also required under 
Article  3.3. 
III. THE CITT'S TREATMENT OF DUMPED IMPORTS IN ITS INJURY ANALYSIS DID NOT 
VIOLATE ARTICLES 3.1, 3.2, 3.4, 3.5, AND 3.7 OF THE ANTI -DUMPING AGREEMENT  
9. Nothing in the wording of Articles 3.1, 3.2, 3.4, 3.5, or 3.7 of the Anti -Dumping Agreement 
confines the meaning of "dumping" to dumping at a rate equal to or in excess of a de minimis 
threshold. The use of the term "dumped" in these provisions is in no way qualified by any 
reference to a de minimis  margin of dumping. Only imports with a zero margin are properly 
considered as not dumped.  
10. The facts of the present dispute can be distinguished from those in the panel decisions cited 
by Chinese Taipei, all of which concerned companies for which the margin of dumping or definitive 
anti-dumping duty was zero. Therefore, all of the statements referring to de minimis  margins in 
these decisions should be considered obiter dicta . Furthermore,  contrary to Chinese Taipei's 
assertion, the Appellate Body has never ruled on whether imports of exporters with a de minimis 
margin of dumping are to be excluded from an injury analysis. Indeed, the CITT's injury analysis in 
the Welded Pipe investigation is consistent with the Appellate Body's analysis in US – Carbon  
Steel. 
IV. THE CITT'S NON -ATTRIBUTION ANALYSIS DID NOT VIOLATE ARTICLES  3.1 
AND 3.5 OF THE ANTI -DUMPING AGREEMENT  
11. Chinese Taipei argues that the effects of subsidies should have been separ ated and 
distinguished from the effects of dumping in the CITT's causation analysis. This argument 
improperly relies on the assumption that the Anti -Dumping Agreement requires an analysis of the 
effects of the dumping, as opposed to the effects of the dump ed imports. The Appellate Body 
decision in Japan – DRAMS (Korea)  shows that this assumption is false.  
12. Given that there is no requirement that the effects of the dumping be found to be causing 
injury under the Anti -Dumping Agreement, there can be no req uirement under the Agreement, 
when goods are both dumped and subsidized, that the effects of subsidies be separated and 
distinguished from the effects of the dumping. Moreover, there can be no requirement that the 
effects of the subsidies be separated and distinguished from the effects of the dumped imports, 
either. Therefore, the fact that certain dumped imports are also subsidized is not relevant to an 
injury analysis conducted pursuant to the Anti -Dumping Agreement.  
13. In the Welded Pipe inquiry, the CI TT cumulated the effects of imports from Chinese Taipei 
and five other subject countries because the imports from all of these countries were dumped. 
The fact that the imports from one of these countries, India, were also subsidized was not relevant 
to the  CITT's injury analysis under the Anti -Dumping Agreement. There was no requirement to 
examine and to separate and distinguish the effects of the subsidies provided by India.  
14. There is also no basis to Chinese Taipei's claims that overcapacity, or excess  capacity, was 
an "other" factor that the CITT was required to examine in its non -attribution analysis. 
As a general rule, excess capacity or low capacity utilization in a domestic industry is an indicator 
of injury, not a factor or cause of injury to that  industry. However, even assuming that excess 
capacity may be a cause of injury in certain cases, Chinese Taipei has not demonstrated that it 
was a known cause of injury in the Welded Pipe inquiry that the CITT had to examine in its threat 
of injury analys is. 
V. THE CBSA'S USE OF FACTS AVAILABLE TO DETERMINE THE DUMPING MARGIN AND 
DUTY RATE FOR "ALL OTHER EXPORTERS" DID NOT VIOLATE ARTICLE 6.8 AND 
ANNEX II OF THE ANTI -DUMPING AGREEMENT  
15. Chinese Taipei argues that the CBSA's use of the highest amount by w hich the normal value 
exceeded the export price in one transaction from a non -Chinese Taipei exporter punishes 
Chinese  Taipei exporters for failing to cooperate.  WT/DS482/ R/Add.1  
 
- C-25 - 
 
  16. This argument must fail. Chinese Taipei omits key aspects of the jurisprudence, resulting in 
a fundamental misrepresentation of the current state of the law. The tenuous nature of 
Chinese  Taipei's argument is further highlighted by the repeated assertion that the CBSA selected 
the "worst information", which is both misleading and factually inco rrect.  
17. Chinese Taipei also claims that the CBSA failed to make any comparative and evaluative 
assessment of the facts on the record, despite the CBSA's analysis of all of the information filed by 
interested parties. Chinese Taipei ignores that the Appe llate Body in US – Carbon Steel (India)  
rejected the need for a formalistic approach, recognizing that the form and extent of the 
evaluation of "facts available" may differ based on the particular circumstances of a given case.  
18. Chinese Taipei also argu es that the CBSA's application of facts available lacked a "logical 
relationship" to Chinese Taipei exports. Yet, Chinese Taipei has not clearly indicated what 
constitutes a "logical relationship" in the context of the selection of facts available nor adeq uately 
explained how the CBSA failed to meet such a standard. Indeed, the "logical relationship" in the 
Welded Pipe investigation is evidenced by the selection of information pertaining to actual sales 
transactions concerning the same product during the sa me period of time.  
19. More fundamentally, by arguing that the CBSA was obligated to base its determination on 
information from Chinese Taipei exporters, Chinese Taipei seeks to impose on Canada a 
substantive obligation not contemplated under the Anti -Dump ing Agreement. In so doing, 
Chinese  Taipei ignores the flexibility inherent in an investigating authority's discretion when 
applying facts available.  
VI. THE CBSA'S PROSPECTIVE TREATMENT OF NEW PRODUCT MODELS WOULD NOT 
VIOLATE THE ANTI -DUMPING AGREEMENT  
20. Chinese Taipei claims that the duties imposed by the CBSA would necessarily exceed the 
margin of dumping from the original investigation and thus contravene the general rule under 
Article 9.3. Its claim, however , fails to address the relationship between  Article 9.3 and 
Article  9.3.2. Article 9.3.2 sets two primary conditions for the availability of a refund: first, an 
importer of subject goods must have paid anti -dumping duties; and second, an importer must 
have requested a refund for overpayment with re spect to those duties. Chinese Taipei has 
provided no evidence that any exports of new product models have been subject to an initial duty 
assessment, let alone an assessment that has been subject to a refund request.  
21. Chinese Taipei's claim also ignore s that, in a prospective normal value system, the initial 
collection of anti -dumping duties is not the final stage of duty assessment.  Under the Canadian 
system, the re -determination mechanism allows an importer to ensure that final duty assessment 
is base d on accurate normal values and guarantees that any excess duties collected are refunded. 
Moreover, the re -investigation mechanism allows an exporter to receive normal values for new 
product models in advance of their shipment.  
22. Chinese Taipei also cont inues to incorrectly argue that the margin of dumping from the 
original investigation sets an upper limit on duty assessment. The Panel Reports in Argentina – 
Poultry Anti -Dumping Duties and  EC – Salmon (Norway) directly contradict Chinese Taipei's 
argumen t. 
23. Moreover, by arguing that an investigating authority is required to apply the margin of 
dumping calculated during the original investigation, Chinese Taipei improperly suggests that there 
is a particular methodology for assessing duties on new produ ct models in the 
Anti-Dumping  Agreement. However, the Agreement contains no such rule. Consistent with the 
CBSA's approach, this lacuna permits an investigating authority a measure of flexibility with 
respect to the treatment of new models for duty assessm ent purposes.  
24. Chinese Taipei further argues that the CBSA violated Article 6.8 by relying on facts available 
to prospectively establish normal values for new product models. However, Chinese Taipei ignores 
that, without being able to rely on facts avai lable,  the CBSA would simply be unable to establish 
normal values for uninvestigated models, which would prevent the CBSA from being able to assess 
duties on new product models and would create a gap in the anti -dumping disciplines.  WT/DS482/ R/Add.1  
 
- C-26 - 
 
  25. With respect to the  CBSA's selection of available facts, the lack of information about 
uninvestigated product models requires caution to ensure that any dumping is fully offset. 
An initial duty rate based on a ministerial specification is therefore appropriate. However, the 
available review mechanisms ensure that uninvestigated products receive model -specific normal 
values and corresponding duty assessments.  
26. Chinese Taipei also argues that the CBSA violated Article 2.2 because using facts available 
to establish a normal v alue cannot be consistent with any of the methodologies under Article 2.2 
since the conditions for resorting to facts available were not fulfilled. However, Canada has already 
demonstrated that it is necessary and consistent with the Anti -Dumping Agreement  for the CBSA 
to resort to facts available to prospectively establish normal values for new product models.  
27. Chinese Taipei further claims that the CBSA violated Article 6.10 to the extent the Panel 
considers that the CBSA determined a separate margin o f dumping for new product models from 
cooperating exporters. In its first written submission, however, Canada demonstrated that the 
CBSA's prospective treatment of new product models during duty assessment would not result in 
the determination of a second margin of dumping.  
VII. SIMA IS NOT INCONSISTENT "AS SUCH" WITH ARTICLE 5.8 OF THE 
ANTI -DUMPING AGREEMENT WITH RESPECT TO THE TREATMENT OF EXPORTERS 
WITH DE MINIMIS  MARGINS OF DUMPING  
28. Chinese Taipei claims that SIMA is inconsistent "as such" with Artic le 5.8. It argues that 
SIMA provides for termination of an investigation only where a country -based margin of dumping 
is de minimis . 
29. Even if Article 5.8 were to be interpreted as requiring exporter -specific termination, 
Subsection 43(1) of SIMA provide s the CITT with the discretion necessary to exclude an exporter 
with a de minimis  margin of dumping from an injury finding and therefore to terminate the 
investigation with respect to that exporter.  
30. In order to establish an "as such" violation, Chinese  Taipei must demonstrate that Canada's 
conduct will necessarily be inconsistent with Article 5.8 of the Anti -Dumping Agreement. Contrary 
to Chinese Taipei's argument, the CITT's discretion to act inconsistently with Article 5.8 does not 
support the existen ce of an "as such" violation, as the CITT also has the discretion to act 
consistently with Article 5.8.  
31. The CITT's discretion to exclude exporters, including exporters with de minimis  margins of 
dumping, from an injury finding is clear on the face of S ubsection 43(1) of SIMA. This discretion is 
well established in Canadian law. No definitive anti -dumping duties would be imposed on imports 
from such an excluded exporter. The exclusion of the exporter from the injury finding would 
constitute immediate ter mination as described by the Appellate Body.  
VIII.  CONCLUSION  
32. For the reasons presented, Canada submits that Chinese Taipei's claims have no merit and 
should be rejected by this Panel.  
 
_______________  
 
 WT/DS482/ R/Add.1  
 
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  ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex D -1 Executive summary of the arguments of Brazil  D-2 
Annex D -2 Executive summary of the arguments of the European Union  D-5 
Annex D -3 Executive summary of the arguments of Norway  D-11 
Annex D -4 Executive summary of the arguments of the Unit ed Arab Emirates  D-14 
Annex D -5 Executive summary of the arguments of the United States  D-16 
 WT/DS482/ R/Add.1  
 
- D-2 - 
 
  ANNEX  D-1 
EXECUTIVE SUMMARY OF  THE ARGUMENTS  OF BRAZIL  
1. Brazil's participation in this dispute focused, initially, in three main aspects of the case: 
(I) the treatment given to individual exporters with a de minimis margin of dumping; (II) the 
treatment of non -dumped imports in the injury and causation analyses; and (III) the treatment of 
other factors besides the dumped imports in the causation analysis.  
2. Regarding the first aspect (I), Brazil argued that the investigation should have been 
terminated with respect to the exporters whose final margins of dumping were found to be 
de minimis . The combined interpretation of the articles mentioned by TPKM, as sup ported by the 
jurisprudence, leads to the conclusion that during an investigation the competent authority should 
take into account individual margins of dumping for each exporter or producer, whenever it is 
possible for the authority to determine them.  
3. In the answers to the panel's questions, Brazil further clarified that the second sentence of 
Article 5.8 refers essentially  to a final determination of dumping. Thus, the termination of an 
investigation related to an individual producer with a de minimis  margin of dumping will, 
in general , occur after the final determination. A termination prior to the final determination will 
depend on the information provided by the individual exporter, which may convince the 
investigating authority about the inexistenc e or a de minimis margin of dumping even before the 
final determination.  
4. It is important to underscore that the investigating authority cannot rely on a country -wide 
margin of dumping when the individual margins are determined. An individual exporter fo und not 
to be dumping must not be subject to additional Anti -Dumping Duties.  
5. As the Appellate Body has already clarified in Mexico – Anti-Dumping Measures on Rice , 
"the term 'margin of dumping' in Article 5.8 refers to the individual margin of dumping o f an 
exporter or producer rather than to a country -wide margin of dumping"1.  
6. Brazil also made a point related to the fact that Canada did not violate Article 6.10 of 
the ADA. The obligation contained in this Article is that the investigating authority must "determine 
an individual margin of dumping for each known exporter or producer". The individual margins 
were determined, but Canada failed to use it properly, as it did not terminate the investigation 
concerning those exporters within a de minimis margin. The mere fact that the CBSA calculated a 
country -based margin of dumping does not in itself violates Article 6.10, and such calculation may 
be used for other purposes in the ADA, such as in Article 3.3(a).  
7. In Brazil's answers to the Panel's questio ns concerning the matter of the termination of an 
investigation concerning individual exporters with a de minimis margin of dumping two additional 
issues were raised: the redundancy of Article 9.4 of the ADA and the application of provisional 
antidumping d uties on exporters with a de minimis  margin of dumping.  
8. Concerning the first item, Brazil is of the opinion that there is no redundancy in Article 9.4. 
Brazil argued that Canada's statement that "[t]he application of duties contemplated in Article 9.4 
takes place during the period of duty assessment after an investigation is completed" is not 
correct, and that the method of calculating duties foreseen in Article 9.4 may also be applied to 
the determination of provisional duties, accor ding to Article 7.5 of the ADA.  
9. Additionally, Brazil presented an understanding to the panel that Articles 7.1 (ii), 7.5 
and 9.2 of the ADA preclude the application of antidumping duties on exporters with a de minimis  
margin of dumping, regardless of whether the determinat ion is preliminary or final, if the 
investigating authority is clearly satisfied with the determination of the de minimis margin of 
dumping. In Brazil's case, in general, the decision concerning the termination of the investigation 
                                                
1 Mexico – Anti-Dumping Measures on Rice , para. 216. WT/DS482/ R/Add.1  
 
- D-3 - 
 
  concerning the producer with a de minimis margin would only take place after the final 
determination. However, as already stated, that may not be the case in other countries.  
10. In view of the above, since Brazil agrees that the investigation should have been terminated 
with res pect to those exporters whose final margins of dumping were found to be de minimis , it 
acknowledges that provisional and definitive anti -dumping duties could not have been imposed on 
imports from exporters with a de minimis  margin of dumping.  
11. Concernin g the treatment of non -dumped imports for the purposes of the injury and 
causation analysis (II), Brazil agreed with TPKM that the term "dumped imports" does not legally 
include imports from exporters with a de minimis  margin of dumping. As TPKM argued in its FWS, 
the DSB has already addressed this issue on different occasions. The Panel in EC – Salmon2 
stressed that:  
"We consider that imports attributable to a producer or exporter for which a 
de minimis  margin of dumping is calculated may not be treated as  "dumped" for 
purposes of the injury analysis in that investigation. (…) In our view, a finding of 
de minimis  dumping margins is a finding that there is no legally cognizable dumping 
by the producer or exporter in question. If there is no legally cognizabl e dumping by a 
particular producer or exporter, as a result of a finding of de minimis  margins, then it 
seems inescapable to us that imports attributable to such producer or exporter may 
not be treated as 'dumped' imports for any aspect of that investigati on". 
12. In addition, Brazil argued that the Panel in EC – Fasteners3 noted that "the consideration of 
'dumped imports' for purposes of making an injury determination consistent with Articles 3.1, 3.2, 
3.4 and 3.5 of the AD Agreement entails the considerat ion of only those imports for which a 
margin of dumping greater than de minimis  is established in the course of the investigation".  
13. Therefore, Brazil reaffirms its understanding that imports of producers with a de minimis  
margin should not have been co nsidered in the injury and causation analyses.  
14. The last point Brazil made during the proceedings is related to the treatment of other factors 
besides the dumped imports in the causation analysis (III). TPKM claimed that Canada had 
violated Articles 3.1  and 3.5 of the ADA, as it failed to examine all known factors other than the 
alleged dumped imports which were at the same time injuring the domestic injury and failed to 
ensure that the injuries caused by such factors were not attributed to the alleged d umped imports, 
Brazil presented an opinion that the legal standard brought forth by TPKM may not be entirely 
accurate.  
15. To better understand the factual situation and the disciplines that should have been applied 
to it, it must be taken into account tha t the Canadian investigating authority did not reach an 
affirmative determination of material injury, as stated in CITT's Finding and Reasons, Injury 
Inquiry (Exhibit TPKM -14): 
"153. In summary, the Tribunal acknowledges that the domestic industry, as a wh ole, 
sustained some injury during certain periods of the POI. The domestic industry lost 
certain market opportunities due to the presence of the subject goods in the Canadian 
market; however, the Tribunal is of the view that the resulting impact on the dom estic 
industry has not been sufficiently adverse to constitute material injury . 
154. On the basis of the foregoing analysis, the Tribunal finds that the dumping and 
subsidizing of the subject goods has not caused injury  to the domestic industry." 
(emphasis  added)  
                                                
2 EC – Salmon , para. 7.625.  
3 EC – Fasteners , para. 7.354 . WT/DS482/ R/Add.1  
 
- D-4 - 
 
  16. In view of the above, Canada decided to apply anti -dumping duties based on a threat of 
material injury to its industry, as authorized by Article VI.1 of GATT. In Brazil's opinion, if there 
was not an actual damage to the domestic industry, it i s not possible to call for the analysis of the 
"other factors" mentioned in Article 3.5.  
17.  According to the opinion presented in Brazil's TPS, the legal standard that should guide the 
causation assessment in the present case should be that foreseen in Article 3.7, which also makes 
reference to the obligation of an investigating authority to take into consideration "other factors" 
that might contribute to a threat of damage to the domestic industry, such as those enshrined in 
subheadings (i), (ii) , (iii) and (iv) of Article 3.7.  
18. Brazil upheld, nevertheless, that the Panel has the authority to settle that the factors 
mentioned by TPKM should have been taken into account, for the roster of other factors in the 
subheadings of Article 3.7 appears to be me rely illustrative, given the use of the expression 
"inter alia". 
 
 
 WT/DS482/ R/Add.1  
 
- D-5 - 
 
  ANNEX D -2 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  EUROPEAN UNION  
1 INTRODUCTION  
1. The European Union intervenes in this case because of its systemic interest in the correct 
and consist ent interpretation and application of the covered agreements and other relevant 
documents, and the multilateral nature of the obligations contained therein, in particular the 
Anti-Dumping Agreement.  
2 OBSERVATIONS OF THE EUROPEAN UNION  
2.1 THE TREATMENT OF  EXPORTERS WITH A DE MINIMIS  MARGIN OF DUMPING  
2. According to Article 5.8 of the Anti -Dumping Agreement, investigations shall be terminated 
when the authorities determine that the margin of dumping is de minimis . De minimis  is defined in 
the Anti -Dumping Agreement as a threshold for the margin of dumping of less than 2%.  
3. The European Union recalls that the Appellate Body has already clarified that the margin of 
dumping in Article 5.8 refers to "individual" margins of dumping of the exporters, as opposed  to a 
"country -wide" margin of dumping.  
4. Pursuant to Article 5.8, the investigating authority is required to "immediately" terminate 
the investigation with respect to those de minimis  producers and exclude them from the scope of 
the application of antidu mping duties imposed following that investigation.  
5. In addition, the Appellate Body held that dumping is the result of the pricing behaviour of 
individual exporters or foreign producers and noted that other provisions of the 
Anti-Dumping  Agreement also m ake it clear that "dumping" and "margins of dumping" relate to 
the exporter or foreign producer.  
6. With regard to the temporal dimension of the determination envisaged in the second 
sentence of Article 5.8 of the Anti -Dumping Agreement, the European Union  considers that 
"determine" refers to the final or definitive determinations made by the authorities of a 
WTO Member.  
7. The issuance of the order that es tablishes anti -dumping duties –or the  decision not to issue 
an order – is the ultimate step of the "inv estigation" contemplated in Article 5.8; in most cases, an 
investigation is "terminated" with the issuance of an order or a decision not to issue an order. This 
ultimate step necessarily f ollows the final determination.  
8. Articles 6.8 and 6.14 of the Anti -Dumping Agreement appear to envisage that the 
authorities of a Member may reach "preliminary or final determinations, [whether] affirmative or 
negative". However, the Anti -Dumping Agreement does not mention examples of preliminary 
negative determinations.  By contrast, it refers to preliminary affirmative determinations, namely in 
Article 7 governing the application of provisional measures.  
9. The Article 5.8 provides for two situations where an investigating authority is to immediately  
terminate an investi gation: in case the authority makes a negative determination of dumping 
(first sentence) or in case it determines that the dumping margin is de minimis  or the volume of 
imports  is negligible (second sentence).  
10. The first sentence of Article 5.8 requires  the application of the domestic industry to be 
rejected, and the investigation to be terminated promptly, as soon as the authorities concerned 
are satisfied that there is not sufficient evidence of either dumping or of injury to justify 
proceeding with th e case. The negative determination of dumping mentioned in this provision WT/DS482/ R/Add.1  
 
- D-6 - 
 
  appears to be final or definitive in character  in respect of any individual exporters concerned by it, 
even if the investigation may continue in respect of other exporters of the sub ject product.  
11. Similarly, the second sentence of Article 5.8 requires immediate termination in cases where 
the authorities determine that the margin of dumping is de minimis , or that the volume of dumped 
imports, actual or potential, or the injury, is n egligible. Again, the determinations mentioned in 
this provision cannot be deemed preliminary, since they do not stand to be confirmed or modified 
in the course of the investigation.  
12. According to Canada, this was the case in the Welded Pipe investigati on. In its final 
determination of dumping, the Canada Border Services Agency (CBSA), found that Turkey 's 
country -based margin of dumping was de minimis  and terminated th e investigation against 
Turkey.  
13. On the other hand, "a preliminary affirmative deter mination […] of dumping and consequent 
injury to a domestic industry" as required by Article 7.1 (ii) of the Anti -Dumping Agreement for the 
application of provisional measures, stands to be confirmed or modified by the final determination 
reached as a resu lt of the investigation.  
14. Pursuant to Article 7.2, where provisional measures take the form of a provisional duty, their 
amount must not exceed the provisionally estimated margin of dumping.  
15. Article 6.6 of the Anti -Dumping Agreement provides that th e authorities shall, during the 
course of an investigation, satisfy themselves as to the accuracy of the information supplied by 
interested parties upon which their findings are based.  
16. Therefore, an investigating authority will only be in a position to  determine that a margin of 
dumping is de minimis  once it has sufficient evidence before it to confirm the information supplied 
by interested parties in that regard. The immediate termination required by the second sentence 
of Article 5.8 of the Anti -Dumpi ng Agreement can only take place at the stage where a final 
determination is reached, which in the practice of certain Members may coincide with the closing 
of the investigation.  While the second sentence of Article 5.8 does not distinguish between 
prelimi nary and final, the determination in this provision can only be understood as definitive or 
final in the sense that only when the authorities of a Member are finally satisfied that a margin of 
dumping is de minimis  are they under the obligation to immediat ely terminate the investigation in 
respect of the exporter.  
17. Canada seeks to reverse in the present case the understanding that the margin of dumping 
in Article 5.8 refers to "individual" margins of dumping of the exporters and provides several 
reasons for that purpose.  
18. For instance, Canada asserts that the exclusion of zero or de minimis  margins of dumping 
from the weighted average margin of dumping or weighted average normal value mentioned in 
Article 9.4 confirms that an investigation is only term inated pursuant to Article 5.8 when the 
margin of dumping of a country is de minimis .  
19. The European Union fails to see why the termination of the investigation in respect of 
individual exporters with de minimis  margins of dumping, as required by the se cond sentence of 
Article 5.8, would render part of Article 9.4 redundant. As already mentioned, the termination of 
the investigation in respect of individual exporters with de minimis  margins of dumping can only 
take place following a final determination. That final determination is only made once the 
investigation is deemed completed in respect of the individual exporters found to have a 
de minimis  margin of dumping.  
20. In addition, the European Union notes that Article 9.4 also obliges the authorities co ncerned 
to disregard zero margins of dumping. In accordance with the first sentence of Article 5.8, the 
authorities may have determined even earlier in the course of the investigation that there is not 
sufficient evidence of dumping in so far as certain ex porters are concerned. Moreover, nothing in 
the language of Article 9.4 confirms that an investigation is terminated pursuant to Article 5.8 
when the margin of dumping of a country is de minimis . WT/DS482/ R/Add.1  
 
- D-7 - 
 
  21. As Canada seeks to reverse previous Appellate Body findi ngs with respect to previously 
decided legal issues, the European Union recalls that panels are expected, even in practice 
"obliged" to follow previous Appellate Body reports. The European Union notes that the Appellate 
Body already addressed the relevance  of previous panel and Appellate Body reports. In particular, 
the Appellate Body clarified the role of its previous reports and indicated how panels should act in 
cases where the same legal issues arise.  
22. The European Union fully agrees with the releva nt statements of the Appellate Body in US – 
Stainless Steel (Mexico)  without reservation. In this respect, the final sentence of paragraph 160 
of the report refers to "an adjudicatory body", which covers the situation in which the Appellate 
Body might be c alled upon to resolve the same legal issue that it has already resolved.  
23. The European Union notes that the Appellate Body refers to "cogent reasons" as the basis 
for a change in view. While the reference to "cogent reasons" is not treaty language, it is indicative 
of the fact that for reasons related to security and predictability there is a high threshold for 
departing from the case law clarifying a certain legal issue. For instance, in China – Rare Earths  
the respondent unsuccessfully sought to rever se the Appellate Body's findings in China – Raw 
Materials , according to which a proper interpretation of Paragraph  11.3 of China's Accession 
Protocol did not make available to China the exceptions in Article XX of the GATT 1994.  
24. The European Union not es that paragraph 161 of the Appellate Body Report in US - Stainless 
Steel (Mexico)  addresses the hierarchical relationship between panels and the Appellate Body. 
It concludes that the relevance of clarification provided by the Appellate Body on issues of legal 
interpretation is not limited to the application of a particular provision in a specific case. There is 
no express reference to "cogent reasons". Finally, in paragraph 162 of the Appellate Body Report 
in US – Stainless Steel (Mexico)  the Appellate Bo dy states that it was deeply concerned about the 
panel's decision to depart from well -established Appellate Body jurisprudence clarifying the 
interpretation of the same legal issues.  
25. In other words, WTO panels must –in accord ance with Article 11 of the  DSU– make an 
objective assessment of the matter before them, in cluding an objective assess ment of conformity 
with the relevant covered agreements. For this purpose, panels must correctly apply the law; in 
the context of this dispute this also means that t he Panel should follow the rulings of the Appellate 
Body where the Appellate Body has previously interpreted the same legal questions. Otherwise, 
the task of providing security and predictability to the multilateral trading system, as enshrined in 
Article 3.2 of the DSU, would be put in serious danger.  
2.2 THE TREATMENT OF NON -DUMPED IMPORTS AND OF FACTORS OTHER THAN THE 
DUMPED IMPORTS IN THE INJURY AND CAUSATION ANALYSES  
26. The European Union understands that the Canadian International Trade Tribunal (CIT T) 
found that it was not possible to isolate the effects caused by the dumping from the effects caused 
by the subsidising, and thus did not consider the fact that the imports from India were also 
subsidised as irrelevant. However, Canada maintains that it was irrelevant to the CITT's decision 
that the imports from India were also subsidized.  
27. The European Union notes that "cross -cumulation" is not treaty language but rather 
language used by panels and the Appellate Body in describing a situation of the k ind at issue in the 
present case.  
28. While acknowledging the dif ferences between the specifici ties of the 
Anti-dumping  Agreement and the SCM Agreement, the European Union recalls that in the context 
of Article  15.3 of the SCM Agreement the Appellate Body has found that the respective article does 
not authorize investigating authorities to assess cumulatively the effects of imports that are not 
subject to simultaneous countervailing duty investigations with the effects of imports that are 
subject to counter vailing duty investigations.  
29. The European Union understands the difficulties an investigating authority is facing when 
isolating the effects of dumping from subsidization. However, according to Article 3.5 of the 
Anti-Dumping Agreement, an investing au thority must demonstrate that the dumped imports, 
"through the effects of dumping", are causing injury to the domestic industry within the meaning WT/DS482/ R/Add.1  
 
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  of that Agreement. The European Union is of the view that, as long as the prices are found to be 
dumped, subs idisation causing the dumping is irrelevant for the injury and causation analysis 
under Articles  3.1 and 3.5 of the Anti -Dumping Agreement.  
30. In the view of the European Union, such subsidisation should not be considered under 
non-attribution analysis a s an "other factor" of injury causing injury to the domestic industry at the 
same time as dumped imports, (i.e. it should not be considered as another factor that must be 
separated from or must not be attributed to the effects of dumped imports in the sens e of 
Article  3.5 of the Anti -Dumping Agreement). In EU – Footwear (China) , the complainant argued 
that the surge in dumped imports was caused by a variety of factors such as the abolition of 
preferential tariff treatment and quotas. The panel clearly found  that one is not required to 
investigate the reasons as to why dumping is taking place.  
31. Also, in the view of the European Union, such subsidisation is not relevant for demonstrating 
the causal relationship between dumped imports and the injury to the d omestic industry, as the 
injury caused to the domestic industry by dumped imports that result from subsidisation is still 
directly attributable to dumping. To be relevant, subsidisation wou ld have to drive down the export 
price without increasing the dumpi ng margin.  
32. Finally, the European Union also recalls that the SCM Agreement provides for the possibility 
of the imposition of countervailing duties if the respective conditions are met.  
2.3 DUMPING DETERMINATION AND DETERMINATION OF DUTY RATE FOR ALL OT HER 
EXPORTERS  
33. TPKM submits that Canada violated Article 6.8 and Annex II, paragraph 7, of the 
Anti-Dumping Agreement in its determination of the dumping margin and duty rate for "all other 
exporters". TPKM argues that the CBSA has failed to evaluate an d assess in a comparative manner 
the information that was on the record, in particular information provided by the three cooperating 
TPKM exporters.  
34. Canada responds that the CBSA 's use of facts available to determine the dumping margin 
and duty rate f or "all other exporters" did not violate Article 6.8 and Annex II, paragraph  7, of the 
Anti-Dumping Agreement.  
35. Canada confirms that, for the exporters that failed to provide sufficient information, despite 
being explicitly cautioned against non -coopera tion, the CBSA established normal values on the 
basis of facts available. However, Canada argues that CBSA's approach was based on reasonable 
inferences concerning exporters that decided not to participate in the investigation. If that 
approach were deemed  punitive, exporters could actually benefit from a lack of cooperation. 
Moreover, Canada maintains that CBSA's use of facts available was comparative and took into 
account all of the information on the record.  
36. The European Union agrees that an investi gating authority is not prohibited, under 
Article  6.8 and Annex II of the Anti -Dumping Agreement, from using an inference that may be 
"adverse to the interests" of non -cooperating exporters.  
37. Although Appellate Body and panel reports have emphasised th at the purpose of the facts 
available mechanism "is not to punish non -cooperation by interested parties", but rather to 
"ensure that the failure of an interested party to provide necessary information does not hinder an 
agency 's investigation", this does n ot preclude an investigating authority from taking account of 
facts that are detrimental to the interests of non -cooperating parties. The final sentence of 
Annex  II, paragraph 7, explicitly envisages the possibility that "if an interested party does not 
cooperate and thus relevant information is being withheld from the authorities, this situation could 
lead to a result which is less favourable to the party than if the party did cooperate."  
38. The CBSA gave notice to all known foreign exporters of CSWP to Canada of the 
consequences of failing to provide information. To the extent that the facts selected for 
establishing normal values are not devoid of factual foundation and can contribute to arriving at an 
accurate determination for those exporters that cho se not to cooperate, the European Union WT/DS482/ R/Add.1  
 
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  considers that the selection of unfavourable facts is not inconsistent with a Member's obligations 
under Article 6.8 and Annex II, paragraph 7, of the Anti -Dumping Agreement.  
2.4 TREATMENT OF NEW PRODUCT TYPES  
39. With respect to the treatment of new product types to be exported by cooperating 
producers, TPKM submits that Canada violated Articles 9.3, 6.8 and Annex II, as well as 
Articles  2.2 and 6.10 of the Anti -Dumping Agreement and, as a consequence, Article 1 of t he 
Anti-Dumping Agreement and Article VI of the GATT 1994.  
40. According to TPKM, Canada violated Article 9.3 of the Anti -Dumping Agreement because the 
anti-dumping duties imposed on "new product types" exceed the margin of dumping established 
for each coo perating exporter. Canada violated Article 6.8 and Annex II because it resorted to 
"facts available" in a case where the TPKM cooperating exporters have not refused to provide the 
necessary information.  
41. Canada contests all the claims put forward by TP KM in respect of CBSA 's treatment of new 
product models. Canada asserts that TPKM fundamentally misunderstands the operation of 
Canada 's prospective duty assessment system and ignores the practical need to apply facts 
available to product models that were not exported during the original period of investigation.  
42. Because the CBSA has no information pertaining to product models that were not exported 
during the initial period of investigation, it establishes their normal values on the basis of facts 
available, pursuant to a ministerial specification. Nevertheless, under Canada's prospective normal 
value system, exporters and importers have concrete options for obtaining specific normal values 
for new product models.  
43. Canada points out that when an impor ter believes that anti -dumping duties were improperly 
collected it can apply for a refund to ensure that final duty assessment is based on accurate 
normal values. TPKM 's claim that the application of the ministerial specification to new models will 
necessa rily result in duties that exceed the margin of dumping for cooperating exporters ignores 
that under a prospective duty system the initial collection of anti -dumping duties is not the final 
stage of duty assessment.  
44. The European Union understands that Canada operates a prospective duty assessment 
system, which is explicitly authorised under Article 9.3.2 of the Anti -Dumping Agreement. It is in 
the nature of such a system that anti -dumping duties assessed on a prospective basis are subject 
to final asses sment, so that the importer of the product is entitled to obtain, upon request, 
a prompt refund of any such duty paid in excess of the margin of dumping.  
45. Provided that all the obligations in Article 9.3.2 are complied with, the European Union 
regards t he operation of a prospective duty assessment system, and its application to new types 
or models of products subject to an anti -dumping investigation, as being consistent with the basic 
requirements of the Anti -Dumping Agreement.  
46. As regards the level o f the duty that may be collected at the time of initial assessment, the 
European Union is of the opinion that such level should not be excessive, in the sense that it 
should comply with the conditions laid down in Article 9.2.  
47. In addition, Annex II, p aragraph 5 of the Anti -Dumping Agreement suggests that the 
investigating authority should not be unduly strict in examining and deciding on the relevance of 
information already provided by cooperating exporters, in view of establishing prospective normal 
values for new types or models of the subject product.  
2.5 AS SUCH CLAIMS  
48. TPKM alleges that certain provisions of the Special Import Measures Act ( SIMA) and of 
the Special Import  Measures Regulations ( SIMR) are inconsistent as such with the 
Anti-Dumpin g Agreement and the GATT 1994.  WT/DS482/ R/Add.1  
 
- D-10 - 
 
  49. Canada differentiates between mandatory and discretionary acts, considering that an as 
such violation of an obligation in a covered agreement cannot occur when a Member has the 
discretion necessary to act consistently  with that obligation.  
50. In this context, the European Union recalls that the Appel late Body has stated that the 
"mandatory/ discretionary  distinction" is an analytical tool which may vary from case to case and 
such a distinction should not be applied in a me chanistic fashion.  
51. The European Union also notes that the Appellate Body has considered that "as such" 
challenges to a Member's legislation are "serious challenges", particularly as Members are 
presumed to have enacted their laws in good faith.  
52. With regard to the type of evidence that is required to be considered in order to establish 
the content and meaning  of municipal law, the Appellate  Body has clarified that, in some cases, 
the text of the relevant legislation may suffice, while in other cases  evidence beyond the text of 
the measure at issue may be required, related to the consistent application of the measure, 
pronouncements of domestic courts, and the writings of recognized scholars.  
53. Finally, the Appellate Body has found that the starting  point for an analysis when a measure 
is challenged "as such" must be the measure on its face. If the meaning and content of the 
measure are clear on its face, then the consistency of the measure as such can be assessed on 
that basis alone.  
3 CONCLUSIONS  
The European Union hopes that its contribution in the present case will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respective legal interpretations of 
the relevant provisions of the Anti -Dumping Agreement.  
 
 
 WT/DS482/ R/Add.1  
 
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  ANNEX D -3 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NORWAY  
I. ARTICLE 5.8 OF THE ANTI -DUMPING AGREEMENT: THE DETERMINATION OF 
DE MINIMIS  MARGINS OF DUMPING IS PRODUCER -SPECIFIC RATHER THAN 
COUNTRY -WIDE  
 
1. The Separate Customs Territory of Taiwan, Penghu, Ki nmen and Matsu (hereinafter "TPKM") 
submits that Canada ignored the individual margins of dumping calculated for each exporter.1 
Instead, it relied on the country -wide margins of dumping in order to determine whether the 
margins of dumping were de minimis . Accordingly, Canada did not terminate the investigation with 
respect to individual exporters whose definitive margins of dumping were found to be de minimis  if 
the corresponding country -wide margin of dumping was 2% or more. TPKM further submits that 
this entails a violation of Article 5.8 of the Anti -Dumping Agreement.2 
 
2. Canada submits that the obligation contained in Article 5.8 to terminate an investigation 
when the margin of dumping is de minimis  pertains to a country rather than the individual 
producer.3 The termination of an investigation is thus only required when the country -based 
margin of dumping is de minimis , according to Canada.  
 
3. Norway respectfully disagrees with the position that the requirement to immediately 
terminate an investigation  pertains to a country rather than the individual producer. Norway holds 
that the determination of de minimis  dumping is by nature producer -specific. The wording of 
Article 5.8, as well as the context and the consistency with the other Articles of the Anti -Dumping 
Agreement, clearly leads to this conclusion. Accordingly, as TPKM points out, the panel and the 
Appellate Body in Mexico – Anti-Dumping Measures on Rice reached this very same conclusion on 
this exact question.4  
4. The panel in Mexico – Anti-Dump ing Measures on Rice , found that the term "margin of 
dumping" in the Anti -Dumping Agreement refers to "the individual margin of dumping of an 
exporter or producer rather than to a country -wide margin of dumping".5 The panel found 
evidence for this in Artic le 6.10 of the Anti -Dumping Agreement, which stipulates that "the 
authorities shall, as a rule, determine an individual margin of dumping for each known exporter or 
producer concerned of the product under investigation". The exception to this rule also pro vides 
for the calculation of individual margins of dumping, and does not envisage the calculation of a 
country -wide margin. The panel then went on to exami ne the rest of the 
Anti-Dumping  Agreement, to see whether there were any provisions that would contra dict this 
finding. Upon completing this analysis, the panel ultimately concluded that "whenever the 
Agreement refers to the determination of a margin of dumping, it refers to the margin of dumping 
determined for the individual exporter."6  
5. The Appellate  Body not only confirmed this finding and expressly agreed with the Panel's 
reasoning, but also added that this conclusion was indeed in line with the use of the term "margins 
of dumping" in Article 2.4.2 of the Anti -Dumping Agreement, and the finding by t he Appellate Body 
in US – Hot-Rolled Steel  that this term referred to the individual margin of dumping of an 
producer.7 
                                                
1 First Written Submission  of TPKM, para. 53.  
2 First Written Submission of TPKM, para. 54.  
3 First Written Submission  of Canada, para. 46.  
4 Panel Re port, Mexico – Anti-Dumping Measures on Rice , para. 7.137, and Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , paras. 216 -217. 
5 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.137.  
6 Panel Report, Mexico – Anti-Dumping Measure s on Rice , para. 7.140.  
7 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 216 -217, referring to 
Appellate Body Report, US – Hot-Rolled Steel , para. 118.  WT/DS482/ R/Add.1  
 
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  6. Norway would like to underline that both the panel and the Appellate Body in Mexico – 
Anti-Dumping Measures on Rice  pointed out that although there is a single investigation (and not 
as many investigations as there are exporters), Article 5.8 simply requires the termination of the 
investigation in respect of  the individual exporter or producer for which a zero or de minimis  
margin is es tablished.8 Hence, contrary to what Canada argues, the ordinary meaning of the terms 
"investigation" and "termination", as well as the context provided by the rest of Article 5 in general 
and Article 5.8 in particular, do not imply that termination of an i nvestigation is required on a 
country -wide basis.9 Rather, the ordinary meaning of these terms and the context of the rest of 
Article 5 and Article 5.8 provide support for the producer -specific interpretation, as laid down by 
previous panels and the Appell ate Body.  
7. As for the immediate context of Article 5.8, the panel in Mexico – Anti-Dumping Measures on 
Rice found it relevant that the second sentence of the paragraph stipulates that negligibility, the 
other basis upon which immediate termination is req uired, is to be determined in respect of the 
volume of dumped imports "from a particular country".10 Thus, while the Anti -Dumping Agreement 
expressly stipulates that the negligibility test is to be examined on a country -wide basis, no such 
stipulation is ma de with regard to the margin of dumping. The panel concluded that this context 
further confirmed their view that the reference to the margin of dumping in Article 5.8 is a 
reference to the individual margin of dumping which is to be determined on an export er-specific 
basis. The Appellate Body confirmed the panel's reasoning on this point.11 Clearly, Canada's 
assertion that the panel and Appellate Body's findings with regards to Article 5.8 are undermined 
because they failed to properly consider the context o f Article 5 in general and Article 5.8 in 
particular is flawed.12 As set out above, this context was indeed a part of the analysis.  
8. Canada further argues that the context of Article 9.4 of the Anti -Dumping Agreement makes 
it clear that Article 5.8 requir es that an investigation need only be terminated when the 
country -based margin of dumping is de minimis .13 As Norway understands it, Canada argues that 
as Article  9.4 refers to the disregard ing of zero and de minimis  margins of dumping, this means 
that the investigation is not terminated with respect to these individual exporters. Therefore, this 
exclusion of de minimis  dumping margins confirms that an investigation is only terminated 
pursuant to Article 5.8 when the margin of dumping of a country is de mini mis. Norway disagrees 
with this line of reasoning.  
9. Article 9.4 contains special rules for the imposition of anti -dumping duties where the 
authorities have resorted to sampling of exporters. For the non -sampled producers, the 
anti-dumping duty imposed ma y not exceed the weighted -average dumping margin established for 
the sampled producers, with the exception of any de minimis  dumping margins. In Norway's view, 
this reference to the formula for calculation of anti -dumping duties when sampling is involved 
cannot be read as a reference to when an investigation is to be considered terminated in 
accordance with Article 5.8. There is nothing in the wording of Article 9.4 that suggests such a 
reading and it is indeed a completely different question.  
10. Contrary  to what Canada argues, an interpretation of Article 5.8 supporting termination of 
an investigation with respect to an individual exporter with a de minimis margin of dumping would 
not make parts of Article 9.4 redundant and therefore be at odds with the p rinciple of effectiveness 
in treaty interpretation. Quite the opposite – such an interpretation would be in line with the 
system of the Anti -Dumping Agreement. Where dumping margins are established as de minimis  or 
zero, the investigation is to be terminat ed with respect to  these individual producers, in line with 
Article 5.8, as established by the panel and the Appellate Body in Mexico – Anti-Dumping Measures 
on Rice .14 Hence, these margins of dumping should not be used as a basis for calculating 
anti-dumpi ng duties when sampling is involved either. A different interpretation could lead to a 
situation where anti -dumping duties are not calculated for the individual producers with zero or 
de minimis  margins of dumping, while these dumping margins could be used  in the calculation of 
                                                
8 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.140, and Appellat e Body Report, 
Mexico – Anti-Dumping Measures on Rice , para. 218.  
9 First Written Submission  of Canada, paras. 52, 63, 72 and 91.  
10 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.141.  
11 Appellate Body Report, Mexico – Anti-Dumping Measures o n Rice , para. 217.  
12 First Written Submission  of Canada, para. 88.  
13 First Written Submission  of Canada, paras. 76 -81. 
14 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.140, and Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , para. 218.  WT/DS482/ R/Add.1  
 
- D-13 - 
 
  duties for non -sampled producers. This would clearly be at odds with the system of the 
Anti-Dumping Agreement.  
11. Accordingly, it is Norway's view that the context of Article 9.4 does not support an 
interpretation where the obligat ion in Article 5.8 to terminate an investigation where the margin of 
dumping is de minimis  pertains to a country. On the contrary, it supports the interpretation where 
this duty pertains to the individual producer. The consistency of the system, and the nu merous 
references in Article 9.4 to the individual exporters and producers, clearly lead to this conclusion.  
12. Canada further argues that Article 3.3 of the Anti -Dumping Agreement provides relevant 
context for interpreting the term "margin of dumping" in  Article 5.8.15 Once again, the Appellate 
Body has previously addressed this issue and concluded that "Article 3.3 does not provide useful 
context for interpreting the term "margin of dumping" in Article 5.8".16 Norway cannot see that 
Canada offers any new a rguments that would render a different result. Furthermore, Canada's 
assertion that the Appellate Body in Mexico – Anti-Dumping Measures on Rice  endorsed the panel's 
analysis under Article 5.8 without referring to the panel's alleged ignorance of Article 3 .3, is clearly 
flawed.17 As evidenced by the Appellate Body analysis recited above, the Appellate Body expressly 
considered Article 3.3 in coming to its conclusion regarding Article 5.8. Canada's submission that 
the Appellate Body's finding is undermined du e to this "flaw" thus clearly has no ba sis in reality.  
13. Norway thus agrees with TPKM that Article 5.8 of the Anti -Dumping Agreement requires 
WTO Members to terminate anti -dumping investigations with respect to individual exporters that 
have a de minimis  margin of dumping. Where all investigated exporters are found to have 
de minimis  margins of dumping, this individual producer -specific determination will be extended to 
a country -wide basis.18 However, this does not change the producer -specific nature of t he 
determination, but rather follows as a logical consequence of this fact.  
II. THE ROLE OF PREVIOUS REPORTS  
 
14. As the question discussed above regarding Article 5.8 of the Anti -Dumping Agreement has 
largely been addressed by previous panels and the Appe llate Body, Norway would like to 
emphasise the role of previous reports in the WTO dispute settlement system. The very basis of 
the system is that reports are binding only on the parties to the dispute. The Appellate Body has 
however underlined "that adopt ed panel and Appellate Body reports create legitimate expectations 
among WTO Members and, therefore, should be taken into account where they are relevant to any 
dispute. Following the Appellate Body's conclusions in earlier disputes is not only appropriate , it is 
what would be expected from panels, especially where the issues are the same. This is also in line 
with a key objective of the dispute settlement system to provide security and predictability to the 
multilateral trading system."19 Norway would add t hat by following previous Appellate Body 
reports, panels also contribute to ensuring fewer disputes and preserve both the system and the 
systemic function of the Appellate Body.  
 
 
 
                                                
15 First Written Submission  of Canada, paras. 82 -83. 
16 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 220.  
17 First Written Submission  of Canada, para. 87.  
18 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.143.  
19 Appellate Body Report , United States – Continued Zeroing , para. 362.  WT/DS482/ R/Add.1  
 
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  ANNEX D -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE  UNITED ARAB EMIRATES  
I. ARTICLE 5.8 OF THE AD AGREEMENT: TREATMENT OF EXPORTERS WITH A 
DE MINIMIS  MARGIN OF DUMPING  
 
1. TPKM has set out in considerable detail how Canada violated Article 5.8 of the 
AD Agreement because it failed to immediately terminate the investigation with respect to those 
exporters whose final margins of dumping were found to be de minimis  within the meaning of that 
provision.1 The UAE shares the analysis provided by TPKM in its submission as it is justified by the 
language of the AD Agreement and confirmed  by previous Panels and the Appellate Body. Indeed, 
article 5.8 of the AD Agreement reads as follows. The Export price is intrinsically firm -specific and 
not country -wide margin.  
 
2. The UAE considers relevant in this respect that the fourth sentence of Ar ticle 5.8 of the 
AD Agreement supports the view that the de minimis  standard is to be applied on a firm -specific 
basis and not country wide basis. That sentence is drafted in such manner that the term "volume" 
refers to a country wide basis unlike the term  "de minimis  dumping margin" expressly involves 
firm-specific basis. The drafters of the AD Agreement expressly utilized different stipulations in 
Article 5.8 of the AD Agreement. The UAE believes that the construction and the express language 
of Article 5 .8 of the AD Agreement leave no discretion to the investigating authority other than as 
stated by Article 5.8 of the AD Agreement that there "shall be immediate termination in cases 
where the authorities determine that the margin of dumping is de minimis ". 
 
3. The UAE agrees with TPKM that previous panels have reached and confirmed TPKM 
assertions that there shall be immediate termination of the AD investigation with respect to 
exporters that have an individual de minimis  margin of dumping .2 
 
4. Additionall y, the UAE considers that the examination of other provisions of the 
AD Agreement provides that whenever the Agreement refers to the determination of a margin of 
dumping, it refers to the margin of dumping determined for the individual exporter.3 Therefore , 
the UAE agrees with TPKM that the term margin of dumping in the AD  Agreement is 
company -specific rather than country -wide.  
 
II. ARTICLES 3.1, 3.2, 3.4, 3.5 AND 3.7 OF THE AD AGREEMENT: TREATMENT OF 
NON-DUMPED IMPORTS IN THE INJURY AND CAUSATION DETERMINA TIONS  
 
5. TPKM contends that Canada violated Articles 3.1, 3.2, 3.4, 3.5 and 3.7 of the AD Agreement 
because it treated as "dumped imports" for the purposes of injury and causation analyses imports 
from exporters with a de minimis  margin of dumping.4  
 
6. The UAE agrees with TPKM 's arguments and analysis that by failing to exclude from the 
"dumped imports" the imports of exporters for which a de minimis dumping margin had been 
determined, the investigating authority acts inconsistently with Articles 3.1, 3. 2, 3.4, 3.5 and 3.7 
of the AD Agreement.5  
 
7. The UAE considers that there is nothing in Article 3 of the AD Agreement that provides for 
an investigating authority to include imports from exporters with a de minimis margin of dumping 
in the injury and cau sation determinations of dumped imports. Indeed, the UAE agrees with TPKM 
that the term dumped imports refers to all imports attributable to exporters for which a margin of 
dumping greater than de minimis  has been calculated and not imports of exporters fo r which a 
de minimis dumping margin had been determined.  
 
                                                
1 First Written Submission of TPKM,  paras. 43 -56. 
2 First Written Submission of TPKM, para. 52. 
3 First Written Submission of TPKM , para. 47. 
4 First Written Submission  of TPKM, para. 108. 
5 First Written Submission of TPKM, p ara. 133.  WT/DS482/ R/Add.1  
 
- D-15 - 
 
  8. In light of the text of the AD Agreement in respect of the term "dumped imports" and in 
accordance with the relevant Dispute Settlement Body's jurisprudence, the UAE considers that the 
term "dump ed imports " does not enable an investigating authority under any conditions to include 
imports that are found non dumped in the determinations of injury and causality of 
"dumped  imports" under Article 3 of the AD Agreement.  
 
9. The UAE considers that Arti cle 3.1 of the AD Agreement states a general and overarching 
principle that leaves no discretion for the investigating authority to have a different interpretation 
of the strict and clear meaning of this article. A different approach by including non -dumpe d 
imports in the injury and causation determinations does not meet the meaning of Article 3 of the 
AD Agreement nor corresponds to a determination made by an objective authority based on 
positive evidence. Neither reflects the intention of the drafters of the AD Agreement. The UAE 
considers that the language of Article 3.1 of the AD Agreement using the term "dumped imports " 
would have no purpose if the determination of injury and causation includes non-dumped  imports . 
 
 
 WT/DS482/ R/Add.1  
 
- D-16 - 
 
  ANNEX D -5 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE UNI TED STATES  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION  
I. INTRODUCTION  
1. In this submission, the United States will provide comments on certain legal issues involving 
the interpretation and application of Articles 5.8 and 6.8 of  the Agreement on Implementation of 
Article VI of the General Agreement on Tariffs and Trade 1994  ("AD Agreement "). 
II. CLAIMS REGARDING ARTICLE 5.8 OF THE AD AGREEMENT  
2. The United States, while taking no position on the merits of the factual allegations  made by 
both parties, agrees with The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
("TPKM ") that a proper interpretation of Article 5.8 of the AD Agreement requires that the 
investigating authority terminate an investigation with respect  to an exporter or producer for which 
an individual margin of dumping is determined as zero or de minimis .  
3. The term "margin of dumping " in Article 5.8 of the AD Agreement refers to the margin of 
dumping for an individual exporter or producer, rather th an the margin of dumping with respect to 
a country. Article 9.4 of the AD Agreement refers to the "margin of dumping " as "established with 
respect to the selected exporters or producers. " Nothing in the text of Article 5.8 suggests that the 
term "margin of  dumping " should be interpreted differently in Article 5.8 than in Article 9.4.  
4. The text of Article 5.8 of the AD Agreement provides additional contextual support for the 
view that an investigating authority must exclude individual exporters or producer s from the 
antidumping measure if their individual "margin of dumping " is zero or de minimis . 
The fourth  sentence of Article 5.8 states that the investigating authority 's analysis of negligible 
imports is normally done on a country -wide basis. In the absen ce of similar language in Article 5.8 
suggesting that the dumping analysis is to be done on a country -wide basis, the immediate 
context within Article 5.8 supports the conclusion that margin of dumping is to be determined on 
an individual, producer  -or exp orter-specific basis. The Appellate Body has supported this 
interpretation of Article 5.8.  
5. Following that interpretation, the United States agrees with TPKM that an investigating 
authority acts inconsistently with Article 5.8 of the AD Agreement when it  fails to terminate the 
investigation for exporters or producers which are found to have zero or de minimis margins, and 
instead relies on the results of the country -wide margin as a basis for including exporters with 
de minimis margins within the scope of  the definitive antidumping measure. Once a zero or 
de minimis margin has been determined for a particular producer or exporter, the obligation under 
Article 5.8 for a "termination in cases " necessarily entails that the investigating authority cannot 
subje ct such an individual exporter or producer to an antidumping order.  
6. Canada thus acted inconsistently with Article 5.8 of the AD Agreement to the extent that it 
calculated zero or de minimis margins of dumping for individual exporters, failed to termina te the 
investigation with respect to those exporters, and then issued a final dumping order covering those 
exporters.  
III. CLAIMS REGARDING ARTICLE 6.8 AND ANNEX II OF THE AD AGREEMENT  
7. Article 6.8 permits investigating authorities  to apply the facts available in cases where an 
interested party refuses access to, or otherwise does not provide, information that is necessary to 
the investigation within a reasonable period of time, or significantly impedes the investigation.  
Annex II f urther reflects that an investigating authority 's ability to rely on facts less favorable to 
the interests of a non -cooperating interested party is inherent in the authority 's role in conducting WT/DS482/ R/Add.1  
 
- D-17 - 
 
  an investigation in accordance with the AD Agreement. At the same time, the investigating 
authority must provide a sufficient basis for any application of the facts available.  
8. To the extent that TPKM is alleging that CBSA has insufficiently explained the basis for its 
application of the facts available, the suffi ciency of an investigating authority 's explanations is 
dealt with under the procedural obligations under Article 12 of the AD Agreement, and not 
Article  6.8. 
9. Accordingly, the Panel in this dispute should assess in accordance with Article 6.8 and 
Annex  II whether the other exporters refused access to, or otherwise did not provide information 
that was necessary to the investigation within a reasonable period, or significantly impeded the 
investigation by CBSA. The Panel also should assess whether CBSA prov ided a sufficient basis for 
its application of the facts available to the "all other exporters. " 
IV. AS SUCH CLAIMS REGARDING CERTAIN PROVISIONS OF SIMA  
10. In this dispute, the United States does not take a position on whether Sections 2(1), 30.1, 
35(1) a nd (2), 41(1), 42(1), 42(6), and 43(1) of the SIMA and Section 37(1) of the SIMR are, as 
such, inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 5.8 and 7.1(ii) of the AD Agreement. The 
Panel will need to assess whether the facts substantiate each party 's assertions as to whether the 
SIMA and SIMR measures "require " certain action or provide "discretion " to Canada 's investigating 
authority to take different action. To prevail on its claims, TPKM will need to demonstrate that 
SIMA and SIMR "requires " that Canada act in a WTO -inconsistent manner or precludes 
WTO-consistent action.  
EXECUTIVE SUMMARY OF U.S. THIRD -PARTY ORAL STATEMENT AT THE THIRD PARTY 
SESSION OF THE FIRST MEETING OF THE PANEL WITH THE PARTIES  
 
V. INTRODUCTION  
11. The United States appreciat es the opportunity to provide our views as a third party in this 
dispute. In our third -party submission, we presented views on a number of the issues pertaining to 
TPKM 's claims regarding the interpretation and application of Articles 5.8 and 6.8 of the 
AD Agreement. The United States will focus its remarks in our oral statement on two matters 
related to these claims pertaining to Articles 3.1 and 3.5 of the AD Agreement, which were not 
addressed in the U.S. third -party submission.  
VI. THE OBLIGATION OF PAN ELS TO FOLLOW PRIOR APPELLATE BODY FINDINGS  
12. Before addressing those issues, the United States first would like to respond to certain 
statements made by two third parties regarding the role of Appellate Body reports in the dispute 
settlement system. The  United States notes with concern that the European Union ( "EU") and 
Norway have asserted that panels are obligated to follow prior Appellate Body findings.1 
The United States understands these assertions to be without foundation and fundamentally 
incorrec t, and this proposition as inconsistent with the text of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes ("DSU") and the Agreement Establishing the 
World Trade Organization  ("WTO Agreement "). 
13. The text of the DSU and WTO A greement establish that in the WTO, adopted panel or 
Appellate Body legal findings are not "authoritative interpretations ".  To be sure, to the extent a 
panel finds prior Appellate Body or panel reasoning to be persuasive, a panel may rely on that 
reasonin g in conducting its own objective assessment of the matter. However, there is no 
provision in the DSU that grants a panel the authority not to assess objectively the legal issues in 
dispute, including by applying customary rules of interpretation to the te xt of the covered 
agreements, nor does the DSU require,  or permit, a panel to follow –without any examination – 
prior Appellate Body findings.  
                                                
1 EU's Third Party Submission , para. 10; Norway 's Third Party Submission , para. 13.  WT/DS482/ R/Add.1  
 
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  VII. CLAIMS REGARDING ARTICLES 3.1 AND 3.5 OF THE AD AGREEMENT  
14. Turning to TPKM 's claims under Articles 3.1 and  3.5 of the AD Agreement, the United States 
views those claims as lacking in legal merit. The United States finds no support in the text of the 
AD Agreement for TPKM 's argument that Article 3.5 of the AD Agreement required Canada to 
examine "the effects of  subsidies " applicable to the dumped imports as an "other known factor " 
that is somehow separate from the effects of the dumped imports.2  An investigating authority is 
not required to assess the effects of any subsidies on dumped imports separately from t he effects 
of the dumped imports themselves under Article 3.5 of the AD Agreement. Consequently, this 
Panel should not find that Canada acted inconsistently under Article 3.5 to the AD Agreement to 
the extent that the Canada Border Services Agency did not examine the effects of India 's alleged 
subsidies as an "other known factor " injuring the domestic industry.  
 
 
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2 TPKM 's First Written Submission , paras. 135, 145.