WT/DS504/6  
 
6 June 2018  
(18-3467) Page: 1/3 
  Original: English  
 
 
KOREA – ANTI -DUMPING DUTIES ON PN EUMATIC VALVES FROM JAPAN  
NOTIFICATION OF AN O THER APPEAL BY KOREA  UNDER ARTICLE S 16.4 AND 17  
OF THE UNDERSTANDING  ON RULES AND PROCEDU RES GOVERNING  
THE SETTLEMENT OF DI SPUTES (DSU), AND UN DER RULE 2 3(1) OF 
THE WORKING PROCEDURES FOR APPEL LATE REVIEW  
The following communication, dated 4 June 2018, from the delegation of Korea , is being circulated 
to Members.  
 
_______________  
 
 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 23(1) of the Working Procedures for Appellate Review 
("Working Procedures"), the Republic of Korea ("Korea") hereby notifies the Dispute Settlement 
Body ("DSB") of its decision to appeal to the Appellate Body certain is sues of law and certain legal 
interpretations developed by the Panel in its report on Korea – Anti-Dumping Duties on Pneumatic 
Valves from Japan (WT/DS504)  ("Panel Report").  
Pursuant to Rules 23(1) and 23(3) of the Working Procedures, Korea files this Noti ce of Other 
Appeal together with its Other Appellant Submission to the Appellate Body Secretariat.1 
Korea seeks the review by the Appellate Body of the Panel 's conclusions that Japan has 
demonstrated that the Korean Investigating Authorities acted inconsis tently (i) with Articles 3.1 
and 3.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994 (the "Anti -Dumping Agreement") in their causation analysis as a result of flaws in their 
analysis of the effect of the dumped imports on prices in the domestic market;2 and (ii) with 
Articles 6.5 and 6.5.1 of the Anti -Dumping Agreement with respect to the treatment of information 
as confidential and the obligation to require the furnishing of non -confidential summaries.3 Korea 
appeals these findings based on a series of errors of law and legal interpretation of the Panel, as 
summarized below. In addition, Korea considers that the Panel failed to make an objective 
assessment of the facts of the case as called for by Article 11 of the DSU and Article 17.6 of the 
Anti-Dumping Agreement and that this failure vitiated its above -identified findings.  
With respect to the Panel 's findings of violation under Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement, Korea 's other appeal cons ists of three sets of claims.  
First, Korea request s the Appellate Body to reverse the Panel 's finding that Japan 's "causation" 
claims under Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within the Panel 's terms of 
reference.4 In making this erron eous finding, the Panel erred in law since Japan 's panel request 
with respect to Articles 3.1 and 3.5 of the Anti -Dumping Agreement failed to provide a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly in accordanc e 
                                                
1 Pursuant to Rule 23(2)(c)(ii) of the Working Procedures, this Notice of Other Appeal includes  a brief 
statement of the nature of this appeal, including identification of the legal errors in the Panel Report, a list of 
the legal provisions of the covered agreements the Panel erred in interpreting and applying, and an indicative 
list of the relevant  paragraphs of the Panel Report containing the errors – without prejudice to Korea 's ability to 
rely on other paragraphs of the Panel Report in its appeal.  
2 Panel Report, para. 8.4(a).  
3 Panel Report, para. 8.4(b) -(c).  
4 Panel Report, paras. 7.244, and 8.2(b) -(d). WT/DS504/6  
 
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  with Article 6.2 of the DSU. The Panel 's contrary findings are in error. In addition, the Panel 
erred  in law by reaching a conclusion that Japan 's panel request was consistent with Article 6.2 of 
the DSU only after "carefully review[ing]" Japan 's written  submissions, rather than simply on the 
face of the request.5  
Second, should the Appellate Body find that Japan 's "independent" causation claim is properly 
within the Panel 's terms of reference, Korea requests the Appellate Body to reverse the Panel 's 
finding that Korea acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping Agreement as 
a result of flaws in the analysis of the effect of the dumped imports on prices in the domestic 
market,6 since this finding is vitiated by a number of errors of  law and legal interpretation. In 
particular, and without prejudice to the arguments developed in Korea 's Other Appellant 
Submission, the Panel 's interpretation and application of Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement is in error since the Pan el (i) erroneously subsumed all of  the obligations under 
Articles  3.2 and 3.4 into Article 3.5 thereby rendering inutile Articles 3.2 and 3.4;7 (ii) erred in 
making findings in the absence of Japan establishing a prima facie  case relating to the question o f 
competition and price comparability that was the premise of its claim;8 (iii) erred by imposing a 
price effects and price comparability analysis that has no basis in the text of Article 3.5 and that 
went well beyond what is required even under Article 3. 2 of the Anti -Dumping Agreement;9 and 
(iv) unduly made findings about the investigating authorities ' causation determination based only 
on isolated aspects of this determination and without considering the Panel 's contrary findings on 
causation as a whole.10 
Third, in reaching its findings of violation under Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement, the Panel failed to make an objective examination of the matter before it as required 
by Article 11 of the DSU and Article 17.6 of the Anti -Dumping Agr eement. In particular, the Panel 
failed to provide a reasoned and adequate explanation for its finding that Japan 's claims under 
Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within its terms of reference and made 
findings on the sufficiency of t he brief summary of the legal basis of the complaint that were 
internally inconsistent and contradictory. Furthermore, in reaching its finding  of violation of 
Articles  3.1 and 3.5 of the Anti -Dumping Agreement, the Panel failed to make an objective 
examina tion of the matter before it as required by Article 11 of the DSU and Article 17.6 of the 
Anti-Dumping Agreement since, among others, the Panel made the case for Japan, failed to 
provide a reasoned and adequate explanation that its findings were supported by a sufficient 
evidentiary basis, and made findings that were internally inconsistent and contradictory.  
For the reasons to be further elaborated in its submission to the Appellate Body, Korea requests 
the Appellate Body to reverse and declare moot and o f no legal effect, the findings, conclusions 
and recommendations of the Panel, with respect to the above -identified errors of law and legal 
interpretations contained in the Panel Report. In particular, Korea requests the Appellate Body to 
reverse the Panel 's finding in paragraphs 7.244 and 8.2(b) -(d) of the Panel Report that certain of 
Japan 's claims relating to Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within its 
terms of reference. In addition, Korea requests the Appellate Body to reverse an d declare moot 
and of no legal effect the Panel 's finding in, among others, paragraphs 7.349 and 8.4(a) of the 
Panel Report that Korea acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement.  
With respect to the Panel 's finding that Ko rea acted inconsistently with Articles 6.5 and 6.5.1 of 
the Anti -Dumping Agreement relating to the treatment of confidential information and the 
provision of non -confidential summaries, Korea 's request for reversal of the Panel 's finding consists 
of the fo llowing three part claim.  
                                                
5 Panel Report, paras. 7.222, 7.234, and 7.241.  
6 Panel Report, paras. 7.349, and 8.4(a).  
7 Panel Report, paras. 7.250 -258 (Volume), 7.259 -323 (Prices), and 7.324 -347 (Impact).  
8 Panel Report, para. 7.259.  The Panel confirms that Japan 's releva nt claim was that there is no 
competitive relationship between the dumped imports and the domestic like product, such that their prices are 
not comparable.  The Panel rejected this claim and thus there was no basis for additional findings absent a 
prima fac ie case. See, e.g. Panel report paras. 7.295 (c), 7.315, 7.318, 7.320 confirming that there was such 
competition between both products.    
9 Panel Report, paras. 7.266 -7.272, and 7.297 -7.323.  
10 Panel Report, para. 7.323, 7.349 without consideration of Panel  Report, para. 7.361, para. 7.389.  WT/DS504/6  
 
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  First, Korea submits that the Panel 's finding that Japan 's panel request with respect to its claims 
under Article 6.5 and 6.5.1 of the Anti -Dumping Agreement presented the problem clearly in 
accordance with Article 6.2 of the DSU  is in error and should be reversed.11 Japan 's panel request 
suffered from the same shortcomings as other claims which the Panel correctly rejected as outside 
its terms of reference.  The Panel 's finding to the contrary is based on an erroneous application o f 
the law to the facts as the panel request, when examined on its face, fails to present the problem 
with the required clarity through linking any specific aspects of the challenged measures, or of the 
underlying investigation, to any of the specific oblig ations in these provisions.  In addition, the 
Panel erred in law when examining Japan 's compliance with Article 6.2 of the DSU by taking into 
account the scope of the allegations under Articles 6.5 and 6.5.1 as presented in Japan 's written 
submissions.12  
Second, the Panel erroneously interpreted Article 6.5 of the Anti -Dumping Agreement as requiring 
investigating authorities to make express statements as to whether good cause is shown with 
respect to confidential information and erred in applying the law t o the facts when it found that the 
submitters did not show good cause for the confidential treatment of that information.13 In 
particular, the Panel erred in law when it considered that absent an express "indication" on the 
record that the Korean Investigat ing Authorities took into account whether the information in 
question fell into any of the categories for confidential information set forth under Korean law, no 
good cause was shown to exist.14 This finding is in error since, absent a legal obligation to d o so, 
the Korean Investigating Authorities could not be faulted for not making specific statements or 
indicating its consideration about each of the requests for confidentiality.  
Third, the Panel also erred in law when applying Article 6.5.1 of the Anti -Dumping Agreement to 
the facts of the dispute by finding that Korea failed to require the applicants to furnish the required 
non-confidential summaries.15 The applicants submitted "non -confidential summaries" of the 
confidential information, prepared by desi gnating the information that they deemed were entitled 
to confidential treatment in accordance with Korean law and the guidelines for filling out the 
questionnaires. In the public versions of the submissions, certain non -confidential descriptive 
narratives  are found with respect to all confidential information, and these narratives permitted a 
reasonable understanding of the substance of the information and thus enabled interested parties 
to defend their interests. The Panel 's findings to the contrary are i n error and should be reversed.  
For the reasons to be further elaborated upon in its submission to the Appellate Body, Korea 
therefore requests the Appellate Body to reverse the Panel 's findings that Japan 's claims under 
Articles 6.5 and 6.5.1 were within  its terms of reference, as set forth in, among others,  
paragraphs  7.418 and 8.2(e) of the Panel Report. In addition, Korea requests the Appellate Body 
to reverse and declare moot and of no effect the Panel 's finding o f violation of Articles 6.5 
and 6.5.1 of the Anti -Dumping Agreement, as set forth in, in p articular, paragraphs 7.451 
and 8.4(b) -(c) of the Panel Report.  
__________  
                                                
11 Panel Report, paras. 7.418, and 8.2(e).  
12 Panel Report, para. 7.416.  
13 Panel Report, para. 7.441.  
14 Panel Report, paras. 7.438 - 7.440.  
15 Panel Report, paras. 7.450, 7.451, and 8.4(c).