WORLD TRADE  
ORGANIZATION   
WT/DS414/AB/R 
18 October 2012 
 (12-5652) 
 Original:   English 
 
    
 
     
 
    
 
  
CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN ORIENTED 
FLAT-ROLLED ELECTRICAL STEEL FROM THE UNITED STATES 
 
  
AB-2012-4 
 
 
 
    
 
    
Report of the Appellate Body  WT/DS414/AB/R 
 Page i 
 
 
I.  Introduction .................................................................................................................. ............... 1  
II.  Arguments of the Participants and the Third Participants .......................................................... 5  
A.  Claims of Error by China – Appellant ........................................................................... 5  
1.  Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  – Interpretation and Application ............................................ 5  
(a)  Interpretation of Article 3.2 of the Anti-Dumping Agreement  
and Article 15.2 of the SCM Agreement  .............................................. 6  
(b)  Application of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  ................................................... 10  
(c)  Article 11 of the DSU ........................................................................ 15  
2.  Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement  – Disclosure of Essential Facts ............................................ 16  
3.  Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement  – Public Notice Requirements ............................................. 18  
B.  Arguments of the United States – Appellee ................................................................. 20  
1.  Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  – Interpretation and Application .......................................... 20  
(a)  Interpretation of Article 3.2 of the Anti-Dumping Agreement 
and Article 15.2 of the SCM Agreement  ............................................ 20  
(b)  Application of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement  ................................................... 25  
(c)  Article 11 of the DSU ........................................................................ 29  
2.  Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement  – Disclosure of Essential Facts ............................................ 31  
3.  Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement  – Public Notice Requirements ............................................. 32  
C.  Arguments of the Third Participants ............................................................................ 33  
1.  European Union .............................................................................................. 33  
2.  Japan ............................................................................................................... 37  
3.  Korea ............................................................................................................... 39  
4.  Saudi Arabia ................................................................................................... 40  
III.  Issues Raised in This Appeal .................................................................................................. .. 43 
IV.  The Scope of China's Appeal ................................................................................................... . 44 
V.  Interpretation of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  ........................................................................................................................ 46  
A.  The Panel's Findings .................................................................................................... 46  
B.  Interpretation of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 
of the SCM Agreement ................................................................................................ 48  
1.  The Framework for an Injury Determination Provided by Article 3 of 
the Anti-Dumping Agreement  and Article 15 of the SCM Agreement  ............ 49  
2.  The Obligation to "Consider" ......................................................................... 51  
3.  The Obligation to Consider "Whether the Effect of Such Imports" Is to 
Depress Prices or Prevent Price Increases ...................................................... 52  
(a)  The Text of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  ................................................... 53  
(b)  The Context of Article 3.2 of the Anti-Dumping Agreement  
and Article 15.2 of the SCM Agreement  ............................................ 56  WT/DS414/AB/R 
Page ii  
 
(c)  The Objective of Article 3 of the Anti-Dumping Agreement  and 
Article 15 of the SCM Agreement  ...................................................... 60  
4.  Summary of the Interpretation of Article 3.2 of the Anti-Dumping 
Agreement  and Article 15.2 of the SCM Agreement  ....................................... 61  
C.  The Panel's Interpretation of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement ............................................................................ 61  
D.  Conclusion ................................................................................................................... 68 
VI.  The Panel's Assessment of MOFCOM 's Price Effects Analysis ............................................... 68  
A.  The Panel's Findings .................................................................................................... 68  
B.  Assessment of the Pa nel's Analysis ............................................................................. 71  
1.  The "Low Price" of Subject Imports ............................................................... 74  
2.  Comparisons of AUV Data to Establish "Low Price" .................................... 78  
3.  Pricing Policy of Subject Imports ................................................................... 81  
4.  Parallel Trends of Subject Im port and Domestic Prices ................................. 82  
5.  Increases in Subject Import Volume ............................................................... 83  
6.  Overall Assessment of China's Application Claim ......................................... 87  
7.  Overall Assessment of China's Article 11 Claim ............................................ 89  
C.  Conclusion ................................................................................................................... 90 
VII. Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement  ............. 90  
A.  The Panel's Findings .................................................................................................... 90  
B.  Interpretation ................................................................................................................  93 
C.  Assessment of the Panel's Analysis under Article 6.9 of the Anti-Dumping 
Agreement and Article 12.8 of the SCM Agreement ................................................... 95  
VIII. Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement  ........ 99 
A.  The Panel's Findings .................................................................................................... 99  
B.  Interpretation .............................................................................................................. 1 00 
C.  Assessment of the Panel's Analysis under Article 12.2.2 of the Anti-Dumping 
Agreement and Article 22.5 of the SCM Agreement ................................................. 102  
IX.  Findings and Conclusions ...................................................................................................... . 105 
 
 ANNEX I Notification of an Appeal by China, WT/DS414/5 
 
  WT/DS414/AB/R 
 Page iii 
 
 
CASES CITED IN THIS REPORT 
 
Short Title Full case title and citation 
Chile – Price Band System 
(Article 21.5 – Argentina)  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina , WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, 
513 
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain 
Oriented Flat-Rolled Electrical Steel from the United States , WT/DS414/R, 
circulated to WTO Members 15 June 2012 
China – Publications and 
Audiovisual Products Appellate Body Report, China –  Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment Products , WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, 3 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 
2003:III, 965  
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, 
adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157 
EC – Countervailing Measures on DRAM Chips Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R, adopted 
3 August 2005, DSR 2005:XVIII, 8671 
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures 
on Certain Iron or Steel Fasteners from China , WT/DS397/R and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB/R 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, 2613 
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar 
from Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain 
Footwear from China , WT/DS405/R, adopted 22 February 2012 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted  
17 December 2007, DSR 2007:VII, 2703 
Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper 
from Indonesia , WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII, 
10637 WT/DS414/AB/R 
Page iv  
 
Short Title Full case title and citation 
Korea – Commercial Vessels Panel Report, Korea – Measures Affecting Trade in Commercial Vessels , 
WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, 2749 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted  
20 December 2005, DSR 2005:XXII, 10853 
Mexico – Olive Oil Panel Report, Mexico – Definitive Counterva iling Measures on Olive Oil 
from the European Communities , WT/DS341/R, adopted 21 October 2008, 
DSR 2008:IX, 3179 
Mexico – Steel Pipes and Tubes Panel Report, Mexico – Anti-Dumping Duties on  Steel Pipes and Tubes from 
Guatemala , WT/DS331/R, adopted 24 July 2007, DSR 2007:IV, 1207 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/R, adopted 5 April 2001, as modified by Appellate Body Report WT/DS122/AB/R, DSR 2001:VII, 2741 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, DSR 
2009:III, 1291 
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3 
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131 
US – Countervailing Duty 
Investigation on DRAMS Panel Report, United States – Countervailing Duty Investigation on Dynamic 
Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report 
WT/DS296/AB/R, DSR 2005:XVII, 8243 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 
2001, DSR 2001:X, 4697 
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 4051 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton  
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DSR 2008:III, 809  WT/DS414/AB/R 
 Page v 
 
 
Short Title Full case title and citation 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT /DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 
2003:VII, 3117 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 WT/DS414/AB/R 
Page vi  
 
ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
AK Steel AK Steel Corporation 
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement 
on Tariffs and Trade 1994 
ATI ATI Allegheny Ludlum Corporation 
AUVs average unit values 
Baosteel Baosteel Group Corporation 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
Final Determination MOFCOM Announcement No. 21 [2010] (10 April 2010) and its 
annexes (English translation as contained in Panel Exhibit CHN-16) 
Final Injury Disclosure MOFCOM Essential Facts Under Consideration Which Form the 
Basis of the Determination on Indus try Injury Investigation of the 
Antidumping Investigation of GOES from the US and Russia and the 
Anti-subsidy Investigation of GOES from the US, Shang Diao Cha 
Han (2010) No. 67 (5 March 2010) (English translation as contained in Panel Exhibit CHN-29) 
GATT 1994 General Agreement on Tariffs and Trade 1994 
GOES grain oriented flat-rolled electrical steel 
MOFCOM Ministry of Commerce of the People's Republic of China 
Panel Report Panel Report, China – Countervailing and Anti-Dumping Duties on 
Grain Oriented Flat-Rolled Electrical Steel from the United States , 
WT/DS414/R 
Preliminary Determination MOFCOM Annou ncement No. 99 [2009] (10 December 2009) 
(English translation as contained in Panel Exhibit CHN-17) 
SCM Agreement Agreement on Subsidies and Countervailing Measures 
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, 1155 UNTS 331;  8 International Legal Materials 679.  
WISCO Wuhan Iron and Steel (Group) Corporation 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/6, 
16 August 2010 
WTO World Trade Organization 
   WT/DS414/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
China – Countervailing and Anti-Dumping 
Duties on Grain Oriented  Flat-Rolled Electrical 
Steel from the United States 
 China, Appellant 
United States, Appellee 
 
Argentina, Third Participant  
European Union, Third Participant  
Honduras, Third Participant  
India, Third Participant 
Japan, Third Participant  
Korea, Third Participant  
Saudi Arabia, Third Participant  
Viet Nam, Third Participant  
  AB-2012-4 
  Present:  
 Unterhalter, Presiding Member  
 Van den Bossche, Member  Zhang, Member  
  
I. Introduction 
1. China appeals certain issues of law and legal in terpretations developed in the Panel Report, 
China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel 
from the United States
1 (the "Panel Report").  The Panel was established on 25 March 2011 to 
consider a complaint by the United States con cerning China's measures imposing anti-dumping and 
countervailing duties on grain oriented flat-rolled electrical steel ("GOES") from the United States, as 
set forth in the Ministry of Commerce of the People's Republic of China ("MOFCOM") 
Announcement No. 21 of 10 April 2010 and its annexes2 (the "Final Determination"). 
2. The anti-dumping and countervailing duty investigat ions at issue in this dispute were initiated 
as a result of an application filed by two Chin ese steel producers, namely, Wuhan Iron and Steel 
(Group) Corporation ("WISCO") and Baosteel Group Corporation ("Baosteel").  The applicants 
alleged that 27 US federal and state laws provide d countervailable subsidies to producers of GOES in 
the United States.3  Further, the applicants alleged that dumped and subsidized imports of GOES from 
                                                      
1WT/DS414/R, 15 June 2012. 
2MOFCOM Announcement No. 21 [2010] (10 April 2010) and its annexes (English translation as 
contained in Panel Exhibit CHN-16).  We note that the United States also submitted an English translation of 
MOFCOM's final determination as part of Panel Exhibit US-28.  However, throughout its Report, the Panel 
cited the exhibit submitted by China (Panel Exhibit CH N-16) when referring to the Final Determination.  
Similarly, in this Report, we refer to the Englis h translation as contained in Panel Exhibit CHN-16. 
3Panel Report, para. 2.2.  On 20 July 2009, the applicants filed an additional application challenging 
alleged subsidies provided under a further 10 US federal and state laws. ( Ibid.) WT/DS414/AB/R 
Page 2  
 
the United States, and dumped imports of GOES from Russia, caused, and threatened to cause, injury 
to the Chinese domestic industry.  MOFCOM in itiated the anti-dumping and countervailing duty 
investigations at issue on 1 June 2009 with respect to imports of GOES from the United States.
4  Two 
exporters/producers of GOES in the United Stat es—AK Steel Corporation ("AK Steel") and ATI 
Allegheny Ludlum Corporation ("ATI")—registered  as respondents in both investigations.  The 
period of anti-dumping and countervailing duty inves tigations was from 1 March 2008 to 28 February 
2009, and the period of injury investigati on was from 1 January 2006 to 31 March 2009.5 
3. On 10 April 2010, MOFCOM issued its Fi nal Determination.  MOFCOM calculated 
ad valorem  subsidy rates of 11.7% for AK Steel, 12% fo r ATI, and 44.6% for "all others", namely, 
US exporters/producers that did not register for the investigations and were unknown to MOFCOM.  
MOFCOM calculated a dumping margin of 7.8% for AK Steel, 19.9% for ATI, and 64.8% for "all 
others".6  Moreover, MOFCOM conducted a cumulative assessment of injury and causation, and 
collectively took into account GOES imports from both Russia and the United States.7  In the course 
of its injury analysis, "MOFCOM found that the ef fect of subject imports was to 'significantly 
depress[] and suppress[] the price of domestic like products.'"8  MOFCOM also assessed relevant 
economic indicators relating to the state of the Chinese domestic industry.  On the basis of its 
examination, MOFCOM found that there was a causal link between, on the one hand, the dumped imports of GOES from Russia and the dumped and subsidized imports of GOES from the 
United States, and, on the other hand, the mate rial injury suffered by the domestic industry.
9  On this 
basis, MOFCOM imposed anti-dumping and counter vailing duties on GOES from the United States at 
the above-mentioned rates.10 
4. Before the Panel, the United States challenged various aspects of MOFCOM's investigations 
and Final Determination.  Specifically, the United States challenged MOFCOM's decision to initiate 
the countervailing duty investigation with respect  to 11 US federal and state programmes under 
                                                      
4Panel Report, para. 2.2.  The countervailing duty in vestigation was initiated with respect to 28 of the 
37 US federal and state laws referred to in the application and additional application.  On 1 June 2009, 
MOFCOM also initiated an anti-dumping inves tigation on imports of GOES from Russia. ( Ibid.) 
5United States' first written submission to the Pane l, para. 17 (referring to MOFCOM Initiation of 
Anti-subsidy Investigation on Imported Grain Oriented Fl at-rolled Electrical Steel Originating in the US, Public 
Notice [2009] No. 41 (1 June 2009) (Panel Exhibit US-6 (English version)), p. 2;  and MOFCOM Initiation of Antidumping Investigation on Imported Grain Oriented Flat-rolled Electrical Steel Originating in the US and 
Russia, Public Notice [2009] No. 40 (1 June 2009) (Panel Exhibit US-7 (English version)), p. 2). 
6Panel Report, paras. 2.5, 7.370, and 7.371. 
7Panel Report, para. 7.475. 
8Panel Report, para. 7.475 (quoting Final Determination (Panel Exhibit CHN-16 (English version)), 
p. 59).  The Panel found that MOFCOM did not make a finding of significant price undercutting. ( Ibid., 
para. 7.553) 
9Panel Report, paras. 2.5 and 7.598. 
10Pursuant to the Final Determination, MOFCOM also imposed anti-dumping duties on imports of 
GOES from Russia. (Final Determination (Panel Exhibit CH N-16 (English version)), p. 3)  These duties are not 
at issue in this dispute.  WT/DS414/AB/R 
 Page 3 
 
 
Articles 11.2 and 11.3 of the Agreement on Subsidies and Countervailing Measures  (the 
"SCM Agreement ").11  Furthermore, the United States challenged MOFCOM's failure to require the 
applicants to provide adequate non-confiden tial summaries of confid ential information under 
Article 6.5.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994  (the " Anti-Dumping Agreement ") and Article 12.4.1 of the SCM Agreement .12  The 
United States also challenged MOFCOM's use of "fact s available" to calculate the subsidy rates for 
the two known US respondents, as well as the calculation of the "all others" anti-dumping and 
countervailing duty rates, under Article 6.8 of , and paragraph 1 of Annex II to, the Anti-Dumping 
Agreement , Article VI:2 of the General Agreement on Ta riffs and Trade 1994  (the "GATT 1994"), 
and Article 12.7 of the SCM Agreement .13  In addition, the United States challenged MOFCOM's 
findings of price effects under Articles 3.1 and 3.2 of the Anti-Dumping Agreement  and Articles 15.1 
and 15.2 of the SCM Agreement14, as well as MOFCOM's causation analysis under Articles 3.1 
and 3.5 of the Anti-Dumping Agreement  and Articles 15.1 and 15.5 of the SCM Agreement .15  Finally, 
the United States challenged as insufficient MO FCOM's disclosure of the essential facts under 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement16, as well as 
MOFCOM's public notice of its preliminary and fi nal determinations under Article 12.2.2 of the 
Anti-Dumping Agreement  and Articles 22.3 and 22.5 of the SCM Agreement .17 
5. The Panel Report was circulated to Members of the World Trade Organization (the "WTO") 
on 15 June 2012.  In its Report, the Panel found that China acted inconsistently with: 
(a) Article 11.3 of the SCM Agreement , on the basis that MOFCOM initiated 
countervailing duty investigations into each  of the 11 programmes challenged before 
the Panel by the United States, without sufficient evidence to justify this; 
(b) Article 12.4.1 of the SCM Agreement  and Article 6.5.1 of the Anti-Dumping 
Agreement , on the basis that MOFCOM did not require the applicants to furnish 
non-confidential summaries in sufficient de tail to permit a reasonable understanding 
of the substance of the inform ation submitted in confidence; 
                                                      
11Panel Report, para. 7.11. 
12Panel Report, para. 7.151.  
13Panel Report, paras. 7.227, 7.372, 7.428, and 7.436.  
14Panel Report, para. 7.476.  
15Panel Report, para. 7.593.  
16Panel Report, paras. 7.398, 7.456, 7.557, and 7.641.  
17Panel Report, paras. 7.315, 7.342, 7.415, 7.469, 7.578, and 7.664.  WT/DS414/AB/R 
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(c) Article 12.7 of the SCM Agreement , in connection with MOFCOM's use of a 100% 
utilization rate in calculating the subsid y rates for the two known respondents under 
certain procurement programmes; 
(d) Articles 6.8, 6.9, 12.2, 12.2.2 of, and paragraph 1 of Annex II to, the Anti-Dumping 
Agreement , in connection with the resort to fact s available to calculate the "all others" 
dumping margin for unknown exporters and due to deficiencies in the related 
essential facts disclosure and pub lic notice and explanation; 
(e) Articles 12.7, 12.8, 22.3, and 22.5 of the SCM Agreement , in connection with the 
resort to facts available to calculate the "all others" subsidy rate for unknown 
exporters and due to deficiencies in the re lated essential facts disclosure and public 
notice and explanation; 
(f) Articles 15.1, 15.2, 12.8, and 22.5 of the SCM Agreement  and Articles 3.1, 3.2, 6.9, 
and 12.2.2 of the Anti-Dumping Agreement , in connection with MOFCOM's findings 
regarding the price effects of subject impor ts and due to deficiencies in the related 
essential facts disclosure and pub lic notice and explanation; 
(g) Articles 15.1, 15.5, 12.8, and 22.5 of the SCM Agreement  and Articles 3.1, 3.5, 6.9, 
and 12.2.2 of the Anti-Dumping Agreement , in connection with MOFCOM's finding 
that subject imports caused material injury to the domestic industry and due to deficiencies in the related essential facts discl osure and public noti ce and explanation;  
and 
(h) Article 10 of the SCM Agreement  and Article 1 of the Anti-Dumping Agreement , as a 
consequence of the foregoing vi olations of these Agreements.
18 
6. The Panel also found that the United States  had not established that China had acted 
inconsistently with: 
(a) Article 12.2.2 of the Anti-Dumping Agreement , by not including in a public notice or 
separate report the data and calculations u sed to determine the respondent companies' 
final dumping margins; 
(b) Article 12.7 of the SCM Agreement , due to MOFCOM's resort to facts available to 
calculate the subsidy rates for the two known respondents under certain procurement 
programmes;  and 
                                                      
18Panel Report, para. 8.1(a)-(h).   WT/DS414/AB/R 
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(c) Article 22.3 of the SCM Agreement , in connection with MOFCOM's explanation of 
the findings and conclusions supporting its determination that the bidding process 
under the United States Government procurem ent statutes at issue did not result in 
prices that reflected market conditions.19 
7. On 20 July 2012, China notified the Dispute Settle ment Body (the "DSB") of its intention to 
appeal certain issues of law covered in the Panel Re port and certain legal inte rpretations developed by 
the Panel, pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  (the "DSU"), and filed a Notice of Appeal20 and an appellant's submission, 
pursuant to Rules 20 and 21, respectively, of the Working Procedures for Appellate Review21 (the 
"Working Procedures ").  On 7 August 2012, the United States filed an appellee's submission.22  On 
10 August 2012, the European Union, Japan, Korea, and Saudi Arabia each filed a third participant's 
submission.23  Each of the remaining third participants s ubsequently notified its intention to appear at 
the oral hearing.24  The oral hearing in this appeal was held on 27 and 28 August 2012.  The 
participants and four of the third participants (t he European Union, Japan, Korea, and Saudi Arabia) 
made oral statements.  The participants and thir d participants responded to questions posed by the 
Members of the Appellate Body Division hearing the appeal. 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by China – Appellant 
1. Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  – Interpretation and Application  
8. China appeals the Panel's interpretation and application of Article 3.2 of the Anti-Dumping 
Agreement  and Article 15.2 of the SCM Agreement .  China argues that the Panel erred in interpreting 
the phrase "the effect of" in these provisions to mean that an investigating au thority must demonstrate 
that adverse price effects were caused by dumped and/or subsidized imports.25  Moreover, China 
contends that the Panel erred in its application of Articles 3.2 and 15.2 by applying the obligations 
                                                      
19Panel Report, para. 8.2(a)-(c).  The Panel did not consider it necessary to make findings with regard 
to the following claims:  (a) under Article 11.2 of the SCM Agreement , with respect to the initiation of the 
countervailing duty investigations at issue;  and (b) under Article VI:2 of the GATT 1994, with respect to the 
imposition of an "all others" anti-dumping duty greater in amount than the appropriate dumping margin. ( Ibid., 
paras. 7.50, 7.432, and 8.3(a)-(b)) 
20WT/DS414/5 (attached as Annex I to this Report).   
21WT/AB/WP/6, 16 August 2010. 
22Pursuant to Rule 22 of the Working Procedures . 
23Pursuant to Rule 24(1) of the Working Procedures . 
24Pursuant to Rule 24(4) of the Working Procedures .  Notification was received from Argentina, 
Honduras, and India on 13 August 2012, and from Viet Nam on 15 August 2012. 
25China's Notice of Appeal, para. 5 (referring to Panel Report, para. 7.520). WT/DS414/AB/R 
Page 6  
 
contained therein to findings not made by  MOFCOM, and by imposing obligations on an 
investigating authority that do not exist in these provisions.
26 
(a) Interpretation of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement 
9. At the outset, China submits that Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 
of the SCM Agreement  are "chapeau" provisions that place the i ssue of "the effect of the [dumped or 
subsidized] imports on prices" in th e broader context of Articles 3 and 15, respectively.  Articles 3.1 
and 15.1 impose the broad and overarching obligation on an authority to rely on "positive evidence" 
and conduct an "objective examination" in its injury  determination.  However, these provisions "say 
nothing about the nature of the specific obligations to consider adverse price effects" of the subject 
imports.27  Rather, the obligations on an investigating authority with regard to price effects are 
enumerated in Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , 
and these provisions provide "all of the substantive content" of an authority's obligation in this 
regard.28 
10. China maintains that Articles 3. 2 and 15.2 impose "only a limited obligation on authorities" to 
"consider" the price effects of the subject imports, that  is, to "examine;  look at attentively;  [and] 
think carefully" about such price effects.29  China finds support for its position in findings by panels in 
prior disputes that Article 3.2 requires an investigatin g authority to consider whether or not any of the 
price effects described therein are present in a gi ven investigation, and does not require that an 
explicit determination be made in this regard.30  China argues that, had Members intended to impose a 
more specific or demanding obliga tion—for example, to draw conclusions or to provide specific 
analysis—they would have used terms such as "eva luate" or "demonstrate" that appear in other 
paragraphs of Articles 3 and 15. 
11. China further contends that Articles 3.2 and 15 .2 do not use any language that suggests the 
need to establish a causal link between price effects and subject imports.  In China's view, the term 
"the effect of" simply means the consequence of  a certain cause, and focuses on the "consequence" 
rather than the cause.  This is confirmed by the u se of the word "effect" as a noun, rather than as a 
verb, because the element of causation becomes relevant  only when the word is used as a verb.  Used 
as a verb, "effect" means "to bring about".  In this  respect, China contrasts the noun "effect" used in 
                                                      
26China's Notice of Appeal, para. 6 (referring to Panel Report, paras. 7.523-7.536). 
27China's appellant's submission, para. 49. 
28China's appellant's submission, para. 50. 
29China's appellant's submission para. 51 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 485). 
30China's appellant's submission, paras. 53 and 54 (referring to Panel Report, Thailand – H-Beams , 
para. 7.161;  and Panel Report, Korea – Certain Paper , para. 7.242).  WT/DS414/AB/R 
 Page 7 
 
 
Articles 3.2 and 15.2 with the verb "affect" used in  Articles 3.4 and 15.4.  China alleges that the noun 
"effect" is concerned with the present situation, but  "does not imply a causal relationship between the 
effect itself and any particular prior event".31  In contrast, the verb "affect", which means "to have an 
effect on", does not refer to the status quo itself, but rather is concerned with how the status quo came 
to be.  "Affect" thus "requires a heightened showing … that draws a connection between" a prior 
event and the consequence.32 
12. Moreover, China argues that Articles 3.2 and 15.2 do not prescribe any specific methodology 
for evaluating the three price effects listed in these provisions, that is, significant price undercutting, 
price depression, and price suppression.  Instead, an investigating authority's assessment of these price 
effects is guided only by the broad principles of  Articles 3.1 and 15.1 to base its assessment on 
positive evidence and an objective examination.33  Within the bounds of these principles, an authority 
can conduct the price effects analysis "in a manner of its choosing" and is  not required to make 
specific findings on the evidence.34 
13. Furthermore, China highlights that Articles 3. 2 and 15.2 use the conjunction "or" to indicate 
that the three price effects are alternatives, and that "adverse price effects can be discerned through 
either a comparison of domestic and subject import prices, or a comparison of domestic price trends 
themselves in connection with cost trends."35  China maintains that several panels in prior disputes 
have confirmed that a consideration of price unde rcutting is not a required step in the analysis.36  
China further alleges that the te rm "otherwise" in Articles 3.2 and 15.2 creates a distinction between 
price undercutting, on the one hand, and price de pression and suppression, on the other hand, and 
"reflects the market reality that price suppression/price depression is not contingent upon price undercutting".
37  Finally, China emphasizes that the last sentence of Articles 3.2 and 15.2 expressly 
confirms that no single factor "can necessarily give decisive guidance", and that this sentence has a 
"limiting effect" on the weight accorded to each of the considerations enumerated in the first two 
sentences.38 
14. Turning to the context of the term "the effect of" in Articles 3.2 and 15.2, China submits that 
various provisions under Articles 3 and 15 expressl y distinguish between the "existence" of price 
                                                      
31China's appellant's submission, para. 60. 
32China's appellant's submission, para. 99. 
33China's appellant's submission, paras. 61-63 (referring to Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , para. 204). 
34China's appellant's submission, para. 63. 
35China's appellant's submission, para. 64. 
36China's appellant's submission, para. 65 (referring to Panel Report, US – Countervailing Duty 
Investigation on DRAMS , para. 7.265;  Panel Report, Korea – Certain Paper , para. 7.242;  Panel Report, 
EC – Salmon (Norway) , para. 7.638;  and Panel Report, EC – Fasteners (China) , para. 7.325). 
37China's appellant's submission, para. 67. 
38China's appellant's submission, para. 68.  WT/DS414/AB/R 
Page 8  
 
effects and the "consequent impact" of the subject imports.
39  China notes that, under Articles 3.1 
and 15.1, an authority is required to examine, on the one hand, the volume of the subject imports and 
the effects of such imports on domestic prices, and, on the other hand, the consequent impact of such 
imports on the domestic industry.  C onsistent with this distinction, Articles 3.2 and 15.2 elaborate on 
the elements in the examination of the import volume and the price effects.  Articles 3.4 and 15.4 shift the focus to a broader consideration regarding th e impact of the subject imports on the domestic 
industry.  Articles 3.5 and 15.5 then further shift the focus to the requirement of finding a causal 
relationship between subject imports and injury to  the domestic industry.  Thus, China argues, the 
"effects" are not themselves the results of a causatio n determination but, rather, serve as the basis for 
the causation determination required under Articles 3. 5 and 15.5.  In China's view, this reflects the 
"fundamental difference" between Articles 3.2 and 15. 2, on the one hand, and Articles 3.5 and 15.5, 
on the other hand.
40  Specifically, the former provisions do not require that there be a causal 
relationship between the effects of subject imports and subject imports themselves.  In contrast, the 
latter provisions require the authorities to perform a causation analysis that involves "isolating the 
injury caused" by the subject imports from the injury caused by other factors.41  China further asserts 
that the obligation to "consider" the price effect s merely requires an authority to "think carefully" 
about the existence of price undercutting, price depression, or price suppression.42  In contrast, the 
obligation to "demonstrate" a causal link requires a more rigorous analysis.  Thus, China emphasizes that the distinct obligations under Articles 3.5 and 15.5 should not be grafted onto Articles 3.2 
and 15.2. 
15. Moreover, China contends that the object and purpose of the Anti-Dumping Agreement  and 
the SCM Agreement  is to strike a balance between setting fort h obligations an authority must follow in 
imposing anti-dumping and countervailing measures and leaving the authority with discretion as to 
how to implement these obligations.  China further submits that the object and purpose of a particular 
provision should also be taken into account "if doi ng so assists the interpreter in determining the 
treaty's object and purpose on the whole".
43  As regards Articles 3.2 and 15.2, China argues that their 
object and purpose is "to identify certain specifi c volume and price circumstances in the domestic 
market under investigation", but to leave an authority with broad discretion in ascertaining the 
existence of such circumstances.44  Therefore, interpreting Articles 3.2 and 15.2 as setting forth more 
                                                      
39China's appellant's submission, para. 73. 
40China's appellant's submission, para. 77. 
41China's appellant's submission, para. 77. 
42China's appellant's submission, para. 78. 
43China's appellant's submission, para. 82 (quoting Appellate Body Report, EC – Chicken Cuts , 
para. 238). 
44China's appellant's submission, para. 84.  WT/DS414/AB/R 
 Page 9 
 
 
limited obligations properly respects the object and purpose of the Anti-Dumping Agreement  and the 
SCM Agreement  of leaving authorities with discretion as to how to ascertain price effects. 
16. China criticizes the Panel for concluding that "merely showing the existence of significant 
price depression [and suppression] does not suffice for purposes of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement", and that "[a]n authority must also show that 
such price depression [and suppression] is an effect of the subject imports."
45  China asserts that, in so 
finding, the Panel appeared to read into these pr ovisions a requirement that MOFCOM demonstrate 
that subject imports "affected" domestic prices, even though these provisions do not contain such a requirement.
46  Moreover, the Panel ignored the term "cons ider" in Articles 3.2 and 15.2 and, instead, 
created an obligation to "demonstrate" or "show" a causal link between the subject imports and the 
price effects, despite the absence of such an obligation under these provisions.47  In China's view, the 
Panel's interpretive errors are rev ealed by the fact that, in examin ing MOFCOM's analysis regarding 
whether price suppression was an effect of th e subject imports, the Panel analyzed whether 
MOFCOM sufficiently isolated the subject imports as the cause of the price suppression.  Specifically, the Panel found that MOFCOM's anal ysis was not based on positive evidence and did 
not involve an objective examination because, on the basis of the evidence before it, MOFCOM could 
not have found that the subject imports we re "the only reason" for the price suppression.
48 
17. Moreover, China argues, the Panel's interpre tation does not take into account the use of 
different terms in different paragr aphs of Articles 3 and 15, includi ng the terms "effect", "affecting", 
and "causal relationship".  In this respect, Ch ina refers to the statement of the panel in Egypt – Steel 
Rebar  that interpreting Article 3.4 of the Anti-Dumping Agreement  as requiring a causation and 
non-attribution analysis would make Article 3.5 "redundant".49  Similarly, China argues that, under 
the Panel's interpretation, the obligations set fo rth in Articles 3.5 and 15.5 are duplicated in 
Articles 3.2 and 15.2, whereby investigating au thorities effectively must determine a causal 
relationship between subject imports and price eff ects under Articles 3.2 and 15.2.  In China's view, 
the Panel's interpretation of Articles 3.2 and 15.2 would make Articles 3.5 and 15.5 redundant. 
18. Finally, China contends that the Panel miscons trued the guidance provided by the panel report 
in EC – Countervailing Measures on DRAM Chips .  The panel in that dispute rejected the 
complainant's claim that the investigating author ity erred by failing to take into account "other 
                                                      
45China's appellant's submission, para. 90 and footnote 49 to para. 100 (quoting Panel Report, 
para. 7.520). 
46China's appellant's submission, para. 92 (referring to Panel Report, paras. 7.521 and 7.522). 
47China's appellant's submission, para. 93 (referring to Panel Report, paras. 7.521 and 7.522) and 
para. 104 (referring to Panel Report, para. 7.520). 
48China's appellant's submission, para. 95 (quoting Panel Report, para. 7.550). 
49China's appellant's submission, para. 101 (quoting Panel Report, Egypt – Steel Rebar , para. 7.64). WT/DS414/AB/R 
Page 10  
 
factors" that affected domestic prices in analyzing the price effects mentioned in Article 15.2 of the 
SCM Agreement .  The panel found that Article 15.2 did not require the authority to differentiate 
among various causes of the price effects, noting that  such an examination was part of the causation 
analysis under Article 15.5 of the SCM Agreement .  China maintains that, in attempting to distinguish 
that dispute from the present dispute, the Panel not ed that the United States was not suggesting that 
MOFCOM should have considered the effects of "o ther known factors" on domestic prices, but only 
that MOFCOM should have considered the effect of subject imports on prices.
50  In China's view, the 
Panel attempted to create a distinction without a di fference, because the requirement to consider the 
effects of other known factors, and the requirement to  consider the effect of subject imports on prices, 
both stem from the same obligation to establish a causal link.  
19. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding 
that MOFCOM's price effects analysis was in consistent "with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement, as set forth in paragraphs 7.554 and 8.1(f) of the Panel Report".
51 
(b) Application of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  
20. China submits that, even if the Appellate B ody agrees with the Panel's interpretation of 
Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , the Panel still 
erred in its application of these pr ovisions to MOFCOM's Final Determ ination.  According to China, 
the Panel "fundamentally misunders t[ood] MOFCOM's Final Determina tions about the adverse price 
effects in this case".52  The Panel's "overarching error" is that it failed to consider MOFCOM's 
discussion about price effects "as written and as a whol e, and instead … substitute[d] its own analytic 
framework for that of the authority".53  In doing so, the Panel "improperly ignore[d] some aspects of 
the discussion, focuse[d] on certain elements that ac tually were not part of the discussion, and never 
consider[ed] the MOFCOM discussion a bout this issue in its entirety".54  China adds that 
"[e]ssentially, the Panel criticize[d] price compar isons that were never the basis of MOFCOM's 
consideration."55 
21. China asserts that MOFCOM's discussion about adverse price effects rested on several 
specific propositions.  First, MOFCOM cited the "d eveloping trend of price", which showed that 
                                                      
50China's appellant's submission, para. 107 (quoting Panel Report, para. 7.522). 
51China's appellant's submission, para. 109. 
52China's appellant's submission, para. 110. 
53China's appellant's submission, para. 117. 
54China's appellant's submission, para. 117. 
55China's appellant's submission, para. 117.  WT/DS414/AB/R 
 Page 11 
 
 
subject import prices and domestic prices followed th e same price pattern of first increasing and then 
decreasing.56  Second, MOFCOM cited a "pricing policy" whereby subject imports "aimed at setting 
the price" at a level below domestic prices.57  Third, MOFCOM cited the increasing import volume 
since 2008, and that the domestic producers "lower ed their price to keep the market share".58  Based 
on these three elements, MOFCOM then noted the key facts about price suppression in 2008 and the first quarter of 2009, and price depression in the first quarter of 2009, and summarized its 
consideration of price effects in two concluding paragraphs that we re "largely overlooked" by the 
Panel.
59 
22. China asserts that the Panel never addressed "one of the key elements of MOFCOM's 
discussion", that is, that both subject import prices  and domestic prices followed the same trends of 
first increasing and then decreasi ng over the period of investigation.60  China notes that, although 
MOFCOM referred to this fact twice in its analys is, the Panel referred only to the drop in subject 
import prices in the first quarter of 2009 without di scussing "at all the parallel trend in subject import 
prices and domestic prices over the period".61 
23. China also argues that the Panel dismissed the role of import volume effects by finding that 
such effects were not the primary basis for MOFCOM's Final Determination.  MOFCOM never 
considered that subject import volume was the sole factor in its Final Determination, and instead 
relied on multiple factors, including the volume of  subject imports.  More over, acknowledging the 
relevance of subject import price should not rende r the subject import volume any less important to 
MOFCOM's analysis.  The Panel found that MOFCOM 's price effects finding could not be "upheld 
purely on the basis of MOFCOM's findings regardi ng the effect of the increase in the volume of 
subject imports".62  China submits that, by the Panel's logic, "if the volume of subject imports could 
not explain everything, the volume of subject imports could explain nothing."63  China considers that 
the Panel erred "[b]y dismissing and giving no weight to the effect of the volume of subject imports" 
in its evaluation of MOFC OM's Final Determination.64 
                                                      
56China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58).  
57China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
58China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
59China's appellant's submission, para. 119. 
60China's appellant's submission, para. 122. 
61China's appellant's submission, para. 123.  
62China's appellant's submission, para. 127 (quoting Panel Report, para. 7.542). (underlining added by 
China) 
63China's appellant's submission, para. 127. 
64China's appellant's submission, para. 128. WT/DS414/AB/R 
Page 12  
 
24. China contends that the Panel mistakenly assume d that MOFCOM's reference to "low price" 
meant a price comparison between the subject im ports and like domestic pr oducts, and erroneously 
found that such a price comparison was central to MOFCOM's analysis.  In so finding, the Panel 
"misstate[d] the MOFCOM discussion and then buil[t] its findings from that mistaken premise".
65  As 
China explains, MOFCOM never stated that subject import prices were low relative to domestic prices.  MOFCOM noted that subject import prices were "at a low price", but never compared subject 
import prices to domestic prices over the entire period.
66  In fact, China explains, MOFCOM 
subsequently affirmed that it was not making a finding in respect of price undercutting so as to 
emphasize that price depression and price suppression occurred for other reasons, "namely, the large 
increase in subject import volume and the sharp drop  in average subject import prices in Q1 2009".67  
Although the Panel correctly recognized that MOFC OM had not made a specific finding of price 
undercutting, the Panel then asserted that MOFCOM  nevertheless relied on the existence of price 
undercutting.  According to China, MOFCOM's referen ce to "low price" is not the same thing as price 
undercutting, since low-priced imports can exist rega rdless of the level of prices of subject imports 
relative to the prices of domestic products.  China c onsiders that this understanding is confirmed by 
the text of Articles 3.2 and 15.2, which make clear that significant price depression and price 
suppression can exist in the absence of price undercu tting.  China points out that these provisions also 
refer to the effect of "such imports", not the "pri ces of such imports".  In China's view, MOFCOM's 
price effects discussion focused on factors other than  the existence of price undercutting and did not 
depend on price comparisons. 
25. China also argues that, although MOFCOM did refer to a "pricing policy" aiming at setting 
subject import prices lower than domestic prices,  it never said that the policy actually resulted in 
lower import prices.  MOFCOM did not make any findings of price undercutting, and in fact noted that average domestic prices were actually lower than  average subject import prices in the first quarter 
of 2009.  Instead, MOFCOM relied on the pricing po licy evidence, consisting of a contract for the 
sales of GOES and certain price negotiations
68, to demonstrate "efforts by import sources to charge 
lower prices to win business"69, and that "domestic prices were being forced to react to import 
prices".70  According to China, MOFCOM noted, and th e Panel ignored, that domestic producers were 
reacting to subject import competition and were lowering domestic prices so as to compete more 
                                                      
65China's appellant's submission, para. 129. 
66China's appellant's submission, para. 130 (quoting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
67China's appellant's submission, para. 132. 
68Specifically, such evidence includes a contract between a Russian trading company and a Chinese 
buyer of subject imports, as well as examples of price negotiations between a Chinese supplier and its 
customers. (Panel Report, para. 7.532) 
69China's appellant's submission, para. 143. 
70China's appellant's submission, para. 142.    WT/DS414/AB/R 
 Page 13 
 
 
effectively and minimize any further loss of market sh are.  China maintains that the erosion of market 
share stopped in the first quarter of 2009, but only after domestic producers "react[ed] to import prices 
at the end of 2008" by "lower[ing] their prices considerably".71  China further faults the Panel for 
artificially limiting its consideration of the eviden ce supporting the pricing policy to the first quarter 
of 2009.  The Panel acknowledged that the cont ract relied on by MOFCOM may have been of 
relevance regarding the broader relationship between domestic and subject import prices, but then 
made the observation that the contracts were only in effect starting in the first quarter of 2009.  In 
doing so, the Panel did not recognize the distin ction between a "low price policy" and price 
undercutting, and therefore improperly used MOFC OM's finding about the absence of any actual 
price undercutting in the first quarter of 2009 to ignor e the other implications of this evidence.  In 
China's view, "[s]ubject imports that are trying to set lower prices can trigger adverse price effects, 
whether they actually achieve prices lower than the domestic price level or not."72 
26. China also contends that the Panel improperly rejected MOFCOM's use of average unit values 
("AUVs") and instead imposed alternative methodologies not reflected in the text of Article 3.2 of the 
Anti-Dumping Agreement  or Article 15.2 of the SCM Agreement .  In support of this contention, China 
advances arguments regarding the following three aspect s of the Panel's analysis.  First, contrary to 
the Panel's conclusion, China argues that it did rebut  the United States' argument that prices were not 
compared at the same level of trade.  China point s to an answer it provided in response to a question 
from the Panel that indicated that the AUVs relie d upon reflected the "average unit revenue" received 
by subject import and domestic s uppliers "at the same physical stage of getting the goods to the 
customer".73  China further maintains that MOFCOM did not have evidence that would have allowed 
for a comparison of specific prices in specific distri bution channels, and that there was no evidence to 
support the United States' contention that domestic prices were at the level of end-users, whereas subject import prices were at the level of importers who then resold to end-users.  More 
fundamentally, China argues, the AUVs considered by MOFCOM did not consist of specific prices or 
relate to specific sales channels.  Furthermore, China contends that, while investigating authorities 
must take account of the "level of trade" for purposes of Article 2.4 of the Anti-Dumping Agreement , 
that concept cannot simply be extrapolated to Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement .  China notes that, whereas Article 2.4 explicitly refers to different 
levels of trade, Articles 3.2 and 15.2 do not.  Ch ina considers that this understanding is confirmed by 
                                                      
71China's appellant's submission, para. 144. 
72China's appellant's submission, para. 148. 
73China's appellant's submission, para. 157 (referring to China's response to Panel Question 64 
following the second Panel meeting, para. 141). WT/DS414/AB/R 
Page 14  
 
the panel's statement in Egypt – Steel Rebar  that there is "no requirement that the price undercutting 
analysis must be conducted in any particular way,  that is, at any particular level of trade".
74 
27. In addition, China challenges the Panel's conc lusion that MOFCOM made no effort to take 
into account different grades of GOES at issue.  Again, China argues, the Panel misunderstood the 
very nature of AUVs, and instead extrapolated  a concept of "differences … in physical 
characteristics" from Article 2.4 of the Anti-Dumping Agreement  that does not necessarily apply to 
Articles 3.2 and 15.2.75  Although the Panel was technically corr ect that the subject imports fell under 
two tariff headings, the two tariff lines represented the same product, with the only difference being 
that they represented GOES of different widths.  Chin a emphasizes that this is a physical difference, 
not a difference in grade.  Moreover, virtually a ll of the subject imports—that is, 97% of subject 
import shipment quantity and 99% of subject impor t shipment value—were under only one of the two 
tariff headings.  In China's view, disaggregating the analysis would have had no material effect on the 
analysis, and MOFCOM did not have the data to conduct such a comparison. 
28. Moreover, China contests the Panel's criticis m of MOFCOM's reliance on annual AUVs to 
capture price trends for the products at issu e.  In China's view, annual AUVs still allow an 
investigating authority to compare trends over tim e.  A more disaggregated analysis may be an 
alternative approach, "[b]ut there is nothing i nherently non-objective about using annual AUVs".76  
China further notes that MOFCOM also considered  quarterly AUVs for the first quarters of 2008 and 
2009.  The point of a price depression analysis is to consider trends over time.  A trend will be 
analytically valid regardless of the degree of aggregation of individual prices, as long as the 
aggregation is applied consistently.  According to  China, for a price suppression analysis in which 
prices are compared to costs, annual AUVs are a be tter approach since some costs accrue monthly or 
quarterly, whereas other costs accrue only annually. 
29. China additionally argues that the Panel imposed  multiple alternative methodologies that none 
of the respondents raised during the course of MOFCOM 's investigation.  According to China, "[t]he 
Panel essentially embrace[d] arguments made by the United States after the fact during the panel proceedings, not arguments the respondents had presented to MOFCOM during the underlying investigations."
77  China contends that, although investiga ting authorities have an inherent duty to 
investigate, they also have discretion to frame th eir investigations and analyses in the light of the 
information that they gather and the arguments presented by the parties.  In particular, while 
respondent parties are free to propose methodologies during the course of an investigation, their 
                                                      
74China's appellant's submission, para. 161 (quoting Panel Report, Egypt – Steel Rebar , para. 7.73). 
75China's appellant's submission, para. 163. 
76China's appellant's submission, para. 172. 
77China's appellant's submission, para. 183.  WT/DS414/AB/R 
 Page 15 
 
 
failure to do so during the investig ation is relevant for evaluating the reasonableness and objectivity of 
how the authority undertakes its investigation.78 
30. According to China, where a covered agre ement does not prescribe any methodology, the 
investigating authority has discretion, particularly where the respondents do not advocate a particular methodology during the investigation.  Two of  the alternative methodologies—ensuring price 
comparability by accounting for levels of trade a nd different product groups—were not presented in 
any form to MOFCOM during the investigation.  MOFCOM did not have data on a grade-specific or 
transaction-specific basis that it considered representa tive, reliable, or otherwise appropriate for this 
investigation.  China submits that "authorities must  make practical choices based on the information 
they have available"
79, and that, in cases like the current inves tigation, where no party argued for a 
more disaggregated analysis, MOFCOM did not pursue this issue. 
31. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding 
that MOFCOM's price effects analysis was in consistent "with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement, as set forth in paragraphs 7.554 and 8.1(f) of the Panel Report".
80 
(c) Article 11 of the DSU 
32. China submits that the Panel's misreading of MOFCOM's findings of fact and its 
misapplication of these findings to the legal st andard "so exceeded the proper bounds of review"81 that 
the Panel violated its obligations under Article 11 of the DSU.  China notes that the Appellate Body 
has emphasized that it is critical for panels to consider pieces of evidence not just individually, but also in their totality.  In several disputes, the Appellate Body has found an Article 11 violation based 
on the panel's failure to consider the totality of the evidence.
82  This obligation is particularly pertinent 
where the investigating authority itself relied on the totality of the evidence in its analysis.  China 
argues that a panel is not to conduct a de novo  review of the evidence gathered by the authority, but 
rather is required "to conduct a review based on the analysis performed by the authority".83  China 
adds that panels must be even-handed in their re view and consider all of the arguments and evidence 
of the parties in a balanced and consistent way. 
                                                      
78China's appellant's submission, para. 185 (referring to Panel Report, Egypt – Steel Rebar , paras. 7.104 
and 7.105). 
79China's appellant's submission, para. 188. 
80China's appellant's submission, para. 192. 
81China's appellant's submission, para. 193. 
82China's appellant's submission, para. 196 (referring to Appellate Body Report, US – Continued 
Zeroing , para. 331;  Appellate Body Report, Japan – DRAMs (Korea) , para. 139;  and Appellate Body Report, 
US – Countervailing Duty Investigation on DRAMS , para. 188). 
83China's appellant's submission, para. 198. WT/DS414/AB/R 
Page 16  
 
33. China asserts that the Panel erred by improperl y assuming, despite China's statements to the 
contrary, that references to "low price" in th e Final Determination were synonymous with a 
comparison between the prices of subject imports a nd like domestic products, when they were, in fact, 
references to price undercutting.  During the first quarter of 2009, the only period for which the Panel 
found the existence of price depression, MOFCOM found that subject imports were actually priced 
higher than the domestic like product.  Thus, wit hout evidentiary support, the Panel ignored this 
finding of MOFCOM and concluded the exact opposite. 
34. China further argues that "[t]he egregiousness of  this misunderstanding is heightened by the 
fact that the Panel relie[d] on this single factor to invalidate MOFCOM's price depression and price 
suppression findings."
84  China recalls that MOFCOM's discu ssion about adverse price effects rested 
on three specific propositions.  First, MOFCOM cited the developing trend of price, which showed 
that subject import prices and domestic prices followed the same price pattern of first increasing and 
then decreasing.  Second, MOFCOM cited a prici ng policy whereby subject imports aimed at setting 
the price at a level below domestic prices.  Thir d, MOFCOM cited the increasing import volume since 
2008, and that domestic producers lowered their price to keep their market share.   China contends that 
"it was an analysis of the totality of the circumstances that produced the conclusion of price 
depression and price suppression."85  Relying on the reasoning of the Appellate Body in  
US – Countervailing Duty Investigation on DRAMS  and Japan – DRAMs (Korea) , China argues that 
the Panel erred by conducting a de novo  review of evidence that was di rectly contradicted by that 
conducted by MOFCOM during the investigation.  Ch ina maintains that mistakes in interpreting the 
evidence that are determinative to a panel's conclusi on of an issue are not harmless errors, but rather 
amount to a panel's failure to perform an objective assessment of that evidence in contravention of 
Article 11 of the DSU. 
2. Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement  – Disclosure of Essential Facts 
35. China appeals the Panel's finding that China act ed inconsistently with  its obligations under 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement  regarding the 
disclosure of essential facts relating to MOFCOM's price effects analysis.  China argues that the 
Panel's finding rested on its erroneous interpre tation and application of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement .  China maintains that MOFCOM 
was only required to consider the existence of adve rse price effects and, in this respect, MOFCOM 
adequately disclosed the essential facts regarding th e adverse price effects it found to exist, namely, 
                                                      
84China's appellant's submission, para. 202.  
85China's appellant's submission, para. 204.   WT/DS414/AB/R 
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significant price depression and suppression.  China submits that the essential facts regarding 
significant price depression and suppression are wh ether domestic prices were trending downward, 
and whether domestic prices were keeping up with cha nging costs.  In particular, China submits that 
the essential facts regarding these price effects did not include any facts about the "comparison" between subject import prices and domestic prices, or the causal relationship between these two variables.
86 
36. China maintains that MOFCOM disclosed the essential facts underlying its finding of 
significant price depression and suppression.  With regard to price depression, China alleges that 
MOFCOM provided the essential facts by disclos ing, in MOFCOM Announcement No. 99 of 
10 December 200987 (the "Preliminary Determination") and in the disclosure of essential facts88 (the 
"Final Injury Disclosure"), that average domestic prices had fallen by 30.25% during the first quarter 
of 2009 compared to the first quarter of 2008.89  With respect to price suppression, China contends 
that MOFCOM provided the essential facts when it discl osed, in its Preliminary Determination, that 
the price-cost differential in calendar year 2008 "dropped by 7% compared with 2007", and that the price-cost differential "dropped continually and greatly by 75%" during the first quarter of 2009 
compared to the first quarter of 2008.
90  China submits that, in both instances, this degree of 
disclosure was sufficient, and that any further de tail would have "compromise[d] the confidentiality" 
of business confidential information.91 
37. China contends that, even if the Appellate B ody agrees with the Panel's interpretation that 
Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  require some 
assessment of the causal relationship between subject imports and adverse price effects, the Panel still 
                                                      
86China's appellant's submission, paras. 210-212.  
87MOFCOM Announcement No. 99 [200 9] (10 December 2009) (English translation as contained in 
Panel Exhibit CHN-17) (the "Preliminary Determination").   We note that the United States also submitted an 
English translation of MOFCOM's preliminary determination as part of Panel Exhibit US-5.  However, throughout its Report, the Panel cited the exhibit submitte d by China (Panel Exhibit CHN-17) when referring to 
the Preliminary Determination.  Similarly, in this Repo rt, we refer to the English translation as contained in 
Panel Exhibit CHN-17. 
88Essential Facts Under Consideration Which Form th e Basis of the Determination on Industry Injury 
Investigation of the Antidumping Investigation of GOES from the US and Russia and the Anti-subsidy 
Investigation of GOES from the US, Shang Diao Cha Han (2010) No. 67 (5 March 2010) (English translation as contained in Panel Exhibit CHN-29).  We note that the United States also submitted an English translation of 
MOFCOM's disclosure document as part of Panel Exhibit US-27.  However, throughout its Report, the Panel 
cited the exhibit submitted by China (Panel Exhibit CHN-29) when referring to the Final Injury Disclosure.  
Similarly, in this Report, we refer to the Englis h translation as contained in Panel Exhibit CHN-29. 
89China's appellant's submission, para. 213 (referrin g to Preliminary Determination (Panel Exhibit 
CHN-17 (English version)), p. 55;  and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)), 
p. 10). 
90China's appellant's submission, para. 214 (referrin g to Preliminary Determination (Panel Exhibit 
CHN-17 (English version)), p. 56;  and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)), 
p. 15). 
91China's appellant's submission, para. 214.  WT/DS414/AB/R 
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erred in finding that MOFCOM's disclosure of the essential facts was insuffici ent for the purposes of 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement .  China contends 
that the Panel erroneously assumed that a comparison between subject import prices and domestic 
prices was "an essential part" of MOFCOM's price effects analysis
92, when, in fact, such price 
comparison was never "essential" to MOFCOM's price effects analysis. 
38. More specifically, China asserts that the Panel erred in three respects by concluding that 
MOFCOM's disclosure of the essential facts was "ins ufficient" for the purposes of Article 6.9 and 
Article 12.8.  First, China argues that "the  Panel unreasonably criticize[d] MOFCOM for not 
providing the same level of detail that China provide d in its submissions to the Panel regarding the 
pricing policy."93  China maintains that the "essential f act" relied on by MOFCOM in its Final 
Determination was the fact that the importers were attempting  to charge lower prices than the prices 
of the like domestic products.  Thus, MOFCOM's  reasoning did not depend on the dates of the 
contracts submitted as evidence for such pricing polic y or whether the subject imports were successful 
in undercutting domestic prices.  Second, China claims that, in the light of the fact that MOFCOM did not make a finding of price underc utting, the Panel improperly criticized MOFCOM for not disclosing 
the margins of underselling during the period 2006-2008.   These margins were never "essential facts" 
that "form[ed] the basis of the decision" to impose measures within the meaning of Articles 6.9 
and 12.8.
94  Third, China contends that the Panel e rred by only focusing on one aspect of MOFCOM's 
analysis—the pricing policy—without considering other elements considered by MOFCOM, namely, 
the significance of decreasing import prices and increasing import volumes, which were properly 
disclosed by MOFCOM. 
39. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding 
that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of 
the SCM Agreement , as set forth in paragraphs 7.5 75 and 8.1(f) of the Panel Report.95 
3. Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement  – Public Notice Requirements 
40. China appeals the Panel's finding that China act ed inconsistently with  its obligations under 
Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement  regarding the 
public notice and explanation of MOFCOM's price eff ects analysis.  China argues that this finding of 
inconsistency by the Panel rested on its improper in terpretation and applicati on of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement.  China maintains that these 
                                                      
92China's appellant's submission, para. 216 (quoting Panel Report, para. 7.569).  
93China's appellant's submission, para. 218 (referring to Panel Report, para. 7.573). 
94China's appellant's submission, para. 220 (referring to Panel Report, para. 7.574). 
95China's appellant's submission, para. 222.  WT/DS414/AB/R 
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provisions only require an investigating authority to c onsider the existence of adverse price effects.  In 
this respect, MOFCOM adequately provided public  notice and explanation of its findings regarding 
the existence of significant price depression and suppression. 
41. China asserts that both price depression and su ppression were addressed in MOFCOM's Final 
Determination.  Regarding price depression, th e Final Determination established that average 
domestic prices fell by 30.25% during the first quart er of 2009 compared to the first quarter of 2008.96  
With regard to price suppression, the Final Determina tion indicated that the price-cost differential in 
calendar year 2008 dropped by 7% compared with 2007,  and dropped even more substantially by 75% 
during the first quarter of 2009 compared to the first quarter of 2008.97  According to China, the Panel 
did not examine any of these findings.  Rather, the Pa nel erroneously focused on the sufficiency of the 
public notice regarding the existence and specific marg ins of price undercutting.  In China's view, the 
evidence about price undercutting is precisely what the Appellate Body considered to be "supporting 
record evidence" that does not  need to be disclosed pursuant to Article 22.5 of the SCM Agreement .98 
42. In addition, China argues that, in the event th e Appellate Body finds that the Panel correctly 
interpreted and applied Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement , the Panel still erred in its finding regarding MOFCOM's public notice under 
Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement .  China 
reiterates that the Panel mistakenly treated a comparison of subject import prices to domestic prices as an "essential element" and "an important aspect" of MOFCOM's examination of price effects.
99  China 
claims that, in doing so, the Panel made three errors .  First, the Panel ignored the fact that MOFCOM 
disclosed the relevant facts regarding the pricing po licy of importers, that is, the existence of the 
"contracts and records of price setting" collected during an on-site verification.100  Second, the Panel 
confused what MOFCOM discussed in the Final Dete rmination with China's submissions before the 
Panel and, thus, faulted MOFCOM for not disclosing a fact that was never one of the "matters of fact" 
that "led to the imposition of final measures", na mely, the margin by which the prices of subject 
imports were below the prices of domestic products.101  Third, the Panel ignored relevant context 
found in Article 12.2 of the Anti-Dumping Agreement  and Article 22.3 of the SCM Agreement , which 
provide that the public notice requirement extends only to those facts "considered material" by the 
                                                      
96China's appellant's submission, para. 225 (referrin g to Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
97China's appellant's submission, para. 225 (referrin g to Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
98China's appellant's submission, para. 227 (referring to Appellate Body Report, US – Countervailing 
Duty Investigation on DRAMS , para. 164).  
99China's appellant's submission, para. 228 (quoting Panel Report, para. 7.590).  
100China's appellant's submission, para. 229. 
101China's appellant's submission, para. 230. WT/DS414/AB/R 
Page 20  
 
investigating authority.
102  Therefore, given that MOFCOM did not make any findings of significant 
price undercutting, it is clear that it did not consider such facts to be "material" for its Final 
Determination. 
43. For these reasons, China requests the Appellate Body to reverse the Panel's findings of 
inconsistency with Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement , as set forth in paragraphs 7.59 2 and 8.1(f) of the Panel Report. 
B. Arguments of the United States – Appellee 
1. Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  – Interpretation and Application 
44. The United States requests the Appellate Body to reject China's appeal of the Panel's 
interpretation and application of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement .  The United States submits that the Panel properly concluded that the phrase "the 
effect of the [dumped or subsidized] imports" in Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  requires an authority to assess whether significant price 
depression or suppression is the effect of the subject imports.  Moreover, the Panel, in its application 
of the legal standard contained in these provisi ons, correctly concluded that MOFCOM's findings 
regarding the "low price" of subject imports and the alleged "pricing policies" of importers were 
neither supported by positive evidence nor obj ectively examined by MOFCOM, as required by 
Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 of the SCM Agreement .103 
(a) Interpretation of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement  
45. At the outset, the United States argues that Article 3.1 of the Anti-Dumping Agreement  and 
Article 15.1 of the SCM Agreement  provide important context for the interpretation of Articles 3.2 
and 15.2.  Pursuant to Articles 3.1 and 15.1, an  investigating authority must base its injury 
determination on "positive evidence", and must conduc t an "objective examination" of the volume of 
dumped or subsidized imports, their effect on the prices in the domestic market for the domestic like 
product, and their consequent impact on the dom estic producers of such products.  Articles 3.2 
and 15.2 then elaborate on the standards for exam ining the effect of subject imports on domestic 
prices. 
                                                      
102China's appellant's submission, para. 231. 
103United States' appellee's submission, para. 119.  WT/DS414/AB/R 
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46. Turning to the text of Articles 3.2 and 15.2, the United States submits that, irrespective of 
whether China's interpretation of the word "consid er" is correct, that interpretation would not be 
dispositive of whether the Panel correctly conclu ded that MOFCOM's price effects analysis was 
inconsistent with Articles 3.1 and 3.2 and Articles 15.1 and 15.2.  According to the United States, 
MOFCOM did more than merely "consider" whet her the price effects existed, because it expressly 
found that the subject imports caused significant price depression and suppression.  Thus, there was 
no need for the Panel to address whether it was suff icient for MOFCOM to merely "consider" price 
depression or suppression, rather than to make a findi ng in this respect.  Given that MOFCOM's price 
effects finding formed a significant aspect of its injury and causation analysis, the Panel properly 
evaluated whether the finding was consistent with the requirement, under Articles 3.1 and 15.1, that 
an injury and causation determination be based  on positive evidence and involve an objective 
examination. 
47. The United States recalls China's position that Articles 3.2 and 15.2 do not use any language 
that suggests a causal link between the price e ffects and the dumped or subsidized imports.104  In the 
United States' view, the interpretation advocated by China reads these provisions as though they do 
not contain  any language suggesting that price de pression and suppression must be the " effect  of" 
dumped or subsidized imports.  While agreeing that the dictionary definition of the word "effect" is 
"[s]omething accomplished, caused or produced, a result, a consequence"105, the United States 
disagrees with China that this defi nition "does not focus on the cause" of the price effects observed in 
the market.106  Contrary to China's claim, the dictionary definition of "effect" clearly connotes that the 
effect in question is a result of something else, re gardless of whether it is used as a noun or as a verb.  
Moreover, noting that Articles 3.2 and 15.2 specifically  require an authority to consider whether "the 
effect of the [dumped or subsidized] imports on prices" is significant price depression or suppression, 
the United States maintains that the text of th ese provisions explicitly connects a cause—that is, 
dumped or subsidized imports—to price depressive or suppressive effects in the market. 
48. Furthermore, while agreeing that Articles 3.2 and 15.2 do not impose any specific 
methodology for evaluating price effects, the Un ited States emphasizes that any methodology an 
authority employs must meet the requirements under Articles 3.1 and 15.1 that an injury 
determination be based on positive ev idence and involve an objective examination.  The United States 
adds that the Panel did not find that MOFCOM wa s required to use any particular methodology for 
                                                      
104United States' appellee's submission, para. 29 (referring to China's appellant's submission, 
paras. 43-109). 
105United States' appellee's submission, para. 32 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786). 
106United States' appellee's submission, para. 32 (referring to China's appellant's submission, para. 55). WT/DS414/AB/R 
Page 22  
 
assessing the price effects under Articles 3.2 and 15.2, but rather found that MOFCOM failed to base 
its price effects finding on positive evidence and failed to conduct an objective examination. 
49. As regards the relationship between the three types of price effects listed in Articles 3.2 
and 15.2, the United States recalls China's argument  that the three types of effects are entirely 
independent of each other, and that an aut hority may choose to examine price depression or 
suppression without providing any ev aluation of price undercutting.
107  The United States submits that 
an authority can make a finding of significant pri ce effects without findin g that there has been 
significant price undercutting during the period of i nvestigation.  For example, the United States 
maintains that imports may garner a price prem ium over the domestically produced product because 
of superior quality.  Thus, should import prices de cline, prices for the domestic product may follow 
suit to maintain the price differential.  Conseque ntly, the subject imports may cause price depression 
or suppression even if they are not undercutting domestic prices.108 
50. Nonetheless, the United States emphasizes that, as an analytical matter, this does not mean 
that price undercutting is entirely distinct from price depression or suppression.  Rather, examining 
the relative price levels of the domestically produ ced and imported products is "typically essential to a 
complete analysis of price effects".109  According to the United States, viewed in isolation, the fact 
that price depression or suppression exists does not itself establish that the dumped or subsidized 
imports have had an "effect" on prices of the dom estically produced like product, because a number of 
factors in any market may cause price depression or suppression.  Thus, to evaluate whether 
significant price depression or suppression is the effect of subject imports, an authority "will 
ordinarily need to examine in detail the manner in which prices of domestic and subject merchandises reacted to each [other] during the period".
110  The United States contends  that, even in circumstances 
where dumped or subsidized imports cause price depression or suppression without undercutting domestic prices, an objective authority should perform  a comparison of the pric ing levels of imports 
and domestically produced products, as well as a revi ew of their relative pricing trends, so as to 
ensure that it has performed an objective exam ination of the positive evidence before it. 
51. Turning to the context of the term "the effect  of" in Articles 3.2 and 15.2, the United States 
submits that, where Article 3 of the Anti-Dumping Agreement  and Article 15 of the SCM Agreement  
merely instruct an investigating authority to examine the existence of a factor, these provisions use 
appropriate language to signify this.  For example, the first sentence of Ar ticles 3.2 and 15.2 requires 
                                                      
107United States' appellee's submission, para. 46 (referring to China's appellant's submission, 
paras. 64-67). 
108United States' appellee's submission, para. 50. 
109United States' appellee's submission, para. 47. 
110United States' appellee's submission, para. 49.  WT/DS414/AB/R 
 Page 23 
 
 
an authority to consider what the volumes of the subject imports are, and not what are the effects of 
those volumes.  In contrast, the second sentence of Ar ticles 3.2 and 15.2 explicitly requires that price 
depression or suppression be "the effect of such imports".  Thus, under Articles 3.2 and 15.2, an 
authority has "differing obligations" with respect to its analysis of the volume of the subject imports, 
on the one hand, and their price effects, on the other hand.111  Nonetheless, in the view of the 
United States, China incorrectly perceives Articl es 3.2 and 15.2 as imposing the same obligation 
regarding both, whereby these provisions require onl y an examination of whether price suppression or 
depression existed during the period of investigation. 
52. Furthermore, the United States maintains that  Articles 3.5 and 15.5, on the one hand, and 
Articles 3.2 and 15.2, on the other hand, both address asp ects of an authority's causation analysis, with 
each set of provisions containing different language re garding the nature of the causal effects to be 
examined.  More specifically, Articles 3.2 and 15.2 require an authority to consider whether subject 
imports have undercut domestic prices, or whether price depression or suppression is the effect of 
such imports.  In contrast, Articles 3.5 and 15.5 require an examination of "all relevant evidence 
before the authorities" and a demonstration, through a non-attribution analysis, that material injury is 
caused by the subject imports, as opposed to "other  factors".  In the United States' view, this 
non-attribution obligation does not exist in Articles 3.2 and 15.2, as these provisions do not require an 
assessment of whether "other known injury factors" break the apparent causal link between the subject 
imports and the price effects. 
53. Moreover, noting that China seeks to support its  interpretation of Articles 3.2 and 15.2 by 
reference to the "object and purpose" of these pr ovisions, the United States emphasizes that, pursuant 
to Article 31 of the Vienna Convention on the Law of Treaties112 (the " Vienna Convention "), the 
interpretative analysis has to be made in the light  of the object and purpose of the treaty, not of 
individual provisions of that treaty. 
54. The United States stresses that the Panel properl y construed Articles 3.2 and 15.2 as requiring 
an investigating authority to establish a causal relationship between the dumped and subsidized 
imports, on the one hand, and any significant price depression or suppression, on the other hand.  In 
the United States' view, the Panel's interpretation is consistent with the text of Articles 3.2 and 15.2, 
which specifically provide that an investigating auth ority consider whether "the effect of the [dumped 
or subsidized] imports on prices" is to depress pric es to a significant degree or prevent price increases, 
which otherwise would have occurred, to a signi ficant degree.  Thus, the Panel's interpretation 
"follows directly from the plain language" used in Articles 3.2 and 15.2, and the United States 
                                                      
111United States' appellee's submission, para. 37. 
112Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. WT/DS414/AB/R 
Page 24  
 
disagrees with China's argument that the Pane l "essentially graft[ed] on the second sentence of 
Articles 3.2 and 15.2 legal obligations th at do[] not exist in these two provisions".
113 
55. The United States submits that the Panel's interpretation of the term "the effect of" in 
Articles 3.2 and 15.2 is also consistent with th e context of these provisions.  According to the 
United States, although Articles 3.5 and 15.5 impo se important requirements on an investigating 
authority regarding the analysis of causation, ot her paragraphs of Articles 3 and 15 also contain 
language addressing an authority's obligations to asse ss the causal effects of the subject imports on the 
domestic industry.  Thus, Articles 3.5 and 15.5 do not contain the only causal analysis obligations in 
the provisions regarding inju ry determinations in the Anti-Dumping Agreement  and the 
SCM Agreement .  Rather, Articles 3.2 and 15.2 are also intended to embody specific aspects of an 
authority's causal link analysis in anti-dumpi ng and countervailing duty investigations.  The 
United States emphasizes, however, that, unlike Ar ticles 3.5 and 15.5, Articles 3.2 and 15.2 do not 
impose an obligation to conduct a non-attribution anal ysis.  In the United States' view, this difference 
explains the finding of the panel in Egypt – Steel Rebar  that an authority need not engage in the type 
of non-attribution analysis required by Articles 3.5 and 15.5 when examining the impact of the 
imports on the domestic industry.114 
56. The United States further argues that the Pane l correctly distinguished the present dispute 
from EC – Countervailing Measures on DRAM Chips .  In that dispute, the panel only found that an 
authority need not conduct a non-attribution anal ysis as part of its price undercutting analysis.115  The 
United States therefore considers that the panel repo rt in that dispute does not lend support to China's 
view that an investigating authority need not fi nd any causal relationship between the subject imports 
and the price effects listed in Articles 3.2 and 15.2.   Thus, the Panel correctly found that the panel 
report in  EC – Countervailing Measures on DRAM Chips does not stand for "the proposition that an 
authority is not required by Article 15.2 of the SCM Agreement to show that the relevant price 
depression is an effect of subject imports".116 
57. For the foregoing reasons, the United States subm its that the Appellate Body should reject 
China's appeal regarding the Panel's interpretation of Articles 3.2 and 15.2, and regarding the Panel's 
ultimate finding that MOFCOM's price effects analysis was inconsistent with Articles 3.1 and 3.2 of 
the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the SCM Agreement , as set forth in 
paragraphs 7.554 and 8.1(f) of the Panel Report. 
                                                      
113United States' appellee's submission, para. 35 (quoting China's appellant's submission, para. 47). 
114United States' appellee's submission, para. 42 (referring to Panel Report, Egypt – Steel Rebar , 
para. 7.62). 
115United States' appellee's submission, para. 42 (referring to Panel Report, EC – Countervailing 
Measures on DRAM Chips , para. 7.338). 
116United States' appellee's submission, para. 43 (quoting Panel Report, para. 7.522).  WT/DS414/AB/R 
 Page 25 
 
 
(b) Application of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement 
58. The United States submits that the Panel did no t, as China argues, misconstrue MOFCOM's 
findings about the "low price" of subject imports a nd the importers' pricing strategies, create findings 
that MOFCOM never made, or accord insufficient we ight to other elements relied on by MOFCOM in 
its price effects analysis.  According to the United States, the Panel reasonably found that 
MOFCOM's "low price" finding was an important component of its price effects analysis, that 
MOFCOM had not based this finding on "pos itive evidence" or performed an "objective 
examination", and that it therefore acted inconsistent ly with its obligations under Articles 3.1 and 3.2 
of the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the SCM Agreement . 
59. The United States asserts that there are se veral problems with China's argument that 
MOFCOM found parallel price trends to be a key elem ent in its price effects analysis.  First, China 
never made this argument before th e Panel, and therefore has no basis to argue that the Panel should 
have addressed it.  Second, there is no indication in the Final Determination that a parallel pricing 
finding was an independent ground for its price effects analysis.  Rather, MOFCOM stated that the 
sale of subject imports at a "low price" was one of the two causes of price depression, not parallel pricing trends.  Third, the pricing information disclosed by MOFCOM does not support a finding that parallel pricing trends caused price depression.  Because prices for subject imports and Chinese products both rose in 2007 and 2008, the prices did not cause any price depression.  Although China 
claims that there was a sharp drop of subject import prices in the first quarter of 2009, the AUVs for 
subject imports declined by only 1.25% between the first quarters of 2008 and 2009.  When this 
decline is compared to the 30.25% decline in domes tic prices during the first quarter of 2009, it is 
evident that parallel pricing tre nds did not explain the price depression or suppression during the first 
quarter of 2009.  Finally, the United States ob serves that China has not challenged the Panel's 
conclusion that, following a 17.57% increase in s ubject import prices in 2008, a 1.25% decrease in 
subject import prices could not have had the effect  of depressing domestic prices.  The United States 
considers that China therefore has no grounds for challenging the Panel's analysis, "[s]ince this 
finding goes to the heart of the analytical probl ems identified by the Panel concerning MOFCOM's 
pricing analysis".
117 
60. Regarding the Panel's assessment of subject import volume effects, the United States argues 
that the Panel correctly concluded that MOFCOM 's Final Determination did not support China's 
argument that volume effects were the primary basis for MOFCOM's finding that price depression 
was an effect of subject imports.  As the Pane l noted, China relied on parts of MOFCOM's Final 
                                                      
117United States' appellee's submission, para. 77.  WT/DS414/AB/R 
Page 26  
 
Determination that appear to le nd equal weight to considerations  of both subject import volume and 
price.  The United States also points to the Panel's finding that "MOFCOM refers both to the 
increased volume of subject imports, and the alle gedly low price thereof", and that the Panel 
reasonably concluded that "there is nothing in MO FCOM's determination to indicate that MOFCOM 
relied more heavily on the increase in volume of s ubject imports than it did on the low price thereof 
for the purpose of establishing that price depression was an effect of imports."
118  The United States 
further argues that, because MOFCOM consistently and repeatedly relied on th e "low prices" of the 
subject imports as a central basis for its finding of significant price depression and suppression, the Panel acted properly in "evaluating the final determination as MOFCOM wrote it"
119, and therefore in 
assessing whether MOFCOM had provided "positive eviden ce" to support its "low  price" finding and 
had performed an "objective exam ination" of that evidence. 
61. Furthermore, the United States disagrees with China that MOFCOM's "low price" finding was 
not central to MOFCOM's analysis.  Accord ing to the United States, "in no fewer than six instances, 
MOFCOM directly linked price depression and price suppression to 'low prices' and in no fewer than 
five additional instances linked 'low prices' to the ma terial injury purportedl y sustained by China's 
domestic GOES industry."120  Thus, China's argument that price comparisons were not "central" to 
MOFCOM's analysis cannot be reconciled with even a "casual reading" of MOFCOM's Final 
Determination.121  Nor does the United States see a basis for China's suggestion that MOFCOM's use 
of the term "low prices" does not mean that it actually compared prices of the domestically produced 
product with the subject imports. 
62. The United States also rejects China's argument th at "low prices" can exist regardless of the 
relationship between prices of subject imports a nd domestic prices.  Low-priced imports, in the 
United States' view, must be low priced in rela tion to something that is higher priced, and any 
meaningful discussion of low-priced imports must include a comparison of subject import prices to 
domestic prices.  As a result, and as the Panel f ound, MOFCOM could only have made a finding of 
low prices by comparing the pricing levels of th e subject imports and the domestic products.  In 
addition, according to the United States, China ack nowledged before the Panel that MOFCOM made 
such a comparison.  The United States points to, inter alia , China's statement that documents it had 
submitted at the Panel's request "support the finding  reached by MOFCOM that subject imports from 
Russia and the United States were charging prices lower than domestic prices , and had a pricing 
                                                      
118United States' appellee's submission, para. 79 (quoting Panel Report, para. 7.540).  
119United States' appellee's submission, para. 81. 
120United States' appellee's submission, para. 68. (original emphasis) 
121United States' appellee's submission, para. 68 (referring to China's appellant's submission, paras. 34 
and 117).   WT/DS414/AB/R 
 Page 27 
 
 
policy to keep their prices lower".122  According to the United States, the Panel construed the Final 
Determination exactly as it was written and assessed its content in a reasoned and objective manner. 
63. The United States further disagrees with China's argument that MOFCOM's use of the term 
"pricing policy" was not intended to reflect prices actually charged.  In the United States' view, 
MOFCOM's price depression finding specifically indicat ed that the result of the "pricing policy" was 
to keep import prices at a lower level than those of domestic products and that, as a result of this 
policy, "the product concerned was kept at a low price."123  Given the linkage of these two findings, 
the United States considers that it is clear that MOFCOM found that the alleged policy was effective 
at keeping the prices of subject imports lower than that of the domestic products.  The United States 
adds that MOFCOM's conclusion regarding the pricing policy indicated that MOFCOM did not simply find that importers were "attempting" to set subject import prices lower than domestic prices, 
but rather found that they actually did so.
124 
64. The United States also rejects China's argumen t that the Panel improperly imposed specific 
methodologies on MOFCOM under Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of 
the SCM Agreement .  According to the United States, the Panel did not state that Articles 3.2 and 15.2 
require an investigating authority to perform its pr ice analysis and comparisons using any particular 
methodology.  The United States adds that it did no t claim before the Panel that an authority was 
required to use specific price comparison methodol ogies under Articles 3.2 and 15.2, but rather that 
MOFCOM's "low-price" and "pricing strategy" fi ndings were not supported by "positive evidence" 
and did not reflect an "objective examination", as required by Articles 3.1 and 15.1.  In the 
United States' view, China "largely fails to acknowle dge that Articles 3.1 and 15.1 were the basis for 
the Panel findings in question".125 
65. The United States maintains that, in any event, China's arguments do not call into question the 
validity of the Panel's analysis regarding MOFC OM's reliance on annual AUV s.  According to the 
United States, the Panel reasonably concluded that  the United States had established that MOFCOM's 
reliance on annual AUVs to make price comparison s failed to satisfy the "positive evidence" and 
"objective examination" requirements of Articles 3.1 and 15.1.  Specifically, the United States contended that the AUV data was unreliable given th e particular circumstances of the GOES market, 
                                                      
122United States' appellee's submission, para. 72 (quo ting China's response to the Panel's request of 
18 November 2011 for certain confidential data, p. 2). (emphasis added by the United States)  See also ibid. 
(referring to China's second written submission to the Panel,  paras. 102 and 104;  and China's response to Panel 
Question 69 following the second Panel meeting, para. 160).  
123United States' appellee's submission, para. 69 (quo ting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
124United States' appellee's submission, para. 69. 
125United States' appellee's submission, para. 84.  WT/DS414/AB/R 
Page 28  
 
including a non-homogenous product that was classifi ed under two different tariff headings and was 
sold in different grades with different product ch aracteristics.  Moreover, during the course of the 
Panel proceedings, China provided evidence show ing that GOES was subject to intense price 
fluctuations within the course of a single year , thus calling into question MOFCOM's reliance on 
annual AUVs. 
66. The United States takes issue with the arguments  raised by China regarding three aspects of 
the Panel's analysis in relation to MOFCOM's relia nce on AUVs.  First, with regard to whether the 
prices of subject imports and domestic like products we re compared at the same level of trade, the 
only information China provided to the Panel indica ted that the AUVs for subject imports related to 
"transactions between the exporter and the first Ch inese purchaser, which is typically an importer that 
will then resell the product—at a profit—to the end user".
126  The United States also contends that 
China acknowledged that the AUV data that MOFCOM used was "not a comparison of specific prices 
in specific distribution channels".127  The United States further argues that China's reliance on Egypt – 
Steel Rebar  is misplaced because the panel in that case di d not indicate that an investigating authority 
could have positive evidence and conduct an objectiv e examination of price differences when it 
compared prices at different levels of trade.128 
67. Second, the United States argues that China did not contest that the AUV data did not account 
for differences in product grades, but instead confirmed that MOFCOM did not attempt to collect more precise data, or even to use the available cu stoms data in its record.  As the United States 
asserts, the record shows that the product covere d by the investigation was a non-homogenous product 
that was classified under two different tariff headings  and was sold in different grades with different 
product characteristics.  According to the United St ates, the record also shows that there were 
considerable variations in the AUVs for the two ta riff headings, indicating that a single comparison of 
the two product categories combined would likely reflect an inaccurate assessment of comparative 
pricing levels between the subj ect imports and domestic products. 
68. Third, the United States considers that the Pa nel also reasonably concluded that MOFCOM's 
use of annual pricing data for its price comparisons  was not sufficiently preci se in terms of the time 
periods covered.  The record shows that GOES was subject to intense price fluctuations within the 
course of a single year.  Thus, according to the United States, the Panel properly noted that, " given the 
possibility of prices varying over time , an objective and impartial inves tigating authority would rather 
                                                      
126United States' appellee's submission, para. 86.  
127United States' appellee's submission, para. 86 (quoting China's appellant's submission, para. 158).  
128United States' appellee's submission, footnote 132 to para. 86 (referring to Panel Report, Egypt – 
Steel Rebar , para. 7.73).  WT/DS414/AB/R 
 Page 29 
 
 
conduct contemporaneous price comp arisons, or at least price comparisons during a relatively short 
period of time."129 
69. Finally, the United States disagrees with Ch ina's argument that MOFCOM could not have 
been expected to have conducted the level of co mparative analysis demanded by the Panel because 
such concerns were neither raised nor argued by  the respondents during the investigation.  The 
United States submits that the record shows that one  of the respondents, ATI, in its comments on the 
Preliminary Determination, specifically raised th e issue that MOFCOM had not conducted a price 
comparison between subject imports and domestic li ke products, and had also argued that MOFCOM 
had distorted the analysis by using price trends on an annual basis.  The United States argues that, in 
any event, Articles 3.1 and 15.1 place no limitati on on a complainant's ability to argue that an 
authority acted inconsistently with its obligation to conduct an objective examination of the matter 
before it and to have positive evidence in support of  its findings.  Rather, as the Appellate Body has 
found, the obligations under Articles 3.1 and 15.1 ar e "absolute" and provide for no exceptions or 
qualifications.130  Moreover, in Mexico – Steel Pipes and Tubes , the panel rejected the argument that it 
should dismiss a claim under Article 3.1 regarding the use of a particular period of investigation 
merely because no party had raised a complaint in th is regard during the investigation proceedings.  
Rather, the panel found that the selection of the investigation period was linked to the investigating authority's obligation under Article 3.1 to conduct an objective examination of positive evidence, and 
that the authority was bound by this obligation rega rdless of whether the issue was raised during the 
investigation.
131  Accordingly, the United States argues that  the Panel appropriately considered the 
United States' claims in the present dispute. 
70. For the foregoing reasons, the United States reque sts the Appellate Body to reject China's 
appeal regarding the Panel's finding that MOFCOM's price effects analysis was inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the 
SCM Agreement , as set forth in paragraphs 7.55 4 and 8.1(f) of the Panel Report. 
(c) Article 11 of the DSU 
71. The United States submits that China's claims under Article 11 of the DSU merely repeat 
arguments that China has already rai sed in respect of the Panel's inte rpretation, application, reasoning, 
and findings.  It refers to its earlier arguments demonstrating that the Panel's analysis of MOFCOM's 
                                                      
129United States' appellee's submission, para. 88 (quoting Panel Report, para. 7.528). (emphasis added 
by the United States) 
130United States' appellee's submission, para. 92 (referring to Appellate Body Report, EC – Bed Linen 
(Article 21.5 – India) , para. 109). 
131United States' appellee's submission, para. 92 (referring to Panel Report, Mexico – Steel Pipes and 
Tubes , para. 7.259). WT/DS414/AB/R 
Page 30  
 
price effects finding was correct.  The United St ates further notes that the Appellate Body has 
required that a claim under Article 11 should not be  made merely as a subsidiary argument or 
claim.
132  The United States adds that, to rise to the le vel of an Article 11 violation, a mistake on the 
part of the panel must constitute a "deliberate disr egard of evidence or gross negligence amounting to 
bad faith".133 
72. The United States rejects the argument that MO FCOM did not make a finding that subject 
imports were priced lower than domestic products.  It refers to its arguments above that MOFCOM 
repeatedly found that subject imports were priced "low" during the investigation period, and that its 
analysis "made clear that this finding was based on a comparison of domestic and subject import prices".
134  According to the United States, China acknowledged before the Panel that MOFCOM 
engaged in price comparisons for domestic produc ts and subject imports, and that MOFCOM had 
reached a finding that subject imports " were charging prices lower than domestic prices , and had a 
pricing policy to keep their prices lower".135  In the light of these st atements by China, the 
United States maintains that "the Panel did not commit error by evaluating MOFCOM's determination 
on the basis of specific findings included in the determination."136 
73. The United States also argues that the Panel did not  fail to give consideration to the totality of 
the evidence.  The Panel did not mistakenly fail to give the proper weight to MOFCOM's "low price" 
finding or to other aspects of MOFCOM's affirm ative price effects finding.  According to the 
United States, in rejecting China's claim that the increasing volume of imports alone could support 
MOFCOM's finding of significant price depression and suppression, the Panel correctly pointed out 
that a "panel must exercise great caution in dete rmining whether or not to engage in analyses not 
undertaken by the investigating authority itself."137  The United States further argues that the Final 
Determination does not indicate that it gave greater weight to findings on para llel pricing trends and a 
pricing policy aimed at undercutting subject import pri ces than it gave to its finding of "low price" of 
subject imports.  As a result, the United States argues, the Panel was correct in finding that it had no 
basis to conclude that these findings could, by  themselves, support MOFCOM's pricing analysis. 
                                                      
132United States' appellee's submission, para. 95 (referring to Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 761, in turn referring to Appellate Body Report, Chile – Price Band 
System (Article 21.5 – Argentina) , para. 238, in turn referring to Appellate Body Report, US – Steel Safeguards , 
para. 498;  and Appellate Body Report, China – Publications and Audiovisual Products , para. 189). 
133United States' appellee's submission, para. 96 (referring to Appellate Body Report, EC – Hormones , 
paras. 133 and 138). 
134United States' appellee's submission, para. 97. 
135United States' appellee's submission, para. 98 (quo ting China's response to the Panel's request of 
18 November 2011 for certain confidential data, p. 2). (emphasis added by the United States) 
136United States' appellee's submission, para. 98. 
137United States' appellee's submission, para. 100 (quoting Panel Report, para. 7.542).  WT/DS414/AB/R 
 Page 31 
 
 
2. Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement  – Disclosure of Essential Facts 
74. The United States submits that the Panel was co rrect in concluding that MOFCOM failed to 
disclose the "essential facts" within the meaning of Article 6.9 of the Anti-Dumping Agreement  and 
Article 12.8 of the SCM Agreement .  The United States contests China's argument that the Panel erred 
in its interpretation of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement , leading it to make incorrect findings under Articles 6.9 and 12.8.  Specifically, the 
United States disagrees with China that, because Articles 3.2 and 15.2  only require MOFCOM to find 
that price depression and suppression existed  in the market, the only "essential facts" it needed to 
disclose were the declines in domestic prices (in c onnection with price depression) and changes in the 
price-cost ratio of the Chinese domestic industry (in connection with price suppression).  This, in the 
United States' view, ignores that Articles 3.2 an d 15.2 both require that price depression or 
suppression be the "effect" of the imports under inves tigation.  In fact, the United States argues, 
MOFCOM attempted to satisfy this requirement by referring to the "low price" of subject imports. 
75. Moreover, the United States submits that MO FCOM failed to disclose the essential facts 
supporting its conclusion of "low" s ubject import prices, which underpinned its finding of significant 
price depression and suppression.  The United States agrees with the Panel that, because MOFCOM's 
conclusion regarding the "low price" of subject im ports was essential to support its price depression 
and suppression finding, MOFCOM was required to disclose not only the conclusion regarding the 
existence of a "low price" but also the "essential fa cts" supporting this conclu sion, in order to allow 
interested parties to defend their interests.  The United States highlights that the only disclosure made 
by MOFCOM in its Final Injury Disclosure consis ts of AUV data for the subject imports, without 
including any information about, or comp arison with, AUVs of the domestic product.138 
76. The United States disagrees with China's argume nt that, even if Articles 3.2 and 15.2 impose 
an obligation to find some causal relationship betw een subject imports and adverse price effects, 
MOFCOM still met its obligation to  disclose the essential facts underl ying its price effects finding by 
referring to the pricing policy of importers.  The Un ited States argues, first, that the Panel correctly 
recognized that MOFCOM's conclusion regarding th e "low price" of subject imports formed an 
essential part of the reasoning MOFCOM used to su pport its price depression and suppression finding.  
Second, the United States highlights that, in an y event, the Panel properly found that MOFCOM's 
"vague references" to the "pricing policy" of the im porters "did not constitute  an adequate disclosure 
of essential facts to support MOFCOM's price effects finding".139  According to the United States, the 
                                                      
138United States' appellee's submission, para. 105 (referring to Panel Report, para. 7.569).  
139United States' appellee's submission, para. 107 (referring to Panel Report, para. 7.573).  WT/DS414/AB/R 
Page 32  
 
Panel correctly recognized that Articles 6.9 and 12 .8 require disclosure of "facts", and not merely 
assertions.  The Panel also recognized that such f acts indeed existed and, once China had disclosed 
them to the Panel, the United States was able to  challenge their relevance for MOFCOM's price 
depression finding. 
77. In addition, the United States disagrees with Ch ina's position that "the margins of underselling 
over the 2006-2008 period"
140 and the "facts about prices of subject imports relative to domestic 
prices" were never essential facts that "'form[ed]  the basis of the decision' to impose measures".141  
According to the United States, China's position is at odds with the language of the Final 
Determination, in which MOFCOM repeatedly re ferred to the "low price" of subject imports.142  
Finally, the United States argues that the Panel di d not improperly focus its analysis on the pricing 
policy of exporters, thereby ignoring MOFCOM's references to decreasing import prices and 
increasing import volume.143  Rather, it found that the references in MOFCOM's Preliminary 
Determination and Final Injury Disclosure to the lo w price strategies of the Russian and US exporters 
"were insufficient as a summary of the essential facts supporting the conclusion of low import 
prices".144 
78. For these reasons, the United States requests the A ppellate Body to uphold the Panel's finding 
of inconsistency with Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement , as set forth in paragraphs 7.57 5 and 8.1(f) of the Panel Report. 
3. Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement  – Public Notice Requirements 
79. The United States argues that the Panel properly found that MOFCOM's failure to include in 
its Final Determination information material to its price effects anal ysis was inconsistent with the 
public notice requirements of Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement .  The United States contests China's argume nt that the Panel's allegedly flawed 
interpretation of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  
led it to make incorrect findings  under Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 
of the SCM Agreement .145  In the United States' view, China's argument that the Final Determination 
                                                      
140United States' appellee's submission, para. 108. 
141United States' appellee's submission, para. 108 (quoting China's appellant's submission, para. 220). 
142United States' appellee's submission, para. 108.  
143United States' appellee's submission, para. 109 (referring to China's appellant's submission, 
para. 221).  
144United States' appellee's submission, para. 109 (referring to Panel Report, para. 7.573). 
145United States' appellee's submission, para. 112 (referring to China's appellant's submission, 
paras. 223-225).  WT/DS414/AB/R 
 Page 33 
 
 
only needed to contain a reference to the existe nce of price depression and suppression ignores that 
Articles 3.2 and 15.2 require that price depression and suppression be the "effect" of subject imports. 
80. The United States further argues that the Panel did not fault MOFCOM for failing to disclose 
specific margins of price undercutting per se .  Rather, "the Panel referre d to the existence of these 
margins ... to illustrate that 'MOFCOM had before it information on the prices of subject imports and 
the prices of the domestic product and undertook a comparative analysis of this information.'"146  The 
United States highlights that MOFCOM's Final Dete rmination disclosed no meaningful information 
comparing the prices of subject imports and do mestic products, or identifying how the "pricing 
policy" of importers affected the prices th at they charged vis-à-vis domestic products. 
81. The United States also reiterates that, in the light of the repeated references to the "low price" 
of subject imports in the Final Determination, Chin a's argument that prices of subject imports relative 
to prices of domestic products were not "matters  of fact" that led to the imposition of final 
measures147, or that they were not considered "material" by MOFCOM, is "implausible".148  
Moreover, the United States contends that China's reference to the disclosure of other elements 
purportedly relevant to MOFCOM's price effects anal ysis, such as the pricing policy of importers, is 
"no substitute" for a disclosure of information regarding the existence of "low" import prices.149 
82. For these reasons, the United States requests the A ppellate Body to uphold the Panel's finding 
of inconsistency with Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement , as set forth in paragraphs 7.59 2 and 8.1(f) of the Panel Report. 
C. Arguments of the Third Participants 
1. European Union 
83. The European Union submits that, although a "literal reading" of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  could suggest that an investigating 
authority must consider whether the price effects listed therein are caused by subject imports, these 
provisions must be read together with th e other paragraphs of Article 3 of the Anti-Dumping 
Agreement  and Article 15 of the SCM Agreement .150  The European Union recalls that Articles 3.5 
and 15.5 lay down precise requirements for establis hing the causal relationship between subject 
imports and injury to the domestic industry.  Thus, in the European Union's view, reading into 
                                                      
146United States' appellee's submission, para. 114 (quoting Panel Report, para. 7.591). 
147United States' appellee's submission, para. 116 (quoting China's appellant's submission, para. 230). 
148United States' appellee's submission, para. 116 (referring to China's appellant's submission, 
para. 231).  
149United States' appellee's submission, para. 115.  
150European Union's third participant's submission, para. 4. WT/DS414/AB/R 
Page 34  
 
Articles 3.2 and 15.2 an obligatio n to examine the existence of a causal link between the subject 
imports and price depression/suppression would anti cipate and unnecessarily duplicate part of the 
overall causal analysis that the investigating author ity must conduct pursuant to Articles 3.5 and 15.5.  
The European Union recalls that, in attempti ng to distinguish the requirements imposed by 
Articles 3.2 and 15.2 from the causation analysis mandated by Articles 3.5 and 15.5, the Panel noted that the former provisions do not require a non-attribution analysis regarding factors other than the 
subject imports.  In the European Union's view, th e Panel's approach would still lead to an overlap 
between these two sets of obligations, because the analysis required by Articles 3.5 and 15.5 is not 
limited to a non-attribution analysis, and because it may be difficult to consider the causal link 
between subject imports and effect s on domestic prices without taking into account factors other than 
subject imports. 
84. The European Union therefore contends that Articles 3.2 and 15.2 do not require an 
examination of whether there is a causal link between subject imports and price effects.  Rather, these 
provisions require the investigating authority onl y to "consider" whether there is some rational 
connection between subject imports and the price effect s listed therein.  This connection is inherent in 
the notion of "price undercutting", which involves a price comparison between subject imports and 
like domestic products.  As regards price depr ession and suppression, the investigating authority 
should consider whether the observed decline in the prices of the like domestic products, or their 
inability to increase, is consistent  with the observed evolution of the prices and/or volume of the 
subject imports.  The European Union adds that the answer to the interpretative question raised by 
China's appeal is "ultimately inconsequential", b ecause the investigating au thority would, in any 
event, be required to examine the causal link between  subject imports and price effects as part of the 
analysis required by either:  (i) Articles 3.2 and 15.2 ;  (ii) Articles 3.5 and 15.5;  or (iii) both sets of 
provisions.
151 
85. The European Union further submits that the use of the conjunction "or" in Articles 3.2 
and 15.2 indicates that the investigating authority is not required to make a positive finding  with 
regard to all three price effects, but that this do es not mean that the authority may freely choose which 
type of price effect to consider.  In the Europ ean Union's view, although a finding of price depression 
or suppression may, in theory, be independent fro m a finding of price undercutting, the examination 
of price undercutting will often shed decisive light  on the causal relationship between subject imports 
and price depression/suppression.  For example, where import prices are much higher than domestic prices, "it would in normal circumstances be implau sible to argue" that subject imports have caused 
                                                      
151European Union's third participant's submission, para. 9.  WT/DS414/AB/R 
 Page 35 
 
 
price depression or suppression.152  Finally, the European Union main tains that, despite the absence of 
an express finding by MOFCOM on price undercutti ng, the Panel should have examined whether 
MOFCOM had properly "considered" the existence of  that price effect, and the Panel would have 
found that MOFCOM had  not done so. 
86. The European Union dismisses China's allegation that the Panel erred in requiring the use of 
specific methodologies in order to conduct a price e ffects analysis.  While the European Union agrees 
that Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  do not 
prescribe any specific methodology for examining pr ice effects, this does not mean that the 
investigating authority enjoys unfettered discreti on.  As the European Union states, "whatever 
methodology is chosen, the investigating authority must  ensure that a determination of injury is made 
on the basis of 'positive evidence' of the effects of the dumped imports and involves an 'objective 
examination' of such evidence."153  The European Union adds that th e examination of the price effects 
of subject imports under Articles 3.2 and 15.2 necessarily  entails some form of comparison of prices 
or of prices and costs.  The European Union agr ees with the Panel that, whenever prices are to be 
compared, the investigating authority must en sure that they are "properly comparable".154  T h e  
European Union agrees that the obligat ions imposed by Article 2.4 of the Anti-Dumping Agreement  
cannot be transposed as such to the injury context.  However, this does not mean that an investigating 
authority "is free to disregard any difference concerning the factors mentioned in Article 2.4 … such as physical characteristics or levels of trade, wh en conducting an examination of price effects".
155 
87. The European Union states that it is "concerned w ith MOFCOM's apparent failure to take into 
account the differences in physical characteristics  between the different grades of the subject 
product".156  The European Union adds that, while single AUV comparisons may be appropriate if the 
product is homogeneous, doing so when there are very  different product types with widely diverging 
prices may yield "differences between the mix of  product types, rather than genuine price 
undercutting or price depression".157  The European Union considers that the cases on which China 
relies do not support the position that Articles 3.1 and 3.2 impose no obligation to take into account 
differences between product types, models, or grades.158  In particular, the Eu ropean Union notes that, 
                                                      
152European Union's third participant's submission, para. 12. 
153European Union's third participant's submission, para. 16 (referring to Appellate Body Report, 
EC – Bed Linen (Article 21.5 – India) , para. 113).  
154European Union's third participant's submission, para. 17 (quoting Panel Report, para. 7.530).  
155European Union's third participant's submission, para. 18.   
156European Union's third participant's submission, para. 19 (referring to Panel Report, para. 7.528).  
157European Union's third participant's submission, para. 20. 
158European Union's third participant's submission, para. 21 (referring to China's appellant's 
submission, paras. 61-63, in turn referring to Appellate Body Report, Mexico – Anti-Dumping Measures on 
Rice, para. 204;  and para. 152, in turn referring to Panel Report, Egypt – Steel Rebar , para. 7.73, and Panel 
Report, EC – Fasteners (China) , para. 7.325). WT/DS414/AB/R 
Page 36  
 
although China seeks to rely on the panel's statement in EC – Fasteners (China) , the panel in that case 
stated that adjustments to prices in the context of a price undercutting analysis "may be a useful 
means of ensuring that the requirements … in Article 3.1 are satisfied".
159  The European Union 
further notes that, when the price differentials be tween the various types or grades of the subject 
product are large, "even relatively small differences in product mix can have a substantial impact on 
the outcome of the price undercutting analysis".160 
88. The European Union disagrees with China's ar gument that the use of single AUVs obviates 
the need to make adjustments for differences in the level of trade, because China's argument is 
factually incorrect.  Moreover, the European  Union contends that the panel report in Egypt – Steel 
Rebar should be read differently to how China reads it.   According to the European Union, although 
the panel in that dispute held that the Egyptian au thorities were not required to make a comparison "at 
any particular level of trade"161, the underlying assumption was that prices had nevertheless been 
compared at the same level of trade, albeit diffe rently from the level preferred by Turkey.  The 
European Union also disagrees with China's ar gument that MOFCOM's failure to take price 
differences into account is excused by the fact th at such arguments were not raised during the 
investigation.  According to the European Union, "i t is well-established that the complaining party is 
not confined to the arguments made by the exporter during the antidumping investigation."162 
89. With regard to the disclosure of "essential fact s", the European Union argues that, pursuant to 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement , an investigating 
authority is required to disclose all essential facts re lating to its analysis of all price effects examined 
under Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement .  Moreover, 
the object and purpose of the disclosure require ment under Articles 6.9 and 12.8 is to provide 
interested parties in an investigation with an opportu nity to effectively exercise their right of defence 
by commenting on the facts that are essential for th e investigating authority's process of analysis and 
decision-making.  Therefore, any disclosure of essential facts concerning the price analysis covers not 
only the authority's conclusions about the existence of price effects, but also the underlying data and 
methodology employed to reach those conclusions. 
                                                      
159European Union's third participant's submission, para. 22 (quoting Panel Report, EC – Fasteners 
(China) , para. 7.328). 
160European Union's third participant's submission, para. 23. 
161European Union's third participant's submission, para. 24 (quoting Panel Report, Egypt – Steel 
Rebar , para. 7.73).  
162European Union's third participant's submission, para. 25 (referring to Appellate Body Report, 
Thailand – H-Beams , para. 94;  Appellate Body Report, US – Lamb , para. 113;  and Appellate Body Report, 
US – Corrosion-Resistant Steel Sunset Review , para. 131).  WT/DS414/AB/R 
 Page 37 
 
 
90. The European Union further argues that, while an investigating authority "enjoys a certain 
discretion" in adopting a methodology for examining the price effects of dumped imports, it does not 
enjoy "unfettered discretion".163  If investigating authorities were exempt from disclosing the 
underlying data and methodologies employed in the context of a price analysis, their "discretion would become complete, and a verification that the examination was conducted objectively and was 
based on positive evidence would be nearly impossible".
164  Finally, the European Union agrees with 
the Panel that, where confidential information is an  "essential fact under consideration", the disclosure 
obligation cannot be simply set aside, but must be met through the disclosure of meaningful non-confidential summaries.
165 
91. Finally, with regard to the public notice re quirements, the European Union submits that, 
pursuant to Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement , 
investigating authorities must make available in a public notice all relevant information on matters of 
fact and law and reasons that have led to th e imposition of the final measure, including, inter alia , 
their price effects finding.  In the European Un ion's view, since MOFCOM failed to include all 
relevant information conc erning price undercutting in the public no tice of the Final Determination, the 
Appellate Body should uphold the Panel's findings that China acted inconsistently with 
Articles 12.2.2 and 22.5. 
2. Japan 
92. Japan argues that Article 3.1 of the Anti-Dumping Agreement  requires investigating 
authorities to conduct an "objective examination" of  the effect of dumped imports on prices of like 
domestic products and to base this examination on "positive evidence".  Article 3.2, in turn, clarifies 
this obligation by requiring the authorities to consid er one of the three price effects listed therein.  
Japan disagrees with China's interpretation of Article 3.2, because it fails to consider the words "effect 
of" in conjunction with the words "the dumped imports" in Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement .166  Japan maintains that, under Article 3.2, i nvestigating authorities are required to show 
that price undercutting, price depression, or price suppression has occurred as an effect of dumped 
imports.  Therefore, "it is obviously normal" to c onsider the price of dumped imports in relation to 
that of the like domestic product.167  In Japan's view, when the import price is higher than the 
domestic price, this may indicate that imported and domestic products are not in competition with 
                                                      
163European Union's third participant's submission, para. 29 (referring to Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , para. 204;  Appellate Body Report,  EC – Bed Linen (Article 21.5 – 
India) , para. 113;  and Panel Report, EC – Fasteners (China) , para. 7.325). 
164European Union's third participant's submission, para. 29.  
165European Union's third participant's submission, para. 30 (referring to Panel Report, para. 7.571).  
166Japan's third participant's submission, para. 4. 
167Japan's third participant's submission, para. 4. WT/DS414/AB/R 
Page 38  
 
each other, and that price depression or price s uppression could not be an effect of the dumped 
imports. 
93. Japan submits that, under Article 3.2, inves tigating authorities are required to weigh the 
merits of positive evidence regarding whether there has been price undercutting, price depression, or 
price suppression as a consequence of the price of dumped imports.  Thus, Japan submits that the 
Panel succinctly summarized the authorities' ob ligations under Article 3.2 in accordance with a 
correct interpretation of this provision.  Japan a dds that the authorities' deliberation in accordance 
with Article 3.2 "must be apparent from the documen ts forming the basis for [the panel's] review".
168 
94. With regard to the disclosure of "essential facts", Japan argues that, when investigating 
authorities intend to base their final injury determination on price depression or suppression, they must, under Article 6.9 of the Anti-Dumping Agreement , disclose facts that are essential to a finding 
of these price effects.  Japan recalls that Article 3.2 of the Anti-Dumping Agreement  requires 
authorities to consider the consequential relations hip between dumped imports and prices of domestic 
like products.  Japan submits that, if MOFCOM's  finding of such relationship is based on the 
comparison between the prices of subject imports  and the prices of like domestic products, the 
essential facts that MOFCOM was required to disclose include these prices. 
95. Japan argues that the requirement under Article 12.2.2 of the Anti-Dumping Agreement  that 
the public notice of the final determination contain "a ll relevant information on the matters of fact and 
law and reasons" must be understood in the context of Article 12.2, which requires authorities to set 
forth explanations on "all issues of fact and law cons idered material by the investigating authorities".  
Accordingly, the issues that are relevant to, and material in, the establishment of injury, must be 
explained by an investigating authority in its fina l determination "such that its reasons for concluding 
as it did can be discerned and are understood".
169 
96. Japan submits that, as discussed in th e context of Article 6.9 of the Anti-Dumping Agreement , 
price depression or suppression would be essential fact s underlying a final injury determination when 
investigating authorities base their determination on these issues.  These issues would therefore be 
relevant and material to the final injury determ ination.  Moreover, authorities must provide an 
explanation of sufficient detail to allow readers of the public notice to discern and understand the 
reasons for the conclusion that the dumped imports  significantly depressed or suppressed the prices of 
                                                      
168Japan's third participant's submission, para. 6 (quoting Panel Report, Thailand – H-Beams , 
para. 7.179). 
169Japan's third participant's submission, para. 12 (quoting Panel Report, EU – Footwear (China) , 
para. 7.844).  WT/DS414/AB/R 
 Page 39 
 
 
domestic like products and were thus  causing injury.  In Japan's vi ew, a mere statement regarding 
domestic prices alone would not be sufficient. 
3. Korea 
97. With regard to the interpretation of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement , Korea maintains that the fact that causation requirements are 
addressed by other provisions of these Agreemen ts "does shed an important light" on the 
interpretation of Articles 3.2 and 15.2, and China' s arguments in this respect should be carefully 
analyzed.170  Korea, however, does not subscribe to the view that Articles 3.2 and 15.2 categorically 
exclude a causation analysis.  Korea acknowledges th at the word "consider" in Articles 3.2 and 15.2 
imposes a lower level of obligation on the invest igating authorities than the word "demonstrate" 
contained in Articles 3.5 and 15.5.  Nonetheless, th e word "consider" requires investigating authorities 
to take certain concrete action, and the fact that  the authorities fulfilled this requirement should be 
proven by evidence.171 
98. In Korea's view, the word "effect" arguably carries both a meaning of "causation" and a 
meaning of "consequence".  Moreover, noting the phr ase "the effect of the [dumped or subsidized] 
imports on prices" in Articles 3.2 and 15.2, Korea ma intains that the word "effect" in these provisions 
should not be interpreted in isolation, but should  be properly regarded as indicating a relationship 
between the subject imports and the price effects.  According to Korea, examining this relationship 
would essentially be a causation discussion, though not id entical to that required under Article 3.5 of 
the Anti-Dumping Agreement  and Article 15.5 of the SCM Agreement . 
99. Korea further notes that the verb "affect" in Ar ticles 3.4 and 15.4 means "to have an effect 
on".  Thus, in the context of Articles 3 and 15, th e interpretations of "effect" and "affect" can be 
"virtually [the] same".172  Finally, Korea recalls that the panel in Korea – Commercial Vessels  found 
that the term "the effect of the subsidy" in Article 6.3 of the SCM Agreement  requires a causation 
analysis, and argues that that panel's finding may pr ovide useful context for the interpretative question 
in this dispute.173 
100. Regarding China's claim under Article 11 of the DSU, Korea argues that, although 
investigating authorities possess wide latitude in evaluating evidence collected, and in adopting 
                                                      
170Korea's third participant' s submission, para. 8. 
171Korea's third participant's submission, para. 11 (referring to Panel Report, Thailand – H-Beams , 
para. 7.161). 
172Korea's third participant' s submission, para. 16. 
173Korea's third participant's submission, para. 18 (referring to Panel Report, Korea – Commercial 
Vessels , paras. 7.612-7.616). WT/DS414/AB/R 
Page 40  
 
specific methodologies to evaluate that evidence, such discretion "is not unbridled … and is only 
permitted within the parameters of  relevant provisions at issue".
174  Korea adds that the obligations 
contained in Articles 3 and 15 shoul d be interpreted and implemented together with the overarching 
requirements of "positive evidence" and "objective ex amination" appearing in Articles 3.1 and 15.1.  
Viewed from this perspective, Ko rea argues, the assertion that an i nvestigating authority is accorded 
with discretion may not be "determinative" as to wh ether the authority acted consistently with its 
obligations under Articles 3 and 15.175 
101. Korea concurs with the view that, when an inv estigating authority has relied on the totality of 
the evidence, a reviewing panel is also obliged to follow the same methodology.  Korea considers that 
the Appellate Body report in US – Countervailing Duty Investigation on DRAMS  stands for the 
proposition that a panel may not conduct a de novo  review of the evidence gathered by the authority.  
Rather, Korea argues, "the panel is to conduct a revi ew using the same analytical tool adopted by the 
authority at issue."176  Korea thus considers that a panel must assess whether an investigating 
authority's determination is supported by the totality  of evidence on the record, but "may well reach a 
conclusion that, in a particular dispute at issue, such totality of evidence does not support the findings 
of the investigating authority as an 'unbiased and objective investigating authority'".177 
4. Saudi Arabia 
102. Saudi Arabia submits that the Anti-Dumping Agreement  and the SCM Agreement  reflect a 
delicate balance between the interests of the par ties subject to anti-dumping and countervailing duty 
investigations and those of the investigating author ities tasked with completing the investigations in a 
thorough and timely manner.  Saudi Arabia request s the Appellate Body to interpret the relevant 
provisions of these Agreements in the light of this balance. 
103. Saudi Arabia submits that the Panel's interpretation of Article 3.2 of the Anti-Dumping 
Agreement  and Article 15.2 of the SCM Agreement  is consistent with the text of the second sentence 
of these provisions.  These sentences establish that an y observed price effects must be attributable to 
the subject imports by stipulating that price underc utting is "by the [dumped or subsidized] imports", 
and that "the effect of the [dumped or subsidized] im ports" is to "depress prices" or to "prevent price 
increases".  This reading of Articles 3.2 and 15.2 is confirmed by the ordinary meaning of the word 
                                                      
174Korea's third participant' s submission, para. 20. 
175Korea's third participant' s submission, para. 21. 
176Korea's third participant' s submission, para. 23. 
177Korea's third participant' s submission, para. 25.  WT/DS414/AB/R 
 Page 41 
 
 
"effect", and by the fact that "cau se and effect are correlative terms".178  Moreover, Saudi Arabia 
argues, the fact that the first sentence of Articles 3. 2 and 15.2 "establishes that volume effects must be 
attributed to the subject imports" further supports this reading of Articles 3.2 and 15.2, because an 
interpretation of the second sentence as not requiring  the attribution of observed price effects to the 
subject imports would create "incongruous standa rds for volume effects and price effects".179 
104. Saudi Arabia submits that settled jurisprudence by the Appellate Body supports the Panel's 
interpretation.  Saudi Arabia recalls the Appellate Body's findings in EC – Bed Linen (Article 21.5 – 
India)  that "[i]t is clear from the text of Article 3.2 that investigating authorities must consider 
whether there has been a significant increase in dumped imports, and that they must examine the 
effect of dumped imports on prices resulting from price und ercutting, price depression, or price 
suppression"180, and that, "[i]n stipulating how to undertake the analyses of volume and prices, 
Article 3.2 refers consiste ntly to 'dumped imports'."181  In Saudi Arabia's view, the Appellate Body's 
statements "establish that Articles 3.2 and 15.2 impose on authorities a clear obligation to examine 
price effects that are attributed to subject imports ".182 
105. Saudi Arabia further contends that an interp retation that did not require the authorities to 
examine the effect of the subject imports would nullify the non-attribution requirement of Articles 3.5 
and 15.5.  Saudi Arabia notes that the price effects within the meaning of Articles 3.2 and 15.2 are one 
of the factors that the authorities must examine to determine whether the subject imports caused injury 
to the domestic industry under Articles 3.5 and 15.5.  In carrying out the causation analysis, an 
investigating authority must ensure that injury caused by other known factors is not wrongly 
attributed to the subject imports.183  This non-attribution requirement , however, would not be satisfied 
if an authority merely examined domestic or im port prices generally, rather than examining the 
specific price effects of dumped or subsidized imports .  Therefore, Saudi Arabia maintains, unless the 
adverse price effects are properly attributed to the subject imports, it would be impossible to 
determine whether such imports are responsible for the injured state of the domestic industry. 
                                                      
178Saudi Arabia's third participant's submission, para. 6 (quoting The Oxford English Dictionary 
Online , OED Online (Oxford University Press), a ccessed 9 August 2012, available online at: 
<http://www.oed.com/view/Entry/29147#eid9876036>). 
179Saudi Arabia's third participant's submission, para. 8. 
180Saudi Arabia's third participant's submissi on, para. 9 (quoting Appellate Body Report, EC – Bed 
Linen (Article 21.5 – India) , para. 111 (original emphasis)). 
181Saudi Arabia's third participant's submission, para. 9 (quoting Appellate Body Report, EC – Tube or 
Pipe Fittings , para. 111). 
182Saudi Arabia's third participant's submission, para. 9. (original emphasis) 
183Saudi Arabia's third participant's submission, para. 12 (referring to Appellate Body Report, 
US – Hot-Rolled Steel , paras. 226-228;  and Appellate Body Report, EC – Tube or Pipe Fittings , paras. 175 
and 188). WT/DS414/AB/R 
Page 42  
 
106. Saudi Arabia considers that the legal standard set out by the Panel for disclosure of essential 
facts is consistent with the text of Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement , as well as with established WTO jurisprude nce.  In Saudi Arabia's view, the proper 
legal standard should balance the interests of th e parties, who must have sufficient time and 
information to participate meaningfu lly in a trade remedy investigation,  with an authority's interest in 
efficient administration of the investigation. 
107. Saudi Arabia argues that the text of Artic les 6.9 and 12.8 imposes two "straightforward" 
obligations on an investigating authority:  (i) to  disclose "the essential facts under consideration which 
form the basis for the decision whether to apply defi nitive measures";  and (ii) "to do so in sufficient 
time so that parties can defend their interests".
184  In Saudi Arabia's view, the essential facts are those 
that "'underlie the investigating authority's final findings and conclusions' in respect of the essential 
elements that must exist in order to apply definite measures".185  Such facts also "include the 'facts 
necessary to the process of analysis and decision-making  by the investigating authority, not only those 
that support the decision ultimately reached '."186  Finally, Saudi Arabia submits that it should be 
ensured that the disciplines in Articles 6.9 and 12.8  permit interested parties to defend fully their 
interests by requiring authorities to disclose all reco rd evidence relating to the essential elements that 
must be established before the application of definitive measures. 
108. Saudi Arabia considers that the Panel's enunc iation of the public notice standard under 
Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement  appropriately 
balances the transparency obligations of both Ag reements with the practical concerns of the 
investigating authorities regarding the efficient ad ministration of trade remedy investigations.  
Saudi Arabia contends that the fi ndings of the Appellate Body in US – Countervailing Duty 
Investigation on DRAMS  offer a balanced approach that imposes manageable, yet important, public 
notice obligations on Members' investigating authoriti es.  In that dispute, the Appellate Body held 
that, although the text of Article 22.5 "do es not require the agency to cite or discuss every  piece of 
supporting record evidence for each fact in the final determination"187, the investigating authority 
"must provide a 'reasoned and ad equate explanation as to:  (i) how the evidence on the record 
                                                      
184Saudi Arabia's third participant's submissi on, para. 19 (referring to Panel Report, EC – Salmon 
(Norway) , para. 7.794).  
185Saudi Arabia's third participant's submission, para. 20 (quoting Panel Report, Mexico – Olive Oil , 
para. 7.110). 
186Saudi Arabia's third participant's submission, para. 20 (quoting Panel Report, EC – Salmon 
(Norway) , para. 7.807). (emphasis added by Saudi Arabia) 
187Saudi Arabia's third participant's submissi on, para. 24 (quoting Appellate Body Report, 
US – Countervailing Duty Investigation on DRAMS , para. 164 (original emphasis)).   WT/DS414/AB/R 
 Page 43 
 
 
supported its factual findings;  and (ii) how  those factual findings supported the overall … 
determination', and this should be directly 'd iscernible from the published determination itself'."188 
109. Finally, Saudi Arabia adds that the informati on that must be contained in the public notice 
depends on its relationship with the investigating authority's determina tion.  In the case of injury and 
price effects, if an authority's injury determina tion relies on certain price effects information, then 
such information must be included in the public notice announcing that determination. 
III. Issues Raised in This Appeal 
110. The following issues are ra ised in this appeal: 
(a) whether, in assessing MOFCOM's finding of significant price depression and 
suppression189, the Panel erred in finding that China acted inconsistently with 
Articles 3.1 and 3.2 of the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the 
SCM Agreement , and, in particular: 
(i) whether the Panel erred in its inte rpretation of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement ; 
(ii) whether the Panel erred in its application of Article 3.2 of the Anti-Dumping 
Agreement  and Article 15.2 of the SCM Agreement , read together with 
Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 of the 
SCM Agreement ;  and 
(iii) whether the Panel acted inconsistently  with its duty to make an objective 
assessment under Article 11 of the DSU; 
(b) whether, in relation to MOFCOM's price effects finding, the Panel erred in finding 
that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement  and 
Article 12.8 of the SCM Agreement by failing to disclose "essential facts";  and 
                                                      
188Saudi Arabia's third participant's submissi on, para. 24 (quoting Appellate Body Report, 
US – Countervailing Duty Investigation on DRAMS , para. 186). 
189In this Report, we also use the term "price e ffects finding" to refer to MOFCOM's finding of 
significant price depression and supp ression.  In addition, unless otherwise specified, we follow the practice of 
the parties and the Panel in using the term "price depression" or "significant price depression", and "price 
suppression" or "significant price suppression", as shorthan d references to the price effects that are identified in 
Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  as follows:  "to depress 
prices to a significant degree or [to] prevent price increases, which otherwise would have occurred, to a 
significant degree". WT/DS414/AB/R 
Page 44  
 
(c) whether, in relation to MOFCOM's price effects finding, the Panel erred in finding 
that China acted inconsistently with Article 12.2.2 of the Anti-Dumping Agreement 
and Article 22.5 of the SCM Agreement  by failing to disclose "all relevant 
information on the matters of fact". 
IV. The Scope of China's Appeal 
111. Before commencing our analysis of the issues rai sed in China's appeal, we consider it useful 
to discuss the scope of China's appeal and the impli cations for our review.  In its Notice of Appeal, 
China seeks review by the Appellate Body of the Pa nel's interpretation and application of Article 3.2 
of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  as it relates to the finding of 
adverse price effects of subject imports
190 by the Ministry of Commerce of the People's Republic of 
China ("MOFCOM"), that is, significant price depression and suppression.  Thus, China's Notice of Appeal does not include a request that the Appellate Body review the Panel's findings as they relate to 
Articles 3.1 and 15.1.  Nonetheless, in its appella nt's submission, China requests the Appellate Body 
to reverse the Panel's ultimate finding that MOFCOM 's price effects finding was inconsistent with 
Articles 3.1 and 3.2 of the Anti-Dumping Agreement , and Articles 15.1 and 15.2 of the 
SCM Agreement , on the basis of the Panel's alleged errors  in its interpretation and application of 
Articles 3.2 and 15.2.
191  China explains that, whereas Articles 3.1 and 15.1 set out the overarching 
principle that informs an investigating authority's analysis under subsequent paragraphs of Articles 3 
and 15, Articles 3.2 and 15.2 provide "all of the subs tantive content" of an investigating authority's 
obligation in considering adverse price effects.192  China adds that, although it is not challenging the 
Panel's interpretation and applica tion of Articles 3.1 and 15.1, it no netheless takes issue with how the 
Panel applied the overarching prin ciple under Articles 3.1 and 15.1 in characterizing the substantive 
content of an authority's obligation under Articles 3.2 and 15.2.193 
112. We recall that, before the Panel, the Unite d States alleged that MOFCOM's finding of 
significant price depression and suppression was inc onsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement , and Articles 15.1 and 15.2 of the SCM Agreement , because MOFCOM did 
not base its finding on "positive evidence", and di d not conduct an "objective examination", with 
respect to:  (i) the existence of significant price depression and suppression during the period of investigation;  and (ii) whether any such price depression and suppression were the effects of subject 
                                                      
190We use the term "subject imports" to refer to dumped and/or subsidized imports subject to an 
investigation. 
191China's appellant's submission, paras. 109 and 192. 
192China's appellant's submission, para. 50. 
193China's response to questioni ng at the oral hearing.  WT/DS414/AB/R 
 Page 45 
 
 
imports.194  In addressing these claims, the Panel began by noting that it was called upon to determine 
whether the quality of the evidence relied on by MOFCOM in its price effects finding met the 
"positive evidence" standard set forth in Article s 3.1 and 15.1, and whether MOFCOM undertook an 
objective examination of the evidence as required by  these provisions.  Subsequently, in examining 
the United States' claims in respect of MOFCOM 's price effects finding, the Panel applied the 
standard in Articles 3.2 and 15.2, in conjunction with  the obligation set out in Articles 3.1 and 15.1, in 
finding that MOFCOM's price effects finding was "inconsistent with Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement, and Articles 15.1 and 15.2 of the SCM Agreement".195 
113. Thus, the Panel did not make separate findings  under Articles 3.1 and 15.1, on the one hand, 
and Articles 3.2 and 15.2, on the other hand.  Rather , given that the standard in Articles 3.1 and 15.1 
informed the Panel's analysis of MOFCOM's pr ice effects finding under Articles 3.2 and 15.2, the 
Panel's finding of inconsistency under these provisions  was based on an integrated analysis of both 
sets of provisions.  Therefore, even though China has not challenged the Panel's interpretation and application of Articles 3.1 and 15.1, we consider th at our examination of th e Panel's analysis under 
Articles 3.2 and 15.2 cannot be conducted in isola tion from the Panel's analysis pursuant to the 
standard under Articles 3.1 and 15.1.  It follows that we will examine the Panel's analysis of 
MOFCOM's price effects finding in the light of th e interpretation of Articles 3.1 and 15.1 that has 
been developed in the Appellate Body's relevant jurisprudence.
196  
114. Finally, we recall that MOFCOM's price effects finding forms part of its overall 
determination regarding injury to the domestic i ndustry caused by the dumped and subsidized imports 
of grain oriented flat-rolled electrical steel ("GOES") from Russia197 and the United States.  Before 
the Panel, the United States' challenge of this de termination concerned:  (i) the consistency of 
MOFCOM's price effects finding with Articles 3.1 and 3.2 of the Anti-Dumping Agreement  and 
Articles 15.1 and 15.2 of the SCM Agreement ;  and (ii) the consistency of MOFCOM's causation 
finding with Articles 3.1 and 3.5 of the Anti-Dumping Agreement  and Articles 15.1 and 15.5 of the 
SCM Agreement .  The Panel upheld the United States' claims under all of these provisions.  China has 
                                                      
194Panel Report, paras. 7.485 and 7.490. 
195Panel Report, para. 7.554. 
196See Appellate Body Report, Thailand – H-Beams , paras. 106 and 107;  Appellate Body Report,  
US – Hot-Rolled Steel , paras. 192, 193, 196, and 204-206;  and Appellate Body Report, Mexico – Anti-Dumping 
Measures on Rice , paras. 163-166, 180, 181, 204, and 205.  See also Panel Report, para. 7.513 (referring to 
Appellate Body Report, US – Hot-Rolled Steel , para. 192;  and Appellate Body Report, Mexico – Anti-Dumping 
Measures on Rice , paras. 163 and 164). 
197As indicated in the Introduction of this Report, MOFCOM initiated an anti-dumping investigation on 
imports of GOES from both Russia and the United States, and initiated a countervailing duty investigation only 
with respect to GOES imports from the United States. (See supra , para. 2 and footnote 4 thereto)  Moreover, 
MOFCOM conducted a single injury and causation analysis relating to both the anti-dumping and 
countervailing duty investigations, and performed a cumulative assessment of injury by collectively taking into 
account GOES imports from both Ru ssia and the United States. (See supra , para. 3) WT/DS414/AB/R 
Page 46  
 
limited its appeal, however, to the Panel's finding with respect to MOFCOM's price effects finding, 
and does not appeal the Panel's finding that MOFC OM's causation finding was inconsistent with 
Articles 3.1 and 3.5 of Anti-Dumping Agreement  and Articles 15.1 and 15.5 of the SCM Agreement .
198  
Thus, the Panel's finding regarding MOFCOM's causa tion finding stands, even if we were to reverse 
the Panel's finding in respect of  MOFCOM's price effects finding. 
115. With the above considerations in mind, we turn to review the specific errors alleged by China 
regarding the Panel's interpretation and application of Articles 3.2 and 15.2. 
V. Interpretation of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  
116. China claims that the Panel erred in its interpretation of Article 3.2 of the Anti-Dumping 
Agreement  and Article 15.2 of the SCM Agreement in stating that: 
… merely showing the existence of  significant price depression [and 
suppression] does not suffice for the purposes of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement .  
An authority must also show that such price depression [and 
suppression are] an effect of the subject imports.
199 
China maintains that the Panel failed properly to analyze the meaning of Articles 3.2 and 15.2, and 
thereby imposed obligations on investigating author ities that are not found in these provisions.  China 
submits that the Panel's interpreta tive errors are further revealed by aspects of its examination of 
MOFCOM's price effects finding. 
117. In order to address China's claim regarding the a lleged errors in the Panel's interpretation, we 
begin by recalling the Panel's relevant findings an d the context in which the Panel made the above 
statement.  We then analyze the interpretation of the relevant obligations under Articles 3.2 and 15.2, 
as well as China's specific arguments concerning the Panel's errors in the interpretation of these 
provisions. 
A. The Panel's Findings 
118. Before the Panel, the United States alleged that MOFCOM's price effects finding was 
inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement , and Articles 15.1 and 15.2 of 
the SCM Agreement , because MOFCOM did not base its finding on positive evidence, and did not 
conduct an objective examination, with respect to :  (i) the existence of significant price depression 
                                                      
198Panel Report, paras. 7.638 and 8.1(g). 
199Panel Report, para. 7.520.  See also para. 7.547.  WT/DS414/AB/R 
 Page 47 
 
 
and suppression during the period of investigation;  and (ii) whether any such price depression and 
suppression were the effects of subject imports. 
119. With regard to the first part of the Unite d States' claim, the Panel found that MOFCOM 
properly determined that there existed significant price depression and suppression " per se " during the 
period of investigation.200  Specifically, the Panel found that MOFCOM's finding regarding the 
existence of price depression per se  could rest on its finding that domestic prices fell by 30.25% in the 
first quarter of 2009.201  Furthermore, the Panel found "no flaws"202 in MOFCOM's reliance on 
changes in the price-cost ratio of like domestic products to find the existence of price suppression 
per se  in 2008 and the first quarter of 2009. 
120. The Panel went on to examine the second part of the United States' claim.  MOFCOM found 
that significant price depression and suppression were the effects of subject imports, and the 
United States maintained that this finding of MOFCOM was not based on positive evidence and did 
not involve an objective examination.  The Panel not ed China's argument that the need to establish a 
link between price effects and subject imports is not contained in Articles 3.2 and 15.2, but rather is 
part of the broader obligations in Article 3.5 of the Anti-Dumping Agreement  and Article 15.5 of the 
SCM Agreement .203  The Panel then stated: 
Having regard to the text of the relevant provisions, we note that the 
analysis envisaged by the second sentence of Article 3.2 of the 
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement 
concerns "the effect of the [dumped/subsidized] imports on prices."  Furthermore, the authority must consider whether "the effect of [dumped/subsidized] imports is … to depress prices to a significant degree".  Accordingly, merely showing the existence of significant price depression does not suffice for the purposes of Article 3.2 of 
the Anti-Dumping Agreement and Article 15.2 of the 
SCM Agreement.  An authority must also show that such price depression is an effect of the subject imports.
204 
121. The Panel also found that "[t]he same necessarily  applies in respect of an authority's finding 
of price suppression."205  Applying this interpretation to the facts of the case, the Panel found that 
                                                      
200Panel Report, paras. 7.515-7.517 and 7.546. 
201Panel Report, para. 7.517. 
202Panel Report, para. 7.546. 
203Panel Report, para. 7.519. 
204Panel Report, para. 7.520. 
205Panel Report, para. 7.547. WT/DS414/AB/R 
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MOFCOM's finding that significant price depression and suppression were the effects of subject 
imports was neither made pursuant to an objec tive examination, nor b ased on positive evidence.
206 
B. Interpretation of Article 3.2 of the An ti-Dumping Agreement and Article 15.2 of the 
SCM Agreement 
122. Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement  provide: 
With regard to the volume of the [dumped or subsidized] imports, the 
investigating authorities shall cons ider whether there has been a 
significant increase in [dumped or subsidized] imports, either in absolute terms or relative to production or consumption in the importing Member.  With regard to the effect of the [dumped or subsidized] imports on prices, the investigating authorities shall 
consider whether there has been a significant price undercutting by 
the [dumped or subsidized] imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or [to] prevent price increases, which otherwise would have occurred, to a significant degree.  No one or sev eral of these factors can necessarily 
give decisive guidance. 
123. China contends that the Panel misinterpreted Articles 3.2 and 15.2 by erroneously requiring 
MOFCOM to demonstrate a causal link between subject imports, on the one hand, and significant 
price depression and suppression, on the other hand, even though these provisions do not impose such 
an obligation.  Rather, according to China, an inv estigating authority is only required to "consider" the 
"existence" of significant price depression or suppression.
207  In response, the United States contends 
that the Panel properly construed Articles 3.2 and 15 .2 as requiring an investigating authority to assess 
whether significant price depression and suppression in the market are the "effect of [dumped or 
subsidized] imports".208 
124. Thus, although three price effects are set out in Articles 3.2 and 15.2, the interpretative 
question raised by China on appeal concerns but two of these price effects.  Specifically, China's 
appeal raises the question as to the scope of an investigating authority's obligations, under Articles 3.2 
and 15.2, to "consider … whether the effect of such imports is otherwise to depress prices to a 
significant degree or prevent price increases, which otherwise would have occurred, to a significant degree".  To analyze this question, we first exam ine the framework for an injury determination under 
Article 3 of the Anti-Dumping Agreement  and Article 15 of the SCM Agreement , so as to situate in 
                                                      
206Panel Report, paras. 7.543 and 7.551.  The Panel's application of the relevant provisions to the facts 
of the case and China's appeal  in that regard is analy zed in section VI below. 
207China's appellant's submission, para. 78. 
208United States' appellee's submission, para. 30.  WT/DS414/AB/R 
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their context the specific obligations addressed by Chin a's appeal.  We then tu rn to the interpretation 
of specific terms in Articles 3.2 and 15.2 that are relevant to China's appeal. 
1. The Framework for an Injury Determin ation Provided by Article 3 of the 
Anti-Dumping Agreement  and Article 15 of the SCM Agreement  
125. Article 3 of the Anti-Dumping Agreement  and Article 15 of the SCM Agreement  are entitled 
"Determination of Injury".  The word "injury" is de fined in these agreements as "material injury to a 
domestic industry, threat of material injury to a domestic industry or material retardation of the 
establishment of such an industry".209  Articles 3 and 15 both contain sev eral paragraphs setting out an 
investigating authority's obligations with regard to  various aspects of an injury determination in anti-
dumping and countervailing duty investig ations.  Articles 3.1 and 15.1 re quire that a determination of 
injury "be based on positive evidence and involve an objective examination of both (a) the volume of 
the [dumped or subsidized] imports and the effect of the [dumped or subsidized] imports on prices in 
the domestic market for like products, and (b) the consequent impact of these imports on [the] 
domestic producers of such products". 
126. The Appellate Body has found that Article 3.1 of the Anti-Dumping Agreement  "is an 
overarching provision that sets  forth a Member's fundamental, substan tive obligation" with respect to the 
injury determination, and "informs the more detailed obligations in succeeding paragraphs".210  
According to the Appellate Body, the term "positive evidence" relates to the quality of the evidence that an investigating authority may rely upon in making  a determination, and requires the evidence to be 
affirmative, objective, verifiable, and credible.
211  Furthermore, the Appellate Body has found that the 
term "objective examinati on" requires that an investigating authority's examination "conform to the 
dictates of the basic principles of good faith and fundamental fairness", and be conducted "in an 
unbiased manner, without favouring the interests of any in terested party, or group of interested parties, 
in the investigation".212 
127. In addition to setting forth the overarching ob ligation regarding the manner in which an 
investigating authority must conduct a determinati on of injury caused by subject imports to the 
domestic industry, Articles 3.1 and 15.1 also outlin e the content of such a determination, which 
consists of the following components:  (i) the volum e of subject imports;  (ii) the effect of such 
imports on the prices of like domes tic products;  and (iii) the conseque nt impact of such imports on 
the domestic producers of the like products.  The other paragraphs under Articles 3 and 15 further 
elaborate on the three essential components referenced in Articles 3.1 and 15.1.  Articles 3.2 and 15.2 
                                                      
209Footnote 9 of the Anti-Dumping Agreement  and footnote 45 of the SCM Agreement . 
210Appellate Body Report, Thailand – H-Beams , para. 106. 
211Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
212Appellate Body Report, US – Hot-Rolled Steel , para. 193. WT/DS414/AB/R 
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concern items (i) and (ii) above, and spell out th e precise content of an investigating authority's 
consideration regarding the volume of subject imports and the eff ect of such imports on domestic 
prices.  Articles 3.4 and 15.4, together with Artic les 3.5 and 15.5, concern item (iii), that is, the 
"consequent impact" of the same imports on the dom estic industry.  More specifically, Articles 3.4 
and 15.4 set out the economic factors that must be ev aluated regarding the impact of such imports on 
the state of the domestic industry, and Articles 3. 5 and 15.5 require an investigating authority to 
demonstrate that subject imports are causing injury to the domestic industry.
213 
128. The paragraphs of Articles 3 a nd 15 thus stipulate, in detail, an investigating authority's 
obligations in determining the injury to the domes tic industry caused by subject imports.  Together, 
these provisions provide an investigating authority with the relevant framework and disciplines for 
conducting an injury and causation analysis.  These provisions contemplate a logical progression of 
inquiry leading to an investigating authority's u ltimate injury and causation determination.  This 
inquiry entails a consideration of the volume of subj ect imports and their price effects, and requires an 
examination of the impact of such imports on th e domestic industry as revealed by a number of 
economic factors.  These various elements are th en linked through a causation analysis between 
subject imports and the injury to the domestic industr y, taking into account all factors that are being 
considered and evaluated.214  Specifically, pursuant to Articles 3.5 and 15.5, it must be demonstrated 
that dumped or subsidized imports are causing injury " through  the effects of" dumping or subsidies 
"[a]s set forth in paragraphs 2 and 4".215  Thus, the inquiry set forth in Articles 3.2 and 15.2, and the 
examination required in Articles 3.4 and 15.4, are ne cessary in order to answer the ultimate question 
in Articles 3.5 and 15.5 as to whether subject imports  are causing injury to the domestic industry.  The 
outcomes of these inquiries thus form the basis fo r the overall causation analysis contemplated in 
Articles 3.5 and 15.5.  As further explained below,  the interpretation of Articles 3.2 and 15.2 should 
be consistent with the role these provisions play in  the overall framework of an injury determination 
under Articles 3 and 15. 
                                                      
213Additionally, Articles 3.3 and 15.3 stipulate the conditions under which an investigating authority 
may cumulatively assess the effects of imports from more than one country.  Articles 3.6 and 15.6 specify that 
the effect of the subject imports must be assessed in relation to the production of the like domestic product.  
Articles 3.7 and 3.8 of the Anti-Dumping Agreement  and Articles 15.7 and 15.8 of the SCM Agreement  set out 
the requirements regarding the determination of a threat of material injury. 
214As the Appellate Body has found, "Article 3.1 an d the succeeding paragraphs of Article 3 [of the 
Anti-Dumping Agreement ] clearly indicate that volume and prices [of the dumped imports], and the consequent 
impact on the domestic industry, are closely interrelated for purposes of the injury determination." (Appellate 
Body Report, EC – Tube or Pipe Fittings , para. 115) 
215Emphasis added.  WT/DS414/AB/R 
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2. The Obligation to "Consider" 
129. Turning to the obligations in Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of 
the SCM Agreement , an investigating authority is instru cted to "consider" a series of specific 
inquiries.  With regard to the volume of subject im ports, an investigating authority must "consider 
whether there has been a significant increase in [dumpe d or subsidized] imports".  With regard to the 
effect of such imports on domestic prices, the au thority must "consider whether there has been a 
significant price undercutting by the [dumped or subs idized] imports as compared with the price of a 
like product of the importing Member, or whether the e ffect of such imports is otherwise to depress 
prices to a significant degree or [to] prevent price increases, which otherwise would have occurred, to 
a significant degree". 
130. The notion of the word "consider", when cast as an obligation upon a decision maker, is to 
oblige it to take something into account  in reaching its decision.216  By the use of the word "consider", 
Articles 3.2 and 15.2 do not impose an obligation on an investigating authority to make a definitive 
determination  on the volume of subject imports and the e ffect of such imports on domestic prices.217  
Nonetheless, an authority's consideration  of the volume of subject im ports and their price effects 
pursuant to Articles 3.2 and 15.2 is also subject to the overarching principles, under Articles 3.1 and 15.1, that it be based on positive evidence and in volve an objective examination.  In other words, 
the fact that no definitive determination is required does not diminish the rigour that is required of the 
inquiry under Articles 3.2 and 15.2. 
131. Furthermore, while the consideration  of a matter is to be distinguished from the definitive 
determination of that matter, this does not diminish the scope of  what  the investigating authority is 
required to consider.  The fact that the authority is only required to consider , rather than to make a 
final determination , does not change the subject matter that  requires consideration under Articles 3.2 
and 15.2, which includes "whether the effect of" th e subject imports is to depress prices or prevent 
                                                      
216The meaning of the word "consider" includes "look at attentively", "think over", and "take into 
account". ( Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 496) 
217This stands in contrast with the words used in other paragraphs of Articles 3 and 15.  For example, 
the word "demonstrate" in Articles 3.5 and 15.5 requires an investigating authority to make a definitive 
determination regarding the causal relationship between subject imports and injury to the domestic industry.  
Relevant findings by panels in prior disputes also support the above understanding of the word "consider".  For example, the panel in Thailand – H-Beams  noted that the term "consider" in Article 3.2 does not require an 
explicit "finding" or "determination" by the investigating authority as to whether the increase in dumped imports 
is "significant". (Panel Report, Thailand – H-Beams , para. 7.161)  Similarly, the panel in Korea – Certain Paper  
stated that Article 3.2 does not generally require the investigating authority to make a determination about the 
"significance" of price effects, or indeed as to whether there were price effects as such. (Panel Report, Korea – 
Certain Paper , para. 7.253.  See also para. 7.242.) WT/DS414/AB/R 
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price increases to a significant degree.  We furt her discuss below what th is requirement entails.
218  
Finally, an investigating authority's consideration  under Articles 3.2 and 15.2 must be reflected in 
relevant documentation, such as an au thority's final determination, so as to allow an interested party to 
verify whether the authority indeed considered  such factors.219 
132. On appeal, China maintains that Articles 3. 2 and 15.2 impose "only a limited obligation on 
authorities" to "consider" the price effects of subject im ports, that is, to "examine;  look at attentively;  
[and] think carefully about" such price effects.220  China finds support for its position in the panels' 
findings in Korea – Certain Paper  and Thailand – H-Beams  that Article 3.2 of the Anti-Dumping 
Agreement  requires an investigating authority to consider  the price effects described therein, but does 
not require that a determinati on be made in this regard.221  In our view, China is correct that an 
investigating authority's obligation in this r espect does not require it to reach a definitive 
determination.  However, as noted above, this doe s not alter the subject matter of the authority's 
consideration, or the fact that the authority's consideration must be based on positive evidence and 
involve an objective examination, and must be reflected in relevant documentation, such as an 
authority's final determination. 
3. The Obligation to Consider "Whether the Effect of Such Imports" Is to 
Depress Prices or Prevent Price Increases 
133. The second sentence of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  provides that, "[w]ith regard to the effect  of the [dumped or subsidized] imports on 
prices", an investigating authority must consider  "whether there has been a significant price 
undercutting by the [dumped or subsidized] imports as compared with the price of a like product of 
the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree, or [to] prevent price increa ses, which otherwise would have occurred, to a 
significant degree".  As noted above, China's a ppeal regarding the Panel's interpretation of 
Articles 3.2 and 15.2 concerns an investigating author ity's obligation with respect to the last two price 
effects, that is, its obligation to consider whethe r the effect of dumped or subsidized imports is 
significant price depression or suppression.  We turn now to examine the interp retation of Articles 3.2 
and 15.2 with regard to an investigating authority's obligation to consider the effect of subject imports 
on domestic prices and, in particular, the last two price effects listed therein. 
                                                      
218See infra , paras. 133-154. 
219See, for example, Panel Report, Thailand – H-Beams , para. 7.161;  and Panel Report, 
Korea – Certain Paper , para. 7.253.   
220China's appellant's submission, para. 51 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 485). 
221China's appellant's submission, paras. 53 and 54 (referring to Panel Report, Thailand – H-Beams , 
para. 7.161;  and Panel Report, Korea – Certain Paper , para. 7.242).  WT/DS414/AB/R 
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(a) The Text of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  
134. China contends that Articles 3.2 and 15.2 do not  use any language that suggests the need to 
establish a link between domestic prices and subject  imports.  China notes that the ordinary meaning 
of the word "effect" is "something accomplished, caused or produced;  a result, a consequence".222  
According to China, therefore, the term "the effe ct of" simply means the consequence of a certain 
cause, and focuses on the consequence, rather than the cause.  In China's view, this is confirmed by 
the use of the word "effect" as a noun, rather than as a verb, because the element of causation 
becomes relevant only when the word is used as a verb meaning to "bring about".223 
135. The definition of the word "effect" is,  inter alia , "something accomplished, caused, or 
produced;  a result, a consequence".224  The definition of this word thus implies that an "effect" is "a 
result" of something else.  Although the word "effect " could be used independently of the factors that 
produced it, this is not the case in Articles 3.2 and 15.2.  Rather, these provisions postulate certain inquiries as to the "effect" of subject imports on do mestic prices, and each inquiry links the subject 
imports with the prices of the like domestic products. 
136. First, an investigating authority must consid er "whether there has been a significant price 
undercutting by the [dumped or subsidized ] imports as compared with  the price of a like product of 
the importing Member".
225  Thus, with regard to significant price undercutting, Articles 3.2 and 15.2 
expressly establish a link between the price of subject  imports and that of like domestic products, by 
requiring that a comparison be made between the two.   Second, an investigating authority is required 
to consider " whether  the effect of such [dumped or subsidized ] imports " on the prices of the like 
domestic products is to depress or suppress such prices to a significant degree.226  B y  a s k i n g  t h e  
question " whether the effect of " the subject imports  is significant price depression or suppression, the 
second sentence of Articles 3.2 and 15.2 specifically in structs an investigating authority to consider 
whether certain price effects are the consequences of subject imports.  Moreover, the syntactic relation expressed by the terms " to depress prices" and "[ to] prevent price increases" is of a subject 
(dumped or subsidized imports) doing something to  an object (domestic prices).  The language of 
Articles 3.2 and 15.2 thus expressly links signifi cant price depression and suppression with subject 
imports, and contemplates an inquiry into the re lationship between two variables, namely, subject 
                                                      
222China's appellant's submission, para. 55 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786).  
223China's appellant's submission, para. 58 (quoting The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786). 
224Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 798. 
225Emphasis added. 
226Emphasis added. WT/DS414/AB/R 
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imports and domestic prices.  More specifically, an investigating authority is required to consider 
whether a first variable—that is, subject impor ts—has explanatory force for the occurrence of 
significant depression or suppression of a second variable—that is, domestic prices.   
137. The two inquiries set out in the second sentence of Articles 3.2 and 15.2 are separated by the 
words "or" and "otherwise".  This indicates that the elements relevant to the consideration of 
significant price undercutting may differ from those rele vant to the consideration of significant price 
depression and suppression.  Thus, even if prices of subject imports do not significantly undercut 
those of like domestic products, subject imports could still have a price-depressing or price-
suppressing effect on domestic prices. 
138. Given that Articles 3.2 and 15.2 contemplate an inquiry into the relationship between subject 
imports and domestic prices, it is  not  sufficient for an investigating authority to confine its 
consideration to what is happening to domestic pr ices for purposes of considering significant price 
depression or suppression.  Thus, for example, it w ould not be sufficient to identify a downward trend 
in the price of like domestic products over the pe riod of investigation when considering significant 
price depression, or to note that prices have not ri sen, even though they would normally be expected 
to have risen, when analyzing significant price supp ression.  Rather, an investigating authority is 
required to examine domestic pric es in conjunction with subject im ports in order to understand 
whether subject imports have explanatory force for the occurrence of significant depression or 
suppression of domestic prices.  Moreover, the reference to "the effect of such [dumped or subsidized ] 
imports "
227 in Articles 3.2 and 15.2 indicates that the e ffect stems from the relevant aspects of such 
imports, including the price and/or the volume of such imports. 
139. In our view, therefore, China's argument, that Articles 3.2 and 15.2 do not use any language 
suggesting the need to establish a link between subject imports and domestic prices, focuses on a meaning of the word "effect" abstracted from the imme diate context in which this word is situated.  
As noted, Articles 3.2 and 15.2 expressly postulate an  inquiry into the relationship between subject 
imports and domestic pr ices by requiring a consideration of whether  the effect of subject imports is to 
depress or suppress domestic prices.  The fact that the word "effect" is used as a noun does not mean 
that the link between domestic prices and subject  imports expressly referenced in these provisions 
need not be analyzed. 
140. We are also not persuaded by China's relian ce on the alleged difference between the word 
"effect" in Articles 3.2 and 15.2, on the one hand, and the word "affecting" in Articles 3.4 and 15.4, 
on the other hand, in support of its interpretation.  China argues that the wo rd "effect" is concerned 
                                                      
227Emphasis added.  WT/DS414/AB/R 
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with the present situation, but does not "imply a causal relationship between the effect itself and any 
particular prior event".228  In contrast, the word "affect", which means "to have an effect on", does not 
refer to the status quo but rather is  concerned with how the status quo came to be.  Contrary to China's 
argument, Articles 3.2 and 15.2 link the "effect" on dom estic prices with the "particular prior event" 
leading to it, that is, the subject imports, by specifically requiring the investigating authority to 
consider whether the effect of subject imports  is " to depress prices" or "[ to] prevent price 
increases".229  These infinitives—"to depress" and "to prev ent"—specify the way in which the subject 
imports may "affect" domestic prices.  Therefore, the language used in Articles 3.2 and 15.2 does not 
simply refer to a "status quo", but rather instruct s the investigating authority to consider whether 
subject imports have explanatory force for certain specified consequences, that is, the significant 
depression or suppression of domestic prices. 
141. Our interpretation is reinforced by the ve ry concepts of price depression and price 
suppression.230  Price depression refers to a situation in which prices are pushed down, or reduced, by 
something .  An examination of price depression, by definition, calls for more than a simple 
observation of a price decline , and also encompasses an analysis of what  is pushing down the prices.  
With regard to price suppression, Articles 3.2 and 15.2  require the investigating authority to consider 
"whether the effect of" subject imports is "[to] prevent price increases,  which otherwise would have 
occurred , to a significant degree".231  By the terms of these provisions, price suppression cannot be 
properly examined without a consideration of whet her, in the absence of subject imports, prices 
"otherwise would have" increased.  The concepts of price depression and price suppression thus both 
implicate an analysis concerning the question of  what brings about such price phenomena. 
142. Therefore, a consideration of significant pr ice depression or suppression under Articles 3.2 
and 15.2 encompasses by definition an analysis of whether the domestic prices are depressed or 
suppressed by subject imports.  As a corollary of this understanding, Articles 3.2 and 15.2 would 
                                                      
228China's appellant's submission, para. 60. 
229Emphasis added. 
230In US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body recognized that the concepts of 
price suppression and price depression could overlap, but it also pointed out that Article 6.3(c) of the 
SCM Agreement mentions them as distinct concepts.  Specifically,  the Appellate Body noted that: 
… price depression is a directly observable phenomenon, [whereas] price 
suppression is not so.  Falling prices can be observed;  by contrast, price 
suppression concerns whether prices are less than they would otherwise 
have been in consequence of various factors, in this case, the subsidies.  The 
identification of price suppression, ther efore, presupposes a comparison of 
an observable factual situation (prices) with a counterfactual situation (what 
prices would have been) where one has to determine whether, in the absence 
of the subsidies ... prices would have increased or would have increased more than they actually did. 
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 351) 
231Emphasis added. WT/DS414/AB/R 
Page 56  
 
appear to make a unitary analysis of the effect of  subject imports on domestic prices more appropriate, 
rather than a two-step analysis that first seeks to identify the market phenomena and then, as a second 
step, examines whether such phenomena are an effect of  subject imports.  In this regard, we recall that 
the concepts of price depression and price suppression also exist under Article 6.3 of the SCM Agreement .  Article 6.3 provides that, through the use of subsidies by a Member, serious 
prejudice to the interests of another Member may ar ise where the effect of the subsidies is certain 
market phenomena, including, inter alia , significant suppression or depression of the price of a like 
product of another Member in the same market.  Th e Appellate Body has found that consideration of 
the effect of the challenged subsidies is intrinsic to the identification of those market phenomena.  
Thus, "[a]ny attempt to identify one of the market  phenomena in Article 6.3 without considering the 
subsidies at issue can only be preliminary in na ture since Article 6.3 requires that the market 
phenomenon be the effect of the challenged subsidy."
232  Similarly, in the context of Articles 3.2 
and 15.2, we consider that a unitary approach to  the analysis of significant price depression and 
suppression would be preferred because it "has a sound conceptual foundation".233  In this dispute, 
therefore, we consider the Panel's finding of the "existence" of price depression and price suppression 
"per se "234 as being merely of a preliminary nature.  Moreover, "[t]his also means that a two-step 
approach simply defers the core of  the analysis to the second step."235  Thus, a panel does not 
necessarily commit a legal error if it chooses to c onduct a two-step analysis, as long as the panel also 
examines , as a second step, whether "the effect of" subject imports is significant price depression or 
suppression. 
(b) The Context of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement  
143. Having analyzed the relevant text of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement , we turn to examine the interpretation of these provisions in the 
light of their proper context.  As discussed above236, the various paragraphs under Articles 3 and 15 
provide an investigating authority with the re levant framework and disciplines for conducting an 
injury and causation analysis.  These provisions co ntemplate a logical progression in an authority's 
examination leading to the ultimate injury and causa tion determination.  Moreover, by virtue of the 
phrase " through  the effects of" dumping or subsidies "[ a]s set forth in paragraphs 2 and 4"237, 
Articles 3.5 and 15.5 make clear that the inquiries set forth in Articles 3.2 and 15.2, and the examination required in Articles 3.4 and 15.4, are n ecessary in order to answer the ultimate question 
                                                      
232Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1109. 
233Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 354. 
234Panel Report, paras. 7.515-7.517 and 7.546. 
235Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 1109. 
236See supra , paras. 125-128. 
237Emphasis added.  WT/DS414/AB/R 
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in Articles 3.5 and 15.5 as to whether subject imports  are causing injury to the domestic industry.  The 
outcomes of these inquiries thus form the basis fo r the overall causation analysis contemplated in 
Articles 3.5 and 15.5. 
144. The context of Articles 3.2 and 15.2 thus make s clear that the analysis pursuant to these 
provisions is intended to develop  an investigating authority's overall examination under Articles 3 
and 15 towards  a definitive determination on the injury caused by subject imports to the domestic 
industry.  In this regard, an investigating authorit y's inquiry regarding the last two price effects listed 
in Articles 3.2 and 15.2 must provide it with a me aningful understanding of whether subject imports 
have explanatory force for the significant depressi on or suppression of domestic prices that may be 
occurring in the domestic market.  This understandi ng, in turn, allows the authority to determine 
whether subject imports, through their price effects, are causing injury to the domestic industry within 
the meaning of Articles 3.5 and 15.5.  Therefore, th e context of Articles 3.2 and 15.2 also supports the 
view that, under these provisions, the authority must  conduct an analysis of the relationship between 
subject imports and domestic prices , and, in particular, of whether such imports have explanatory 
force for the significant depression or suppression of domestic prices, in order to have a meaningful 
basis on which to conduct its causation analysis pursuant to Articles 3.5 and 15.5. 
145. On appeal, China submits that various provisions under Articles 3 and 15 "expressly 
distinguish" between the existence of price effects and the consequent impact of subject imports.238  
Thus, China argues, the price effects considered under Articles 3.2 and 15.2 are not themselves the 
result of a causation determination.  Rather, they serve as the basis for the causation determination 
required under Articles 3.5 and 15.5.  We agree that the analysis under Articles 3.2 and 15.2 serves as a basis for the analysis under Articles 3.5 and 15.5 concerning injury caused by subject imports to the domestic industry and the non-attribution of injury cau sed by other factors.  Nonetheless, we fail to 
see why this precludes an interpretation whereby an i nvestigating authority, in carrying out the inquiry 
under Articles 3.2 and 15.2, is required to consider  the explanatory force of the subject imports in 
relation to the significant depression or suppression of domestic prices.  On the contrary, without such 
a consideration, the authority would not be able to ensure that its analysis regarding price depression 
or suppression under Articles 3.2 and 15.2 provides a meaningful basis on which it could further 
analyze whether, through such pr ice effects, subject imports are causing injury to the domestic 
industry within the meaning of Articles 3.5 and 15.5. 
146. Moreover, China's argument that Articles 3.2 and 15.2 merely concern the "existence" of 
price effects, and do not concern a link between such effects and the subject imports, reflects a flawed interpretation of the term "the effect of" in these provisions.  As noted above, China's interpretation 
                                                      
238China's appellant's submission, para. 73. WT/DS414/AB/R 
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fails to situate the term "the effect of" in th e context of the inquiry required under Articles 3.2 
and 15.2.  This inquiry expressly links the described price effects with the subject imports by 
requiring an investigating authority to consider "whether the effect of such [dumped or subsidized ] 
imports " is to depress or suppress domestic prices to a significant degree. 
147. Interpreting Articles 3.2 and 15.2 as requiring a consideration of the relationship between 
subject imports and domestic pric es does not result in duplicating the causation analysis under 
Articles 3.5 and 15.5.  Rather, Articles 3.5 and 15.5,  on the one hand, and Articles 3.2 and 15.2, on the 
other hand, posit different inquiries.  The analysis  pursuant to Articles 3.5 and 15.5 concerns the 
causal relationship between subject imports  and injury  to the domestic industry.  In contrast, the 
analysis under Articles 3.2 and 15.2 concerns the re lationship between subject imports and a different 
variable, that is, domestic prices .  As discussed, an understanding of the latter relationship serves as a 
basis for the injury and causation analysis under Articles 3.5 and 15.5.  In addition, Articles 3.5 
and 15.5 require an investigating authority to de monstrate that subject imports are causing injury 
"through the effects of [dumping or subsidies]", as  set forth in Articles 3.2 and 15.2, as well as in 
Articles 3.4 and 15.4.  We recall that Articles 3.4 and 15.4 require an investigating authority to 
examine the impact of subject imports on the domes tic industry on the basis of "all relevant economic 
factors and indices having a bearing on the state of the industry", and provide a list of such factors and indicia that the authority must evaluate.  T hus, the examination under Articles 3.5 and 15.5 
encompasses "all relevant evidence" before the aut hority, including the volume of subject imports and 
their price effects listed under Articles 3.2 and 15.2, as well as all relevant economic factors 
concerning the state of the domestic industry listed in Articles 3.4 and 15.4.  The examination under 
Articles 3.5 and 15.5, by definition, covers a broade r scope than the scope of the elements considered 
in relation to price depression and suppression under Articles 3.2 and 15.2. 
148. China maintains that Articles 3.2 and 15.2, like Articles 3.4 and 15.4, are concerned with the 
evaluation of relevant indicia concerning the domest ic industry.  Specifically, Articles 3.2 and 15.2 
instruct an investigating authority to consider "the effect of" subject imports on domestic prices, and 
Articles 3.4 and 15.4 direct an investigating author ity to examine relevant economic factors regarding 
"the impact of" such imports on the domestic industr y.  In China's view, therefore, if Articles 3.2 
and 15.2 are interpreted as requiring a considerati on of the relationship betw een subject imports and 
domestic prices, Articles 3.4 and 15.4 must also be  interpreted as requiring an examination of the link 
between subject imports, on the one hand, and each of the economic factors listed in Articles 3.4 
and 15.4, on the other hand.  Such a result would lead to a duplicative analysis of causation at each  WT/DS414/AB/R 
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step of an investigating authority's examination under Articles 3 and 15, and grafts onto Articles 3.2 
and 15.2, as well as Articles 3.4 and 15.4, an ob ligation that exists under Articles 3.5 and 15.5.239 
149. We recall that Articles 3.4 and 15.4 requir e an investigating authority to examine the impact 
of subject imports on the domestic industry  on the basis of "all relevant economic factors and indices 
having a bearing on the state of the industry".  Articles 3.4 and 15.4 thus do not merely require an examination of the state of the domestic industry, bu t contemplate that an investigating authority must 
derive an understanding of the impact of subject imports on the basis of such an examination.  
Consequently, Articles 3.4 and 15.4 are concerned w ith the relationship between subject imports and 
the state of the domestic industry, and this relationship is analytically akin to the type of link contemplated by the term "the effect of" under Ar ticles 3.2 and 15.2.  In other words, Articles 3.4 
and 15.4 require an examination of the explanator y force of subject imports for the state of the 
domestic industry.  In our view, such an interpre tation does not duplicate the relevant obligations in 
Articles 3.5 and 15.5.  As noted, the inquiry set forth in Articles 3.2 and 15.2, and the examination required under Articles 3.4 and 15. 4, are necessary in order to answer the ultimate question in 
Articles 3.5 and 15.5 as to whether subject imports ar e causing injury to the domestic industry.  The 
outcomes of these inquiries form the basis for the overall causation analysis contemplated in 
Articles 3.5 and 15.5.  Thus, similar to the consid eration under Articles 3.2 and 15.2, the examination 
under Articles 3.4 and 15.4 contributes to , rather than duplicates, the overall determination required 
under Articles 3.5 and 15.5. 
150. Moreover, an investigating authority is required to examine  the impact of subject imports on 
the domestic industry pursuant to Articles 3.4 and 15.4, but is not required to demonstrate  that subject 
imports are causing injury to the domestic industry.  Rather, the latter analysis is specifically mandated by Articles 3.5 and 15.5.  The demonstra tion of the causal relationship under Articles 3.5 
and 15.5 requires an investigating authority to exam ine "all relevant evidence" before it, and thus 
covers a broader scope than the examination under Articles 3.4 a nd 15.4.  As discussed below, 
Articles 3.5 and 15.5 further impose a requirement to  conduct a non-attribution analysis regarding all 
factors causing injury to the domestic industry.  Given these intrinsic differences between Articles 3.4 
and 15.4, on the one hand, and Articles 3.5 and 15.5, on the other hand, we do not consider that our 
interpretation leads to a "duplicative anal ysis of causation", as China suggests.  
151. Articles 3.5 and 15.5 require an investigating authority to "examine any known factors other 
than the [dumped or subsidized] imports which at the same time are injuring the domestic industry", 
and to ensure that "the injuries caused by these othe r factors [are not] attributed to the [dumped or 
                                                      
239China's appellant's submission, para. 101;  China's response to questioning at the oral hearing. WT/DS414/AB/R 
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subsidized] imports".
240  As the Appellate Body has found, the non-attribution language of 
Articles 3.5 and 15.5 requires that "an assessment must involve separating and distinguishing the 
injurious effects of the other factors from the injurious effects of the dumped imports".241  In contrast, 
Articles 3.2 and 15.2 require an investigating auth ority to consider the relationship between subject 
imports and domestic prices , so as to understand whether the form er may have explanatory force for 
the occurrence of significant depression or suppression of  the latter.  For this purpose, the authority is 
not required to conduct a fully fle dged and exhaustive analysis of all known factors that may cause 
injury  to the domestic industry, or to separate and distinguish the injury  caused by such factors. 
152. This does not mean that an investigating aut hority may disregard evidence that calls into 
question the explanatory force of subject imports for significant depression or suppression of domestic prices.  Rather, where an authority is faced with el ements other than subject imports that may explain 
the significant depression or suppression of domestic prices, it must consider relevant evidence 
pertaining to such elements for purposes of unders tanding whether subject imports indeed have a 
depressive or suppressive effect on domestic prices.  This understanding is also reinforced by the very 
concept of price suppression under Articles 3.2 a nd 15.2, which concerns prevention of price 
increases "which otherwise would have occurred" .  Moreover, by taking into account evidence 
pertaining to such elements, an authority also en sures that its consideration of significant price 
depression and suppression under Articles 3.2 and 15.2 is properly based on positive evidence and 
involves an objective examination, as required by Articles 3.1 and 15.1. 
(c) The Objective of Article 3 of the Anti-Dumping Agreement  and 
Article 15 of the SCM Agreement  
153. As described above
242, the various paragraphs under Article 3 of the Anti-Dumping Agreement  
and Article 15 of the SCM Agreement  set forth, in detail, an investigating authority's obligations in 
determining the injury to the domestic industry caused  by subject imports.  Thus, it may be discerned, 
from the totality of these paragraphs, that Articl es 3 and 15 are intended to delineate the framework 
and relevant disciplines for the authority's analysis  in reaching a final determination on the injury 
caused by subject imports, and to ensure that the analysis and the conclusion drawn therefrom is 
robust.  Thus, we are unable to agree with China's contention that interpreting Articles 3.2 and 15.2 as 
setting forth "more limited" obligations properly r espects the "object and purpose" of "leav[ing] the 
                                                      
240Pursuant to Articles 3.5 and 15.5, these other factors include the volume and prices of imports not 
sold at dumped or subsidized prices;  contraction in demand or changes in the patterns of consumption;  trade-
restrictive practices of, and competi tion between, the foreign and domestic producers;  developments in 
technology;  and the export performance and productivity of the domestic industry. 
241Appellate Body Report, US – Hot-Rolled Steel , para. 223. 
242See supra , paras. 125-128.  WT/DS414/AB/R 
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authorities with discretion on the issue of price effects".243  The requirement to consider whether 
subject imports have explanatory force for significant price depression or suppression occurring in the 
domestic market, pursuant to Articles 3.2 and 15.2, is not within the "discretion" of the investigating 
authority.  Rather, it is an obligation that stems fro m the language of the provisions and forms part of 
the framework and relevant disciplines set out in Articles 3 and 15 for the authority's injury and 
causation determination.  The objective of Articles 3 and 15, therefore, does not place the limitation 
on the interpretation of Articles 3.2 and 15.2 suggested by China.  
4. Summary of the Interpretation of Article 3.2 of the Anti-Dumping Agreement  
and Article 15.2 of the SCM Agreement  
154. In sum, we reach the above interpretation on the b asis of the text and context of Article 3.2 of 
the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , together with the objective of 
Articles 3 and 15 discerned from various paragraphs th ereunder.  Specifically, with regard to price 
depression and suppression under the second sentence of Articles 3.2 and 15.2, an investigating 
authority is required to consider  the relationship between subject imports and prices of like domestic 
products, so as to understand whether subject imports provide explanatory force for the occurrence of 
significant depression or suppression of domestic prices.  The outcome of this inquiry will enable the authority to advance its analysis, and to have a m eaningful basis for its determination as to whether 
subject imports, through such price effects, are causi ng injury to the domestic industry.  Moreover, the 
inquiry under Articles 3.2 and 15.2 does not duplicate the different and broade r examination regarding 
the causal relationship between subject imports a nd injury to the domestic industry pursuant to 
Articles 3.5 and 15.5.  Neither do Articles 3.2 and 15 .2 require an authority to conduct an exhaustive 
and fully fledged non-attribution analysis regarding all possible factors that may be causing injury to 
the domestic industry.  Rather, the investigating authority's inquiry under Articles 3.2 and 15.2 is 
focused on the relationship between subject imports  and domestic prices, and the authority may not 
disregard evidence that calls into question the explanatory force of the former for significant 
depression or suppression of the latter. 
C. The Panel's Interpretation of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement 
155. Having set out the proper interpretation of th e relevant elements of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , we turn to examine China's claim 
that the Panel erred in its interpretation of these pr ovisions.  China maintains that the Panel failed to 
analyze properly the meaning of the terms "consider " and "effect" in Articles 3.2 and 15.2.  Instead, 
the Panel erroneously incorporated the stricter  standard of causation provided under Articles 3.5 
                                                      
243China's appellant's submission, para. 86. WT/DS414/AB/R 
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and 15.5 into Articles 3.2 and 15.2.  China also  submits that the Pane l misconstrued guidance 
provided by relevant jurisprudence and wrongly reject ed China's attempt to dr aw on such guidance.  
Finally, China argues that the Panel's interpretati ve error is manifested in its analysis of the 
United States' claim regarding MOFCOM's finding of significant price suppression.  We briefly recall the Panel's interpretation, before addressi ng, in turn, each of China's arguments. 
156. In interpreting Articles 3.2 and 15.2, the Panel found that: 
Having regard to the text of the relevant provisions, we note that the 
analysis envisaged by the second sentence of Article 3.2 of the 
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement concerns "the effect of the [dumped/subsidized] imports on prices."  Furthermore, the authority must consider  whether "the effect of 
[dumped/subsidized] imports is … to depress prices to a significant 
degree".  Accordingly, merely showing  the existence of significant 
price depression does not suffice for the purposes of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement.  An authority must also show  that such price 
depression is an effect of the subject imports.
244 
The Panel also found that "[t]he same necessarily a pplies in respect of an authority's finding of price 
suppression."245  The Panel thus conducted a very brief analysis regarding the interpretation of 
Articles 3.2 and 15.2.  The Panel noted that these provisions require an inve stigating authority to 
consider "whether the effect of" subject impor ts is to depress or suppress domestic prices to a 
significant degree.  On this basis, the Panel f ound that these provisions impose the obligation to 
"show" that price depression and suppression is an effect of subject imports. 
157. China refers to the Panel's statemen t that "[a]n authority must also show  that such price 
depression is an effect of the subject imports"246, quoted above, as well as its statement that "an 
investigating authority must demonstrate  that price depression is an effect of subject imports".247  
China asserts that, in making these statements, the Pa nel ignored the term "consider" in Articles 3.2 
and 15.2 and, instead, created an obligation to "d emonstrate" or "show" a causal link between subject 
imports and price effects, despite the absen ce of such an obligation under these provisions.248   
158. As discussed above, by virtue of the word "consid er", an investigating authority is required to 
take into account the price effects listed in Artic les 3.2 and 15.2 in reaching its overall injury and 
causation determination.  Thus, the authority is not  required to make a definitive determination of 
                                                      
244Panel Report, para. 7.520. (emphasis added) 
245Panel Report, para. 7.547. 
246Panel Report, para. 7.520. (emphasis added) 
247Panel Report, para. 7.547. (emphasis added) 
248China's appellant's submission, paras. 93 and 104 (referring to Panel Report, para. 7.520).  WT/DS414/AB/R 
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significant price depression and suppression, such as the determination contemplated in Articles 3.5 
and 15.5, where it must "demonstrate" the causal relationship between subject imports and injury to 
the domestic industry.  We note that the Panel began its analysis by stating, correctly, that Articles 3.2 
and 15.2 require an investigating authority to "consid er" whether the effect of subject imports is price 
depression.  The Panel nonetheless went on to use the words "show" and "demonstrate", which seem 
to suggest a different standard.  In our view, to  the extent the Panel used the words "show" and 
"demonstrate" to mean that an authority is required to make a definitive determ ination, the Panel's use 
of these words is not consistent with a proper unde rstanding of the word "consider" in Articles 3.2 
and 15.2.  However, to the extent the Panel used the words "show" and "demonstrate" to mean that the 
authority's consideration of price effects must be reflected in relevant documentation produced by the 
authority in its investigation, and must be based on positive evidence and involve an objective 
examination, this is consistent w ith our interpretation, set out above , that the consideration of price 
effects must conform to the standard in Articl es 3.1 and 15.1 and be reflected in relevant 
documentation.249 
159. Whatever the ambiguity in the Panel's use of  the words "show" and "demonstrate", we agree 
with the Panel that, because Articles 3.2 and 15.2 require an investigating authority to consider 
whether the effect of  subject imports is to depress prices of like domestic products to a significant 
degree, " merely showing  the existence of significant price depression does not suffice for the purposes 
of Article 3.2 of the Anti-Dumping Agreemen t and Article 15.2 of the SCM Agreement".250  W e  
recall our interpretation, set out above251, that Articles 3.2 and 15.2 contemplate an inquiry into the 
relationship between two variables, whereby an auth ority must consider whether a first variable—that 
is, subject imports—has explanatory force for the occurrence of depression or suppression of a second variable—that is, domestic prices.  Thus, as the Panel rightly found, it is  not sufficient for an authority 
to confine its consideration to wh at is happening to domestic prices alone for purposes of the inquiry 
stipulated in Articles 3.2 and 15.2. 
160. China further alleges that the Panel " appear [ed] to interpret the word 'effect' as if it were the 
word 'affect'", thereby improperly reading into Articles 3.2 and 15.2 a requirement that MOFCOM 
demonstrate that imports "affected" domestic prices.
252  As support for this assertion, China relies on 
the following:  (i) the Panel's articulation of the relevant obligation under Articles 3.2 and 15.2, as 
quoted above;  (ii) the Panel's discussion of the finding in the panel report in EC – Countervailing 
                                                      
249See supra , paras. 129-132. 
250Panel Report, para. 7.520. (emphasis added) 
251See supra , paras. 135-142. 
252China's appellant's submission, para. 92 (referring to Panel Report, paras. 7.521 and 7.522). 
(emphasis added) WT/DS414/AB/R 
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Measures on DRAM Chips ;  and (iii) as an illustration of the in terpretation reached by the Panel, the 
Panel's analysis of MOFCOM's finding regarding significant price suppression. 
161. With regard to the Panel's articulation of the relevant obligation under Articles 3.2 and 15.2, 
China acknowledges that the Panel's analysis am ounts to "a restatement of the text of the 
provision".
253  To the extent the Panel's interpretation re presents a mere restatement of the text of 
Articles 3.2 and 15.2, that, in itself, is not an erro r.  Nonetheless, a mere restatement, in our view, 
does not do justice to the interpretative question that w as before the Panel.  In any event, we are also 
not persuaded by the argument that, under the Pane l's interpretation, the obligations regarding the 
causation analysis between subject imports and injury to the domestic industry pursuant to 
Articles 3.5 and 15.5 are "duplicated" in Articles 3.2 and 15.2.254  The Panel merely repeated what is 
expressly required under these provisions, namely, that  an investigating authority must consider 
"whether the effect of" subject imports is to depress or suppress domestic prices to a significant 
degree.  Moreover, as discussed above, interpreti ng Articles 3.2 and 15.2 as requiring a consideration 
of the explanatory force of subject imports for significant depression and suppression of domestic prices does not result in duplicating the causation an alysis under Articles 3.5 and 15.5.  Rather, the 
analysis under Articles 3.5 and 15.5 concerns th e causal relationship between subject imports and 
injury to the domestic industry , and covers a broader scope of elem ents than those relevant to an 
analysis under Articles 3.2 and 15.2. 
162. With regard to the Panel's discussion of the panel's finding in EC – Countervailing Measures 
on DRAM Chips , China submits that the Panel misconstr ued the guidance provided by the panel 
report in that dispute.  According to China, the Panel failed to recognize the panel's finding in that dispute that Article 15.2 of the SCM Agreement  does not require the investigating authority to draw a 
causal link between subsidized imports and price effects. 
163. In response to China's reliance on the panel report in EC – Countervailing Measures on 
DRAM Chips , the Panel distinguished that dispute from the present dispute, stating that: 
… the panel in EC – Countervailing Measures on DRAM Chips  was 
dealing with a different issue than th e one at hand.  In particular, that 
panel had to consider Korea's clai m that the European Communities 
should have examined a variety of factors known to have been affecting domestic prices, in additi on to subject imports.  The panel 
reasoned that such analysis of all known factors was not required 
under Article 15.2 of the SCM Agreement, but noted that such analysis was required under Article 15.5 of the SCM Agreement.  
The Panel in the present case is not c onfronted with this issue.  The 
                                                      
253China's appellant's submission, para. 90. 
254China's appellant's submission, para. 100.  WT/DS414/AB/R 
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United States is not suggesting that MOFCOM should have considered the effect of other known factors on domestic prices.  The United States is merely suggesting that MOFCOM was required, by Article 15.2 of the SCM Agreement, to consider the effect of subject imports on prices.
255 
China takes issue with the last two sentences quoted above, arguing that the Panel "attempt[ed] to 
create a distinction without a difference", because the requirement to consider the effects of other 
known factors, and the requirement to consider the effect of subject imports  on domestic prices, both 
stem from the same obligation to establish a causal link.256 
164. We note that the issue before the panel in EC – Countervailing Measures on DRAM Chips  
was whether, in the context of a price undercutting analysis, the investigating authority was required 
to consider a number of other factors affecting prices of dynamic random access memory chips 
(DRAMs) in the domestic market.257  The panel in that dispute found that, with regard to price 
undercutting, Article 15.2 of the SCM Agreement  does not require an investigating authority "to 
establish a causal link between the subsidized impor ts and the domestic prices  which would require it 
to examine all other factors  affecting domestic prices at the same time".258  Thus, in making this 
finding, the panel was of the view that the inquiry under Article 15.2 "focuse[d] on the effect of the 
subsidized imports on prices", rather than an exha ustive non-attribution analys is as contemplated in 
Article 15.5.259  In any event, the panel's above findi ng, which concerned the consideration of 
significant  price undercutting , does not affect our understanding that the explanatory force of subject 
imports for significant price depression and suppression must be seen in the light of relevant evidence 
indicating that other factors may explain th e depression and suppression of domestic prices.  
Moreover, in this dispute, we are not called upon to interpret the scope and meaning of an 
investigating authority's obligation in consid ering whether there has been significant price 
undercutting by subject imports.  In our view, therefore, the Panel in the present dispute rightly 
concluded that the panel report in EC – Countervailing Measures on DRAM Chips  does not stand for 
the proposition that an inves tigating authority is not required by Article 15.2 of the SCM Agreement  to 
consider whether significant price depression or suppression is an effect of subject imports.260 
165. Finally, China contends that the Panel's inte rpretive errors regarding Articles 3.2 and 15.2 
"can perhaps be seen most clearly … in its discu ssion of MOFCOM's determ ination on 'whether price 
                                                      
255Panel Report, para. 7.522. 
256China's appellant's submission, para. 107. 
257See Panel Report, EC – Countervailing Measures on DRAM Chips , paras. 7.327 and 7.337. 
258Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.338. (emphasis added) 
259Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.338. 
260Panel Report, para. 7.522. WT/DS414/AB/R 
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suppression was an effect of subject imports'".
261  According to China, th e Panel analyzed whether 
MOFCOM sufficiently isolated subject imports as the cause for significant price suppression, and 
found that MOFCOM's finding was not based on positive evidence and did not involve an objective 
examination, because MOFCOM could not have found that subject imports were "the only reason" for 
the price suppression.262  Thus, the Panel wrongly interpreted Articles 3.2 and 15.2 as "impos[ing]" an 
obligation on MOFCOM to make "a determination that 'the only reason' for price suppression was 
'because of' subject imports", even though such a requirement is not present in Articles 3.2 
and 15.2.263  China's argument is thus not directed at the Panel's articulation  of the relevant legal 
standard.  Rather, China contends that the Panel's er ror in its legal interpretation is illustrated by its 
examination of MOFCOM's finding of significant price suppression.  Reviewing China's argument 
therefore requires us to examine the relevant portion of the Panel's analysis in applying Articles 3.2 
and 15.2 to the facts of the case, so as to glean the legal standard that the Panel actually imposed. 
166. The Panel first found that, in determining that price suppression per se  existed in 2008 and the 
first quarter of 2009, MOFCOM properly relied on the ch anges in the price-cost ratio of like domestic 
products, which showed that prices di d not rise despite increases in costs.264  Turning to the issue of 
whether MOFCOM also correctly found that price suppression was an effect of subject imports, the 
Panel examined the United States' argument that MOFC OM failed to consider whether, in the relevant 
factual circumstances, changes in the price-cost ra tio merely reflected changes in the underlying cost 
structure of the domestic industry.265  In this respect, the Panel noted that a significant amount of new 
capacity was added in 2008 by Baosteel Group Cor poration ("Baosteel"), one of the two Chinese 
producers comprising the domestic industry.  Thus, in  the Panel's view, "[a]n objective and impartial 
investigating authority would have recognized the need"266 to "examine whether the 2008 change in 
the price-cost ratio was merely a function of  the inclusion of the additional start-up costs incurred by 
Baosteel, rather than  an adverse effect of subject imports on price".267  Instead, the Panel found that 
"MOFCOM simply assumed  that (i) prices should have been able to rise with costs, and (ii) the only 
reason prices were not able to rise with costs was because of the effect of subject imports."268 
                                                      
261China's appellant's submission, para. 95. 
262China's appellant's submission, para. 95 (referring to Panel Report, para. 7.550). 
263China's appellant's submission, para. 95. 
264Panel Report, para. 7.546. 
265Before addressing this argument, the Panel firs t noted that, because MOFCOM relied on the same 
analysis "to show that both price de pression and price suppression was an effect of subject imports, the same 
flaws that undermined MOFCOM's finding that price de pression was an effect of subject imports also 
undermine MOFCOM's finding that price suppression was an effect of subject imports." (Panel Report, 
para. 7.547) 
266Panel Report, para. 7.549. 
267Panel Report, para. 7.548. (emphasis added) 
268Panel Report, para. 7.550. (emphasis added)  WT/DS414/AB/R 
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167. Thus, contrary to China's argument, the Panel's reference to " the only reason  prices were not 
able to rise with costs" does not indica te a standard that the Panel imposed.269  Rather, it was a 
reference to what MOFCOM found in its Announc ement No. 21 of 10 April 2010 and its annexes270 
(the "Final Determination").271  Specifically, the Panel noted that, without a proper analysis or 
supporting evidence, "MOFCOM simply assumed" th at the subject imports, alone, explained the 
significant suppression of domestic prices.  Moreover, a review of the totality of the Panel's findings 
confirms that, in making the above statement, the Panel was focusing on the lack of a proper analysis, 
or supporting evidence, underlying MOFCOM's finding that the identified price suppression was an effect of the subject imports.  For example, the Pa nel stated that, "because of the risk of Baosteel's 
start-up costs distorting the results of a simple analysis  of changes in the price-cost ratio, MOFCOM 
should have considered whether the underlying cost  structure of the domestic industry in 2007 was 
comparable  to that in 2008 and the first quarter of 2009."
272  The Panel also stated that "[a]n objective 
and impartial investigating author ity would have recognized the need  to check … the possibility that 
the change in the price-cost ratio between 2007 and 2 008 was, at least in part, a reflection of the start-
up costs associated with the commencement of Baosteel's operations in May 2008."273  In addition, the 
Panel expressed concern regarding the quality of the evidence relied on by MOFCOM, noting that, 
while China argued that the cost structures in 2007 and 2008 were comparable because Baosteel 
would also have incurred start-up costs in 2007,  MOFCOM's record only included costs booked by 
Baosteel as of 2008.274 
168. The Panel, therefore, was concerned with th e perceived lack of objectivity in MOFCOM's 
examination, as well as the quality of the supporti ng evidence underlying MOFCOM's finding that the 
effect of subject imports was significant price suppression.  As the Pane l found, although MOFCOM 
relied on the change in the price-cost ratio to find significant price suppression, it failed to ensure that 
the cost structures in 2007 and 2008 were compar able.  The Panel also found that the evidence 
                                                      
269Panel Report, para. 7.550. (emphasis added) 
270MOFCOM Announcement No. 21 [2010] (10 April 2010) and its annexes (English translation as 
contained in Panel Exhibit CHN-16).  We note that the United States also submitted an English translation of MOFCOM's final determination as part of Panel Exhibit US-28.  However, throughout its Report, the Panel 
cited the exhibit submitted by China (Panel Exhibit CH N-16) when referring to the Final Determination.  
Similarly, in this Report, we refer to the Englis h translation as contained in Panel Exhibit CHN-16. 
271This is also confirmed by the Panel's statemen t that the United States was not suggesting that 
MOFCOM should have considered the effect of other known factors on domestic prices. (Panel Report, 
para. 7.522) 
272Panel Report, para. 7.548. (emphasis added) 
273Panel Report, para. 7.549. 
274Panel Report, para. 7.548.  We recall that the Panel applied the standard in Articles 3.2 and 15.2, 
in conjunction with  the obligation set out in Articles 3.1 and 15.1, in order to determine whether MOFCOM's 
finding that the effects of subject imports were significant price depression and suppression was based on positive evidence and involved an objective examination of the evidence.  Therefore, our examination of the 
Panel's relevant findings under Articles 3.2 and 15.2 cannot be conducted in isolation from the Panel's analysis 
pursuant to the standard under Articles 3.1 and 15.1. (See supra , paras. 112 and 113) WT/DS414/AB/R 
Page 68  
 
relating to Baosteel's start-up costs in 2008, which suggested that the cost structures might not be 
comparable, should have prompted MOFCOM to have  considered whether the price-cost ratio was a 
reliable basis for finding that the effect of s ubject imports was to suppress domestic prices to a 
significant degree.  Thus, the Panel's finding was dire cted at MOFCOM's failure to consider whether 
the evidence relating to the domestic industry's co st structure may have called into question the 
explanatory force of subject imports for the significant suppression of domestic prices.  Therefore, in 
our view, the Panel's analysis reveals that the Pane l applied a standard that is consistent with our 
interpretation above. 
D. Conclusion 
169. As summarized in paragraph 154 above, we cons ider that Articles 3.2 and 15.2 require an 
investigating authority to consider the relations hip between subject impor ts and prices of like 
domestic products, so as to unders tand whether subject imports provide explanatory force for the 
occurrence of significant depression or suppression of domestic prices.  We are therefore not 
persuaded by the interpretation advanced by China,  before the Panel and on appeal, that Articles 3.2 
and 15.2 merely require an investigating authority to consider the existence of price depression or 
suppression, and do not require the establishment of  any link between subject imports and these price 
effects.  We therefore also consider that the Pane l did not err in not adopting China's interpretation. 
VI. The Panel's Assessment of MOFCOM's Price Effects Analysis 
170. We now turn to consider China's claims as  they relate to the Panel's assessment of 
MOFCOM's finding of significant price depression and suppression. 
A. The Panel's Findings 
171. The Panel first addressed MOFCOM's price effects analysis as it related to significant price 
depression.  The Panel considered that, although MOFCOM found that significant price depression 
was an effect of both the increase in volume of subject imports, and the low price thereof, it would limit its examination to the part of MOFCOM's Final Determination that was challenged by the 
United States, namely, the "effect of the low price of subject imports".
275  The Panel added that it 
would then complete its evaluation by considering wh ether, "even if MOFCOM's analysis of the price 
effects of subject imports was flawed, MOFCOM's finding that price depression was an effect of subject imports might nevertheless stand on the basis of MOFCOM's analysis of the effect of the 
increase in the volume of subject imports in depressing domestic prices."
276  The Panel then proceeded 
                                                      
275Panel Report, para. 7.518. 
276Panel Report, para. 7.518.  WT/DS414/AB/R 
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to examine whether MOFCOM's price depression fi nding was based on an objective examination of 
positive evidence, stating that it would examine the probative value of MOFCOM's findings "that 
subject import prices were 'low' relative to domestic  prices, and that there was a 'pricing policy' of 
setting subject import prices lower than domestic prices."277 
172. With regard to evidence of the "low price"  of subject imports, the Panel considered, inter alia , 
data collected by MOFCOM, but not referred to in its Final Determination, regarding the average unit 
values ("AUVs") of subject impor ts and domestic like products.278  China maintained that this data, 
supplied in response to a request of the Panel, refl ected that AUVs of subject imports were 8 to 12% 
below the AUVs for domestic sales in the years 2006 to 2008.279  The Panel identified "a number of 
misgivings" regarding the AUV data, particularly concerning "MOFCOM's failure to consider the 
need for adjustments to ensure price comparability".280  First, the Panel considered that China failed to 
rebut the United States' argument that subject impo rt and domestic AUVs were fixed at different 
levels of trade.  Second, the Panel noted that MO FCOM did not make adjustments to account for the 
fact that the AUV data covered pr oducts of different grades.  Third,  the Panel considered that, given 
the possibility of prices varying ove r time, the determination of a si ngle price point to represent prices 
throughout the course of an entire year did not pr ovide a sufficiently preci se basis for comparing 
prices.281 
173. The Panel was not persuaded by China's argumen t that price comparability did not arise as an 
issue.  The Panel considered that, although MOFCOM did not make a finding of significant price 
undercutting within the meaning of Articles 3.2 and 15.2, MOFCOM nevertheless relied on a finding 
that subject import prices undercut domestic prices.  In the Panel's view, a finding as to the existence 
of price undercutting necessarily entails a comparison of prices, and an investigating authority should 
ensure that the prices it is using for its compar ison are properly comparable .  The Panel concluded 
that MOFCOM's reliance on AUVs, without consider ing or making adjustments to ensure price 
comparability, was "neither objective,  nor based on positive evidence".282 
                                                      
277Panel Report, para. 7.524 (referring to Final Determination (Panel Exhibit CHN-16 (English 
version)), pp. 58 and 59). 
278The AUV data at issue represented the volume wei ghted average unit values for all transactions 
during a given calendar year. (Panel Report, footnote 497 to para. 7.527) 
279Panel Report, para. 7.527 and footnote 497 thereto (referring to China's second written submission to 
the Panel, footnote 95 to para. 102).  China explained that it provided ranges of the relevant AUVs in order to protect business confidential information (BCI) for the two domestic producers at issue.  The Panel considered 
that, although China "failed to respond fully" to the Panel's request, it was still able to address the relevant issues 
using the more limited data provided by China. ( Ibid., para. 7.527) 
280Panel Report, para. 7.528. 
281Panel Report, para. 7.528. 
282Panel Report, para. 7.530. WT/DS414/AB/R 
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174. With regard to the evidence of a "pricing po licy" aimed at setting subject import prices lower 
than domestic prices, the Panel reviewed the relevant  contracts and records of price setting referred to 
in MOFCOM's Final Determination, and which were  supplied by China in r esponse to a request from 
the Panel.  That evidence consisted of four docum ents.  One of the documents was a contract, dated 
9 January 2009
283, between a Russian trading company and a Chinese buyer, which MOFCOM relied 
on to support its finding that Russian companies se t their prices lower than Wuhan Iron and Steel 
(Group) Corporation ("WISCO"), one of the Chin ese domestic producers.  The Panel considered, 
however, that MOFCOM's finding that there was no price undercutting during the first quarter of 2009 "undermine[d] the probative value" of this contract.
284  The other three documents reflected 
price negotiations in Decem ber 2008 and February 2009285 between a Chinese supplier and its 
customers and, in each of these documents, "the  Chinese supplier quoted a price, the customer 
responded by noting the specific amount by which the Chinese offer was higher than the alternatives 
available from Russian or U.S. suppliers, and th e Chinese supplier was then  forced to lower its 
price".286  With respect to the evidence regarding price negotiations in February 2009, the Panel 
considered that MOFCOM's finding that there was no price undercutting during the first quarter of 
2009 "undermine[d] the probative value" of that evidence.287 
175. Finally, the Panel addressed MOFCOM's reliance on a decrease in subject import prices in the 
first quarter of 2009.  The Panel noted MOFCOM's  findings regarding the price trend of subject 
imports during the period of investig ation, and that the price of subj ect imports was not lower than the 
price of like domestic products in the first quarter  of 2009.  The Panel explained that it was not 
persuaded that MOFCOM could pr operly have found that, following a 17.57% increase in subject 
import prices in 2008, a 1.25% decrease in subject  import prices in the first quarter of 2009 could 
have had the effect of depressing domestic prices, pa rticularly since subject import prices remained 
higher than domestic prices during that period.288 
176. For these reasons, the Panel did not consider "t hat the evidence available to MOFCOM could 
have allowed an objective and impart ial investigating authority to dete rmine that subject imports were 
priced lower than domestic products."289  The Panel also considered whether, even if MOFCOM's 
analysis of the effect of subject import prices was flawed, MOFCOM's price depression finding might 
nevertheless stand on the basis of its analysis of the effect of subject import volume.  The Panel 
                                                      
283Panel Exhibit CHN-37 (BCI). 
284Panel Report, para. 7.533. 
285Panel Exhibits CHN-38 (BCI), CHN-39 (BCI), and CHN-40 (BCI). 
286Panel Report, para. 7.532 (quoting China's response to the Panel's request of 18 November 2011 for 
certain confidential data, p. 2). 
287Panel Report, para. 7.534. 
288Panel Report, para. 7.535. 
289Panel Report, para. 7.536.  WT/DS414/AB/R 
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considered that it was "not possibl e to conclude that MOFCOM's finding that price depression was an 
effect of subject imports might be upheld purely on the basis of MOFCOM's findings regarding the 
effect of the increase in the volume of subject imports."290  Thus, the Panel found that "MOFCOM's 
determination that price depression was an effect of subject imports was neither made pursuant to an objective examination, nor based on positive evidence."
291 
177. In respect of MOFCOM's analysis of price suppression, the Panel noted that the United States 
relied on the same arguments as it did to cha llenge MOFCOM's price depression finding, and 
considered that "the same flaws that undermined MOFCOM's finding that price depression was an effect of subject imports also undermine MOFCOM's finding that price suppression was an effect of subject imports."
292  The Panel also considered, "for the sake of completeness"293, the United States' 
additional argument concerning alleged changes in the underlying cost structure of the domestic 
industry.  The Panel concluded that MOFCOM shou ld have examined the complex issue of whether 
domestic prices would have been able to rise to th e full extent of the start-up costs incurred by the 
domestic industry.  The Panel thus found that "MO FCOM's determination that price suppression was 
an effect of subject imports was not made pursuan t to an objective examination, based on positive 
evidence."294 
178. For the foregoing reasons, the Panel concluded that MOFCOM's finding regarding the price 
effects of subject imports was inconsis tent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement  
and Articles 15.1 and 15.2 of the SCM Agreement . 
B. Assessment of the Panel's Analysis 
179. We begin by examining the nature and scope of  the claims that China advances to challenge 
the Panel's analysis of MOFCOM's finding of significant price depression and suppression. 
180. China appeals the Panel's application of Article 3.2 of the Anti-Dumping Agreement  and 
Article 15.2 of the SCM Agreement .295  China submits that the Panel fundamentally misunderstood 
MOFCOM's analysis by considering that the refere nce to the "low price" of subject imports in 
MOFCOM's Final Determination meant that subject import prices undercut dom estic prices, and that 
MOFCOM had relied on this factor in reaching its finding of significant price depression and 
suppression.  China argues that, contrary to the view adopted by the Panel, MOFCOM "never 
                                                      
290Panel Report, para. 7.542.  
291Panel Report, para. 7.543. 
292Panel Report, para. 7.547.  
293Panel Report, para. 7.547. 
294Panel Report, para. 7.551. 
295See China's Notice of Appeal, para. 6.  See also supra , paras. 111-115, for a discussion of the scope 
of China's appeal.  WT/DS414/AB/R 
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compared subject import prices relative to domestic prices over the entire period"
296, and MOFCOM's 
price effects discussion did not focus on "the exis tence of price undercutting [and] did not depend on 
price comparability".297  The implication of China's arguments on appeal is that, if the Panel had been 
wrong to insist that MOFCOM's price effects finding rested on the existence of price undercutting, its 
basis for rejecting the AUV data submitted by Chin a during the Panel proceedings would have been 
unwarranted.  In the alternative, China argues that, even if MOFCOM conducted and relied upon 
price comparisons constituting price undercutting for its price effects finding, the Panel nevertheless 
erred in finding that MOFCOM should have made ce rtain adjustments to ensure price comparability.  
China maintains that such adjustments are not required by Articles 3.2 and 15.2, and that, even if they 
were, they were not necessary in the circumstances of this case.   
181. China further contends that the Panel failed to have regard, or to have sufficient regard, to 
factors that did sustain MOFCOM's finding of significant price depression and suppression.  
According to China, MOFCOM's price effects finding in fact rested on three other propositions, two relating to the prices  of subject imports, and one relating to the volume  of subject imports.
298  With 
regard to the effect of subject import prices , China argues that MOFCOM relied on the following 
factors:  (i) a "pricing policy", whereby subject imports aimed at setting prices below domestic prices;  
and (ii) parallel price trends, by which subject import prices and domestic prices followed the same pattern of first increasing through 2008, and then decreasing in the first quarter of 2009.  Moreover, 
with regard to the effect of subject import volume , China maintains that a key element of MOFCOM's 
reasoning is its reliance on increases in the vol ume of subject imports beginning in 2008. 
182. Finally, China also claims that the Panel erre d by failing to make an objective assessment as 
required by Article 11 of the DSU.  According to Ch ina, the Panel "mischaracterize[d] a fact that is 
fundamental and ultimately determinative to its analys is" by equating the reference to "low price" in 
MOFCOM's Final Determination with the existe nce of price undercutting by subject imports.
299  
China further argues that the Panel erred by rely ing on this single factor to invalidate MOFCOM's 
finding of significant price depression and suppression,  and thus failed to take into account "the 
                                                      
296China's appellant's submission, para. 130. 
297China's appellant's submission, para. 140.  
298China's appellant's submission, para. 118. 
299China's appellant's submission, para. 200.  China also argues that this was contradicted by 
MOFCOM's finding that subject imports were not priced lower than domestic products in the first quarter of 
2009. ( Ibid., para. 201)    WT/DS414/AB/R 
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totality of the circumstances that produced the conclusion of price depression and price 
suppression".300 
183. In its appeal, China seeks to challenge the Pa nel's understanding of MOFCOM's price effects 
analysis in its Final Determinati on and, in doing so, asserts claims th at the Panel erred both in its 
application of Articles 3.2 and 15.2, and in its duty to make an objective asse ssment of the facts under 
Article 11 of the DSU.  This is now familiar yet difficult terrain in the application of the 
Appellate Body's standard of review.  Although a panel's findings of fact, as distinguished from legal 
interpretations or legal conclusions, are in princi ple not subject to review by the Appellate Body, 
Article 11 of the DSU may be relied upon to ch allenge a panel's failure to make an objective 
assessment of the matter before it, including an objective assessment of the facts of the case.301  In 
previous cases, the Appellate Body has recognized the difficulty of clearly distinguishing between 
issues of legal application and issues of fact.  In mo st cases, however, the issue raised by a particular 
claim "will either  be one of application of the law to the facts or an issue of the objective assessment 
of facts, and not both".302  The Appellate Body has found that  allegations implicating a panel's 
appreciation of facts and evidence fall under Article 11 of the DSU.303  By contrast, "[t]he consistency 
or inconsistency of a given fact or set of facts w ith the requirements of a given treaty provision is … a 
legal characterization issue" and is therefore a legal question.304 
184. As we understand it, China's key contention is that the Panel erred by misunderstanding what 
"low price" meant in MOFCOM's Final Determinat ion, and in determini ng that MOFCOM relied on 
that factor in its price effects analysis and conclusions.  According to China, in evaluating 
MOFCOM's price effects analysis, the Panel improperly focused on this single factor (that is, the "low price" of subject imports in the form of price unde rcutting), and failed to give  proper regard to other 
factors (that is, a pricing policy aiming at price un dercutting, parallel price trends between subject 
import and domestic prices, and incr eases in subject import volume).  As China puts it in its Notice of 
                                                      
300China's appellant's submission, para. 204.  China c ontends that the Panel's failure to take into 
account the totality of the circumstan ces supporting MOFCOM's price effe cts finding was contrary to the 
Appellate Body's guidance regarding a panel's proper standard of review in US – Countervailing Duty 
Investigation on DRAMS  and Japan – DRAMs (Korea) . (Ibid., paras. 205-208) 
301The Appellate Body has previously explained that panels, as triers of fact, have discretion in the 
appreciation of the evidence, and that the Appellate Body w ill not interfere lightly with a panel's exercise of this 
discretion.  The Appellate Body has noted that it will not base a finding of inconsistency under Article 11 of the 
DSU simply on the conclusion that it might have reached a different fact ual finding.  In stead, for a claim 
regarding a panel's factual assessment to  succeed under Article 11, the Appellate  Body must be satisfied that the 
panel has exceeded its authority as the trier of facts. (Appellate Body Report, US – Wheat Gluten , para. 151;  
Appellate Body Report, US – Carbon Steel , para. 142) 
302Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 872. (original 
emphasis) 
303Appellate Body Report, US – Upland Cotton , para. 399;  Appellate Body Report, US – Upland 
Cotton (Article 21.5 – Brazil) , para. 385;  Appellate Body Report, EC and certain member States – Large Civil 
Aircraft , para. 1005. 
304Appellate Body Report, EC – Hormones , para. 132. WT/DS414/AB/R 
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Appeal, "[r]ather than apply the legal standard to  MOFCOM's final determinations as written, the 
Panel examined findings never made by the authorit y and instead ignored or dismissed key factors 
that MOFCOM had discussed in its determinations."
305  Although there are arguably features of the 
Panel's analysis on appeal that concern facts that were before MOFCOM and before the Panel itself, 
we understand China's appeal to address the ma nner in which the Panel examined and applied 
Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , read together 
with Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 of the SCM Agreement , to 
MOFCOM's Final Determination.306  Thus, we consider that, when  the Panel examined the question 
of whether MOFCOM relied on the existence of pr ice undercutting in 2006 to 2008 to find significant 
price depression and suppression, it was examin ing whether MOFCOM's Final Determination 
complied with the legal standard for a price e ffects analysis conducted on the basis of "positive 
evidence" and involving an "objective examination".  In order to give proper consideration to the 
Panel's analysis and to China's appeal, we therefor e examine this issue in the light of the Panel's 
application of the legal standard under Articles 3.2 and 15.2, read together with Articles 3.1 and 15.1, 
to MOFCOM's Final Determination.  Accordingly, th ere is no basis separately to consider whether the 
Panel, in assessing the significance of "low price" in MOFCOM's Final Determ ination, conducted an 
objective assessment of the facts under Article 11 of the DSU. 
185. On the basis of the foregoing discussion, we now  turn to assess China's arguments concerning 
the Panel's analysis of each of these factors in r espect of MOFCOM's Final Determination.  Once we 
have done so, we then provide an overall assessment of China's claims on appeal.  
1. The "Low Price" of Subject Imports 
186. China contends that the Panel misstated MOFCOM's discussion of the "low price" of subject 
imports by erroneously suggesting that those prices were low relative to domestic prices .  In China's 
view, MOFCOM "note[d] that subject import prices we re 'at a low price', but never compared subject 
import prices relative to domestic prices over the entire period".307  China considers that, although the 
Panel correctly recognized that MOFCOM had not  made a specific finding of significant price 
undercutting, the Panel then asserted that MOFCOM  nevertheless relied on the existence of price 
undercutting.  According to China, MOFCOM's referen ce to "low price" is not the same thing as price 
undercutting since "'[l]ow-priced' imports can exist re gardless of the relative prices of subject imports 
                                                      
305China's Notice of Appeal, para. 6(a).  
306As we have explained, although China has not cha llenged the Panel's interpretation and application 
of Articles 3.1 and 15.1, we consider that our examination of the Panel's analysis under Articles 3.2 and 15.2 
cannot be conducted in isolation from the Panel's analysis pursuant to the standard under Articles 3.1 and 15.1. (See supra , paras. 112 and 113) 
307China's appellant's submission, para. 130 (quoting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58).  WT/DS414/AB/R 
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and domestic [products]."308  In China's view, MOFCOM's price effects discussion focused on factors 
other than the existence of price undercutting and "did not depend on price comparability".309 
187. According to the United States, "China has no b asis for its claims that MOFCOM did not rely 
on the 'low prices' of imports as a central component of its pricing analysis or that MOFCOM did not 
draw its conclusion about the low prices of impor ts from a price comparis on of domestic and import 
prices."310  The United States refers to instances in which MOFCOM linked "low price" to price 
depression and suppression or the material injury purportedly sustained by China's domestic GOES 
industry.311  In addition, the United States argues that "low priced" imports must be low priced in 
relation to something that is higher priced.  The Un ited States also refers to statements by MOFCOM, 
and by China before the Panel, that MOFCOM relied on a finding that subject import prices were 
lower than domestic prices.312 
188. As outlined above, China's appeal calls on us  to consider whether the Panel properly 
determined that, in referring to the "low price"  of subject imports, MOFCOM was referring to the 
existence of price undercutting, and was relying on that factor in reaching its finding of significant price depression and suppression. 
189. In the price effects analysis of its Final De termination, MOFCOM's discussion of the "low 
price" of subject imports is set out in the following statement:   
Because the sale of the product concerned was kept at a low price , 
and the import volume of the pr oduct concerned increased greatly 
beginning from 2008, under this im pact, domestic producers lowered 
their price to keep the market share.
313 (emphasis added) 
190. This sentence indicates MOFCOM's view that domestic producers lowered their prices due to 
two factors, namely, the "low price" and the increased volume of subject imports.  We note that the 
reference to "low price" does not indicate in relati on to what, or over what time period, the prices of 
subject imports were considered to be low.  We further note that this section of MOFCOM's Final 
Determination does not provide furt her explanation or reasoning as to the significance of this "low 
price" factor. 
191. China, however, sought to explain the significance of  the term "low price" before the Panel.  
According to China, information collected by  MOFCOM confirmed that, from 2006 to 2008, the 
                                                      
308China's appellant's submission, para. 135. 
309China's appellant's submission, para. 140. 
310United States' appellee's submission, para. 72. 
311United States' appellee's submission, paras. 60-63. 
312United States' appellee's submission, paras. 71 and 72.  
313Final Determination (Panel Exhibit CHN-16 (English version)), p. 58. WT/DS414/AB/R 
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AUVs of subject imports were consistently below those of domestic products, demonstrating that the 
"subject import prices were both 'low' and 'lower' than domestic prices."
314  When China subsequently 
provided the Panel with annual ranges of the AUV data to which China had referred, it further 
explained that this record evidence "confirm[ed] the magnitude and consiste ncy with which subject 
[import] AUVs were lower than domestic AUVs".315 
192. The Panel then asked the parties to comment on the underlying evidence supplied by China.  
China stated as follows: 
As China explained during the second meeting, the ranged data 
includes the actual AUVs.  The United States is simply wrong to say 
the ranged data does not reflect any actual AUVs.  The range 
includes the AUVs.  China's point is  simply that given the use for 
which the AUV data has been requested—to confirm the factual statement that subject import prices were lower than domestic prices—the range of AUVs and ra nge of underselling margins 
accomplished that objective.  
If MOFCOM had based its findings of  adverse price effects on price 
undercutting, or had otherwise relied on the magnitude of the 
underselling margins, then perhaps the U.S. argument would have some relevance.  But MOFCOM findings do not rely on the magnitude of the underselling margins,  and simply note the existence 
of underselling as a supporting fact for the findings of price 
depression, price [suppression], and causation.  The information China has provided is more than su fficient to confirm the existence 
of underselling during much of the period of investigation, until the domestic producers had to react to the large volume of low priced subject imports, and lower the domestic price.
316 (original 
underlining) 
193. On the basis of this submission, the Panel c onsidered that, although MOFCOM did not make 
a finding of significant price undercutting, China ha d nevertheless conceded that MOFCOM relied on 
a finding that subject import prices undercut domestic prices to support its finding of significant price 
depression and suppression.317 
                                                      
314China's second written submission to the Panel, para. 102. 
315China's response to the Panel's request of 18 November 2011 for certain confidential data, p. 1. 
316China's response to Panel Question 69 following the second Panel meeting, paras. 160 and 161. 
317Panel Report, paras. 7.529 and 7.530 (referring to  China's response to Panel Question 69 following 
the second Panel meeting, para. 161).  The Panel al so referred to MOFCOM's statement in its Final 
Determination that it had made "a comparative analysis of price" consisting of "an analysis on the low-price 
sales" of subject imports. ( Ibid., footnote 505 to para. 7.530 (quoting Final Determination (Panel Exhibit 
CHN-16 (English version)), p. 70)  Although China argued that the reference to "comparative" had been a reference to price depression and suppression, and not to  price undercutting, the Pane l stated that it saw "no 
basis on which to conclude that MOFCOM [was] referring to anything other than a co mparative analysis of the 
price of subject imports relative to domestic sales". ( Ibid.)  WT/DS414/AB/R 
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194. On appeal, China now requests the Appellate B ody to conclude that the Panel, when faced 
with the arguments and evidence presented by the pa rties, was wrong to conclude that MOFCOM had 
relied on a comparison of subject import and dom estic prices in the years 2006 to 2008, and the 
existence of price undercutting, to support its findi ng of significant price depression and suppression.  
Specifically, China argues that MOFCOM's use of "low price" did not refer to the existence of price undercutting, but could rather be understood either as a reference to the prices of subject imports in 
relation to their historical prices, or as a reference to the low price established by virtue of the sale of 
subject imports at dumped and/or subsidized levels.
318  In any event, China argues, MOFCOM did not 
rely on its reference to the "low price" of subject imports, as evidenced by the fact that this reference 
does not appear in two core paragraphs of MOFC OM's Final Determination that reflect MOFCOM's 
ultimate price effects finding.319 
195. We are not persuaded by these arguments by Chin a on appeal.  After China had averred to the 
Panel that MOFCOM relied on evidence of price undercutting to support its finding that subject 
imports were kept at a "low price", the Panel requ ested China to provide the underlying evidence, and 
then asked the parties to comment on that eviden ce.  Thus, when the Panel found that China had 
"concede[d]"320 that MOFCOM relied on the existence of price undercutting from 2006 to 2008 to 
support its finding of significant price depression and suppression, that finding was drawn on the basis of China's representations to the Panel that MOFCOM  had an evidentiary basis in the investigation 
record for its conclusion.  In particular, as we ha ve observed, the Panel referred to China's statement 
that MOFCOM "note[d] the existence of price undercutting as a supporting fact" for its finding of 
significant price depression and suppression.
321  While the statements and evidence a party provides to 
explain some aspect of an investigating authority's determination are not dispositive as to its meaning, 
a panel may place reliance on such statements in its re view of that determination.  If the party then 
advances a different position on appeal that challe nges a panel's reliance on representations the party 
made before the panel, that part y would have to explain why its pr evious account of the determination 
is no longer to be relied upon.  We do not see that China has provided us with a basis upon which to 
disregard statements regarding the AUV data that were made by China during the Panel proceedings, 
and on which the Panel relied in reviewing MOFCOM's  Final Determination.  Accordingly, even if 
the reference to "low price" in MOFCOM's Final De termination could be read in different ways, we 
consider that it was proper for the Panel to rely on  China's statements to the Panel, and for us to 
review the Panel's findings on the basis of that reliance. 
                                                      
318China's response to questioni ng at the oral hearing. 
319China's opening statemen t and response to questioning at th e oral hearing (referring to Final 
Determination (Panel Exhibit CHN-16 (English version)), p. 59).  
320Panel Report, para. 7.530.  
321Panel Report, para. 7.529 (referring to China's response to Panel Question 69 following the second 
Panel meeting, para. 161).  WT/DS414/AB/R 
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196. For the foregoing reasons, we consider that the Panel was correct to conclude that, although 
MOFCOM did not make a finding of significant price undercutting, MOFCOM's finding as to the 
"low price" of subject imports referred to the existence of price undercutting between 2006 and 2008, 
and that MOFCOM relied on this factor to support its finding of significant price depression and suppression.  
2. Comparisons of AUV Data to Establish "Low Price" 
197. China submits that, even if MOFCOM conducte d and relied upon price comparisons and the 
existence of price undercutting fro m 2006 to 2008, the Panel nevert heless erred by mandating the use 
of certain adjustments to ensure price comparability that are not required by Articles 3.2 and 15.2.  
China argues, moreover, that even if price compar ability is required, the Panel imposed specific price 
comparison methodologies that were "not necessary at all"322 in the circumstances of this case, 
particularly given that concerns regarding price comparability were neither raised nor argued by the 
respondents during the investigation.  According to China, although investigating authorities have an 
inherent duty to investigate prices to some degr ee, they also "have discretion to frame their 
investigations and analyses in light of the inform ation gathered by the authorities and the arguments 
presented to the authorities by the parties".323 
198. The United States contends that the Panel never found that Articles 3.2 and 15.2 require an 
investigating authority to perform its price co mparisons and analysis using any particular 
methodology.  Instead, the United States argues, the Panel evaluated whether MOFCOM conducted 
an "objective examination" on the basis of "positiv e evidence".  According to the United States, the 
Panel reasonably concluded that there we re "significant evidentiary deficiencies"324 in MOFCOM's 
findings, and China has not adequately rebutted th e reasons the Panel provided for finding that 
MOFCOM's use of AUV data was not objective.  The United States also rejects China's argument that 
objections to the AUV data were neither rai sed nor argued by the respondents during the 
investigation.  The United States maintains that the record shows that the respondents had raised 
objections to MOFCOM's price comparisons, and th at, in any event, there is no limitation on what 
arguments a respondent can bring in pane l proceedings under Articles 3.1 and 15.1.325 
199. We recall that the Panel identified "a number of misgivings" regarding the AUV data relied 
upon by MOFCOM and, in particular, "MOFCOM's failu re to consider the need for adjustments to 
                                                      
322China's appellant's submission, para. 155.   
323China's appellant's submission, para. 184. 
324United States' appellee's submission, para. 85. 
325United States' appellee's submission, paras. 90-92.  WT/DS414/AB/R 
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ensure price comparability".326  First, the Panel considered that China failed to rebut the United States' 
argument that subject import and dom estic AUVs were fixed at different levels of trade.  Second, the 
Panel noted that MOFCOM did not make adjustme nts to account for the fact that the AUV data 
covered products of different grades.  Third, the Pa nel considered that, given the possibility of prices 
varying over time, the determination of a single pr ice point to represent prices throughout the course 
of an entire year did not provide a sufficiently pr ecise basis for comparing prices.  Having concluded 
that MOFCOM relied on comparisons of subject impor t and domestic prices to find the existence of 
price undercutting by subject imports, the Panel cons idered that an investigating authority in these 
circumstances must "ensure that the prices it is using for its comparison are properly comparable".327  
As the Panel stated, "[a]s soon as price comparisons are made, price comparability necessarily arises as an issue."
328  The Panel thus found that, because MOFCOM relied on a comparison of subject 
import and domestic prices without considering the need for adjustments to ensure price 
comparability, MOFCOM's reasoning was "neither  objective, nor based on positive evidence".329 
200. In response to questioning at the oral hearing, both participants agreed that an investigating 
authority must ensure comparability betw een prices that are being compared.330  Indeed, although 
there is no explicit requirement in Articles 3.2 and 15.2, we do not see how a failure to ensure price 
comparability could be consistent with the requirement under Articles 3.1 and 15.1 that a 
determination of injury be based on "positive evid ence" and involve an "objective examination" of, 
inter alia , the effect of subject imports on the prices of domestic like products.  Indeed, if subject 
import and domestic pric es were not comparable, this would defeat the explanatory force that subject 
import prices might have for the depres sion or suppression of domestic prices.331  We therefore see no 
reason to disagree with the Panel when it stated th at "[a]s soon as price comparisons are made, price 
comparability necessarily arises as an issue."332 
201. China further asserts that pri ce adjustments were not necessary in the circumstances of this 
case.  In this respect, China argues that the Panel did not  have a basis to insist on price adjustments to 
ensure price comparability in this case, particularly given the limited, if any, attention such issues 
attracted before MOFCOM.  Addressing the latter point first, we do not consider that the question of 
whether price adjustments are needed to ensure pri ce comparability is to be determined by whether a 
respondent objects to the use of unadjusted prices.  We have explained that a price effects finding is 
                                                      
326Panel Report, para. 7.528. 
327Panel Report, para. 7.530. 
328Panel Report, para. 7.530. 
329Panel Report, para. 7.530. 
330China's and United States' responses to  questioning at the oral hearing. 
331We note that similar considerations of price comparability are reflected in Article 2.4 of the 
Anti-Dumping Agreement  and Article 6.5 of the SCM Agreement .  
332Panel Report, para. 7.530.  WT/DS414/AB/R 
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subject to the requirement that a determination of  injury be based on "positive evidence" and involve 
an "objective examination".  As the Appellate Body stated in EC – Bed Linen (Article 21.5 – India) , 
the obligations under Articles 3.1 and 3.2 "must be met by every investigating authority in every 
injury determination".
333  For these reasons, while we may ag ree with China that investigating 
authorities "have discretion to frame their investig ations and analyses in li ght of the information 
gathered by the authorities and the arguments presented to the authorities by the parties"334, authorities 
remain bound by their overarching obligation to conduct an objective examination on the basis of 
positive evidence, irrespective of how the issues we re presented or argued during the investigation. 
202. Moreover, we observe that these arguments by Ch ina appear to be directed at whether the 
Panel had an adequate evidentiary basis for its fi nding that price adjustments were warranted in the 
circumstances of this case.  China maintains, for instance, that there was " no evidence in the record" 
to support the United States' argument that th e AUVs for subject imports  and domestic products 
reflected transactions at different levels of trade because "imports were sold to traders while domestic 
products were sold to end-users".335  With regard to the product grade of subject imports and domestic 
products, China argues that, because virtually all of the subject imports—97% of subject import 
quantity, and 99% of subject import value— were under one of the two tariff headings, 
"[d]isaggregating the analysis would have ha d no material effect at all on the analysis".336  Finally, 
with regard to the use of annual AUV data, Chin a asserts that, while further disaggregation on a 
monthly or quarterly basis may have been possible, annual AUVs still permit an investigating 
authority to compare trends over time, and that th ere is therefore "nothing inherently non-objective 
about using annual AUVs".337 
203. In each of these instances, the Panel's consid eration of the need for a particular price 
adjustment rested on factual contentions before the Panel.  That is, whether the issue concerned the 
level of trade at which subject imports and domestic  products were sold in China, the allocation of 
subject imports under different tariff headings, or  the degree of variability of domestic prices over 
time, each of China's arguments is directed at whet her the Panel had an adequa te evidentiary basis for 
its finding that price adjustments were warranted.  Because these issues appear largely directed at the 
Panel's appreciation of the evidence, they are issues  that we would typically consider in evaluating 
whether a panel had acted consistently with its duty to make an objective assessment of the facts 
                                                      
333Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 109.  See also Panel Report, 
Mexico – Steel Pipes and Tubes , para. 7.259 (stating that an investigating authority is "bound to satisfy its 
obligations whether or not this issue is raised by an interested party in the course of an investigation"). 
334China's appellant's submission, para. 184. 
335China's appellant's submission, para. 159.  
336China's appellant's submission, para. 167. 
337China's appellant's submission, para. 172.  WT/DS414/AB/R 
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under Article 11 of the DSU.  These issues, however, were not addressed in China's Article 11 claim, 
and we therefore do not review them as part of China's appeal. 
3. Pricing Policy of Subject Imports 
204. China also challenges the Panel's treatment of MOFCOM's analysis regarding the existence of 
a "pricing policy" aimed at setting subject import prices lower than domestic prices.  China argues 
that MOFCOM never stated that the policy actually resulted in lower import prices.  Instead, China 
asserts that MOFCOM relied on evidence of the pricing policy to demonstrate "efforts by import sources to charge lower prices to win business"
338, and "that domestic prices were being forced to 
react to import prices".339  China considers that the Panel faile d to recognize the distinction between a 
low price policy and price undercutting, and theref ore improperly used MOFCOM's finding about the 
absence of actual price undercutting in the first qua rter of 2009 to ignore other implications of this 
evidence.  In China's view, "[s]ubject imports that  are trying to set lower prices can trigger adverse 
price effects, whether they actually achieve pri ces lower than the domestic price level or not."340 
205. According to the United States, MOFCOM f ound that the "pricing policy" was aimed at 
setting import prices lower than domestic prices and that, as a result of this policy, "the product concerned was kept at a low price."
341  Given this finding, the United  States considers that the Panel 
properly concluded "that MOFCOM found that the a lleged policy was effective at keeping prices 
lower than the domestic products."342  On that basis, the United States argues, the Panel properly 
rejected MOFCOM's reliance on evidence concerni ng the first quarter of 2009 since MOFCOM found 
that subject imports were actually priced hi gher than domestic products in that quarter.343 
206. We consider that the existence of a pricing policy by importers to undercut the prices of 
domestic producers could, when successful, lead to actual price undercutting.  Even in the absence of 
price undercutting, however, a policy that aims to un dercut a competitor's prices may still be relevant 
to an examination of its price depressive or suppressive effects.  Indeed, a policy aimed at price undercutting may very well depress and suppress domestic  prices in instances where, as China asserts, 
"domestic producers were reacting to subject impor t competition and were lowering domestic prices 
so as to compete more effectively and mini mize any further loss of market share."
344  In this respect, if 
an importer pursues a policy of undercutting a comp etitor, but that competitor anticipates or responds 
                                                      
338China's appellant's submission, para. 143. 
339China's appellant's submission, para. 142. 
340China's appellant's submission, para. 148. 
341United States' appellee's submission, para. 69 (quo ting Final Determination (Panel Exhibit CHN-16 
(English version)), p. 58). 
342United States' appellee's submission, para. 69. 
343United States' appellee's submission, footnote 90 to para. 69. 
344China's appellant's submission, para. 144. WT/DS414/AB/R 
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to that policy by lowering its price to win the sale, this may still reveal that subject imports have the 
effect of depressing, or preventing the increase of, domestic prices. 
207. The Panel considered that the existence of a pricing policy was "undermine[d]" by the fact 
that there was no price undercutting during the first quarter of 2009.
345  Having examined only the 
question as to whether the existence of a pricing policy resulted in price undercutting by subject 
import prices, the Panel did not also examine whethe r that policy could, even in the absence of price 
undercutting, support a finding of significant pri ce depression and suppression.  The Panel did not 
address the proper question before it and therefore failed to consider the explanatory force that a 
policy aimed at price undercutting could have for the depression or suppression of domestic prices.  
That prices were higher for subject imports than do mestic like products in the first quarter of 2009 
does not necessarily negate the significance of a policy aimed at price undercutting for findings of 
price depression and suppression, and we therefore do not consider that it was appropriate for the 
Panel to have rejected MOFCOM's reliance on th e pricing policy on the grounds that it did.  
4. Parallel Trends of Subject Import and Domestic Prices 
208. China further asserts that the Panel never discu ssed "one of the key elements of MOFCOM's 
discussion"346, namely, that subject import prices and domestic prices followed the same trends of first 
increasing and then decreasing over the period of  investigation.  China notes that, although 
MOFCOM referred to this fact twice in its analysis , the Panel refers only to the drop in subject import 
prices in the first quarter of 2009, without ever di scussing "the parallel trend in subject import prices 
and domestic prices over the period".347 
209. The United States maintains that there is no indication in MOFCOM's Final Determination 
that MOFCOM relied on parallel pric e trends for its price effects analysis.  The United States also 
argues that "the pricing information actually di sclosed by MOFCOM does not support a finding that 
'parallel' pricing trends caused price depression"348 because MOFCOM did not find price depression 
when the trends were parallel in 2007 and 2008, and yet found price depression when the trends were 
not parallel in the first quarter of 2009. 
210. We can conceive of ways in which an observa tion of parallel price trends might support a 
price depression or suppression analysis.  For instan ce, the fact that prices of subject imports and 
domestic products move in tandem might indicate th e nature of competition between the products, and 
may explain the extent to which factors relating to the pricing behaviour of importers have an effect 
                                                      
345Panel Report, paras. 7.533 and 7.534. 
346China's appellant's submission, para. 122. 
347China's appellant's submission, para. 123. 
348United States' appellee's submission, para. 76.  WT/DS414/AB/R 
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on domestic prices.  The difficulty we have with this  issue on appeal, however, is that there is no basis 
on which to draw any such conclusions in this case.   In its Final Determination, MOFCOM referred 
twice to the price trends of subject imports and domestic products, in both instances noting that the 
"developing trend" of price for the two products was "basically the same" in that the price initially 
rose and then dropped.349  Apart from these two references, however, MOFCOM did not provide any 
further description of these price trends, or set out  any explanation or reas oning regarding the role 
such trends played in MOFCOM's price effects analysis and findings.350  We note, moreover, that, 
although China argues that parallel price trends is "one of the key elements of MOFCOM's 
discussion"351, China has not explained before the Panel, or now on appeal, what the significance of 
this element was to the analysis set out in MO FCOM's Final Determination.  In the absence of 
sufficient reasoning in MOFCOM's Final Determination,  or an elucidation of the Final Determination 
by China, as to what explanatory force parallel price trends had for the depression or suppression of 
domestic prices, we see no basis to fault the Pane l for failing to recognize or discuss the significance 
of these trends for MOFCOM's analysis. 
5. Increases in Subject Import Volume 
211. China further argues that the Panel erred in fi nding that increases in the volume of subject 
imports were not the primary basis for MOFCOM's finding of significant price depression and 
suppression.  China maintains that it never argued that subject import volume was the sole factor 
expressed in MOFCOM's determination, but rather that it was one of several key factors.  China 
asserts that, by finding that MOFCOM's price effect s finding could not be upheld purely on the basis 
of subject import volume alone, the Panel erred "[b]y dismissing and giving no weight to the effect of 
the volume of subject imports" as expressed in MOFCOM's Final Determination.352 
212. The United States argues that the Panel addressed  China's claim and properly rejected it.  
According to the United States, the Panel noted  that China relied on extracts from MOFCOM's 
                                                      
349Final Determination (Panel Exhibit CHN-16 (English version)), pp. 58 and 59. 
350In the absence of such explanation or reasoning, th e issue of the parallel price trends raises certain 
unresolved questions.  We note, for instance, that the Panel questioned the significance of the price trends when 
it stated that it was not persuaded that, following a 17 .57% increase in subject im port price in 2008, a 1.25% 
decrease in subject import price in the first quarter of 2009 could have had the effect of depressing domestic 
prices. (Panel Report, para. 7.535)  This also raises a qu estion as to whether it is appr opriate to consider subject 
import and domestic price trends in the first quarter of 2009 as "parallel" given that, although they both 
decreased in that period, they did so at very different rates—1.25% for subject import prices, and 30.25% for 
domestic prices.  If parallel price trends were indeed significant for MOFCOM's analysis, then we would have expected some explanation in MOFCOM's Final Determina tion as to what significance the fact that a modest 
decrease in subject import prices follow ed a larger increase in those prices, and that there was a divergence in 
subject import and domestic price trends in the first quarter of 2009, had for MOFCOM's overall price effects analysis.  
351China's appellant's submission, para. 122. 
352China's appellant's submission, para. 128. WT/DS414/AB/R 
Page 84  
 
analysis that appeared to lend equal weight to c onsiderations of subject import volume and price, and 
that MOFCOM referred both to the volume and pric e features of subject imports.  The United States 
contends that "[a]lthough China claims that MOFCOM  focused solely or primarily on the volumes of 
imports in its analysis, this was not at all evident on the face of MOFCOM's determination."
353 
213. At the outset of its analysis, the Panel expl ained that, although MOFCOM's price effects 
finding relied on "both the increase in volume of subj ect imports, and the low price thereof", the Panel 
would first focus on the United States' arguments as  they relate "to MOFCOM's finding that subject 
imports were priced lowe r than domestic products".354  After doing so, the Panel stated that it would 
"complete [its] evaluation by considering whether, ev en if MOFCOM's analysis of the price effects of 
subject imports was flawed, MOFCOM's finding that price depression was an effect of subject imports might nevertheless stand on the basis of MO FCOM's analysis of the effect of the increase in 
the volume of subject imports in depressing domestic prices."
355 
214. Following its analysis of the effect of subject import prices, the Panel turned to consider 
whether or not MOFCOM's Final Determination s upported "China's argument that volume effects 
were the primary basis for MOFCOM's finding that price depression was an effect of subject 
imports."356  The Panel considered that statements  referred to by China in MOFCOM's Final 
Determination "appear to lend e qual weight to considerations of both subject import volume and 
price"357, and that MOFCOM's analysis was under a h eading entitled "[t]he impact of the import price  
of the product concerned on the price of domestic like products."358  The Panel concluded that there 
was "nothing in MOFCOM's determ ination to indicate that MOFCOM relied more heavily on the 
increase in the volume of subject imports than it di d on the low price thereof for the purpose of 
establishing that price depression was an effect of subject imports."359 
215. The Panel further considered that "a panel mu st exercise great caution in determining whether 
or not to engage in analyses not undertak en by the investigating authority itself"360, and stated that 
there was "nothing in MOFCOM's determination to suggest that MOFCOM itself found that the 
volume effects of subject imports alone were sufficien t to conclude that price depression was an effect 
of subject imports."361  The Panel considered that MOFCOM's analysis of subject import prices was 
                                                      
353United States' appellee's submission, para. 80. 
354Panel Report, para. 7.518. 
355Panel Report, para. 7.518. 
356Panel Report, para. 7.538. 
357Panel Report, para. 7.539. 
358Panel Report, para. 7.540 (quoting Final Determination (Panel Exhibit CHN-16 (English version)), 
p. 58). (emphasis added by the Panel) 
359Panel Report, para. 7.540. 
360Panel Report, para. 7.542. 
361Panel Report, footnote 522 to para. 7.542.  WT/DS414/AB/R 
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"so central" to its analysis that the flaws the Pa nel had found with that an alysis "must invalidate 
MOFCOM's overall conclusion that price depre ssion was an effect of subject imports".362  As the 
Panel explained, it was therefore "not possible to conclude that MOFCOM's finding that price 
depression was an effect of subject imports might be upheld purely on the basis of MOFCOM's findings regarding the effect of the increase in the volume of subject imports."
363 
216. We see no disagreement between the participants  that MOFCOM's finding of significant price 
depression and suppression rested on an examination of  the effect of both the prices and volume of 
subject imports on domestic prices.  This approach is consistent with the requirements of Articles 3.2 
and 15.2 whereby the effect of subject imports  on domestic prices may be examined through the 
vector of subject import prices, subject import volumes,  or both.  However, in circumstances where an 
investigating authority relies on both subject import prices and volume, a panel must still allow for the 
possibility that either prices or volume was sufficient by itself to sustain a finding.364  We therefore do 
not consider that the focus of the Panel's inquiry should have been on whether the effects of either 
subject import volume or prices was the primary basis for MOFCOM's price effects finding. 
217. In its analysis, the Panel observed that ex tracts on which China relied to establish the 
importance of subject import volume for MOFCOM 's analysis showed that MOFCOM's Final 
Determination referred "both to the increased volume of subject imports, and the allegedly low price 
thereof"365, and appeared "to lend equal weight to cons iderations of both subject import volume and 
price".366  We further note that, when MOFCOM referred to  "low price" in its analysis of the effect of 
subject import prices on domestic prices, it also referred to subject import volume: 
Because the sale of the product concerned was kept at a low price, 
and the import volume of the pr oduct concerned increased greatly 
beginning from 2008, under this im pact, domestic producers lowered 
their price to keep the market share.367 
218. Subsequently, when MOFCOM stated its finding of significant price depression and 
suppression, it also referred both to the eff ect of subject import prices and volume: 
                                                      
362Panel Report, para. 7.542.   
363Panel Report, para. 7.542. 
364As a logical matter, the fact that an investigating authority relies more heavily on one of two 
potential factors does not support the in ference that the lesser factor was by itself necessarily insufficient to 
sustain that finding, or that both factors together were insufficient to sustain it.  In any event, we recognize that, given the inter-relationship of product volumes and prices, it is not clear that an investigating authority may in 
practice easily separate and assess the relative contribution of the volumes versus the prices of subject imports 
on domestic prices.  
365Panel Report, para. 7.540.  
366Panel Report, para. 7.539.  
367Final Determination (Panel Exhibit CHN-16 (English version)), p. 58. WT/DS414/AB/R 
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To be more specific, the sharp increase of the import volume of the product concerned since the beginning of 2008 and the drop of the import price of the product concerned in Q1 2009 significantly depressed and suppressed the price of domestic like products.
368 
219. However, while MOFCOM's Fina l Determination referred to both the prices and volume of 
subject imports, there is no explanation or reasoni ng as to whether or how the prices and volume of 
subject imports interacted to produce an effect on domestic prices.  We recall that, under the heading 
in MOFCOM's Final Determination that referre d to the "import quantity" of subject imports, 
MOFCOM identified increases in the volume of s ubject imports of 0.91% from 2006 to 2007, 60.64% 
from 2007 to 2008, and 23.57% when comparing quantiti es in the first quarter of 2009 with the first 
quarter of 2008.369  We also recall that, under the heading in MOFCOM's Final Determination that 
referred to the "import price" of subject imports, MOFCOM identified price increases of 2.97% from 2006 to 2007, and 17.57% from 2007 to 2008, followed by a price drop of 1.25% in the first quarter 
of 2009 as compared to the first quarter of 2008.
370  Without further explanation or reasoning, 
however, MOFCOM's Final Determination does not indicate how these two factors may have interacted, or whether the effect of either prices or volume alone could have sustained MOFCOM's finding of significant price depression or suppression.
  
220. In this respect, we further recall the Pane l's conclusion that "[t]here [was] nothing in 
MOFCOM's determination to suggest that MOFCOM  itself found that the volume effects of subject 
imports alone were sufficient to conclude that price depression was an effect of subject imports."371  
Without further explanation or reasoning in MOFC OM's Final Determination regarding the manner in 
which the effects of the prices and volume of su bject imports operated either independently or 
together to depress domestic prices, we understand the Panel to have concluded that it was itself 
unable to disentangle the relative contribution of these effects in MOFCOM's Final Determination 
without substituting its judgement for that of the authority.  The Panel therefore refrained from 
conducting an analysis that, in its view, MOFCOM it self had not conducted.  To have done so would 
have put the Panel at risk of engaging in a de novo  review, which would have been inconsistent with a 
panel's standard of review in assessing determinations of national authorities. 
                                                      
368Final Determination (Panel Exhibit CHN-16 (English version)), p. 59.  
369Final Determination (Panel Exhibit CHN-16 (English version)), p. 57. 
370Final Determination (Panel Exhibit CHN-16 (English version)), p. 58. 
371Panel Report, footnote 522 to para. 7.542.  WT/DS414/AB/R 
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221. We therefore agree with the Panel that it was "not possible to conclude that MOFCOM's 
finding that price depression was an effect of subject  imports might be upheld purely on the basis of 
MOFCOM's findings regarding the effect of the increase in the volume of subject imports."372 
6. Overall Assessment of China's Application Claim 
222. Having reviewed the specific arguments of Chin a, we turn now to an overall assessment of 
China's claim that the Panel erred in its application of the legal standard. 
223. Above, we considered that the Panel was corre ct to conclude that MOFCOM's finding as to 
the "low price" of subject imports referred to the existence of price undercutting between 2006 and 
2008, and that MOFCOM relied on this factor to support its finding of significant price depression 
and suppression.  Moreover, in reviewing China's clai m in the alternative that the Panel nevertheless 
erred in imposing certain price comparison methodol ogies, we found no reason to disturb the Panel's 
criticism of the AUV data on which MOFCOM relied .  For these reasons, we consider that it was 
proper for the Panel to conclude that "MOFCOM' s reliance on AUVs, without any consideration of 
the need for adjustments to ensu re price comparability, is neither objective, nor based on positive 
evidence."373  We further note that, given that the Panel had reason to consider that MOFCOM's price 
effects finding did not involve an "objective examin ation" on the basis of "positive evidence", this 
would appear also to affirm the Panel's ulti mate finding of inconsistency on these grounds under 
Articles 3.1 and 3.2 of the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the 
SCM Agreement . 
224. The remaining elements of China's claim regardi ng the effect of the prices of subject imports 
rested on China's contentions that the Panel ignored the role of parallel price trends, and misconceived 
the role of a pricing policy aimed at price undercutting by subject imports in the first quarter of 2009.  
As we have explained, although MOFCOM's Final Determination refe rred to the fact that subject 
import and domestic prices first went up and then  down over the period of investigation, no 
explanation or reasoning was provided by MOFCOM in  its Final Determination, or by China before 
the Panel on the basis of the Final Determination,  as to how these trends contributed to the price 
depressive and suppressive effects of subject import pri ces.  With regard to th e Panel's assessment of 
a pricing policy aimed at undercutting domestic pric es, we have expressed the view that it was not 
appropriate for the Panel to have dismissed the pr icing policy on the grounds that it did because it 
failed to consider whether, even in the absence of  actual price undercutting, MOFCOM could have 
concluded that the policy had the effect of de pressing or suppressing domestic prices.  We note, 
                                                      
372Panel Report, para. 7.542. 
373Panel Report, para. 7.530. WT/DS414/AB/R 
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however, that notwithstanding our disagreement with th e Panel's treatment of the pricing policy, that 
factor was, even under China's argument, one of several factors on which MOFCOM relied to 
determine the effect of subject import prices on dom estic prices.  Accordingly, without a foundation 
to conclude that MOFCOM's analysis of the effect  of subject import prices could have been sustained 
on the basis of the pricing policy alone, we cannot c onclude that rejecting the Panel's analysis would 
lead to reversal of the Panel's ultimate finding  of inconsistency under Ar ticles 3.1 and 3.2 of the 
Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the SCM Agreement . 
225. In evaluating the implications of these conclu sions for China's claims, we also recall the 
Panel's analysis of the effects observed in the firs t quarter of 2009 as set out in paragraph 7.535 of its 
Report.  In that paragraph, the Panel stated:  
Finally, we note that MOFCOM also relied on "the drop of the 
import price of the product concerned in Q1 2009" when finding that price depression was an effect of subject imports.  In this regard, we note MOFCOM's finding that subject import prices fell by 1.25% from the first quarter of 2008 to the first quarter of 2009.  However, MOFCOM also found that subject import prices increased by 2.97% 
and 17.57% in 2007 and 2008 respectively.  In addition, MOFCOM 
also found that the subject import price was not lower than the domestic price in the first quarter of 2009.  In the absence of any further clarification by MOFCOM, we are not persuaded that an objective and impartial investigati ng authority could properly have 
found that, following a 17.57% increase in subject import price in 
2008, a 1.25% decrease in subject import price in the first quarter of 2009 could have had the effect of depressing domestic prices, 
particularly as subject imports prices in any event remained higher than domestic prices in that period.
374 (footnotes omitted)  
226. Here, the Panel expressed its scepticism that, fo llowing several years of increases in subject 
import prices, a 1.25% decrease in tho se prices in the first quarter of 2009 could have had the effect of 
depressing domestic prices, which MOFCOM had found fell by 30.25% during that same period.  As 
we understand it, however, the thrust of this cr itique is broader in the sense that, whether the 
contributing factors are argued to be parallel prici ng trends, a policy aimed at undercutting domestic 
prices, and/or a 1.25% decrease in the price of subject  imports, it is nevertheless anomalous that in the 
only period for which domestic prices actually went  down—that is, the first quarter of 2009—there 
was substantial divergence between the extent of the price decrease for subject imports versus that for 
domestic products.  Indeed, one w ould normally expect that under the conditions of price competition 
indicated by these factors, there would be a closer correlation in the movements in subject import and 
domestic prices.  Moreover, although China undersco res the importance of the increase in subject 
import volume to MOFCOM's finding of signifi cant price depression and suppression, we would 
                                                      
374Panel Report, para. 7.535.  WT/DS414/AB/R 
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expect that such a factor would also have had the same or similar effects on the price trends of subject 
imports and domestic products.  The fa ct that there was a substantial di vergence in pricing levels over 
that period could suggest that the two produc ts were not in competition with each other375, or that 
there were other factors at work.376  Therefore, even though we consider that a policy of price 
undercutting can explain depressive or suppressive ef fects on domestic prices even in the absence of 
actual price undercutting, we do not see that, in the li ght of the pricing dynamic in the first quarter of 
2009, there was a basis to conclude so in this case.   That pricing dynamic also calls into question 
whether the prices of subject imports adequately explain the depression or suppression of domestic prices.  
227. Finally, we take note of the Panel's consider ation that "the same flaws that undermined 
MOFCOM's finding that price depression was an effect of subject imports also undermine 
MOFCOM's finding that price suppression was an effect of subject imports."
377  Because China 
challenges the same elements of the Panel's analysis  as it relates to the price effects of depression and 
suppression, our conclusions regarding the Panel's an alysis of MOFCOM's Final Determination as it 
relates to significant price depression do not lead to a different result with respect to the Panel's 
analysis as it relates to significant price suppression. 
228. For the foregoing reasons, we find that the Panel di d not err in its application of Article 3.2 of 
the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , read together with Article 3.1 
of the Anti-Dumping Agreement  and Article 15.1 of the SCM Agreement . 
7. Overall Assessment of China's Article 11 Claim 
229. We explained that, although China claimed that  the Panel's treatment of MOFCOM's "low 
price" discussion constituted both an error in the Pane l's application of the legal standard, and in its 
duty to make an objective assessment of the facts unde r Article 11 of the DSU, we would examine the 
issue in the light of the Panel's application of the legal standard to MOFCOM's  Final Determination.  
By contrast, we considered that certain of China' s arguments regarding the need for price adjustments 
to ensure price comparability were more clearly di rected at the Panel's appreciation of the evidence, 
and that, because these issues were not addressed in China's Article 11 claim, we would not review 
them as part of China's appeal. 
                                                      
375In this connection, we note Japan's observation th at the fact that the price of subject imports was 
higher than the price of domestic like products in th e first quarter of 2009 "may rather indicate that both 
products are not in competition with each other, and th erefore, price depression or price suppression of the 
domestic products could not be an effect of the imports". (Japan's third participant's submission, para. 4) 
376In other parts of its analysis, the Panel addresses th e effects of Baosteel's entry into the market in 
2008 (Panel Report, paras. 7.548 to 7.550), and the effects of domestic capacity and production levels (Panel 
Report, paras. 7.629 to 7.637).  
377Panel Report, para. 7.547.  WT/DS414/AB/R 
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230. As we have noted, China also challenges whet her the Panel, in examining MOFCOM's Final 
Determination, applied a proper sta ndard of review under Article 11 of the DSU.  As was the case in 
respect of China's application claim, this aspect of China's Article 11 claim also rests on China's 
contention that the Panel relied on the "low pri ce" of subject imports in the form of price 
undercutting, and disregarded the totality of factor s that formed the basis for MOFCOM's finding of 
significant price depression and suppression.  In co nsidering China's application claim, we have 
examined the Panel's consideration of these factor s and found that the Panel did not err in its 
application of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , 
read together with Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 of the 
SCM Agreement .  Given the particular focus of China's claims  in this case, we therefore consider that, 
through our examination and disposition of China's a pplication claim, we have also resolved China's 
claim that the Panel did not apply a proper sta ndard of review under Article 11 of the DSU. 
231. For the foregoing reasons, we therefore find that the Panel did not act inconsistently with its 
duty to make an objective assessment under Article 11 of the DSU. 
C. Conclusion 
232. We have evaluated and rejected China's clai ms regarding the Panel's interpretation and 
application of Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , as 
well as China's claim that the Panel failed to make  an objective assessment within the meaning of 
Article 11 of the DSU.  Having reviewed these claims, we further consider that the Panel's application 
of the legal standard under Articles 3.2 and 15.2 , read together with Articles 3.1 and 15.1, is 
consistent with the interpretati on we have developed with resp ect to Articles 3.2 and 15.2.  
Accordingly, we uphold the finding of the Panel, at  paragraphs 7.554 and 8.1( f) of its Report, that 
MOFCOM's finding regarding the price effects of s ubject imports was inconsistent with Articles 3.1 
and 3.2 of the Anti-Dumping Agreement  and Articles 15.1 and 15.2 of the SCM Agreement . 
VII. Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement 
233. We now turn to examine China' s claim regarding the Panel's assessment under Article 6.9 of 
the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement .  Following a summary of the 
Panel's findings, we interpret these provisions befo re addressing China's specific arguments on appeal. 
A. The Panel's Findings 
234. The Panel commenced its analysis by examini ng the United States' claim that, in its price 
effects analysis, MOFCOM failed to disclose adeq uately the "essential facts" concerning the price  WT/DS414/AB/R 
 Page 91 
 
 
comparisons between domestically produced and impo rted products, as required by Article 6.9 of the 
Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement .378  The Panel considered that the 
"essential facts" that an investigating authority must disclose to interested parties pursuant to 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement  are those that 
underlie its findings of dumping or subsidization, in jury, and causal link, because these elements form 
the basis for the decision to apply definitive measures.379 
235. Before the Panel, China argued that MOFCOM's injury analysis was based on its finding of 
significant price depression and suppression, and that  MOFCOM did not make a finding of significant 
price undercutting.  The Panel found that, even a ccepting China's argument that MOFCOM did not 
make a finding of significant price undercutting, th e "low price" of subject imports formed an 
essential part of the reasoning MOFCOM used to support its finding of significant price depression 
and suppression.  Therefore, MOFCOM was require d to disclose not only the conclusion regarding 
the existence of a "low price", but also the essentia l facts supporting this conclusion, in order to allow 
interested parties to defend their interests.380 
236. Acknowledging China's argument that the price comp arison data at issue is confidential, the 
Panel reviewed the following non-confidential summa ries provided by MOFCOM that, according to 
China, included information underlying the finding of "low price" of subject imports: 
(i) The preliminary determination announces significant 
margins of dumping, demonstrating that United States exporters were 
charging lower prices in China than in their home market; 
(ii) The preliminary determination and the final injury disclosure 
document state that a "pricing policy aiming at setting the price to a 
level lower than that of the dom estic like product was adopted when 
selling the product concerned in China"; 
(iii) The preliminary determination states that "there was no 
evidence supporting the claim" that Russian prices were not causing 
price suppression.  According to Ch ina, this is a reference to the 
evidence that the parties had submitted; 
(iv) The final injury disclosure document refers to "data obtained 
from investigation" to highlight that Russian producers had a pricing 
                                                      
378We note that, before the Panel, the United States additionally argued that the following aspects of 
MOFCOM's price effects analysis were not accompanied by  adequate disclosure of the "essential facts under 
consideration" in accordance with Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement :  (i) the price levels for the domestically produc ed product;  (ii) the source of the information 
on pricing trends for the domestically produced produc t;  (iii) information regarding the purported low price 
"strategies" adopted by the US and Ru ssian exporters of GOES;  and (iv) the levels or trends of the domestic 
industry's costs. (Panel Report, para. 7.567) 
379Panel Report, para. 7.568.  
380Panel Report, para. 7.569.  WT/DS414/AB/R 
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policy of "setting the price to a lower level than that of the domestic like product";  and 
(v) The preliminary determination notes that the United States 
sales were below normal value and we re supported by subsidies.  It 
also notes the declining trend in subject import average unit values.
381  
(footnotes omitted) 
237. The Panel found that these non-confidential summaries did not provide a summary of the 
essential facts supporting MOFCOM's finding of "low price" of subject imports, as they did not refer 
to the prices of subject imports relative to the prices of GOES produced by the domestic Chinese 
industry.  In particular, the Panel considered that:  (i) the existence of dumping or subsidization could 
not be used to infer the relative prices of subj ect imports and the domestically produced product;  
(ii) information on the trends in subject import AUVs did not indicate that these values were lower 
than the values of domestically produced GOES;  and ( iii) the references to the low pricing strategies 
of the Russian and US exporters were also insu fficient as a summary of the essential facts supporting 
the conclusion of "low price" of subject imports, because they merely stated that such a strategy existed.
382 
238. The Panel noted certain instances in which China provided more specific, albeit still 
non-confidential, information to the Panel supporting  MOFCOM's finding of "low price" of subject 
imports.  In particular, the Panel referred to:  (i) China's explanation of the price setting behaviour that 
MOFCOM relied on to conclude that  a "low price strategy existed"383;  (ii) information regarding the 
dates of the transactions in which the "p ricing strategies" were allegedly employed384;  and 
(iii) information on the percentage difference be tween the AUVs of subject imports and domestic 
products for 2006, 2007, and 2008.385  In the Panel's view, information of this type reflected essential 
facts supporting MOFCOM's finding of "low price" of  subject imports, and sh ould have been included 
in MOFCOM Announcement No. 99 of 10 December 2009386 (the "Preliminary Determination") or 
                                                      
381Panel Report, para. 7.570.  
382Panel Report, paras. 7.572 and 7.573. 
383Panel Report, para. 7.573.  In relation to the price setting behaviour, China explained to the Panel 
that "the Chinese supplier quoted a price, the customer responded by noting the specific amount by which the 
Chinese offer was higher than the a lternatives available from Russian or US suppliers, and the Chinese supplier 
was then forced to lower its price." (Panel Report, para. 7.573 (quoting China's response to the Panel's request of 
18 November 2011 for certain confidential data, p. 2)) 
384Panel Report, para. 7.573 (referring to China's resp onse to the Panel's request of 18 November 2011 
for certain confidential data, p. 2). 
385Panel Report, para. 7.574.  
386MOFCOM Announcement No. 99 [200 9] (10 December 2009) (English translation as contained in 
Panel Exhibit CHN-17) (the "Preliminary Determination").   We note that the United States also submitted an 
English translation of MOFCOM's preliminary determination as part of Panel Exhibit US-5.  However, throughout its Report, the Panel cited the exhibit submitte d by China (Panel Exhibit CHN-17) when referring to 
the Preliminary Determination.  Similarly, in this Repo rt, we refer to the English translation as contained in 
Panel Exhibit CHN-17.  WT/DS414/AB/R 
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the disclosure of essential facts387 (the "Final Injury Disclosure") to  allow interested parties to defend 
their interests.  The Panel concluded that MOFC OM's failure to do so was inconsistent with 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement .388 
B. Interpretation 
239. Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement provide: 
The authorities shall, before a final determination is made, inform all 
[interested Members and] interested parties of the essential facts under consideration which form the basis for the decision whether to 
apply definitive measures.  Such disclosure should take place in 
sufficient time for the parties to defend their interests.
389 
240. At the heart of Articles 6.9 and 12.8 is the requirement to disclose, before a final 
determination is made, the ess ential facts under consideration which form the basis for the decision 
whether or not to apply definitive measures.  As to the type of information that must be disclosed, 
these provisions cover "facts under consideration", that is, those facts on the record that may be taken 
into account by an authority in reaching a deci sion as to whether or not to apply definitive 
anti-dumping and/or countervailing duties.  We highlight that, unlike Articles 12.2.2 of the Anti-Dumping Agreement  and 22.5 of the SCM Agreement , which govern the disclosure of matters of 
fact and law and reasons at the conclusion of anti-dumping and countervaili ng duty investigations, 
Articles 6.9 and 12.8 concern the disclosure of "facts"  in the course of such investigations "before a 
final determination is made".  Moreover, we note that Article s 6.9 and 12.8 do not require the 
disclosure of all the facts that are before an authority but , instead, those that ar e "essential";  a word 
that carries a connotation of significant, important , or salient.  In considering which facts are 
"essential", the following question arises:  essential for what purpose?  The context provided by the 
latter part of Articles 6.9 and 12.8 clarifies that such facts are, first, those that "form the basis for the 
decision whether to apply definitive measures" and, s econd, those that ensure the ability of interested 
                                                      
387Essential Facts Under Consideration Which Form th e Basis of the Determination on Industry Injury 
Investigation of the Antidumping Investigation of GOES from the US and Russia and the Anti-subsidy 
Investigation of GOES from the US, Shang Diao Cha Han (2010) No. 67 (5 March 2010) (English translation as 
contained in Panel Exhibit CHN-29).  We note that the United States also submitted an English translation of 
MOFCOM's disclosure document as part of Panel Exhibit US-27.  However, throughout its Report, the Panel 
cited the exhibit submitted by China (Panel Exhibit CHN-29) when referring to the Final Injury Disclosure.  
Similarly, in this Report, we refer to the Englis h translation as contained in Panel Exhibit CHN-29. 
388We observe that, given its conclusion with respect to MOFCOM's failure to disclose the "essential 
facts" underlying the finding of "low price" of subject imports, the Panel did not consider it necessary to 
examine whether MOFCOM's disclosure on other matters described  supra , in footnote 378, was also 
inconsistent with these provisions. (Panel Report, para. 7.575) 
389The bracketed text is included in Article 12.8 of the SCM Agreement , and not in Article 6.9 of the 
Anti-Dumping Agreement . WT/DS414/AB/R 
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parties to defend their interests.
390  Thus, we understand the "essential f acts" to refer to those facts that 
are significant in the process of reaching a decision as to whether or not to appl y definitive measures.  
Such facts are those that are salient for a decision to apply definitive measures, as well as those that 
are salient for a contrary outcome.  An authority must  disclose such facts, in a coherent way, so as to 
permit an interested party to understand the basis for the decision whether or not to apply definitive 
measures.  In our view, disclosing the essential fa cts under consideration pursuant to Articles 6.9 
and 12.8 is paramount for ensuring the ability of th e parties concerned to defend their interests. 
241. We agree with the Panel that, "[i]n order to apply definitive measures at the conclusion of 
countervailing and anti-dumping inv estigations, an investigating au thority must find dumping or 
subsidization, injury and a causal link"391 between the dumping or subsidization and the injury to the 
domestic industry.392  What constitutes an "essential fact" must therefore be understood in the light of 
the content of the findings needed to satisfy the subs tantive obligations with respect to the application 
of definitive measures under the Anti-Dumping Agreement  and the SCM Agreement , as well as the 
factual circumstances of each case.  These findings each  rest on an analysis of various elements that 
an authority is required to examine, which, in th e context of an injury analysis, are set out in, 
inter alia , Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement  and Articles 15.1, 15.2, 15.4, 
and 15.5 of the SCM Agreement .  Articles 3.2 and 15.2 require investigating authorities to consider 
the effect of subject imports on prices.  In pa rticular, under the second sentence of these provisions, 
authorities must consider whether there has been a significant price undercutting by the dumped or 
subsidized imports as compared with the price of  a like domestic product, or whether the effect of 
such imports is otherwise to depress prices to a significant degree or prevent price increases, which 
otherwise would have occurred, to a significant degree. 
242. Hence, in the context of the second sentence of Articles 3.2 and 15.2, we consider that the 
essential facts that investigating authorities need to disclose are those that are required to understand 
the basis for their price effects examination, leading to the decision whether or not to apply definitive 
                                                      
390An effective right for parties to defend their interests requires that, before a final determination is 
made, the authority explains, in the light of the substantive obligations of the Anti-Dumping Agreement  and the 
SCM Agreement , how the essential facts serve as the basis for the decision whether to apply definitive measures.  
We agree with the panel in EC – Salmon (Norway)  that these provisions are ther efore intended "to provide the 
interested parties with the necessary information to enable them to comment on the completeness and 
correctness of the facts being considered by the investigating authority, provide additional information or correct 
perceived errors, and comment on or make arguments as to the proper interpretation of those facts." (Panel Report, EC – Salmon (Norway) , para. 7.805) 
391Panel Report, para. 7.569.  
392We note that, in Mexico – Olive Oil , the panel similarly found that, in the context of the 
SCM Agreement , the "essential facts" are "the specific facts that underlie the investigating authority's final 
findings and conclusions in respect of the three essential elements—subsi dization, injury and causation—that 
must be present for application of definitive measures." (Panel Report, Mexico – Olive Oil , para. 7.110)  WT/DS414/AB/R 
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measures, so that interested parties can defend th eir interests.  We now turn to assess the Panel's 
analysis under Articles 6.9 and 12.8. 
C. Assessment of the Panel's Analysis under Article 6.9 of the Anti-Dumping Agreement 
and Article 12.8 of the SCM Agreement 
243. China challenges the Panel's finding that MOFCOM failed to disclose the essential facts 
underlying its finding of "low price" of subject  imports.  China argues that MOFCOM adequately 
disclosed, pursuant to Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the 
SCM Agreement , the essential facts regarding the existe nce of significant price depression and 
suppression.  China submits that, contrary to the Panel's view, the essential facts for price depression and suppression do not include any facts about the comparison of domestic prices to subject import 
prices, or the causal relationship between these two variables.
393 
244. We recall our finding that the Panel was correct  to conclude that, although MOFCOM did not 
make a finding of significant price undercutting, MOFC OM's finding as to the "low price" of subject 
imports referred to the existence of price unde rcutting between 2006 and 2008, and that MOFCOM 
relied on this factor to support its finding  of significant price depression and suppression.394  Thus, in 
the context of this aspect of MOFCOM's reasoning,  the essential facts included those facts underlying 
the existence of price undercutting that would have  allowed for an understanding of this element of 
MOFCOM's finding of significant price depression and suppression. 
245. We observe that, before the Panel, China argued that the essential facts were disclosed in the 
Preliminary Determination and the Final Injury Disclosure.395  These documents contain weighted 
average prices for subject imports for the year s 2006, 2007, 2008, and the first quarter of 2009.396  The 
Preliminary Determination additionally includes pe rcentages reflecting the changes in these prices 
during the relevant periods.397  As to the price of domestic like products, the Preliminary 
Determination and the Final Injury Disclosure only contain percentages reflecting price variations  for 
the years 2006, 2007, 2008, and the first quarter of 2009, without including the prices  of domestic 
products.398  At a descriptive level, the Preliminary Dete rmination states that one of the factors that 
led to the determination of significant price depressi on and suppression was "the constant sales of the 
                                                      
393China's appellant's submission, paras. 211 and 212. 
394See supra , para. 196. 
395Panel Report, para. 7.561 (referri ng to China's first written submi ssion, para. 306;  and China's 
opening statement at the first Panel meeting, para. 51). 
396Preliminary Determination (Panel Ex hibit CHN-17 (English version)), p. 55;  Final Injury Disclosure 
(Panel Exhibit CHN-29 (English version)), p. 9. 
397Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 55. 
398Preliminary Determination (Panel Ex hibit CHN-17 (English version)), p. 55;  Final Injury Disclosure 
(Panel Exhibit CHN-29 (English version)), p. 10.  WT/DS414/AB/R 
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product concerned at a low price ."
399  Importantly, as found by the Panel, MOFCOM did not include, 
in the Preliminary Determination or in the Fina l Injury Disclosure, the AUV data mentioned above 
nor any other information about price comparis ons between subject import prices and domestic 
prices.400 
246. On appeal, China argues that "MOFCOM's findings  of adverse price effects rested on its 
finding of price depression and price suppression, and MOFCOM appropriately disclosed the essential 
facts necessary to support those conclusions."401  Regarding price depression, China asserts that 
MOFCOM provided the essential facts by disclosing, in the Preliminary Determination and in the 
Final Injury Disclosure, that average domestic pric es had fallen by 30.25% during the first quarter of 
2009 compared to the first quarter of 2008.402  With respect to price suppression, China further asserts 
that MOFCOM provided the essential facts when it di sclosed in the Preliminary Determination that 
the "price-cost differential" in 2008 "dropped by 7% compared with 2007", and "dropped continually 
and greatly by 75%" during the first quarter of 2009 compared to the first quarter of 2008.403  China 
submits that, in both instances, this degree of disclos ure is sufficient and that any further detail would 
compromise the confidentiality of business confidential information.404 
247. First, we note that the Preliminary Determin ation and the Final Injury Disclosure indeed 
contain the information referred to by China.405  However, the question before us is whether such 
disclosure was sufficient to discharge MOFCOM's obligations under Article 6.9 and 12.8.  In particular, did MOFCOM disclose the essential facts c oncerning the "low price" of subject imports?  
We recall our finding that the Panel was correct to  conclude that MOFCOM's finding as to the "low 
price" of subject imports referred to the existe nce of price undercutting between 2006 and 2008, and 
that MOFCOM relied on this factor to support its finding of significant price depression and suppression.  Hence, given that MOFCOM relied on th is factor to support its finding of significant 
price depression and suppression, we do not consider  that MOFCOM discharged its obligations under 
Article 6.9 of the Anti-Dumping Agreement  and Article 12.8 of the SCM Agreement  by merely 
disclosing, with respect to price depression, that average domestic prices had fallen, and, with respect 
to price suppression, that the "price-cost differen tial" dropped during the period of investigation.  
                                                      
399Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 57. (emphasis added)  
400Panel Report, para. 7.574.  
401China's appellant's submission, para. 215.  
402China's appellant's submission, para. 213 (referring to Preliminary Determination (Panel Exhibit 
CHN-17 (English version)), p. 55;  and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)), p. 10). 
403China's appellant's submission, para. 214 (quoting Preliminary Determination (Panel Exhibit 
CHN-17 (English version)), p. 56).  
404China's appellant's submission, para. 214.  
405See Preliminary Determination (Panel Exhibit CHN-17 (English version)), p.p. 55-56;  and Final 
Injury Disclosure (Panel Exhibit CHN-29 (English version)), pp. 10 and15.  WT/DS414/AB/R 
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Indeed, the essential facts that MOFCOM should have disclosed in respect of the "low price" of 
subject imports include the price comparisons between subject imports and the like domestic 
products.  We note that, as found by the Panel, MOFCOM did not provide, in its Preliminary 
Determination or in its Final Injury Disclosure, the essential facts relating to the price comparisons 
upon which the finding of "low price"  of subject imports was based.406  Such facts should have been 
disclosed because they were required for an unders tanding of the occurrence of price undercutting, 
which served as a basis for MOFCOM's price effects finding.  With respect to China's argument that 
disclosing further details would have compromised business confidential information, we agree with 
the Panel that, when confidential information c onstitutes "essential facts" within the meaning of 
Articles 6.9 and 12.8, the disclosure obligations un der these provisions should be met by disclosing 
non-confidential summaries of those facts.407 
248. China further submits that "the Panel imprope rly criticize[d] MOFCOM for not disclosing the 
margins of underselling during the 2006-2008 period"408, given that "[t]hese facts … were never facts 
that 'form the basis of the decision' to impose measures."409  As found above, the essential facts 
include the price comparisons that substantiate th e existence of price undercutting, such as the AUV 
data provided by China to the Panel.  Therefore, we  consider that the Panel correctly found that this 
information should have been included in the Preliminary Determination or the Final Injury 
Disclosure. 
249. Additionally, China argues that "the Pa nel unreasonably criticizes MOFCOM for not 
providing the same level of detail that China provide d in its submissions to the Panel regarding the 
pricing policy."410  In particular, China argues that, althoug h the elements disclosed before the Panel 
might be useful facts, they were not "essential facts" for MOFCOM's reasoning in its Final Determination.  In China's view, "MOFCOM's reasoning did not depend on the dates of the 
transactions at issue, or whether they were  successful in undercutting domestic prices."
411  We are not 
persuaded by this argument.  First, we note th at the Panel examined the "pricing policy" under 
Articles 6.9 and 12.8 because China argued that, by  revealing information regarding this policy, 
MOFCOM disclosed a non-confidential summary of the information underlying its finding of "low 
price" of subject imports.  Before the Panel, Ch ina also provided information "regarding the price 
setting behaviour it was relying upon to concl ude that a 'low price strategy existed'"412 and the "dates 
                                                      
406Panel Report, para. 7.574.  
407Panel Report, para. 7.571.  
408China's appellant's submission, para. 220 (referring to Panel Report, para. 7.574).  
409China's appellant's submission, para. 220.  
410China's appellant's submission, para. 218 (referring to Panel Report, para. 7.573).  
411China's appellant's submission, para. 218.  
412Panel Report, para. 7.573.  WT/DS414/AB/R 
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of the transactions in which the 'pricing  strategies' were allegedly employed".
413  Contrary to China's 
position, we do not read the Panel as ascribing im portance to the additional information that China 
provided, merely because this information was more detailed  than the descriptions in the Preliminary 
Determination and the Final Injury Disclosure.  To the contrary, the Panel stated that "[i]n order to 
allow the respondents to defend their interests, a summary of the 'essential facts' supporting the finding of a 'low price strategy' was required, rather  than merely stating the conclusion that such a 
strategy existed."
414  In our view, the Panel was thus focu sing on the need to disclose the essential 
facts supporting  the finding concerning the pricing policy in order to comply with Articles 6.9 
and 12.8.  We therefore see no error in the Panel's assessment in this regard. 
250. Moreover, China argues that the Panel improperl y focused its analysis on the pricing policy 
and did not acknowledge the other factors consider ed in MOFCOM's Final Determination, namely, 
the significance of decreasing import prices and increasing import volume.415  We fail to see how the 
Panel's alleged failure to acknow ledge "the significance of decreasing import prices and increasing 
import volume" shows that, contrary to the Panel' s finding, MOFCOM did disclose the essential facts 
supporting the finding that "the sale of the product concerned was kept at a low price ".416  As we have 
found, the Panel correctly found that MOFCOM failed to disclose information on the price 
comparisons relating to the finding of "low price"  of subject imports as required by Articles 6.9 
and 12.8. 
251. In sum, MOFCOM was required to disclose the "ess ential facts" relating to the "low price" of 
subject imports on which it relied fo r its finding of significant price depression and suppression.  This 
means that, in addition to the finding regarding th e "low price" of subject imports, MOFCOM was 
also required to disclose the facts of price undercutti ng that were required to understand that finding.  
As the Panel found, the Preliminary Determinati on and the Final Injury Disclosure only state that 
subject imports were at a "low price", without provi ding any facts relating to the price comparisons of 
subject imports a nd domestic products.417  We consider that these facts constituted "essential facts" 
within the meaning of Articles 6.9 and 12.8, whic h should have been disclosed to all interested 
parties.  Consequently, we uphold  the Panel's finding in paragraphs  7.575 and 8.1(f) of the Panel 
Report that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement  and 
Article 12.8 of the SCM Agreement . 
                                                      
413Panel Report, para. 7.573.  
414Panel Report, para. 7.573.  
415China's appellant's submission, para. 221 (referring to Final Determination (Panel Exhibit CHN-16 
(English version)), p. 59).  
416Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 56. (emphasis added) 
417Panel Report, para. 7.574.   WT/DS414/AB/R 
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VIII.  Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement 
252. We now turn to examine China's claim regard ing the Panel's assessment under Article 12.2.2 
of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement .  After a summary of the 
Panel's findings, we interpret these provisions befo re addressing China's specific arguments on appeal. 
A. The Panel's Findings 
253. The Panel commenced its analysis by examining the United States' claim that, with regard to 
its price effects analysis, MOFCOM failed to provide adequate public notice and explanation 
regarding its finding that the prices of GOES fro m the United States and Russia were lower than 
prices for the domestically produced product.418  The Panel then observed that, when confidential 
information also forms part of the "relevant info rmation on matters of fact and law" within the 
meaning of Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement , an 
investigating authority can meet its dual obligations  to disclose the relevant information while also 
protecting its confidentiality, by providing a non-co nfidential summary in the public notice or in a 
separate report.419 
254. The Panel reiterated its conclusion that the "low  price" of subject imports was an important 
aspect of MOFCOM's reasoning leading to the impos ition of final measures, and found that the Final 
Determination did not include any indication that  a comparative analysis of prices had been 
performed, or provide the factual information ar ising from such a comparison.  While the Panel 
agreed with the Appellate Body's finding in US – Countervailing Duty Investigation on DRAMS  that 
"Article 22.5 does not require the agency to cite or discuss every piece of supporting record evidence 
for each fact in the final determination"420, it nevertheless considered that the significance of the 
conclusion regarding the "low price" of subject im ports in MOFCOM's analysis made it necessary to 
include further information on the matters of fact leading to this conclusion.421  The Panel noted that 
"MOFCOM had before it information on the prices of  subject imports and the prices of the domestic 
product and undertook a comparative analysis of this information."422  Consequently, the Panel found 
that China acted inconsistently  with Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of 
                                                      
418We note that, before the Panel, the United States  also claimed that MOFC OM acted inconsistently 
with Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement  by not including in 
the Final Determination facts supporting its finding that th e United States and Russia had a strategy of charging 
low prices, and by not providing r easons for the acceptance or rejection of arguments submitted by exporters 
and importers. (Panel Report, para. 7.587) 
419Panel Report, para. 7.589. 
420Panel Report, para. 7.591 (quoting Appellate Body Report, US – Countervailing Duty Investigation 
on DRAMS , para. 164). 
421Panel Report, paras. 7.590 and 7.591.  
422Panel Report, para. 7.591.  WT/DS414/AB/R 
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the SCM Agreement  by failing adequately to disclose all rele vant information on the matters of fact 
underlying MOFCOM's conclusion regarding the existence of "low" subject import prices.
423 
B. Interpretation 
255. Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the SCM Agreement  
provide in relevant part:  
A public notice of conclusion or suspension of an investigation in the 
case of an affirmative determination providing for the imposition of a definitive duty … shall contain, or otherwise make available through 
a separate report, all relevant information on the matters of fact and 
law and reasons which have led to  the imposition of final measures 
… due regard being paid to the requirement for the protection of confidential information.  In particular, the notice or report shall contain the information described in [Article 12.2.1 of the 
Anti-Dumping Agreement /Article 22.4 of the SCM Agreement ]. 
256. Relevant to this dispute is the requirement in Articles 12.2.2 and 22.5 that a public notice 
contain "all relevant information" on "m atters of fact" "which have led to  the imposition of final 
measures".
424  With regard to "matters of fact", these provisions do not require authorities to disclose 
all the factual information that is before them, but ra ther those facts that allow an understanding of the 
factual basis that led to the imposition of final measures.425  The inclusion of this information should 
therefore give a reasoned account of the factual support for an authority's decision to impose final 
measures.  Moreover, we note that the obligations und er Articles 12.2.2 and 22.5 come at a later stage 
in the process than the requirement  to disclose the essential facts pursuant to Articles 6.9 and 12.8.  
While the disclosure of essential facts must take place "before a final determination is made", the obligation to give public notice of the conclusi on of an investigation within the meaning of 
Articles 12.2.2 and 22.5 is triggered once there is  an affirmative determination providing for the 
imposition of definitive duties. 
257. As noted in our examination of Articles 6.9 and 12.8, the imposition of final anti-dumping or 
countervailing duties requires that an authority find s dumping or subsidization, injury, and a causal 
                                                      
423Panel Report, para. 7.592.  We note that, given its conclusion with respect to the failure to disclose 
adequately all relevant information on the matters of fact underlying MOFCOM's conclusion regarding the "low 
price" of subject imports, the Panel did not consider it necessary to address the United States' arguments 
described supra , in footnote 418. (Panel Report, para. 7.592) 
424We note that, in addition to matters of fact, Articles 12.2.2 and 22.5 also require that the public 
notice contain all relevant information on the matters of law and reasons which have led to the imposition of 
final measures. 
425We observe that, in US – Countervailing Duty Investigation on DRAMS , the Appellate Body held 
that Article 22.5 of the SCM Agreement  "does not require the agency to cite  or discuss every piece of supporting 
record evidence for each fact in the fina l determination". (App ellate Body Report, US – Countervailing Duty 
Investigation on DRAMS , para. 164)  WT/DS414/AB/R 
 Page 101 
 
 
link between the dumping or subsidization and the in jury to the domestic industry.  What constitutes 
"relevant information on the matters of fact" is theref ore to be understood in the light of the content of 
the findings needed to satisfy the substantive re quirements with respect to the imposition of final 
measures under the Anti-Dumping Agreement  and the SCM Agreement , as well as the factual 
circumstances of each case.  These findings each r est on an analysis of various elements that an 
authority is required to examine, which, in the context of an injury analysis, are set out in, inter alia , 
Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement  and Articles 15.1, 15.2, 15.4, and 15.5 
of the SCM Agreement .  Articles 3.2 and 15.2 require, inter alia , an investigating authority to consider 
the effect of the subject imports on prices by c onsidering whether there has been significant price 
undercutting, or whether the effect of such impor ts is otherwise to depress prices to a significant 
degree or prevent price increases, which otherwise w ould have occurred, to a significant degree.  We 
note that Articles 12.2.2 and 22.5 further undersco re the requirement of public notice of these 
elements by cross-referencing, respectively, to Articles 12.2.1 of the Anti-Dumping Agreement  
and 22.4 of the SCM Agreement , which require that the public noti ce or report contain considerations 
relevant to the injury determina tion as set out in Articles 3 and 15. 
258. Articles 12.2.2 and 22.5 are both situated in the context of provisions that concern the public 
notice and explanation of determinations in anti-du mping and countervailing duty investigations.  In 
the case of an affirmative determination prov iding for the imposition of a definitive duty, 
Articles 12.2.2 and 22.5 provide that such notice sha ll contain all relevant information on the matters 
of fact and law and reasons whic h have led to the imposition of final measures.  Articles 12.2.2 
and 22.5 capture the principle that those parties whos e interests are affected by the imposition of final 
anti-dumping and countervailing duties are entitled to know, as a matter of fairness and due process, 
the facts, law and reasons that have led to the im position of such duties.  The obligation of disclosure 
under Articles 12.2.2 and 22.5 is framed by the re quirement of "relevance", which entails the 
disclosure of the matrix of facts, law and reasons th at logically fit together to render the decision to 
impose final measures.  By requiring the disclosur e of "all relevant information" regarding these 
categories of information, Articles 12.2.2 and 22.5 seek to guarantee that interest ed parties are able to 
pursue judicial review of a final determ ination as provided in Article 13 of the Anti-Dumping 
Agreement  and Article 23 of the SCM Agreement . 
259. With respect to the form in which the relevant  information must be disclosed, Articles 12.2.2 
and 22.5 allow authorities to decide whether to incl ude the information in the public notice itself "or 
otherwise make [it] available through a separate re port".  We note that Articles 12.2.2 and 22.5 also 
provide that the notice or report shall pay "due re gard … to the requirement for the protection of 
confidential information".  When confidential inform ation is part of the relevant information on the WT/DS414/AB/R 
Page 102  
 
matters of fact within the meaning of Articles 12. 2.2 and 22.5, the disclosure obligations under these 
provisions should be met by disclosing non-confidential summaries of that information.  
260. In sum, in the context of the second sentence of Articles 3.2 and 15.2, we consider that "all 
relevant information on the matters of fact" consists  of those facts that are required to understand an 
investigating authority's price effects examination leading to the imposition of final measures.  We 
now turn to assess the Panel's analysis under Articles 12.2.2 and 22.5. 
C. Assessment of the Panel's Analysis und er Article 12.2.2 of the Anti-Dumping 
Agreement and Article 22.5 of the SCM Agreement 
261. China challenges the Panel's finding that MOFCOM  failed adequately to disclose "all relevant 
information on the matters of fact" underlying MO FCOM's conclusion regarding the "low price" of 
subject imports, as required by Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement .  China argues that MOFCOM adequately pr ovided public notice of its finding of 
significant price depression and suppression, which, contrary to the Panel's view, does not require a 
causal relationship between subject imports and these adverse price effects.
426  China highlights that 
the Panel did not examine this finding and, rather , focused on the existence and magnitude of price 
undercutting, thereby making a comparison of subject  import prices to domestic prices "essential 
elements" and "an important aspect" of MOFCOM's price effects examination.427 
262. We recall our finding that the Panel was correct  to conclude that, although MOFCOM did not 
make a finding of significant price undercutting, MOFC OM's finding as to the "low price" of subject 
imports referred to the existence of price unde rcutting between 2006 and 2008, and that MOFCOM 
relied on this factor to support its finding of significant price depression and suppression.428  
Accordingly, in the context of this aspect of MO FCOM's reasoning, the "relevant information on the 
matters of fact" included those facts underlying the existence of price undercutting that would have 
allowed for an understanding of this element of MOFCOM's finding of significant price depression 
and suppression. 
263. Against this background, we note that the Final Determination429 contains weighted average 
prices for subject imports for the years 2006, 2007, 20 08, and the first quarter of 2009, as well as the 
percentages reflecting the changes in these prices during these periods.430  With respect to the price of 
                                                      
426China's appellant's submission, para. 224. 
427China's appellant's submission, para. 228.  
428See supra , para. 196. 
429The Final Determination was the document examined by the Panel in the context of the 
United States' claim under Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement . 
430Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.   WT/DS414/AB/R 
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the like domestic products, the Final Determination only contains percentages reflecting price 
variations  for the years 2006, 2007, 2008, and the first quarter of 2009, without including the prices  
of domestic products.431  Regarding the impact of subject import prices on the prices of like domestic 
products, the Final Determination states that, "[b]ecause the sale of the product concerned was kept at a low price , and the import volume of the product con cerned increased greatly beginning from 2008, 
under this impact, domestic producers lowered their price to keep the market share."
432  As noted in 
the context of our examination of Articles 6.9 a nd 12.8, China argued before the Panel that the 
existence of price undercutting supported MOFCOM's finding that subject imports were at a "low 
price", and, for this purpose, submitted to the Panel data regarding AUVs of subject imports and 
domestic products between 2006 and 2008.433  As found by the Panel, MOFCOM's Final 
Determination does not, howeve r, include this AUV data.434 
264. On appeal, China argues that MOFCOM adequately provided public notice of its finding 
regarding the existence of significant price depre ssion and suppression in the Final Determination by 
stating, respectively, that "average prices droppe d", and that the "price-cost differential" dropped.435  
China further argues that the Panel erred by "focus[i ng] entirely on the degree of public notice not just 
about the existence of price undercutting … but also the specific magnitude of the price 
undercutting."436  In China's view, given that the Panel determined that MOFCOM made a finding of 
price depression and suppression, and not of price undercutting, the evidence about price undercutting 
during the 2006-2008 period is the type of "suppor ting record evidence" that the Appellate Body 
considered would not need to be disclosed under Article 22.5 of the  SCM Agreement .437  We disagree 
with this argument for the following reasons.  As f ound above, the Panel was correct to conclude that 
MOFCOM's Final Determination relied on evidence of price undercutting to establish that the effects 
of subject imports were to depress and suppress prices to a significant degree.438  Notably, as found by 
the Panel, MOFCOM did not disclose information re lating to the price comparisons between subject 
                                                      
431Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.  
432Final Determination (Panel Exhibit CHN-16 (English version)), p. 58. (emphasis added) 
433Panel Report, para. 7.591 (referring to China's second written submission to the Panel, footnote 95 to 
para. 102). 
434Panel Report, para. 7.591. 
435In particular, similar to its argument in the context of Article 6.9 of the Anti-Dumping Agreement  and 
Article 12.8 of the SCM Agreement , China asserts that, with respect to pr ice depression, the Final Determination 
established that average domestic prices dropped by 30.25% during the first quarter of 2009 compared to the 
first quarter of 2008.  Regarding price suppression, Chin a further submits that the Final Determination stated 
that the "price-cost differential" dropped by 7% during calendar year 2008 compared to calendar year 2007, and 
dropped even more substantially by 75% in the first quarter of 2009 compared to the first quarter of 2008. 
(China's appellant's submission, para. 225) 
436China's appellant's submission, para. 226.  
437China's appellant's submission, para. 227 (referring to Appellate Body Report, US – Countervailing 
Duty Investigation on DRAMS , para. 164).  
438See supra , para. 196. WT/DS414/AB/R 
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imports and dom estic products.
439  Thus, MOFCOM's disclosure that "average domestic prices 
dropped" and that the "price-cost differential droppe d" is insufficient to convey all the relevant 
information on the matters of fact relating to MOFC OM's finding that subject imports were at a "low 
price". 
265. China further argues that the Panel erred in three respects in considering a comparison of 
subject import prices to domestic prices "essential elements" and "an important aspect" of 
MOFCOM's Final Determination.  First, China subm its that the Panel erred in faulting MOFCOM for 
not disclosing the margin by which the prices of subject imports were below the prices of domestic producers.  China highlights that this fact—or any facts about such relative prices—was never a 
"matter of fact" on which MOFCOM actually based its decision to impose final measures.
440  Second, 
China argues that, pursuant to Articles 12.2 of the Anti-Dumping Agreement  and 22.3 of the 
SCM Agreement , the public notice requirement only extends to those facts "considered material" by 
the investigating authority.  China adds that, give n that the Final Determination does not contain any 
finding of price undercutting, such facts were not material to MOFCOM's Final Determination.  
Consequently, argues China, these facts need not ha ve been disclosed in the Final Determination.441  
At the outset, we note that the facts that an inv estigating authority may consider material to its 
determinations are circumscri bed by the framework of the substantive provisions of the Anti-Dumping 
Agreement  and the SCM Agreement .  Moreover, we recall our finding, in the context of Articles 3.2 
and 15.2, that the Panel was correct to conclude that MOFCOM's finding as to the "low price" of 
subject imports referred to the existence of price undercutting between 2006 and 2008, and that 
MOFCOM relied on this factor to support its finding of significant price depression and suppression.
442  Accordingly, we disagree with China' s arguments, as they are premised on its 
contention that MOFCOM did not rely on the exis tence of price undercutting for its finding of 
significant price depression and suppression. 
266. Finally, China asserts that the Panel ignored  MOFCOM's finding on the pricing policy of 
producers of the product concerned, even though MO FCOM disclosed the basi c facts underlying this 
finding, namely, the existence of such a policy, its an alytic relevance, and the fact that the "contracts 
and records of price setting" were collected during an  onsite verification.  China further contends that 
the Panel did not take into cons ideration MOFCOM's disclosure of the other two elements discussed 
in the Final Determination, namely, decreasing import prices and increasing import volume.443  We 
fail to see how asserting that the Panel ignored MOFCOM's finding on the pricing policy and "the 
                                                      
439Panel Report, para. 7.591.  
440China's appellant's submission, para. 230.  
441China's appellant's submission, para. 231.  
442See supra , para. 196. 
443China's appellant's submission, para. 229.   WT/DS414/AB/R 
 Page 105 
 
 
significance of decreasing import prices and increasing import volume" demonstrates that MOFCOM 
included in the Final Determination "all relevant information on the matters of fact" with respect to 
the "low price" of subject imports.  We are therefore not persuaded by China's argument. 
267. In sum, MOFCOM was required to disclose "all re levant information on the matters of fact" 
relating to the "low price" of subject imports on which it relied for its finding of significant price 
depression and suppression.  Consequently, in addition  to the finding in its Final Determination that 
subject imports were at a "low price", MOFCOM was also required to disclose the facts of price 
undercutting that were required to understand th at finding.  As the Panel found, the Final 
Determination only states that s ubject imports were at a "low pr ice", without providing any facts 
relating to the price comparisons of subject imports and domestic products.444  We consider that these 
facts constituted "relevant information on the matters  of fact" within the meaning of Articles 12.2.2 
and 22.5, which should have been included in MOFC OM's Final Determination.  Consequently, we 
uphold  the Panel's finding in paragraphs 7.592 an d 8.1(f) of the Panel Report that China acted 
inconsistently with Article 12.2.2 of the Anti-Dumping Agreement  and Article 22.5 of the 
SCM Agreement . 
IX. Findings and Conclusions 
268. For the reasons set out in this Report, the Appellate Body: 
(a) with respect to the Panel's interpretation of Article 3.2 of the Anti-Dumping 
Agreement and Article 15.2 of the SCM Agreement : 
(i) finds that Article 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement  require an investigating authority to consider the 
relationship between subject imports and the prices of the like domestic 
products, so as to understand whether s ubject imports provide explanatory 
force for the occurrence of significant depression or suppression of domestic prices;  and 
(ii) finds that the Panel did not err in not adopting China's interpretation of 
Articles 3.2 of the Anti-Dumping Agreement  and Article 15.2 of the 
SCM Agreement ;  
                                                      
444Panel Report, para. 7.591.  WT/DS414/AB/R 
Page 106  
 
(b) with respect to the Panel's assessment of MOFCOM's price effects analysis: 
(i) finds that the Panel did not err in it s application of Article 3.2 of the 
Anti-Dumping Agreement  and Article 15.2 of the SCM Agreement , read 
together with Article 3.1 of the Anti-Dumping Agreement  and Article 15.1 of 
the SCM Agreement ; 
(ii) finds that the Panel did not act incons istently with its duty to make an 
objective assessment under Article 11 of the DSU;  and 
(iii) upholds the Panel's finding, at paragraphs  7.554 and 8.1(f) of its Report, that 
MOFCOM's finding regarding the price effects of subject imports was 
inconsistent with Artic les 3.1 and 3.2 of the Anti-Dumping Agreement  and 
Articles 15.1 and 15.2 of the SCM Agreement ; 
(c) with respect to the Panel's finding under Article 6.9 of the Anti-Dumping Agreement 
and Article 12.8 of the SCM Agreement : 
(i) upholds the Panel's finding, at paragraphs  7.575 and 8.1(f) of its Report, that 
China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement  
and Article 12.8 of the SCM Agreement ;  and 
(d) with respect to the Panel's finding under Article 12.2.2 of the Anti-Dumping 
Agreement  and Article 22.5 of the SCM Agreement : 
(i) upholds the Panel's finding, at paragraphs  7.592 and 8.1(f) of its Report, that 
China acted inconsistently with Article 12.2.2 of the Anti-Dumping 
Agreement  and Article 22.5 of the SCM Agreement .  WT/DS414/AB/R 
 Page 109 
 
 
ANNEX I 
 
WORLD TRADE  
ORGANIZATION   
WT/DS414/5 
23 July 2012 
 (12-4026) 
 Original:   English 
  
 
CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN ORIENTED 
FLAT-ROLLED ELECTRICAL STEEL FROM THE UNITED STATES 
 
Notification of an Appeal by China 
under Article 16.4 and Article 17 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
 
  The following notification, dated 20 July 2012,  from the Delegation of the People's Republic 
of China, is being circulated to Members. 
 
_______________ 
 
 
1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate 
Review, the People's Republic of China hereby notifies the Dispute Settlement Body of its decision to appeal to the Appellate Body certain issues of law and legal interpretation c overed in the Panel Report 
in China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel 
from the United States  (WT/DS414) ("Panel Report").  Pursuant to Rule 20(1) of the Working 
Procedures for Appellate Review , China is simultaneously filing this Notice of Appeal with the 
Appellate Body Secretariat. 
2. The measures at issue in this dispute impos ed countervailing duties and anti-dumping duties 
on grain oriented flat-rolled electrical steel ("GOES") from the United States.  An application for the initiation of an anti-dumping and countervailing dut y investigation was filed by Chinese petitioners, 
alleging the existence of countervailable subsidies and dumping margins that caused or threatened to 
cause injury to the domestic Chin ese industry.  The Ministry of Commerce for the People's Republic 
of China ("MOFCOM") issued an affirmative fina l determination in each of these investigations.  
MOFCOM calculated ad valorem  subsidy rates of 11.7% and 12% for the respondent companies, and 
dumping margins of 7.8% and 19.9%.  Furthermore,  MOFCOM determined that the domestic industry 
was suffering from material injury , and that the injury was caused by the dumped imports of GOES 
from Russia and the dumped and subsidized imports  of GOES from the United States.  MOFCOM 
made these determinations in  its final determination, Final Determination [2010] No. 21 (10 April 
2010) . 
3. The issues that China raises in this appeal rela te to the Panel's findi ngs and conclusions in 
respect of the consistency of the challenged me asures with the Anti-Dumping Agreement and the 
Agreement on Subsidies and Countervailing Measures  ("SCM Agreement"). WT/DS414/AB/R 
Page 110  
 
4. For the reasons stated below, and as will be deve loped in its submissions and oral statements 
to the Appellate Body, China appeals the following e rrors of law and legal in terpretation contained in 
the Panel Report and requests the Appellate Body to  reverse or modify th e related findings and 
conclusions of the Panel.  In doing so, China mak es five specific claims, delineated below and to be 
detailed in its submissions to the Appellate Body.
1 
5. First, China seeks review by the Appellate Body of the Panel's interpreta tion of Article 3.2 of 
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as it relates to MOFCOM's 
discussion of the existence of adverse price effects.  In particular, the Panel erred in interpreting the 
phrase "the effect of" from Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as meaning that an authority must demonstrate that adverse price effects were 
caused by dumped or subsidized imports.
2  In doing so, the Panel did not consider the text, context, 
and object and purpose of those provisions and those agreements.3 
6. Second, China seeks review by the Appellate Body  of the Panel's application of Article 3.2 of 
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as it relates to MOFCOM's 
final determinations with respect to price effects.4  The Panel's application of the legal standard erred 
in several fundamental aspects.5  The Panel's errors of law and legal application include:  
(a) The Panel erred in interpreting MOFCOM's fi nal determinations in a manner that caused 
the Panel to apply the obligations of Article  3.2 and Article 15.2 to facts not found by 
MOFCOM.  Rather than apply the legal standa rd to MOFCOM's final determinations as 
written, the Panel examined findings never made by the authority and instead ignored or dismissed key factors that MOFCOM had discussed in its determinations.
6 
 
(b) The Panel erred in requiring specific methodologies to satisfy the obligations of 
Article 3.2 and Article 15.2.7  Instead of deferring to the discretion of the authority when 
considering price effects, the Panel impos ed several methodological requirements for 
evaluating price effects that do not exist in the text of the agreements and were not raised 
by the parties to the underlying investigation.   
 7. Third, China seeks review by the Appellate Body under Article 11 of the DSU of how the 
Panel proceeded in this dispute.  The Panel acted  inconsistently with Article 11 of the DSU in 
conducting its analysis of price depression and pr ice suppression by failing to conduct an objective 
assessment of the matter.  Specifically, the Panel misinterpreted a fundamental MOFCOM finding of 
fact, the result of which caused the Panel to fi nd MOFCOM's price depression and price suppression 
findings inconsistent with Article 3.2 and 15.2.
8  In doing so, the Panel also erred in failing to 
consider the totality of the evidence.  The Panel a pproached individual pieces of evidence in isolation 
instead of addressing the ways in which MOFCOM's evidence interrelated.9  Ultimately, the Panel 
erred in failing to focus on the MOFCOM decision as written.  The Panel went beyond the rationale 
                                                      
1Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review  this Notice of Appeal 
includes citations to the paragraphs of the Panel Report containing the alleged errors.  These citations, however, 
do not prejudice to the ability of China to refer to other paragraphs of the Panel Report in its appeal. 
2Panel Report, para. 7.520. 
3Ibid. paras. 7.519-7.522, 8.1(f). 
4Ibid. paras. 7.536, 8.1(f). 
5Ibid. paras. 7.523-7.536. 
6Ibid. 
7Ibid. paras. 7.528-7.530. 
8Ibid. para. 7.542. 
9Panel Report, paras. 7.523-7.543.  WT/DS414/AB/R 
 Page 111 
 
 
contained in the determination itself and relied upon the interpretation advocated by the United States 
and the Panel's own new price effects analysis.10 
8. Fourth, China seeks review by the Appellate Body of the Panel's finding that China acted 
inconsistently with its obligati ons under Article 6.9 of the Anti-Du mping Agreement and Article 12.8 
of the SCM Agreement regarding the disclosure of essential facts relating to MOFCOM's price effects 
analysis.11  The Panel's finding rested entirely on its e rroneous understanding of the legal obligations 
of Article 3.2 of the Anti-Dumping Agreem ent and Article 15.2 of the SCM Agreement.12  The Panel 
adopted a misguided understanding of "essential facts"13 because the Panel misunderstood the 
underlying obligations at issue. 
9. Fifth, China seeks review by the Appellate Body of the Panel's finding that China acted 
inconsistently with its obliga tions under Article 12.2.2 of the Anti-Dumping Agreement and 
Article 22.5 of the SCM Agreement regarding the pu blic notice and explanation of MOFCOM's price 
effects analysis.14  As with China's fourth claim, this Panel finding rested entirely on the Panel's 
erroneous understanding of the lega l obligations of Article 3.2 of the Anti-Dumping Agreement and 
Article 15.2 of the SCM Agreement.15  In light of a proper inte rpretation of Article 3.2 and 
Article 15.2, MOFCOM adequately provided public notice of its findings regarding the existence of 
price depression and price suppression. 
10. China respectfully requests that the Appellate  Body reverse the findi ngs and conclusions of 
the Panel that are based on the errors of law and legal interpretation identified above.  
  
__________  
 
                                                      
10Ibid. 
11Ibid. paras. 7.575, 8.1(f). 
12Ibid. paras. 7.573-7.574. 
13Ibid. para. 7.575. 
14Ibid. paras. 7.592, 8.1(f). 
15Ibid. paras. 7.591-7.592.