WT/DS471/AB/R/Add.1  
 
11 May 2017  
(17-2520) Page: 1/34 
  Original: English  
 
  UNITED  STATES – CERTAIN METHODOLOGIE S AND THEIR APPLICAT ION  
TO ANTI -DUMPING PROCEEDINGS INVOLVING CHINA  
AB-2016-7 
Report of the Appellate Body  
Addendum  
This Addendum  contains Annexes A to D to the Report of the Appellate Body  circulated as  
document  WT/DS 471/AB/R . 
 
The Notice of Appeal  and the executive summaries of written submissions contained in this 
Addendum are attached as they were received from the participants and third participants. The 
content has not been revised or edited by the Appellate Body, except that paragraph and footnote 
numbers that did not start at one in the original may have been re -numbered to do so, and the 
text may have been formatted in order to adhere to WTO style. The executive summaries do not 
serve as substitutes for the submi ssions of the participants and thir d participants in the 
Appellate  Body's examination of the appeal.  
 
 
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 WT/DS 471/AB/R/Add.1  
 
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 LIST OF ANNEXES  
ANNEX  A 
NOTICE OF APPEAL  
Contents  Page  
Annex  A-1 China 's Notice of Appeal  A-2 
ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of China 's appellant's submission  B-2 
Annex  B-2 Executive summary of the United States'  appellee's submission  B-11 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of  Brazil 's third participant's submission  C-2 
Annex  C-2 Executive summary of Canada's  third participant's submission  C-3 
Annex  C-3 Executive summary of  the European Union's third participant's submission  C-4 
Annex C -4 Executive summary of Japan's third particip ant's submission  C-6 
Annex C -5 Executive summary of Viet Nam's third participant's submission  C-7 
ANNEX  D 
PROCEDURAL RULING  
Contents  Page  
Annex  D-1 Procedural ruling of 22 November 2016 regarding extension of time -limits for 
submission of documents  D-2 
 
 
 WT/DS 471/AB/R/Add.1  
 
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  ANNEX  A 
NOTICE  OF APPEAL  
Contents  Page  
Annex  A-1 China 's Notice of Appeal  A-2 
 
 WT/DS 471/AB/R/Add.1  
 
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 ANNEX  A-1 
CHINA'S NOTICE OF APPEAL*  
UNITED  STATES – CERTAIN METHODOLOGIE S AND THEIR APPLICAT ION  
TO ANTI -DUMPING PROCEEDINGS INVOLVING CHINA  
_______________  
 
 
1. Pursuant t o Article 16.4 and Article 17.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  ("DSU"), China hereby notifies to the Dispute Settlement 
Body its decision to appeal to the Appellate Body certain issues of law and legal int erpretations in 
the Panel Report in United States – Certain Methodologies and their Application to Anti -Dumping 
Proceedings involving China  (WT/DS471) ( "Panel Report ").  
2. Pursuant to Rule 20(1) of the Working Procedures for Appellate Review (WT/AB/WP/6, 
16 August 2010) ( "Working Procedures "), China simultaneously files this Notice of Appeal with the 
Appellate Body Secretariat.  
3. For the reasons further elaborated in its submissions to the Appellate Body, China appeals, 
and requests  the Appellate Body to revers e, certain issues of law and legal interpretations 
developed by the Panel in this dispute. China also requests the Appellate Body to modify certain 
issues of law and legal interpretations developed by the Panel. China also requests the 
Appellate  Body to co mplete certain aspects of the analysis and make certain findings.1 
I Appeal of the Panel 's error in interpreting and applying the legal standard under 
Article 2.4.2, second sentence, of the Anti-Dumping Agreement for identifying a 
relevant pricing pattern and in applying the s tandard of review under 
Article  17.6(i) of the Anti-Dumping Agreement  
4. China appeals the Panel's error in interpreting and applying the first of the 
two pre-conditions under Article 2.4.2, second sentence, of the Anti-Dumping Agreement  for 
having recourse to the exceptional weighted average -to-transaction ( "W-T") comparison 
methodology (the "pattern clause "). The pattern clause requires that there be "a pattern of export 
prices which differ significantly among different purchasers, regio ns or time periods " (a "relevant 
pricing pattern "). Specifically, China appeals errors in the manner in which the Panel interpreted 
and applied the pattern clause in addressing USDOC's use of statistical concepts in determining the 
existence of a relevant pricing pattern. Because USDOC used statistical tools disconnected from 
their underlying assumptions and analytical framework for which they were developed, those tools 
could not satisfy the requirements of the pattern clause.  
5. In this regard, China appeals  the Panel's rejection of China's arguments regarding two of the 
four quantitative  flaws identified by China in the so -called "Nails Test " (namely, the first and the 
third flaws), which was applied in three challenged determinations.2 
6. As regards the first quantitative flaw identified by China, the Panel erroneously found, in 
Paragraph 7.67 of the Panel Report, that China had failed to demonstrate that USDOC's application 
of the so -called "one-standard -deviation " threshold does not succeed in identifying a r elevant 
pricing pattern in those situations in which the export price data are not distributed in a manner 
                                               
* This notice , dated 18 November 2016 , was circulated to Members as document WT/DS471/ 8. 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review this Notice of Appeal 
lists paragraphs of the Panel Report containing the alleged errors, without prejudice to the ability of China to 
refer to other paragraphs of the Panel Report in the context of its appeal.  
2 The findings of the Pa nel in relation to the three original investigations in which USDOC applied the 
Nails Test are contained in para. 8.1.a of the Panel Report.  The three challenged determinations relate to the 
original investigations in Coated Paper , OCTG and Steel Cylinder s. WT/DS 471/AB/R/Add.1  
 
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  that permits the standard deviation tool to render valid conclusions. Consequently, the Panel 
erroneously found it irrelevant that USDOC did not exam ine the underlying price distributions.  
7. As regards the third quantitative flaw identified by China,  the Panel erred, in Paragraph 7.84 
of the Panel Report, in dismissing China's argument that USDOC's attribution of "significance " to 
wider price gaps in the  "tail" of price distributions compared to price gaps closer to the "mean " 
amounted to nothing more than confirmation of an inherent characteristic as to the shape of 
distributions whose existence is implicitly assumed by the test itself, without this ever  being 
confirmed by USDOC.  
8. In dismissing China's arguments regarding the first and third quantitative flaws, the Panel 
also failed to ensure that USDOC's establishment of the facts was proper, and it accepted an 
evaluation by USDOC of the relevant facts th at fell short of being objective and unbiased, contrary 
to the requirements set out in the standard of review under Article 17.6(i) of the Anti-Dumping 
Agreement . 
9. Accordingly, China requests that the Appellate Body reverse  the Panel's rejection of 
China's  claim under the pattern clause of Article 2.4.2, second sentence, in respect of the 
first quantitative flaw of the Nails Test applied in the three challenged determinations in 
Paragraphs  7.56-7.67 and 8.1.a.vi of the Panel Report, and in respect of the third quantitative flaw 
of the Nails Test applied in the three challenged determinations in Paragraphs 7.75 -7.84 and 
8.1.a.vi of the Panel Report.  
10. Having reversed the Panel, the Appellate Body should complete the analysis  and find that 
USDOC acted inconsisten tly with the pattern clause of Article 2.4.2, second sentence of the 
Anti-Dumping Agreement  in OCTG OI, Coated Paper OI, and Steel Cylinders OI, by failing to find 
through an objective and unbiased evaluation of the facts, a pattern of export prices that d iffer 
significantly, within the meaning of the pattern clause of Article 2.4.2, second sentence.  
II Appeal of the Panel 's error in interpreting and  applying Article 2.4.2, 
second  sentence, and in applying the standard of review under Article 17.6(i) of 
the Anti-Dumping Agreement as permitting authorities to find relevant pricing 
patterns on the basis of average  export prices to purchasers or time periods, 
instead of individual  export transaction prices  
11. The Panel erred in interpreting the pattern clause in A rticle 2.4.2, second sentence, when it 
found that investigating authorities are permitted to find a relevant pricing pattern on the basis of 
average  export prices to purchasers or time periods, instead of individual  export transaction 
prices. The Panel als o erred in its application of this same provision by applying its erroneous 
interpretation to the facts of the three challenged determinations.  
12. The Panel further erred in approving as WTO -consistent a test (applied in the 
three  challenged determinations) t hat biased the outcome by systematically increasing the 
likelihood of finding a relevant pricing pattern, contrary to the standard of review under 
Article  17.6(i) of the Anti-Dumping Agreement.  
13. Accordingly, China requests that the Appellate Body reverse  the Panel's finding in 
Paragraphs 7.115 -7.128 and 8.1.a.ix of the Panel Report that USDOC did not act inconsistently 
with the pattern clause of Article  2.4.2, second sentence, in the three challenged determinations, 
by finding a relevant pricing pattern on t he basis of average export prices to purchasers or time 
periods, as opposed to individual export prices.  
14. Having reversed the Panel, the Appellate Body should complete the analysis  and find that 
USDOC acted inconsistently with Article 2.4.2, second sentence , by finding a relevant pricing 
pattern on the basis of purchaser or time period averages, as opposed to individual export 
transaction prices.  WT/DS 471/AB/R/Add.1  
 
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 III Appeal of the Panel 's error in interpreting and  applying Article 2.4.2, 
second  sentence, of the Anti-Dumping Agreement as not requiring investigating 
authorities to consider objective market factors in determining whether relevant 
pricing differences are "significant"  
15. China appeals the Panel's interpretation underlying its finding that USDOC has not acted 
inconsi stently with Article 2.4.2, second sentence, in the three challenged determinations because 
USDOC wrongly concluded, on the sole basis of numerical (quantitative) differences, that the 
observed export prices formed relevant pricing patterns.  
16. Investigating authorities must consider qualitative factors when examining, under 
Article  2.4.2, second sentence, whether export prices "differ significantly " among customers, 
regions or time periods. The Panel failed to recognize that qualitative factors are objective market 
factors, such as seasonality or market -driven fluctuations in the costs of production. The Panel 
further failed to recognize that investigating authorities have an obligation to examine these 
qualitative factors on their own initiative as part of th e applicable legal standard under 
Article  2.4.2, i.e., regardless whether evidence has been provided by interested parties.  
17. China therefore requests that the Appellate Body modify  the Panel's interpretation of 
Article  2.4.2, second sentence, spelt out in P aragraphs 7.105 -7.114 of the Panel Report, and 
find that, although investigating authorities are not required to consider the subjective  cause of (or 
the subjective  reasons for) the observed export price differences, they must consider relevant 
objective  market factors (i.e., the relevant objective  causes of the observed export price 
differences) when examining, under Article 2.4.2, second sentence, whether export prices "differ 
significantly " among customers, regions or time periods.  
18. China also requests th at the Appellate Body find that the qualitative factors thus to be 
considered are objective market factors, including, inter alia , objective factors such as seasonality 
or market -driven fluctuations in the costs of production.  
19. Finally, China requests that the Appellate Body find that an investigating authority has an 
obligation to examine these qualitative factors on its own initiative as part of the applicable legal 
standard under Article 2.4.2, i.e., regardless whether evidence has been provided to the au thority 
by interested parties.  
20. Accordingly, China requests that the Appellate Body reverse  the Panel's rejection in 
Paragraphs 7.105 -7.114 and 8.1.a.viii of the Panel Report of China's claim under Article 2.4.2, 
second sentence, as regards USDOC's failure to consider relevant qualitative factors prior to 
finding the existence of a relevant pricing pattern in the three challenged determinations.  
IV Appeal of the Panel 's interpretation of Article 2.4.2 of the Anti-Dumping 
Agreement  as permitting the combinati on of different comparison methodologies  
21. China appeals the Panel's interpretation in the statement in footnote 385 of the Panel Report 
that "it may be necessary, in order to give full meaning to the second sentence of Article 2.4.2, not 
to let {…} negative  dumping {found outside of a pattern} offset the dumping found within the 
pattern ". This interpretation is erroneous because it is premised on the understanding that an 
investigating authority may conduct separate comparisons for "pattern transactions " under the 
W-T comparison methodology and for "non-pattern transaction " under the W -W or T -T comparison 
methodology, and then combine the two into a single margin of dumping for the exporter and the 
product as a whole. In US – Washing Machines , the Appellate B ody recently concluded that 
Article  2.4.2 does not permit the combining of different comparison methodologies.3 
22. Accordingly, China requests that the Appellate Body declare  the statement made in 
footnote  385 of the Panel Report to be moot and of no legal ef fect. 
V Appeal of the Panel 's finding that the AFA Norm is a measure without prospective 
application and requests to complete the analysis  
23. The Panel found that China had not demonstrated the prospective application of the 
measure defined in paragraph 2.4 o f its Report as the "AFA Norm ", and therefore concluded that 
                                               
3 See Appellate Body Report, US – Washing Machines , para. 5.124.  WT/DS 471/AB/R/Add.1  
 
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  China had not demonstrated that the AFA Norm constitutes a "measure " in the form of a rule or 
norm of general and prospective application that could be challenged in WTO dispute settlement.   
24. In so finding, the Panel erred in its interpretation and application of the term "measure " 
under Articles 3.3 and 6.2 of the DSU . The Panel erred in articulating the legal standard for 
establishing that an alleged rule or norm is a "measure " under these provis ions, in particular that 
the alleged rule or norm has prospective application. The Panel also erred in applying the relevant 
legal standard in concluding that the AFA Norm is not a "measure " in the form of a rule or norm 
with general and prospective applic ation.  
25. Accordingly, China requests that the Appellate Body reverse  the Panel's findings in 
paragraphs 7.457 -7.479 and 8.1.d.ii of the Panel Report in this regard.  If, as requested, the 
Appellate Body reverses the Panel's findings that the AFA Norm does not  have prospective 
application, then China requests the Appellate Body to complete the analysis  and find that: 
 the AFA Norm has general and prospective application, and, therefore, is a rule or norm 
of general and prospective application that may be challen ged by China  as a "measure " 
under Articles 3.3 and 6.2 of the DSU ; and ,  
 the AFA Norm is inconsistent with Article 6.8 and Annex II(7) of the Anti-Dumping 
Agreement . 
VI Conditional appeals in relation to the Panel 's exercise of judicial economy with 
respec t to certain claims and conditional requests to complete the analysis  
26. The Panel exercised judicial economy with respect to China's claims under Article 6.1, 
Article  6.8 and Annex II(1), and Article 6.8 and Annex II(7) of the Anti-Dumping Agreement in 
relation to 30 challenged determinations.4  
27. If the Appellate Body reverses the Panel's findings under Article 6.10 and/or Article 9.2 in 
relation to one or more of the 30 challenged determinations in which USDOC determined a margin 
for the PRC -wide entity,5 China requests that the Appellate Body take the following action in 
relation to each challenged determination for which the Panel's findings under Article 6.10 and/or 
Article 9.2 have been reversed.  
28. If the condition described in paragraph 27 above is met, the Panel's exercise of judicial 
economy:  
 is inconsistent with the requirement to make an objective assessment of the matter 
under Article 11 of the DSU;  
 fails to contribute to prompt settlement of the dispute und er Article 3.3 of the DSU; 
and  
 frustrates the ability of the parties to find a positive solution to the dispute, contrary 
to Article 3.7 of the DSU.  
                                               
4 The relevant analysis and conclusions of the Panel are contained in paras. 7.480 -7.508 and 8.1.d.iii of 
the Panel Report.  
5 The findings of the Panel in relation to the application of th e Single Rate Presumption in certain USDOC 
determinations are contained in paras. 7.369 -7.382, 7.388, and 8.1.c.iii of the Panel Report.  These findings 
pertain to 38 challenged determinations, including eight determinations in which USDOC did not determin e a 
rate for the PRC -wide entity.  A list of the 38 determinations subject to findings in relation to the application of 
the Single Rate Presumption, as well as a list of the 30 challenged determination in which USDOC determined a 
margin for the PRC -wide e ntity, are set forth in footnote 956 to para. 7.480 of the Panel Report.   WT/DS 471/AB/R/Add.1  
 
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 29. Accordingly, if the condition is met, the Appellate Body should, for each such determination:  
 reverse  the Panel's exercise of judicial economy, reflected in paragraphs 7.486, 7.499 
and 8.1.d.iii of the Panel Report, with respect to China's claims under Article 6.1, 
Article 6.8 and Annex II(1), and Article 6.8 and Annex II(7); and,  
 complete the analysis  of China's claims under Article 6.1, Article 6.8 and Annex II(1), 
and Article 6.8 and Annex II(7) of the Anti-Dumping Agreement . 
 
 
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 WT/DS 471/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of China 's appellant's submiss ion  B-2 
Annex  B-2 Executive summary of the United States'  appellee's submission  B-11 
 
 WT/DS 471/AB/R/Add.1  
 
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 ANNEX  B-1 
EXECUTIVE SUMMARY OF CHINA'S APPELLANT 'S SUBMISSION  
1. This dispute concerns important aspects of the US a nti-dumping regime. One aspect 
involves the use, by t he United States Department of Commerce ( "USDOC "), of certain practices to 
address so -called "targeted dumping ". The other concerns several elements of USDOC 's treatment 
of China as a non -market economy ( "NME") country. Although the Panel rightly upheld ma ny of 
China 's claims, it also dismissed some of them. In so doing, the Panel committed errors of law. In 
the following, China provides a brief overview of the issues subject to this appeal.  
A. Appeal of the Panel's error in interpreting and applying the le gal standard under 
Article 2.4.2, second sentence of the Anti-Dumping Agreement  for identifying a 
relevant pricing pattern and in applying the s tandard of review under 
Article  17.6(i) of the Anti-Dumping Agreement  
2. Article 2.4.2, second sentence , identifies  two pre-conditions for departing from the normal  
weighted average -to-weighted average ("W -W") or transaction -to-transaction  ("T-T") comparison 
methodologies. First, under what the Panel referred to as "the pattern clause", there must be "a 
pattern of expo rt prices which differ significantly among different purchasers, regions or time 
periods" (hereinafter referred to as "relevant pricing pattern"). Once a relevant pricing pattern has 
been identified, an investigating authority must satisfy the second  pre-condition and explain why 
the pattern "cannot be taken into account appropriately" through the application of the 
symmetrical comparison methodologies.  
3. China 's appeal focuses on the first of these pre -conditions. China appeals the Panel 's error in 
failing t o develop and apply a proper legal standard that implements the obligations imposed on 
investigating authorities when seeking to identify a relevant pricing pattern under Article 2.4.2, 
second sentence. To the extent that an investigating authority relies on certain tools (whether 
statistical or otherwise) for the purpose of identifying a relevant pricing pattern, if the 
assumptions/principles underlying a given tool are not satisfied and its limitations are not 
recognized, the tool cannot perform as contem plated and the results it generates will likely be 
random (or arbitrary). Applied to the current appeal, the use of statistical tools disconnected from 
their underlying assumptions and from the analytical framework for which they were developed 
results in the inability of those tools to satisfy the pattern clause of Article 2.4.2, second sentence. 
They do not allow an unbiased and objective evaluation of the facts, in the sense of Article 17.6(i) 
of the Anti-Dumping Agreement . 
4. Before the Panel, China advanc ed four sets of arguments to demonstrate that USDOC used 
its chosen tools in an arbitrary, biased and non -objective manner and that it therefore failed to 
find relevant pricing patterns under Article 2.4.2, second sentence, in the 3 challenged 
determinatio ns.1 The Panel 's rejection of China 's position as to two of the flaws was a consequence 
of fundamental errors in the Panel 's analysis.  
5. First, the Panel found that China had not demonstrated that USDOC 's application of the 
Nails Test fails to identify a rel evant pricing pattern if the export price observations are not 
distributed in a specific manner; consequently, it found that the undisputed fact that USDOC did 
not examine the underlying price distributions was irrelevant. This finding by the Panel is in e rror. 
In order for the Nails Test to be capable of producing valid conclusions with respect to the 
existence of a relevant pricing pattern, USDOC would first have had to examine the underlying 
price distributions. This is due to the fact that a test involv ing the concept of "standard deviation " 
does not allow an authority to draw valid conclusions about a distribution of data unless those data 
form a "normal " distribution – or at least a single -peaked, symmetrical distribution with tails. 
Lacking the prereq uisite examination, the Nails Test applied in the 3 challenged determinations 
was necessarily arbitrary, and incapable of identifying a relevant pricing pattern in an objective 
and unbiased manner.  
                                               
1 The 3 challenged determinations are: OCTG  OI, Coated Paper  OI and Steel Cylinders  OI. WT/DS 471/AB/R/Add.1  
 
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  6. Second , and directly related, the Panel was equally wrong to dismiss China 's argument that 
USDOC 's attribution of "significance " to wider price gaps in the "tail" of price distributions 
compared to price gaps closer to the "mean " amounted to nothing more than confirmation of an 
inherent characteristic of the type  of distributions whose existence was implicitly assumed by the 
Nails Test applied in the 3 challenged determinations. In other words, USDOC 's methodology found 
significance  in a definitional feature of the very sort of distribution whose existence was ass umed, 
without the accuracy of this assumption ever being verified by USDOC. As a consequence, 
USDOC 's failure to test the databases to determine if the data were "normally " distributed or had 
tails to the left of the mean, means that USDOC 's conclusions as  to the existence of a relevant 
pricing pattern in every case were random (or arbitrary) and therefore inconsistent with 
Article  2.4.2, second sentence.  
7. Accordingly , the Appellate Body should reverse the Panel 's rejection of China 's claim under 
the patter n clause of Article 2.4.2. in respect of the first and third quantitative flaw of the 
Nails Test applied in the 3 challenged determinations. Having reversed the Panel, the Appellate 
Body should complete the analysis and find that USDOC acted inconsistently  with Article 2.4.2 in 
OCTG  OI, Coated Paper OI, and Steel Cylinders OI, by failing to find, through an objective and 
unbiased evaluation of the facts, a pattern of export prices that differ significantly, within the 
meaning of the pattern clause of Articl e 2.4.2, second sentence.  
B. Appeal of the Panel's error in interpreting and applying Article 2.4.2, 
second  sentence, and in applying the standard of review under Article 17.6(i) of 
the Anti-Dumping Agreement  as permitting authorities to find relevant pric ing 
patterns on the basis of average  export prices to purchasers or time periods, 
instead of individual  export transaction prices  
8. China appeals the Panel 's finding that USDOC did not act inconsistently with the pattern 
clause of Article  2.4.2, second sente nce, in the 3 challenged determinations by finding the relevant 
pricing pattern on the basis of average  export prices to purchasers or time periods, as opposed to 
individual  export transaction prices. In this regard, China appeals both the Panel 's interpre tation 
and its application of the legal standard when reviewing USDOC 's determinations in the 
3 challenged determinations.  
9. The Panel  erred in interpreting the pattern clause in Article 2.4.2, second sentence, when it 
found that investigating authorities ar e permitted to find a relevant pricing pattern on the basis of 
purchaser or time period averages , instead of individual  export transaction prices. Contrary to the 
Panel 's findings, the focus of Article 2.4.2 is on the "individual export prices " that may be  
compared with a weighted -average normal value under the weighted average -to-transaction 
("W-T") comparison methodology. A coherent and holistic interpretation of the treaty text compels 
the conclusion that these "individual export prices " must be examined  to determine whether they 
form a relevant pricing pattern, before an authority may resort to the exceptional W -T comparison 
methodology authorized in the second sentence of Article 2.4.2.  
10. In addition , determining the presence of a relevant pricing pattern  based on averages 
instead of individual export prices is inherently biased towards finding such a pattern, and hence 
inconsistent with the requirement to assess the facts in an objective and unbiased manner as 
contemplated by Article 17.6(i) of the Anti-Dumping Agreement . 
11. Accordingly , the Appellate Body should reverse the Panel 's finding that USDOC did not act 
inconsistently with the pattern clause of Article  2.4.2, second sentence, in the 3 challenged 
determinations by finding the relevant pattern on the basis of purchaser or time period averages 
as opposed to individual export transaction prices. Consequently, the Appellate Body should 
complete the analysis and find that USDOC acted inc onsistently with Article 2.4.2, 
second  sentence, by finding a relevant  pricing pattern on the basis of purchaser or time period 
averages, as opposed to individual export transaction prices.  WT/DS 471/AB/R/Add.1  
 
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 C. Appeal of the Panel's error in interpreting and applying Article 2.4.2, 
second  sentence, of the Anti-Dumping Agreement  as not requiri ng investigating 
authorities to consider objective market factors in determining whether relevant 
pricing differences are "significant"  
12. China appeals the Panel 's interpretation underlying its finding that USDOC has not acted 
inconsistently with Article 2.4 .2 in the 3 challenged determinations because of USDOC 's failure to 
assess whether the observed export prices differed significantly in a qualitative  sense.  
13. China  considers that the Panel 's interpretation underlying its finding is in error. Investigating 
authorities must consider qualitative factors when examining, under Article 2.4.2, 
second  sentence, whether export prices "differ significantly " among customers, regions or time 
periods. The qualitative factors to be considered are objective market factors,  such as seasonal 
pricing cycles (seasonality) or market -driven fluctuations in the costs of production. The Panel 
further failed to recognize that investigating authorities have an obligation to examine these 
qualitative factors on their own initiative, i .e., regardless whether evidence has been provided by 
interested parties.  
14. The Appellate Body should modify the Panel 's interpretation of Article 2.4.2, 
second  sentence, and find that, although investigating authorities are not required to consider the 
subjective  cause of  (or the subjective  reasons for ) the observed export price differences, they 
must consider relevant objective  market facto rs (i.e., objective  causes of the observed export 
price differences) when examining, under Article 2.4.2, second senten ce, whether export prices 
"differ significantly " among customers, regions or time periods.  
15. The Appellate Body should, therefore, find that the qualitative factors thus to be considered 
are objective market factors, including, inter alia , objective factors such as seasonality and 
declining costs of production. The Appellate Body should also find that an investigating authority 
has an obligation to examine these qualitative factors on its own initiative, i.e., regardless whether 
evidence has been provided to the authority by interested parties.  
16. Accordingly , the Appellate Body should reverse the Panel 's rejection of China 's claim under 
Article 2.4.2, second sentence, as regards USDOC 's failure to consider relevant qualitative factors 
prior to finding the existe nce of a relevant pricing pattern in the 3 challenged determinations.  
D. Appeal of the Panel's interpretation of Article 2.4.2 of the Anti-Dumping 
Agreement as permitting  the combination of different comparison methodologies  
17. China  appeals the Panel 's inter pretation in the statement in footnote 385 of the Panel Report 
that "it may be necessary, in order to give full meaning to the second sentence of Article 2.4.2, not 
to let {…} negative dumping {found outside of a pattern} offset the dumping found within th e 
pattern ". This interpretation is erroneous because it is premised on the understanding that an 
investigating authority may conduct separate comparisons for "pattern transactions " under the 
W-T comparison methodology and for "non-pattern transaction " under the W -W or T -T comparison 
methodology, and then combine the two into a single margin of dumping for the exporter and the 
product as a whole. In US – Washing Machines , the Appellate Body recently concluded that 
Article  2.4.2 does not permit the combining of different comparison methodologies.  
18. Accordingly , China requests that the Appellate Body declare the statement made in 
footnote  385 of the Panel Report to be moot and of no legal effect.  WT/DS 471/AB/R/Add.1  
 
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  E. Appeal relating to the Panel's finding that the AFA Norm is not  a rule or norm of 
general and prospective application  
19. The Panel found that the Adverse Facts Available Norm ( "AFA Norm ") was a measure 
attributable to the United States. The Panel also found that China had shown that the AFA Norm 
has the following precise  content:  
whenever the USDOC considers that an NME -wide entity has failed to cooperate to the 
best of its ability, it systematically makes an adverse inference and selects, to 
determine the rate for the NME -wide entity, facts that are adverse  to the inter ests of 
that fictional entity and each of the producers or exporters included within it.  
1. The Panel' s findings  
20. The Panel found that the AFA Norm is a "measure " under WTO law because it has precise 
content  in terms of USDOC 's regulatory conduct and it is attributable  to the United States. Thus, 
the AFA Norm is an act of the United States involving conduct defined with precision.  
21. However, the Panel found that this measure does not entail future  conduct because, it said, 
there is no "certainty " that USDOC wou ld apply the measure in future cases. On this basis, the 
Panel found that the AFA Norm has no prospective  application. Hence, it held that the AFA Norm is 
not susceptible of challenge in WTO dispute settlement as a "measure " in the form of a rule or 
norm w ith general and prospective application.  
22. In reaching  this conclusion, the Panel erred in its legal characterization of the AFA Norm as a 
"measure " (interpretation and application) under Articles 3.3 and 6.2 of the DSU. The Panel erred 
in articulating the l egal standard for establishing that an alleged rule or norm is a "measure " under 
these provisions, in particular that the alleged rule or norm has prospective application; and, it 
erred in applying the legal standard in concluding that the AFA Norm is not a "measure " in the 
form of a rule or norm with general and prospective application.  
23. The Panel 's erroneous conclusion appears to be based on a misunderstanding that the 
Appellate Body requires an elevated legal standard – described by the Panel as "certaint y" – to 
establish the future application of an unwritten rule or norm as compared with the legal standard 
established for showing the future application of other categories of unwritten measure, such as 
"ongoing conduct " and "systemic and continued applica tion". The Panel may also have wrongly 
considered that, in the case of written measures, certainty of future application is required.  
24. In China 's submission, the Appellate Body 's case law shows that the legal standard for 
proving the future application of a  measure is not "certainty ", whether the measure is written or 
unwritten. Indeed, establishing future events with certainty is impossible.  
25. In past disputes, the United States has routinely argued that the alleged future application 
an unwritten measure – such as zeroing or the Single Rate Presumption – is uncertain, because 
the USDOC always has the discretion to act differently in the future. It argues that complainants 
are, therefore, speculating about what the USDOC might do in the future and not establi shing what 
it will do.  
26. The United States made similar arguments in this dispute – the USDOC has the discretion to 
vary its use of facts available against NME -wide entities; and, it is not bound to act in the future as 
it has done in the past, even if the conduct in question "may be predicted to be repeated in the 
future ".2 
27. In previous disputes, the Appellate Body has rejected any arguments in favor of a legal 
standard of certainty. Instead, it has consistently found prospective application when the USDOC 
has resorted to the conduct in question in a consistent, standard, systematic, and invariable way.  
28. In this dispute, the Panel took a different path, accepting the United State s' arguments.  
                                               
2 US First Written Submission, para. 408.  WT/DS 471/AB/R/Add.1  
 
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 29. Starting  with its factual findings, the Panel found that the USDOC has resorted to the 
conduct under the AFA Norm in an invariable, consistent, standard and systematic way. In fact, 
despite two invitations, the United States was unable to show a single  instance, stretching over a 
12-year period, in which the USDOC did not  rely on the AFA Norm, when the trigger condition for 
its application had been satisfied. The Panel also found that the USDOC resorted to the AFA Norm 
with a future -oriented "purpose ", namely, to "induce " respondents to cooperate in providing 
information a nd to deter them from non -cooperation. In particular, the AFA Norm encouraged 
cooperation because, as the Department put it, importers were "knowing of the rule ": namely, if 
they did not cooperate, they would be subject to adverse facts.3 
30. Remarkably , despi te these findings, the Panel found that the AFA Norm does not have future 
application. The Panel referred to the Appellate Body 's findings in Argentina – Import Measures , a 
report issued by the Appellate Body long after the consultations request in this di spute was filed.4 
In the Argentina  dispute, the Appellate Body upheld  the panel 's findings that an unwritten measure 
simultaneously fell into two categories: rule or norm, and a measure of systematic and continuing 
application. However, in obiter dicta , the Appellate Body cast doubt on the panel 's finding that the 
measure was a rule or norm, and cautioned panels to be attentive to the differences between a 
rule or norm and a measure of systematic and continued application. The Appellate Body did not 
elabora te on those differences.  
31. The Panel  read the Appellate Body 's obiter  remarks to mean that a higher  legal standard is 
required to show future application of a rule or norm than is required for other categories of 
unwritten measure. The Panel recalled several  times the Appellate Body 's words that an unwritten 
rule or norm must display the "requisite " or "necessary level  of security and predictability of 
continuation into the future typically associated with rules or norms ". The critical question is: what 
is this "requisite " or "necessary level "? The Panel 's answer comes at the very end of its reasoning: 
the "necessary level " is "certainty " that the AFA Norm will be applied in future.5 Absent such 
certainty, the Panel declined to find that the AFA Norm has prosp ective application.  
32. The Panel  erred in requiring "certainty " that conduct will continue into the future. Panels and 
the Appellate Body have consistently rejected such a standard, both with respect to written and 
unwritten measures. Indeed, a requirement of  certainty would be impossible to meet because the 
future can never be proved with certainty.  
2. Future application of written measures need not be certain  
33. In US – Corrosion -Resistant Steel Sunset Review  and US – Oil Country Tubular Goods 
Sunset Reviews  the complainants challenged a written instrument setting forth policy on sunset 
reviews ( "Sunset Policy Bulletin " or "SPB"). A question arose whether the SPB was a measure that 
could be challenged in WTO dispute settlement.  
34. The United  States argued that that because "Commerce is entirely free to depart from the 
SPB at any time, it cannot be concluded that the SPB has "general and prospective application ".6 It 
said that the SPB was merely "guidance " for the "likely" conduct of future sunset reviews, but "in 
no way binds Commerce as a 'rule' or norm '".7  
35. Citing to the unappealed panel report in US – Steel Plate ,8 it said that the "'future practice ' 
of a Member simply cannot be regarded as a 'measure ' .. because it is purely speculative ".9 It 
referred  to future co nduct pursuant to the SPB as "as applied " "measures 'that may possibly  be 
taken in the future '".10  
                                               
3 Panel Report, para. 7.446.  
4 3 December 2013, WT/ DS471/1.  
5 Panel Report, para. 7.476.  
6 US Appellant’s Submission, US – Oil Country Tubular Goods Sunset Reviews , para. 13.   
7 US Appellant’s Submission, US – Oil Country Tubular Goods Sunset Reviews , para. 13; US Appellee’s 
Submission, US – Corrosion -Resistant Steel Sunset Review , paras. 53 and 59; US response to Panel 
Question  80, US – Corrosion -Resistant Steel Sunset Review , para. 13.  
8 See, e.g., US Appellee’s Submission, US – Corrosion -Resistant Steel Sunset Review , para. 57.  
9 US response to Panel Qu estion 6, US – Corrosion -Resistant Steel Sunset Review , para. 11; 
US Appellee’s Submission, US – Corrosion -Resistant Steel Sunset Review , para. 58.   
10 US response to Panel Question 6, US – Corrosion -Resistant Steel Sunset Review , para. 11.   WT/DS 471/AB/R/Add.1  
 
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  36. The panel  in US – Corrosion -Resistant Steel Sunset Review  accepted this argument, 
concluding that a non -binding instrument could not be challenged, even if i t set forth "guidance " 
for future conduct and even if future conduct could be "predicted ".11 
37. Nonetheless , the Appellate Body rejected the US argument regarding the need for binding 
character in both disputes. In US – Oil Country Tubular Goods Sunset Reviews , it said that "the 
SPB has normative  value, as it provides administrative guidance  and creates expectations  among 
the public and among private actors ".12 It held that the SPB had general and prospective 
application, even if certainty of future application could, of course, never be assured.  
3. Future application of unwritten measures need not be certain  
38. Building  on these principles, the case law on unwritten measures has developed piecemeal 
over the past ten years. The first category of unwritten measures was  "rules or norms with general 
and prospective application ", which was recognized in US – Zeroing (EC) . Since that dispute, 
unwritten rules or norms have been found in a number of subsequent cases. In making findings 
about these unwritten measures, panels a nd the Appellate Body have demanded that complainants 
meet a high standard; however, they have never required the impossible from complainants, 
namely, establishing with certainty that conduct will continue into the future.  
39. In fact, a review of the cases s hows that panels and the Appellate Body have applied a high 
degree of consistency, both in articulating the legal standard for establishing the existence of rules 
or norms and in assessing the factual indicators that show that a rule or norm has general an d 
prospective application.  
40. The Appellate  Body's consistency of approach has contributed to ensuring security and 
predictability for Members in bringing new disputes.  
41. As the last decade has passed, the Appellate Body has, from time -to-time, recognized new 
categories of unwritten measure, always in response to the manner in which complainants have 
framed claims. The category of "ongoing conduct " was introduced in US – Continued Zeroing , and 
that category was developed in other cases. Most recently, in Argent ina – Import Measures , the 
Appellate Body added the category of "systematic and continuing application ".  
42. The Appellate  Body has said that these categories – which do not reflect treaty language – 
are simply "heuristic device{s} "13 that facilitate organizat ion of the concept of a "measure ", which 
is treaty language.  
43. With the proliferation of these "heuristic " categories, questions naturally arise as to whether 
there are substantive differences between the categories and, if so, what these substantive 
differe nces are.  
44. Given  that the categories of unwritten measure flow simply from the way complainants have 
chosen to frame claims, it cannot be assumed that substantive differences do exist. A scheme of 
unwritten measures that was ultimately developed piecemeal by a handful of complainants, 
framing different claims, under different agreements, cannot be regarded as possessing the 
precision of defined treaty -based categories. Indeed, in a scheme driven by a complainant 's 
choices in framing claims, there will likel y be substantive overlaps  between different categories: 
different complainants may use different labels to describe unwritten measures with shared 
characteristics.  
45. Thus, just as the Appellate Body has cautioned that panels must be attentive to the 
differen ces between different categories of unwritten measure, China submits that they should 
also be attentive to similarities between them.  
                                               
11 Panel Repor t, US – Corrosion -Resistant Steel Sunset Review , paras. 7.121, 7.122, 7.125, 7.127, 
7.137, and 7.138.  
12 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 187.  
13 Appellate Body Report, US – Continued Zeroing , para. 179.  WT/DS 471/AB/R/Add.1  
 
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 4. The Panel erred in requiring certainty of future application  
46. The Panel  in this dispute entered into this juristic debate a bout the similarities and 
differences between categories of unwritten measure. Citing to the Appellate Body 's obiter dictum  
in Argentina – Import Measures , the Panel sought to create a bright line between the category of 
rules and norms, on the one hand, a nd the category of systematic and continuing application, on 
the other hand. In particular, the Panel seems to have elevated the legal standard for establishing 
the future application of a rule or norm to "certainty "14 in order to ensure a difference with t he 
standard to establish the future application of a measure with systematic and continuing 
application. The Panel stated that, "for a measure to have prospective character, it must  provide 
'the same level of  security and predictability of continuation int o the future  typically associated 
with rules or norms '".15  
47. Although  the Appellate Body has cautioned panels to be attentive to differences between 
heuristic categories, it has never suggested that the future application of a rule or norm must be 
establishe d with "certainty ". 
48. The elevated legal standard applied by the Panel is at odds with the legal standard 
consistently applied in earlier cases on rules and norms, both written and unwritten. It is also 
higher than the standard articulated by the Panel itsel f when addressing the Single Rate 
Presumption, which it found to be a rule or norm. Further, a legal standard of certainty has been 
consistently rejected in several previous cases dealing with unwritten measures that entail future 
conduct.  
49. In this appeal, rather than present its arguments on the proper legal standard on a 
piecemeal basis, China offers a holistic assessment of the different categories of unwritten 
measures that entail future conduct. China describes the categories that have been substantivel y 
addressed in the disputes, highlighting differences and similarities between them. China shows 
that the legal standard for establishing the prospective application of a rule or norm (or, indeed, 
any other unwritten measure) does not require "certainty " of future application.  
5. The Panel erred in its application of the legal standard  
50. In addition  to its erroneous articulation of the legal standard, the Panel also erred in its 
application of the law to the facts. When addressing unwritten measures that entail future conduct, 
panels and the Appellate Body have consistently relied on very similar factual indicators to 
conclude that unwritten measures entailed future conduct. In its factual findings, the Panel found 
that the AFA Norm possessed all of the indicia o f prospective application that have supported past 
findings of prospective application. Yet, the Panel nonetheless concluded that the AFA Norm does 
not have prospective application. In so doing, the Panel erred.  
6. Conclusion  
51. As a result of these errors, Chin a requests that the Appellate Body reverse the Panel 's 
finding that the AFA Norm does not have prospective  application. If the Appellate Body reverses 
the Panel 's finding that the AFA Norm does not have prospective application, then the Appellate 
Body shou ld complete the analysis and find that the AFA Norm has prospective application. It 
should also complete the analysis and find that the AFA Norm has general  application because it 
applies to an undefined number of economic operators in all  investigations a nd reviews that 
involve imports of a product under consideration from a country deemed, at that time, to be a 
non-market economy. The Appellate Body should conclude, therefore that the AFA Norm is a rule 
or norm of general and prospective application that may be challenged by China as a "measure " 
under Articles 3.3 and 6.2 of the DSU.  
                                               
14 Panel Re port, para. 7.476.  
15 Panel Report, para. 7.457, referring to Appellate Body Report, Argentina – Import Measures , 
para. 5.182.  WT/DS 471/AB/R/Add.1  
 
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  F. Appeal relating to the inconsistency of the AFA Norm with Article 6.8 and 
Annex II(7) of the Anti-Dumping Agreement  
52. The Appellate  Body should complete the legal analysis an d find that the AFA Norm is 
inconsistent with Article 6.8 and Annex II(7) of the Anti-Dumping Agreement . 
53. The precise content of the AFA Norm is such that whenever  USDOC deems an NME -wide 
entity to be non -cooperative, it systematically responds in a specifi c manner. The legal issue, 
therefore, is whether Article 6.8 and Annex II(7) permit an authority to systematically  make 
adverse inferences and select adverse facts whenever it determines that an NME -wide entity is 
non-cooperative. In China 's view, these pr ovisions do not permit an authority to act in such a 
manner.  
54. Article 6.8 and Annex II(7) require an authority to use "special circumspection " in order to 
select the "best" (i.e., the most fitting and appropriate) information available in the particular 
circumstances. A process involving "special circumspection " requires critical consideration of all 
facts and circumstances that may be relevant in each particular case. This means that a process 
that systematically  results in the same outcome whenever a singl e specific circumstance occurs – 
as the Panel found was the case with AFA Norm – is not consistent with the requirement of "special 
circumspection ". Systematically responding in the same way whenever a particular  circumstance 
arises, does not involve an ac tive approach to evaluating, reasoning and explaining in light of all 
relevant circumstances which facts are the best information available. Thus, when USDOC 
systematically  draws an adverse inference and selects adverse facts to determine the margin for 
an NME-wide entity under the AFA Norm, it fails to accord with the requirements of Article 6.8 and 
Annex  II(7).  
55. The WTO-inconsistency of a norm providing for the systematic  making of adverse inferences 
and selection of adverse facts, such as the AFA Norm, ca n be illustrated by the manner in which 
the AFA Norm causes USDOC to overlook particular circumstances. Circumstances, such as a 
failure by USDOC to request the necessary information, presumed non -cooperation, and the fact 
that NME -wide entities are a lega l fiction must all be taken into account in the exercise of "special 
circumspection " under Article 6.8 and Annex II(7). However, these relevant circumstances are not 
considered when USDOC systematically  draws adverse inferences and selects adverse facts to  
determine the rate for the NME -wide entity.  
56. Accordingly , the Appellate Body should complete the analysis and find that the AFA Norm is 
inconsistent with Article 6.8 and Annex II(7) of the Anti-Dumping Agreement . 
G. Conditional appeal of the Panel's exerci se of judicial economy and request to 
complete the analysis relating to the inconsistency of 30 challenged 
determinations with Article 6.1, Article 6.8 and Annex II(1), and Article 6.8 and 
Annex II(7) of the Anti-Dumping Agreement  
57. China conditionally  appea ls the Panel 's exercise of judicial economy and requests the 
Appellate Body to complete the analysis of the inconsistency of 30 challenged determinations with 
Article 6.1, Article 6.8 and Annex II(1), and Article 6.8 and Annex II(7) of the Anti-Dumping 
Agreement. The Appellate Body need only consider these appeals in relation to any determinations 
for which the Panel 's findings of violation under Articles 6.10 and/or 9.2 are reversed.  
58. There is a sufficient  basis in the record to complete the analysis of eac h of these claims in 
relation to any of the 30 determinations, which represent the challenged determinations in which 
USDOC determined a margin for the PRC -wide entity.  
59. Claim under Article 6.1 : USDOC acted  inconsistently with Article 6.1 in all 
30 determin ations, because it failed to give notice to the producers/exporters included within the 
PRC-wide entity of the information required from them in order to calculate a margin of dumping. 
USDOC thereby denied the interested parties ample opportunity to presen t relevant evidence. 
Facts show that in none of the relevant determinations did USDOC give notice of all of the 
information which it required.  WT/DS 471/AB/R/Add.1  
 
- B-10 - 
 
 60. The Appellate Body should complete the analysis and find that USDOC failed to act 
consistently with Article 6.1 of the Anti-Dumping Agreement . 
61. Claim under Article 6.8 and Annex II(1) : USDOC acted inconsistently with Article 6.8 and 
Annex II(1) in all 30 determinations because it resorted to facts available without having 
requested the information necessary to calcul ate a margin for the PRC -wide entity and the 
producers/exporters included within it. Facts show that, in all 30 determinations, USDOC resorted 
to facts available in determining the margin for the PRC -wide entity without having specified in 
detail the infor mation required from producers/exporters included within the PRC -wide entity.  
62. The Appellate Body should complete the analysis and find that USDOC failed to act 
consistently with Article 6.8 and Annex II (1) of the Anti-Dumping Agreement . 
63. Claim under Artic le 6.8 and Annex II(7 ): USDOC violated Article 6.8 and Annex II(7) in all 
30 determinations through its selection of facts available from secondary sources in a manner that 
does not comport with the requirements of these provisions.  
64. Facts show that, in 20  of these determinations, USDOC explicitly selected adverse  facts 
available to determine the respective margins for the PRC -wide entity (ranging from 25.62 to 
249.96 percent) in a manner reflective of the WTO -inconsistent AFA Norm described above; and in 
so doing failed to exercise the "special circumspection " required. In each of these 20 challenged 
determinations, USDOC made an explicit finding of non -cooperation, thereby triggering an adverse 
inference. In doing so, in each case USDOC overlooked particul ar circumstances which rendered its 
drawing of adverse inferences unreasonable.  
65. In 9 further determinations in the group of 30 determinations, USDOC in substance applied 
"facts available " when it determined the respective margins (ranging from 58.84 to 
247.65 percent) by pulling forward facts available from a previous phase of the proceedings to 
determine the margin for the PRC -wide entity. In doing so, USDOC undertook a process that 
involved no exercise of circumspection whatsoever, let alone the high deg ree of circumspection 
inherent in the requirement of "special circumspection " under Article 6.8 and Annex II(7).  
66. In the remaining  determination, USDOC determined the margin of 105.31 percent explicitly 
on the basis of facts available to. However, it took no steps to exercise special circumspection in 
selecting information on (i) the composition of the People 's Republic of China ( "PRC-wide entity ") 
and (ii) the level of dumping by producers/exporters included in the PRC -wide entity, other than 
the fully coo perating "mandatory respondent ", Double Coin, which had a de minimis  margin.  
67. The Appellate  Body should complete the analysis and find that USDOC failed to act 
consistently with Article 6.8 and Annex II(7) of the Anti-Dumping Agreement . WT/DS 471/AB/R/Add.1  
 
- B-11 - 
 
  ANNEX B -2 
EXECUTIV E SUMMARY OF THE UNI TED STATES' APPELLEE 'S SUBMISSION1 
1. China appeals a number of Panel findings related to certain U.S. antidumping measures, as 
well as with respect to an alleged unwritten measure. As demonstrated in this submission , the 
Panel did not err in rejecting China's claims, nor did the Panel err in interpreting and applying the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994  
("AD Agreement ").  
2. The U.S. appellee submission is organized as follows, and i ncludes detailed discussion of the 
following arguments.  
3. Section II responds to China's appeals of certain Panel findings related to the Nails test 
applied by the U.S. Department of Commerce ( "USDOC ") in three challenged antidumping 
investigations. Section II.A presents an overview of the proper interpretation of the pattern clause 
of the second sentence of Article 2.4.2 of the AD Agreement, demonstrating that the pattern 
clause requires an investigating authority to undertake a rigorous, holistic examinatio n of the data 
in order to find a regular and intelligible form or sequence of export prices that are unlike in an 
important manner or to a significant extent as between different purchasers , regions, or time 
periods . 
4. Section II.B presents a description of the Nails test that USDOC applied in the challenged 
investigations. The Nails test is a two -part test to determine whether a pattern of export prices 
which differ significantly among different purchasers, regions, or time periods existed based on the 
domes tic industry 's allegation that certain purchasers, regions, or time periods had been 
"targeted. " The Nails test consists  of two distinct steps: the standard deviation test , which is used 
to establish that differences exist among export prices to different purchasers, regions, or time 
periods,  and the gap test , which is used to determine whether identified differences are significant 
within the meaning of the pattern clause of the second sentence of Article 2.4.2 of the AD 
Agreement.  
5. Section II.C demonstrat es that the Panel did not err in rejecting China's claims in respect of 
the first and third alleged quantitative flaws with the Nails test. China 's appeals concern factual 
findings made by the Panel and implicate the Panel 's weighing and appreciation of th e evidence. 
Accordingly, China should have requested that the Appellate Body examine whether the Panel 
made an objective assessment of the matter before it under Article 11 of the DSU. China failed to 
do so, and the Appellate Body should decline to conside r China 's arguments, as it has done in 
similar situations in the past.  
6. China requests that the Appellate Body reverse the Panel's findings and complete the 
analysis by addressing these purportedly legal issues de novo . The Appellate Body should reject 
China's request because (i) the Panel made no legal findings with regard to the first and 
third alleged quantitative flaws that can be reviewed by the Appellate Body, and (ii) there are 
insufficient undisputed facts for the Appellate Body to complete the legal  analysis.  
7. Furthermore, China's arguments concerning statistical methodology lack merit . The pattern 
clause of the second sentence of Article 2.4.2 of the AD Agreement does not require investigating 
authorities to employ the kind of statistical probability  analysis discussed by China. The Nails test 
is not inconsistent with the pattern clause simply because it does not involve the statistical 
methodologies that China might prefer.  
8. China's arguments under Article 17.6(i) of the AD Agreement likewise lack me rit. China's 
invocation of Article 17.6(i) of the AD Agreement is further confirmation that China should have 
                                               
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March 11, 2015), the United State s indicates that this executive summary contains a total of 2,146  words 
(including footnotes), and this U.S. appellee submission (not including the text of the executive summary) 
contains 21,480 words (including footnotes).  WT/DS 471/AB/R/Add.1  
 
- B-12 - 
 
 appealed the Panel's findings under Article 11 of the DSU. Since China did not pursue an appeal 
under Article 11 of the DSU, China cannot argue th at the Panel failed in its duty under 
Article  17.6(i) of the AD Agreement, which the Appellate Body has found does not conflict with or 
prevail over Article 11. Furthermore, China utterly fails to substantiate its claim that the Panel 
failed in its duty un der Article 17.6(i).  
9. Section II.D demonstrates that the Panel did not err in rejecting China's claims concerning 
USDOC's use of weighted -average export prices in connection with its application of the Nails test 
in the challenged investigations. The patter n clause of the second sentence of Article 2.4.2 of the 
AD Agreement does not prohibit investigating authorities from using weighted averages when 
undertaking a numerical analysis pursuant to the pattern clause. China's arguments concerning 
"parallelism " are not supported by the text of the pattern clause, China's reliance on the 
Appellate  Body Report in US – Zeroing (Japan) is misplaced, and China's arguments concerning 
the meaning of the term "pattern " lack merit.  
10. China's arguments under Article 17.6(i) of the AD Agreement also fail. Again, since China did 
not pursue an appeal under Article 11 of the DSU, China cannot argue that the Panel failed in its 
duty under Article 17.6(i) of the AD Agreement, which the Appellate Body has found does not 
conflict wit h or prevail over Article 11 of the DSU. Additionally, China has done nothing to 
substantiate its serious claim that the Panel failed to make an objective assessment of the facts.  
11. The Appellate Body should reject China's request that it complete the legal  analysis because 
there are insufficient undisputed facts for the Appellate Body to do so.  
12. Section III responds to China's appeal concerning the Panel's findings with respect to 
qualitative issues with the Nails test. China misreads or misunderstands the P anel's findings. The 
Panel did not, as China contends, find that an investigating authority is not required to consider 
objective market factors in determining whether relevant pricing differences are "significant " within 
the meaning of the pattern clause of the second sentence of Article 2.4.2 of the AD Agreement. 
Rather, the Panel found that an investigating authority is not required to consider the reasons why 
export prices differ, which accords with the Appellate Body's recent finding in US – Washing 
Machines .  
13. China misunderstands the Appellate Body's findings in US – Washing Machines  and argues 
that an investigating authority is required to consider supposedly "objective market factors " – 
seasonality and fluctuating costs – that, in reality, go to the reasons why export prices differ.  
14. China also asks the Appellate Body to find that investigating authorities have a duty to 
investigate the so -called "objective market factors " China identifies. Investigating authorities, 
however, are not required to examin e the reasons why export prices differ, and interested parties 
have a role to play under the AD Agreement in providing relevant information to investigating 
authorities.  
15. China asserts that the Panel relied on findings by the panel in US – Washing Machines that 
were reversed on appeal. China's assertion is baseless. China misreads the panel report, which 
referred only to the US – Washing Machines panel's finding that an investigating authority is not 
required to consider the reasons why export prices differ.  That finding is consistent with the text of 
the pattern clause and it was upheld by the Appellate Body.  
16. Section IV responds to China's appeal related to footnote 385 of the panel report, and 
explains that the United States does not object to China's reque st that the Appellate Body declare  
the statement made in footnote 385 to be moot and of no legal effect . 
17. Section V responds to China 's appeal related to the alleged Use of Adverse Facts Available 
(alleged AFA Norm).  Section V.A provides an introduction to the U.S. arguments while section V.B. 
provides a recitation of certain findings made by the Panel.  
18. Section V.C explains why the Appellate Body should exercise judicial economy over China's 
appeal related to the alleged AFA Norm. In particular, the United S tates notes that findings made 
by the Panel with respect to the Single Rate Presumption Norm mean that any findings concerning 
the alleged AFA Norm would not contribute to a positive resolution of this dispute.  WT/DS 471/AB/R/Add.1  
 
- B-13 - 
 
  19. In Section V.D, the United States responds to  China's appeal related to the Panel's 
articulation of the standard for a norm of general and prospective application. The United States 
demonstrates that the Panel's identification and application of the relevant standard is fully 
consistent with the prio r analysis of the Appellate Body. China's appeal is essentially a complaint 
that the Panel did not find that the evidence China proffered met China's burden.  
20. In Section V.E, the United States explains that China's complaint concerning the alleged 
AFA Norm is in any event outside the terms of reference for this dispute. The claim China identified 
in its Panel Request did not specify the legal provision under which it seeks findings or identify the 
legal problem consistent with Article 6.2 of the DSU.  
21. In Sect ion V.F, the United States addresses the merits of China's claims concerning the 
alleged AFA Norm and demonstrates that China cannot establish that the United States breached 
its obligations under Article 6.8 and paragraph 7 of Annex II. In particular, the  limited findings 
made by the Panel do not indicate that the USDOC fails to exercise the special circumspection 
required under paragraph 7 of Annex II "as such. " 
22. Finally, in Section V.G., the United States explains that the limited Panel Findings also mean  
that there are insufficient legal findings and uncontested facts for the Appellate Body to complete 
the legal analysis with respect to China's claims concerning the alleged AFA Norm.  
 
 
_______________  
 
 
 WT/DS 471/AB/R/Add.1  
 
- C-1 - 
 
  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Conten ts Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  C-2 
Annex  C-2 Executive summary of Canada 's third participant's submission  C-3 
Annex  C-3 Executive summary of the European Union' s third participant's submission  C-4 
Annex C -4 Executive summary of Japan's  third participant's submission  C-6 
Annex C-5 Executive summary of Viet Nam's third participant's  submission  C-7 
 
 WT/DS 471/AB/R/Add.1  
 
- C-2 - 
 
 ANNEX  C-1 
EXECUTIVE SUMMARY OF  BRAZIL 'S THIRD PARTICIPANT'S SUBMISSION  
1. Brazil's main systemic concerns re late to aspects of the Nails Test and the use of "Adverse 
Facts Available" (AFA). It considers that two aspects of the Nails Test performed by the 
United  States Department of Commerce ("USDOC") fail to be unbiased and objective, as required 
by the Anti -dumping Agreement. The first aspect is the use of average export prices to calculate 
the standard deviation during the standard deviation test. The USDOC, in order to calculate the 
standard deviation, uses the weighted -average export prices instead of the ind ividual export prices 
of each transaction, which leads to a smaller standard deviation, and, therefore, to a decrease in 
the threshold of this stage of the Test.  
2. The second aspect of the Nails Test that Brazil challenges is the "third quantitative flaw ", 
because, in statistical terms, when prices are normally distributed, the target price gap would 
expectedly be wider than the weighted -average gap among non -targets. This is an inherent 
characteristic of this kind of distribution of prices, which may als o be observed in other types of 
price distribution as well.  
3. Brazil considers that the legal standard set by the Panel to evaluate the prospective 
application of the AFA Norm ("certainty") should be seen in light of the Appellate Body's previous 
jurispr udence, in the sense that "in principle, any act or omission attributable to a WTO Member 
can be a measure of that Member for purposes of dispute settlement proceedings "1. 
                                               
1 Appellate Body Report , US – Corrosion -Resistant Steel  Sunset Review, para. 81 .  
 WT/DS 471/AB/R/Add.1  
 
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ANNEX C -2 
EXECUTIVE SUMMARY OF  CANADA 'S THIRD PARTICIPANT 'S SUBMISSION1 
1. Canada' s submission d emonstrates that the U.S. Nails Test  does not use a proper 
quantitative methodology to identify a pattern of export prices which differ significantly and fails to 
include a qualitative analysis in assessing whether price differences are signi ficant. As a result, the 
Panel erred in finding that these aspects of the Nails Test  were consistent with the requirements of 
Article 2.4.2 of the Anti -Dumping Agreement.  
2. Canada demonstrates that the Nails Test  fails to properly identify a pattern of p rices which 
differ significantly because it may identify such a pattern even where none exists. To illustrate this,  
Canada provides an example using the same methodology used in the U.S. Appellee Submission 
with numbers that reflect minute random price var iations.  In that example, the USDOC would find 
that a pattern of prices which differ significantly exists even though there is merely a nominal or 
marginal difference in the prices .  
3. Canada shows that the Nails Test  also fails to properly identify a pat tern of export prices 
which differ significantly because of flaws caused by the use of weighted average prices in the 
"standard deviation test", which ensures that the data points will be more concentrated around the 
mean and results in a smaller standard deviation . This makes it more likely that any set of 
transactions will satisfy the requirements of the "standard deviation test" even though the 
individual transactions may not represent a pattern of low prices.  
4. Finally, Canada establishes that the USDO C does not perform any qualitative analysis in 
determining whether export prices differ significant ly, contrary to the Appellate Body's finding in 
US – Washing Machines . 
 
                                               
1 Canada's Third -Participant Submission consists of 3553 words . This Executive Summary consists of 
318 words.  WT/DS 471/AB/R/Add.1  
 
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 ANNEX C -3 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION'S THIRD PARTICIPANT'S SUBMISSION  
A. CHINA'S APPEAL ON THE SECOND SENTENCE OF A RTICLE 2.4.2 OF THE ANTI -
DUMPING AGREEMENT  
1. First, with regard to the USDOC's methodology for identifying a pattern of export 
prices which differ significantly , the European Union ("EU") does not consider that the 
"pattern clause" in the second sentence of Article 2.4.2 imposes a particular type of 
methodology for identifying "pattern" and the "significance" of the price differences as part 
of its legal standard. The second sentence of Article 2.4.2 does not require th at statistical 
tools must necessarily  be us ed. Hence, the EU does not consider that the Panel has erred in 
the interpretation of the second sentence of Article 2.4.2.  
 
2. To the extent that it can be derived from the "exceptional" nature of the W -T comparison  
methodology that an investigating authority must apply the W -T methodology with particular 
circumspect and "rigor", the EU considers that this concerns the Panel's application of the 
second sentence of Article 2.4.2 to the facts of this case. It is thus f or China to demonstrate 
that the Panel erred in its consideration of China's factual arguments pertaining to the lack 
of rigor in USDOC's application of the "Nails Test" to identify a "pattern" of "significant" price 
differences. The EU  notes that, to the extent that USDOC's use of the "one-standard -
deviation" threshold in the "Nails Test" would risk, in certain cases, to "over -identify" the 
existence of a pattern of prices which differ significantly, this risk may be mitigated by the 
fact that the Appellat e Body found that "zeroing" is not permitted in  applying the 
W-T comparison methodology to all the transactions in the sub -set (purchaser, region, time) 
constituting the pattern.  
 
3. Article 17.6 of the AD Agreement sets out the standard of review for panels  in anti -dumping 
disputes.  A panel must  examine whether the conclusions reached by the investigating 
authority are reasoned and adequate in the light of the evidence on the record and other 
plausible alternative explanations. The Appellate Body has stresse d that this standard of 
review is also relevant for determining whether or not a given anti -dumping investigation 
has been conducted in a WTO -consistent manner. China  must persuade the Appellate Body, 
with sufficiently compelling reasons, that the Appellat e Body should disturb a panel's 
assessment of the facts or interfere with a panel's discretion as the trier of facts.  
 
4. Next, with regard to USDOC's reliance on average export prices  to find relevant pricing 
patterns, the EU recalls it does not consider th at the second  sentence of Article 2.4.2 
imposes a mandatory method for determining the existence of a "pattern". Yet, this  method 
must meet the required rigor under Article 2.4.2. In practice, and depending on the facts of 
an investigation, when determinin g the existence of a "pattern" for the purpose of the 
second sentence of Article 2.4.2, it may be very difficult for an investigating authority to 
examine  a very large number of individual transaction prices and, inevitably, a practical 
approach must be fo und. In light of the large number of individual transactions, such 
practical approach may indeed involve the examination of average export prices. 
Furthermore, with respect to China's "parallelism" argument, this would appear to the EU to 
work in reverse: in the second step, since no zeroing is permitted within the sub -set, that is 
tantamount to working with a weighted average; suggesting that, from the point of view of 
"parallelism", there is nothing wrong with also working with averages in the first step (the 
determination of whether or not there is a pattern).  
 
5. In order for China to establish a violation of Article 17.6(i), it must demonstrate that, in the 
particular investigations at stake, USDOC's reliance on average transaction prices would be 
biased a nd lack objectivity. If the investigation  concerns a very large number of individual 
transaction prices, inevitably, the EU considers that a practical approach must be  found and 
the use of averages would not be improper, biased or lack objectivity.   
 WT/DS 471/AB/R/Add.1  
 
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  6. Furth er, with regard to China's claim that USDOC should have examined other  objective 
market factors , such as seasonality and market -driven decline in costs of production, the 
EU Notes that the Appellate Body in US – Washing Machines has stressed that the 
investigating authority is charged with finding whether a pattern of export prices exists, not 
whether an exporter or producer has intentionally patterned its export prices to "target" or 
"mask" dumping. The underlying cause of the price difference is not relev ant to the potential 
significance of the difference. Issues like the seasonality and the market -driven decline in 
production costs do not constitute such objective factors that determine the "significance" in 
a particular context . They do not contribute to  establish ing whether the price gap is notable 
relative to other prices in the particular market context. Rather, they only provide 
alternative possible reasons or causes for the pattern of price differences.  
 
7. Finally, with regard to the Panel's finding in  footnote 385 of its Report , the EU agrees 
with China, and the United States, that this statement by the Panel is not entirely accurate 
in light of the Appellate Body's findings in US – Washing Machines . Article 2.4.2 does not 
permit the combining of compa rison methodologies for the purposes of establishing dumping 
and margins of dumping. Since comparison results of pattern and non -pattern transactions 
are not combined, it is incorrect to suggest that it "may be necessary … not to let that 
negative dumping [found outside the pattern] offset the dumping found within the pattern".  
B. CHINA'S APPEAL ON TH E ALLEGED AFA NORM  
8. On the existence of the alleged AFA norm , the European Union agrees with the 
United  States that findings might not be necessary to resolve the dispute, as the Panel had 
already found that the constitution of the single entity, which is the sole addressee of the 
alleged norm, is inconsistent with WTO law. On substance, the European Union 
acknowledges that the standard to demonstrate the existence of an unwritten norm is a high 
one; complainants must provide substantial evidence for the normative character of the 
unwritten rule they contest.  
 
9. Instead of zooming in and requiring specific evidence on particular characteristics such as 
prospective app lication, the evidence should be assessed in a holistic manner. Such a 
holistic approach should aim at establishing whether the overall picture is one of a measure 
with normative character (its prospective application will flow from the normative character ). 
In the European Union's understanding, this is the approach the Appellate Body has taken in 
previous landmark cases such as US – Zeroing (EC) .  
 
10. In particular, in previous anti -dumping cases, two main building blocks for the holistic 
assessment were (i)  an invariable conduct over a certain time, which constitute d the 
"footprints in the sand" of the unwritten norm, and (ii) evidence that the conduct reflects a 
deliberate policy. In the European Union's view, the two  building blocks are correlated: t he 
more frequent, the longer and the more uniform the invariable conduct is, the more likely it 
is that it is driven by an underlying instruction, and the less demanding the adjudicator 
needs to be as regards the proof of a deliberate policy – and vice -versa.  
 
11. On the alleged inconsistency with Article 6.8 and Annex II(7) of the Anti -Dumping 
Agreement , the European Union would expect the Appellate Body to follow the guiding 
principles it has set out in previous cases, in particular in Mexico – Anti-Dumping measure s 
on Rice and US – Carbon Steel (India) . A wholesale approach of automatic application of 
total adverse facts available , regardless of the specific circumstances of the case and the 
behaviour of the respondents, applied in a purely pu nitive objective, woul d, in the 
European  Union's view, be inconsistent with the principles set out in these cases. The 
European Union does not take a definitive position on the factual question of whether the 
United States ' practice  corresponds to such a wholesale, punitive app roach.  
 
 WT/DS 471/AB/R/Add.1  
 
- C-6 - 
 
 ANNEX C -4 
EXECUTIVE SUMMARY OF  JAPAN'S THIRD PARTIC IPANT'S SUBMISSION  
1. In this appellate proceeding, Japan will address the following issues related to the 
interpretation of the second sentence of Article 2.4.2 of the Anti -Dumping Agreement and  the 
Panel's interpretation regarding the measures susceptible to challenge in WTO dispute settlement 
proceedings.  
2. Japan agrees with the Panel's findings requiring an investigating authority to consider 
whether differences in export prices are qualitati vely significant and that an investigating authority 
cannot find that certain prices differ significantly purely in numerical terms. The Panel's finding is 
consistent with the findings of the Appellate Body in US – Washing Machine  which stated that 
objecti ve market factors such as circumstances of the nature of the products should be taken into 
account. The essential reason why a qualitative assessment through consideration of objective 
market factors, including seasonality and cost fluctuation, is required  is that the investigating 
authority must ensure the comparability of the export prices it is comparing, and the price 
differences that normally exist in a given market must be captured with evaluations under the 
first sentence of Article 2.4.2.  
3. The met hodology used to find a "pattern", whether statistical or non -statistical, needs to be 
as a whole reasonably designed to achieve its purpose. Japan also agrees with the Panel that the 
investigating authority can use either the individual or average export prices in identifying the 
pattern, provided that the methodology and its implementation is considered to be reasonable for 
the specific case at hand.  
4. With respect to determination of dumping and the establishment of the margins of dumping, 
Japan would l ike to point out that it is possible to interpret the second sentence of Article 2.4.2 as 
allowing the investigating authority to establish a sufficient level of margins of dumping against 
dumped imports targeting certain regions, purchasers or time period s, provided that dumping is 
found to exist on a nation -wide level, in line with Article VI:1 of the GATT 1994.  
5. Finally, Japan points out that if the Panel is requiring "certainty" for a measure to be 
prospective and thus challengeable, such finding does  not necessarily accord with the 
jurisprudence.  
 WT/DS 471/AB/R/Add.1  
 
- C-7 - 
 
  ANNEX C -5 
EXECUTIVE SUMMARY OF  VIET NAM'S THIRD PAR TICIPANT'S SUBMISSIO N 
1. In this written submission, Viet Nam will focus on discussing the issue: the USDOC's 
application of a rate based on adverse infere nces to the NME -wide entity, which is established by 
China as AFA Norm, is inconsistent with Article 6.8 and Annex II of the Anti -Dumping Agreement.  
2. According to the context of Article 6.8, "interested parties " can include only those parties 
from which  necessary information was requested. In US – "Zeroing" (EC) (21.5) , the Appellate 
Body affirmed the understanding that Article 6.8 determinations are not applicable to non -
investigated exporters. This conclusion rests upon the ordinary meaning of the phra se "necessary 
information " which Article 6.8 plainly refers to the information necessary to calculate an 
anti-dumping margin under Article 2. Only information that impacts the calculation of the 
anti-dumping margin constitutes necessary information within the meaning of Article 6.8.   
3. Further contextual support for the understanding that Article 6.8 applies only to individually 
calculated anti -dumping margins exists in Article 9.4. The Appellate Body has previously found 
that the use of adverse facts for  purposes of calculating an all -others rate is inconsistent with 
Article 9.4, further establishing Article 6.8's applicability to only those exporters/producers 
individually examined. Thus, adverse facts may only be applied in the context of an individual 
examination.   
4. The plain language of Article 6.8 and Annex II of the Anti -Dumping Agreement set forth the 
conditions that must be satisfied before an authority may apply facts available based on adverse 
inferences. An authority may apply facts available  only where necessary information has been 
requested from a party individually examined.  
5. The USDOC's practice of assigning a rate based on facts available to an NME -wide entity 
which is not individually investigated and from which no necessary informat ion has been requested 
is a violation of Article 6.8 and Annex II of the Anti -Dumping Agreement. Issuance of 
questionnaires to determine if a company is eligible for a separate rate, according to the USDOC's 
Anti-Dumping Manual, does not qualify as a reque st for "necessary information " under Article 6.8.  
 
 
_______________  
 
 
 WT/DS 471/AB/R/Add.1  
 
- D-1 - 
 
  ANNEX D  
PROCEDURAL RULING  
Contents  Page  
Annex  D-1 Procedural ruling of 22 November 2016 regarding extension of ti me-limits for 
submission of documents  D-2 
 
 WT/DS 471/AB/R/Add.1  
 
- D-2 - 
 
 ANNEX D -1 
PROCEDURAL RULI NG OF 22 NOVEMBER 2016  
1  BACKGROUND  
1.1.  On Friday , 18 November  2016,  China  notified  the Dispute Settlement Body and filed a Notice 
of Appeal with the Appellate Body Secretariat with respect to the Panel Report in  United States  – 
Certain Methodologies and Their A pplication to Anti -Dumping  Proceedings  Involving China  
(WT/DS 471/R). 
1.2.  On Saturday, 19  November  2016, the United States requested the Division hearing this 
appeal to extend the time -limit for filing the other appellant's submission, and as a consequence 
the time-limits for filing appellee's and third participants' submissions pursuant to Rule 16(2) of 
the Working Procedures for Appellate Review (Working Procedures).  
1.3.  In its request, the United States notes the unavailability of staff during this week, the 
comp lexity of this dispute, the large number of issues raised on appeal, and the fact that China 
submitted a lengthy appellant's submission well ahead of the end of the 60 -day period to appeal 
the Panel Report. The United States contends that China would suffe r no prejudice from the 
modification requested by the United States. The United  States also observes that, in light of the 
timeline for completion of appeals and the workload challenges faced by the WTO dispute 
settlement system, Members should carefully c onsider potential appeals, including the scope of an 
other appeal. The United States submits that, in these "exceptional circumstances", it would be 
significantly impeded in its ability to respond to China's appeal and to determine whether and to 
what exte nt to file an other appeal. To the United States, the strict adherence to the time -periods 
set out in the Working Procedures would result in "manifest unfairness" within the meaning of 
Rule 16(2) of the Working Procedures.  
1.4.  On Monday, 21  November  2016, the Chair of the Appellate Body, Mr Thomas R. Graham , 
invited China and the third participants to comment  on the United States' request by 12 noon on 
Tuesday, 22  November  2016. China and the European Union submitted comments.  
1.5.  China objects to the United States ' request for additional time for filing its Notice of Other 
Appeal and other appellant's submission. To China, the United States has had ample time to 
prepare an appeal because the Panel Report did not change significantly since the Interim Panel 
Report. In addition, China observes that the United States has been on notice since 
11 November  2016 that an appeal by China was imminent because, by that date, China had not 
inscribed the adoption of the Panel Report on the agenda of the DSB meeting to be held on  
23 November  2016. China also notes that the United States requested an extension of both the 
filing date of the United  States' other appeal and the filing date of the United States' appellee's 
submission by an equivalent number of days, without adding equ ivalent time for China to prepare 
its appellee's submission. To China, this lack of even -handedness is unwarranted and unfair. 
Turning to the time -limits to file appellee's submissions and third participants' submissions, 
although China opposes any one -sided extension, China would be willing to consider an 
even-handed extension on condition that this extension is without prejudice to China's interests.  
1.6.  The European Union submits that, to the greatest extent possible, the time -periods provided 
for in the DSU  and the Working Procedures should be respected. The European Union notes, 
however, that in case of conflict it is neither the quality of reports nor the due process rights of 
Members that should be compromised; rather, the time -limits should be appropriat ely adjusted. 
The European Union agrees with the United States that the length of China's appeal, the 
number  of findings requested, and the complexity of issues are relevant factors to be taken into 
account when considering a request for extension. The Eur opean Union also agrees with the 
United  States that the relatively limited adjustments requested by the United States should not 
significantly prejudice China, given the overall timeline of the dispute.  WT/DS 471/AB/R/Add.1  
 
- D-3 - 
 
  2  THE UNITED STATES' RE QUEST TO EXTEND TIME -LIMITS FOR FILING DOCUMENTS  
2.1.  Rule 16 (2) of the Working Procedures provides as follows:  
In exceptional circumstances, where strict adherence to a time -period set 
out in these Rules would result in a manifest unfairness, a party to the 
dispute, a participant, a third pa rty or a third participant may request that 
a division modify a time -period set out in these Rules for the filing of 
documents or the date set out in the working schedule for the 
oral hearing. Where such a request is granted by a division, any 
modification  of time shall be notified to the parties to the dispute, 
participants, third parties and third participants in a revised working 
schedule.  
2.2.  The request by the United States concerns the time -limits for filing: (i)  the Notice of Other 
Appeal and other appe llant's submission (if any) by the United States; (ii) the 
appellee's  submission(s); and (iii) the third participant's submissions. The Division examines each 
of these time -periods below.  
2.3.  With respect to the request for extending the date for filing of a p ossible Notice of Other 
Appeal and other appellant's submission by the United States, the Division notes the complexity 
and size of this dispute. Indeed, the record of the panel proceedings is large, and includes several 
hundreds of exhibits submitted by C hina and the United States. In addition, the Division observes 
that China filed its appeal on 18  November  2016, around one month after its circulation. At the 
same time, the Division notes China's  arguments that the United States has had sufficient time to  
prepare its appeal and that the scope of China's appeal should not have a bearing on the date by 
when an other appeal is to be filed.  
2.4.  With respect to the filing of the United States' appellee's submission, the Division notes that, 
in addition to the cons iderations above, China submitted a long appellant's submission. In the 
Division's view, the size of an appeal is of relevance when examining a request to extend time -
limits for filing appellee's submissions. In addition, as observed by China, the Division  agrees that 
any extension of the time -limit for filing appellee's submissions should be even -handed for both 
participants.  
2.5.  With respect to third participant's submissions , in addition to the considerations above, the 
Division notes that the third parties obtained access to the final Report of the Panel only after that 
Report was circulated to Members  in all three official languages, that is, on 19 October  2016. In 
contrast, the final Panel Report was issued to the parties several months earlier, once it wa s 
completed and sent to translation. China's initiation of its appeal triggers the time-period under 
Rule 24(1) of the Working Procedures for third participants to file written submissions within 
21 days. Within that period, third parties must review the a ppellant' s, other appellant' s, and 
appellee' s submissions and prepare their submissions in response to the Panel Report and these 
other submissions. The Division notes that in particular the time -period between receipt of 
participants' appellee's submissio ns and the due date for filing third participants' submissions is 
short under the Working Procedures. The Division is also mindful that, if it were to extend the 
time-period for  filing submissions in this appeal pursuant to the United States' request, the 
third participant's submissions would be due around the period of end -of-year closure for the WTO 
and several missions to the WTO.  
2.6.  In the Division's view, the particular circumstances of this case may affect the ability of the 
United  States to effectively exercise its right to file an other appeal, as well as the ability of the 
United States and China to prepare appellee's submissions, and the ability of third  participants to 
comment on the participants' submissions and prepare their third participants' sub missions if they 
have to be filed within the time -periods set out in the Working Procedures. Accordingly, the 
Division consider s that strict adherence to the time -period set out in Rule s 22(1), 23(1) , 23(3), 
23(4), 24(1), and 24(2)  of the Working Procedure s would result in a manifest unfairness in the 
particular circumstances of the case at hand.  
2.7.  In the light of the above considerations, the Division extends , pursuant to Rule 16(2) of the 
Working Procedures,  the time -period for the United States to file its  Notice of Other Appeal and  WT/DS 471/AB/R/Add.1  
 
- D-4 - 
 
 other appellant's submission by five days to Monday, 28  November  2016. With respect to the filing 
date of appellee's submissions, under Rule  23(4) of the Working Procedures, China  would have 
13 days to respond to an other appeal  by the United States. The Division therefore extend s this 
time-period also by five days. At the same time, the Division recalls the length of 
China's  appellant's submission. The Division also notes t hat under Rule 24 of the 
Working Procedures all appellee s' submissions are to be filed on the same day . Thus, the Division 
extends the date for filing the appellee's submissions to Friday, 16  December  2016. As a 
consequence of these decision s to extend the filing dates for the participants' submissions , and in 
light of the Division's earlier considerations that third participants should be given the opportunity 
to exercise their right to review these submissions and prepare their own submissions, it is also 
necessary to modify the date for filing third participa nt's submissions under Rule 24 of the Working 
Schedule. Thus, the Division extends the time -period for third participants to file their submissions 
to Monday, 9  January  2017.  
Modified Dates for the Submission of Documents  
 
Process  Rule Date  
Notice of Othe r Appeal  Rules 16 and 23(1)  Monday, 28  November  2016 
 
Other appellant's submission  Rules 16 and 23(3)  Monday, 28  November  2016 
 
Appellees' submissions  Rules 16, 22 and 23(4)  Friday , 16 December  2016 
 
Third participants' submissions  Rules 16 and 24(1)  Monda y, 9 January  2017 
 
Third participants' notifications  Rules 16 and 24(2)  Monday , 9 January  2017 
 
 
__________