WT/DS505/6  
 
29 August 2018  
(18-5401) Page: 1/2 
  Original: English  
 
 
 UNITED STAT ES – COUNTERVAILING MEASU RES ON  
SUPERCALENDERED PAPE R FROM CANADA  
NOTIFICATION OF AN A PPEAL BY UNITED STATES  
UNDER ARTICLE 16.4 A ND ARTICLE 17 OF THE  UNDERSTANDING ON RUL ES 
AND PROCEDURES GOVER NING THE SETTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WO RKING PROCEDURES FOR  APPELLATE REVIEW  
The following communication, dated 27 August  2018, from the Delegation of the United States , is 
being circulated to Members.  
 
_______________  
 
 
1. Pursuant to Article 16 of the Understanding on Rules a nd Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the 
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law 
covered in the report of the Panel i n United States – Countervailing Measures on Supercalendered 
Paper from Canada (WT/DS505/R and WT/DS505/R/Add.1) and certain legal interpretations 
developed by the Panel.  
2. The United States seeks review by the Appellate Body of the Panel 's findings that the so -
called "ongoing conduct " measure is a "measure " that could be challenged under the DSU. 1 This 
finding is in error and is based on erroneous findings on issues of law and legal interpretations.  
The Panel erred in finding that "ongoin g conduct " is a measure within the DSU, including DSU 
Articles 7.1, 19.1, 3.3, and 4.2.  The Panel improperly relied on the Appellate Body 's approach to 
"ongoing conduct " expressed in US – Continued Zeroing  when that approach would not support the 
Panel 's finding of an "ongoing conduct " measure.  The Panel also failed to properly apply its own 
legal approach to the facts to determine the existence of the "ongoing conduct ". The United States 
respectfully requests that the Appellate Body reverse the Panel 's findings.   
3. The United States seeks review by the Appellate Body of the Panel 's finding that the so -
called "ongoing conduct " measure is inconsistent with Article 12.7 of the SCM Agreement.2 This 
finding is in error and is based on erroneous findings on issues of law and legal interpretations.  
The Panel failed to provide a basic rationale for its findings as required by Article 12.7 of the DSU.  
The Panel erred in finding a breach of Article 12.7 of SCM Agreement when that provision permits 
the use of facts available where the respondent significantly impedes the investigation, an 
alternative basis for using facts available that the Panel failed to analyze.  The Panel 's legal 
conclusion is unsubstantiated by its own reasoning, which does not correspond to the "ongoing 
conduct " actually found by the Panel, nor with the determinations on the record in the proceeding.  
Finally, the Panel erred in finding that a request for information on "Other Forms of Assistance " 
can never be a request for "necessary information ". The United States respectfully requests that 
the Appellate Body reverse the Panel 's findings.  
4. The Panel erred in making a recommendation under DSU Article 19.1 because it erred in 
finding that the so -called "Other Forms of Assistance " measure exists and is a "measure " within 
the meaning of the DSU or because it erred in finding this alleged "measure " is inconsistent with 
SCM Agreement Article 12.7.3 Having reversed the Panel 's legal conclusion on either basis, the 
                                                      
1 US – Supercalendered Paper (Panel) , paras. 7.301 –7.329 and 7.332.  
2 US – Supercalendered Paper (Panel) , para. 7.333.  WT/DS505/6  
 
- 2 - 
 
  Appellate Body should also, as a consequence, reverse the Panel 's recommendation under DSU 
Article 19.1.  
 
__________  
                                                                                                                                                                     
3 US – Supercalendered Paper (Panel) , para. 8.6.