WT/DS553/R  
 
30 November  2020 
(20-8568) Page: 1/91 
  Original: English  
 
  
KOREA – SUNSET REVIEW OF ANTI -DUMPING DUTIES  
ON STAINLESS STEEL BARS  
REPORT  OF THE PANEL  
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 WT/DS553/R  
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  TABLE OF CONTENTS  
1  INTRODUCTION  ................................ ................................ ................................ .........  13 
1.1  Complaint by Japan  ................................ ................................ ................................ .....13 
1.2  Panel establishment and composition  ................................ ................................ ............. 13 
1.3  Panel proceedings ................................ ................................ ................................ ........ 13 
2  FACTUAL ASPECTS  ................................ ................................ ................................ ..... 14 
2.1  The measures at issue  ................................ ................................ ................................ .14 
3  PARTIES'  REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................ . 14 
4  ARGUMENTS OF THE PARTIES  ................................ ................................ ....................  16 
5  ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ .........  16 
6  INTERIM REVIEW  ................................ ................................ ................................ ....... 16 
7  FINDINGS  ................................ ................................ ................................ ..................  16 
7.1  Terms of reference :  Korea's  request for a preliminary ruling  ................................ ............ 16 
7.1.1   Whether Japan failed to identify the measure at issue in its panel request  ....................... 17 
7.1.2   Whether Japan failed to identify the confidentiality claims with sufficient precision in its 
panel request  ................................ ................................ ................................ .................... 18 
7.1.3   Whether Japan's  panel request unduly expanded the scope of the dispute beyond  
what was included in the consultations request  ................................ ................................ ......18 
7.1.4   Whether Japan's  first written submission unduly expanded the scope of the dispute  
beyond what was included in the panel request  ................................ ................................ .....19 
7.2  Introduction :  Japan's  claims under the Anti -Dumping  Agreement  ................................ .....20 
7.3  General principles regarding treaty interpretation, standard of review,  
and burden of proof  ................................ ................................ ................................ ........... 21 
7.3.1   Treaty interpretation  ................................ ................................ ................................ .21 
7.3.2  Burden of proof  ................................ ................................ ................................ ........ 21 
7.3.3   Standard of review  ................................ ................................ ................................ ...23 
7.4  Japan's  objections concerning certain exhibits  ................................ ................................ .27 
7.5  Likelihood of recurrence of injury :  Japan's  claims under Articles  11.3 and 6.8 of the 
Anti-Dumping  Agreement  ................................ ................................ ................................ ....28 
7.5.1   Introduction  ................................ ................................ ................................ ............. 28 
7.5.2   Legal standard under Article  11.3 of the Anti -Dumping  Agreement ................................ ..28 
7.5.3   Japan's  claim under Article  11.3 of the Anti -Dumping  Agreement concerning price and 
volume effects  ................................ ................................ ................................ ................... 31 
7.5.3.1   Whether the KIA erred by finding that the Japanese price drop would weaken  
the price competitiveness of the domestic like products  ................................ .......................... 32 
7.5.3.2   Whether the KIA erred by finding that the Japanese price drop would lead  
to an increase in Japanese imports  ................................ ................................ ....................... 41 
7.5.3.3   Whether the  KIA erred by failing to account for different product mixes in  
assessing the impact of the Japanese price drop  ................................ ................................ ....47 
7.5.3.4   Whether  the KIA's  error in assessing the impact of the Japanese price drop  
constitutes a violation of Article  11.3 of the Anti -Dumping  Agreement  ................................ ......48 
7.5.4   Japan's  claim under Article  11.3 of the Anti -Dumping  Agreement concerning  
other potential injury factors  ................................ ................................ ............................... 51 
7.5.5   Japan's  claims concerning capacity utilization  ................................ ............................... 52 WT/DS553/R  
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  7.5.5.1   Japan's  claim under Article  11.3 of the Anti -Dumping  Agreement concerning capacity 
utilization  ................................ ................................ ................................ .......................... 52 
7.5.5.2   Japan's  claim under Article  6.8 of the Anti -Dumping  Agreement concerning capacity 
utilization  ................................ ................................ ................................ .......................... 72 
7.6  Confidentiality :  Japan's  claims under Article  6.5 of the Anti -Dumping  Agreement  ............... 77 
7.6.1   Introduction and legal standard  ................................ ................................ .................. 77 
7.6.2   Whether the KIA erred under Article  6.5 by granting confidential treatment without a 
showing of good cause having been made by the applicants  ................................ .................... 79 
7.6.3   Whether the KIA failed to specify "on what basis" the confidential  
treatment was afforded  ................................ ................................ ................................ ......82 
7.7  Judicial econ omy ................................ ................................ ................................ ......... 85 
8  CONCLUSIONS AND RECOMMENDATION  ................................ ................................ .... 89 
 
 WT/DS553/R  
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  LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  11 
Annex A -3 Interim Review  13 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Japan  63 
Annex  B-2 First integrated executive summary of the arguments of Korea  74 
Annex  B-3 Second integrated executive summary of the arguments of Japan  84 
Annex  B-4 Second integrated executive summary of the arguments of Korea  94 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  106 
Annex  C-2 Integrated executive summary of the arguments of the United States  110 
 WT/DS553/R  
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina  – Ceramic  Tiles Panel Report, Argentina  – Definitive  Anti-Dumping  Measures  on Imports  
of Ceramic  Floor Tiles from Italy, WT/DS189 /R, adopted 
5 November  2001, DSR 2001 : XII, p. 6241 
Argentina  – Financial  
Services  Panel Report, Argentina  – Measures  Relating  to Trade  in Goods  and 
Services , WT/DS453/R  and Add.1, adopted 9  May 2016, as modified by 
Appellate Body Repor t WT/DS453/AB/R, DSR 2016 : II, p. 599 
Argentina  – Import  
Measures  Appellate Body Reports, Argentina  – Measures  Affecting  the Importation  
of Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , 
adopted 26  January  2015, DSR 2015 : II, p. 579 
Argentina  – Import  
Measures  Panel Reports, Argentina  – Measures  Affecting  the Importation  of 
Goods , WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / 
WT/DS445/R  and Add.1, adopted 26  January  2015, as modified 
(WT/DS438/R) and upheld (WT/DS444/R / WT/DS445/R) by 
Appellate  Body Reports WT/DS438/AB/R / WT/DS444/AB/R / 
WT/DS445/AB/R, DSR 2015 : II, p. 783 
Argentina  – Poultry  
Anti-Dumping  Duties  Panel Report, Argentina  – Definitive  Anti-Dumping  Duties  on Poultry  
from Brazil , WT/DS241/R , adopted 19  May 2003, DSR 2003 : V, p. 1727 
Argentin a – Textiles  and 
Apparel  Appellate Body Report, Argentina  – Measures  Affecting  Imports  of 
Footwear , Textiles , Apparel  and Other  Items , WT/DS56/AB/R  and 
Corr.1, adopted 22  April 1998, DSR 1998 : III, p. 1003 
Australia – Apples  Panel Report, Australia  – Measures  Affecting  the Importation  of Apples  
from New Zealand , WT/DS367/R , adopted 17  December  2010, as 
modified by Appellate Body Report WT/ DS367/AB/R, DSR 2010 : VI, 
p. 2371 
Australia  – Salmon  Appellate Body Report, Australia  – Measures  Affecting  Importation  of 
Salmon , WT/DS18/AB/R , adopted 6  November  1998, DSR 1998 : VIII, 
p. 3327 
Brazil – Retreaded Tyres  Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate 
Body Report WT/DS332/AB/R, DSR 2007:V, p. 1649  
Canada  – Autos  Appellate Body Report, Canada  – Certain  Measures  Affecting  the 
Automotive  Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 
19 June 2000, DSR 2000 : VI, p. 2985 
Canada  – Wheat  Exports  
and Grain  Imports  Appellate Body Report, Canada  – Measures  Relating  to Exports  of Wheat  
and Treatment  of Imported  Grain , WT/DS276/AB/R , adopted 
27 September 2004, DSR 2004 : VI, p. 2739 
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on 
Certain Automobiles from the United States , WT/DS440/R  and Add.1, 
adopted 18 June 2014, DSR 2014:VII, p. 2655  
China  – Broiler Products  Panel Report, China  − Anti-Dumping  and Countervailing  Duty Measures  
on Broiler  Products  from the United  States , WT/DS427/R  and Add.1, 
adopted 25  September  2013, DSR 2013 : IV, p. 1041 
China  – Broiler  Products  
(Article  21.5 – US) Panel Report, China  − Anti-Dumping  and Countervailing  Duty Measures  
on Broiler  Products  from the United  States  – Recourse  to Article  21.5 of 
the DSU by the United  States , WT/DS427/RW  and Add.1, adopted 
28 February 2018  
China  – GOES  Appellate Body  Report, China  – Countervailing  and Anti-Dumping  Duties  
on Grain  Oriented  Flat-Rolled  Electrical  Steel from the United  States , 
WT/DS414/AB/R , adopted 16  November  2012, DSR 2012 : XII, p. 6251 
China  – GOES  Panel Report, China  – Countervailing  and Anti-Dumping  Duties  on Grain  
Oriented  Flat-Rolled  Electrical  Steel from the United  States , 
WT/DS414/R  and Add.1, adopted 16  November  2012, upheld by 
Appellate Body Report WT/DS414/AB/R, DSR 2012 : XII, p. 6369 WT/DS553/R  
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  Short Title  Full Case Title and Citation  
China  – HP-SSST (Japan)  / 
China  – HP-SSST (EU) Appellate Body Reports, China  – Measures  Imposing  Anti-Dumping  
Duties  on High-Performance  Stainless  Steel Seamless  Tubes  ("HP-
SSST ") from Japan  / China  – Measures  Imposing  Anti-Dumping  Duties  
on High-Performance  Stainless  Steel Seamless  Tubes  ("HP-SSST ") from 
the European  Union , WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and 
Add.1, adopted 28  October  2015, DSR 2015 : IX, p. 4573 
China – HP-SSST (Japan) 
/ China – HP-SSST (EU)  Panel Reports, China – Measures Imposing Anti Dumping  Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP SSST") from 
Japan / China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless Tubes ("HP SSST") from the 
European Union , WT/DS454/R and Add.1 / WT/DS460/R, Add .1 and 
Corr.1, adopted 28 October 2015, as modified by Appellate Body 
Reports WT/DS454/AB/R / WT/DS460/AB/R, DSR 2015:IX, p. 4789  
China  – Publications  and 
Audiovisual  Products  Appellate Body Report, China  – Measures  Affecting  Trading  Rights  and 
Distribution  Services  for Certain  Publications  and Audiovisual  
Entertainment  Products , WT/DS363/AB/R , adopted 19  January  2010, 
DSR 2010 : I, p. 3 
EC – Bed Linen  Panel Report, European  Communities  – Anti-Dumping  Duties  on 
Imports  of Cotton -Type Bed Linen  from India, WT/DS141/R , adopted 
12 March  2001, as modified by Appellate Body Report WT/DS1 41/AB/R, 
DSR 2001 : VI, p. 2077 
EC – Countervailing 
Measures on DRAM Chips  Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R , 
adopted 3 August 2005, DSR 2005:XVIII, p. 8671  
EC – Fasteners  (China)  Appellate Body Report, European  Communities  – Definitive  
Anti-Dumping  Measures  on Certain  Iron or Steel Fasteners  from China , 
WT/DS397/AB/R , adopted 28  July 2011, DSR 2011 : VII, p. 3995 
EC – Fasteners  (China)  Panel Report, European  Communities  – Definitive  Anti-Dumping  
Measures  on Certain  Iron or Steel Fasteners  from China , WT/DS397/R  
and Corr.1, adopted 28  July 2011, as modified by Appellate Body 
Report WT/DS397/AB/R, DSR 2011 : VIII, p. 4289 
EC – Fasteners  (China)  
(Article  21.5 – China)  Appellate Body Report, European  Communities  – Definitive  
Anti-Dumping  Measures  on Certain  Iron or Steel Fasteners  from China  
– Recourse  to Article  21.5 of the DSU by China , WT/DS397/AB/RW  and 
Add.1 , adopted 12  February  2016, DSR 2016 : I, p. 7 
EC – Hormones  Appellate Body Report, European  Communities  – Measures  Concerning  
Meat and Meat Products  (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , 
adopted 13  February  1998, DSR 1998 : I, p. 135 
EC – Poultry  Appellate Body Report, European  Communities  – Measures  Affecting  the 
Importation  of Certain  Poultry  Products , WT/DS69/AB/R , adopted 
23 July 1998, DSR 1998 : V, p. 2031 
EC – Salmon  (Norwa y) Panel Report, European  Communities  – Anti-Dumping  Measure  on 
Farmed  Salmon  from Norway , WT/DS337/R , adopted 15  January  2008, 
and Corr.1, DSR 2008 : I, p. 3 
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti -Dumping Measures on Steel Rebar 
from Turkey , WT/DS211/R , adopted 1 October 2002, DSR 2002:VII, 
p. 2667 
EU – Fatty Alcohols  
(Indonesia)  Appellate Body Report, European  Union  – Anti-Dumping  Measures  on 
Imports  of Certain  Fatty Alcohols  from Indonesia , WT/DS442/AB/R  and 
Add.1, adopted 29  September  2017, DSR 2017 : VI, p. 2613 
EU – Fatty Alcohols  
(Indonesia)  Panel Report, European  Union  – Anti-Dumping  Measures  on Imports  of 
Certain  Fatty Alcohols  from Indonesia , WT/DS442/R  and Add.1, 
adopted 29  September  2017, as modified by Appellate Bod y Report 
WT/DS442/AB/R, DSR 2017 : VI, p. 2765 WT/DS553/R  
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  Short Title  Full Case Title and Citation  
EU – Footwear  (China)  Panel Report, European  Union  – Anti-Dumping  Measures  on Certain  
Footwear  from China , WT/DS405/R , adopted 22  February  2012, 
DSR 2012: IX, p. 4585 
EU – PET (Pakistan)  Appellate Body Report, European  Union  – Countervailing  Measures  on 
Certain  Polyethylene  Terephthalate  from Pakistan , WT/DS486/AB/R  and 
Add.1, adopted 28  May 2018 
Guatemala  – Cement  I Appella te Body Report, Guatemala  – Anti-Dumping  Investigation  
Regarding  Portland  Cement  from Mexico , WT/DS60/AB/R , adopted 
25 November 1998, DSR 1998 : IX, p. 3767 
India – Autos  Panel Report, India – Measures  Affecting  the Automotive  Sector , 
WT/DS146/R , WT/DS175/R , and Corr.1, adopted 5  April 2002, 
DSR 2002: V, p. 1827 
India – Solar Cells Appellate Body Report, India – Certain  Measures  Relating  to Solar Cells 
and Solar Modules , WT/DS456/AB/R  and Add.1, adopted 
14 October  2016, DSR 2016 : IV, p. 1827 
Japan  – Agricultural  
Products  II Appellate Body Report, Japan  – Measures  Affecting  Agricultural  
Products , WT/DS76/AB/R , adopted 19  March  1999, DSR 1999 : I, p. 277 
Japan  – Alcoholic  
Beverages  II Appellate Body Report, Japan  – Taxes  on Alcoholic  Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 
1 November  1996, DSR 1996 : I, p. 97 
Japan  – DRAMs  (Korea)  Appellate Body Report, Japan  – Countervailing  Duties  on Dynamic  
Random  Access  Memories  from Korea , WT/DS336/AB/R  and Corr.1, 
adopted 17  December  2007, DSR 2007 : VII, p. 2703 
Korea  – Certain  Paper  Panel Report, Korea  – Anti-Dumping  Duties  on Imports  of Certain  Paper  
from Indonesia , WT/DS312/R , adopted 28  November  2005, 
DSR 2005: XXII, p. 10637  
Korea  – Pneuma tic 
Valves  (Japan)  Appellate Body Report, Korea  – Anti-Dumping  Duties  on Pneumatic  
Valves  from Japan , WT/DS504/AB/R  and Add.1, adopted 
30 September  2019 
Korea  – Pneumatic  
Valves (Japan)  Panel Report, Korea  – Anti-Dumping  Duties  on Pneumatic  Valves  from 
Japan , WT/DS504/R  and Add.1, adopted 30  September  2019, as 
modified by Appellate Body Report WT/DS504/AB/R  
Mexico  – Anti-Dumping  
Measures  on Rice Appellate Body Report, Mexico  – Definitive  Anti-Dumping  Measures  on 
Beef and Rice, Complaint  with Respect  to Rice, WT/DS295/AB/R , 
adopted 20  December  2005, DSR 2005 : XXII, p. 10853  
Mexico  – Steel Pipes and 
Tubes  Panel Report, Mexico  – Anti-Dumping  Duties  on Steel Pipes and Tubes  
from Guatemala , WT/DS331/R , adopted 24  July 2007, DSR 2007 : IV, 
p. 1207 
Morocco  – Hot-Rolled  
Steel (Turkey)  Panel Report, Morocco  – Anti-dumping  Measures  on Certain  Hot-Rolled  
Steel from Turkey , WT/DS513/R  and Add.1, adopted 8  January  2020; 
appeal withdrawn by Morocco as reflected in Appellate Body Report 
WT/DS513/AB/R  
Russia  – Commercial  
Vehicles  Appellate Body Report,  Russia  – Anti-Dumping  Duties  on Light 
Commercial  Vehicles  from Germany  and Italy, WT/DS479/AB/R  and 
Add.1, adopted 9  April 2018 
Thailand  – Cigarettes  
(Philippines)  Appellate Body Report, Thailand  – Customs  and Fiscal  Measures  on 
Cigarettes  from the Philippines , WT/DS371/AB/R , adopted 
15 July 2011, DSR 2011 : IV, p. 2203 
Thailand  – H-Beams  Appellate Body Report, Thailand  – Anti-Dumping  Duties  on Angles , 
Shapes  and Sections  of Iron or Non-Alloy Steel and H-Beams  from 
Poland , WT/DS122/AB/R , adopted 5  April 2001, DSR 2001 : VII, 
p. 2701 WT/DS553/R  
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  Short Title  Full Case Title and Citation  
Thailand  – H-Beams  Panel Report, Thailand  – Anti-Dumping  Duties  on Angles , Shapes  and 
Sections  of Iron or Non-Alloy Steel and H-Beams  from Poland , 
WT/DS122/R , adopted 5  April 2001, as modified by Appellate Body 
Report WT/DS122/AB/R, DSR 2001 : VII, p. 2741 
Ukraine  – Ammonium  
Nitrate  Panel Report, Ukraine  – Anti-Dumping  Measures  on Ammonium  Nitrate , 
WT/DS493/R , Add.1 and Corr.1, adopted 30  September  2019, as 
upheld by Appellate Body Report WT/DS493/AB/R  
US – Anti-Dumping  and 
Countervailing  Duties  
(China)  Appellate Body Report, United  States  – Definitive  Anti-Dumping  and 
Countervailing  Duties  on Certain  Products  from China , WT/DS379/AB/R , 
adopted 25  March  2011, DSR 2011 : V, p. 2869 
US – Anti-Dumping  
Measures  on Oil Country  
Tubular  Goods  Appellate Body Report, United  States  – Anti-Dumping  Measures  on Oil 
Country  Tubular  Goods  (OCTG)  from Mexico , WT/DS282/AB/R , adopted 
28 November  2005, DSR 20 05: XX, p. 10127  
US – Carbon  Steel 
(India)   Appellate Body Report, United  States  – Countervailing  Measures  on 
Certain  Hot-Rolled  Carbon  Steel Flat Products  from India, 
WT/DS436/AB/R , adopted 19  December  2014, DSR 2014 : V, p. 1727 
US – Carbon  Steel 
(India)  (Article  21.5 – 
India)  Panel Report, United  States  – Countervailing  Measures  on Certain  Hot-
Rolled  Carbon  Steel Flat Products  from India – Recourse  to Article  21.5 
of the DSU by India, WT/DS436/RW  and Add.1, circulated to 
WTO Members 15  November  2019 [ appealed by the United States 
18 December 2019]  
US – Coated  Paper  
(Indonesia)  Panel Report, United  States  – Anti-Dumping  and Countervailing  
Measures  on Certain  Coated  Paper  from Indonesia , WT/DS491/R  and 
Add.1, adopted 22  January  2018 
US – Corrosion -Resistant  
Steel Sunset  Review  Appellate Body Report, United  States  – Sunset  Review  of Anti-Dumping  
Duties  on Corrosion -Resistant  Carbon  Steel Flat Products  from Japan , 
WT/DS244/AB/R , adopted 9  January  2004, DSR 2004 : I, p. 3 
US – Countervaili ng Duty 
Investigation  on DRAMS  Appellate Body Report, United  States  – Countervailing  Duty 
Investigation  on Dynamic  Random  Access  Memory  Semiconductors  
(DRAMS)  from Korea , WT/DS296/AB/R , adopted 20  July 2005, 
DSR 2005: XVI, p. 8131 
US – Countervailing  
Measures  (China)  Appellate Body Report, United  States  – Countervailing  Duty Measures  
on Certain  Products  from China , WT/DS437/AB/R , adopted 
16 January  2015, DSR 2015 : I, p. 7 
US – Countervailing  
Measures  (China)  
(Article  21.5 – China)  Appellate Body Report, United  States  – Countervailing  Duty Measures  
on Certain  Products  from China  – Recourse  to Article  21.5 of the DSU 
by China , WT/DS437/AB/RW  and Add.1, adopted 15  August  2019 
US – FSC Appellate Body  Report, United  States  – Tax Treatment  for "Foreign  
Sales  Corporations ", WT/DS108/AB/R , adopted 20  March  2000, 
DSR 2000: III, p. 1619 
US – Gasoline  Appellate Body Report, United  States  – Standards  for Reformulated  and 
Conventional  Gasoline , WT/DS2/AB/R , adopted 20  May 1996, 
DSR 1996: I, p. 3 
US – Hot-Rolled  Steel Appellate Body Report, United  States  – Anti-Dumping  Measures  on 
Certain  Hot-Rolled  Steel Products  from Japan , WT/DS184/AB/R , 
adopted 23  August  2001, DSR 2001 : X, p. 4697 
US – Lamb  Appellate Body Report, United  States  – Safeguard  Measures  on Imports  
of Fresh , Chilled  or Frozen  Lamb  Meat from New Zealand  and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16  May 2001, DSR  2001: 
IX, p. 4051 
US – Large  Civil Aircraft  
(2nd complaint)  Panel Report, United  States  – Measures  Affecting  Trade  in Large  Civil 
Aircraft  (Second  Complaint) , WT/DS353/R , adopted 23  March  2012, as 
modified by Appellate Body Report WT/DS353/AB/R, DSR 2012 : II, 
p. 649 WT/DS553/R  
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  Short Title  Full Case Title and Citation  
US – Oil Country  Tubular  
Goods  Sunset  Reviews  Appellate Body Report, United  States  – Sunset  Reviews  of Anti-Dumping  
Measures  on Oil Country  Tubular  Goods  from Argentina , 
WT/DS268/AB/R , adopted 17  December  2004, DSR 2004 : VII, p. 3257 
US – Oil Country  Tubular  
Goods  Sunset  Reviews  
(Article  21.5 – Argentina)  Appellate Body Report, United  States  – Sunset  Reviews  of Anti-Dumping  
Measures  on Oil Country  Tubular  Goods  from Argentina  – Recourse  to 
Article  21.5 of the DSU by Argentina , WT/DS268/AB/RW , adopted 
11 May 200 7, DSR 2007 : IX, p. 3523 
US – Shrimp  II 
(Viet Nam)  Panel Report, United  States  – Anti-Dumping  Measures  on Certain  
Shrimp  from Viet Nam, WT/DS429/R  and Add.1, adopted 22  April 2015, 
upheld by Appellate Body Report WT/DS429/AB/R, DSR 2015 : III, 
p. 1341 
US – Softwood  
Lumber  VI (Article  21.5 – 
Canada)  Appellate Body Report, United  States  – Investigation  of the 
International  Trade  Commission  in Softwood  Lumber  from Canada  – 
Recourse  to Article  21.5 of the DSU by Canada , WT/DS277/AB/RW , 
adopted 9  May 2006, and Corr.1, DSR 2006 : XI, p. 4865 
US – Steel Safeguards  Appellate Body Report, United  States  – Definitive  Safeguard  Measures  
on Imports  of Certain  Steel Products , WT/DS248/AB/R , 
WT/DS249/AB/R , WT/DS251/AB/R , WT/DS252/AB/R , 
WT/DS253/AB/R , WT/DS254/AB/R , WT/DS258/AB/R , 
WT/DS259/AB/R , adopted 10  December  2003, DSR 2003 : VII, p. 3117 
US – Tyres  (China)  Appellate Body Report, United  States  – Measures  Affecting  Imports  of 
Certain  Passenger  Vehicle  and Light Truck  Tyres  from China , 
WT/DS399/AB/R , adopted 5  October  2011, DSR 2011 : IX, p. 4811 
US – Washing  Machines  Appellate Body Report,  United  States  – Anti-Dumping  and 
Countervailing  Measures  on Large  Residential  Washers  from Korea , 
WT/DS464/AB/R  and Add.1, adopted 26  September  2016, 
DSR 2016: V, p. 2275 
US – Washing  Machines  Panel Report, United  States  – Anti-Dumping  and Countervailing  
Measures  on Large  Residential  Washers  from Korea , WT/DS464/R  and 
Add.1, adopted 26  September  2016, as modified by Appellate Bod y 
Report WT/DS464/AB/R, DSR 2016 : V, p. 2505 
US – Wheat  Gluten  Appellate Body Report, United  States  – Definitive  Safeguard  Measures  
on Imports  of Wheat  Gluten  from the European  Communities , 
WT/DS166/AB/R , adopted 19  January  2001, DSR 2001 : II, p. 717 
US – Wool Shirts  and 
Blouses  Appellate Body Report, United  States  – Measure  Affecting  Imports  of 
Woven  Wool Shirts  and Blouses  from India, WT/DS33/AB/R , adopted 
23 May 1997, and Corr.1, DSR 1997 : I, p. 323 
 WT/DS553/R  
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  EXHIBITS REFERRED TO IN THIS REPORT  
Exhibit  Short Title (if any)  Description  
JPN-1.b OTI's revised interim report  OTI, Interim report regarding the sunset review of 
anti-dumping duties on Japanese, Indian, and 
Spanish stainless steel bars  (revised after public 
hearing ) (February 2017)  
JPN-2.b (redacted)  
KOR-4.b (BCI)  KTC's final resolution  KTC, Final resolution regarding the sunset review of 
anti-dumping duties on Japanese, Indian, and 
Spanish stainless steel bars (17 March 2017)  
JPN-3.b (redacted ) 
KOR-5.b (BCI) / 
KOR-5.c (BCI)  OTI's final report  OTI, Final report regarding the sunset review of 
anti-dumping duties on Japanese, Indian, and 
Spanish stainless steel bars (March 2017)  
JPN-4.b Application  Application for the sunset review of anti -dumping 
duties on Japanese, Indian, and Spanish stainless 
steel bars (29 March  2016)  
JPN-7.b (BCI)  Sanyo quest ionnaire response  Sanyo, respondent 's response in relation to sunset 
review on stainless steel bars from Japan, India, 
and Spain (21  July 2016)  
JPN-8.b (BCI)  Aichi questionnaire response  Aichi, response to anti -dumping inquiry 
(Case  No. Guje23 -2016-4) (27 July 2016)  
JPN-9.b (BCI)  Daido questionnaire response  Daido, respondent 's response in relation to sunset 
review on stainless steel bars from Japan, India, 
and Spain (27  July 2016)  
JPN-10.b (BCI)  Japanese exporters ' opinion 
regarding injuries  Submission of opinion regarding injuries to the 
industry related to the sunset review of 
anti-dumping measures against Japanese stainless 
steel bars (31  August  2016)  
JPN-11.b Rebuttal opinion of the 
applicants  Rebuttal opinion of the applicants for the review 
against the industrial injury opinion of the Japanese 
companies subject to the review 
(4 November  2016)  
JPN-12.b Consumer 's summary of the 
statement at public hearing  Summary Statement dated 7  November  2016 of 
Consumer at public hearing  
JPN-13.b (BCI)  Japanese exporters ' opinion 
regarding applicants ' rebuttal  Submission of exporters ' opinion regarding 
applicants ' rebuttal regarding injuries to the 
industry arising from stainless steel bars from 
Japan, India, and Spain (23  November 2016)  
JPN-15.b Applicants ' statement of 
opinion after the public hearing  Statement dated 8  December  2016 of the applicants 
after the public hearing  
JPN-16.b (BCI)  Japanese 
exporters ' post-hearing opinion  Written opinion after the public hearing for the 
three  Japanese exporters (8  December  2016)  
JPN-17.b (BCI)  Japanese exporters ' response 
to KTC 's additional inquiries  Japanese exporters, response to additional inquiries 
of the KTC (20  January 2017)  
JPN-18.b Japanese exporters ' opinion 
regarding OTI 's revised 
interim  report  Submission of opinion of Japanese  manufacturers 
on the revised interim report following public 
hearing regarding sunset review of the 
anti-dumping measures on stainless steel bars from 
Japan, India, and Spain (8  Febru ary 2017)  
JPN-21.b KTC's notification of final 
determination  KTC's notification of final determination on the 
sunset review of anti -dumping duties on stainless 
steel bars from Japan, India, and Spain 
(3 April 2017)  
JPN-24.b Ordinance No. 624 and 
Public  Notice No. 2017 -86 Ministry of Strategy and Finance, Ordinance No. 624 
and Public Notice No. 2017 -86 (2  June 2017)  
JPN-28.a USITC 's fourth review into 
stainless steel bar  USITC, Stainless steel bar from Brazil, India, Japan, 
and Spain :  Investigation Nos. 731 -TA-678, 679, 
681 and 682 (fourth review ) (September 2018)  
JPN-30.b (BCI)  Email reporting the meeting 
dated 21  September  2016 Email dated 21  September  2016 from Kim & Chang 
to the Japanese exporters reporting the meeting 
with KTC (21 September  2016) 
JPN-39  Japan 's rebuttals to Exhibit KOR -35 
JPN-41.b Guideline on the scope of the 
product under investigation  KTC, Guideline on the scope of the product under 
investigation related to section C -1 of the 
questionnaire (3  June 2016)  
JPN-44  Japan 's correction to Exhibit KOR -82 
KOR-8 ISO stainless steel grade 
comparability table s ISO stainless steel grade comparability table s in 
Ugitech , "Key to steel " (2010) , p. 505 WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 11 - 
 
  Exhibit  Short Title (if any)  Description  
KOR-9.b (BCI)  OTI's final report (original 
investigation)  OTI, Final report on dumping and injury to the 
domestic industry by the stainless steel bars 
originating from Japan, India, and Spain 
(30 June 2004)  
KOR-11 (BCI)  OTI's final report 
(second  sunset review)  OTI, Final report for the sunset review of 
anti-dumping duties on stainless steel bars 
originating from Japan, India, and Spain and price 
undertaking (24  July 2009)  
KOR-13 USITC report ( first review)  USITC, Stainless steel bars from Brazil, India, 
Japan , and Spain,  Investigation Nos. 731 -TA-678-
679 and  681-682, Publication No. 3404 
(March  2001)  
KOR-14 USITC report ( second review)  USITC, Stainless steel bars from Brazil, India, 
Japan , and Spain,  Investigation Nos. 731 -TA-678-
679 and 681 -682, Publication No. 3895 
(January  2007)  
KOR-17 KS specification  KS specification of stainless steel bar products  
KOR-18 JIS specification  JIS specification of stainless steel bar products  
KOR-19.b (BCI)  Minutes of public hearing 
(24 November 2016)  KTC and interested parties, minutes of public 
hearing dated 24  November 2016  
KOR-20-b (BCI)  ISSF statistics  ISSF public realm data stainless steel capacity 
archive  
KOR-21 ISSF Website profile page  ISSF Website profile page, available   
KOR-22 JSSA Website members page  JSSA Website members page  
KOR-24 USITC report (original 
investigation)  USITC, Stainless steel bar from Brazil, India, Japan, 
and Spain,  Investigation Nos. 731 -TA-678, 679, 
681, and 682, Publication No.  2856 (February 1995)  
KOR-25.b (BCI)  Japanese 
exporters ' submission of 
opinion dated 
7 November  2016 Japanese exporters, submission of response to 
supplementary questionnaires regarding the opinion 
on industrial injury caused by stainless steel bars 
from Japan, India , and Spain (7 November 2016)  
KOR-26.b (BCI)  Minutes of meeting dated 
21 September  2016 OTI and Japanese exporters, minutes of the 
meeting dated 21 September 2016  
KOR-27.b (BCI)  Official log of investigation  Official log of investigation of the third sunset 
review  
KOR-34.b  Article  15 of the Enforcement Rules of the Customs 
Act of Korea  
KOR-35  Korea 's response to Japan 's Article  6.5.1 allegations  
KOR-37 OTI import statistics  Compilation of import statistics presented in the 
OTI's final reports in the original investigation, first , 
second , and third sunset reviews  
KOR-40 (BCI)  Excerpt of 
applicants ' statement of 
opinion after the public hearing  Applicants ' statement of opinion after the public 
hearin g, (Exhibit  JPN-15.b, pp.1 -2) 
KOR-41.b (BCI)  Korea 's response to the 
Panel 's Article  13 of the DSU  
information request  Appendix 1 of information request under Article  13 
of the DSU (statistics on general -purpose steels and 
special steels originating from Japan, India, Spain, 
China, Chinese Taipei, Italy, and other countries )  
KOR-43.b Import Clearance Matrix  Korean Custom s Service Import Clearance Matrix  
KOR-48.b (BCI)  KTC's submission of review 
to MOSF  KTC, Submission of review to MOSF  (1 May 2017)  
KOR-51 Translation of the JSSA 
Website members page  Translation of JSSA Website Members Page (full 
translation of exhibit KOR-22.a)  
KOR-52 Sanyo and Aichi catalogues  Catalogues of the Sanyo and Aichi manufacturing 
process of relevant steel products  
KOR-53 Websites of Yamashin, Kansai, 
and Tohoku  Websites of other Japanese producers (Yamashin, 
Kansai, and Tohoku)  
KOR-56 (BCI)  Purchase order  Purchase order of a domestic consumer  
KOR-57  Explanation on ISSF statistics methodology  
KOR-58  Commentary on HS code classification  
KOR-62 High adaptability of secondary 
processing facilities  High adaptability of secondary processing facilities 
for various steel products, including stainless steel  
KOR-64  Atlas steels stainless steel grade database  
KOR-68 (BCI)  More purchase order examples  More purchase order examples showing that orders 
are placed on the basis of grade specifications  
KOR-72.b (BCI)  Injury questionnaire response  SeAH  Special Steel Co., Ltd., response from 
domestic producer (29 July 2016)  
KOR-82 (BCI)   Korea 's response to Exhibit JPN -39 
 WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 12 - 
 
  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
Aichi Aichi Steel Corporation  
Daido  Daido Steel Corporation  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT 1994  General  Agreement  on Tariffs and Trade 1994  
ISSF International Stainless Steel Forum  
Japanese respondents ; 
Japanese exporters  Aichi, Daido, and Sanyo  
JSSA Japan 's Stainless Steel Association  
KIA Korean investigating authorit ies 
KITA Korea International Trade Association  
KRW Korean Won  
KTC Korea Trade Commission  
OTI Office of Trade Investigation  
POR period of review  
Sanyo  Sanyo Special Steel Corporation  
SSB stainless steel bar  
USITC  United States  International Trade Commission  
Vienna Convention  Vienna Convention on the Law of Treaties  
WTO World Trade Organization  WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 13 - 
 
  1  INTRODUCTION  
1.1  Complaint by Japan  
1.1.  On 18  June 2018, Japan requested consultations with Korea pursuant to Articles  1 and 4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article  XXIII :1 
of the General  Agreement  on Tari ffs and Trade 1994 ( GATT 1994 ), and Articles  17.2 and 17.3 of 
the Agreement  on Implementation of Article  VI of the General  Agreement  on Tariffs and Trade 1994 
(Anti-Dumping  Agreement ), with respect to the measures and claims set out below.1 
1.2.  Consultations were held on 13  August  2018, but failed to resolve the dispute.  
1.2  Panel establishment and composition  
1.3.  On 13  September  2018, Japan requested the establishment of a panel pursuant to Articles  4.7 
and 6 of the DSU, Article  XXIII of the GATT 1994, and Article  17.4 of the Anti -Dumping  Agreement .2 
At its meeting on 29  October  2018, the Dispute Settlement Body (DSB ) established a panel pursuant 
to the request of Japan in document WT/DS 553/2 , in accordance with Article  6 of the DSU.  
1.4.  The Panel 's terms of reference ar e the following :  
To examine, in the light of the relevant provisions of the covered  Agreement s cited by 
the parties to the dispute, the matter referred to the DSB by Japan in document 
WT/DS553/2 and to make such findings as will assist the DSB in making t he 
recommendations or in giving the rulings provided for in those  Agreement s.3 
1.5.  On 14 January  2019, Japan requested the Director -General to determine the composition of 
the Panel, pursuant to Article  8.7 of the DSU . On 21  January  2019, the Director -General accordingly 
composed the Panel as follows :  
Chairperson :  Ms Elaine Feldman  
Members :   Ms Ana Teresa Caetano  
   Mr Justin Wickes  
1.6.  China, the European Union, India, Kazakhstan, the Russian Federation, Chinese Taipei, and the 
United  States  notified th eir interest in participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures4, Additional 
Working Procedures on Business Confidential Information5, and timetable on 23  April 2019. The 
timetable was subsequently updated and revised as appropriate during the proceedings.  
1.8.  The Panel held a first substantive meeting with the parties on 9 and 10  September  2019. A 
session with the third parties took place on 10  September  2019. The Panel held a second substantive 
meeting with the parties on 17 and 18  December  2019. On 17  March  2020, the Panel issued the 
descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 
29 June 202 0. The Panel issued its Final Report to the parties on 21 October 2020 . 
 
1 Request for consultations by Japan, WT/DS553/1 (Japan's  consultations request ). 
2 Request for the establishment of a panel by Japan, WT/DS553/2  (Japan's  panel request) . 
3 Constitution note of the Panel, WT/DS5 53/3. 
4 See the Panel's  Working Procedures in Annex A -1. 
5 See the Panel's  Additional Working Procedures on Business Confidentia l Information  in Annex  A-2. WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 14 - 
 
  1.9.  In its first written submission, Korea made a request for certain preliminary rulings pursuant 
to Article  6.2 of the DSU. On 21  October  2019, the Panel informed the parties that it wou ld defer 
making rulings based on Korea 's request until the issuance of its Report to the parties.6 
2  FACTUAL ASPECTS  
2.1  The measures at issue7 
2.1.  Japan 's challenge  concerns the third sunset review by the  Korean investigating authorit y 
(KIA) of anti-dumping duties on certain stainless steel bars (SSB ) from Japan , namely :  
Korea 's measures to continue the imposition of anti -dumping duties on stainless steel 
bars from Japan is set forth in the Korea Trade Commission 's ("KTC" ) "Resolution of 
Final Determ ination on the Sunset Review of Anti -Dumping Duties on Stainless Steel 
Bars from Japan, India and Spain" ("Resolution of Final Determination" ) and in the 
Office of Trade Investigation 's "Final Report on the Sunset Review of Anti -Dumping 
Duties on Stainless  Steel Bars from Japan, India and Spain" ("Final Report" ) with 
respect to Investigation Trade Remedy 23 -2016-3, both dated 20  March  2017, including 
any and all annexes and amendments thereto .[2]8 
2 This determination in the third sunset review is identifi ed in Korea 's notification 
G/ADP/N/300/KOR dated 17 August 2017.  
For the sake of completeness, the measures include the Office of Trade Investigation 's "Preliminary 
Report regarding the Sunset Review of Anti -Dumping Duties on Japanese, Indian, and Spanish 
Stainless  Steel Bar (Amended after Public Hearing)" ("Preliminary Report" ) dated 1 February 2017, 
to the extent it is referred to in paragraph 4 below . 
3  PARTIES ' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  Japan requests that the Panel find that :  
a. The KIA 's determination that the expiry of the anti-dumping duties would be likely to lead 
to recurrence of injury  is inconsistent with Article  11.3 of the Anti -Dumping  Agreement  
because the determination (including the finding of a causal nexus between the expir y of 
the duties and the likelihood of injury, if any ) does not rest on a sufficient factual basis 
and reasoned and adequate conclusions, due to the following specific reasons individually 
and collectively :  
i. the use of a cumulative assessment of the effects  of the imports from Japan, India , 
and Spain was not based on positive evidence and an objective examination , because 
the KIA did not examine the competitive relationships or market interactions among 
the alleged dumped imports from Japan, on one hand, and  the domestic like products 
and the dumped imports from India, on the other hand ;  
ii. factors other than dumping that may lead to the likelihood of injury (in particular, the 
third-country imports, the material costs, and the weak demand in the domestic and 
export markets ) were not examined in the analysis of likelihood of injury, despite the 
 
6 Clause 4(1)(b)  of the Working Procedures provides:  "[t]he Panel may issue a preliminary ruling on the 
issues raised in such a preliminary ruling request before, during or after the first substantive meeting , or the 
Panel may defer a  ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties. " 
7 For the avoidance of doubt, this description is based on Japan's  panel request setting forth the 
Panel's  terms of reference (WT/DS553/2), and is without prejudice to the Panel's  resolution of Korea's  request 
for preliminary rulings under Article  6.2 of the DSU. These objections are addressed in section  7.1. 
8 Japan's  panel request, p.  1. In its first written submission, Japan sought to correct certain errors 
concerning the dates referenced in this extract from its panel request, as follows:  
In the consultation and panel requests, Japan described the date  of OTI's  Final Report as 
"20 March  2017"; the actual date noted on the report is "March 2017".  
… 
In the consultation and panel requests, Japan described the date of KTC's  Resolution of Final 
Determination as "20  March  2017"; the actual date noted on the r eport is "17 March 2017".  
(Japan's  first written submission, fns 14 and 20)  WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 15 - 
 
  fact that the KIA itself recognized that they had effects on the current actual injury to 
the domestic industry ;  
iii. the volume and price effect analyses relied upon in the determination are not reasoned 
and adequate since (a ) these analyses failed to examine the conditions of competition 
among the relevant products, the other factors, and the incentive for the Japanese 
exporters to export the product under investigation;  and (b ) the evaluation of specific 
data is biased and unreasonable; and  
iv. the finding that Japan 's SSB sector had sufficient additional production capacity for 
exports  cannot by itself support the determination of likelihood of injury, unless the 
competitiv e relationships among the imports from Japan and India and the 
domestic  like products are examined, and is based on the International Stainless Steel 
Forum (ISSF ) data that is less accurate and reliable than the production capacity data 
that the three Japa nese exporters themselves submitted.  
b. The likelihood -of-injury determination is inconsistent with Article  VI:6(a) of the 
GATT  1994, because Korea is levying the anti -dumping duties without establishing that 
the effect of the dumpin g is such as to cause or threaten material injury to an established 
domestic industry  due to the reasons set out in paragraphs 3.1(a)(i)-(iv). 
c. With respect to the KIA 's recour se to facts available  by using the ISSF data  instead of the 
data submitted by the three Japanese exporters regarding the production capacity of the 
industry in Japan , the KIA acted inconsistently with :  
i. Articles  11.4 and 6.8 and paragraph  3 of Annex II to the A nti-Dumping  Agreement  
because the KIA adopted the ISSF data even though the data submitted by the 
Japanese exporters were verifiable, were  appropriately submitted so that they  could 
be used in the investigation wi thout undue difficulties, and were  supplied in a timely 
fashion ; and 
ii. Articles  11.4 and 6.8 and paragraph 7  of Annex II to the A nti-Dumping  Agreement  
because the KIA relied upon  information from a secondary source regarding the 
production capacity of Japanese exporters without special circu mspection . 
d. The KIA acted inconsistently with :  
i. Articles  11.4 and 6.5 of the A nti-Dumping  Agreement  with respect to its treatment of 
information provided by the applicants  as confidential information without requiring 
that good cause be shown ; and  
ii. Articles  11.4 and 6.5.1 of the A nti-Dumping  Agreement  with respect to its failure to 
(a) require the applicants to furnish non -confidential summaries of their submissions, 
questionnaire responses, and amendments thereof ; and (b) irrespective of whether 
such summari es have been provided, require that such summaries be in sufficient  
detail to permit a reasonable understan ding of the substance of the information 
submitted in confidence . 
e. The KIA acted inconsistently with Articles  11.4 and 6.9 of the A nti-Dumping  Agreeme nt 
with respect to its failure to inform all interested parties of the essential facts under 
consideration that formed the basis for the decision to extend the anti -dumping duties . 
f. The KIA acted inconsistently with Articles  12.2, 12.2.2 , and 12.3 of the 
Anti-Dumping  Agreement  with respect to its failure to provide , in sufficient detail , the 
findings and conclusions reached on all issues of fact and law that it considered material, 
as well as all relevant information on the matters of fact , law, and reason ing that led to 
the sunset review determination .9 
 
9 Japan's  second written submission, para.  584. WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 16 - 
 
  3.2.  Japan further requests, pursuant to Article  19.1 of the DSU, that the Panel recommend that 
Korea bring its measures into conformity with its WTO obligations.10 
3.3.  Korea requests that the Panel reject Japan 's claims in this dispute in their entirety.  As 
mentioned above, Korea also requests the Panel to find that Japan 's claims are not properly before 
the Panel under Article  6.2 of the DSU.11 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annexes B -1, 
B-2, B-3, and B -4). 
5  ARGUMENTS OF THE THIRD PARTIES  
5.1.  The arguments of the United  States  and the European Union a re reflected in their 
executive  summaries, provided in accordance with paragraph 26 of the Working Procedures adopted 
by the Panel (see Annexes C -1 and C -2). The other third parties did not submit written or oral 
arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  On 29 June 2020, the Panel issued its Interim Report to the parties.  On 13  July 2020, Japan 
and Korea each submitted written requests for the review of precise aspects of the Interim Report. 
Neither party requested an interim review meeting. On 27  July 2020, both parties submitted 
comments on each other's requests for review. The Panel's discussion and disposition of the 
parties'  submissions related to the interim review are set out in Annex A -3. 
7  FINDINGS  
7.1  Terms of reference : Korea 's request for a preliminary ruling  
7.1.  We begin with the initial question concerning Korea 's objections as to whether Japan 's claims 
are properly before the Panel under Article  6.2 of the DSU. Korea claims that Japan 's request for the 
establishment of a panel (panel request ) is inconsistent with  the requirements of Article  6.2 of the 
DSU and Article  17.4 of the Anti -Dumping  Agreement  because it fails to identify the specific measure  
challenged .12 
7.2.  Korea further claims that the inclusion of certain matters in Japan 's panel reque st and 
first written submission is inconsistent with Articles  4.4 and 6.2 of the DSU and Article  17.3 of the 
Anti-Dumping  Agreement .13 In particular, Korea argues :  
a. in relation to claim 3 of the panel request, that Japan failed to link claim 3 to the particular 
circumstances of the investigation at issue14;  
b. in relation to c laims 1(b), 1(d), 5(b), and 5(c ) of the panel request, that Japan unduly 
expanded the scope of the dispute beyond what had been included in Japan 's request for 
consultations ( consul tations request )15; and  
c. in relation to claims 1, 4, and 5 of the panel request, that Japan 's first written submission 
unduly expanded the scope of the dispute beyond what had been included in its panel 
request .16 
 
10 Japan's  first written submission, para.  389. 
11 See para.  1.9 above and section  7.1 below.  
12 Korea's  first written submission, paras.  8-16 and 28.  
13 Korea's  first written submission, paras.  17-26. 
14 Korea's  first written submission, para.  22. 
15 Korea's  first written submission, paras.  17-20. 
16 Korea 's first written submission , paras.  21 and 23-26. WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 17 - 
 
  7.3.  Korea first made a request under Article  6.2 of the DSU in its first written submission.17 
Although there was no explicit mention of clause 4.1 of the Working Procedures, the Panel afforded 
Korea the opportunity to clarify whether it intended to follow the procedures pursuant to clause 4.1 
at the f irst substantive meeting.18 Korea confirmed that it  did indeed intend for the procedures under 
clause 4.1  of the Working Procedures to be applied. Accordingly, upon affording an opportunity to 
the parties to comment, the Panel announced that , in accordance  with clause 4.1 of the Working 
Procedures , it would set 24  September  2019 as the date for Japan to submit a response to 
Korea 's request for a preliminary ruling, and 1  October  2019 for Korea to respond, with 8  October 
for Japan 's comments on Korea 's response. At the third -party session on 10  September  2019,  the 
Panel informed the third parties of this approach and gave the third parties an opportunity to 
comment. On 21 October  2019, the Panel conveyed to the parties that  it would  defer its ruling on 
the issues raised by Korea 's preliminary ruling requests until the issuance  of its Report to the 
partie s.19 
7.1.1   Whether  Japan fail ed to identify the measure at issue in its panel request  
7.4.  Korea claims that Japan 's panel request failed to identify the measure at issue as required by 
Article  17.4 of the Anti -Dumping  Agreement  and Article  6.2 of the DSU.20 Korea argues that a 
dispute concerning compliance with the Anti -Dumping  Agreement  can only be based on a challenge 
to the three categories of measures identified in Article  17.4 of the Anti -Dumping  Agreement .21 
These three measures are : a definitive anti -dumping duty, the acceptance of a price undertaking, 
or a provisional measure.22 Korea argues that Japan  fails to meet this requirement as the panel 
request only refers to relevant sunset review determinations .23 Japan responds that the panel 
request identified the definitive anti -dumping duties levied  by Korea as constituting the specific 
measures at issue.24  
7.5.  Article  6.2 of the DSU requires that a panel request identify the specific measure at issue in a 
dispute.  As noted by Korea, Article  17.4 provides for challenges regarding, inter alia, the imposition 
of definitive anti -dumping duties. Japan 's panel request identifies the challenged measure as the 
continued "imposition of anti -dumping duties on stainless steel bars" as set forth in the 
KTC's resolution of final determination  and Office of Trade Investigation ( OTI)'s final report , both  
dated 20  March  2017.25 Japan 's panel request further identifies the measure referred to as the 
third sunset review  contained  in Korea 's notification G/ADP/N/300/KOR dated 17  August  2017, 
which in turns refers to the "[d]efinitive [d]uty" .26 Accordingly, Japan 's panel req uest adequately 
identifies the definitive anti -dumping duty at issue as required by Article  6.2 of the DSU  and 
Article  17.4 of the Anti -Dumping  Agreement . Korea 's claim thus fails.27 
 
17 Korea's  first written submission, paras.  8-28. 
18 This followed a letter from Japan to the Panel dated 2 September 2019 inquiring into whether Korea 
intended for the procedures under clause 4.1 of the Working Procedures to be applied . 
19 We also note that, in response to Korea's  comments on Japan 's respons es to questions from the Panel  
(dated 3 February 2020), Japan requested the opportunity to make a submission on a matter that had been 
raised by Korea concerning the Panel's  jurisdiction (dated 10 February 2020). Korea objected to 
Japan's  request, and note d inter alia  that "there is nothing 'new ' about the argument reflected in 
Korea 's comments on the replies of Japan"  (dated 12 February 2020). With this understanding of 
Korea's  argument in mind, and in light of the proper timing and nature of the arguments  to be submitted at the 
various stages of the proceedings  as provided for in the  Working Procedures , the Panel declined 
Japan's  request.   
20 Korea's  first written submission, para.  12; opening statement at the first meeting of the Panel, 
para. 5. 
21 Korea 's first written submission , paras.  14-15 (quoting Appellate  Body Report , Guatemala  – 
Cement  I, para.  79). 
22 Korea 's first written submission , paras.  14-15. 
23 Korea's  first written submission, para.  15.  
24 Japan's  response to Korea's  preliminary ruling request, paras.  6-7 and 10 -11; response to 
Korea's  comments on Korea's  preliminary ruling request, paras.  2-10. 
25 Japan's  panel request, p.  1.  
26 Japan's  panel request, fn 2.  
27 We note that Korea also appears  to argue that Japan 's claim fails to meet the requirements of 
Article  6.2 because it refers to both the final and preliminary sunset review determinations.  
(Korea 's first written submission, para. 12). Korea 's argument fails as it is clear that the subjec t of the 
challenge is the continued imposition of anti-dumping duties on SSBs. WT/DS553/R  
BCI deleted, as indicated [[***]]  
- 18 - 
 
  7.1.2   Whether  Japan fail ed to identify the confidentiality claims with sufficient precision 
in its panel request  
7.6.  Korea claims that claim 3 of Japan 's panel request concerning confidentiality under Articles  6.5, 
6.5.1 , and 11.4 of the Anti -Dumping  Agreement  failed to present the legal basis of 
Japan 's complaint. In particular, Korea argues that claim 3 of Japan 's panel request merely 
paraphrases Articles  6.5 and 6.5.1 of the Anti -Dumping  Agreement , and is not linked to any 
particulars of Korea 's third sunset  review.28 Japan responds that claim 3 of its panel request connects 
the alleged breaches of Articles  6.5 and 6.5.1 of the Anti -Dumping  Agreement  with the measure at 
issue.29  
7.7.  Article  6.2 of the DSU requires that a panel request provide a brief summary of the legal basis 
of the complaint sufficient to present the problem clearly. Claim 3 of Japan 's panel request puts 
forward the legal basis of Japan 's claims concerning confidentiality with sufficient precision to 
present the problem clearly. First, Japan 's panel request clearly identifies Articles  6.5 and 6.5.1 as 
the provisions that were allegedly breached. Second, the panel request indicates which components 
of the measure at issue are involved in the alleged breach, being the KIA's treatment of certain 
information as confidential and the KIA's alleged failure to ensure the provision of sufficiently 
detailed non -confidential summaries. Third, the text of Articles  6.5 and 6.5.1 provide for clear legal 
obligations that are alleged to have been breached by the  challenged  aspects of the measure at 
issue. This information is sufficient to present the problem clearly as required by Article  6.2. 
Korea 's argument thus fails.30 
7.1.3   Whether  Japan 's panel request unduly expand ed the scope of the dispute beyond 
what was included in the consultations request  
7.8.  As noted above, Korea contends  that claims 1(b), 1(d ), 5(b), and 5(c) of Japan 's panel request 
unduly expand the scope of the dispute beyond what had been included in the consu ltations 
request.31 Korea argues  that claims 1(b), 1(d), 5(b), and 5(c) concern matters for which no proper 
consultations were held, in violation of Articles  4.4 and 6.2 of the DSU and Article  17.3 of the 
Anti-Dumping  Agreement .32 Japan responds that claims 1(b), 1(d ), and 5 of its panel request merely 
clarify and further specify issues raised in the consultations request, and do not change or expand 
the scope of Japan 's complaint.33 
7.9.  We note that it is well established that the legal basis for a complaint in a panel request may 
reasonably evolve from the consultations request, although the addition of new aspects to a panel 
request should not have the effect of changing the essence of the complaint as set out in the 
consultations request.34 
7.10.   In res pect of claim 1(b), Korea argues that Japan added two novel items to the list of factors 
alleged by Japan to have been inadequately considered by the KIA  in determining that the expiry of 
duties on SSBs would be likely to lead to continuation or recurrence  of injury to the domestic industry 
under Article  11.3 of the Anti -Dumping  Agreement .35 The essence of claim 1(b ) is the alleged failure 
of the KIA to assess factors other than the Japanese imports that may have caused injury to the 
domestic industry  irrespective of the expiry of the anti -dumping duties.36 We consider that the 
additional two factors are further specifications of this claim , which could reasonably be said to flow 
 
28 Korea's  first written submission, para.  22. 
29 Japan's  response to Korea's  preliminary ruling request, para.  36. 
30 We note that the Appellate  Body reached the same conclusion i n respect of a substantially similar 
matter. (Appellate  Body Report, Korea – Pneumatic Valves  (Japan) , paras.  5.370 -5.385).  
31 Korea's  first written submission, paras.  17-20. 
32 Korea's  first written submission, paras.  17-18. 
33 Japan's  response to Korea's  preliminary ruling request, para.  16. 
34 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
35 Japan added:  1(b)(ii ) "the decline of the sales price of such  imports "; and 1(b)(v ) "the continuing 
trend of decrease in the volume of exports by the domestic industry and the ratio of the export volume to the 
total volume of sales by the domestic industry ". (Japan's  panel request, p.  2). The consultation request on ly 
identified " the growing volume and market share of the imports of SSB from third countries ", "the declining  
material costs " and " the continuing trend of slow growth in domestic demand ". (Japan's  consultations request, 
p. 2). 
36 Japan's  consultations requ est, p.  2; panel request, p.  2. WT/DS553/R  
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  from a natural evolution of the consultation process.37 We thus find the additi on of these two items 
does not change the essence of the complaint as set out in the consultations request.38 
7.11.   In respect of claim 1(d), Korea alleges that Japan added novel concerns and improperly 
elaborated its claims through the addition of subsections 1 (d)(i) and 1(d)(ii).39 The essence of 
claim 1(d) is the alleged failure of the KIA to establish that the expiry of the anti-dumping duties 
was likely to lead to an increase of imports from Japan.  Claim 1(d ) in Japan 's consultations request  
and panel request  is directed at linking the expiry of the anti-dumping duties with the continuation 
or recurrence of dumping  and injury as required under Article  11.3 of the 
Anti-Dumping  Agreement .40 Claim 1(d ) in Japan 's panel request added an element concerning th e 
impact of an increase in Japanese imports on the domestic industry. The consultations request  
already referred to the effects of increased imports from Japan by stating that Korea had failed to 
demonstrate how such imports could affect imports of SSBs fr om other countries and domestically 
produced SSBs .41 We thus consider the modifications in the panel request to be a further clarification 
of the claims in the consultations request , and to reflect a natural evolution of the consultation 
process. Further, subsections 1(d)(i ) and 1(d)(ii ) simply restructure information already contained 
in the consultations request and thus do not change the essence of the complaint.   
7.12.   Finally, Korea argues in respect of claim 5 that Japan added two additional items.42 The 
essence of claim 5 is the alleged failure of the KIA to provide, in sufficient detail, public notice of the 
findings and conclusions reached by the investigating authority on all issues of fact and law as 
required under Articles  12.2, 12.2.2 , and 12.3 of the  Anti-Dumping  Agreement .43 In both its 
consultations request and panel request, Japan identified certain matters for which Korea allegedly 
failed to meet its obligations under Articles  12.2, 12.2.2, and 12.3 of the Anti -Dumping  Agreement . 
We find that the two additional items in th e panel request simply support the claim under 
Articles  12.2, 12.2.2, and 12.3 and do not change the essence of the dispute as set out in the 
consultations request.  Korea 's claim on the foregoing points thus fails.  
7.1.4   Whether  Japan 's first written submission unduly expand ed the scope of the dispute 
beyond what was included in the panel request  
7.13.   Korea claims that Japan 's first written submission unduly expands the scope of the dispute as 
set out in the panel request.44 First, in relation to Japan 's arguments under Article  11.3 of the 
Anti-Dumping  Agreement , Korea argues that Japan "abruptly changed its position" in its first written 
submission by introducing arguments that a "causal nexus" should be established between the expiry 
of the anti -dumping duties and the continuation or recurrence of dumping.45 Second, Korea argues 
that Japan 's references to "dumping" in the claims made under Articles  6.9 and 12 of the 
Anti-Dumping  Agreement  in its first written submissions fal l outside the scope of claims 4 and 5 of 
the panel request .46  
7.14.   In relation to Korea 's first argument, Japan responds that it has not raised a separate claim 
with regard to Korea 's determination on the likelihood of recurrence of dumping as being inconsiste nt 
with Article  11.3 of the Anti -Dumping  Agreement .47 A review of Japan 's first written submission 
makes clear that Japan 's "causal nexus" arguments are related to and support Japan 's claims that 
the determination of the likelihood of recurrence of injury is inconsistent with Article  11.3 of the 
 
37 Appellate  Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
38 This is consistent with a substantially similar finding by the Appellate  Body in Korea – Pneumatic 
Valves  (paras.  5.99 and 5.108).  
39 Korea's  first written submission, para.  18. 
40 Appellate  Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 108. 
41 Japan's  consultations request, p.  2. 
42 Japan added in the panel request the following two  items:  5(b) "the finding of additional production 
capacity, and the capacity for exports, of foreign producers including those in Japan"; and 5(c)  "the finding of a 
nexus between the expiry of the duties and a continuation or recurrence of dumping and inj ury by imports 
under review, despite acknowledging the impact of other known factors on the domestic industry". 
(Japan's  panel request, p.  3). 
43 Japan's  response to Korea's  preliminary ruling request, para.  20. 
44 Korea's  first written submission, paras.  21 and 23-26. 
45 Korea's  first written submission, para.  21. 
46 Korea's  first written submission, paras.  23-26. 
47 Japan's  response to Korea's  preliminary ruling request, para.  27. WT/DS553/R  
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  Anti-Dumping  Agreement . As this claim was clearly established in Japan 's panel request, Japan did 
not improperly introduce arguments relating to a "casual nexus" in its first writt en submission.  
7.15.   In relation to Korea 's second argument, Japan notes that contrary to Korea 's arguments , the 
wording in Japan 's panel request does not limit the scope of claims 4 and 5 to the determination of 
the likelihood of "injury".48 We agree with Japan , and consider Korea 's allegations to be based on 
the flawed premise that there was no reference to "dumping" in claims 4 and 5 of the panel request. 
Claim 4 plainly refers to "the continuation or recurrence of dumping  and injury". Claim 5 refers to 
suffic ient public notice of matters of fact and law leading to the "sunset review determination", which 
necessarily entails a review of whether the expiry of the duties would lead to the recurrence or 
continuation of dumping and injury. Additionally, subparagrap hs 5(c ) and 5(d ) refer to the 
"recurrence of dumping" as part of the matters challenged under claim 5. Consequently , we do not 
consider that Japan unduly expanded the scope of the dispute in its first written submissions. In any 
event, having reviewed the substance of Japan 's first written submission on these points, we take 
the view that they are squarely part of the KIA 's likelihood -of-injury determination. Some of 
Japan 's arguments under Articles  6.9 and 12 ostensibly reference  the "recurrence of dumping " but 
pertain, in substance, to factual or analytical matters that were part of the KIA 's "recurrence of 
injury" assessment, such as unused export capacity, trends in the import volume and domestic 
market share of the "product under investigation", and the  Japanese exporters ' failure to cooperate 
with the dumping investigation as a basis for rejecting their production capacity figures.49 In that 
regard, we consider it noteworthy that Japan stated explicitly in its first written submission that 
"Japan is not disputing the [KIA's] determination of likelihood of dumping in this proceeding".50 We 
construe Japan 's claims and arguments in light  of that statement.  
7.2  Introduction : Japan 's claims under the Anti -Dumping  Agreement  
7.16.   The proceedings involved extensive exchanges between the parties. Over one thousand seven  
hundred pages have  been submitted in argumentation and rebuttal, together with well over one 
hundred exhibits. We have reviewed all of these materials closely, and  as we will explain in this 
Report, it is apparent  that the prompt and effective resolution to the dispute hinges  on two key 
questions. These concern  whether Japan has demonstra ted that the KIA failed to undertake an 
"unbiased and objective" evaluation of the facts in respect of the following two findings :  
a. the finding that the lifting of the anti -dumping duties and the resulting drop in the price of 
Japanese imports by [[***]] ([[***]]in 201551) would lead to a weakening of domestic 
price competitiveness and an increase in the volume of Japanese imports52; and  
b. the finding of a  capacity utilization rate of [[***]] for Japan,  together with the conclusion 
that Japan  had "sufficient  additional production capacity and room for exports" .53 
7.17.   In sections 7.5.3  and 7.5.5.1  we examine these two overarching questions.  In section  7.5.4  
we address Japan 's claims concerning "ot her injury factors" , and in section 7.5.5.2  we address 
Japan 's claim s concerning the alleged use of  "facts available"  regarding capacity utilization . In 
section  7.6 we examine Japan 's confidentiality -related claims  under Article  6.5 of the 
Anti-Dumping  Agreement . In section  7.7 we explain why it is unnecessary for the prompt and 
 
48 Japan's  response to Korea's  preliminary ruling request, para.  39. 
49 See, e.g. Japan's  first written submission, paras.  290, 292 -294, 363 -364, and 367.  
50 Japan's  first written submission, fn 80.  
51 See paras.  7.71-7.72 below . 
52 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p p. 21-22. See also OTI's final report, 
(Exhibit  KOR-5.c (BCI) ), pp. 63 and 67. The public version s of these same documents are exhibit JPN -2.b and 
exhibit JPN -3.b respectively. For ease of reference , we generally refer to the versions submitted by Korea, 
including where e.g. a party has  quoted from the other version, unless the matter at issue pertains specifically 
to the public version. The Panel took note of the cited differences in translation between these versions, and 
did not consider that they had a bearing on the outcome of this dispute. Finally, we note that Korea submitted 
a further version of e xhibit KOR -5.b (BCI ) – namely, e xhibit KOR -5.c (BCI) – which highlighted a series of 
corrigenda and revisions. Since we understand the latter version to supersede the earlier version, we generally 
refer to the latter version, even if a given quotation or reference was cited to the earlier version. In that 
regard, we reviewed the changes between these versions referred to in the document " Exhibit KOR -5.c 
addendum " and did not consider that they materially altered the outcome of this dispute.  
53 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. WT/DS553/R  
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  effective resolution of the present dispute to present recommendations to the DSB regarding  the 
remaining  claims and a rguments of the parties. The Panel recalls that it has the autonomy to decide 
the order of its  own analysis.54 
7.3  General principles regarding treaty interpretation, standard of review, and burden of 
proof  
7.3.1   Treaty interpretation  
7.18.   Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered  Agreement s "in accordance with customary rules of interpretation 
of public international law". It is generally accepted that the principles codified in  Articles  31 and 32 
of the Vienna Convention on the Law of Treaties  (Vienna Convention ) are such customary rules.55 
7.19.   Article  17.6(i i) of the Anti -Dumping  Agreement  sets forth a specific standard of review 
applicable to anti -dumping disputes, namely :  
[T]he panel shall interpret the relevant provisions of the  Agreement  in accordance with 
customary rules of interpretation of public international law. Where the panel finds that 
a relevant provision of the  Agreement  admits of more than one permissible 
interpreta tion, the panel shall find the authorities ' measure to be in conformity with 
the Agreement  if it rests upon one of those permissible interpretations.  
7.3.2   Burden of proof  
7.20.   The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of the WTO Agreement s must 
assert and prove its claim.56 Therefore, Japan  bears the burden of demonstrating that the challenged 
measures are inconsistent with the  cited provisions of the  WTO Agreement s.  
7.21.   A complaining party will satisfy its burden when it establishes a prima  facie case, namely a 
case that, in the absence of eff ective refutation by the responding  party, requires a panel, as a 
matter of law, to rule in favour of the complaining party.57 It is generally for each party asserting a 
fact to provide proof thereof.58 
7.22.   Korea raised a concern that the Panel, through its qu estioning of the parties, had appeared 
to apply a "double standard of proof".59 Korea 's concern seemed to be that the Panel 's questions 
unduly helped Japan to make its case, whilst also applying greater scrutiny to Korea 's case and 
unduly shifting the burd en onto Korea despite the fact that Japan bears the initial burden of proof  
to make a prima  facie case.60 
7.23.   It is not the task of a panel  to enter into a debate with the parties about how it chooses to 
exercise discretion in conducting the proceedings within the parameters of the DSU and the Working 
Procedures , such as through the questions it puts to the parties .61 We nonetheless make a number 
of observations of relevance to the concerns raised  by Korea . 
 
54 Appellate  Body Report, Canada – Wheat Exports and Grain Imports , para. 126; Panel Report,  
Argentina – Financial Services , para. 7.67. We are mindful that the order we choose may also have an impact 
on the potential to apply judicial economy when making our determinations in this case . (Panel Report s, 
India – Autos , para. 7.161; Argentina – Financial Services , para. 7.63). 
55 Appellate  Body Reports, US – Gasoline , DSR 1996:I, p p. 15-16; Japan – Alcoholic Beverages  II, 
DSR 1996:I,  pp. 104-105, section  D. 
56 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 337. 
57 Appellate  Body Report, EC – Hormones , para. 104. 
58 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997: I, p. 335. 
59 Korea's  common response to Panel questions after the  second meeting with the Panel, para.  6. 
60 Korea's  common response to Panel q uestions after the  second meeting with the Panel, paras.  5-7; 
responses to Panel question No.  92, para.  50, and No. 100, para.  173. 
61 We are cognisant of the requirements in the Working Procedures and the DSU to consult with the 
parties upon adopting and m odifying rules of procedure. However, beyond certain special circumstances that 
are not relevant to the present case, nothing in the Working Procedures or the DSU prescribes a role for the 
 WT/DS553/R  
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  7.24.   Our primary task is to help the part ies resolve their dispute  in a prompt and effective 
manner.62 Ordinarily63, this involves making findings as to whether a complaining party has 
presented a prima  facie case of inconsistency with the applicable obligations of the  WTO Agreement s 
and whether , in response, a responding party has effectively rebutted the prima  facie case of the 
complain ing party .64 While a panel may develop its own reasoning in arriving at its findings, it is of 
course not for a panel to make the case for either party.  
7.25.   The fact that it is for the complaining party to discharge its burden of proof by establishing a 
prima  facie case at first instance, and then for the responding  party to effectively refute that case, 
does not mean that a panel is frozen into inactivity.65 The extensive discretionary authority of a 
panel to request information from any source (including a Member that is a party to the dispute ) is 
not conditional upon a party having established, on a prima  facie basis, a claim or defence .66 The 
same is true for  a panel 's extensive discretionary authority to put questions to the parties in order 
to inform itself of the relevant facts of the dispute and the legal considerations applicable.67 It would 
thus be erroneous for a party  to suggest that we can ask a questio n of the responding  party only 
upon arriving at an initial determination that the complaining party has established a prima  facie 
case. It would further be erroneous for a party to seek to divine from the existence or formulation  
of a given question that i t is reflective of a position already  adopted by the Panel , for instance that 
we had already determined that the complaining party established a prima  facie case.68  
7.26.   Indeed, in all instances during the proceedings where the Panel posed questions to the parties 
orally and in writing, we explained that our questions were intended to facilitate our work, and that 
our questions did  not in any way prejudge our findings on the matter before us.69 For the avoidance 
of doub t, the purpose of this explanation was to assure the parties that the inclusion of a certain 
proposition in a question was not reflective of a predetermined position adopted by the Panel 
regarding that question. While it should be self -evident , we addition ally explained that " [a]ll 
questions are without prejudice to the Panel 's resolution of the claims and arguments of the parties, 
including objections pertaining to the Panel 's terms of reference or the admissibility or relevance of 
certain evidence ".  
7.27.   To reiterate, we explained throughout the proceedings that the Panel 's questions were 
intended to "facilitate its work ". The "work" of the Panel is guided at all times by the standard of 
review prescribed in Article  11 of the DSU and Article  17.6 of the Anti -Dumping  Agreement . It should 
be unsurprising tha t where a determination by the authority of one party is the matter at issue, 
more questions may be directed towards that party. For instance, that party may be in a better 
position to shed light on the eviden ce and reasoning underpinning the determination made by its 
own authority, and what may  or may not have been taken into account by its own authority in that 
 
parties  in determining the precise formulation, nature, or content of the questions that a panel  seeks to put to 
the parties.  
62 Articles  3.3, 11, and 21.1 of the DSU.  
63 We note that parties may resolve their dispute through a mutually satisfactory solution, and pursuant 
to Article  11 of the DSU, "[p] anels should consult regularly with the parties to the dispute and give them 
adequate opportunity to develop a mutually sat isfactory solution ". 
64 Panel Report, China – Broiler Products (Article  21.5 – US), para.  7.354.  
65 Panel Report, Thailand – H-Beams , para.  7.50. 
66 Article  13 of the DSU. See also Panel Reports, Thailand – H-Beams , para.  7.50; and Argentina  – 
Import Measures , para.  6.59. Of course, we cannot use such authority to rule in favour of a complaining party 
who has not established a prima facie  case. (Appellate  Body Report, Japan – Agricultural Products II , 
paras.  129-130). But that does not mean that a panel's  ability to put questions to the parties is conditional 
upon arriving at an initial finding that a prima fac ie case or defence has been established.  
67 Appendix 3, clause 8 of the DSU; Working Procedures, clause 9; and Panel Report, Thailand – 
H-Beams , para.  7.50. Of course, the nature, form, and quantity of the questions posed is guided by the overall 
task of helping the parties to resolve their dispute in a prompt and effective manner, as well as our standard of 
review.  
68 Moreover, the DSU does not contemplate that a party can decide for itself  whether a question posed 
by a panel is relevant for the resolution of the dispute, nor whether the other party has already established a 
prima facie  case on a given point that would  in turn justify a question by a panel to the other party on that 
point.  (Panel Reports, Argentina – Import Measures , para.  6.59).  
69 For instance, all written documents containing questions from the Panel to the parties included the 
covering note that "[t] hese questions are intended to facilitate the work of the Panel, and do not in any  way 
prejudge the Panel 's findings on the matter before it" . This was also conveyed to the parties at the hearing 
regarding the Panel 's oral questions.  WT/DS553/R  
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  regard.  That is especially so in circumstances where the responding party relies on "implicit" find ings 
or uncited record evidence as part of its defence of its authorit y's determination.  
7.28.   Likewise, with respect to our examination of the facts, it should be unsurprising that our focus 
is on how the authorit y solicited and examined the facts, including whether and where such an 
examination might be reflected in the authori ty's determination. Such a focus is not indicative of a 
"double standard of proof"70, but merely reflects that "[t] he authority  is under an obligation to 
properly establish the facts and evaluate them in an objective and unbiased manner " in the 
underlying investigation .71 
7.29.   Indeed, the party of the authority may be best  placed to explain why it did not address , in its 
determination (or any other  document ), a matter that an interested party raised during the 
underlying investigation, for instance because the matter  was unsubstantiated or irrelevant .  
7.30.   Accordingly, for some questions, we chose to direct the question to a particular party, 
e.g. where it appeared that  this party might be better  placed  to respond. However, the Panel 
explained that " [t]he fact that a question may be primarily directed towards one party does not 
preclude a res ponse from the other party ".72 It would therefore be erroneous for a party to draw 
any inferences from whether the Panel addressed a question to one party or another.  
7.31.   We also observe  that the posing of questions in panel proceedings can serve multiple 
purposes. One purpose can be to obtain missing information or fill gaps in the panel record. Another 
purpose can be to clarify the precise nature and scope of a party 's legal claim or defence. A further 
purpose can be to scrutini ze the credibility or reliabili ty of the contested materials before the panel. 
The way in which a question is framed can depend on the purpose for which it is asked. None of 
these purposes, however, are indicative of a panel having reached any predetermined  conclusions 
on any point, nor  having decided  to adopt a particular approach.  Indeed, a panel 's discretion 
concerning the form, nature, and content of its questions to parties is unfettered in the DSU.73 In all 
instances, the posing of questions is intended to build a sufficient understanding of the legal 
arguments and evidence at issue to "facilitate [the Panel's] work".  It may well emerge from the 
response to a question that it is not a relevant conside ration  in resolving the dispute ; it may also 
emerge that it is unnecessary for the Panel to address the substance of the response , for instance  
due to the exercise of judicial economy over the relevant claim, or because the Panel ultimately finds 
that the other  side did not make a prima  facie case. It would  therefore  be erroneous for a party to 
extrapolate anything from the posing of a given question , other than that the Panel seeks a response . 
7.32.   Finally, we  note that  the parties ' respective position s in panel proceedings are not prejudiced 
by the specific formulation of a question posed by a panel when, as in the present case, each party 
is allowed  to comment on responses  to the panel's questions  received from the other side,  to pose 
its own questions  to the other side at multiple junctures during the proceedings , and to comment 
on the responses received from the other side to its own questions.74 The parties in the present 
dispute have had exhaustive opportunities to present their respective cases and rebuttals. As 
affirmed above75, we have taken into account all of the materials submitted by the parties during 
these proceedings in arriving at a re solution to the dispute that is as effective and prompt as possible.  
7.3.3   Standard of review  
7.33.   Panels are bound by the standard of review set forth in Article  11 of the DSU, which provides, 
in relevant part, that :  
 
70 Korea's  common response to Panel questions after the  second meeting with the Panel, paras.  5-7; 
response to Panel question No.  92, para.  50. 
71 Korea's  response to Panel question No.  3(b) (emphasis added). See also first written submission, 
para. 43; and r esponse to Panel question No.  32(b)(ii).  
72 For instance, all written documents containing questions from the Panel to the parties included this in 
the covering note.  
73 Appendix 3, clause 8 of the DSU. Of course, in all aspects of the conduct of the proceed ings, a panel 
must ensure that its assessment of the matter is "objective" under Article  11 of the DSU and must ensure due 
process for both sides to the dispute. A panel must also ensure that the resolution of the dispute is prompt and 
effective. We thus a gree with the Appellate  Body Report, Thailand – Cigarettes (Philippines) , paras.  147-150. 
74 See, by analogy, Panel Report, Australia – Apples , para.  7.67. 
75 See para.  7.16 above.  WT/DS553/R  
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  [A] panel should make an objective assessment of  the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered  Agreement s[.] 
7.34.   Both parties accept the Appellate  Body's  explanation that  the "objective assessment" to be 
made by a panel reviewing an investigating authority 's determination  under  Article  11 of the DSU  is 
to be informed by an examination of whether the authority provided a "reasoned and adequate " 
explanation as to  (a) how the evidence on the record supported its  factual findings; and (b ) how 
those factual findings supported the overall determination .76 We proceed on that basis.  
7.35.   Both parties also accept that  Article  17.6(i ) of the Anti -Dumping  Agreement  sets forth a 
specific standard of review applicable to anti -dumping disputes, namely :  
(i) [I]n its assessment of the facts of the matter, the panel shall determine whether the 
authorities ' establishment of the facts was proper and whether their evaluation of those 
facts was unbiased and objective. If the establishm ent of the facts was proper and the 
evaluation was unbiased and objective, even though the panel might have reached a 
different conclusion, the evaluation shall not be overturned[.]77 
7.36.   It is common ground amongst the parties that, based on this standard of review, a panel 
reviewing an investigating authority 's determination may not undertake a de novo review of the 
evidence , nor substitute its judg ement  for that of the investigating auth ority.78 For instance, an 
alternative explanation of the record evidence cannot impugn an authority 's determination merely  
because it seems preferable.  
7.37.   At the same time, a panel must not simply defer to the conclusions of the investigating 
authority.79 Rather, we understand it to be common ground amongst the parties that a failure by 
the authorities to adequately account for an alternative explanation of the record evidence can  
potentially  illustrate that the "establishment of the facts was [not] proper an d … the evaluation was 
[not] unbiased and objective".80 This is because , as Korea indicates,  an authority 's explanation  must 
"fully address [] the nature, and especially the complexities, of the data and respond[] to other 
plausible interpretations of the d ata", a nd that "[w] hat matters is simply that the overall 
determination remains adequate in light of such alternative explanation of the data".81 Of course, 
this does not mean that an authority must explicitly and exhaustively discuss every matter raised 
or alleged by an interested party during a review .82 However , the failure of an authority to address 
a directly -relevant and substantiated point, or the adoption by the authority of one side 's argument 
and evidence without addressing the other side 's argument and evidence, or the presence of 
meaningful  inconsistencies in the authorities ' own reasoning, could impugn the "objectivity" of an 
authority 's assessment insofar as it  improperly  favours the interests of certain interested parties 
over others.83 
 
76 Japan's  first written submission, para.  54; Korea's  second written submission, para.  22. This language 
comes from the Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para.  186. 
77 Japan's  first written submission, paras.  51-53; Korea's  response to Panel question No.  1. 
78 Japan's  response to Panel question No.  2, para.  8; Korea's  first written submission, paras.  33 and 36. 
See also Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , paras.  5.84 and 5.86.  
79 Appellate  Body Reports, US – Softwood Lumber  VI (Article  21.5 – Canada) , para. 93; US – Lamb , 
paras.  106-107. 
80 Korea's  response to Panel question No.  1; Japan 's response to Panel question No.  1, para. 5; and 
Japan 's first written submission, paras.  52-54. See also Appellate  Body Report, US – Softwood Lumber VI 
(Article  21.5 – Canada) , para. 93. 
81 Korea's  response to Panel question No.  1. See also Japan's  first wri tten submission, para.  53. 
82 We agree with Korea in that regard.  (Korea's  responses to Panel question No.  2, and No.  97, 
para. 121). An investigating authority would ordinarily be expected to consider a pertinent matter explicitly 
when confronted with suff icient evidence.  (Panel Report, EU – Fatty Alcohols (Indonesia) , paras.  7.196 
and 7.204).   
83 Appellate  Body Reports, China – HP-SSST (Japan ) / China – HP-SSST (EU) , para. 5.138 (quoting  
Appellate  Body Report,  China – GOES , para. 126); Mexico – Anti-Dumping Measures on Rice , paras.  180-181; 
and US – Softwood Lumber VI ( Article  21.5 – Canada) , paras.  93 and 97.  WT/DS553/R  
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  7.38.   Since a panel may not conduct a de novo assessment of the case, it  must limit its examination 
to the evidence that was before the authority during the investigation .84 However, a 
panel 's assessment is not limited to the evidence cited by an authority in it s determination, and we 
understand this to be the position of both parties.85 Rather,  a panel  must take into account all record  
evidence submitted by the parties in the panel proceedings .86 In that regard, a panel may be called 
upon to respond to allegatio ns by a complainant concerning the significance of record evidence that 
the investigating authority allegedly ignored, or on which it placed insufficient weight, or from which 
it drew incorrect inferences.87 The fact that an investigating authority has not  cited every piece of 
record evidence that negates  or substantiates  these kinds of allegations does not mean that a panel 
is prevented from considering such evidence to test the veracity of those  allegations. 
A panel 's review of the record evidence in order to establish the veracity of such  allegations, and 
thus determine whether the com plaining party  has demonstrated that the authority 's conclusions 
were not reasoned and adequate, does not amount to a de novo review of the record evidence.88 
We understand that both parties  accept this as a general proposition .89 
7.39.   Equally,  a panel 's examination of whether an investigating authority 's conclusions were 
reasoned and adequate is not necessarily limited to the pieces of evidence expressly  relied upon by 
the authority in its establishment and evaluation of the facts in arriving at a particu lar conclusion.90 
Rather, a panel may also take into consideration other pieces of evidence that were on the record 
and that corroborate  the explanation provided by the investigating authority in its determination. 
This is because  investigating authorities  are not required to cite or discuss every  piece of supporting 
record evidence for each fact in their determination .91 There is no such obligation  in the 
Anti-Dumping  Agreement . Thus, Korea is not precluded from now relying on record evidence that 
was not explicitly cited or discussed by the KIA , but nonetheless substantiates the reasoning of the 
KIA as reflected in its determination.92 
7.40.   In summary, there are  at least  two general  ways in which panels may permissibly consider 
record evidence that was not explicitly cited by an investigating authority in its determination :  
a. where the complaining party  bases its claim on record evidence that was not cited by the 
authority, and asserts that this uncited record evidence demonstrates that the 
authority 's evalua tion was not "unbiased and objective"; and  
b. where the evidence was not cited by the investigating authority but nonetheless 
corroborates the inferences, reasoning and conclusions reached by the authority.93 
7.41.   However, since a panel 's review cannot be  de novo, ex post rationalizations unconnected to 
the investigating authority 's explanation – even when founded on record evidence – cannot form the 
basis of a panel 's finding that the authority 's conclusion was reasoned and adequate .94 This is 
because such rationa lizations would be new rationalizations. If a panel were to rely on new 
rationalizations to substantiate an authority 's determination, it would effectively be substituting its 
own judgement for that which was actually made by the authority, and hence engag e in a de novo 
assessment.95 Thus, we accept Korea 's point that it " is entitled to rely on and refer to evidence on 
the record to confirm  the reasonableness  of the authorities ' determination  so long as it is clear that 
 
84 This is also reflected in Article  17.5(ii)  of the Anti -Dumping  Agreement, through which panels are 
limited to examining the matter based on "the facts made available in conformity with appropriate domestic 
procedures to the authorities of the importing Member ".  
85 Korea's  response to Panel question No.  2; Japan's  response to Panel question No.  2, paras.  9 and 11. 
86 Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187. 
87 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.99. 
88 Appellate  Body Report, EU – Fatty Alcohols (Indonesia) , para.  5.99. 
89 Korea's  response to Panel question No.  2 (agreeing with the extracts of Appellate  Body Report, EU – 
Fatty Alcohols (Indonesia) , paras.  5.86 and 5.99); Japan's  response to Panel question No.  2, para.  11. 
90 Appellate  Body Report, Thailand – H-Beams , paras.  117-119.  
91 Appellate  Body Report, US – Countervailing Duty Investigation on DRAMS , para. 164. See also 
Korea's  responses to Panel question Nos.  2 and 3(a); and  second written submission, para.  154. 
92 We note, however, that if the uncited evidence constitu tes an "essential fact" under Article  6.9 of the 
Anti-Dumping  Agreement, the failure to cite that fact (i.e. "disclose" it) could lead to a violation of  Article  6.9. 
93 Panel Report, US – Carbon Steel (India)  (Article  21.5 – India) , paras.  7.5-7.6 and fn 19 6. 
94 See e.g. Appellate  Body Reports, US – Tyres  (China) , para. 329; Japan – DRAM s (Korea) , para. 159; 
and Panel Reports, Argentina – Ceramic Tiles , para. 6.27; Argentina – Poultry Anti -Dumping Duties , 
paras.  7.48-7.49. 
95 Japan's  response to Panel question No.  1, para.  4. WT/DS553/R  
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  this was evidence  taken  into consideration  by the authorities ".96 We also accept Korea 's point that 
certain intermediary findings or considerations may be "implicit" in an authority 's determination.97 
The existence , as a factual matter, of "implicit" findings, analyses, or considerations by an authority 
must be demonstrated by the party asserting the ir existence . This could be shown,  for instance , by 
reference to the nature and implications of the investigating authority 's reasoning on a gi ven point  
or to the procedural circumstances of the review . We would therefore disagree with Japan that a 
panel can never take into account "implicit" findings, analyses, or considerations that are not 
expressed in the text of an authority 's determination .98 However, we accept  Japan 's point that Korea 
cannot rely on uncited evidence or "implicit" analyses to substantiate a new or different rationale to 
that articulated by the KIA in its determination.99 In our view,  the party asserting the existence of 
an "implicit" finding, analysis, or consideration must demonstrate a link to the text of the 
determination, such that it does not constitute an ex post rationali zation or lead the Panel to make 
a de novo finding . 
7.42.   This leads to a related point, namely the extent to which the responding  party can link 
together different aspects of its investigating authority 's determination to clarify what the authority 
meant, or to rebut the complaining party 's claims in WTO panel proceedings. Determinations of 
investigating authorities are often segmented into distinct parts that contain different headings and 
different analyses. This does not mean that one is unrelated to another, nor that the analysis 
ostensibly directed at one ma tter cannot be used by a responding party  in WTO panel proceedings  
to shed light on another matter in a different part of the determination .100 Thus, the mere fact that 
a given analysis occurs under one heading/ section  of a determination does not preclude i t from 
shedding light on the analysis of another matter in a different heading/ section  for the purposes of 
WTO dispute settlement.101 
7.43.   On the other hand, " it is not for panels to find support for [an authority's]  conclusions by 
cobbling together disjointed r eferences scattered throughout a competent authority 's report ".102 We 
understand, at least in general terms, that both parties accept that there must be some form of 
reasonable "connection" or "linkage" between findings or reasoning that appear in different  parts of 
a determination  before they may permissibly be used to shed light on each other .103 
7.44.   At this juncture, it is useful to set out how we intend to approach Japan 's objections that 
numerous aspects of Korea 's description of the KIA 's determination and reasoning comprise 
impermissible ex post explanations104, which Korea considers to be  meritless and unsupported by 
the record.105 As the foregoing discussion shows , objections that an explanation comprises 
impermissible ex post reasoning are significant. To reiterate, i f a panel were to uphold a 
determination on the basis of impermissible ex post reasoning, it would be conducting a de novo 
review of the underlying in vestigation, contrary to its basic duty under Article  17.6 of the 
Anti-Dumping  Agreement . However, whilst an authority 's reasoning must be "discernible from the 
published determination itself", "the meaning of a determination [can] be clarified" by parties  to a 
dispute, for instance "by referring to evidence on the record".106 In our consideration of the matters 
before us , we see no reason why Korea might be precluded a priori from clarifying the meaning of 
the KIA 's determination in this dispute, including by reference to record evidence, so long as the 
clarification d oes not amount to a new rationale absent from the determination itself.  We will 
examine  the veracity of Japan 's objection that a given aspect of Korea 's case comprise s 
 
96 Korea's  response to Panel question No.  7. (emphasis added)  
97 Korea's  second written submission, para.  160. See, e.g. Panel Report, US – Carbon Steel  
(India ) (Article  21.5 – India) , paras.  7.211 and 7.219.  
98 Japan 's second written submission, paras.  32-37. 
99 Japan 's second written submission, para. 36. 
100 See, e.g. Panel Reports, US – Coated Paper (Indonesia) , paras.  7.159 and 7.164; EU – Fatty Alcohols 
(Indonesia) , paras.  7.173 -7.174; and US – Carbon Steel (India ) (Article  21.5 – India) , para.  7.178.  
101 See, e.g. Appellate  Body Report, US – Countervailing Measures (China) , para.  4.144.  
102 Appellate  Body Report, US – Steel Safeguards , para. 326. See also Appellate  Body Report, US – 
Countervailing Measures (China ) (Article  21.5 – China) , para.  5.239.  
103 Korea's  response to Panel question No.  6(c); Japan 's responses to Panel question No.  6(a), para. 24, 
No. 6(b), para. 28, and No. 6(c), para. 33. 
104 See, e.g. Japan 's second written submission, paras.  21, 231, 265 -266, and 284 ; and  responses to 
Panel question No.  6(a), para.  24, No. 10, para. 50, No. 16, para. 94, No. 20(a), para. 115, No. 20(b), 
para. 118, No.  24, para.  151, and No. 31, para. 184. 
105 Korea's  second writ ten submission, paras.  71 and 160 -162. 
106 Appellate  Body Report, US – Countervailing Measures (China ) (Article  21.5 – China) , 
paras.  5.164 -5.165.  WT/DS553/R  
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  impermissible ex post reasoning where  such objections arise below in our substantive evaluation of 
the claims advanced in this dispute . However, given the volume of ex post objections made by 
Japan, we decline to examine every such objection in an itemized  way, particularly  if such an 
examination is not strictly required to ensure the proper resolution of the claim at issue. Thus, we 
will limit our examination to only those instances where the challenged aspect of Korea 's case has 
the potential to uphold th e KIA 's determination. This avoid s the risk of an outcome based on a de 
novo review,  whilst  focusing  the assessment of Japan 's ex post objections on those instances where 
resolving the objection was necessary to the resolution of the claim.  
7.45.   Finally, w e note that not every error made or questionable inference drawn by an investigating 
authority in its treatment of a given piece of evidence will necessarily rise to the level of a violation 
of an obligation of the WTO  Agreement s.107 Rather, a panel 's evaluatio n of whether an investigating 
authority 's evaluation  is "unbiased and objective " requires an assessment of the totality of the 
evidence, inferences, and intermediary findings relied upon by an investigating authority to justify 
its reasoning on a given point.108 We have been particularly cognisant of this point in relation to 
Japan 's claims under Article  11.3 of the Anti -Dumping  Agreement  in light of the nature of that 
particular provision.109 
7.4  Japan 's objections concerning certain exhibits  
7.46.   Japan  object s that numerous documents submitted by Korea in these proceedings have not 
been shown to be on the record in the underlying review.110 Korea respond s that all of the submitted 
documents were properly on the record in the underlying review.111 
7.47.   Japan argues that, in respect of exhibits KOR-8, 13, 14, 17, 18, 21, 22, 24, 37, 41, 43, 51, 
52, 53, 56,  57, 58, 62, 64 , and 68112, there is no indication from the evidence submitted in these  
dispute settlement  proceedings that they form ed part of the record in the underlying review .113 
Japan contends this is inconsistent with the requirement in Article  17.5(ii ) of the 
Anti-Dumping  Agreement  that a panel shall examine a matter, inter alia, based upon "the facts made 
available in conformity with appropriate domestic procedures to the authorities of the importing 
Member" . Korea responds that all the contested exhibits can be reasonably inferred to have been 
considered by its authorities at the time of the underlying review, and were thus within the  scope of 
our purview in these proceedings .114 
7.48.   As stated by the Appellate  Body in Russia  – Commercial  Vehicles , when faced with a challenge 
that certain documents do not form part of the record before an investigating authority , a panel 
must take certain st eps to assure itself that the documents are genuine and contemporaneous.115 
The steps required depend on the facts of a particular case, and may include posing additional 
 
107 Panel Report, US – Carbon Steel (India ) (Article  21.5 – India) , para.  7.7. 
108 See e .g. Appellate  Body Report, Japan – DRAMs (Korea) , paras.  133-134. See also Panel Report, 
EC – Fasteners (China ), para.  7.359.  
109 See para. 7.57 below. We agree with Korea that the proper standard of review to be applied by a 
panel must also be understood in the light of the specific obligations of the relevant  agreement s that are at 
issue in the case . (Korea 's second written submission, para. 16 (referring to Appellate  Body Report US – 
Softwood Lumber VI ( Article  21.5 – Canada) , para. 92)). 
110 See generally Japan's  response to Panel question No. 120. 
111 Korea 's comment s on Japan 's response to Panel question No. 120, p. 70; response to 
Japan 's question  after the first meeting of the Panel  No. 1, paras.  3-40. 
112 ISO stainless steel grade comparability table s, (Exhibit KOR-8); USITC report ( first review) , 
(Exhibit  KOR-13); USITC report (second r eview) , (Exhibit KOR -14); KS specification , (Exhibit KOR -17), 
JIS specification , (Exhibit KOR -18); ISSF Website profile page , (Exhibit KOR -21); JSSA Website members page , 
(Exhibit  KOR-22); USITC report (original investigation) , (Exhibit KOR -24); OTI import statistics , 
(Exhibit  KOR-37); Korea's response to the Panel's Article 13 information request , (Exhibit KOR -41); Import 
Clearance Matrix , (Exhibit KOR -43); Translation of the JSSA Website members page , (Exhibit KOR -51); Sanyo 
and Aichi c atalogues , (Exhibit KOR -52); Websites of Yamashin , Kansai, and Tohoku , (Exhibit KOR -53); 
Purchase order , (Exhibit KOR -56); Explanation on ISSF statistics methodology , (Exhibit KOR -57); Commentary 
on HS code classification , (Exhibit KOR -58); High adaptability of secondary processing facilitie s, 
(Exhibit  KOR-62); Atlas steels stainless steel grade database , (Exhibit KOR -64); and More purchase order 
examples , (Exhibit KOR -68). 
113 Japan 's response to Panel question No. 120, para.  125; Korea's  response to Japan's  question after 
the second meeting of the Panel No. 1, paras.  1-56.  
114 Korea 's comment on Japan 's response to Panel question No. 120, p. 70; response to 
Japan 's question  after the second meeting of the Panel  No. 1, paras.  1-56. 
115 Appellate  Body Report, Russia – Commercial Vehicles , para. 5.134 . WT/DS553/R  
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  questions to the submitting party or examining additional evidence concerning the cont ested 
documents.116 
7.49.   We do not consider in this case that Japan has established cause to doubt that the documents 
in question were genuine and contemporaneous parts of the record before the KIA. As there is no 
domestic law governing the KIA 's management of r ecord evidence, whether evidence was on the 
record must be assessed on the basis of  the totality of the evidence.117 In response to questions 
from the Panel, Korea explained  that "every single piece of evidence that Korea submitted in this 
dispute properly supports or ties to the explicit determinations by the Korean authorities, either 
directly or indirectly through intermediate findings".118 Korea specifically identified that  (a) the 
applicant 's application contained a section  titled "Evidentiary Materials " which included 
exhibits  KOR-8, KOR -17, KOR -18, KOR -52, and, KOR -64; ( b) exhibits KOR -56 and KOR -68 were 
obtained from the applications by the KIA during on -site verification; ( c) exhibit KOR -62 is composed 
of material contained in the KIA 's case handler 's file; ( d) exhibit KOR -43 contains customs data from 
the Korean Customs Service and that was referred to in the OTI 's final report; ( e) exhibit KOR -41 
was prepared in response to a request from the Panel and is based on data contained in the 
OTI's final report; ( f) exhibit KOR -37 is a compilation of import statistics contained in the OTI 's final 
report; ( g) exhibits KOR -13, KOR -14, KOR -21, KOR -22, KOR -24, KOR -51, and KOR -53 were 
obtained by the KIA on its own initiative; and ( h) exhibit KOR -58 is a n HS code classification referred 
to in the OTI 's final report.119 We consider that Korea 's response leaves no reason to doubt that 
these exhibits are genuine and contemporaneous.120 Japan 's argument thus fails , and we do not 
exclude these materials from our  evaluation of the matters at issue in this dispute . 
7.5  Likelihood of recurrence of injury : Japan 's claims under Articles  11.3 and 6.8  of the 
Anti-Dumping  Agreement  
7.5.1   Introduction  
7.50.   Japan made several substantive claims in these proceedings concerning the KIA 's finding  that 
lifting the anti -dumping duties would be "highly likely"121 to lead to  a recurrence of material injury 
to the domestic industry. Japan structured these  claims under Article  11.3 of the 
Anti-Dumping  Agreement  as follows : (a) the KIA erred in cumulating Japanese imports with Indian 
imports for the purposes of its likelihood -of-injury assessment; (b ) the KIA erred by disregarding 
the Japanese exporters ' data in making findings on the exporters ' production capacity and capacity 
utilization ; (c) the KIA erred in its examination of the price and volume effects of the Japanese 
imports; and (d ) the KIA erred by failing to examine other potential injury factors.122 According to 
Japan, each of these alleged errors g ives rise to a standalone violation of Article  11.3.123 Japan also 
made a standalone claim under Article  6.8 that is similar in substance to the alleged error mentioned 
in (b) concerning the exporters ' production capacity  and capacity utilization .  
7.51.   We begin in this sectio n with Japan 's claims under Article  11.3 concerning price and volume 
effects, and other injury factors . We then examine Japan 's claims under Articles  11.3 and 6.8 of the 
Anti-Dumping  Agreement  concerning capacity utilization.  
7.5.2   Legal standard under Article  11.3 of the Anti -Dumping  Agreement  
7.52.   Article  11.3 of the Anti -Dumping  Agreement  provides :  
 
116 Appellate  Body Report, Russia – Commercial Vehicles , para. 5.134.  
117 Korea 's comment s on Japan 's response to Panel question No. 120, p. 70. 
118 Korea 's comment s on Japan 's response to Panel question No. 120, p. 70. 
119 Korea 's comment s on Japan 's response to Panel question No. 120, p. 70; response to 
Japan 's question  after the second meeting of the Panel  No. 1, paras.  3-40. 
120 We note that Korea asserted that all evidence submi tted in this dispute was properly on the record of 
the underlying investigation, but did not provide any particular discussion of Japan's  concerns regarding 
exhibit  KOR-57. Given the extensive response by Korea  in relation to the other challenged items, we  do not 
consider there to be any reasons to doubt the genuineness of exhibit KOR -57.  
121 KTC's final resolution, (Exhibit KOR -4.b (BCI)), p. 23; OTI's final report , 
(Exhibit  KOR-5.c (BCI))  p. 67. 
122 Japan's  first written submission, paras.  5-8. 
123 Japan's  first written submission, para.  4. WT/DS553/R  
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  Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti -dumping duty 
shall be terminated on a date not later than five years from its imposition (or from the 
date of the most recent review under paragraph 2 if that review has covered both 
dumping and injury, or under this paragraph), unless the authorities determine, in a 
review initiated before that date on their own initiative or upon a duly substantiated 
request made by or on behalf of the domestic industry within a reasonable period of 
time prior to that date , that the expiry of the duty would be likely to lead to continuation 
or recurrence  of dumping and injury. The duty may remain i n force pending the outcome 
of such a review.124 
7.53.   Japan 's claims before us relate to the KIA 's determination that the expiry of the anti -dumping 
duties would be likely lead to the recurrence of injury.125 A determination that the expiry of the 
anti-dumping duties would likely lead to  the recurrence of injury  requires, in effect, the 
establishment of a link between the expiry of the anti -dumping duties and the likely recurrence of 
injury to the relevant dom estic industry.126 Although the parties used different terminology to 
describe such a link, we understand this general proposition to be common ground amongst the 
parties.127 Korea took issue with Japan 's description of this link as a "causal nexus" or "caus al link", 
inferring that Japan was thereby contending for a "new causation analysis" in a sunset review.128 
Korea instead used the term "nexus".129 In our view, the text "unless" and "would be likely to lead 
to" in Article  11.3 clearly presuppose a relations hip of cause and (likely ) effect between the expiry 
of the duty and the continuation or recurrence of injury.130 
7.54.   As the text of Article  11.3 shows, there is no prescribed methodology that authorities are 
required to follow in determining whether such a link  exists.131 More specifically, we agree with Korea 
that there is no  legal requirement on authorities to follow the disciplines set out in Article  3 of the 
Anti-Dumping  Agreement  that govern the establishment of the causal link between dumping and 
injury in the original investigation.132 This is because the injury assessment under Article  11.3 is 
different to that under Article  3. The assessment under Article  11.3 is not about whether dumping 
is causing injury133, but is instead about whether the expiry of anti-dumping duties would be likely 
to lead to the continuation or recurrence of injury.134 Thus, as both parties accept, the causal link 
between dumping and injury need not be established afresh in a sunset review.135 Of course, this 
does not foreclose the ability for an interested party in a sunset review to seek to rebut the continued 
existence of a causal link between dumping and injury, by e.g. substantiating that continued 
dumping would not be likely to lead to a continuation or recurrence of injury if the anti -dumping 
duty were lifted.   
 
124 Fn omitted.  
125 Japan's  first written submission, para.  191. 
126 Appellate  Body Report , US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 123. 
127 Korea 's first written submission, para. 52; Japan 's first written submission, para. 2. 
128 Korea 's comments on Japan 's response to Korea 's question No.  3, pp. 9-10; first written submission, 
paras.  134 and 140 . 
129 Korea 's comments on Japan 's response to Korea 's question No.  3, pp. 9-10; first written submission, 
paras.  52 and 286 . 
130 European Union 's third-party submission, para. 9. 
131 Panel Report, EU – Footwear (China) , para.  7.157 (referring to Appellate  Body Reports , US – 
Corrosion -Resistant Steel Sunset Review , paras.  124 and 149; and US – Oil Country Tubular Goods Sunset 
Reviews ( Article  21.5 – Argentina) , para.  105).  
132 Korea's  first written submission, paras.  46 and 52. See also Panel Report, EU – Footwear (China) , 
para. 7.157; and Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras.  274-280. 
133 Indeed, for the purposes of a sunset review, this causal link is assumed to have already been 
established in the original investigation . (Appellate  Body Report , US – Anti-Dumping Measures on Oil Country 
Tubul ar Goods , para. 121; see also Panel Report, EU – Footwear (China) , para. 7.157;  and Appellate  Body 
Report, US – Corrosion -Resistant Steel  Sunset  Review , paras.  106-107).  
134 See, by analogy, Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , 
paras.  106-107. We recognize, as have past panels and the Appellate  Body, that the disciplines and concepts in 
Article  3 on how to establish whether dumping is causing injury could provide guidance  on the kinds of factors 
and evidence that authorit ies may seek to consider under Article  11.3 to produce a reasoned and adequate 
determination on the link between the expiry of anti -dumping duties and the likelihood of injury. (Panel Report, 
EU – Footwear (China) , paras.  7.158 and 7.333 ; Appellate  Body Re port, US – Oil Country Tubular Goods 
Sunset Reviews , para.  284). We note that both parties accept this point. (Korea's  first written submission, 
para. 50; Japan's  first written submission, paras.  62-63). 
135 Japan's  response to Korea's  question No.  3, para.  10; Japan's  first written submission paras.  62-64; 
and Korea's  first written submission, para.  140.  WT/DS553/R  
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  7.55.   Despite the absence of a prescribed methodology in Article  11.3, authorities must conform to 
certain basic standards in reaching a determination in a sunset review. In particular, both parties 
agree that authorities are required to act with an " appropriate degree of diligence " in arriving at  a 
"reasoned and adequate explanation" for the likelihood -of-injury determination.136 The "appropriate 
degree of diligence" involves making an objective evaluation of the arguments and evidence 
submitted by interested parties to the review, conducting a "rigorous examination", and basing the 
determination on a sufficient factual foundation.137 These requirements flow from the text of 
Article  11.3, which places the onus on the "authorities " to conduct a "review" and proactively reach 
a "determin[ation]".138 
7.56.   The onus on the "authorities" to conduct a "review" and reach a "determin[ation]" on the 
basis of information gathered in the process of examination under Article  11.3 implies an active r ole 
on the part of the authorities.139 This implication is strengthened by the reapplication, through 
Article  11.4 of the Anti -Dumping  Agreement , of the evidentiary and due process disciplines to the 
authorities ' conduct of the review  that were applicable i n the original investigation.140 This 
implication is also strengthened by reviews being contemplated to run for up to 12 months. Thus, 
authorities have a duty under Article  11.3 to conduct a sufficiently diligent investigation into, and 
solicitation of, rel evant facts.141 Both parties accept that if an interested party submits a relevant 
argument to the authorities and substantiates it with sufficient evidence, it is incumbent on the 
authorities to take that argument into account, as appropriate, in arriving at their deter mination.142 
Further, though an interested party must substantiate its case, its argumentation and evidence need 
not be perfect in all respects in order to warrant consideration by the authorities.143 Rather, 
Article  11.3 assigns an "active rather than a pas sive decision -making role to the authorities", and 
thus places upon authorities "a duty to seek out relevant information and to evaluate it in an 
objective manner".144 Consequently, if an authority identifies deficiencies in an interested 
party 's case, it w ould ordinarily be incumbent on the authority to actively seek out pertinent 
information and clarify such shortcomings as appropriate to the investigation at hand.145 We also 
agree with the general sentiment expressed by Korea that "[a]n interested party ca nnot merely raise 
a matter and expect the authorities to examine it without substantiating the argument with evidence, 
especially not if the relevant information is in the hands of that exporter".146 In our view, it would 
be reasonable to expect only a limi ted or implicit analysis (including e.g. the authorities ' dismissal 
of an argument ) if the argument was raised without substantiating evidence.147 
 
136 Korea's  first written submission, para.  41 (quoting Appellate  Body Reports, US – Corrosion -Resistant 
Steel Sunset Review , para. 111; and US – Oil Country  Tubular Goods Sunset Reviews , paras.  283-284); 
Japan's  second written submission, para.  73 (also quoting Appellate  Body Report, US – Corrosion -Resistant 
Steel Sunset Review , para. 111). 
137 Panel Report, EU – Footwear (China) , para.  7.158; Appellate  Body Report s, US – Corrosion -Resistant 
Steel Sunset Review , paras.  111-112; US – Oil Country Tubular Goods Sunset Reviews , para. 180. See also 
Korea's  first written submission, para.  47; Korea 's opening statement at the first meeting of the Panel , 
para. 10; Japan 's first written submission, para. 2; and Japan's  opening statement at the first meeting of the 
Panel, para. 21.  
138 Korea's  first written submission, paras.  41, 43, and 47; Japan's  second written submission, para.  73. 
These basic standards also flow from the very nature of sunset reviews as an exception to what would 
otherwise be the expiry of the anti -dumping duties.  
139 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 111. See also 
Korea's  first written submission, para.  43. 
140 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , paras.  112-113. 
141 Appellate  Body Report , US ‒ Corr osion -Resistant Steel Sunset Review , para.  199. See also 
Appellate  Body Report, US – Carbon Steel (India) , para.  4.152 (quoting Appellate  Body Report, 
US – Anti-Dumping and Countervailing Duties (China) , para.  602).  
142 Korea's  response to Panel question No.  3(a) (where the specific context and legal provision in 
question  makes such consideration appropriate) ; Japan's  response to Panel question No.  3(a), para.  13. 
143 See, by analogy, Appellate  Body Reports, EC – Fasteners (China)  (Article  21.5 – China) , para.  5.163; 
EC – Fasteners (China) , paras.  488 and 519; and Panel Reports, Argentina – Poultry Anti -Dumping Duties , 
para. 7.238; Morocco – Hot-Rolled Steel (Turkey) , para.  7.92;  and Argentina – Ceramic Tiles , para.  6.116.  
144 Appellate  Body Report,  US ‒ Corrosion -Resistant Steel Sunset Review , paras.  111 and 199. 
145 Appellate  Body Report,  US ‒ Corrosion -Resistant Steel Sunset Review , paras.  111 and 199. See also, 
Appellate  Body Report s, EU – PET (Pakistan) , paras.  5.130 and 5.133 ; US – Washing Machines , para.  5.268; 
US – Wheat Gluten , paras.  53 and 55; US – Anti-Dumping and Countervailing Duties (China) , para.  344; and 
Panel Report, China – Broiler Products , para.  7.261.  
146 Korea 's comments on Japan 's response to Korea 's quest ion No.  10, p. 23. 
147 See, e.g. Panel Report, EU – Fatty Alcohols (Indonesia) , paras.  7.196 and 7.203 -7.204 . WT/DS553/R  
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  7.57.   We recall that not every error made or questionable inference drawn by an investigating 
authority in its treatment of a given matter or piece of evidence will necessarily rise to the level of 
a violation of an obligation of the WTO  Agreement s.148 This is particularly relevant to Article  11.3, 
which is a single holistic provision that does not prescribe a speci fic methodology nor particular steps 
or analyses that must be undertaken by investigating authorities. Thus, even where there is a clear 
factual or analytical error by an authority in respect of one facet of its likelihood -of-injury 
determination, it is po ssible that the final conclusion  could remain consistent with  Article  11.3. A 
panel 's evaluation of whether an investigating authority 's determination is consistent with 
Article  11.3 requires an assessment of the totality of the evidence, inferences, and i ntermediary 
findings relied upon by the authority to arrive at its final conclusion.149 
7.5.3   Japan 's claim under Article  11.3 of the Anti -Dumping  Agreement  concerning price 
and volume effects  
7.58.   Japan challenges  the KIA 's conclusion that " it is highly likely that once the anti -dumping 
measures are terminated, a drop in the price of the product under  investigation and an increase in 
imports will again cause material injury to the domestic industry".150 Japan presents  multiple 
grounds  on which this conclusion is inconsistent with Article  11.3 of the Anti -Dumping  Agreement .151 
We begin our analysis with Japan 's contention  that this conclusion reflects a failure to properly 
analyse the likely consequences  of the drop in the price of Japanese imports of the dumped pro ducts  
as a result of the removal of the anti -dumping duties  (the "Japanese price drop "). 
7.59.   Japan contends  that the KIA 's conclusion  quoted above  rests on a defective analysis of the  
likely consequences  of the Japanese price drop. Japan  focuses on the KIA 's intermedia te finding 
that: 
Where the anti -dumping measures are terminated, it is predicted that a steep fall in the 
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports 
to Korea and weaken the price co mpetitiveness of Like Products.152 
7.60.   As we understand it, Japan presents three main arguments in contending that this 
intermedia te finding lacks reasoning and is unsupported by positive evidence153, namely that the 
KIA erred by :  
a. considering that the Japanese price drop  would weaken the price competitiveness of the 
domestic like products154;  
b. considering that the  Japanese  price drop would lead to an increase in the volume of 
Japanese imports into Korea155; and  
 
148 See para.  7.45 above.  
149 By analogy, s ee Appellate  Body Report, Japan – DRAMs (Korea) , paras.  133-134. See also 
Panel  Report, EC – Fasteners (China ), para.  7.359.  
150 Japan's  first written submission, para.  148 ( referring to  KTC's final resolution, 
(Exhibit  KOR-4.b (BCI)), p. 23; and OTI 's final report , (Exhibit KOR -5.c (BCI)),  p. 67). As we have explained, 
we generally refer to the unredacted Korean versions of these exhibits, even where Japan cited the redacted 
Japanese versions.  
151 Japan's  first written submission, paras.  7 and 151; second written submission, paras.  161-168. 
152 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22; OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67; and Japan's  first written submission, paras.  151 and 158 -159. 
153 Japan's  first written submission, para.  151. 
154 Japan's  first written submission, paras.  158, 164, and 166; second written submission, 
paras.  387-388.  
155 Japan's  first written submission, paras.  151, 166, and 171 -172; second written submission, 
paras.  336 and 355 -359. WT/DS553/R  
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  c. failing to account for differences in the levels of " general -purpose steel"156 and "special 
steel"157 in the product mixes of the various countries at issue, given that these product 
types would have differing effects on the prices of domestic like products.158  
7.61.   We address each of these arguments in turn. In ev aluating these arguments, we are cognisant 
of Korea 's point that the KIA 's likelihood -of-injury determination under Article  11.3 was based on 
multiple intermedia te findings and considerations arising from the interaction between various pieces 
of evidence.159 We agree with Korea that it is important to avoid examining certain pieces of evidence 
or intermediary findings in isolation from the overall body of reasoning that supports the KIA 's final 
conclusion .160 To the extent that Japan demonstrates  that there are errors or flaws in the 
KIA's assessment of the consequences of the Japanese price drop, we examine holistically whether 
such errors rise to the level of a violation of Article  11.3 in section  7.5.3.4  in light of the totality of 
evidence and other intermediary findings.  
7.5.3.1   Whether the KIA erred by finding that the Japanese price  drop  would weaken the 
price competitiveness of the domestic like  products   
7.62.   Japan contends that Japanese prices would still be "substantially higher than other products 
(and particularly, higher than the domestic like products)" upon the lifting of the anti -dumping 
duties.161 According to Japan, therefore, "the fact that [Japanese]  prices fall somewhat does not 
sufficiently indicate that they have a negative impact on the price of the domestic like products".162 
7.63.   According to Korea, "[t] he removal of the duties would automatically mean that import prices 
would decrease at least equal to the level of the duty ", and the KIA  "found that this would of course 
put additional pressure on domestic prices as well ".163 For Korea, this was the "logical conclusion" in 
light of the KIA 's examination of prices164, as well as  the situation that had prevai led prior to the 
imposition of anti -dumping duties165 and the totality of other intermedia te findings by the KIA , which 
together " supported the reasonable conclusion that removal of the duties would likely lead to a 
continuation of dumping and a recurrence of injury ".166 
7.64.   We examine the parties ' arguments and rebuttals in greater detail below. We begin with a  
brief overview of the relevant background , record evidence , and findings by the KIA . 
7.65.   In their application  for the third sunset review, the app licants stated that " the main deciding 
factor for the purchase of Product Under Investigation is the price".167 They explained that " during 
the term when anti -dumping measures have been implemented from 2004 up to the present,  [they]  
have proactively made e fforts to improve  competitiveness  at various levels  … in order to deal 
with … a large volume of low price imported products ".168 They further explained that, during the 
 
156 In this Report, our use of the term "general -purpose steel" relates to Jap an's definition for this term. 
(Japan's  first written submission, para.  27 and fn 17). For the avoidance of doubt, our use of the term is for 
convenience only, and does not imply that we have reached a view on the utility of this term. In particular, our 
use of the term is without prejudice to any findings that we may reach on the existence, relevance, or scope of 
a category of SSBs described as "general -purpose steel".  
157 See ibid.  
158 Japan's  first written submission, paras.  164-167; second written submission, para.  350. 
159 Korea's  first written submission, para.  6; second written submission, paras.  29, 37, and 185; and 
response to Panel question No.  2. 
160 Korea's  first written submissio n, para.  37; second written submission, paras.  37 and 106; responses 
to Panel question Nos.  2, 6(b)(iv), 6(d)(iv), and No. 98, paras.  148-149; and common response to Panel 
questions after the  second meeting with the Panel, para.  2. 
161 Japan's  second written  submission, para.  387. 
162 Japan's  second written submission, para.  387. See also first written submission, paras.  158, 160(c), 
160(d), 164 (including the cross -reference to paras.  110(g)  and 111), and 166; and responses to Panel 
questions No.  15, para.  85, and No.  34, para.  193. 
163 Korea's  second written submission, paras.  185 and 227 -229. 
164 Korea's  first written submission, paras.  247-248 and 263 -265; second written submission, 
paras.  185 and 227 -229; and response to Panel question No. 64(a).  
165 Korea's  second written submission, para.  238. 
166 Korea's  second written submission, para.  29. 
167 Application, (Exhibit JPN -4.b), p. 46. (emphasis added)  
168 Application, (Exhibit JPN -4.b), pp. 2-3. (emphasis added)  WT/DS553/R  
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  period of review (POR), there had been an " inevitable  price reduction  of domestic products due to 
competition with products from India and other countries that are imported at a low price".169  
7.66.   According to the applicants ' data, average Japanese prices in 2015 were [[***]] higher than 
those of other imports and the domestic like products.170 However, the applicants  believed  that this 
was because  their data additionally encompass ed "products excluded from the anti -dumping 
measures and high -quality special -purpose steel ".171 The applicants anticipated that the Japanese 
prices would "change"172 and become "significantly lower"173 once the data were limited to the 
products subject to anti -dumping duties.  
7.67.   The applicants also explained  in their application that "stainless steel bar s, which is Product 
Under Investigation have significantly different prices depending on the grades of steel".174 However, 
with respect to prices within a given steel grade, the applicants stated a t the public hearing that 
"there is virtually no price diffe rence when comparing 'Apples to Apples 304 ' steel grades", and 
"there are no price differences between domestic products and products from Japan and India, when 
selling the same steel grades of 304 and [316]".175 A Korean consumer speaking in support of the  
applicants during the public hearing also explained that :  
Unlike IT -related electronic products whose price can be differentiated according to their 
quality characteristics, because stainless steel bars can be used when manufactured 
based on internationa lly agreed specification, products manufactured within such 
specification whether produced in Japan or India, will have no significant difference in 
quality, and thus price has an absolute  effect  in deciding  whether  to purchase  the 
product . In particular, steel grades of 304 and 316, which are general purpose steel 
grades that account for most of the demand, are even more sensitive  to price.176 
7.68.   According to this piece of record evidence,  there is price-sensitivity for all SSBs , even if certain 
grades like 304 and 316 are "even more sensitive" . We are not aware of any record evidence in 
which either the applicants or the KIA stated that price was limited to being the most important 
factor in purchasing decisions for "basic grades " only .177 
7.69.   The Japan ese exporters contended that they shipped  "high-value  products " at higher prices, 
and could not compete with low -priced products from other countries  in the Korean market .178 They 
rejected the proposition that they would resume importing high volumes of low -priced products into 
the Korean domestic market , particularly in view of the aggressive price competition from those 
low-priced products .179  
7.70.   Turning to the KIA 's findings in the third sunset review, the KIA found the "price competition" 
in 2015 to be (KRW/ton ne) [[***]] for dumped imports measured cumulatively, [[***]] for 
 
169 Application, (Exhibit JPN -4.b), pp. 25-26. (emphasis added)  
170 Excerpt of a pplicants ' statement of opinion after the public hearing, (Exhibit KOR -40 (BCI)), p. 2; 
Application, (Exhibit JPN -4.b), pp. 20 and 25. 
171 Application, (Exhibit JPN -4.b), pp. 20 and 25. See also Excerpt of a pplicants ' statement  of opinion 
after the public hearing, (Exhibit KOR -40 (BCI)), p. 2. 
172 Application, (Exhibit JPN -4.b), p. 15. 
173 Excerpt of a pplicants ' statement of opinion after the public hearing, (Exhibit KOR -40 (BCI)), p. 2. 
174 Application, (Exhibit JPN -4.b), p. 14. 
175 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), p.  31 (representative of 
applicants, Ki -Seok You, accountant ). We have corrected the clerical error in the translated version, which 
referred to grade "306" rather than grade "316" as per the original.  
176 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), pp.  20-21. 
(emphasis  added)  
177 See paras . 7.65 and 7.67 above, and para. 7.73 below.  
178 Japanese exporters'  opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), pp. 9-10; Japanese 
exporters'  post-hearing opinion , (Exhibit JPN -16.b (BCI)), p.  6; and Japanese exporters ' opinion regarding 
OTI's revised interim report, (Exhibit JPN -18.b), p.  2. 
179 Japanese exporters'  opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), pp. 16-17. See also Minutes 
of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), pp.  30-31 (Gwang-yeon Hwang, attorney 
representing the exporters); and Japanese exporters ' opinion regarding OTI 's revised interim report , 
(Exhibit  JPN-18.b), p.  2. WT/DS553/R  
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  Japanese imports, [[***]] for Indian imports, [[***]] for imports from other countries, and [[***]] 
for domestic like products.180 The KIA determined that : 
• During the period of review in which anti -dumping duties were imposed, the 
sales prices of the dumped imports were lower by KRW [[***]] – [[***]] per 
ton than that of like products.  
­ If no anti -dumping duties were levied, the sales price of the dumped 
imports would have been lower by KRW [[***]] – [[***]] per ton than 
that of like products.  
• Once the anti -dumping measures are terminated, this would bring a drastic fall 
in the price of the dumped imports from Japan (KRW [[***]] per ton in  2015), 
which would also result in large recovery of price com petitiveness in the 
domestic market.181 
7.71.   We understand that the figure of KRW/tonne [[***]] in the final bullet point in this extract 
represents the amount of anti -dumping duty in the average Japanese resale price of KRW/tonne 
[[***]] in 2015.182 Thus, the KI A's finding in the final bullet point pertains to an average Japanese 
resale price of KRW/tonne [[***]].183 As mentioned earlier, the KIA proceeded to find ( inter 
alia) that:  
Once the anti -dumping measures are terminated, it is predicted that a deep fall i n the 
price of the dumped imports ( △ [[***]]% for Japanese products ) … will lead to a growth 
in exports to Korea and weaken the price competitiveness of the like products.184 
7.72.   We likewise  understand that the reference to a [[***]] drop in the price of Japanese imports 
represents the  aforementioned  figure of KRW/ton ne [[***]], i.e. the amount by which the average 
Japanese resale price would be lower in 2015 if the anti -dumping duties were  removed.185 In 
conjunction with other intermediary findings186, the KIA proceeded to conclude that "[i] t is highly 
likely that once the anti -dumping measures are terminated, a drop in the price of the dumped 
imports and an increase in the volume of dumped imports will lead to recurrence of material injuries 
to the domestic industry ".187 
7.73.   Korea explains188 that the KIA 's findings in the third sunset review rest  on its conclusion in 
earlier reviews and the original investigation that price is the most important factor in purchasing 
 
180 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 34. 
181 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 63. 
182 Korea's  response to Panel question Nos.  64(a)  and 64(b); second written submission, fn 130. See 
also OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 63, table 42.  
183 Korea's  response to Panel question No.  64(b); second written submission, f n 130.  
184 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67.  
185 Korea's  second written submission, paras.  124-125 and fn 130; response to Panel question No.  69. 
We understand that, since the intermediate finding pertained to the 2015 average Japanese resal e price in 
particular ( OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 63), the subsequent correlative finding in the 
"Overall  Evaluation" section  was likewise based on this 2015 -specific finding. (Korea's  second written 
submission, para.  160; response to Panel question No.  6(c)). We note that the KIA referenced only the 
2015 price levels in the "price competition" column of the table 12 in the OTI's  final report ( OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 34; see also Korea's  response to Panel questio n No.  40; and second 
written  submission, para.  229). Korea also stated that " the most relevant trend should be the trend that is the 
most recent in time" when explaining why the KIA focused on the slight [[***]] in the volume of dumped 
imports from 2014 -2015 than the larger overall [[***]] in volume over the POR 2012-2015. (Korea 's response 
to Panel question No. 66).  
186 We discuss the significance of these below in section  7.5.3.4 . 
187 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67. 
188 Our depiction of Korea's  description of the KIA's  findings in this Report is for convenience only and is 
without prejudice to any objections by Japan that this depiction encompasses impermissible ex post  reasoning . 
(See, e.g. Japan 's second written submission, para. 21). For the reasons set out in section 7.3.3, we proceed 
on the basis of Korea's  description in this regard and  limit our assessment of  Japan 's objections in this dispute 
concerning ex post  rationalizations  to those aspects in which it i s specifically necessary  to resolve the dispute . WT/DS553/R  
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  decisions.189 According to Korea, t he importance of price in purchasing decisions arises from  the 
interchangeability  of certified products within a given grade.190 In particular, Korea explains that the 
KIA found that competition  in the SSB market  hinged on obtaining certification that a given product 
type satisfied the criteria for a certain grade, and once such certifi cation was obtained, competition  
generally  occurred amongst SSBs within a given grade, i.e. on a grade -by-grade basis.191 According 
to Korea, the KIA " repeatedly confirmed that SSB products with the same grade are being used 
interchangeably in the market ir respective of their origin ".192 Once certification for a given grade is 
obtained, "there is no substantial difference to the quality of products that are produced within such 
standards, be it Japanese or Indian"193, with " transactions … made based on 
interna tionally -recognized standard [s]".194 Thus, Korea explains that "[t] he Korean authorities 
obviously considered that  [the] termination of the anti -dumping duties would lead to improved price 
competitiveness of the dumped imports on [a] grade -by-grade basis ".195 
7.74.   However,  Korea also explains that perceptions of quality, credibility, and technical superiority 
were found by the KIA to lead to price differences.196 Specifically, the KIA found that "[s] tainless  
steel bars have different uses depending on the steel grade, and within the same steel grade, Korean 
and Japanese products have high credibility in quality and Indian and Chinese products have high 
price competitiveness ".197  
7.75.   We turn now to the parties ' arguments and rebuttals , and to our evaluation . Japan contends 
that the KIA erred by considering that the removal of the anti -dumping duties from Japanese prices  
would weaken the price competitiveness of domestic like products.198 For Japan, t his is because, 
even without the anti -dumping duties,  Japanese prices would remain  significantly higher  than the 
prices of the domestic like product.199 Given the price sensitivity of the SSB market, Japan argues 
that the KIA 's determination failed to articulate h ow prices at a significantly higher level  than the 
prices of domestic like products could weaken the price competitiveness of domestic like products.200 
 
189 For a detailed discussion on this point, see Annex A -3 (Interim Review), paras. 2.9 -2.30. In its first 
written submission Korea " recount [ed] …  relevant facts and findings reached by the Korean authorities in the 
original investigation and the previous reviews " (Korea's  first written submission, para.  60), which included the 
finding in the second sunset review that " price was the most important factor for the consumers in making a 
decision to purchase ". (Ibi d. paras.  84-85 (quoting OTI's final report ( second  sunset  review), 
(Exhibit  KOR-11.b (BCI) ), p. 9)). Korea again quoted this passage when providing pinpoint references about 
the "repeated confirmations " made by the KIA with respect to the conditions of co mpetition for SSBs in the 
Korean market. (Korea's  response to Panel question No.  6(a)). We note that Korea sought to contextualize this 
finding by explaining ( inter alia ) that "[t] he statement that price was the most important factor does not mean 
that it is the only factor or that the lowest price always prevails ". (Korea's  response to Panel question 
No. 20(e)(v)). We address the relevance of that matter at paras.  7.74, 7.78, and 7.80 below.  
190 Korea's  responses to Panel question Nos.  20(b)  and 64(c)(ii). As me ntioned in para.  7.74, Korea also 
stated that the KIA found that there could be price differences based on factors such as quality and reputation.  
191 Korea's  first wri tten submission, paras.  56-59; second written submission, paras.  21 and 170; 
response to Japan's  question after the second meeting with the Panel No.  1, para.  15. We note that Korea also 
contended  that, for some grades, there can be inter -grade competition . (Korea 's second written submission, 
paras.  21 and 98). For a detailed discussion on this point, see Annex A -3 (Interim Review), paras. 2.31 -2.41. 
Our findings in this section  are without prejudice to that contention.  
192 Korea's  responses to Panel question  Nos. 6(b) and 20(f).  
193 Korea's  response to Panel question No.  37 (quoting Consumer 's summary of the statement at 
public  hearing , (Exhibit JPN -12.b), and referring to Minutes of public hearing (24  November  2016) , 
(Exhibit  KOR-19.b (BCI)), pp.  20-21). 
194 Korea's  response to Panel question No.  20(f).  
195 Korea's  response to Panel question No.  64(c).  
196 Korea's  responses to Panel question Nos.  6(d), 20(b), and 20(e).  
197 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 55. 
198 Japan's  first written submission, para . 151: "Japan considers that there is a lack of reasoning and 
positive evidence in particular with regard to … (ii) the finding that the termination of anti -dumping duties 
would lead to a deep fall in the price of the product under investigation and then w eaken the price 
competitiveness of the domestic like products. " 
199 Japan's  second written submission, paras.  387-388. See also first written submission, 
paras.  160(c)  and (d), and 164 (including the cross -reference to paras. 110(g)  and 111).  
200 Japan's  second written submission, paras.  194-196 and 387 -388. See also Japan's  responses to 
Panel question No.  15, para.  85, No. 19(b), para. 108, No. 19(c), para. 113, No. 20(b), para.  121, and No.  34, 
para. 193. We recognize that some of Japan 's arguments  to which we refer in this section  pertain  to the 
dynamics of price competitiveness during the POR , as opposed to the dynamics upon the removal of the 
anti-dumping duty . We take such arguments into account only to the extent that they shed light c onceptually 
on the role of price competition in the Korean SSB market. We agree with Korea that comparative price -related 
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  For Japan, the presence of a large volume of imports from other countries at significantly lower 
prices would be a more likely source of price pressure and would effectively nullify any adverse 
effects  that significantly higher Japanese prices could have on  domestic like products.201 
7.76.   We agree with Japan that it is not obvious how prices at a significantly hig her level than the 
prices of domestic like products would weaken the price competitiveness of domestic like products 
in the context of a price -sensitive market. This is particularly so given that , according to Korea,  the 
KIA's determination on  the competitive relationship amongst SSB products encompassed  its finding 
from the original investigation that " consumers prefer low -priced products ".202 
7.77.   Thus, we disagree with Korea that the "automatic" price drop as a result of the removal of 
the anti -dumping duties would "of course"203, "necessarily"204, or "undoubtedly"205 lead to price 
pressure on domestic like products, thereby weakening their  price competitiveness. Rather, the price 
drop would leave average Japanese resale prices in 2015206 at a level almost [[***]]207 higher than 
domestic like products and other countries ' imports in a price -sensitive market . On its face, the 
KIA's finding that Japanese prices would weaken the price competitiveness of domestic like products 
after the price drop is  inconsi stent with the  uncontested  facts that the SSB market is price -sensitive 
and the average Japanese resale price in 2015  would remain almost [[***]] higher after the price 
drop.208 For the KIA  to engage in an "unbiased and objective" evaluation of the facts in the sense of 
Article  17.6(i ) of the Anti -Dumping  Agreement , we would expect  the KIA  to address and reconcile 
the apparent contradiction between its finding on this point and these  unconte sted record  facts.209 
7.78.   Korea makes the point that price overselling does not imply a lack of competition, and higher 
on-average import prices can exert detrimental price pressure on lower on -average domestic 
prices.210 We do not exclude this possibility . Howe ver, we agree with Japan that the KIA never 
explained how price overselling could weaken the price competitiveness of domestic like products  in 
the present sunset review.211 Indeed, Korea appears to accept that the KIA never undertook such 
 
assessments during the POR may be of limited value where they encompass prices that include the 
anti-dumping duty as a pricing compone nt. (Korea's  response to Panel question No.  19(a)(i)).  
201 Japan's  first written submission, paras.  158, 160, and 162; second written submission, 
paras.  304-305 and 395; and response to Panel question No.  18(b), para.  100. 
202 For a detailed discussion on thi s point, see Annex A -3 (Interim Review), paras. 2.46 -2.54. At 
para. 121 of its first written submission, Korea states in respect of the original "likeness" finding that "[t] his 
original finding was repeatedly and consistently confirmed in the first, second , and third sunset reviews ", and 
that this original finding incorporated the consideration that " consumers prefer low -priced products ". 
(OTI's final report (original investigation), (Exhibit KOR -9.b (BCI)), p. 48). See also Korea 's response to Panel 
questi on No. 6(a) (quoting OTI's final report (second sunset review) , (Exhibit KOR -11 (BCI)), p. 9; and 
OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 9 and fn 17 (relying on the "like products" finding in the original 
investigation)). See further Korea's  response to Panel question No.  5: "[i]n the third sunset review, therefore, 
the KTC confirmed based on the record evidence pertaining to the third POR that the relevant situations have 
not substantially changed from the PORs of the previous proceed ings." 
203 Korea's  second written submission, para.  229. 
204 Korea's  second written submission, para.  29. 
205 Korea's  opening statement at the first meeting of the Panel, para.  24. 
206 We focus on the 2015 prices because these were the prices explicitly referred t o by the KIA when 
evaluating the consequences of the price drop arising from the lifting of the anti -dumping duty. ( OTI's final 
report , (Exhibit KOR -5.c (BCI)),  p. 63). 
207 The 2015 average Japanese resale price (KRW /tonne  [[***]]), minus an amount represent ing the 
anti-dumping duty (KRW [[***]]), results in KRW /tonne  [[***]] (that we refer to as the "Japanese price 
without the duty"). The Japanese price without the duty is almost [[***]] higher than the 2015 average 
Korean resale price of KRW /tonne  [[***]]. Viewed from the inverse perspective, the Korean resale price is 
around [[***]] lower than the Japanese price without the duty . (Korea 's response to Panel question No. 64(b); 
Japan 's response to Panel question No. 64(b), para. 328). Given the KIA 's premise that price was the most 
important factor in purchasing decisions , and that consumers prefer low price, we generally reference the 
Japanese price without the duty as being almost [[***]] higher  in 2015 than both the equivalent Korean resale 
price and the equivalent third -country import resale price in 2015. We recognize the invers e perspective that 
average Korean and third -country import resale prices were around [[***]] lower  than the Japanese price 
without the duty , and we treat these as effectively the same, namely a reflection of difference in price of KRW 
[[***]] vis-à-vis the Korean resale price and KRW [[***]] vis-à-vis the third -country import resale price. The 
choice of reference point, and the resulting representation of percentage difference, does not affect the 
outcome of our findings.  
208 Japan's  second written submission, para.  387. 
209 Appellate  Body Report , US – Softwood Lumber VI ( Article  21.5 – Canada) , paras.  93 and 97 . 
210 Korea's  response to Panel question No. 64(b); second written submission paras.  179-181. 
211 Japan's  second written submission, para.  198. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  an analysis.212 For the avoidance of doubt, we do not consider  that a price depression/suppression 
analysis is legally required  under Article  11.3 of the Anti -Dumping  Agreement .213 Rather, in our view, 
it is the particular  circumstances  of this case  that would warrant addressing  the fact that Japanese 
prices would remain almost [[***]] higher after lifting the anti -dumping duties. To reiterate, these 
circumstances are as follows. First, under the approach adopted by the KIA to determine the 
likelihood -of-injury,  signifi cance was placed on what the average Japanese resale price in 2015 would 
be upon lifting the anti -dumping duties, and whether that price would adversely affect domestic 
price competitiveness .214 Second, the KIA 's findings rested on the premise that price wa s the most 
important factor in purchasing decisions and that consumers tended to prefer low prices.215 Third, 
the record shows that the applicants themselves described low prices as the source of price pressure  
arising from imports .216 In view of these circumstances,  as part of an "unbiased and objective" 
evaluation of the facts, we would expect the KIA to address  how domestic price competitiveness 
would be weakened by Japanese prices that would remain  almost  [[***]] higher even if the 
anti-dumping dutie s were lifted.   
7.79.   Korea suggest s a number of ways in which the KIA did indeed address  this apparent 
contradiction . These are as follows. First, Korea explains that the KIA found that ave rage Japanese 
prices could be higher due to the perception that Japanese  products  were better in terms of  quality 
and credibility .217 Second, Korea explains that the "slight difference" in the proportions of product 
grades in the respective product mixes of Korea and Japan could explain differences in average 
prices218, and that the KIA reached its findings on price competitiveness on a grade -by-grade 
basis.219 Third, Korea explains that the "price gap"  between higher -priced Japanese imports and 
lower -priced  domestic like products is not indicative of a lack of competitive ove rlap between the 
two due to the fact that all relevant producers could and did produce the same range of products.220 
Fourth, Korea explains that the Japanese prices would be "relatively close" to the price of domestic 
like products  upon the lifting of the anti-dumping duty , and that "the complex law of the market"  
would result in even lower prices  through "market interplay" , in tandem  with the additional 
downward price pressure from Indian imports.221 We assess each of these in turn.  
7.80.   We accept Korea 's contention that the KIA did not find price to be the only factor affecting 
purchasing decisions.222 Rather, the KIA found that " within the same steel grade, Korean and 
 
212 Korea's  response to Panel question No.  19(c)(ii).  In response to the Panel's  question "[i] s there any 
analysis of price suppression or price depression in the Korean authorities determination? ", Korea responded 
"no specific price undercutting, suppression a nd/or depression analyses and findings were made, as they were 
never needed ". Korea proceeded to list certain "price -based findings" made by the KIA, but none of these 
address how domestic price competitiveness would be weakened by Japanese prices that rem ained almost 
[[***]] higher even  after the duties were lifted. (See also Korea's  second written submission, para.  92). 
213 In this regard, we agree with Korea that Article  11.3 of the Anti -Dumping  Agreement  does not 
prescribe  this kind of price effects analysis as a matter of law . (Korea 's second written submission, para. 92). 
We also agree that , when an authority engages in a price -related inquiry under Article  11.3, it stands to reason 
that such an inquiry would be directed  at the effect of (lifting)  the anti -dumping duty on domestic prices  as 
part of the overall forward -looking analysis of what would likely happen if the duty were to be terminated.  
(Korea 's second written submission, paras.  103, 106, and 122).  
214 For a detail ed discussion on this point, see Annex A -3 (Interim Review), paras. 2.55 -2.68. This is 
apparent from the plain text of pp.  63-67 and table 42 of the OTI's final report , (Exhibit  KOR-5.c (BCI) ), in 
which the KIA examined the future impact of Japanese import s on domestic price competitiveness by deducting 
the amount of the anti -dumping duty from the contemporaneous average Japanese resale price. Our 
understanding also accords with Korea's  description of the KIA's  approach in this regard. (Korea's  second 
written submission, paras.  124, 185, and 240; first written submission, paras.  102 and  239-240; and response 
to Panel question No.  69). 
215 See paras.  7.73 and 7.76 above . 
216 See paras.  7.65-7.67 above . It is noteworthy that the applicants excluded Japanese exporters from 
their description of contemporaneous competitors in their application to initiate the third sunset 
review . (Application, (Exhib it JPN -4.b), p p. 14-15 and 25 -26). 
217 Korea's  response to Panel question No.  19(c)(iii). See also second written submission, paras.  81 
and 178-181; and response s to Panel question  Nos. 6(d), 19(b) , 20(f), and 64(c ) (cross -referenc ing the 
response s to Panel quest ion Nos.  19 and 20).  
218 Korea's  response s to Panel quest ion Nos.  20(e)  and 20(f).  
219 Korea's  response to Panel quest ion No.  64(c)  (cross-referenc ing the response to Panel quest ion 
No. 20). 
220 Korea's  second written submission, par as. 233-234 and 242 (referring to Japan's  response to Panel 
question No.  64(c), para.  329).  
221 Korea's  response to Panel quest ion Nos.  19(a)  and 64(d); second written submission, para.  125.  
222 Korea's  response to Panel quest ion Nos.  19(c)(iii)  and 20(e)(v);  second written submission, 
para. 178. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  Japanese products have high credibility in quality and Indian and Chinese products have h igh price 
competitiveness ".223 Thus, we accept Korea 's point that "that cheaper priced products will [not] 
always win the buyer ".224 However, to the extent that Korea relies on this finding  by the KIA  to 
justify how higher Japanese prices could weaken the pr ice competitiveness of  lower -priced domestic 
like products225, we do not consider that it supports Korea 's argument. The KIA 's finding indicates 
that both Japanese and Korean products command a price premium within a given grade. It does 
not suggest that Japanese products command a price premium over  Korean  products within a given 
grade due to perceived differences in quality or other features.226 The KIA 's findings conc erning price 
premiums and price discounts for products of different origin do not shed light on how Japanese 
prices might affect Korean prices,  since they were both found by the KIA to command  a premium. 
Accordingly,  the fact that Japanese products might c ommand a price premium does not explain how 
the price competitiveness of Korean  producers would be weakened by Japanese prices that remain  
significantly higher . We agree with Japan that Korea 's argument in this regard goes beyond the 
analysis undertaken by  the KIA in the review  and reflect s ex post reasoning .227 To rely on such 
reasoning to uphold the KIA 's determination would effectively lead the Panel to engage in a de novo 
review.  
7.81.   We accept Korea 's contention that the difference in average prices could be explained by a 
difference in the proportions of product grades in the countries ' respective product mixes.228 We also 
accept that, if a weakening in price competitiveness were to be demonstrated  on a grade -by-grade  
basis, the difference in each country 's average  prices  in the Korean market may become irrelevant. 
This is because an assessment of price competitiveness on a grade -by-grade basis could remove the 
distortion that might arise if one country 's product mix is comprised of a higher proportion of grades 
or product types that occupy a higher price bracket.229 However, we do not understand that the  KIA 
did, in fact , undertake such an assessment. On one hand, Korea tells us that "[t]he Korean 
authorities obviously considered that termination of the anti -dumping duties would lead to improved 
price competitiveness of the dumped imports on  [a] grade -by-grade  basis".230 On the other hand, 
Korea tell s us that the KIA did not make any adjustments in its price -related analyses  to account for 
differences in product mixes, grades, or product types .231 From our reading of the determination , 
 
223 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 55. 
224 Korea's  response to Panel question No.  19(c).  
225 Korea's  responses to Panel question No.  19(b)(iii), fn 87, No. 19(c)(iii), fn 92, No. 20(f)(vii), fn  102, 
and No.  31(iii),  fn 125; second written submission, para.  80 and fn 79. More generally, see Korea's  responses 
to Panel question Nos.  20(e)(v), 20(f)( v)-(vi), and 64(b); and second written submission, paras.  81 and 
178-181. 
226 We note that some of Korea's  submissions in the present proceedings appear to accord with our 
understanding in this regard. For instance, Korea submitted (as relevant findings from  the second sunset 
review)  that "in terms of quality, Japan and Korea have received outstanding reviews" and that "[t] he OTI 
noted that the Japanese and Korean SSBs possess relatively higher quality, but confirmed that there was 'no 
difference in function and component ' between the dumped imports and the like domestic products, and that 
'they are interchangeably used '" and "[i]n fact, it was confirmed that price was the most important factor for 
purchasers ' buying decisions ". (Korea's  first written submissi on, para.  85). Along similar lines, Korea stated 
that "[b] ecause competition takes place always  between SSB products with corresponding grade certification, 
there can be no difference between the Japanese and Korean SSB products on steel quality, product t ype, 
grade, or product mixes ". (Korea's  response to Panel question No.  19(a)  (italics original; underlining added)).  
227 Japan's  second written submission, paras.  195-197. 
228 Korea's  response s to Panel quest ion Nos.  20(e)  and 20(f).  
229 For the avoidance of do ubt, we do not make any findings concerning the link or correlation between 
price and grade through this observation. Our observation simply follows from Korea's  assertion that " the slight 
difference in the proportions of product grades when looking at ave rages " may " explain some of the price 
range differences ", and that " these are averages and that such averages may reflect a slight difference in the 
proportion of products in the basket ". (Korea's  response s to Panel quest ion Nos.  20(e)  and 20(f)). We also do 
not consider that a grade -by-grade or model -by-model assessment would be legally required  under Article  11.3 
of the Anti -Dumping  Agreement. We simply recognize that such an assessment could be useful if a comparison 
of price averages is affected by diff erences in product mixes.  
230 Korea's  response to Panel question No.  64(c)(iv). (emphasis added)  
231 Korea's  response to Panel question No.  19(a)(i) -(ii). According to Korea, this was because price 
comparability is "naturally ensured for SSB products" since all relevant producers could and did produce the 
same range of products due to the high adaptability of SSB production facilities . (Korea's  second written 
submission, para.  99; responses to Panel question Nos.  18(a)  and 29(ii)). M oreover, t he KIA found that the 
basket of goods sold in Korea by the various exporters and producers "largely overlapped". (Korea's  response 
to Panel question No.  8). See also Korea's  responses to Panel question Nos.  6(d) ("same range of models in 
not too dissimilar  proportions"), and No.  7; and comments on Japan's  response to Korea's  question No.  2, 
p. 8 ("as found by the Korean authorities during the review … [the] facts on the record … revealed a relatively 
constant and broad overlap in all types of SSB models dur ing the POR "). WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  the KIA examined  the impact of removing the anti -dumping duties on domestic price competitiveness 
by reference to the  average  Japanese resale price across all covered SSBs and not based on the 
price within a given grade.232 Japan shares this understanding .233 Against that background , we are 
unwilling to speculate as to whether or how a difference in respective product mixes might explain  
the apparent contradiction in finding that domestic price competitiveness would weaken as a result 
of lifting the anti -dumping duties despite  the av erage Japanese resale price remaining  significantly 
higher  in a price -sensitive market . To engage in such speculation  to uphold the KIA 's determination 
would effectively lead the Panel to engage in a de novo review.  
7.82.   Korea seems to argue that the "price gap " between higher -priced Japanese imports ( even 
upon lifting the anti -dumping duties ) and lower -priced domestic like products is irrelevant because 
there continued to be a "competitive overlap " between the two.234 According to Korea, this is because 
all rele vant producers could, and did, produce the same range of product types and models, and 
therefore they all competed over the same demand and were in competition with one another.  We 
accept that such a  "price gap" may be come  irrelevant when the focus is on what producers could  
produce, particularly if production can shift in response to demand for different  product types and 
between product  types  that command  different prices. We also accept that what producers could  
produce in the future may be a useful con sideration as part of the forward -looking analysis under 
Article  11.3 of the Anti -Dumping  Agreement . However, this was not the basis on which the KIA 
reached its finding that domestic price competitiveness would be weakened if the anti -dumping 
duties on Ja panese imports were terminated. This finding was instead reached by deducting an 
amount representing the anti -dumping duty from the average Japanese resale price in 2015 and by 
examining whether the resulting figure would cause domestic price competitivene ss to weaken.235 
This finding was not based on the prices of what the Japanese exporters could  produce, but on the 
average resale price  of what the y did produce and ship to Korea , minus an amount representing the 
anti-dumping duty . To that extent, we would agree with Japan that an explanation of weakened 
domestic price competitiveness on the basis of  what Japanese exporters could  produce in the future 
is not present in the KIA 's determination  and would therefore reflect ex post reasoning .236 Moreover, 
we are unwilling to accept that this might have been an "implicit" consideration of the KIA  without 
any evidence demonstrating this . Rather, we agree with Japan that it is not obvious how the mere 
ability to produce a product in and of itself de monstrates that this product would be competitive in 
the market, and hence how such an ability would necessarily weaken domestic price 
competitiveness.237  
7.83.   Korea also appear s to contend that  removing the anti -dumping duties could lead to a 
reduction in Japanese prices that is  ultimately  larger than the simple quantum of the duties , and this 
would also weaken domestic price competitiveness .238 Korea 's contention is based on a confluence 
of variables that may produce a larger reduction in Japanese prices  and result in additional price 
pressure  through "market interplay"239 and the "complex law of the market".240 The KIA 's finding 
that links the removal of the anti -dumping duties to the weakening of domestic price competitiveness 
is based on the deduction of an amount representing the anti -dumping duty from the average 
 
232 OTI's final report , (Exhibit KOR -5.c (BCI))  pp. 63 and 67. The examination focused (at ibid.  p. 63) on 
the deduction of KRW [[***]], which was the amount of anti -dumping duty in the 2015  average Japanese 
resale price of KRW [[***]]. (Korea 's response to Panel question No.  69; see also second written submission, 
para. 122).  
233 Japan's  second written submission, para.  350. 
234 Korea's  second written submission, paras.  233-234 and 242 (referring to Japan's  response to Panel 
question No.  64(c), pa ra. 329). See also responses to Panel question Nos.  19(a)(ii) -(iii) and 64(c)(i) -(ii). 
235 See paras. 7.71-7.72 above. As Korea explains it, the KIA made the Japan -specific finding that 
"[t]here would be a drastic fall in the prices of dumped imports from Japan if duties were removed (i.e. at least 
by 15%), which would cause  them to be increasingly price competitive in the market ". (Korea's  second written 
submission, para.  240 (quoting OTI's  final report , (Exhibit KOR -5.c (BCI) ), pp. 57-59 and 63  (emphasis 
added))). Korea also explained that the figure o f KRW/tonne  [[***]] in the KIA's  analysis " stands for the 
difference between KRW [[***]] and KRW [[***]]", with KRW [[***]] representing the average resale price of 
the Japanese dumped imports  in 2015. (Korea's  response to Panel question No.  69). 
236 Japan's  second written submission, para.  280.  
237 Japan's  second written submission, para.  283. Our remarks in this regard pertain only to an alleged 
link between weakened domestic price competitiveness and the ability to produce, and compete effectively, in 
all applicable product lines, and do not imply a broader finding on the conditions of competition generally.  
238 Korea's  responses to Panel question Nos.  19(a)(i)  and 64(d); second written submission, 
paras.  124-125. 
239 Korea's  response to Panel question No.  64(d).  
240 Korea's  response to Panel question No.  19(a)(i).  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  Japanese resale price.241 The KIA 's finding does not encompass an explanation of  other  variables 
that interact in a particular way and thereby  cause a further reduction in Japanese prices that would , 
in turn, exert additional price pressure on domestic like products . While we do not discount the 
possibility that an authority could reach such a finding , we are unwilling to read into the 
KIA's determination an "implicit" finding or inference242 that res ts on the proposition that a 
complicated confluence of variables ("the complex law of the market" ) causes a particular outcome . 
There is no evidence that the KIA made that implicit finding or inference243, and therefore t o rely on 
such reasoning to uphold t he KIA 's determination would effectively lead the Panel to engage in a de 
novo review.  
7.84.   For the foregoing reasons, we reject the potential ways advanced by Korea in which the KIA 
addressed  the apparent contradiction in its finding that , in the context of a price -sensitive market, 
domestic price competitiveness would be weakened by Japanese prices that remain  almost  [[***]] 
higher upon the lifting of the  anti-dumping duties.  As a factual matter, we are not convinced that 
the KIA sought to address  this apparent contradiction  as part of arriving at its determination . While 
we do not exclude the possibility that Korea 's arguments before us could  reconcile this apparent 
contradiction, we agree with Japan that these "go well beyond " the analysis undert aken by the KIA 
in its determination  and that they represent  ex post reasoning .244 As we have stated, to rely on such 
reasoning to uphold the KIA 's determination would effectively lead the Panel to engage in a de novo 
review.  
7.85.   Given that the KIA  did not seek  to address  this apparent contradiction , we consider that  the 
KIA failed to engage in an "unbiased and objective" evaluation of the facts when concluding that 
domestic price  competitiveness would be weakened by the Japanese pric ing level resulting from the 
removal of the  anti-dumping duty from the average Japanese resale price . We address in 
section  7.5.3.4  below whether this failure rises to the level of a violation of Article  11.3 of the 
Anti-Dumping  Agreement . 
7.86.   Japan additionally  contends that the KIA should have sought to address  this apparent 
contradiction due to the large presence of low -priced imports from other countries in the 
Korean  market.245 For Japan, a weakening in domestic price competitiveness would be unli kely to 
arise from higher -priced Japanese imports and would be more likely to arise from these lower -priced 
third-country imports.246 We have already found that the KIA 's conclusion on the relationship 
between the drop in Japanese prices upon the terminatio n of the duties and a weakening of domestic 
price competitiveness did not reflect an "unbiased and objective" evaluation of the facts. Therefore, 
we do not consider it necessary for the effective and prompt resolution of the dispute to address this 
additio nal contention of Japan, nor Korea 's rebuttals  on this point . We do, however, address 
substantially the same question in the next section  (section  7.5.3.2 ) concerning whether the KIA 
erred by considering that the removal of the anti -dumping duties would lead to an increase in 
Japanese imports into the Korean  market.  
 
241 See paras.  7.71-7.72 and fns 232 and 235 above.  
242 As stated earlier, we accept Korea 's point that a panel can take account of implicit inferences or 
findings, but the burden falls on the party rely ing on that implicit matter to prove that it exists (see para. 7.41 
above). Moreover, we agree with the Appellate  Body that "[i]n assessing the WTO -consistency of a decision by 
an investigating authority, it is not for a panel to develop an explanation of the basis for the investigating 
authority 's conclusions, nor to 'infer' the existence of such a basis as China seems to suggest  from some 
general economic logic ". (Appellate  Body Reports, China – HP-SSST (Japan ) / China – HP-SSST (EU) , 
para. 5.258 ( italics  original; underlining added)).  
243 To the extent that Korea's  contention rests on an increase in volume from Japan upon the liftin g of 
the anti -dumping duties in light of the situation that prevailed prior to the imposition of the anti -dumping 
duties (Korea's  second written submission, para.  238), we address it at paras.  7.91-7.93 below.  
244 See, e.g. Japan's  second written submission, paras.  195-197. 
245 Japan's  first written submission, paras.  158 and 161.  
246 Japan's  first written submission, paras.  161-162 and 172; second written submission, 
paras.  303-304 and 390.  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.5.3.2   Whether the KIA erred by finding that the Japanese price drop  would lead to an 
increase in Japanese imports  
7.87.   The KIA found that an increase in the volume of Japanese imports would be a likely 
consequence of the drop in the price of those  imports upon the e xpiry of  the anti -dumping duties. 
Japan contends that the KIA erred in reaching this finding.247  
7.88.   As a brief overview, we recall that the KIA found specifically that :  
Where the anti -dumping measures are terminated, it is predicted that a steep  fall in the 
price of the dumped  imports  (Japanese △ [[***]]%) will lead to an increase  in exports  
to Korea  and weaken the price competitiveness of Like Products.248 
7.89.   During the sunset review, the Japanese exporters had argued that they could not compete 
with low -priced imports from third countries in the Korean market and therefore had no incentive to 
increase imports into Korea even if the anti -dumping duties were lifted.249 The applicants contended 
that the fact that volumes of dumped imports had increased despit e the application of anti -dumping 
duties showed that their volumes would increase further if the duties were lifted250, and this was 
made possible by the Japanese exporters ' low capacity utilization rate.251 
7.90.   Japan 's main argument before us is that the Japane se exporters focused on a different market 
segment at higher prices and had no incentive to compete with the large volume of lower -priced 
third-country imports , even if the anti -dumping duties were lifted.252 Japan cites the fact that 
Japanese prices would remain substantially higher than third -country imports and domestic like 
products253, as well as the fact that the low -priced third -country imports already commanded a much 
larger market share than Japanese imports.254 For Japan, the KIA failed to adequately  examine 
whether the presence of this large volume of low -priced third -country imports in the Korean market 
would disincentivi ze an increase in the Japanese volume , particularly since  Japanese  imports would 
remain higher -priced regardless of whether the anti-dumping duties were lifted.255 
7.91.   According to Korea, it was reasonable to assume that the volume of Japanese imports would 
increase upon lifting the anti -dumping duties.256 This was because, when compared with the situation 
that prevailed prior to the imp osition of the duties, the volume of Japanese imports had been 
suppressed and their price had been inflated as a result of the application of the duties.257 Thus, the 
 
247 Japan's  first written sub mission, paras.  151, 166, and 171 -172; second written submission, 
paras.  336 and 355 -359. 
248 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22 (emphasis added). See also OTI's final report , 
(Exhibit KOR -5.c (BCI)),  p. 67. 
249 Japanese exporters'  opinion regarding injuries, (Exhibit JPN -10.b (BCI)), p p. 16-17 and 24 -25; 
Japanese exporters'  opinion regarding applicants ' rebuttal , (Exhibit JPN -13.b (BCI)),  pp. 7-8; and Japanese 
exporters'  post-hearing opinion, (Exhibit JPN -16.b (BCI)), p p. 4-6. We note that the Japanese exporters 
referred mostly to  low-priced  general -purpose steel in this regard. We understand this to have been in 
response to the applicants ' contention that "from Japan, there has only been importation of special -purpose 
steel and other products excluded from anti -dumping.  Accordingly, with the termination of the anti -dumping 
measures, the importation of steel grade 304 and other general -purpose type stainless steel bars  is anticipated 
to increase" . (Application, ( Exhibit JPN -4.b), p. 11 (emphasis added)).  
250 Application, (Exhibit JPN -4.b), pp. 21, 41, and 48; Rebuttal opinion of the applicants, 
(Exhibit  JPN-11.b), pp.  4-5; and Applicants'  statement of opinion after the public hearing, (Exhibit  JPN 15 -b), 
p. 1. 
251 Application,  (Exhibit JPN -4.b), p. 15; Rebuttal opinion of the applicants, (Exhibit JPN-11.b) , p. 3; and 
Applicants'  statement of opinion after the public hearing, (Exhibit  JPN 15 -b), pp. 13-14. 
252 Japan's  second written submission, paras.  336 and 359; fir st written submission, para.  171. 
253 Japan's  second written submission, para.  358 (cross -referencing section  III.C.1, particularly 
paras.  190-197); first written submission, para.  172 (cross -referencing para.  160). See also response to Panel 
question No.  15, para.  85. 
254 Japan's  second written submission, paras.  303-304, 355, and 358; first written submission, 
paras.  161 and 172 (cross -referencing paras.  160(a) -(b)). See also response to Panel question No.  6(d), 
para. 41. 
255 Japan's  second written submission, paras.  336 and 355; first written submission, paras.  161-162 
and 172. See also response to Panel question No.  30, para.  181. 
256 Korea's  first written submission, paras.  249-250; second written submission, paras.  182-183; and 
response to Panel question No.  64(c)(v).  
257 Korea's  first written submission, paras.  249-250; second written submission, paras.  182-183; and 
response to Panel question No.  64(c)(v).  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  anti-dumping duties were exerting a remedial effect, and it was probable that the lifting of the duties 
would remove that remedial effect which would, in turn, lead to a resumption of higher volumes of 
Japanese imports.258 Korea also argues that various other findings by the KIA show that the  Korean 
market would remain attractive to, and be targ eted by , the Japanese exporters259, and that the KIA 
adequately examined and dismissed the Japanese exporters ' argument that they could not compete 
on price with third -country imports.260 Additionally, Korea refers to a determination  by the 
United  States Int ernational Trade Commission (USITC ) to support its argument that the KIA properly 
concluded that the Japanese exporters would increase  export s into the Korean market.261 
7.92.   We accept Korea 's general proposition that, if the anti -dumping duties are exerting a remedial 
effect, it may be reasonable to consider that the removal of the duties would lead to a return of the 
situation that prevailed prior to their application, for instance a higher volume of imports. However, 
such an approach must have a factual basis.262 In the present case, we understand that the factual 
basis for finding an increase in Japanese imports was, inter alia263, predicated on a Japanese pricing 
level that would remain almost [[***]] higher  in 2015  than the pricing level of domestic like products 
and third -country imports .264 As we understand it, Japan 's basic contention is that the KIA failed to 
address  how Japane se imports into Korea would increase despite remaining at this significantly 
higher  pricing level, particularly given the large presence of lower -priced imports from third countries 
in the Korean  market that may disincentive such an increase.265 Although Japan makes reference at 
times to the alleged distinction between general -purpose steel and special steel in relation to its 
contention on this point, we do not understand its contention to hinge upon that distinction. Rather, 
we understand Japan 's contention on this point to concern the product under investigation 
generally.266 For instance, Japan states : "[i]ncreasing volumes of lower priced third country imports 
created a disincentive for increased Japanese exports, particularly of general -purpo se steel 
products" .267 As this example illustrates, Japan 's reference to general -purpose steel in this 
connection is subsidiary to its broader contention that the differing price levels should have been 
examined and accounted for when determining whether Ja panese imports would increase.268 We 
therefore reject Korea 's contention that "this 'incentive ' argument was based on the unsubstantiated 
assertion that the Japanese producers had shifted away from general purpose steel" .269 
 
258 Korea's  first written submission, paras.  249-250; second written submission, paras.  182-183; and 
response  to Panel question No.  64(c)(v).  
259 Korea's  first written submission, paras.  242, 245, 247, 253, 255, and 279; second written 
submission, paras.  226-227 and 240.  
260 Korea's  responses to Panel question Nos.  6(b)(iii)  and 16(v); second written submission, 
paras. 80-81 and 234; and first written submission, paras.  272 and 280. We note that, according to Korea, 
these considerations of the KIA were on an " arguendo " basis to the extent they pertained to general -purpose 
versus special steel.  
261 Korea's  second written  submission, para.  226. 
262 While we accept that the forward -looking analysis under Article  11.3 calls for a certain degree of 
speculation as to the likelihood of future events (Korea's  first written submission, para.  256), we agree with 
the Appellate  Body t hat an authority's  determination must nonetheless rest upon a factual  foundation. 
(Appellate  Body Report s, US – Corrosion -Resistant Steel Sunset Review , para. 178; US – Oil Country Tubular 
Goods Sunset Reviews , paras.  234-235). 
263 We note that Korea presents other bases for which the KIA reasonably found imports would increase 
(e.g. Korea's  first written submission, paras.  240, 247, and 252 -253). We address these, to the extent relevant 
and not already assessed in this section, as part of our discussi on of the totality of evidence in 
section  7.5.3.4  below.  
264 The KIA found that "[o] nce the anti -dumping measures are terminated, it is predicted that a deep fall 
in the price of the dumped imports ( △ [[***]]% for Japanese products ) … will lead to a growth in exports to 
Korea ." (OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67 (emphasis added)). As explained earlier (see 
paras.  7.71-7.72 and fns 183, 212, and 234 above), we consider that the "deep fall in the price" of Japanese 
products referred to in this finding relates to the deduction of KRW [[***]] from the average 2015 Japanese 
resale price of KRW [[***]]. A deduction of KRW  [[***]] would still leave the Japanese price at [[***]], which 
is almost [[***]] higher than third -country imports and domestic like products. We focus on the 2015 prices 
because these were the prices explicitly referred to by the KIA when evaluating the conseque nces of the 
Japanese price drop.  (OTI's final report , (Exhibit KOR -5.c (BCI))  p. 63; see fn  186 above).  
265 Japan's  first written submission, paras.  171-172; second w ritten submission, paras.  321, 336, 
and 358-359. See also response to Korea's  question No.  12, paras.  32-35. 
266 Japan's  second written submission, paras.  321 ("imports from Japan"), 336 ("Japanese imports"), 
and 358 -359 ("Japanese products"/"Japanese import s"); first written submission, paras.  160-161 ("product 
under investigation"), 171 ("product under investigation"), and 172 ("product under investigation").  
267 Japan 's second written submission, para. 355. 
268 See also Japan 's first written submission, paras.  160-161 and 172; and second written submission, 
para. 357. 
269 Korea 's comments on Japan 's response to Korea 's question No.  17, p. 38. WT/DS553/R  
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  Japan 's separate argument that th e KIA failed to adequately account for the alleged distinction 
between general -purpose steel and special steel in its analysis of price and volume is addressed 
below in section  7.5.3.3 . 
7.93.   We agree with Japan that a "substantial difference in the price levels" should be an "obvious 
and significant fact" to the authorities270, particularly where the authorities rely on the premise that 
"price is one of the most important elements that affects purchaser  choice ".271 We do not exclude 
the possibility that imports could increase despite remaining significantly  more expensive. However, 
given the price -sensitive nature of the market272, we agree with Japan that such  an increase cannot 
simply be "assumed", but instead an authorit y's "unbiased and objective" evaluation of the facts 
concerning an increase in volume should account for different pricing levels.273 We would thus expect 
to see an explanation in the KIA 's determination of how the volume of Japanese imports would 
increase despite their prices remaining almost [[***]] higher  in 2015  according to the KIA 's own 
metric.  We also dismiss Korea 's contention that Japan 's case is premised on a "possibility" of a lack 
of incentive or lack of competition due to price differences, and that "mere possibilities do not rise 
to the requisite standard of proof under WTO law".274 This reflects a misunderstanding of 
Japan 's case. Japan seeks to demonstrate that the KIA 's failure to  examine certain matters left 
alternative plausible explanations of the data unaddressed, which in turn calls into question  the 
KIA's finding  on this point .275 Japan does not refer to possibilities in the sense of the likelihood o r 
probability of an eventuality, but in the sense of matters that were , in its view , not adequately 
explored  by the KIA  and thus left unaddressed . Moreover, Japan is  not requesting us to consider 
possibilities in the sense of conduct ing a de novo review of the facts and reach ing the factual finding 
that it would have preferred.  
7.94.   Korea seems to suggest that the "price gap" between Japanese imports and third -country 
imports upon the lifting of the anti -dumping duties was irrelevant to whether they were in 
compe tition with one another, and hence to whether the Japanese exporters lacked an incentive to 
compete with the third -country imports.276 This is because, according to Korea, all relevant 
producers could, and did, produce the same range of product types and mo dels, and given the 
made -to-order nature of the market and  the high adaptability of production facilities, all relevant 
producers competed over the same demand.277 For Korea, therefore, the KIA 's finding on the 
competitive relationship amongst SSB products rendered the "price gap" or "price differential" 
irrelevant.278  
7.95.   We cannot accept that the "price gap" or "price differential" is irrelevant. The 
KIA's determination rested on the premise that price was the most important factor in purchasing 
decisions . Moreover, the KIA 's finding  on the competitive relationship amongst SSB products 
encompassed its finding from earlier investigations that " consumers prefer low -priced products ".279 
Furthermore , the relevant finding of the KIA is that the drop in Japanese prices  would lead to an 
increase in imports.280 The Japanese pricing level upon the removal of the anti -dumping duties was 
thus central to the KIA 's finding.  We reject Korea 's argument on this point.  
 
270 Japan's  second written submission, para.  151. 
271 Japan's  response to Panel question No. 64(c), paras.  329-320; second written submission, para. 194. 
272 See paras.  7.65, 7.67, 7.73, and 7.76 above;  Japan 's second written submission, paras.  194-195; 
and response to Pa nel question No.  15, para.  85. 
273 Japan's  opening statement at the second meeting of the Panel, paras.  28-29; second written 
submission, para.  194; and response s to Panel question No. 19(b), para. 108, and No. 64(c), paras.  329-330. 
274 Korea 's comments on Japan's responses to Korea 's question, "General Observations" p. 2, and 
No. 12, pp. 26-27; first written submission, para. 278. 
275 Japan 's second written submission, para. 31; opening statement at the second meeting of the Panel, 
para. 33; and comments on Korea 's common response to Panel questions after the second meeting with the 
Panel, paras.  2-3. 
276 Korea's  second written submission, paras.  233-237. 
277 Korea's  second written submission, para.  99 and fn 233 (referring to Korea's  responses to Panel 
question Nos.  19, 20(f), and 40); responses to Panel question Nos.  6(d) and 29(ii).  
278 Korea's  second written submission, para.  237 and fn 233; responses to Pan el question Nos.  6(d), 
19(a)(ii), 19(b)(ii), and 20(f)(iii).  
279 See paras.  7.73 and 7.76 above.  
280 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67: "[o]nce the anti -dumping measures are 
terminated, it is predicted that a deep fall in the price  of the dumped imports ( △ [[***]]% for Japanese 
products ) … will lead to a growth in exports to Korea ". (emphasis added)  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.96.   Korea als o explains that, contrary to Japan 's argument, the KIA did indeed consider the 
impact of third -country imports as part of examining whether lifting the anti -dumping duties would 
be likely to lead to a recurrence of injury.281 The KIA found that the volume a nd market share of 
these imports remained stable over the POR, and that their declining price trend was not dissimilar 
to the trends for the dumped imports and domestic like products.282 According to Korea, none of 
these indicators called into question the KIA's likelihood -of-injury finding.283 We agree with Japan, 
however, that this assessment of relative trends  does not address the actual difference  in pric ing 
levels between the third -country imports and the Japanese imports, including upon the lifting of t he 
anti-dumping duties.284 The KIA 's assessment of third -country imports thus fails to address 
Japan 's point that "the higher priced imports from Japan may not be able to compete with the lower 
priced third country imports, even if the anti -dumping duty were to expire".285 
7.97.   Korea points out that the KIA found that Japanese imports command ed a price premium over 
Indian and Chinese imports. According to Korea, this explains the price differential between products 
of different origin.286 We accept that the price premium commanded by Japanese products might be 
capable of explaining how a  higher p rice could lead to an increase in imports despite the 
price-sensitive nature of the market. However, we are unable to discern such an explanation in the 
KIA's determination. The determination does not provide any indication of the magnitude or nature 
of the price premium commanded by Japanese imports, and we are therefore unwilling to speculate 
as to  whether a n almost  [[***]] price differential falls within the bounds of that premium.287 
Moreover, the plain text of the KIA 's determination provides no basis f or considering  that the KIA 
relied on the existence of the price premium to explain how a n almost  [[***]] higher price would 
lead to an increase in imports despite the price -sensitive nature of the market.288 The absence  of 
any analysis of the magnitude or nature of the price premium , together with the absence of any 
explicit indication that the KIA was relying on the price premium in this way, mean that we have no 
grounds for accepting Korea 's rebuttal on this point. Rather, w e agree with Japan that 
Korea 's rebuttal  on this point  goes beyond the analysis undertaken by the KIA , and would amount 
to ex post reasoning .289 
7.98.   Korea also argues that Japan 's submission  concerning the  lack of incentives to increase 
exports was never substantiated by the Japanese exporters  during the underlying review.290 We 
need not express a view on the extent to which the Japanese exporters substantiated their assertion 
that they could not compete with low -priced imports from third countries in the Korean market and 
therefore had  no incentive to increase imports even if the anti -dumping duties were lifted. 
Japan 's case before us is based not only on the Japanese exporters ' assertions during the sunset 
review, but more broadly on the failure of the KIA to properly address and recon cile its own factual 
findings in this regard.291 These include the following factual findings concerning the respective 
starting points of the Japanese imports if the anti -dumping duties were lifted and the third -country 
imports.292 The average Japanese resale price in 2015 would remain almost [[***]] higher than the 
 
281 Korea's  first written submission, paras.  289 and 301 -303; second written submission, para.  250. 
282 Korea's  first written submission, paras.  259-260, 280, 290 -292, and 304; opening statement at the 
first meetin g of the Panel, para.  64; and second written submission, paras.  228, 230, and 250.  
283 Korea's  opening statement at the first meeting of the Panel, para.  64; first written submission, 
paras.  260, 280, and 303; and second written submission, paras.  228, 230, and 250.  
284 Japan's  second written submission, paras.  320-321 and 360.  
285 Japan's  second written submission, para.  321. See also response to Korea's  question No.  12, 
para. 32. 
286 Korea's  second written submission, paras.  80-81, 178, and 237, and fn 233; resp onse to Panel 
question No.  19(c)(iii); and comments on Japan's  response to Korea's  question No.  12, p.  28. 
287 The relevant passage of the determination is limited to the following:  "within the same steel grade, 
Korean and Japanese products have high credibi lity in quality and Indian and Chinese products have high price 
competitiveness ". (OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 55). 
288 The plain text of the relevant finding is extracted at para.  7.74 above.  
289 Japan's  second written submission, paras.  195-196. 
290 Korea 's response to Panel question No. 16(i). See also first written submission, para.  278; 
second  written submission, para.  231; and comments on Japan's  response to Korea's  question No.  12, p.  28. 
291 Japan's  first written submission, paras.  160-162 and 172; second written submission, 
paras.  190-191, 198, 303, 336, 358, 360, 388, and 390; responses to Panel question No.  19(c), 
paras.  113-114, and No.  34, paras.  196-197; and opening statement at the first meeting of the Panel, 
paras.  40-42. 
292 We understand that Japan did not refer to the specific figures in its first written submission  because 
it did not have access to unredacted versions of the releva nt documents. (Japan's  second written submission, 
para. 189). Japan did, however, refer to the relevant aspects of the KIA's  findings in its first written 
 WT/DS553/R  
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  domestic price, whereas the average third -country resale price would be [[***]] lower than the 
domestic price.293 The market share of Japanese imports in the Korean marke t would be [[***]], 
whereas  the market share of third -country imports would be [[***]].294 Additionally, the KIA found 
that third -country imports were already exerting a degree of downward pressure on the price of 
domestic like products during the POR.295 In these respects, the starting points for the Japanese 
imports and the third -country imports upon the lifting of the anti -dumping duties would be different.  
7.99.   We must also recall that, while price was not the only factor, the KIA considered it to be the 
most important factor in purchasing decisions , with consumers preferr ing lower prices.296 Against 
that background, we agree with Japan that the existence of third -party imports whose prices were 
at levels lower  than domestic like products and which occupied [[***]] of market share  represents 
a substantial source of price pressure in the Korean market.297 We would expect an "unbiased and 
objective" evaluation of the facts on this point to account for the possibility that the large presence 
of low -priced third -country imports might  therefore prevent an increase in the volume of Japanese 
imports into the  price-sensitive  Korean market, particularly where the Japanese price would still be 
almost [[***]] higher and represent just [[***]] of the market upon the lifting of the anti -dumping 
duties.  
7.100.   But Korea has not indicated to us that the KIA took the differing starting points of the 
Japanese imports and third -country imports into account when determining that the volume of 
Japanese imports would increase  upon the liftin g of the anti -dumping duties . On the contrary, 
Korea 's explanation for how the KIA took the third -country imports into account pertained to the 
stability of their volume and market share during the POR, together with the comparative similarity 
in comparati ve price decreases.298 Korea rejected the relevance of the actual price difference 
between Japanese imports and third -country imports.299 None of Korea 's responses to questions 
from the Panel concerning whether and how the KIA 's determination addressed the p roposition that 
low-priced third -country imports created a disincentive for Japanese exporters to increase their 
volumes indicated that the KIA did, in fact, take these differing starting points into account.300 
Rather, Korea appeared to reject the premise that the Japanese imports might be uncompetitive 
with third -country imports due to their higher price levels.301 We are unable to discern from any 
aspect of  the determination that the KIA took these differing starting points  (discussed above ) into 
account when finding that the drop in Japanese prices arising from the expiry of the anti -dumping 
duties would lead to an increase in imports.  
 
submission, namely the increase in the volume and market share of third -country imports, the differen ces in 
prices between the product under investigation and the third -country imports, and the existing adverse impact 
caused by the increased third -country imports, and described these as "conflicting findings by the [KIA]". 
(Japan's  first written submissio n, para.  160). Japan then referred to the specific figures, at first instance, in its 
oral statement at the first substantive meeting of the Panel at para.  40. (See also second written submission, 
paras.  198, 304 -305, 390, and 395).  
293 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 63. 
294 OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 35 and 54.  
295 OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 39, 50 -51, and 54  (albeit exhibiting less downward 
price pressure during the POR than that caused by the fall in  raw material costs); KTC's final resolution, 
(Exhibit KOR -4.b (BCI)), p. 14. We note that the applicants did not describe the Japanese imports as a source 
of price pressure during the POR.  (Application, (Exhibit JPN -4.b), p p. 14-15 and 25 -26; Minutes of p ublic 
hearing (24  November  2016), (Exhibit KOR -19.b (BCI)), p p. 10, 20, and 32 -33). 
296 See paras.  7.73 and 7.76 above . 
297 Japan 's second written submission, paras.  304-305, 319 -321, 360 , and 395. Not only is this 
apparent  from various aspects of the KIA 's determination ( OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 39, 
50-51, and 54 ; KTC's final resolution, (Exhibit KOR -4.b (BCI)), p. 14), but the applicants themselves 
recognized as much in their application to initiate the review . (Application, (Exhibit JPN -4.b), p p. 25-26 and 
fn 2). Indeed, the applicants stated that this source of price pressure should be dealt with through a new 
anti-dumping investigation:  "[i]t is true that the domestic industry is being injured by products from other 
countries, such as China. However, current injury to the domestic industry caused by these products from 
other countries is a problem that should be considered by a new original investigation. " (Applicants ' statement 
of opinion after the public hearing, (Exhibit JPN -15.b), p. 15).  
298 Korea 's first written submission, paras.  259-260, 267, 280, 290 -292, and 303 -304; opening 
statement at the first meeting of the Panel, para. 64; and second written submi ssion, paras.  228, 230, 245, 
and 250. 
299 Korea 's second written submission, paras.  234-236. 
300 Korea 's responses to Panel question Nos.  6(d), 16, 22(c), 67(e), and 77 . 
301 Korea 's response to Panel question No.  16(v); comments on Japan 's response to Korea 's question 
No. 12, pp. 26-27. WT/DS553/R  
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  7.101.   Rather, according to Korea, other factual findings by the KIA showed that there would be a 
capacity and demand for  Japanese exporters to increase  their imports into Korea upon the removal 
of the anti -dumping duties.302 In particular, according to Korea, Japan ese exporters  were already  
import ing considerable and increasing volumes during the POR, and this indicated clea r demand in 
Korea for Japanese products and showed that the Korean market remained attractive to the 
Japanese exporters despite the application of the duties.303 Other indicators also showed  the Korean 
market was a target for the Japanese exporters, such as  the increasing ratio of Japanese exports 
being shipped to Korea and the application of anti -dumping duties by the United  States  and the 
European  Union.304 Moreover, according to Korea, the Japanese exporters had increased their 
production volume and made i nvestments in production facilities whilst also experiencing low 
capacity utili zation, which supported the finding that  exports to Korea would increase  if the 
anti-dumping duties were lifted.305  
7.102.   We accept that these factors can be relevant and useful in establishing that, upon lifting the 
anti-dumping duties, the exporters would have an interest in, and ability to, increase exports.306 
However, both parties accept that there must be demand in a market for sales to take place.307 As 
Japan points out, consume rs would need to have an increased demand for Japanese imports if their 
volume were to increase in the Korean market, whereas the KIA 's determination rested on the 
premise that price is the most important aspect of consumers ' purchasing decisions.308 None of the 
factors identified above by Korea explain why there would be additional demand on the part of 
consumers in the Korean market for Japanese imports that would still remain significantly more 
expensive  upon lifting the anti -dumping duties.  It is worth reiterating that the KIA 's finding of an 
expansion in Japanese imports was made on the basis of a Japanese pricing level that would remain  
almost  [[***]] more expensive309, and not on the basis of some lower pricing level or the pursuit of 
a more aggr essive pricing strategy by the Japanese exporters in response to additional pressures to 
export to Korea. We note that Korea also appears to refer to the continued dumping by the Japanese 
producers, and the fact that they had absorbed the duties and increa sed imports, as additional 
grounds indicating an increase in Japanese volumes upon the lifting of the anti -dumping duties.310 
However, we  again reiterat e that the KIA 's determination on the increase in Japanese volumes rests 
upon a deduction of an amount representing the anti -dumping duty from the average Japanese 
resale price.311 It does not rest upon some other pricing level arising from a different circumstance, 
such as a  greater degree of duty absorption or a higher level of dumping than that oth erwise 
observed during the POR. To rely on such ex post reasoning to uphold the KIA 's determination would 
effectively lead the Panel to engage in a de novo review.   
7.103.   Thus, none of the factors identified by Korea address the question of how Japanese imports 
would increase despite remaining significantly higher -priced in the context of a price -sensitive 
market in which large volumes of lower -priced  imports were already present. We agree with Japan 
that, in light of the particular factual context in the present  case, a consideration of factors on the 
 
302 Korea's  opening statement at the first meeting of the Panel, paras.  50-53, 56, and 61; first written 
submission, paras.  279-281; and second written submission, paras.  226-227, 231, and 240 -241.  
303 Korea's  comments on Japan's  responses to Korea's  question No.  16, p.  35, and No.  21, p.  44; 
second  written submission, paras.  128 and 226; and first written submission, paras.  242, 255, and 279.  
304 Korea's  first written submission, paras.  245, 253, and 281 ; second written submission, 
paras.  226-227. 
305 Korea's  first written submission, paras.  247, 253 -254, and 279; second written submission, 
paras.  226-227. 
306 For the avoidance of doubt, this does not imply that we express a view on Japan's  arguments that 
these factors involve impermissible ex post  reasoning, or were improperly relied upon by the KIA. We make 
this remark on an arguendo  basis, in the abstract.  
307 Korea's  response to Panel question No.  100, para.  175; Japan's  second written submission, 
para. 357. 
308 Japan's  responses to Panel question  No. 19(b), para. 108, No. 19(c), para. 113, No. 30, 
paras.  180-181, and No. 64(c), paras.  329-330; second written sub mission, para.  194. 
309 Korea's  second written submission, para.  124 and fn 130; response to Panel question No.  69. See 
also paras.  7.71-7.72 and 7.92, and fns 233 and 235 above.  
310 Korea 's second written submission, paras. 26, 29, and 128; comments on Japan 's responses to 
Korea 's question No.  16, pp. 35-36; and No. 21, p. 44. 
311 See fns 211 and 233 above . WT/DS553/R  
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  supply side alone would be insufficient to demonstrate that Japanese imports would increase without 
any additional explanation or analysis.312 
7.104.   Finally, Korea contends that the reasonableness of the KIA 's finding that  Japanese imports 
would increase was "confirmed by the parallel sunset review by the USITC on SSBs imported from 
Japan".313 We decline to take this USITC determination into account to "confirm the reasonableness" 
of the KIA 's finding on this point .314 It pos t-dates the KIA 's third sunset review, and therefore was 
not part of the record of investigation and did not  form part of the KIA 's finding that the Japanese 
price drop would lead to an increase in imports.  Accordingly,  it does not form part of the relevant 
"facts" on which we can base our assessment under Article  17.5(ii ) of the Anti -Dumping  Agreement . 
To find otherwise could lead the Panel into a de novo review on the basis of record evidence that 
was not before the KIA. We do, how ever, make some observations regarding this USITC 
determination in section  7.5.5 below.  
7.105.   In summary,  Japan has demonstrated that  there is an internal tension in the KIA 's finding 
that the drop in Japanese prices arising from the removal of the anti -dumping duties would lead to 
an increase in Japanese imports into the Korean market. This tension arises from the KIA 's finding 
being premised on (a ) the und erstanding that price was the most important factor in purchasing 
decisions, and (b ) the fact that Japanese prices would still be almost [[***]] higher than others 
upon the removal of the duties  in 2015 . The significance of this tension is magnified by the fact that 
a large volume of low -priced imports from third countries was already present and exerting price 
pressure in the Korean market. In particular, upon the lifting of the anti -dumping duties, the  
KIA's findings indicate that Japanese imports would represent [[***]] of market share and be priced 
almost [[***]] higher than domestic like products, whereas third -country imports would represent 
[[***]] of market share and be priced [[***]] lower than d omestic prices.  By failing to address how 
the significantly higher -priced Japanese imports could increase in this context,  the 
KIA's determination failed to  resolve the aforementioned tension in its own findings, and accordingly, 
it does not reflect an "un biased and objective" evaluation of the facts on this point. We address 
whether the KIA 's failure in this regard rises to the level of a violation of Article  11.3 of the 
Anti-Dumping  Agreement  in section  7.5.3.4  below . 
7.5.3.3   Whether the KIA erred by failing to account for different product mixes in 
assessing the impact of the Japanese price drop  
7.106.   Japan contends that the KIA erred by failing to account for di fferences in the respective 
countries ' product mixes when concluding that domestic price competitiveness would weaken and 
Japanese imports would increase upon the lifting of the anti -dumping duties and the resulting drop 
in Japanese prices.315 Specifically,  Japan argues that the KIA failed to account for the differentiated 
effects that general -purpose steel and special steel would have on Korea 's domestic industry, despite 
the fact that Japanese imports were mostly comprised of special steel and domestic lik e products 
were mostly comprised of general -purpose steel.316 
7.107.   Korea responds that the KIA did indeed examine the Japanese exporters ' "product mix 
argument" on the basis of a distinction between general -purpose steel and special steel, and found 
that Japan c ontinued to export similar levels of both steel types during the POR.317 For Korea, t he 
suggestion that Japan 's only likely export increase would be in the special steel segment was 
contradicted by official customs data.318 In any event, Korea argues that th e KIA rejected this alleged 
distinction because  SSBs "all form one consolidated group of like products".319 Korea also 
emphasi zes that the Japanese exporters never submitted grade -specific pricing data that would have 
enabled the kind of grade -specific analysis for which Japan now seeks to fault the KIA.320 
 
312 Japan's  comments on Korea's  common response to Panel questions after the second meeting with 
the Panel, paras.  12-13. See also first wr itten submission, para.  171; and second written submission, 
paras.  172-174 and 398.  
313 Korea's  second written submission, para.  226. 
314 Korea's  comments on Japan's  response to Panel question No.  92, p.  16. 
315 Japan's  first written submission, paras.  164-167; second written submission, paras.  350 and 352.  
316 Japan's  first written submission, paras.  164-167; second written submission, para.  350. 
317 Korea's  first written submission, paras.  261 and 272; second written submission, para.  126. 
318 Korea's  first written s ubmission, para.  274. 
319 Korea's  first written submission, para.  273. See also second written submission, para.  231. 
320 Korea's  comments on Japan's  response to Korea's  question No.  13, pp.  29-30. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.108.   We recall that the KIA considered the SSB market to be a price-sensitive market in which 
price was the most important factor in consumers ' purchasing decisions and in which consumers 
prefer red low-priced products, albeit modulated by price premiums for Japanese and Korean 
products and price discounts for Indian and Chinese products.321 Based on the material before us, 
Japan has not established the existence of a reliable relationship between pri cing levels and the 
categori zation of  a product as general -purpose steel (grades 304 and 3 16) or special steel (all 
others). On the contrary, t he uncontested  record evidence indicate s that Japanese general -purpose 
steel was in a different price bracket to general -purpose steel from other sources322 and was, 
according to the applicants, " only general in name, but ha [s] particular specification or size and are 
mostly products that are not competitive ".323 Moreover, according to the pricing data submitted by 
Korea, it was not the case that special steel was necessarily higher -priced and general -purpose steel 
was necessarily lower -priced during the POR.324 
7.109.   Therefore, Japan has not established a prima  facie case that the KIA erred by failing to 
undertake a n analysis  that differentiated  between  general -purpose and special steel when examining  
the consequence s of the drop in Japanese prices upon removing the anti -dumping duties . We 
consequently find that Japan  has failed to demonstrate that the KIA acted inconsistently with 
Article  11.3 of the Anti -Dumping  Agreement  on this point.  For the avoidance of doubt, our conclusion 
in this regard should not imply a broader finding on the existence or utility  of the alle ged distinction 
between general -purpose steel and special steel , nor on the degree of competitive overlap in the 
product mixes of the relevant countries.   
7.5.3.4   Whether the KIA 's error in assessing the impact of the Japanese price  drop 
constitutes a violation of  Article  11.3 of the Anti -Dumping  Agreement  
7.110.   In sections 7.5.3.1  and 7.5.3.2 , we found that Japan has demonstrated the following 
conclusion by the KIA lacks an "unbias ed and objective" evaluation of the facts :  
Where the anti -dumping measures are terminated, it is predicted that a steep fall in the 
price of the dumped imports (Japanese △ [[***]]%) will lead to an increase in exports 
to Korea and weaken the price competitiveness of Like Products.325 
7.111.   Korea contends that determinat ions based on multiple factors do not fail merely because 
there is a deficiency in one of those factors .326 Rather, the determination must be upheld if there is 
a sufficient factual basis remaining  despite the deficiency. According to Korea,  all of the fact ors relied 
on by the KIA in the present case provided a sufficient factual basis for reasonably concluding that 
the expiry of the anti -dumping duties would likely lead to the recurrence of injury.327 Korea provides 
the following summary of the overall likel ihood -of-injury determination :  
The conclusion of the Korean authorities can be summarized as follows : dumping 
continued at margins of 66% from Japan. In the meantime, the volume and market 
 
321 See paras.  7.73-7.74 and 7.76 above.  
322 Korea's  response to the Panel's  Article  13 of the DSU information request, (Exhibit  KOR-41.b (BCI)). 
We reject Japan's  objection that this document does not contain record evidence. ( Japan's  second written 
submission, para.  193).  This information request included the following instruction:  "[i]n providing the 
information in the format re quested in Appendix 1, please only use data/evidence that was on the record of 
investigation and was available to the Korean investigating authorities for the purposes of its sunset review." 
Japan has not demonstrated that Korea failed to follow this instr uction in providing the requested data. 
Although Japan contested whether this material was on the record  – an objection that we reject –  it did not 
contest the accuracy of this evidence. Both the Japanese exporters and the applicants adopted the position  
that Japanese general -purpose steel was not in price competition with general -purpose steel from other 
sources in the Korean market.  (Japanese exporters'  opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), p. 12; 
Application, (Exhibit JPN -4.b), pp. 5-26). 
323 Application, (Exhibit JPN -4.b), p. 15. 
324 Korea's  second written submission, paras.  59 and 79. We agree with Korea on the lack of a 
correlation in that regard.  
325 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22 (emphasis added). See also OTI's final report , 
(Exhibit KOR -5.c (BCI)),  p. 67. 
326 See, e.g. Korea 's comments on Japan 's responses to Korea 's question "General Observations", p.  1; 
opening statement at the second meeting of the Panel, paras . 16, 25 -26, and 44-45; and response to Panel 
question No. 98, para. 143. 
327 Korea 's response to Panel question No. 98, paras.  143 and 154 ; second written submission, 
paras.  26-37. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  share of the dumped imports in general and from Japan in particular increased at the 
end of the POR, but stayed low and in any case well below their volume and market 
share before the imposition of the measure. There was significant spare production 
capacity in all three investigated countries, including Japan, given the relatively low 
capacity utilization.  In addition, exporting producers were making additional 
investmen ts in production facilities. The prices of dumped imports would necessarily 
drop after the removal of the duties and would exhort further price pressure on domestic 
prices. Key markets such as the EU and the U.S. remain protected through trade remedy 
measu res on SSBs, which meant that the Korean market would be attractive if duties 
were removed. Furthermore, despite the protection, the domestic industry 's recovery 
in the POR was still fragile as witnessed by a number of injury indicators trending 
negatively . All of this supported the reasonable conclusion that removal of the duties 
would likely lead to a continuation of dumping and a recurrence of injury.328 
7.112.   The KIA 's analysis of the consequences of the drop in Japanese prices upon the expiry of the 
anti-dump ing dut ies comprised an intermediate finding in support of the likelihood -of-injury 
determination . Korea recognizes this,  but states that "[w]hereas current price trends may be an 
intermediary factor in this analysis, they do not answer the ultimate questi on"329, and "no 
investigating authority can humanly draw a 'future price effect ' based on the POR -bound pricing 
data".330 For instance, the "prevailing price matrix among the products is destined to shuffle" upon 
the removal of the anti -dumping duties331, and  there could be more sales of price -competitive 
models that had been previously hindered by the duties.332 Thus, we understand Korea to contend 
that the KIA 's intermediate finding on the consequences of the drop in Japanese prices upon the 
expiry of the ant i-dumping duties was not dispositive to the likelihood -of-injury determination.  
7.113.   Japan, on the other hand, draws a link between the KIA 's analysis of the consequences of 
the drop in Japanese prices and the KIA 's likelihood -of-injury determination  that " [i]t is highly likely 
that once the anti -dumping measures are terminated, a drop in the price of the product under 
investigation and an increase in imports will again cause material injury to the domestic industry".333 
For Japan, both co ntain the same "logical leap" and "fundamentally flawed" reasoning.334 Japan 
emphasi zes the point that, if the Japanese exporters lacked incentives to increase volumes due to 
their inability to compete on price with third -country imports, then the KIA 's remaining findings on 
the supply side relating to production capacity, export capacity , and import controls by other 
countries , cannot support the likelihood -of-injury  determination.335 
7.114.   We agree with Korea that the KIA 's error concerns an intermediate finding and will only 
result in a violation of Article  11.3 if it invalidates  the KIA 's final conclusion on the likelihood  of 
injury. In determining whether an intermediate finding invalidates a final conclusion , we find useful 
the Appellate  Body's  guidance that :  
[T]here may be cases in which certain intermediate findings may be so central to the 
ultimate conclusion of an investigating authority that an error at an intermediate stage 
of reasoning may invalidate the final conclusion.  Indeed, an evaluation of the 
significance of the different factors considered by an investigating authority is at the 
heart of the assessment a panel must make.336 
 
328 Korea's  second written submission, para.  29 (fns omitted). See also respon ses to Panel question 
No. 98, paras.  152-155; and No.  6(c)(iv).  
329 Korea's  second written submission, para.  185. 
330 Korea's  response to Panel question No.  19(a)(i).  
331 Korea's  response to Panel question No.  19(a)(i).  
332 Korea's  comments on Japan's  responses to Korea's  question No.  2, p. 8, and No.  4, p. 12. 
333 Japan's  first written submission, paras.  159, 162, and 170 (referring to OTI's  final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67). 
334 Japan's  first written submission, pa ras. 159-162 and 170 -172. 
335 Japan's  comments on Korea's  common response to Panel questions after the second meeting with 
the Panel, paras.  11-14; first written submission, para.  171; and second written submission, 
paras.  172-174, 357, and 398.  
336 Appellate  Body Report, Japan – DRAMs (Korea) , para.  135. See also ibid. paras.  131-134. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.115.   We are therefore called upon to ascertain the significance of the intermediate finding at is sue 
to the KIA 's likelihood -of-injury determination, and in particular, whether it is so central that it 
invalidates the final conclusion . The KIA 's likelihood -of-injury determination  provides :  
Taking the circumstances into consideration as a whole, the C ommission finds that it is 
highly likely that once the anti -dumping measures are terminated, a drop in the price 
of the dumped imports and an increase in volume of the dumped imports will again 
cause recurrence of material injury to the domestic industry, such as a downturn in 
sales and deterioration in operating profitability.337 
7.116.   It is clear from the plain text of this final conclusion  that the consequences of "a drop in the 
price of the dumped imports" was central. It is also clear from the "Overall Evaluation" section  (in 
which this extract  appears ) that the reference to "a drop in  the price of the dumped imports" in this 
conclusion  pertains to the  intermediate finding that immediately precedes it, namely "[w] here the 
anti-dumping measures are terminated, it is predicted that a steep fall in the price of the dumped 
imports ( Japanese  △ [[***]]%) will lead to an increase in exports to Ko rea and weaken the price 
competitiveness of Like Products ".338 This intermediate finding, in turn, drew upon the analysis of 
Japan 's projected price drop upon the removal of the anti -dumping duties .339 Our understanding in 
this regard accords with Korea 's description of the structure and flow of the KIA 's findings.340 
7.117.   In view of the structure and flow of the KIA 's findings  that led to the likelihood -of-injury 
determination , we consider that the KIA 's failure to undertake an "unbiased and objective" 
evaluation of the facts on the consequence s of the drop in Japanese prices invalidates this 
determination  and gives rise to a violation of Article  11.3 of the Anti -Dumping  Agreement .  
7.118.   Our conclusion is not a ltered by the reference to  "an increase in the volume of the dumped 
imports " in the overall determination extracted above . It is not apparent to us that the KIA found 
this to be  capable of alone supporting the likelihood -of-injury determination, nor that t his is 
necessarily independent of the "drop in the price of the dumped imports".341 Indeed, our examination 
in section  7.5.3.2  revealed that the KIA erred in considering  that Japanese volumes would expand 
as a result of the drop in Japanese prices upon the removal of the anti -dumping duties.  In that 
section , we consid ered other factors referred to by the KIA that could explain the increase in imports . 
Based on our reading of the KIA 's determination in light of the record evidence,  none of these  factors  
established  how there would be additional demand on the part of con sumers in the Korean market 
for Japanese imports that would still remain almost [[***]] more expensive upon lifting the 
anti-dumping duties.  To that extent, we agree with Japan that " without sufficient incentives, the 
Japanese Respondents would not utilize  the unused production capacity (or convert the production 
facilities for other products ) in order to produce more SSB to increase their exports to Korea ".342  
7.119.   As we understand it, Japan made one single claim concerning the price and volume effects 
that was comprised of multiple arguments and various alleged errors.343 We note that a panel has 
 
337 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  23. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. 
338 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22 (emphasis added). See also OTI's final report , 
(Exhibit KOR -5.c (BCI)),  p. 67. 
339 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  21.  
340 Korea's  response to Panel question No.  6(c)(iv). See also first written submission, paras.  100-103; 
and second written submission, paras.  29 and 159 -160. By structure and flow, we mean the various stepping 
stones and the sequence of logical progression between and within the relevant sections of the determination.  
341 Korea's  first written submission, pa ras. 101-103. See also response to Panel question 
No. 40(iv):  "Korea  submits that the 'effect of import volume of products ' almost necessarily includes the 
products ' effect on prices. " 
342 Japan's  comments on Korea's  common response to Panel questions after the second meeting with 
the Panel, para.  13. For the avoidance of doubt, we do not suggest that identifying "incentives" is a legal 
requirement under Article  11.3. (Korea's  comments on Japan's  response to Korea's  question No.  17, p.  38). 
Rather, the signif icance of this matter in the present case arises from the KIA itself placing significance on 
whether the Japanese exporters had " inducements  to expand their exports to Korea" ( OTI's final report , 
(Exhibit KOR -5.c (BCI))  p. 67 (emphasis added) ), and its rel iance on the premise that price is the most 
important factor in consumers ' purchasing decisions with consumers preferring low -priced products (see 
paras.  7.73 and 7.76 above ).  
343 Japan 's first written submission, para. 7; second written submiss ion, paras.  168 and 584(c) . WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  "the discretion 'to address only those arguments it deems necessary to resolve a particular claim'".344 
In light of our finding on the grounds for Japan 's price and v olume effects claim as addressed in this 
section, it is unnecessary for the prompt and effective resolution of the dispute to proceed to address 
Japan 's various other arguments in support of its claim in this regard. To the extent that these other 
argument s themselves constitute separate "claims" or standalone allegations of error, we exercise 
judicial economy over them for the same reasons.  
7.120.   Finally, w e need not express a view on Korea 's contention regarding the limitations of 
POR-bound pricing data in projecting  the future consequences of lifting of anti -dumping duties.  The 
text of the KIA 's determination is unambiguous on this point . The KIA's assessment of the 
consequences of the drop in Japanese prices upon the removal of the anti -dumping duties  was 
premised on a certain pricing level . This pricing level was  derived by deducting an amount 
representing the anti -dumping duty from the average Japanese resale sale price  during  the POR 
(specifically, during 2015 ).345 It would be improper for us to now second -guess the KIA and find that 
only "limited" or "indicative" value ought to be placed on that assessment .346 The 
KIA's determination does not address  whether only "limited" or "indicative" value should be placed 
on that assessment ; indeed  the structure  and fl ow of the KIA 's determination suggest the contrary.   
7.5.4   Japan 's claim under Article  11.3 of the Anti -Dumping  Agreement  concerning other 
potential injury factors  
7.121.   Japan claims that the KIA erred by finding that the expiry of the anti -dumping duties would 
likely lead to a recurrence of injury  without referring to three other factors that could instead  explain 
the likely recurrence of injury.347 These three factors include the impact of the large volume of 
low-priced imports from third countries, the cost of raw ma terials, and the weak demand in the 
domestic and export markets.348 
7.122.   Korea responds that a consideration of "other factors" is not legally required 
under  Article  11.3 of the Anti -Dumping  Agreement , but in any case, " it is plainly clear from the 
published rep orts that other factors, including third -country imports, were considered  and, in fact, 
found  not to undermine a finding that there was a likelihood of recurrence of injury if the duties 
expired ".349 
7.123.   We need not address Japan 's claim insofar as it relates t o the impact of  the third-country 
imports. We have already accepted Japan 's position  that the large presence of low -priced 
third-country imports represented a substantial source of price pressure in the Korean market , and 
the KIA failed to account for the possibility that these imports might therefore prevent an increase 
in Japanese imports upon the expiry of the anti -dumping duties . This contributed to our finding that 
the KIA acted inconsistently with Article  11.3 in  its assessment of the consequences of the drop in 
Japanese prices upon the expiry of the anti -dumping duties.350 It is unnecessary for the prompt and 
effective resolution of the dispute to reach an additional finding concerning the KIA's treatment of 
the impact of the third -country import s. 
7.124.   With respect to the other two factors, we do not consider that Japan has established a prima  
facie case of inconsistency with Article  11.3 of the Anti -Dumping  Agreement . Japan 's case is limited 
to pointing out that these  were recogni zed by the KIA  as injury factors affecting the Korean domestic 
industry during the POR, without attempting to explain how those specific injury factors would sever  
or diminish  the link  between lifting the anti -dumping duties and the likelihood  that this would lead 
 
344 Appellate  Body Reports, EC – Fasteners (China) , para. 511; EC – Poultry , para. 135; and India – 
Solar Cells , para. 5.15. 
345 See paras.  7.71-7.72 and 7.92 and fns 185 and 233 above. We note that, in its first written 
submission, Korea stated that " current  market conditions are relevant as a factual basis to draw reasoned 
conclusions regarding likely future  market conditions ", and one of the factors considered by the  KIA in this 
regard was " the outlook on the volume of imports and price levels of the dumped imports if duties were 
removed ". (Korea's  first written submission, paras.  239-240 (emphasis original)).  
346 Panel Report, China – GOES , para.  7.542 and fn 522; Appe llate Body Report, Japan  – DRAMs 
(Korea) , para.  135. 
347 Japan's  response to Panel question No.  73, para.  358; first written submission, para.  177; and 
second written submission, para.  305. 
348 Japan's  first written submission, para.  177. 
349 Korea's  second writ ten submission, para.  250. (emphasis original)  
350 See paras.  7.105  and 7.117  above.  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  to a recurrence of injury as part of the forward -looking analysis of a sunset review.351 We also 
consider it noteworthy that , as Japan concedes , neither  of these  factor s was raised or substantiated 
by the Japanese exporters during the sunset review as matters that could sever or diminish the link  
between lifting the anti -dumping duties  and the likelihood -of-injury.352 Indeed, in the absence of 
any explanation or evidence t o the contrary, one might expect the cost of raw materials and weak 
demand to affect the Japanese imports and domestic like products in similar ways in the Korean 
market. It is thus not obvious to us why the KIA should have treated these factors as potenti ally 
severing or diminishing the link between lifting the anti -dumping duties and the likelihood -of-injury , 
and Japan has not demonstrated otherwise .353 Specifically , Japan has not attempted to explain how 
those factors would sever or diminish that link.  
7.125.   We therefore find that Japan has failed to demonstrate that the KIA acted  inconsistently  with 
Article  11.3 of the Anti -Dumping  Agreement  regarding the cost of raw materials and the weak 
demand in the domestic and export markets. Having reached this finding, we need not address the 
parties ' arguments and rebuttals on the precise circumstances  and manner  in which an authority 
may be required to  examine other known injury factors under Article  11.3, including whether there 
is a difference between recurrence and continuation determinations in that regard . 
7.5.5   Japan 's claim s concerning capacity utilization  
7.5.5.1   Japan 's claim under Article  11.3 of the Anti -Dumping  Agreement  concerning 
capacity utilization  
7.126.   The KIA found that "the utilization rate in 2015 was [[***]]% for Japan  … which shows that 
they have sufficient additional production capacity and room for exports ".354 Japan claims that this 
finding is inconsistent with Article  11.3 of the Anti -Dumping  Agreement  because the direct evidence 
submitted by the Japanese exporters on their production capacity was disregarded , without 
justification , in favour of the production capacity data of the I SSF.355  
7.127.   Korea responds that there was no basis to prefer the Japanese exporters ' production capacity 
figures  over the ISSF data.356 According to Korea, the Japanese exporters ' figures  were flawed 
because the calculation methodologies varied between the exporters  and changed during the review, 
and because the exporters  refused to provide any underlying data that would have enabled 
verification.357 By contrast, Korea explains that the ISSF is a reputable and reliable international 
institution, and its data was colle cted from its members (including the Japanese exporters ), national 
steel associations, overseas market research agencies, publicly -available information, and from 
"basic knowledge of the industry".358 
7.128.   We begin by evaluating Japan 's contention  that the ISSF data was flawed due to its product 
scope.359 We then turn to Japan 's contention  that the Japanese exporters complied with the 
 
351 Japan's  first written submission, paras.  187-188; second written submission, paras.  307-308. 
352 Japan's  response to Panel question No.  74, para.  360. 
353 We note that Korea contends that these factors "only confirmed that the domestic industry remained 
in a vulnerable position, further supporting the finding of a likelihood of recurrence of  injury if the duties 
expired" . (Korea 's first written submission, para. 305). In view of our conclusion in this section, we need not 
reach a finding on that contention. We would agree, however, with the panel in Ukraine – Ammonium Nitrate  
that a likelihoo d-of-injury analysis can entail a consideration of the current state of the domestic industry . 
(Panel Report, Ukraine – Ammonium Nitrate , paras.  7.181 -7.182).  
354 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. 
355 Japan's  first written submission, paras.  6 and 120; second written submission, paras.  6, 176, 
and 401. 
356 Korea's  first written submission, paras.  197-198 and 217 -227; second written submission, 
paras.  190 and 194 -195. 
357 Korea's first written submission, paras.  215-217, 220, 226, and 349 -352; second written submission, 
para. 269; responses to Panel question No.  92, paras.  18, 39, and 52 , No. 94, paras.  64-67, 74, and 79, and 
No. 95, paras.  89-90 and 92.  
358 Korea's  first writte n submission, paras.  199-201; second written submission, paras.  133, 191 -192, 
195, and 259; and  responses to Panel question No.  94, para.  69, and No.  96, paras.  116-117. 
359 Japan's  first written submission, paras.  122-123, 126, 145, and 256 -257 (the latter in the context of 
"facts available"); second written submission, paras.  402-403 (point (ii) ) 415-417, and 424 ; response s to 
Panel question No.  51, para. 306(ii) , No. 92, para. 13, No. 97, paras.  40-42, and No.  98, paras.  47-48; 
 WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  KIA's initial  request for production capacity data, but  were deprived of an adequate opportunity to 
respond to the KIA 's subsequent  concerns.360 
7.129.   It is common ground amongst the parties that the product scope of the ISSF data 
encompassed not only the "product under investigation", but also "excluded products "361 and 
stainless steel sections.362 The ISSF data indicated that the three Japan ese exporters ' production 
capacity for stainless steel bars and sections was [[***]] tonnes, with a total of [[***]] for Japan 
as a whole363, whereas the Japanese exporters ' own figures  indicated that their production capacity 
for the "product under investigation" ( [[***]]) was [[***]] tonnes.364 According to Korea, th is 
broader product scope of the ISSF data was  one of the reasons for which it was  preferred over the 
Japanese exporters ' figures .365 Whereas the Japanese exporters ' figures pertained to the "product 
under investigation"366, Korea explains that the KIA preferred a broader product scope which would 
additionally encompass "the overall capacity of the production facilit[ies] that can be readily 
allocated to produce SSB products upon demand"367, i.e. "secondary processing as a whole".368 
However, Japan contends that  the KIA was wrong to use a data -set with a product scope that 
extended beyond the "product under investigation".369 Japan seems to suggest that authorities must 
always take the "product under investigation" as the starting point when  determining the capacity 
utilization rate  for exporters  in a likelihood -of-injury assessment under Article  11.3.370 This is 
because production capacity data on the "product under investigation" will be more "r elevant"371, 
whereas using "overbroad data" covering other products will be  "distortive and unreliable".372  
 
comments on Korea's  response to Japan's  question after the second meeting with the Panel No.  1, para.  218; 
and response to Korea's  question No.  10, para.  27 (point (ii)).  
360 Japan's  first written submission, paras.  121, 137, and 237 (the latter in the context of 
"facts  available")  second written submission, paras.  416, 418, and 424; response s to Panel question No. 92, 
paras.  5, 9-10, and 12, No.  95, paras.  28-29 and 35, and No.  99, paras.  51-53; comments on 
Korea 's response to Panel question No.  92, paras.  29 and 39; and response s to Korea 's question No.  9, 
paras.  23-25, No. 19, paras.  57-59, and No.  27, paras.  81 and 84.  
361 These comprised SSBs that were removed from the scope of the original investigation and the 
subsequent reviews, and hence were not subject to anti -dumping duties, because the KIA found that the 
Korean domestic industry did not possess the manufacturing capability to produce those products.  (OTI's final 
report , (Exhibit KOR -5.c (BCI)) , p. 3 and fn 5).  
362 Korea 's first written submission, paras.  189 and 193 ; Korea 's response s to Panel question Nos.  44 
and 57; Japan 's response to Panel question No . 97, para. 41; Japan 's comments on Korea 's response to Panel 
question No. 92, para. 31; and Japan 's second written submi ssion, para. 404 (albeit suggesting that Korea 
changed its explanation in this regard during the Panel proceedings) . 
363 ISSF statistics, (Exhibit KOR -20.b (BCI) ). 
364 See paras.  7.136 -7.137  below.  
365 Korea's  second written submission, paras.  221-222; responses to Panel question  No. 52(b), No. 54, 
No. 92, paras.  16-19, No. 95, paras.  92 and 95, No. 96, para.  117, and No. 99, para.  156. 
366 [[***]] . (See paras.  7.136 -7.137  below). 
367 Korea 's response to Panel question No.  44. 
368 Korea's  comments on Japan's  response to Panel question No.  92, p.  13. 
369 See, e.g. Japan's  first written submission, paras.  122-123, 126, and 145; second written submission, 
paras.  402-403 (point (ii) ) and 415 -417; response s to Panel question No. 51, para. 306(ii); and No. 97, 
paras.  40-42; comments on Korea's  response to Japan's  question after the second  meeting with the Panel 
No. 1, para.  218; and response to Korea's  question No.  10, para.  27 (point (i i)). 
370 Japan 's response to Korea 's question No . 19, paras.  57-59: "[i]f the investigating authorities wish to 
expand the scope of the products that are used as a basis for calculating production capacity, they must 
explain their logic for doing so . … The a uthority must assess at least : (i) whether it is in fact technically feasible 
to shift from production of the product under investigation to production of those other models or products, 
and (ii ) whether there is in fact any commercial incentive to make su ch a shift"  (emphasis added) . For Japan, 
authorities may only expand the product scope beyond the "product under investigation" under Article  11.3 
upon examining of technical feasibility and commercial incentives for switching production from other products 
to the "product under investigation" . See also Japan's response to Panel question No. 98, paras.  47-48; and 
comments on Korea 's response s to Panel question No.  92, para. 30, No. 98, para. 86, and No. 99, 
paras.  96-97 and 101.  
371 Japan 's first writ ten submission, para.  145; second written submission, para. 417; and response to 
Panel question No. 51, para. 306(ii) . 
372 Japan 's response to Panel question No. 97, paras.  40-41. See also Japan's first written submission, 
paras.  128 and 145; second written submission, paras.  401-403; and comments on Korea's  response to Panel 
question No.  93, para.  51. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.130.   We disagree  with Japan . The text of Article  11.3 of the Anti -Dumping  Agreement  is silent on 
the appropriate methodology for determining capacity utilization rates for exporters373 in sunset 
reviews . Instead , we agree with Korea that " in a sunset review, a relevant consideration for the 
likelihood -of-injury determination is to identif y the total production capacity that could  be used to 
produce the product under investigation if the anti -dumping measure is removed, and not just the 
production capacity of that particular product in the POR ".374 Depending on the circumstances of a 
given s unset review,  including the nature of the product at issue , it seems reasonable that an 
authority may examine " what total capacity  is available in the subject countries that could be used 
for exporting the product under investigation should the anti -dumpin g measure expire ", as Korea 
explains .375 Such an examination would accord  with the counterfactual  and forward -looking analysis 
of a sunset review.376  
7.131.   We accept Japan 's point that an authority 's capacity utilization determination , including the 
parameters used for its  product scope,  must have a factual basis.377 However, t his does not mean 
that authorities are  legally required under Article  11.3 to examine  the technical feasibility and 
commercial incentives for exporters to switch  production to other product  lines before permissibly 
relying on a product scope  broader than the "product under investigation"  when  determin ing those 
exporters ' production capacity.378 Such an analysis might  assist an authority  in generating a 
sufficient factual basis and providing a reasoned and adequate explanation for its capacity utilization 
determination , but it is not prescribed as a matter of law by  Article  11.3. 
7.132.   Thus, to the extent that Japan seeks to fault the KIA under Article 11.3 simply because the 
KIA relied on a broader product scope than the "product under investigation" when determining 
Japan 's capacity utilization rate, we reject it.379 However, we agree with Japan that it would be 
improper for an authority to determi ne a capacity utilization rate based on a broader product scope 
without informing the interested parties  of the parameters of that scope and without affording them 
an opportunity to comment or submit data based on those parameters .380 This is particularly so if 
the interested parties were requested earlier in the review to provide capacity utilization data based 
on a different product covera ge, e.g.  limited to the "product under investigation". There is nothing 
improper per se with an authority adjusting  its preferred parameters for the capacity utilization 
assessment during a review, but as we have said, we would expect the authority to info rm the 
interested parties and afford an adequate opportunity to comment or submit revised data. A failure 
to do so  could  fall short of the "appropriate degree of diligence" required of investigating authorit ies 
in conducting a "review" under Article  11.3 o f the Anti -Dumping  Agreement .381 Indeed , we cannot 
see how  an authority 's evaluation of the facts can be "unbiased and objective" if the authority reject s 
the data submitted by the interested parties for failing to comport with certain  new parameters of 
which they were not informed.382  
 
373 For the avoidance of doubt, we do not express a view on whether an exporter -specific methodology 
or an aggregate country -wide methodology is preferable under Article  11.3. Nor do we seek to suggest that a 
determination of capacity utilization rates is a necessary facet of sunset reviews under Article  11.3. 
374 Korea 's response to Pane l question No. 98, para. 133. (emphasis original)  
375 Korea 's response to Panel question No. 98, para. 150. (emphasis original)  
376 Korea's  second written submission, para.  221; response to Panel question No.  92, para.  19. 
377 Japan's  response to Korea's  questio n No.  19, paras.  58-59; response to Panel question No.  98, 
paras.  45-48; and comments on Korea's  response to Panel question No.  98, para.  86. 
378 To the extent that this is Japan's  argument ( Japan 's response to Korea 's question No . 19, 
paras.  57-59), we reje ct it. 
379 We note that Japan also contests whether the KIA conduct ed an "objective examination" in the 
particular circumstances of the present sunset for relying upon a broader product scope (see, 
e.g. Japan 's second written submission, para. 419; response to Panel question No.  92, paras.  14-18; 
comments on Korea 's respons e to Panel question No.  92, para. 34). In view of our ultimate conclusion in this 
section, we do not consider it necessary for the prompt and effective resolution of the dispute to address those 
contentions.  
380 See, e.g . Japan 's response s to Panel question No. 99, paras.  51-52, and No.  105, para. 84; and 
second  written submission, para.  424. 
381 Both parties agree with the Appellate  Body's  proposition (Appellate  Body Report, US – 
Corrosion -Resistant Steel Sunset Review , para. 111), that auth orities are required to act with an "appropriate 
degree of diligence" in arriving at a "reasoned and adequate explanation" for the likelihood -of-injury 
determination . (Korea 's second written submission, para. 87; Japan 's second written submission, para. 73). 
382 We believe this to accord with Korea's  statement that, when confronted with "inconsistent and 
unsubstantiated replies", the "only obligation [on authorities] is to make sure that the respondents are aware 
of the conc erns and can address them if they want" . (Korea 's response to Panel question No. 102, para. 183).  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.133.   With those considerations in mind, we turn now to Japan 's contention that the Japanese 
exporters complied with the KIA 's initial request for production capacity data, but were deprived of 
an adequate opportunity to respond to the KIA 's subsequent concerns , particularly in view of a lack 
of clarity over the data -scope that was allegedly sought .383 The parties disagree  upon the substance 
and timing of what was conveyed by the KIA to the  Japanese exporters regarding the KIA's preferred 
parameters  for the capacity utilization determination. There are four contested interactions between 
the Japanese exporters and the KIA in this regard.  We address each in turn.  
7.134.   First, Japan contends that the initial questionnaire sent to th e Japanese exporters dated 
3 June 2016 specified that the production capacity data should pertain to the product under 
investigation, which was defined explicitly by the KIA in a way that omitted the "excluded products"  
and other stainless steel products e .g. sections .384 Korea contends that this initial questionnaire was 
a "dumping questionnaire" sent by the "Dumping Investigation Division" as distinct from the injury 
proceeding in the sunset review.385 According to Korea, this questionnaire was " not the [KIA's] initial 
information request for the production capacity for its injury proceeding ".386 For Korea, i t is therefore  
not the proper "starting point" of the "dialogue" between the Japanese exporters and the KIA on this 
matter, which instead commenced on 1  September  2016 as reflected in the " Official Log of 
Investigation on Injury ".387 Korea states that " the Panel must not conflate the two separate 
proceedings in arriving at its findings "388, and "warns the Panel against placing undue weight on the 
initial dumping questionnaire issued by the Dumping Investigation Division ".389 
7.135.   We cannot reconcile Korea 's contention with the plain text of the KIA 's determination. In the 
likelihood -of-injury section, the KIA 's determination  relies  explicitly on the Japa nese 
exporters ' responses to the 3  June 2016 questionnaire when referencing their  submitted production 
capacity and capacity utilization data .390 The notion that the Japanese exporters ' responses to the 
3 June 2016 questionnaire have "no direct bearing" upo n the KIA 's likelihood -of-injury 
determination is therefore plainly contradicted by the determination itself.391 Japan also makes the 
point that the KIA never conveyed to the Japanese exporters that their response to the request for 
production capacity and capacity utilization data in the 3  June 2016 questionnaire would not be used 
for the KIA 's likelihood -of-injury assessment.392 Rather, the Japanese exporters understood the 
subsequent 21 September  2016 inquiries – the first received from the KIA 's Injury Investigation 
Division393 – to be " supplementary  questionnaires ".394 The Official Log  of the KIA 's Injury 
Investigation Division  similarly describes the 21  September  2016 inquiries as requests for " additional  
supplementation".395 This additional  contex t indica tes that the 3  June 2016 questionnaire was 
 
383 Japan's  first written submission, paras.  121, 137, and 237 (the latter in the context of "facts 
available"); second written submission, paras.  416, 418, and 424; response s to Panel question No. 92, 
paras.  5, 9-10, and 12, No.  95, paras.  28-29 and 35, and No.  99, paras.  51-53; comments on 
Korea 's response to Panel question No.  92, paras.  29 and 39; and responses to Korea 's question No.  9, 
paras.  23-25, No. 19, paras.  57-59, and No.  27, paras.  81 and 84.  
384 Japan's  response to Panel question No.  92, para.  2 (referring to Guideline on the scope of the 
product under investigation, (Exhibit JPN -41.b) , pp. 1-2). 
385 Korea's  response to Panel question No.  92, paras.  22-27 (referring to Sanyo  questionnaire response , 
(Exhibit JPN -7.b (BCI)) , p. 1). 
386 Korea's  response to Panel question No.  92, para.  26. (emphasis omitted)  
387 Korea's  response to Panel question No.  92, paras.  29-33 (referring to Official log of investigation , 
(Exhibit KOR -27.b (BCI)), p.  2 (emphasis omitted) ). See also ibid. No.  95, paras.  100-103 and 107.  
388 Korea's  response to Panel question No.  95, para.  102. 
389 Korea's  comments on Japan's  response to Panel question No.  92, p.  9. (emphasis omitted)  
390 OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 58 and 87 and fn 80.  
391 Korea's  response to Panel question No.  95, para.  100. 
392 Japan's  comments on Korea's  response to Panel question No.  92, para.  19. 
393 Korea's  responses to Panel question No.  92, paras.  28-31, and No.  95, paras.  100-103 and 107 -110. 
394 Japanese exporters'  submission of opinion dated 7  November  2016, (Exhibit KOR -25.b (BCI) ), p. 1. 
(emphasis added)  
395 Official log of investigation , (Exhibit KOR -27.b (BCI)), p.  1 (emphasis added). The KIA's  meeting 
minutes also described these as "[a]dditional inquiries". ( Minutes of meeting dated 21  September  2016, 
(Exhibit KOR -26.b (BCI) ), p. 1). The KIA later described the 21  September  2016 inquiry as an "additional" 
inquiry that sought to verify data that h ad already been provided by the Japanese producers, which likewise 
contradicts the notion that the 21  September  2016 inquiry represented the KIA's  first data request for the 
injury assessment.  (KTC's submission of review to MOSF , (Exhibit KOR -48.b (BCI)), p.  8). We note that Japan 
objects to our consideration of exhibit KOR -48.b because, inter alia , it was not disclosed to the interested 
parties and the final determination was not amended by this document. (Japan's  response to Panel question 
No. 95, paras.  33-35). We reject Japan's  objection in this regard. This document clearly describes part of the 
 WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  treated as an initial information request of relevance to the injury proceeding.  We therefore reject 
Korea 's contention and proceed on the basis that the 3  June 2016 questionnaire represents the 
KIA's initial request for information from the Japanese exporters for production capacity and capacity 
utilization data, including for the purposes of its likelihood -of-injury assessment.  
7.136.   The three Japanese exporters submitted individual  response s to the 3  June 2016 
questionnaire. The questionnaire was clear in setting the "[p]roduct under [i]nvestigation" as the 
product scope for the requested data concerning capacity utilization.396 As we understand it, this 
product scope was not intended to cover the "excluded prod ucts" or other stainless steel products.397 
Two of the Japanese exporters submitted figures that were, according to their explanation, limited 
to the "product under investigation".398 One of the Japanese exporters, Aichi Steel Corporation 
(Aichi), submitted separate figures for stainless steel flat bar and stainless steel round bar399, and 
stated in the section  of the questionnaire concerning the  product code that [[***]].400 Thus, 
Aichi's data comprised both the "prod uct under investigation" and [[***]], which corresponded to  
two different  figures  in its questionnaire response .401 
7.137.   Following these individual  questionnaire responses in July 2016, the Japanese exporters 
made a joint submission to the KIA on 1  September  2016. They aggregate d the figures from their 
individual responses to provide joint figures for their combined annual production capacity  and 
annual production volume in this submission , together with a n aggregated capacity utilization rate. 
The joint production capacity figure was [[***]] and the yearly aggregated  capacity utilization rate s 
for 2012 -2015 were [[***]], [[***]], [[***]], and [[***]].402 The Japanese exporters  explained 
that "[o] nly the product under investigation is counted " in these figures , and clarified that "[t] he 
products excluded from the anti -dumping measures are excluded ".403 This explanation was, 
however, inaccurate with respect to Aichi's data, which covered both the "product under 
investigation" and [[***]] as per its  earlier individual questionnaire response.  Japan explains that 
this was an "inadvertent mistake"  that the Japanese exporters subsequently corrected in thei r 
submission of 20 January  2017404, in which they stated that their aggregated figure included the 
Aichi's production capacity for [[***]].405 
7.138.   We turn now to t he second contested interaction . It concerns the inquiries made by the KIA 
to the Japanese exporters at a meeting on 21  September  2016.406 These were oral inquiries and the 
evidence before us on their substance is contained in a summary in the KIA's minutes of the meeting 
and an entry in the  KIA Injury Investigation Division 's Official Log, together with a follow -up email 
on 21  September  2016 from the counsel of the Japanese exporters  to the Japanese exporters  in 
which the counsel (and consequently, the Japanese exporters) memoriali zed their understanding of 
 
KIA's analysis as it moved towards deciding whether to continue imposing anti -dumping measures. We are 
thus not precluded from considering this doc ument, though we note its probative value in these proceedings 
may vary between differing contexts.  
396 See, e.g. Sanyo questionnaire  response , (Exhibit JPN -7.b (BCI)), p p. 6-7. The questionnaire did not 
appear to prescribe explicitly what Korea describes as  the "source" of the requested data (Korea 's comments 
on Japan 's response s to Panel question No. 93, pp. 18-19, and No. 106, p p. 48 and 50), e.g. peeling facilities 
or others, but the questionnaire did request the exporters to "[p]lease explain your method  to calculate the 
production capacity and the Capacity Utilization Rate" (e.g. Sanyo questionnaire  response , 
(Exhibit  JPN-7.b (BCI)), p p. 6-7). The concepts of "source" (or allocation method ) and "scope" were not clearly 
delineated by the parties during th ese proceedings and we understand them to be interrelated, insofar as 
parameters on the "scope" of production capacity data can inform the "source" chosen, and parameters on the 
"source" for the production capacity data can inform the "scope" being conside red. Nonetheless, our evaluation 
in this section  is cognisant of Korea 's distinction in this regard. We address Korea 's specific contentions about 
the alleged inconsistencies in the "source" of the Japanese exporters ' production capacity figures at 
paras.  7.159  and 7.164  below.  
397 Japan's  response to Panel question No.  92, para.  2 (referring to Guideline on the Scope of the 
product under investigation, (Exhibit JPN -41.b) , pp. 1-2). 
398 Sanyo questionnaire response, (Exhibit JPN -7.b (BCI)), p. 7; Daido questionnaire  response , 
(Exhibit  JPN-9.b (BCI)), annex D -3. 
399 Aichi questionnaire response, (Exhibit JPN -8.b (BCI) ), annex D -3.1. 
400 Aichi questionnaire response, (Exhibit JPN -8.b (BCI) ), annex C -2.1. 
401 Japan's  response to Panel question No.  106, para.  86. 
402 Japanese exporters'  opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), p. 15. 
403 Japanese exporters'  opinion regarding injuries , (Exhibit JPN -10.b (BCI) ), p. 15. 
404 Japan's  comments on Korea's  response to Panel question No.  92, paras.  25-26; response to Panel 
question No.  106, para.  89.  
405 Japanese exporters'  response to KTC 's additional inquiries , (Exhibit JPN -17.b (BCI)), p.  1. 
406 Korea's  response to Panel question No.  92, para.  31. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  what had been requested.407 This follow -up email also indicates the Japanese 
exporters ' understanding that "[a] lthough there were multiple questions, [the KIA]  said that these 
will be sent later by official letter ".408 There is no evidence on the record to indicate that  the inquiries 
were subsequently sent in writing by the KIA . While this email was for internal use and not sent to 
the KIA, it appears to have been sent shortly after the meeting on the same date, and the 
understandin g of the KIA's inquiries reflected therein accord s with the understanding reflected in the 
Japanese exporters' subsequent joint submission of 7  November  2016.409 There is no record 
evidence before us to indicate that the Japanese exporters ' understanding of  the KIA 's inquiries as 
reflected in that joint submission  was subsequently corrected or clarified by the  KIA.410 
7.139.   According to Korea, the aforementioned evidence of the KIA 's oral inquir ies of 
21 September  2016 demonstrates that :  
[T]he Korean authorities s pecifically requested, inter alia, (i) the specific  materials  that 
supports the Japanese respondents ' unsubstantiated allegation that their capacity 
utilization is [[***]]% or higher; (ii ) the production  capacity  of each facility (the 
aggregated amount of which constituting the overall production capacity); 
(iii) proportion  of each steel product that are being produced by the production facilities 
against their overall production, etc .411 
7.140.   Korea argues that " it is n oteworthy that the Japanese respondents confirmed the request 
from the Korean authorities by rephrasing these admittedly 'supplementary ' questions in their 
written response dated 7  November  2016".412 Korea states that, in "defiance" of these inquiries, the 
Japanese exporters " did not provide at all data on the overall capacity of their peeling machines, 
production and proportion of each SSB product and non -SSB product, or any supporting material to 
allow the Korean authorities to verify ".413 Korea describes t he KIA 's intention  as having been  to 
"obtain the overall production capacity of the Japanese respondents ' production facilities, and the 
proportion of each steel product (including covered, excluded, and non -SSB products ) produced by 
the facilities against the facilities ' overall production ".414 Korea also explains that the KIA 's inquiries 
of 21  September  2016 were intended to obtain "raw data" to verify the overall peeling capacity of 
the Japanese exporters  and the accuracy and reasonablen ess of the ir allocation method  with respect 
to their submitted production capacity and capacity utilization figures .415 
7.141.   Japan disputes this characteri zation of the substance of the KIA 's inquiries of 
21 September  2016. According to Japan, the KIA " did not m ake clear the alleged premise that the 
production capacity of other products can be converted to that of product under investigation when 
making the relevant inquiries ", and never clearly indicated that the production capacity data should 
cover a product s cope beyond the "product under investigation", contrary to the KIA 's 3 June 2016 
questionnaire.416 According to Japan, the KIA 's 21 September  2016 inquiries sought  "only the 
'[v]olume of production ' (rather than production capacity ) of the excluded products  and other steel 
products ", and the Japanese exporters " did not recognize that the [KIA] were inquiring about data 
regarding excluded products " for production capacity .417 Japan also disputes Korea 's contention that 
 
407 Minutes of meeting dated 21  September  2016, (Exhibit KOR -26.b (BCI) ), p. 1 (entitled " Summary of 
Opinions of Respondent (Counsel) "); Official log of investigation , (Exhibit KOR -27.b (BCI)), p.  2; and Email 
reporting the  meeting dated  21 September  2016, ( Exhibit JPN -30.b (BCI)), p p. 1-2. See also Korea's  response 
to Panel questio n No.  92, paras.  37-38. 
408 Email reporting the  meeting dated  21 September  2016, ( Exhibit JPN -30.b (BCI)), p p. 1-2. 
409 Japanese exporters'  submission of opinion dated 7  November  2016, (Exhibit KOR -25.b (BCI) ), p. 1. 
410 Japan's  response to Panel question No.  50, para.  275; Korea's  response to Panel question No.  92, 
paras.  12 and 32.  
411 Korea's  comments on Japan's  response to Panel question No.  92, p.  10 (emphasis original). Korea 
also refers to a document prepared by the KIA seven months after this interaction as "confirm[ing]" its 
understanding of the substance of the KIA's  inquires of 21  September  2016. ( KTC's submission of review to 
MOSF , (Exhibit KOR -48.b (BCI)), p.  8). Given the timing and nature of this document, we do not understand it 
to constitute direct evidence of the substance of the  KIA's inquiries, and consider its probative value to be 
limited in that regard.  
412 Korea's  response to Panel question No.  92, para.  38. (fn omitted)  
413 Korea's  response to Panel quest ion No.  92, para.  39. 
414 Korea's  comments on Japan's  response to Panel question No.  92, p.  9. 
415 Korea's  response to Panel question No.  95, paras.  87-90, 92 -93, 95, 97, 99, and 103.  
416 Japan's  comments on Korea's  response to Panel question No.  92, paras.  39-42; response to Panel 
question No.  92, paras.  6-7. 
417 Japan's  response to Panel question No.  92, paras.  7 and 10.  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  the KIA 's inquiries included a request for "raw data" that " would have allowed the [KIA]  to verify 
any reported figure by the Japanese respondents concerning their total capacity allegedly allocated 
to the covered products "418, and emphasi zes that the KIA did not convey to the Japanese e xporters 
that it had concerns about the reliability or product scope of th e submitted figures.419 
7.142.   We have reviewed the evidence on the substance of the KIA 's inquiries of 
21 September  2016, and we agree with Japan.  The KIA 's meeting minutes describes the in quiries 
as follows :  
Specific data must be presented with respect to the "capacity utilization is equal to or 
higher than [[***]]%." 
Status of the (new ) installation of the facilities for peeling processes, and the production 
capacity of each facility should be provided  
Volume of production and proportion of each steel grade (STS, carbon steel, 
etc.) constituting the total capacity utilization  
Volume of production and proportion of each item of STS grade (dumped imports, 
excluded goods)  
Status of annual production and volume of exports of the excluded goods[.]420 
7.143.   The KIA 's Official Log entry regarding  these inquiries states :  
Requested additional supplementation : Cases of WTO decisions, specific details of the 
capacity utilization of more than [[***]]%, difference in the volume of exports and 
imports[.]421 
7.144.   The 7 November  2016 joint submission  containing the Japanese exporters ' understanding of 
the substance of these  inquiries states :  
With respect to the capacity utilization in Table 3 on page 20 of the opinion on injury to 
industry, please explain whether other products other than stainless steel are produced 
through the facilities, which are the basis of calculatin g capacity utilization, and further 
explain the respective proportions of stainless steel and other products that are 
produced through the facilities and also respective proportions of special steel and 
general -purpose steel out of stainless steel .422 
7.145.   None of these pieces of evidence demonstrate  that the KIA conveyed to the Japanese 
exporters that it had redefine d its preferred product scope for the capacity utilization rate as 
extending beyond the "product under investigation" , nor that the Japanese exporte rs' understanding 
in that regard was incorrect . The KIA appears to have requested the production capacity of each 
peeling facility, but it is not apparent that the KIA was now interested in a different product scope 
to that previously conveyed  in the 3  June 2016 questionnaire , nor is it discernible that raw data was 
sought to verify the overall peeling capacity of the Japanese exporters and the accuracy of their 
allocation method  with respect to production capacity . This is simply not apparent from the plain 
text of these pieces of evidence , nor can such a request be reasonably inferred from their plain text. 
We further note that the Japanese exporters ' understanding of the inquiry as reflected in the ir 
7 November  2016 joint submission  makes no mention of the "overall" or "total" capacity of peeling 
facilities,  nor of requests for " raw data" to verify their "total capacity allegedly allocated to the 
 
418 Japan's  comments on Korea's  responses  to Panel question No.  92, paras.  41-44, and No.  95, 
para. 70; response to Panel question No.  95, paras.  27-31. 
419 Japan's  response to Panel question No.  95, paras.  29-30; comments on Korea's  response to Panel 
question No.  92, paras.  29 and 38 -44. 
420 Minutes of meeting dated 21  September  2016, (Exhibit KOR -26.b (BCI) ), p. 1. 
421 Official log of investigation , (Exhibit KOR -27.b (BCI)), p.  1. 
422 Japanese exporters'  submission of opinion dated 7  November  2016, (Exhibit KOR -25.b (BCI) ), p. 1. 
As mentioned earlier, this is substantively equivalent to their understanding as reflected in: Email reporting the  
meeting dated  21 September  2016, ( Exhibit JPN -30.b (BCI)), p. 1. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  covered products  … and how (and if ) such capacity was allocated to SSB s".423 Rather, the first two 
inquiries (as extracted immediately above) concern "products other  than stainless steel" and thus 
cannot be said to  convey that the intended product scope encompassed  the "excluded products" and 
stainless steel sections  in addit ion to the "product under investigation" . The t hird inquiry concerns 
the somewhat distinct issue of the "respective proportions of special steel and general -purpose steel 
out of stainless steel"  and again cannot be said to convey a different product scope to that requested  
by the KIA  in the 3  June 2016 dumping questionnaire . The Japanese exporters' response to these 
inquiries indicates that they continued to operate on the understanding that the "dumped imports" 
(i.e. the "product under investigation") formed the basis for determining production capacity , as had 
been conveyed  by the KIA in the 3  June 2016 dumping questionnaire , and as indicated in table 3 of 
the written opinion to which this inquiry refers .424 There is no record evidence before us indicating 
that the  KIA subsequently clarified that it s inquiries of 21  September  2016 had instead  been 
intended to  cover  a broader product scope and  to obtain data on  "the overall capacity of their peeling 
machines, production and proportion of each SSB product and non -SSB product, [and]  any 
supporting material to allow the Korean aut horities to verify ".425 
7.146.   We turn now to  the third contested interaction, which pertains to  the substance of the 
KIA's inquiries of 24 and 30  November  2016.  Korea contends that on 24  November  2016 "there was 
the public hearing, in which the Japanese respondents were specifically  asked to provide outstanding 
data concerning, among others, production capacity and utilization", and that on 30  November  2016 
the KIA "clarified" this information request in a telephone call, namely that the exporters should 
"provide the outstanding information, as indicated during the public hearing, namely the data on 
production capacity and utilization of all facilities 'capable ' of producing SSBs" .426 Korea indicates  
that this information request was "for the complete peeli ng capacity of the Japanese respondents, 
which was the relevant capacity data that could be used to produce the covered SSB products" , 
although we also note Korea 's subsequent clarification that the KIA was seeking " the capacity of the 
secondary processing  as a whole, as opposed to the capacity of the peeling process only ".427 
7.147.   According to Japan, the evidence on the substance of the KIA 's inquiries of 24 and 
30 November  2016 makes " no specific reference to excluded products and other steel products "428, 
and t he plain text of the Official Log entry suggests that the inquir ies were susceptible to varying 
understandings .429 
7.148.   We have reviewed the evidence on the substance of the KIA 's inquiries of 24 and 
30 November  2016. While the KIA did make a request for "data on production capacity and capacity 
utilization" at the public hearing430, the inquiry is formulated in  imprecise terms and the KIA seems 
to have requested that the capacity utilization data on the "dumped imports" be "differentiated" 
from the  "produc ts not covered" i.e. the  excluded products.431 According to an entry in the 
KIA's Official Log, i n a subsequent telephone call on 30  November  2016 the KIA instructed the 
Japanese producers "to submit the materials requested by the commissioners at the publi c hearing" 
and "[e]xplained that the materials requested by the standing commissioners in particular relate to 
the production capacity and capacity utilization including the production capacity of production 
facilities capable of manufacturing STS bars".432 Again, this evidence on the substance of the 
inquiries suggests that they were somewhat imprecise.  Korea focuses on the term "capable"  in the 
KIA's Official Log entry for this telephone call , and also suggests that the KIA was requesting data 
for "all" fa cilities433, which Korea characterizes as a request for the  "Japanese respondents ' total 
 
423 Korea's  response to Panel question No.  95, paras.  87-88. 
424 Japanes e exporters'  submission of opinion dated 7  November  2016, (Exhibit KOR -25.b (BCI) ), p. 1 
("Status of Respondents Production of Dumped Imports "). We note that the Japanese exporters provided 
figures concerning both the "product under investigation" and "excluded products" where they understood this 
to have been requested by the KIA. (Ibid, p. 5).  
425 Korea's   response to Panel question No.  92, para.  39. 
426 Korea's  response to Panel question No.  92, para.  42. 
427 Korea's  response to Panel question No.  92, para. 48; comments on Japan's  response to Panel 
question No.  92, pp.  12-13. 
428 Japan's  response to Panel question No.  92, para.  11. 
429 Japan's  comments on Korea's  response to Panel question No.  92, para.  47; response to 
Korea's  question No.  27(iii), para.  82. 
430 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), pp.  35-36. 
431 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), p.  30. 
432 Official log of investigation , (Exhibit KOR -27.b (BCI)), p.  5. 
433 Korea 's responses to Panel question No.  92 para. 42, and No.  95, para. 104; second written 
submission, para. 211. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  peeling capacity and underlying raw data ".434 Given its lack of precision, we are unwilling to read 
additional words and meaning into this evidence that are not apparent  on its face.  
7.149.   Moreover, as mentioned, the KIA appears to have requested that the relevant data 
concerning the "dumped imports" be "differentiated" from the "excluded products"435, which would 
appear to accord with the KIA 's approach in its 3 June 2016 questionnaire that set the "[p]roduct 
under [i]nvestigation" as the basis for the requested data concerning capacity utilization.436 We also 
consider it noteworthy that there is an absence in this evidence of any express mention that the KIA 
had redefined its preferred parameters for the capacity utilization rate as extending beyond the 
"product under investigation". Further, it is noteworthy that this evidence does not indicate that the 
KIA conveyed to the Japanese exporters that their submis sion of production capacity figures, for 
which "[o] nly the product under investigation is counted "437, were based on incorrect parameters  
and did not constitute data . 
7.150.   Korea contended that the parameters for production capacity in the information requests  
conveyed through the "dialogue" between the KIA and the Japanese exporters beginning  in 
September 2016 were "exactly the same" as those conveyed to the applicants in their written injury 
questionnaire.438 We have reviewed the  injury questionnaire issued to th e applicants in writing . It 
provides a counterpoint to the lack of precision in the documentary evidence before us concerning 
what was conveyed to the Japanese exporters in the so-called dialogue of oral exchanges. In 
particular, the injury questionnaire i ssued to the applicants in writing shows the tables that they 
were requested to complete, including yearly breakdowns for production capacity, production 
volume, self -consumption, change rates, and capacity utilization, as well as facility breakdowns of 
capacity utilization covering flux, average diameter, hours per day, production days per year, daily 
production volume, steel bar production, and SUS production.439 The questionnaire sent by the KIA 
to the applicants provided the explicit guidance that "if th e production facility for domestic like 
products can be used to produce products other than the dumped imports, provide specific grounds 
for calculation of each production capacity".440 It further requested the applicants to (a) "provide the 
methods to esti mate the potential production days or months in light of non -operating days or 
maintenance periods" ; (b) "describe the planned periods and production capacities of the facilities 
to be added or reduced" if "your company is planning to build up or downsize facilities for domestic 
like products"; and (c)  "[d]escribe whether your company's capacity utilization is optimum compared 
to average capacity utilization in the same industry".441 Thus, the level of precision with which the 
KIA expressed its requests for the applicants' capacity utilization information stands in contrast with 
the documentary evidence surveyed above on the substance of the KIA's oral requests for the 
Japanese exporters' capacity utilization information. For instance, Korea focuses on the KI A's 
apparent use of terms like "capable" and "specific data" in this documentary evidence  of the oral 
dialogue  with the Japanese exporters , but these terms are far less precise than the detailed written 
request issued to the applicants. Our comparison between the KIA's written information request to 
the applicants and the evidence on the KIA's oral information requests to the Japanese export ers 
confirms our decision not to read additional words and meaning into the documentary evidence of 
the oral dialogue that are not apparent on its face.  
7.151.   We turn now to the  fourth contested interaction, which pertains to the  substance of the 
KIA's inquiries  of 11 January  2017.  These were oral inquiries made at a meeting. The only evidence 
before us on their substance is the KIA 's Official Log entry for this meeting, which states :  
Requested the submission of supplemental materials (by 20 January) [.]  
Status of peeling machines and production capacity of each peeling machine; detailed 
grounds for the calculation of production capacity; annual and daily volume of 
 
434 Korea 's response to Panel question No. 95, para. 110. 
435 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), p.  30. 
436 See, e.g. Sanyo questionnaire response , (Exhibit JPN -7.b (BCI)), pp.  6-7. See also Korea's  response 
to Panel question No.  9(a)(i) -(ii) concerning how the term "dumped imports" should be understood in the 
underlying review.  
437 Japanese exporters'  opinion re garding injuries , (Exhibit JPN -10.b (BCI) ), p. 15. As we have 
mentioned earlier, the Japanese exporters'  explanation was incorrect on this point regarding Aichi's  data. 
438 Korea's comments on Japan's comments on the Interim Report, p. 22; comments on the 
Interim  Report, para. 91; and response to Panel question No. 95, paras. 91 -95.  
439 Injury questionnaire response, (Exhibit KOR -72.b (BCI)), p. 12.  
440 Injury questionnaire response , (Exhibit KOR -72.b (BCI)), p. 12.  
441 Injury questionnaire response, (Exhibit KOR -72.b (BCI)) , p. 1 3. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  production and end -term inventory of the dumped imports; status of classification of 
special steel types [.]442 
7.152.   Korea characterizes this as a request " for the Japanese respondents ' total peeling capacity 
and underlying raw data ", but explains that "the Japanese respondents again provided the same 
capacity number on the covered and excluded SSBs with no un derlying data ".443 With respect to the 
reference to the "production capacity of each peeling machine", Korea states that this meant "all" 
peeling machines444, and this request was " obviously to obtain, again, the Japanese 
respondents ' overall production capa city, as each peeling machine 's production capacity should 
collectively add up to the overall production or peeling capacity of the Japanese respondents ".445 
Korea notes that the Japanese exporters " themselves argued and provided the reasons as to why 
'peeling capacities ' must be used as the production capacity "446, and therefore " in order to confirm 
whether and how the  respondents had allocated their peeling capacity to the covered SSBs, the 
Korean authorities requested information on their total peeling capacity ".447 
7.153.   Japan contends that " there was no specific reference to excluded products and other steel 
products " in these inquiries.448 On the contrary, the reference to the "dumped imports" in this 
evidence " again indicates that the focus was on th e product under investigation", and "[n]othing in 
the phrase 'dumped imports ' would give the Japanese Respondents  any reason to believe the 
authorities were asking about anything other than the product under investigation".449 With respect 
to the reference to the "production capacity of each peeling machine", Japan states that the Japanese 
exporters " underst ood that the product scope for the data concerning  peeling machines is the 
product under investigation"  and had not been instructed otherwise  by the KIA .450 
7.154.   We have reviewed the evidence on the substance of the KIA 's inquiries of 11  January  2017. 
In its prior submission dated 8  December  2016, the Japanese exporters had contended that " the 
production capacity of the peeling process is the production capacity  of the product  under  
investigation  in this case ".451 Korea indicates that the KIA 's inquiries of 11  January  2017 regarding  
the " production capacity of each peeling machine " followed on from the Japanese 
exporters ' contention on this point .452 We recall that, pursuant to Korea 's understanding, "[t] he only 
obligation  [on authorities]  is to make sure that the respondents are aware of the concerns and can 
address them if they want ".453 Nothing in the Official Log entry for the 11  January  2017 meeting 
suggests to us that the KIA made sure that the Japanese exporters were aware of the concern  that 
"what mattered for the [KIA]  … was such reasonably convertible capacity upon removal of the duties 
and not the capacity  currently  and specifically  allocated  to the covered  SSB products  in the POR".454 
Specifically , there is no indication in the available evidence that the KIA sought to correct the 
Japanese exporters ' reliance on the peeling process production capacity for the "product under 
investigat ion" in particular . If anything, the KIA 's request  on 11  January  2017 for the " annual and 
daily volume of production  … of the dumped  imports " could warrant the  opposite  inference , insofar 
 
442 Official log of investigation , (Exhibit KOR -27.b (BCI)), p.  6. 
443 Korea's  response to Panel question No.  95, paras.  105-106 and 110. See also ibid. No.  92, 
paras.  47-48. 
444 Korea's  response to  Panel question No.  92, para.  47. 
445 Korea's  response to Panel question No.  95, para.  224. 
446 Korea's  response to Panel question No.  95, para.  223. 
447 Korea's  comments on Japan's  response to Panel question No.  105, pp.  44-45. 
448 Japan's  response to Panel quest ion No.  92, para.  11. 
449 Japan's  response to Panel question No.  92, para.  11. 
450 Japan's  response to Panel question No.  105, paras.  83-84; comments on Korea's  response to Panel 
question No.  105, paras.  180-181. 
451 Japanese exporters'  post-hearing opinion , (Exhibit JPN -16.b (BCI)), pp.  1-2 (emphasis added ). 
We observe that the Japanese exporters made certain confusing remarks regarding the coverage of the 
"excluded products" in their production capacity data in the 8  December  2016 submission. What i s clear, 
however, is that they were operating on the basis that the production capacity of the "product under 
investigation" was the preferred parameter, as reflected in their description of the question being asked and 
the subsequent responses. (Ibid. pp.  1-3). It is also clear that they were not operating on the understanding 
that the production capacity of other  stainless steel products should be covered, nor that the preferred 
parameter comprised "the overall capacity of the production facilit[ies] that  can be readily allocated to produce 
SSB products upon demand" . (Korea's  response to Panel question No.  44). 
452 Korea's  comments on Japan's  response to Panel question No.  105, pp.  44-45; response to Panel 
question No.  105, paras.  221-223. 
453 Korea's  response  to Panel question No.  102, para.  183. 
454 Korea 's response to Panel question No. 105, para. 225. (emphasis added)  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  as the exporters might expect the production volume data and the pro duction capacity data to have 
corresponding product scopes.455 
7.155.   Subsequent to the 11  January  2017 inquiries, the KIA released the OTI 's revised interim 
report. Korea seems to suggest that, upon seeing that the KIA had opted for the ISSF production 
capacity data with a broader product scope, the Japanese exporters could have submitted "an 
updated number for the updated scope (i.e., allocated to both the covered an d excluded 
products) ".456 Japan rejects Korea 's suggestion that the Japanese exporters could have submitted 
updated data at that point because they were never made aware of the broader product scope and 
persisted in their understanding  "that the product sco pe of the required production capacity was the 
product under investigation ".457  
7.156.   We have reviewed the version of the OTI 's revised interim report that was made available 
to the Japanese exporters.458 The KIA explicitly cited the Japanese exporters ' individua l responses 
to production capacity portion of the 3  June 2016 questionnaire but refrained from mentioning that 
their figures had been rejected due to an incorrect product scope and a failure to provide raw data.459 
We recognize that there are some elements from which it could be divined that  the KIA had opted 
for a different product scope for the production capacity data vis-à-vis what the KIA had specified in 
the 3  June 2016 questionnaire.460 However, we see nothing in Article  11.3, nor in the 
Anti-Dumping  Agreement  more generally, that suggests that interested parties are expected to 
engage in back -calculations and inferential reasoning, or piece together a puzzle, to derive the 
parameters of the data and verifying material that an authority is seek ing. Indeed, in general terms, 
Korea itself makes the point that : "[c]learly, all likelihood -of-injury analysis by the KTC or OTI was 
conducted on the basis of the covered products " and  "[p]roducts other than the covered products – 
excluded products – were never a part of the review, so it is safe to suppose that any analysis or 
finding made by the KTC in the context of its determination was exclusively focused on the covered 
product or covered product market".461 In light of this general approach and unders tanding in the 
KIA's likelihood -of-injury determination, we would expect the KIA to instruct the interested parties 
directly and clearly where it intended to deviate from that approach, including at an appropriate 
stage in the review such that the interest ed parties could respond accordingly.  With these 
considerations in mind, w e accept Japan 's point that the OTI 's revised interim report did not 
adequately convey to the Japanese exporters the data and materials which  Korea now explains were 
sought by the KI A such that the Japanese exporters were made "aware of the concerns  and [could] 
address them if they want ".462 
7.157.   Korea argues that, regardless of any issues concerning the Japanese exporters ' submissions, 
the only question before us is whether " it was unreaso nable to rely on the ISSF data "463, which Korea 
contends " was objectively more appropriate for Korea 's determination as it contained Japanese 
macro data ".464 Japan responds that , as evidence of country -wide production capacity, the Japanese 
exporters ' data was the most probative465, and the ISSF data was not the most reliable since it was 
"not tailor -made for the sunset review at issue ".466 We find Korea 's distinction between the 
company -specific figures of the  Japanese exporters and the countr y-wide ("macro" ) figures  of the 
 
455 That is, in the absence of any indication otherwise from the authorities. See also Korea's  response to 
Panel question No.  9(a)(i) -(ii) concer ning how the term "dumped imports" should be understood in the 
underlying review. In view of our ultimate conclusion in this section, we need not express a view in the 
abstract on the parties'  arguments and rebuttals concerning the requisite degree of alig nment under 
Article  11.3 between the product scope of the numerator and the product scope of the denominator when an 
authority decides to generate a capacity utilization rate for likelihood -of-injury assessments in sunset reviews.  
456 Korea 's response to Pan el question No. 94, para. 83. See al so Korea's  response to Panel question 
No. 97, para.  127; and second written submission, paras.  211-212 (in which the revised interim report is listed 
amongst the " continuous and detailed requests made by the [KIA]  for the complete and accurate data "). 
457 Japan's  comments on Korea's  response to Panel question No.  97, para.  80. 
458 OTI's revised interim report, (Exhibit JPN -1.b). 
459 OTI's revised interim report, (Exhibit JPN -1.b), p.  39 and fn 54.  
460 OTI's revised interim report, (Exhibit JPN -1.b), fns 48 and 49.  
461 Korea 's response to Panel question No.  9(a)(i) . 
462 Korea's  response to Panel question No.  102, para.  183. 
463 Korea's  second  written submission, para.  137. See also Korea's  comments on Japan's  response to 
Panel question No.  96, p.  26. 
464 Korea's  first written submission, paras.  203, 205, and 224.  
465 Japan 's response s to Korea 's question No.  6, para. 17, and No. 22, para. 65. 
466 Japan's  comments on Korea's  response to Panel question No.  93, para.  51; response to 
Korea's  question No.  10, paras.  27-28. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  ISSF unconvincing  in the circumstances of the present case . The three Japanese exporters that 
submitted figures on their production capacity represented [[***]] of the ISSF 's country -wide 
production capacity data , and the ISSF structured its data in a company -specific way.467 Moreover, 
Korea 's description of the ISSF data as being the "starting point" does not accord with the KIA 's own 
description of its approach, in which it examined  the Japanese exporters ' data, found it to be lacking, 
and then " [u]nder such circumstances , the investigating authorities reviewed the data from the ISSF 
and used it ".468 
7.158.   At this juncture, it is useful to summari ze our evaluation thus far. We consider that the 
3 June 2016 questionnaire represents the KIA 's initial request for information from the Japanese 
exporters for production capacity and capacity utilization data, including for the purposes of its 
likelihood -of-injury assessment. This questionnaire was clear  in setting the "[p]roduct under 
[i]nvestigation" as the preferred product scope  for the requested data concerning capacity utilization. 
Ultimately, the KIA preferred a broader product scope encompassing the "excluded products" and 
certain other products  with a view to identifying  "the overall capacity of the production facilit[ies] 
that can be readily allocated to produce SSB products upon demand"469, i.e. "secondary processing 
as a whole".470 Korea also explains that "[f] or SSB production capaciti es, given the high -adaptability 
of the SSB production facilities, the data must be specific and detailed enough to allow verification 
of the accuracy, veracity, reliability, and reasonableness of the submitter 's allocation method ".471 
Thus,  according to Kor ea, the KIA also required " supporting materials that would have allowed the 
[KIA]  to verify any reported figure by the Japanese respondents concerning their total capacity 
allegedly allocated to the covered products  … and how (and if ) such capacity was all ocated to SSBs " 
in order to "corroborate[] the accuracy and reasonableness of the reported production capacity 
figure ".472 Korea 's position is that "[d] uring the review, the [KIA]  posed several supplemental 
questions to the Japanese respondents for their da ta on production capacity covering not only the 
product  under  investigation , but also their total secondary  processing  capacity "473, together with the 
raw data that would have allowed verification.474 We reject this position because  the evidence on 
the substance of the KIA 's inquiries of 21  September  2016, 24 and 30  November  2016, and 
11 January  2017, as well as the OTI 's revised interim report, do not sustain the proposition  that 
such requests were made.  Rather, based on the availab le evidence, we agree with Japan475 that, 
after responding to the 3 June questionnaire (which specified that the production capacity data 
should pertain to the "product under investigation" ), the Japanese exporters were not made aware 
that, in Korea 's words , "what mattered for the [KIA]  … was such reasonably convertible capacity 
upon removal of the duties and not the capacity  currently  and specifically  allocated  to the covered  
SSB products  in the POR".476 
7.159.   Contrary to Korea 's argument477, therefore,  we cannot fault the Japanese exporters for 
failing to submit data and materials of which they were not made aware based on the available 
evidence  before us . However, with respect to the figures that the Japanese exporters did in fact 
provide, Korea additi onally argues that they contained inconsistencies, inaccuracies, and mistakes 
 
467 ISSF statistics, (Exhibit KOR -20.b (BCI) ). 
468 KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p. 9. (emphasis added ) 
469 Korea's  response to Panel question No.  44. See also  responses to Panel question No.  54 and No.  92, 
para. 19; and comments on Japan's  response to Panel question No.  92, p.  9. 
470 Korea's  comments on Japan's  response to Panel question No.  92, p.  13. See also  Korea's  second 
written submission, paras.  221-222; and response to Panel question No.  54. 
471 Korea's  response to Panel question No.  95, para.  90; comments on Japan's  response to Panel 
question No.  92, p.  12.  
472 Korea's  response to Panel question No.  95, pa ras. 87 and 89.  
473 Korea's  response to Panel question No.  95, para.  89 (emphasis added). See also  Korea's  responses 
to Panel question Nos.  50(a)  and 50(b)(iii); No.  92, paras.  48-49; and second written submission, 
paras.  210-212. 
474 Korea's  response to Panel question No.  95, paras.  110-111; second written submission, 
paras.  211-212. 
475 Japan 's second  written submission, paras.  416, 418, and 424, and fn 502; response s to Panel 
question No. 92, paras.  5, 9-10, and 12, No. 95, paras.  28-29 and 35 , and No. 99, paras.  51-53; comments on 
Korea 's response to Panel question No. 92, paras.  29 and 39; and response s to Korea 's question No. 9, 
paras.  23-24, and No. 27, paras.  81 and 84.  
476 Korea 's response to Panel question No. 105, para. 225. (emphasis added)  
477 Korea 's responses to Panel question No.  50(b)(i) , No. 53, No. 92, para. 39, and No.  95, para. 95; 
comments on Japan 's response to Panel question No. 106, p.  50; second written submission, pa ras. 194 
and 211-212; and comments on Japan 's response to Korea 's question No. 19, p. 41. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  which called into question the credibility and reliability of the Japanese exporters ' submissions.478 
The discrepancies identified by Korea include differing calculation methodologies  amongst the 
Japanese exporters , shifting calculation methodologies  during the review , and changing explanations 
of the product scope of the submitted production capacity figure of [[***]] tonnes .479 Korea states 
that the KIA " prope rly assessed the submissions of the Japanese respondents, identified 
inconsistencies, and reached adequate and reasoned conclusions about the lack of reliability of the 
information provided given these inconsistencies ".480 For Korea, " if respondents provide  inconsistent 
and unsubstantiated replies, the authorities are entitled to draw certain conclusions about the 
reliability of the information provided without having to seek to resolve these inconsistencies in order 
to make the case of the respondent s".481 In that regard, Korea asserts that the existence of these 
inconsistencies demonstrates that the KIA was not legally required to engage further with  the 
"unsubstantiated numerical allegations" in the Japanese exporters ' data482, and accordingly, Japan 
has fa iled to meet its burden of proof  that the KIA acted inconsistently with Article  11.3 by rejecting 
the Japanese exporters ' data.483  
7.160.   We address, in turn, each of the three general types of errors identified by Korea.484 Our 
examination involves considering th e parties ' arguments and the underlying exhibits to ascertain 
whether an "unbiased and objective" investigating authority could have reached the conclusion that 
these errors undermined the reliability and credibility of the Japanese exporters ' submissions,  such 
that the authority would have no need to engage further with those submissions in conducting its 
review under Article  11.3. 
7.161.   First, Korea points out that the Japanese exporters ' description of the product scope of their 
production capacity data varied  despite continuously submitting the same figure.485 According to 
Japan, the discrepancy was an inadvertent error that arose from how the three Japanese exporters 
aggregated the figures from their individual questionnaire responses, and corrected the error in their 
20 January  2017 submission.486 Japan also notes that the KIA never raised questions or concerns 
about this matter during the review.487 We have set out relevant background above at 
paragraphs  7.136 -7.137 . It is clear that the discrepancy emerged upon the Japanese 
 
478 Korea's  first written submission, paras.  214-219 and 227; second written submission, paras.  194, 
212, and 214; response s to Panel question No s. 52(a) and 52(b)(ii) , No. 92, para. 44, No. 94, paras.  76-81 
and 84, No. 97, paras.  123 and 126, and No.  102, paras.  179 and 182 -183; comments on Japan 's responses to 
Korea's  question No.  6, pp. 16-17, No.  22, p. 46, No.  29, p. 61, and No.  30, p. 66; and comments on  
Japan 's responses to Panel question "General Observations", p. 4, question  No. 94, pp. 20-21, and No.  98, 
pp. 30-32. Korea contended that, even if the KIA did fail to provide the underlying rationale of its inquiries to 
the Japanese exporters, this did no t justify their constant failure to provide the information specifically 
requested by the KIA. (Korea 's comments on Japan 's response to Korea 's question No.  19, p. 41). 
479 See, e.g. Korea 's first written submission, paras.  324-332; second written submission , para. 194; 
and responses to Panel question No.  94, paras.  76-81, and No. 95, paras.  96-97.  
480 Korea 's comments on Japan 's response to Panel question No.  102, p. 39. 
481 Korea 's response to Panel question No.  102, para. 183. 
482 Korea stated that  (a) "the relevant law and accepted practice provide that only substantiated 
arguments may require an examination and response by investigating authorities" (Korea 's comments on 
Japan 's response to Korea 's question No.  10, p. 23); (b) there does not exist a "legal requirement going 
beyond reaching a reasonable conclusion of the accuracy and reliability of the information provided as part of 
its totality of the evidence before it" (Korea 's response to Panel question No. 102, para. 180); and  (c)  the 
"authorities properly assessed that these inconsistencies  existed and reached reasonable conclusions about the 
lack of reliability of the information provided given these inconsistencies". (Ibid. para. 179 (emphasis 
original)). See also Korea 's responses to Panel question No.  92, paras.  44 and 46, No.  94, para.  78, No.  97, 
paras.  121-123, No.  100, paras.  170-172, and No.  102, paras.  179-180 and 182 -184; comments on 
Japan 's responses to Korea 's question No.  10, p. 23, No.  11, p. 24, No. 19, p. 41, No. 27(iii), p p. 55-56, 
and No. 29, pp. 61-62; and comments on Japan 's responses to Panel question "General Observations", p p. 4-5, 
question No. 93, pp. 17-18, No.  94, p. 22, and No.  97, p. 28. See generally Korea 's response to Panel 
question  No. 3(a). 
483 Korea 's comments on Japan 's responses to Panel question "General Observations", p. 5, 
question  No. 95, pp. 24-25, No.  97, p. 28, and No.  106, p p. 46-47; comments on Japan 's response to 
Korea 's question No.  10, p. 23. 
484 See e.g. Korea 's response to Panel question No.  94, paras.  76-81. 
485 Korea 's responses to Panel question No.  92, paras.  44-46, and No.  94, paras.  67 and 78; comments 
on Japan 's responses to Panel question No.  92, p. 16, No.  93, p. 18, No.  95, p. 24, and No.  106, p p. 46-50; 
and comments on Japan 's response to Korea 's question No.  27(iii), p p. 55-56. 
486 Japan 's response to Panel question No.  106, paras.  86-87; comments on Korea's  response to Panel 
question No.  92, paras.  25-26. 
487 Japan's  response to Panel question No.  106, para. 90; comments on Korea's  response to Panel 
question No.  92, para.  27. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  exporters ' aggregation of their figures, and they ultimately provided an accurate description of the ir 
intended product scope in the  20 January  2017 submission. Accordingly, we do not accept that an 
"unbiased and objective" investigating authority could conclude  that this discrepancy undermined 
the overall  credibility and reliability of the production capacity  figures submitted by the Japanese 
exporters , such that the authority  could decline to engage with them. 
7.162.   Second,  Korea points out that the Japanese exporters ' description of their methodologies for 
calculating their capacity utilization was inconsistent during the review, whilst  continuously 
submitting the same figure.488 Japan responds that the matters cited by Korea pertain to an 
"inadvertent mistake" or a "slight clarif[ication] [of an] explanation " and have no meaningful 
implications489, and moreover, the KIA never expressed concern over these "minor discrepancies".490 
From our review of the parties ' arguments and the underlying exhibits, we cannot see how  an 
"unbiased and objective" investigating authority could find that  the matters raised by Korea 
undermined the overall credibility and reliability of the Japanese exporters ' production capacity 
figures such that the authority could decline to engage with them. With respect to Daido  Steel 
Corporation (Daido) 's alleged shift from relying on [[***]] to "peeling" as the basis for its production 
capacity calculation491, it is apparent that the Japanese exporters considered peeling to be the final 
stage in the secondary processing for the product under investigation.492 Thus, we agree with Japan 
that there is no inherent tens ion between these descriptions.493 With respect to Aichi 's shift from 
referencing the [[***]] process to the [[***]] process, Korea is correct to point out the discrepancy 
and Japan concedes that this change represented an "inadvertent mistake" . This mistake went 
uncorrected by the Japanese exporters, but equally, nothing before us suggests that the KIA inquired 
into this discrepancy. We cannot see how an "unbiased and objective" investigating authority could 
conclude  that the mere existence of t his kind of shortcoming in an interested party 's submission 
would warrant its immediate rejection as unreliable.494 We accept Korea 's point that Aichi was 
including a [[***]]495, but the Japanese exporters explained in their submission of 20  January  2017 
that Aichi 's data included [[***]].496  
7.163.   Third, Korea points  out that the Japanese exporters ' description of their methodologies for 
calculating their capacity utilization were different from one another, despite peeling being a "defined 
stage of manufacturing" .497 Japan does not dispute that the process of manufacturing SSB s is 
standardized , but contends that the " the specific details of the secondary processing method may 
vary from company to company ", which in turn  explains the differences between the Japanese 
exporters ' submissions.498 It is apparent  that, whilst the KIA requested the Japanese exporters to 
specify their calculation methodology in their individual responses to the 3  June 2016 questionnaire, 
it did no t specify or request a uniform  methodology at that juncture or subsequently during the 
 
488 Korea's  first written submission, paras.  217 and 330 -332; opening statement at the first meeting of 
the Panel , para.  44; responses to Panel question No.  50(b)(ii)  and No.  94, para s. 76-77, 80, and 84 -85; and 
comments on Japan's  responses to Panel question No.  95, p.  24, and No.  106, pp.  48-50. 
489 Japan 's second written submission, paras.  428-429; response to Panel question No.  50, para.  292; 
and comments on Korea's  response to Panel  question No.  94, paras.  59-61 and 63 -65. 
490 Japan's  response to Panel question No.  50, para.  292; comments on Korea's  response to Panel 
question No.  94, para.  65. 
491 Korea's  first written submission, paras.  217 and 330; opening statement at the first meetin g of the 
Panel, para.  44; and responses to Panel question No.  50(b)(ii), and No.  94, para.  77. 
492 Japanese exporters'  post-hearing opinion, (Exhibit JPN -16.b (BCI)), p p. 1-2. 
493 Japan's  second written submission, para.  428; comments on Korea 's response to P anel question 
No. 94, para.  60. 
494 It is well established that investigating authorities have a duty to seek out relevant information and 
to evaluate it in an objective manner. (Appellate  Body Report, U S – Anti-Dumping and Countervailing Duties 
(China) , para. 344 (referring to Appellate  Body Report, US – Corrosion Resistant Steel Sunset Review , 
para. 199; and US – Wheat Gluten , para. 53)). The present shortcoming is more akin to a typographical or 
clerical error than an analytical mistake. We also distinguish the present shortcoming from instances where 
interested parties ' arguments are unsubstantiated or irrelevant, such that only limited or indeed no substantive 
consideration ma y be warranted. To dismiss the whole of an interested part y's submissions on the basis of 
such an "inadvertent mistake" would be to fail to meet the duty to seek relevant information and assess it in 
an objective manner.  
495 Korea's  response to Panel questio n No.  94, para.  77. 
496 Japanese exporters'  response to KTC 's additional inquiries , (Exhibit JPN -17.b (BCI)), p.  1. 
497 Korea's  first written submission, paras.  216 and 220; second written submission, paras.  146-148; 
and response to Panel question No.  94, paras.  65-66, 74, 76, and 79 -81. 
498 Japan's  first written submission, para.  129; second written submission, paras.  425 a nd 478 -482. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  review.499 Korea explains that this was unnecessary  because  the standardized nature of the peeling 
process meant that there can be no differences.500 That may be the case,  but there is no evidence 
before us  indicating  that, prior to the revised interim report, the KIA communicated this 
understanding to the Japanese exporters or conveyed its concerns regarding the use of differing 
calculation methodologies.501 Thus, the KIA d id not inquire as to whether the apparent differences 
were meaningful and reflected actual discrepancies amongst the Japanese exporters ' respective  
approach es, or whether they were based on the same standardized approach but expressed in 
different terminol ogy or tailored to the particular circumstances of each exporter. Subsequent to the 
revised interim report , it is not apparent to us whether or how the KIA took account502 of the 
Japanese exporters ' explanation503 that the differences were a function of company -specific factors.  
Thus, there is no evidence to suggest that t he KIA investigate d whether these differences were 
meaningful . Moreover, t he KIA  neither specified a uniform methodology , nor conveyed concerns 
about these differences prior to the revised interim report . In these circumstances , we cannot see 
how an "unbiased and objective" investigating authority could conclude that these differing 
calculation methodologies would necessarily call into question the  reliability and credibility of the 
Japanese exporters ' submissions.  
7.164.   In summary, we do not consider  that the mistakes, inconsistencies, and inaccuracies 
identified by Korea in the Japanese exporters ' submissions  – individually or taken together – could 
have led an "unbiased and objective" investigating authority to find that the overall reliability  of the 
Japanese exporters ' submissions was undermined  such that no further consideration or engagement  
would be  warranted. Rather,  after having specified in the the 3  June 2016 questionnaire that the 
"[p]roduct under [i]nvestigation" was the preferred product scope for the requested data concerning 
capacity utilization,  we consider that the KIA had a duty  to make the Japanese exporte rs aware of 
the perceived shortcomings in their responses , such as  conveying  that the KIA 's chosen parameters 
had changed, that the Japanese exporters ' figures were based on an incorrect set of parameters, or 
that "raw data" was required to verify their al location method.  
7.165.   Finally , Korea submits that the "Japanese respondents committed mistakes in virtually  every  
submission  made to the Korean authorities", which "suggests that the mistakes were not 
inadvertent ".504 According to Korea, this indicate s that the Japanese exporters ' participation in the 
sunset review had not been in good faith .505 Korea request s the Panel to avoid an outcome that 
would reward the unfaithful participation of interested parties in investigations and reviews, 
particularly in view of the adverse systemic implications of such an outcome .506 
 
499 Korea's  response to Panel question No.  94, paras.  64 and 66; comments on Japan's  response to 
Panel question No. 94, p.  21: "there was simply no need for the Korean authorities to define a reporting 
methodology other than to request the respon dents ' peeling data ". 
500 Korea's  response to Panel question No.  94, para.  66; comments on Japan's  response to Panel 
question No. 94, p.  21. 
501 Specifically, we are unable to ascertain any reference to a concern over the apparent differences in 
calculation me thodologies in the KIA's  inquiries of 21  September  2016, 24 and 30  November  2016, and 
17 January 2017.  (See paras.  7.137 -7.155  above; see also Japan's  comments on Korea's  response to Panel 
question No.  94, para.  66). 
502 None of the KIA's  subsequent analyses address the matter of whether there might be 
company -specific reasons for variations in calculation methodologies. Rather, they simply state that " the 
stainless steel bar manufacturing process cannot be different from one another ", without examining whether 
variations amongst the standardized proc ess are possible and applicable in the present review.  (OTI's final 
report, ( Exhibit KOR -5.c (BCI) ), pp. 57-58 and 87; KTC's final resolution, (Exhibit KOR -4.b (BCI)), p. 19; and 
KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p. 8). 
503 For the description of their company -specific approaches, see Japanese exporters'  response to 
KTC's additional inquiries, (Exhibit JPN -17.b (BCI)), pp. 1-2. For their explanation that the differences are a 
function of company -specific factors, see Japanes e exporters'  opinion regarding OTI 's revised interim report, 
(Exhibit JPN -18.b), p. 1. 
504 Korea's  comments on Japan's  response to Panel question No.  106, p.  49. (emphasis original)  
505 Korea referred to the Japanese exporters ' "blatantly unfaithful participat ion in the underlying review " 
(Korea 's comments on Japan 's response to Panel question No.  106, p. 49). See also Korea 's comments on 
Japan 's response to Panel question "General Observations", p. 4; comments on Japan 's response to Panel 
question No.  92, p. 16; and comments on Japan 's response to Panel question No.  106, p. 49. 
506 Korea "warn [ed] the Panel against the destructive implication that would be triggered by rewarding 
the Japanese respondents for their blatantly unfaithful participation in the underlying review due to some room 
for improvement  that the Panel has apparently identified fro m the Korean authorities ' conduct of review"  
(Korea's  comments on Japan's  response to Panel question No.  106, p.  51 (emphasis original)).  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  7.166.   As a matter of principle, we consider  that, when confronted with evidence that an interested 
party is acting in ba d faith through e.g. manipulating or falsifying data, wilfully mischaracteri zing 
data, or abusively drawing out an investigation, an authority is not precluded from drawing adverse 
inferences from th ose procedural circumstances. Such inferences may be drawn in the context of an 
authority 's recourse  to the "facts available".507 Such i nferences may also be drawn in other contexts 
when an authority is considering the reliability of certain evidence.508 We therefore accept 
Korea 's premise that an authority 's engagement with, and consideration of, the submissions of an 
interested party can be attenuated by adverse inferences drawn from evidence of that 
party 's "blatantly unfaithful participation" and bad faith conduct in an investigation.509 
7.167.   However, it is not for panels  in WTO dispute settlement to draw adverse inferences from 
such procedura l circumstances as part of a proces s of weighing the reliability and probative value of 
the evidence presented in underlying investigations. As Korea explained to the Panel regarding 
certain evidence, "[t] he Panel is not the trier of fact in this dispute and is not to determine whether 
it would have given the same weight or have adopted the same reading as the authorities based on 
these facts ".510 Instead , pursuant to Article  17.6(i ) of the Anti -Dumping  Agreement , the 
authorities ' determination is t he lens through which panels  examine factual matters . Korea has not 
drawn our attention to anything in  the KIA 's determination , nor any contemporaneous record 
material , indicat ing that the KIA found there to be bad faith conduct on the part of the Japanese  
exporters which , in turn, informed its evaluation of the facts .511 We note that the KIA referred to a 
lack of cooperation by the Japanese exporters in the dumping phase, as well as the submission of 
"edited  data on production capacity" and a failure to pro vide "objective and reliable material" 
supporting their submissions on production capacity.512 However, these references do not indicate a 
finding of bad faith or anything analogous. Given the seriousness of such an allegation, we would 
expect to see clear and unambiguous evidence of a finding of bad faith in the determination or other 
contemporaneous documents.  
7.168.   Korea also argues that Japan was acting in bad faith in the present WTO proceedings.513 This 
is a serious allegation. According to Korea,  Japan made certain misleading arguments and 
misrepresentations of facts before the Panel.514 Korea suggested that Japan's misrepresentation s 
did not appear to be  inadvertent515, and characterized certain aspects of  Japan 's case as a "hoax" .516 
Korea request s the Panel to avoid an outcome that would result in Japan 's misrepresentations being 
rewarded in the dispute.517  
7.169.   We have carefully reviewed Korea 's allegations on this matter . The only evidence that Korea 
offers for Japan 's alleged bad faith participation in the present proceedings  concerns  Japan 's reliance 
 
507 See, e.g. Appellate  Body Report, US – Carbon  Steel (India) , paras.  4.468 -4.469 . 
508 There may be circumstances where t he conditions for having recourse to Article  6.8 are not satisfied, 
but where the procedural circumstances of an interested party's  conduct clearly calls into question that 
party's  reliability. As the Appellate  Body has recognized, the principle of good fa ith in international law informs 
the provisions of the Anti -Dumping  Agreement. (Appellate  Body Report, US – Hot Rolled Steel , para.  101).  
509 Korea's  comments on Japan 's response s to Panel question "General Observations", p.  4, 
question  No. 106, pp.  50-51. 
510 Korea's  response to Panel question No.  66(i).  
511 See, e.g. Korea's  response to Panel question No.  11(iii) -(v); comments on Japan 's response to P anel 
question No.  106, pp.  50-51. 
512 KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p. 8 (emphas is added); KTC 's final 
resolution, (Exhibit KOR -4.b (BCI)), p. 19. 
513 See, e.g. Korea's  comments on Japan 's response s to Panel question "General Observations", pp.  4-5; 
question No. 92, pp.  13-14, No.  106, p.  51; and c omments on Japan 's response to Korea's  question No.  29, 
p. 61. For Korea, "Japan 's desperate attempts at minimizing the significance of such flaws by admitting the 
serious inconsistencies totally fails and even calls into question the good faith participation of Japan in this 
dispute" . (Korea 's comments on Japan 's response to Panel question No.  92, p. 16). For a detailed discussion of 
Korea's arguments on this point, see Annex A -3 (Interim Review), paras. 2.141 -2.168.  
514 Korea stated that it was a "frequent approach by Japan in this dispute" to " intentionally mislead the 
Panel" . (Korea's  comments on Japan 's response to Korea's  question No.  29, p.  61). W ith respect to its 
production capacity claim in particular, Japan had "resort[ed] to a misrepresentation of facts"  
(Korea's  comments on Japan's  response to Panel question No. 106, p.  50), submitted "incredibly misleading"  
arguments ( Korea's  comments on Japan's  response to Panel question No.  92, p.  12), and adopted a "crafty 
repackaging"  of certain events  (Korea's  comme nts on Japan's  response to Panel question No. 106, p.  49). 
515 Korea's  comments on Japan 's response to Panel question No.  92, p.  13. 
516 Korea 's response to Panel question No.  11. Korea also referred to aspects of Japan's  case as a  
"disingenuous cover -up". (Korea's comments on Japan's  response to Korea's  question No. 29, p.  61). 
517 Korea's  comments on Japan's  response to Korea's  question No.  29, p.  64. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  on aspects of the submissions by the Japanese exporters in the underlying proceedings that 
contained inaccuracies, inconsistencies, and mistakes.518 Japan has provided explanations for the se 
apparent  discrepancies in ligh t of the attendant  procedural and evidentiary background of the 
review .519 We have examined those explanations .520 We see nothing in them to suggest that  Japan 
is engaging in these proceedin gs in bad faith.521 We note that, with respect to the allegation of a 
"hoax", Korea clarified that it has a "responsibility as a Member of the WTO to exert its best advocacy 
effort in this adversarial process to prevent the Panel from accepting a premise that is so 
unrealistic ".522 In our view, advancing allegations of bad faith as part of an adversarial " advocacy 
effort " or litigation technique in WTO dispute settlement would not accord  with Article  3.10 of 
the DSU523, nor would it assist in facilit ating the fair, prompt , and effective resolution of the actual 
matter in dispute .524 
7.170.   We make a further observation of relevance to whether Japan 's initiation of the present 
proceedings is in bad faith due to the "blatantly unfaithful participation" of the Japanese exporters 
in the underlying review, as evidenced by inconsistencies, mistakes, and inaccuracies in aspects of 
their submissions.  In partic ular, we recall that  Korea relied on the USITC 's sunset review of SSBs 
from Japan and other countries, which post-dates  the KIA 's sunset  review but had a 
partially -overlapping POR , in support of aspect s of its case .525 Korea also relied on the 
USITC 's sunset review in support of its  assertion that the Japanese exporters had engaged  in bad 
faith.526 As we explained earlier, this exhibit post -dates the KIA 's determination and did not form 
 
518 Korea's  comments on Japan's  responses to Panel question "General Observations", pp.  4-5; 
question  No. 92, p.  16, and No.  106, pp.  46-47 and 49 -51; comments on Japan's  response to 
Korea's  question  No. 29, p.  61. 
519 See, e.g. Japan's  first written submission, para.  129; second written submission, paras.  222, 
228-234, 425, 428 -429, and 478 -482; responses to Panel que stion No.  16, paras.  88-93, 
No. 21(a) paras.  122-125, No. 50, para. 292, No. 101, paras.  59-63, and No.  106, paras.  86-87 and 90; 
response to Korea 's question No.  29, paras.  88-95; and comments on Korea's  responses to Panel 
question  No. 92, paras.  25-26, No. 94, paras.  59-61 and 63 -65, and No. 103, paras.  149-151 and 158 -165. 
520 With respect to a number of the production capacity -related matters, see paras.  7.159 -7.164  above. 
For other matters, such as alleged discrepancies relating to export volumes of differing grades of steel, we 
reviewed those matters for present purposes solely through the prism of whether the nature and substance of 
Japan's  explanations support the Korea's  allegation of bad faith, and not through the prism of whether those 
explanations have probative value in term s of an inconsistency with Article  11.3 or whether they have been 
discharged through Korea's  rebuttals . For that reason, we do not consider it necessary to engage in an 
expansive discussion of those matters in this Report for present purposes.  
521 Our review took account of the premise that "Members act in good faith in the context of dispute 
settlement proceedings", and we were "unwilling to assume possible malfeasance in the absence of evidence to 
that effect". (Panel Report, EC – Bed Linen , para . 6.216). In view of their nature, the threshold for proving 
such allegations is high, and the mere existence of an inconsistency would be ordinarily insufficient to 
demonstrate this. (Ibid. paras.  6.215 -6.216).  
522 Korea's  response to Panel question No.  11(i). 
523 Article  3.10 of the DSU provides, in relevant part:  "[i]t is understood that requests for conciliation 
and the use of the dispute settlement procedures should not be intended or considered as contentious acts and 
that, if a dispute arises, all Member s will engage in these procedures in good faith in an effort to resolve the 
dispute. " 
524 Appellate  Body Report, US – FSC, para.  166. See also A. D. Mitchell, Legal Principles in 
WTO Disputes  (Cambridge University Press, 2008),  pp. 120-125. 
525 See para.  7.104  above.  
526 Korea alleged that " the Japanese respondents ' arguments and numerical allegations submitted to the 
Korean authorities are squarely contradicted by their ow n later submitted facts and assertions  before 
the USITC that Korea remains their top three (3 ) export market despite the longstanding anti -dumping 
measure, and that the Japanese respondents focus on Asian market including the Korean market (but not the 
U.S. market) ". (Korea's  comments on Japan's  responses to Panel question No.  92, pp.  15-16 (emphasis 
added), and No.  120, pp.  70-71; response to Panel question No.  103, paras.  215-216; and comments on 
Japan's  responses to Korea's  question No.  16, p.  35, No.  17, pp. 38-39, and No. 21, p.  44). However, the 
passage of the USITC's  determination cited by Korea does not indicate that the Japanese exporters 
"assert [ed]" that they would focus on the Korean SSB market despite Korea 's anti-dumping duties. It simply 
states, without attribution to the Japanese exporters ' actual submissions , that Japan 's exports of SSBs had a 
"regional focus" and "Korea was one of the Japanese industry 's top three export  markets during the POR 
despite the existence of long -standing anti dumping duties on exports of some Japanese stainless steel bar to 
Korea ". (USITC 's fourth review into  stainless steel bar, (Exhibit JPN -28.a), p.  42 and fn 256). To put that in 
perspective, in the present sunset review the Japanese exporters also submitted  data showing that Korea 
was a top three export destination in 2015 ( Japanese exporters'  opinion regarding injuries, 
(Exhibit  JPN-10.b (BCI)), p. 16), but submitted that Thailand was a much greater focus for Japanese exporters 
than the Korean market based on export volumes ( Japanese exporters'  opinion regarding injuries, 
 WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  part of the KIA 's establishment an d evaluation of the facts pursuant to Article  17.5(ii ) of the 
Anti-Dumping  Agreement . It would thus be improper for us to consider the USITC 's determination 
in relation to the consistency of the KIA 's determination with Article  11.3.  
7.171.   However, Article  17.5(ii) does not apply to Korea 's allegation that Japan is acting in bad faith 
in these  proceedings. Since  Korea has referred to the USITC determination in relation to the 
Japanese exporters ' alleged bad faith527, and given the Japanese exporters ' alleged bad faith forms 
the basis of Korea 's allegation of bad faith  against Japan in the present proceedings, we examine 
the USITC determination for the sole purpose of assessing  Korea 's allegation against Japan.  
7.172.   The Japanese exporters presented similar cases to the USITC 's sunset review and to the 
KIA's third sunset review on a number of points of relevance to  these Panel proceedings. Far from 
corroborating Korea 's assertion that the Japanese exporters were engagi ng in bad faith, the USITC 
accepted significant aspects of the position advanced by the Japanese exporters  that had been  
rejected or ignored by the KI A. These include, for instance,  that: (a) the "Japanese  industry has 
limited ability to increase its produ ction of stainless steel bar as its capacity utilization rate 
exceeded  92 percent"528; (b) "[average unit values] for Japan 's shipments to all markets were 
notably higher than the [average unit values] for shipments by other subject countries, which 
support s the Japanese producers ' contentions that their industry generally focuses on higher -value 
stainless steel bar products"529; and (c ) "the Japanese industry has no incentive to ship large 
volumes of aggressively priced subject product into the U.S. market".530 Similarly, the Japanese 
exporters submitted to the KIA that their overarching focus was on "satisfying domestic demand 
within Japan"531, and the USITC likewise accepted  that "[t]he Japanese stainless steel bar industry 
has a clear and increasing focus on  serving its domestic market".532 Of course, such differences 
between the respective authorities ' findings on these points do not themselves call into question the 
KIA's determination in the present proceedings. However, if Japan was truly acting in bad fai th by 
initiating the present proceedings in the manner alleged by Korea, one might expect to see another 
investigating authority – and one whose determinations are cited and tracked by the KIA533 – 
harbouring similar concerns about the credibility of the sa me Japanese exporters ' case. We would 
certainly not expect to see another authority affirming key aspects of those exporters ' case in its 
own partially -overlapping sunset review of a similar product.  
7.173.   Korea has not demonstrated that the KIA found that the Japanese exporters acted in bad 
faith in the underlying review, nor that Japan is acting in bad faith in pursuing its case in the present 
proceedings.  
7.174.   We conclude that the KIA 's evaluation of the fact s leading to its intermediate finding that 
"the utilization rate in 2015 was [[***]]% for Japan  … which shows that they have sufficient 
additional production capacity and room for exports "534 was not "unbiased and objective". This is 
 
(Exhibit  JPN-10.b (BCI)), p. 16; Japanese exporters'  post-hearing opinion, (Exhibit JPN -16.b (BCI)), p p. 3-4; 
Minutes of public hearing (24  November  2016), (Exhibit KOR -19.b (BCI)), p. 29). Korea acknowledged, without 
disputing, that Thailand was indeed the Japanese exporters'  main export focus during the POR. 
(Korea 's second  written submission, para. 80). 
527 Korea's  comments on Japan's  responses to Panel question No.  92, pp.  15-16, and No.  120, 
pp. 70-71; response to Panel question No.  103, paras.  215-216; comments on Japan's  responses to 
Korea's  question No.  16, p.  35, No.  17, pp.  38-39, and No. 21, p.  44. 
528 USITC 's fourth review into  stainless steel bar, (Exhibit JPN -28.a), p.  43. By contrast, the KIA rejected 
the Japanese exporters'  submitted capacity utilization rate of over [[***]] in 2015 in favour of a [[***]] rate 
calculated on the basis of ISSF and Japan's Stainless Steel Association  (JSSA) data. ( OTI's final report , (Exhibit 
KOR-5.c (BCI)),  pp. 57-58). 
529 USITC 's fourth review into  stainless steel bar, (Exhibit JPN -28.a), pp.  43-44. By contrast, Korea 
explains that the KIA did not find the proposition that the Japanese exporters were focused on high 
value -added SSB products to be relevant or substantiated. (Korea's  responses to Panel question No.  16, and 
No. 22(c)).  
530 USITC 's fourth review into  stainless steel bar, (Exhibit JPN -28.a), p.  45. By contrast, Korea explained 
that the KIA found the Japanese exporters'  contention about the alleged lack of incentives to compete with 
low-priced competitors to be unsubstantiated. (See, e.g. Korea's  response to Panel question No.  16; 
second  written submissi on, para.  231).  
531 Japanese exporters'  post-hearing opinion, (Exhibit JPN -16.b (BCI)),  p. 6. 
532 USITC 's fourth review into  stainless steel bar, (Exhibit JPN -28.a), p.  42. 
533 Korea's  first written submission, paras.  67 and 369; response to Japan's  question aft er the 
second  meeting with the Panel No.  1, para.  13. 
534 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  because the KIA rejecte d the figures submitted by the Japanese exporters for failing to comply with 
certain parameters of which they were not properly informed. In this regard, we recall that 
authorities are required under Article  11.3 to act with the "appropriate degree of dili gence" in 
conducting their "review", and must discharge their "duty to seek out relevant information and to 
evaluate it in an objective manner" through "an active  rather than a passive decision -making role".535 
For the avoidance of doubt, we do not take the  view that " just because the Japanese respondents 
provided some numerical allegation , these numbers must be accepted as genuine, and the burden 
automatically shifts to the investigating authority to disprove the veracity of these numbers in order 
to reject  these numbers ".536 Rather, our conclusion turns on three factors  that are particular to the 
circumstances of this case : (a) the Japanese exporters were initially told by the KIA that the "product 
under investigation" was the preferred product scope for the  requested data concerning capacity 
utilization , and they submitted figures in response ; (b) the KIA 's determination opted for a broader 
product scope to determine Japan 's capacity utilization rate; and (c ) the evidence before us does 
not demonstrate  that the KIA conveyed to the Japanese exporters that the preferred parameters 
had changed , that their submitted capacity utilization figures were based on incorrect parameters , 
or that requisite "raw data" was la cking , which in turn deprived  the Japanese exporters of the 
opportunity to resubmit their figures  (and "raw data" ) or comment on the preferred parameters.  
7.175.   It remains for us to determine  whether the KIA 's error in this regard rises to the level of a 
violati on of Article  11.3 of the Anti -Dumping  Agreement . Korea contends that the KIA 's production 
capacity finding of [[***]] tonnes  for the Japanese SSB industry was " only one of many intermediate 
findings supporting the ultimate likelihood -of-injury determinati on", and indeed, was not the only 
finding supporting the conclusion that the Japanese exporters had "sufficient room  for exports ".537 
For instance, the KIA referred to the Japanese exporters ' continued investments in their facilities 
and that they had the possibility of increasing production via outsourcing.538 Korea also contends 
that " even assuming for the sake of argument " that the Japanese exporters ' [[***]]% capacity 
utilization rate were "legitimate", the KIA found that such a figure would represen t "spare capacity 
to produce up to [[***]] tons of the covered product in 2015, which amounted to [[***]]% of the 
total domestic sales of the like domestic product ".539 Against that background, Korea contends that 
any flaw in the KIA 's use of a production c apacity figure of [[***]] tonnes  does not invalidate the 
finding that the Japanese exporters had sufficient room to expand exports, nor does it invalidate the 
overall likelihood -of-injury determination , which was also based on a series of other factors .540 
7.176.   According to Japan, the KIA 's decision to use the ISSF 's production capacity data  and its 
resulting finding on the capacity utilization  rate of the Japanese exporters was a "cornerstone" of 
the overall determination .541 It led to the finding that the Japanese exporters have sufficient " unused 
production capacity and unused export capacity ", which in turn led to the finding that "the import  
volume  … [of] the product under investigation [is] highly likely to expand" , which in turn led to the 
KIA's conclusion that " it is highly likely that once the anti -dumping measures are terminated, a drop 
in the price of the product under investigation and  an increase in imports will again cause material 
injury to the domestic industry ".542 Regarding Korea 's argument that, even based on the Japanese 
exporters ' own figures,  there would be "more than enough spare capacity" because  they would still 
have [[***]] tonnes  of additional production capacity in 2015 amount ing to around [[***]] of the 
total domestic Korean sales, Japan contends that these alleged facts were not raised or assessed in 
the review  and hence the Panel would engage in a de novo review  by reaching a finding on that 
basis.543 Japan also contends that the KIA failed to examine and ascertain whether there was an 
incentive for the Japanese exporters to use this [[***]] tonnes  of capacity to produce the "product 
 
535 Appellate  Body Report, US – Corrosion -Resistant Steel  Sunset  Review , paras.  111 and 199. 
(emphasis added)  
536 Korea's  comments on Japan 's response to P anel question "General Observations", p.  5. 
(emphasis  omitted)  
537 Korea's  comments on Japan's  response to Korea's  question No.  4, pp.  13-14. See also  first written 
submission, p aras. 194-195 and 211; and second written submission, paras.  197 and 209.  
538 Korea's  comments on Japan's  response to Korea's  question No.  4, pp.  13-14. 
539 Korea's  response to Panel question No.  98, para.  141. 
540 Korea's  response to Panel question No.  98, para s. 141-143 and 149; comments on Japan's  responses 
to Korea's  question No.  4, pp.  13-14, and No. 22, p. 46; and comments on Japan's  responses to Panel question 
No. 98, p.  31, and No.  99, p.  34. 
541 Japan's  first written submission, para.  120. 
542 Japan's  first written submission, para.  119 (quoting KTC's final resolution , (Exhibit JPN -2.b), p. 19; 
see also ibid, p.  17).  
543 Japan's  comments on Korea's  response to Panel question No.  98, para.  94. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  under investigation" (as opposed to other products ) and ship it to Ko rea (as opposed to other sources 
of domestic or international demand).544  
7.177.   In light of the parties ' arguments, we are called upon to ascertain the significance of the 
intermediate finding at issue to the KIA 's overall likelihood -of-injury determination, and in particular, 
whether it is so central that it invalidates the overall determination.545 We note Korea 's point that 
precision is not required in quantifying matters like capacity utilization rates in sunset reviews, but 
as Korea itself r ecognizes, the key point of contention concerns a capacity utilization rate of [[***]] 
versus a rate of [[***]] – this kind of difference  falls outside the bounds of objections about degrees 
of precision. In the section  of the OTI 's final report entitled " Comprehensive Review regarding 
Likelihood of Continuance or Recurrence of Injuries to the Domestic Industry ", the KIA finds in 
relevant part :  
• Considering that stainless steel bars from Japan, India and Spain have sufficient 
room and inducements to expand their exports to Korea on the following 
grounds, it is highly likely that injuries to the domestic industry will recur once 
the anti -dumping measures are terminated :  
- According  to ISSF, the production capacity of the countries subject to 
investigation wa s [[***]] tons … for Japan … and the capacity utilization in  2015 
was [[***]]% … for Japan … which proves that they have sufficient room for 
exports.546  
7.178.   Based on the plain text of this intermediate finding, it is clear that the ISSF 's production 
capacity figure of [[***]] tonnes  and the capacity utilization rate of [[***]] were the central facts 
that "prove[d] that they have sufficient room for exports". There is no reference in this section  to 
other elements of "proof" for this finding . The KIA 's analysis in an earlier passage does reveal that, 
based on the Japanese exporters ' figures, there would be [[***]] tonnes  of additional production 
capacity547, which accounts for [[***]] of the domestic Korean sales.548 However, the KIA proceeded 
to reject the Japanese exporters ' figures from which the [[***]] tonnes figure was derived, and did 
not reach a finding of " sufficient additional production capacity and room for exports " on the basis 
of those figures.549 Thus, we agree with Japan that to r ely on those figures in order to justify the 
KIA's determination would be tantamount to conducting a de novo review.  
7.179.   We accept that, in the intermediate section  entitled " Production and Export Capacity of the 
Countries Supplying Dumped Imports ", the KIA augmented its reliance on the ISSF production 
capacity data and the capacity utilization of [[***]] with a reference to the Japanese SSB industry 
having " continued to make investments in facilities " upon concluding that there were " sufficient 
room for exports ".550 However, nothing in the KIA 's determination suggests that it considered the 
continued investments alone to be sufficient to support the intermediate finding of "sufficient room 
for exports".551 Rather, as extracted above, the subsequent " Comprehensive Review" omits any 
mention of that factor.  Likewise, the ability to "outsource" is mentioned in reference 6 in the 
confidential annex to the OTI 's final report, but there is no indication that the KIA considered that 
this alone, or together wi th the continued investments, would substantiate the intermediate finding 
at issue.552 
7.180.   Thus, the KIA 's error in its evaluation of the facts leading to its intermediate finding that 
"the utilization rate in 2015 was [[***]]% for Japan  … which shows that they  have sufficient 
 
544 Japan's  response to Korea's  question No.  21, paras.  61 and 63.  
545 See para.  7.114  above.  
546 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67. See also KTC's final resolution , 
(Exhibit  KOR-4.b (BCI)), p.  22. 
547 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  19; OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  pp. 58, tables 34  and 35 .  
548 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  19. 
549 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), pp.  19-20; OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  pp. 58 and 87 . 
550 OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 59. 
551 Panel Report, China – GOES, para.  7.542 and fn 522; Appellate  Body Report, Japan – DRAMs 
(Korea) , para.  135. 
552 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 87. See also Korea's  second written submission, 
paras.  149 and 197.  WT/DS553/R  
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  additional production capacity and room for exports "553 is not rendered immaterial by reason of the 
other considerations identified by Korea.  
7.181.   We turn now to whether this error is so central that it invalidates the KIA 's final conclusion 
encapsulating its overall likelihood -of-injury determination. This final conclusion provides :  
Taking the circumstances into consideration as a whole, the Commission finds that it is 
highly likely that once the anti -dumping measures are terminat ed, a drop in the price 
of the dumped imports and an increase in volume of the dumped imports will again 
cause recurrence of material injury to the domestic industry, such as a downturn in 
sales and deterioration in operating profitability.554 
7.182.   As we underst and it, the ability  for Japanese exports to " increase in volume ", as reflected in 
this conclusion, is premised on the intermediate finding that there was "sufficient room for exports" 
due to Japan 's additional production capacity and capacity utilization r ate.555 The intermediate 
finding i s thus central to the KIA 's final conclusion;  together with a "drop in the price", an "increase 
in the volume" is one of the two interrelated pillars of the final conclusion.  Given that we concluded 
that the intermediate fi nding of "sufficient room for exports" was deficient,  and given its centrality 
to the final conclusion, we consider that this deficiency  necessarily invalidates the KIA 's overall 
likelihood -of-injury determination.   
7.183.   Accordingly, we consider that the KIA 's failure to undertake an "unbiased and objective" 
evaluation of the facts leading to its intermediate finding that "the utilization rate in 2015 was 
[[***]]% for Japan  … which shows that they have sufficient additional production capacity and room 
for exports" invalidates the KIA's overall likelihood -of-injury determination and gives rise to a 
violation of Article  11.3 of the Anti -Dumping  Agreement . In light of this find ing, it is unnecessary for 
the prompt and effective resolution of the dispute to address Japan 's various other arguments in 
support of its claim under Article  11.3 of the Anti -Dumping  Agreement  pertaining to production 
capacity and capacity utilization, no r Korea 's rebuttals on those points. We recall  that a panel has 
"the discretion to address only those arguments it deems necessary to resolve a particular claim".556 
7.5.5.2   Japan 's claim under Article  6.8 of the Anti -Dumping  Agreement  concerning 
capacity utilizati on 
7.184.   Japan claims that the KIA acted inconsistently with Articles  6.8 and 11.4 and paragraphs 3 
and 7 of Annex II to the Anti -Dumping  Agreement  by erroneously having recourse to the "facts 
available" to determine  the production and export capacity of the Jap anese exporters.557 Article 11.4 
of the Anti -Dumping Agreement provides that the provisions of Article 6 regarding evidence and 
procedure shall apply to sunset reviews. In this connection, both parties accept that Article 6.8 and 
Annex II apply to sunset reviews under Article 11.3 by virtue of Article 11.4, and we therefore 
understand Japan's claim under Article 11.4 to operate in tandem with Article 6.8 and Annex II as 
the legal basis for Japan's "facts available" -related claims.558 We primarily examine Japan's claim 
through the prism of Article 6.8 and Annex II since these aspects contain the substantive disciplines 
at issue, but in view of the structure and relationship between Articles 11.3, 11.4, and 6.8 and 
Annex  II, we consider  that any violation of Article 6.8 and Annex II in respect of a sunset review 
 
553 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  22. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. 
554 KTC's final resolution , (Exhibit  KOR-4.b (BCI)), p.  23. See also OTI's final report , 
(Exhibit  KOR-5.c (BCI)),  p. 67. 
555 OTI's final report , (Exhibit KOR -5.c (BCI)),  p. 67. We also note Korea 's explanations on this 
point: "[t]he KTC 's 'Overall Evaluation ' finds that the low capacity utilization of the subject countries will highly 
likely to lead to increase in volume of the dumped imports to displace  the market share of the dome stic 
products upon removal of the anti -dumping measure, and the resulting decrease in price of the dumped 
imports will weaken  the price competitiveness of the like domestic products" . (Korea 's response to Panel 
question No. 6(c)(i v) (emphasis original) ). See also Korea's first wri tten submission, paras.  188 and 198; 
second  written  submission, para.  149; comments on Japan's  response to Panel question No.  100, p.  36; and 
responses to Panel question No.  6(a), and No.  100, paras.  174-177.  
556 Appellate  Body Reports, EC – Fasteners (China) , para.  511; EC – Poultry , para.  135; and India – 
Solar Cells , para.  5.15. 
557 Japan's  first written submission, paras.  195 and 271 -272.  
558 Japan's first written submission, paras. 213 and 274; Korea's first written submission, paras.  5, 53, 
and 312.  WT/DS553/R  
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  would likewise give rise to a violation of Article 11.4 because it provides the legal basis for which 
Article  6.8 and Annex II apply to sunset reviews. As an initial matter, Kore a contends  that the KIA 
did not have recourse to the "facts available" with respect to production and export capacity of the 
Japanese exporters , which would  remove the premise of Japan 's claim.559 In particular, Korea 
contends that the Japanese exporters ' production capacity data did not qualify as 
"'necessary ' information" under Article  6.8.560 Rather, according to Korea, the KIA sought 
country -wide (not exporter -specific ) data, and moreover, nothing in Article  11.3 suggests that 
production capacity data is "necessary" in a sunset review.561 Thus, the KIA did not exercise 
discretion to invoke the "facts available" on this matter, in contrast to other aspects of the sunset 
review in which it did have explicit recourse to the "facts available".562 
7.185.   We begin by con sidering the initial matter of whether the KIA had recourse to the "facts 
available" on this point, before turning to the substance of the parties ' arguments and rebuttals 
under Articles  6.8 and 11.4 and paragraphs 3 and 7 of Annex II if necessary.  From ou r 
understanding, it is uncontested between the parties that Article  6.8 pertains only to information 
that satisfies certain criteria.563 In particular, it pertains only to "necessary information". We 
understand "necessary information" to mean information that is missing from the record and is 
possessed by an interested party, and that has been therefore requested by the authorities.564 This 
is because Article  6.8 applies ( inter alia) "[i]n cases in which any interested party refuses access to, 
or otherwise does not provide, necessary information ". Moreover, we understand that "necessary 
information" relates to information that the authorities  require in order to make such 
determinations.565 This is because, when the applicable conditions are satisfied, the authorities are 
permitted under Article  6.8 to make " determinations, affirmative or negative  … on the basis of the 
facts available ". 
7.186.   Beyond those contextual elements of Article  6.8, there is no explicit guidance in the 
Anti-Dumping  Agreement  as to what comprises "necessary information". Rather, what is "necessary" 
will depend upon the nature of the assessment being undertaken by the authoritie s and the 
circumstances of a given investigation. In that regard, w e accept Korea 's point that Article  11.3 of 
the Anti -Dumping  Agreement  does not specify that information on capacity utilization is "necessary" 
for sunset reviews566, and we accept that authorities have latitude under Article  11.3 to develop 
approaches and methodologies for determining whether the expiry of anti -dumping duties would be 
likely to lead to a recurrence of material injury.567 However, i n the sunset review at issue in these 
proceed ings, we consider that information on capacity utilization was clearly "necessary" in light of 
the approach adopted by the KIA  for undertaking its likelihood -of-injury assessment .568  
7.187.   The parties argue over the nature and source of what can comprise "necessary information" 
for determining capacity utilization rates in sunset reviews. For instance, they dispute  whether the 
"necessary information"  should be country -wide or exporter -specif ic, and whether it need be 
"primary" information or can encompass "secondary" materials.569 As we understand it, the 
KIA's preferred methodology for determining a capacity utilization rate was initially premised , with 
respect  to the denominator, on the prod uction capacity data concerning  the "product under 
investigation". The questionnaires issued by the KIA to the Japanese exporters early in the review 
requested production capacity data for the purposes of deriving  a capacity utilization rate, and 
 
559 Korea's  responses to Panel question Nos.  78(b)  and 78( c). See also Korea's  first written submission, 
paras.  341-344. 
560 Korea's  first written submission, para.  340. 
561 Korea's  first written submission, paras.  338 and 340.  
562 Korea's  responses to Panel question Nos.  78(b)  and 78(c). See also Korea's  first written submission, 
paras.  341-344. 
563 Japan's  response to Korea's  question No.  7, para.  19; Korea's  comments on Japan's  response to 
Korea's  question No.  7, p. 18. 
564 Panel Rep orts, EC – Salmon (Norway) , para. 7.343; Korea – Certain Paper , paras.  7.43-7.44. 
565 Panel Reports, EC – Salmon (Norway) , para. 7.343; Korea – Certain Paper , paras.  7.43-7.44; 
Appellate  Body Report, US – Carbon Steel (India) , para. 4.416.  
566 Korea's  comments on Japan's  response to Korea's  question No.  6, p. 17. 
567 Korea's  second written submission, para.  214. 
568 See paras.  7.177 -7.182 above.  
569 Japan's  second written submission, paras.  453-457 and 460 -461; responses to Korea's  question 
No. 5, paras.  15-16, No.  6, paras.  17-18, and No.  7, paras.  19-20; Korea's  first wri tten submission, para.  340; 
second written submission, paras.  214 and 256; and comments on Japan's  responses to Panel question No.  5, 
p. 15, No.  6, pp.  16-17, and No.  7, p. 18. WT/DS553/R  
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  specified  that this data pertain to the "product under investigation".570 The covering  letter indicated 
that "questionnaire responses constitute a critical part of antidumping reviews, particularly with 
regard to dumping margin computation", and therefore the "non -filing or late filing of questionnaire 
responses, inadequate or incomplete responses, and a lack of verification will inevitably lead to the 
use of facts available and may result in a less favourable dumping margin tha n if the respondents 
fully cooperate".571 Thus, the KIA conveyed to the Japanese exporters that a failure to provide the 
information requested in the questionnaire, which included production capacity data for the "product 
under investigation", would inevitably lead to the use of the facts availa ble. Although the KIA 
emphasized the importance of information on dumping  margins , the plain text of  this covering letter 
indicates that its comment in this regard related to the information requested in the questionnaire 
generally , and not only to dumping margin determinations . Moreover, we recall our finding earlier 
that this questionnaire was not limited to dumping, but also comprised the KIA 's initial information 
request for production capacity data for the purposes of its injury investigation.572 
7.188.   Initially, therefore, what was missing from the record – and what was requested from the 
Japanese exporters – pertained to production capacity data for the "product under investigation".  
As set out in section 7.5.5.1 , we understand the KIA to have subsequently changed its preferred 
parameters for the production capacity data as the denominator for determining Japan 's capacity 
utilization rate. Thus, what was missing f rom the record and what the KIA required in order to 
ascertain a capacity utilization rate evolved during the review. We see nothing in the 
Anti-Dumping  Agreement  to prevent an authority from adjusting its parameters or methodology for 
"necessary informati on" during a review . However, an interested party could only be treated as 
failing to provide information under Article  6.8 if it is afforded the opportunity to respond to the new 
parameters or methodology, and to provide updated data where  appropriate. If  an interested party 
is not told of the new parameters or methodology, then it cannot plausibly be said to have "refuse[d] 
access to, or otherwise  … not provide[d], the necessary information" under Article  6.8. This is 
particularly so with respect to somet hing as basic and fundamental as the product scope of the data 
being sought, which forms the foundation of subsequent analyses undertaken, or inferences drawn, 
on the basis of that data.  
7.189.   Korea contends that information on Japan 's production capacity was no t missing from the 
record and therefore did not comprise "necessary information" under Article  6.8 because the KIA 
already possessed the ISSF 's Japan -wide production capacity data.573 We disagree. At the point in 
time at which the KIA sent the initial quest ionnaires to the Japanese exporters, it is clear from those 
questionnaires that the KIA 's preferred methodology – and what  the KIA warned  would result in 
recourse to the facts available if not provided – concerned production capacity data on the "product 
under investigation".574 The ISSF 's production capacity data does not pertain to the "product under 
investigation", but rather to a broader  product scope encompassing excluded products and other 
stainless steel products. Thus, the presence of the ISSF data on the record at the time the initial 
questionnaires were sent to the Japanese exporters would  not demonstrate  that the relevant 
informati on was already  on the record , and hence not "missing" or "necessary information" in the 
sense of Article  6.8. It would only be later in the review, once the KIA had opted for a broader 
product scope, that the ISSF data would accord with the KIA 's preferred  parameters for the 
"necessary information".  
7.190.   As already noted, a  contested  parameter for what was "necessary" relates to whether the 
information at issue needed to be country -wide before qualifying as "necessary", or whether 
exporter -specific data could be  considered to be "necessary" despite being alone insufficient to 
generate a Japan -wide capacity utilization rate . Korea, in particular, contends that producer -specific 
data could not be "necessary" information in the context of a likelihood -of-injury dete rmination in 
which the authorities seek to examine, as one of many factors, the availability of excess production 
and export capacity in a country of export as a whole.575 In our view, i n the circumstances of the 
present case,  such a  distinction between cou ntry-wide and exporter -specific data is essentially 
irrelevant for the following reasons. The ISSF data relied upon by the KIA is an aggregation of 
company -specific figures, and the Japanese exporters comprised [[***]] of Japan 's production 
 
570 See paras.  7.134 -7.137  above.  
571 Guideline on the scope of the product under investigation, (Exhibit JPN -41.b) , internal p.  3. 
572 See para.  7.136  above.  
573 Korea's  first written submission, paras.  338-345; comments on Japan's  response to 
Korea's  question  No. 7, p. 18. 
574 Guidelin e on the scope of the product under investigation, (Exhibit JPN -41.b) . 
575 Korea's  first written submission, para. 339. WT/DS553/R  
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  capacity in the  ISSF data.576 The figures submitted by both the Japanese exporters and the 
applicants during the review were premised on the assumption that the three Japanese exporters 
participating in the review comprised the overwhelming majority577 – if not the total578 – of the 
production capacity in question. Further , one of the KTC 's Commissioners described "data on 
production capacity and capacity utilization" from the three participating Japanese exporters as 
"necessary" during the public hearing for the sunset review, and there fore asked them to provide 
that data.579 Against this background, it is clear to us that the KIA could not generate a Japan -wide 
capacity utilization rate without  the production capacity of the three participating Japanese 
exporters. We consequently disagre e with Korea.  We consider that, i n the circumstances  of the 
present sunset review , production capacity data from those exporters (regardless of the  
KIA's chosen  methodology or preferred parameters for deriving that data ) comprised "necessary 
information" u nder Article  6.8 of the Anti -Dumping  Agreement  for the purposes of determining 
Japan 's capacity utilization rate.  
7.191.   Japan further argues that there was no indication that countrywide evidence was the 
"necessary" information sought by the KIA from the Japanese exporters.580 We agree with Japan 
that it is relevant that the KIA sent each of the Japanese exporters a questionnaire early in the 
review requesting their respective company -specific production capacity data . The KIA further  
warned the Japanese exporters that a failure to respond to the questionnaire would result in recourse 
to the facts available581, and then continually engaged with the Japanese exporters during the review 
on the matter of their production capacity  after their initial response. This procedural context 
suggests that the Japanese exporters ' production capacity data was viewed by the KIA as essential 
to arriving at a Japan -wide capacity utilization rate. It also suggests that the Japanese exporters 
were under the impres sion that their production capacity data comprised "necessary information" in 
the sense of Article  6.8. As Japan argues, in these circumstances it would have been reasonable for 
the Japanese exporters to assume that the KIA intended to aggregate the data f rom the individual 
responses received.582 Moreover, the KIA 's description of its own analytical process indicates that  it 
examined the Japanese exporters ' data, found it to be lacking, and then " [u]nder  such 
circumstances , the investigating authorities revi ewed the data from the ISSF and used it".583 None 
of this context supports Korea 's assertion that the ISSF data was always the starting point for the 
KIA, and that the Japanese exporters ' data did not comprise "necessary information" in the eyes of 
the KIA.  Again, if the ISSF data  with its broader product scope were the "starting point", then it 
would be nonsensical to send a questionnaire to the Japanese exporters at the outset of the review 
requesting data with a narrower product scope.  
7.192.   We therefore find that the production capacity of the three participating Japanese exporters 
comprised "necessary information" under Article  6.8 of the Anti -Dumping  Agreement  for the 
purposes of determining Japan 's capacity utilization rate. We recognize t hat the KIA 's preferred 
parameters or methodology for obtaining that information evolved during the review, such that it 
ultimately preferred data on "their total production capacity that can reasonably be converted for 
producing the covered products upon removal of the duties" and "not the capacity currently and 
specifically allocated to the covered SSB products in the POR".584 As we have stated, we see nothing 
in the Anti -Dumping  Agreement  to prevent an authority from adjusting its approach with respect to  
 
576 ISSF statistics, (Exhibit KOR -20.b (BCI) ). See also Japan's  second written submission, para.  420. 
577 Rebuttal opinion of the applicants , (Exhibit JPN -11.b), p. 3: the Korean  domestic industry only 
provided capacity utilization data for the three participating Japanese producers, because they were the "main 
Japanese steel companies" in question.  
578 Japanese exporters'  post-hearin g opinion , (Exhibit JPN -16.b (BCI)), pp.  2-3. 
579 Minutes of public hearing (24 November  2016), (Exhibit KOR -19.b (BCI)), p.  36. Similarly, in its 
first written submission, Korea described an information request by the KIA from the three participating 
Japane se exporters for ( inter alia ) the "status of the (new ) installation of the facilities for peeling 
processes,  and the production capacity of each facility " as comprising " necessary information ". 
(Korea's  first written submission, para.  328 (referring to Minutes of meeting dated 21  September  2016, 
(Exhibit KOR -26.b (BCI) ), p. 1)). 
580 Japan's  second written submission, para.  455. 
581 As we have found above, the questionnaire was not limited to matters of dumping (see para. 7.135  
above ), nor is the plain text of the covering  letter  and its warning about the consequences of non -cooperation 
limited to matters of dumping (see para. 7.187  above ). 
582 Japan's  second written submission,  para. 455. 
583 KTC's submission of review to MOSF, (Exhibit KOR -48.b (BCI)), p. 9. (emphasis added)  
584 Korea 's response to Panel question No. 105, para. 225.  WT/DS553/R  
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  "necessary information" during a review, but an interested party cannot be said to have refused 
access to such "necessary information" if the new parameters are not properly communicated.  
7.193.   We turn now to whether the KIA had recourse to the "facts available " under Article  6.8 in 
respect of this "necessary information". Korea argues that the KIA never in fact exercised discretion 
to have recourse to the "facts available".585 For other matters (e.g. dumping margins ) Korea notes 
that the KIA explicitly invoked t he "facts available" under Article  6.8 of the Anti -Dumping  Agreement  
and under its domestic legislation.586 In Japan 's view, the KIA was obligated to comply with the 
requirements of Article  6.8 upon deciding  not to rely on information from a primary source,  i.e. the 
Japanese exporters ' figures on their own production capacity.587 According to Japan, the KIA  "cannot 
circumvent the rules governing use of facts available by simply not explicitly declaring that they 
actually rel ied on fact s available ".588 
7.194.   We consider that the KIA did, in fact, have recourse to the "facts available" under Article  6.8. 
The evidence before us shows that the KIA rejected the Japanese exporters ' figures because those 
exporters had "failed to cooperate with the investigation, by repeatedly ignoring the repeated 
requests of the KTC to submit materials and providing only edited data" , including with respect to 
production capacity .589 This rationale reflects one of the conditions under which an investigating 
authority may have recours e to the "facts available" under Article  6.8. Given that we consider that 
the information in question comprises "necessary information" under Article  6.8, w e find that the 
KIA did, in fact, have recourse to the "facts available"  when rejecting the Japanese  
exporters ' production capacity  figures due to a failure to cooperate.  
7.195.   We turn now to whether Japan has demonstrated that the KIA acted inconsistently with 
Article  6.8 by having recourse to the "facts available" in respect of the Japanese 
exporters ' produc tion capacity. Japan contends that "[u] nder the first sentence of Article  6.8 of the 
Anti-Dumping  Agreement , an investigating authority is allowed to use facts available only when 'any 
interested party refuses access to, or otherwise does not provide, nece ssary information within a 
reasonable period or significantly impedes the investigation '".590 According to Japan, the KIA acted 
inconsistently with the first sentence of Article  6.8 because it had recourse to the "facts available" 
despite the Japanese expor ters' having cooperated and complied with the KIA 's information requests  
regarding their production capacity .591 According to Korea, " every single condition for resorting to 
facts available under Article  6.8 of the Anti -Dumping  Agreement  has been met ", as d emonstrated 
by the Japanese exporters refusing " access to the necessary information by, for example, failing to 
respond to the dumping aspect of the review " and "wit[holding]  various requested data by ignoring 
the clear instructions and requests ".592 
7.196.   We have already found that the 3  June 2016 questionnaire represents the KIA 's initial 
request for information from the Japanese exporters for production capacity and capacity utilization 
data, including for the purposes of its likelihood -of-injury assessment.  We have also found that , after 
responding to the 3 June 2016 questionnaire (which specified that the production capacity data 
should pertain to the "product under investigation"), the Japanese exporters were not made aware 
that, in Korea 's words, " what ma ttered for the [KIA]  … was such reasonably convertible capacity 
upon removal of the duties and not the capacity  currently  and specifically  allocated  to the covered  
SSB products  in the POR".593 We consider that, if an authority has legitimate concerns regard ing the 
information provided, it must take reasonable steps to investigate and clarify before it may 
permissibly have recourse to the "facts available".594 We therefore agree with Japan that, although 
 
585 Korea's  responses to Panel question Nos.  78(b)  and 78(c). See also Korea's first written submission, 
paras.  341-344; and comments on Japan's  response to Korea's  question No.  8, pp.  19-20. 
586 Korea's  responses to Panel question Nos.  78(b)  and 78(c).  
587 Japan's  response to Panel question No.  78(a), para.  368. 
588 Japan's  response to Panel question No.  78(b), para.  370. 
589 KTC's submission of review to MOSF , (Exhibit KOR -48.b (BCI)), p.  8. See also KTC's final resolution , 
(Exhibit  KOR-4.b (BCI)), p.  19: "there was no submission of other objective and reliable material to support 
the Respondents ' argument " on production capacity.  
590 Japan's  first written submission, para.  272. 
591 Japan's  first written submission, paras.  273-274. 
592 Korea's  first written submission, para.  346. 
593 Korea 's response to Panel question No. 105, para. 225. (emphasis added)  
594 Panel Report, Morocco – Hot-Rolled Steel (Turkey) , para. 7.92 and fn 135 (referring to  
Appellate  Body Report, EU – PET (Pakistan) , para. 5.130 , in turn  referring to Appellate  Body Report, US – 
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  "[a]n investigating authority has discretion to decide what information is needed to complete its 
investigation ", "[i] t is not fair, or acting in good faith, to reject the Japanese Respondents ' data 
based on an alleged failure to submit certain information when the [KIA]  did not clarify what data 
should  have been submitted ".595 In other words, since the KIA failed to adequately inform the 
Japanese exporters of its updated parameters for the "necessary information", the Japanese 
exporters cannot be said to have "not provide[d], or otherwise refuse[d] acce ss to, necessary 
information" under Article  6.8. We therefore conclude  that the KIA acted inconsistently with 
Article  6.8 by having recourse to the "facts available" in respect of Japan 's production capacity.  We 
recall that Japan made its claim under Articl e 6.8 in tandem with a claim under Article 11.4 of the 
Anti-Dumping Agreement, since Article 11.4 provides the legal basis for which Article 6.8 applied to 
sunset review at issue. In view of our findings in relation to Article 6.8, we likewise find that th e KIA 
acted inconsistently with Article 11.4 . In view of these finding s, we consider it unnecessary for the 
prompt and effective resolution of the dispute to make  findings on Japan 's additional claims under 
paragraphs 3 and 7 of Annex II to the Anti -Dumpin g Agreement . 
7.6  Confidentiality : Japan 's claims under Article  6.5 of the Anti -Dumping  Agreement  
7.6.1   Introduction  and legal standard  
7.197.   Japan claims that the KIA  acted inconsistently with Articles  6.5 and 11.4 in respect of 102 
specific instances in the documents  where the KIA  treated information as confidential without a 
showing of "good cause" having been made.596 Japan identifies each of these instances in the annex 
attached to its first written s ubmission.597 
7.198.   We begin our evaluation of Japan 's claim with an overview of the legal standard for that 
provision.  Article 11.4 of the Anti -Dumping Agreement provides that the provisions of Article 6 
regarding evidence and procedure shall apply to sunset reviews. In this connection, both parties 
accept that Article 6.5 applies to sunset reviews under Article 11.3 by virtue of Article 11.4, and we 
therefore understand Articles 6.5 and 11.4 to operate in tandem as the legal basis for 
Japan's  confident iality-related claims.598 We primarily examine Japan's claim through the prism of 
Article 6.5 since it contains the applicable substantive discipline, but in view of the structure and 
relationship between Articles 11.3, 11.4, and 6.5, we consider that any v iolation of Article 6.5 in 
respect of a sunset review would likewise give rise to a violation of Article 11.4 as the legal basis for 
which Article 6.5 applies to sunset review. Article  6.5 of the Anti -Dumping  Agreement  provides :  
Any information which is b y nature confidential (for example, because its disclosure would 
be of significant competitive advantage to a competitor or because its disclosure would 
have a significantly adverse effect upon a person supplying the information or upon a 
person from whom that person acquired the information), or which is provided on a 
confidential basis by parties to an investigation shall, upon good cause shown, be treated 
 
Washing Machine s, para. 5.268, in turn quoting Appellate  Body Report, US – Wheat Gluten , paras.  53 and 55, 
which refers to Appellate  Body Reports, US ‒ Corrosion -Resistant Steel Sunset Review , para. 199; US – 
Anti-Dumping and Countervailing Duties (China) , para. 344; and Panel Report, China – Broiler Products , 
para. 7.261);  Appellate  Body Report, US – Hot-Rolled Steel , paras.  101-104. 
595 Japan's  second written submission, para.  473. 
596 Japan's  first written submission , paras.  328 and 337-339, and annex; second written submission, 
para. 546.  
597 Japan originally submitted the annex attached to its first written submission. (Japan's  first written 
submission, pp.  145-165). Korea then prepared an exhibit containing an addit ional column containing its 
rebuttals to Japan's  arguments in the annex. (Korea's  response to Japan's  Article  6.5.1 allegations, 
(Exhibit  KOR-35)). Japan then prepared an exhibit containing a further column responding to Korea's  rebuttals. 
(Japan 's rebutta ls to Exhibit KOR -35, (Exhibit JPN -39)). Korea then again prepared an exhibit responding to 
Japan's  responses to its rebuttals. ( Korea 's response to Exhibit JPN-39, (Exhibit KOR -82 (BCI))). Japan then 
finally prepared an exhibit correcting certain errors m ade in the reproduction of Japan's  arguments by Korea in 
Exhibit KOR -82 (BCI). ( Japan 's correction to Exhibit KOR -82, (Exhibit JPN -44)). Where arguments contained in 
the various iterations of the annex are made, we will refer to the exhibit where that argument was first made. 
Where an argument made initially in exhibit JPN -39 that was later incorrectly reproduced in 
exhibit  KOR-82 (BCI), we will not refer to the clarifications of exhibit JPN -44 but take note of the errors 
made  in exhibit KOR -82 (BCI)  with respect to Nos.  38, 40, 45, 47, 48, 49, 68, 79, and 98 -99. 
598 Korea's first written submission, paras. 5, 53, and 414; Japan's second written submission, 
para. 583(4).  WT/DS553/R  
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  as such by the authorities. Such information shall not be disclosed without specific 
permission of t he party submitting it.   
7.199.   According to this provision,  confidential information shall, upon good cause shown, be 
treated as such by the authorities. Such information shall not be disclosed without specific 
permission of the party submitting it. Th is provisi on distinguishes between two types of confidential 
information  (a) information that is "by nature" confidential, and (b ) information "provided on a 
confidential basis".  In practice, these two categories may overlap.599 
7.200.   Article  6.5 further provides that both  information that is "by nature" confidential and 
information that is "provided on a confidential basis" shall be treated as confidential "upon good 
cause shown".600 Article  6.5 does not define "good cause" or prescribe the manner in which it is 
"shown". Prior panels have found that the nature and the degree of the requirement to show good 
cause depends on the information concerned.601 For information that is claimed to be "by nature" 
confidential, good cause may be shown by establishing that the information fits into the Article  6.5 
(chapeau ) descripti on of such information .602 
7.201.   As noted above, Japan claims that Korea acted inconsistently with Article  6.5 in respect 
of 102 instan ces where the KIA  treated information in the documents as confidential without a 
showing of "good cause" having been made.603 In particular, Japan argues in relation to all 
102 instances of confidential treatment identified in the annex that the KIA acted i nconsistently with 
Article  6.5 of the Anti -Dumping  Agreement  because :  
a. the KIA  granted confidential treatment to the information without a showing of good cause 
having been made by the applicants604; and 
b. the KIA  failed to specify "on what basis" the confidential treatment was afforded .605 
7.202.   Japan further argues that :  
a. in relation to Nos. 14, 46, and 65 of the annex, the KIA  could not have assessed good 
cause for confidential treatment as the source information was not disclosed606;  
b. in relation to Nos. 10, 15, 16, 19, 40, 44, and 45 of the annex, the KIA  had no basis to 
treat this information confidentially as it was sourced from public databases607;  
c. in relation to Nos. 78-79, 81, 83, and 95-97, Korea has conceded that the information was 
already public, a nd therefore was inappropriate to be treated confidentially608; and 
d. in relation to No. 61, Korea incorrectly relied upon an argument that there is no obligation 
for an authority to disclose information that has not been requested in justifying the 
KIA's confidential treatment of that information.609 
7.203.   Korea rejects Japan 's argument that the KIA acted inconsistently with Article  6.5 of the 
Anti-Dumping  Agreement .610 We address each of Japan 's argument s, and Korea 's corresponding 
rebuttals,  in turn below.  
 
599 Appellate  Body Report, EC – Fasteners (China) , para. 536. 
600 Appellate  Body Reports, EC – Fasteners (China ) (Article  21.5 – China ), para. 5.37; EC – Fasteners 
(China) , para. 537; and Panel Reports, Korea – Certain Paper , para. 7.335; Mexico – Steel Pipes and Tubes, 
para. 7.378.  
601 Panel Reports, Mexico – Steel Pipes and Tubes , para.  7.378; Korea – Certain  Paper , para.  7.335.  
602 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.378.  
603 Japan 's first written submission, paras.  328 and 337-339.  
604 Japan 's first written submission, paras.  337 and 339. 
605 Japan 's first written s ubmission, para. 339. 
606 Japan 's first written submission, para. 339 and fn 414.  
607 Japan 's first written submission, para. 339 and fn 415.  
608 Japan 's second written submission, para. 562 and fn 767 .  
609 Japan 's second written submission, para. 563 and fn 773 . 
610 Korea 's first written submission, paras.  420-427.  WT/DS553/R  
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  7.6.2   Whether the KIA  erred under Article  6.5 by granting confidential treatment without 
a showing of good cause having been made by the applicant s 
7.204.   As noted above, Japan argues that, in all 102 specific instances identified in the annex, the 
KIA acted inconsistently with Article  6.5 by granting confidential treatment to the information 
without a showing of good cause having been made by the applicants .611 Japan contends that this 
failure by the applicants to show good cause is established by the fact that "there is no explicit 
mention in any of [the documents] of a 'good cause ' that would justify confidential treatment of the 
redacted information" .612 Korea does not dispute Japan 's assertion that the documents d o not 
contain any explicit reference to good cause. Korea responds, however, that the applicants were not 
required to provide explicit reasons to establish good cause.613 Rather, Korea contends that  good 
cause was shown through an established practice in Korean anti -dumping proceedings in which the 
submission of a document containing redacted information "implicitly asserts" that the redacted 
information falls into certain categories of confidential information set out in Korean law.614 In view 
of Japan 's argument and Korea 's rebuttal, we understand the resolution to Japan 's claim on this 
point to  turn on whether the submitting party must show good cause under Article  6.5 through the 
provision of explicit reasons justifying confidential treatment . 
7.205.   As described by Korea, it is the established practice in Korean anti -dumping proceedings 
that good cause is shown through the submission of a redacted document that "implicitly asserts" 
that the redacted material falls under certain categories of confidential information established by 
Korea 's Enforcement Rule of the Customs Act ("Enforcement Rule") .615 Article  15 of the Enforcement 
Rule sets out four relevant  categories of information "subject to confident ial treatment ".616 These 
confidential categories are (i) cost of production; (ii ) accounting materials that have not been made 
public; (iii ) name, address , and trade volume of the trade partners; and (iv) matters concerning the 
provider of confidential info rmation.617 The redacted documents submitted to the KIA are understood 
by the KIA  to "implicitly assert[] that deleted information falls within" categories (i) -(iv) of the 
Enforcement Rule .618 The documents  are then checked by the KIA 's investigators to conf irm that the 
redacted information falls within  categories (i) -(iv) of the Enforcement Rule .619 Korea further asserts 
that the KIA  specifically instruct s interested parties to follow this practice.620 Japan has not disputed 
Korea 's characterization of these laws and practice or Korea 's description of the KIA's system for 
protecting confidential information in anti -dumping proceedings . Nor has Japan  challenged 
Korea 's claim that this system and practice was understood by both the applicants and exporters  in 
the proceedings at issue.621 For the purpose of this analysis , then, we consider Korea 's description 
to accurately represent the ordinary operation of the Enforcement Rule in Korean anti -dumping 
proceedings.  
7.206.   In this context, J apan a rgues that the KIA erred in granting confidential treatment to the 
information because "there is no explicit mention in any of [the] submissions of a 'good cause ' that 
would justify confidential treatment of the redacted information" .622 Japan 's argument is  based on 
the premise that under Article  6.5 the party seeking confidential treatment is " required to furnish 
reasons justifying such treatment" .623 Japan 's argument, however, is not supported by the text of 
 
611 Japan 's first written submission, paras.  337 and 339. 
612 Japan 's first written submission, para. 339. 
613 Korea 's first written submission, paras.  421-422. 
614 Korea 's first written submission, para. 422; second written submission, paras.  288-289. 
615 Korea 's first written submission, para. 421. 
616 Article  15 of the Enforcement Rule of the Customs Act, ( Exhibit KOR -34.b). 
617 Article  15 of the Enforcement Rule of the Customs Act, ( Exhibit KOR -34.b). The Enforcement Rule 
also provides for a fifth category, being " other materials adequately deemed as confidential ". (Article  15 of the 
Enforcement Rule of the Customs Act, ( Exhibit KOR -34.b)). Korea acknowledges that a separate showing of 
good cause by the party submitting information would be required for confidential treatment on the basis of 
this category. (Korea's  first written submission, para.  423).  
618 Korea 's first wri tten submission, para. 422; second written submission  para. 290.  
619 Korea's  first written submission,  para. 423. 
620 Korea's  response to Panel  question No. 114, para.  236. 
621 Korea's  first written submission , paras.  421-422; second written submission , para. 288.  
622 Japan's  first written submission, para.  339. 
623 Japan 's first written submission, para. 332 (referring to Appellate  Body Report, EC – Fasteners 
(China) , para. 539, in turn quoted in Appellate  Body Reports, China – HP-SSST (Japan ) / China – HP-SSST 
(EU), para. 5.95 and Appellate  Body Report, EC – Fasteners (China ) (Article  21.5 – China) , para. 5.39, in turn 
referring to Appellate  Body Report, EC – Fasteners (China) , para. 539). WT/DS553/R  
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  Article  6.5.624 Article  6.5 of the Anti -Dumping  Agreement  simply provides that "confidential 
information shall, upon good cause shown, be treated as such by the authorities".  Article  6.5 does 
not specify the  manner in which "good cause" is to be established.  This lack of specificity necessarily 
means that the exact manner in which "good cause" should be established is not prescribed.625 
Accordingly, we do not consider that an "implicit assertion" of good cause through the submission 
of a redacted document in t he context of the Enforcement Rule necessarily gives rise to an 
inconsistency with Article  6.5.626 Rather, we agree with prior panels that the nature and the degree 
of the requirement to show good cause depends on the information concerned.627 For some types  of 
information, it may be self -evident that the information falls within one of the categories in the 
Enforcement Rule and that its disclosure would cause commercial harm.628 For such information, an 
"implicit assertion" could well suffice.  
7.207.   In that regard,  we recall that Japan has not challenge d the Enforcement Rule on an "as such"  
basis. Instead, Japan accepts that " Article  15 of the Enforcement Rules of the Customs Act of Korea 
could potentially be applied in a manner that is consistent with Article  6.5".629 Japan 's concern is 
that the categories in the Enforcement Rule are "so general" that "merely indicating one of those 
categories may not be enough to show good cause under Article  6.5"630, and therefore the lack of 
an explicit showing by the submitting pa rty as to which category was being invoked and  the lack of  
"a supplemental basis for good cause as to why such information should be regarded as confidential" 
amounts to an inconsistency with Article  6.5.631 
 
624 Japan's  first written submission , para. 332 ( referring to Appellat e Body Report, EC – Fasteners 
(China) , para. 539, in turn quoted in Appellate  Body Reports, China – HP-SSST (Japan ) / China – HP-SSST 
(EU), para. 5.95).  
625 As the panel in EU – Footwear (China)  stated, "there  is nothing in Article  6.5 which would require any 
particular form or means for showing good cause, or any particular type or degree of supporting evidence 
which must be provided" and "the nature of the showing that will be sufficient to satisfy the 'good 
cause'  requirement will vary, depending on the nature of the information for which confidential treatment is 
sought". (Panel Report, EU – Footwear (China) , para.  7.728 ). 
626 The Appellate  Body in Korea – Pneumatic Valves (Japan) , in response to a similar arg ument by 
Korea, stated that "[w]e doubt that an 'implicit ' indication by way of redacting certain information from a 
submission would suffice for establishing such a showing of good cause". (Appellate  Body Report, Korea – 
Pneumatic Valves (Japan) , para. 5.411). The Appellate  Body added that, in its view, "the mere redaction of 
information does not establish, in and of itself, that such information falls within certain legal categories for 
confidential information, let alone that there is good cause for trea ting certain information as confidential" . 
(Appellate  Body Report, Korea – Pneumatic Valves (Japan) , para. 5.411 ). We do not disagree with the 
Appellate  Body. Rather, we likewise "doubt " that, in certain circumstances, the mere act of redacting certain 
information will be sufficient to convey the category for which confidential treatment is being sought and 
whether protection is warranted. As we understand it, the Appellate  Body's  "doubt" signalled that panels 
should be particularly circumspect when confron ted with allegations of "good cause" being  "shown" through 
"implicit assertions". However, the Appellate  Body was not confronted with an "as such" challenge to the 
KIA's system, and it is not apparent from our reading of the Appellate  Body's  findings that "implicit assertions" 
in the context of this system will always give rise to an inconsistency with Article  6.5. For some types of 
information, it will be self -evident that the information falls within one of the enumerated categories and would 
cause commer cial harm if disclosed. Thus, whether such "implicit assertions" suffice depends on the 
information at issue in a given case.  
627 Panel Reports, Mexico – Steel Pipes and Tubes , para. 7.378; Korea – Certain Paper , para. 7.335; and 
EU – Footwear ( China) , para. 7.728.  
628 See, by analogy,  Appellate  Body Report,  EC – Fasteners (China) , para. 536. 
629 Japan 's response to Panel question No. 110, para.  103. Japan also observes  that the panel in Korea – 
Pneumatic Valves (Japan ) found the Enforcement Rule to have "sh ortcomings" . (Japan 's second written 
submission, para. 554 (referring to Panel Report, Korea – Pneumatic Valves (Japan) , para. 7.438 )). However, 
Japan has not demonstrated how any such shortcomings manifested on a case -by-case basis with respect to 
the cha llenged pieces of information, and in the absence of an "as such" challenge , these alleged shortcomings 
do not alone provide a basis for a finding of inconsistency with Article  6.5.  
630 Japan's  response to Panel question No.  110, para.  101; second written submission, paras.  548 
and 554.  
631 Japan 's response to Panel question No. 110, para. 102. To the extent Japan makes arguments 
regarding the role of the KIA in this regard, we address the se in section  7.6.3 . We note that Japan also 
considered that, even if the submitting party had explicitly invoked one of the categories, this would have been 
insuffic ient to show good cause because these categories "do not explain at all why certain information falls 
within 'confidential ' information" . (Japan 's response to Panel question No. 109, paras.  98-99). However, 
Japan 's argument fails to account for the chapeau  of Article  15, which indicates that the categories cover 
materials that "infringe the interests of the provider" ( Article  15 of the Enforcement Rules of the Customs Act, 
(Exhibit KOR -34.b)), and Japan has not explained why, for example, an interested part y's "costs of 
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  7.208.   It may well be the case that, for a given piece o f information, a submitting party need s to 
do more than "implicitly assert" through a redaction that it falls within a given category under the 
Enforcement Rule and warrants protection as confidential. However, in the absence of an "as such" 
challenge to t he categories under the Enforcement Rule and the KIA 's system for protecting 
confidential information, whether an "implicit assertion" falls short of the requirements of Article  6.5 
can only be determined on the basis of a case -by-case evaluation of the pi ece of information 
concerned. But Japan 's claim is not premised on a case -by-case demonstration that each piece of 
challenged information falls short of the requirements of Article  6.5 in the context of the Enforcement 
Rule and the KIA 's system.632 It is in stead based on the cross -cutting premise that the submitting 
party must furnish explicit reasons at the time of submission for the confidential treatment of a given 
piece of information, and that the failure to do so gives rise to a violation of Article  6.5.633 This 
premise is incorrect . As we have explained, the text of Article  6.5 is not so prescriptive that it 
excludes the possibility of a showing of "good cause" through an "implicit assertion" by the 
submission of a redacted document in the context of the Enforcement Rule  and the KIA 's system , 
depending of course on the particular information at issue.  
7.209.   Japan contends that it did not present a case -by-case demonstration of inconsistency with 
Article  6.5 for each piece of challenged information  because it was unaware that Korea would rely 
upon a defence that the redactions reflected "implicit assertions" for good cause shown under the 
Enforcement Rule.634 However, Japan 's case has consistently rested on the incorrect legal premise 
that Article  6.5 requires the submitting party to furnish explicit reasons at the time of submission 
justifying the confidential treatment of a given piece of information.635 As we understand it, a 
corollary of this legal premise is that "implicit assertions" of good caus e shown by the submitting 
party can never suffice under Article  6.5.636 Accordingly, we do not consider that Japan 's failure to 
present a case -by-case demonstration of inconsistency in its first written submission can be cured 
by an inability to anticipate Korea 's rebuttal that good cause was shown through "implicit 
assertions", or by the lack of publicly -available documentation as to  the basis for which the 
submitting parties sought to show good cause.637 
7.210.   In summary, Japan has not sought to demonstrate, for each piece of challenged information , 
that the "implicit assertion" made by the applicants in the underlying review was insufficient to show 
"good cause"  in the context of the Enforcement Rule and the KIA 's system for protecting confidential 
information . Japan's case was instead premised on the incorrect understanding that Article  6.5 
requires the submitting party to furnish explicit reasons at the time of submission justifying the 
confidential treatment of a given piece of information . Consequently, we con sider that Japan has 
failed to establish  a prima  facie case that the absence of explicit reasons justifying confidential 
treatment accompanying the applicants ' redacted documents gives rise to an inconsistency with 
Article  6.5.  
 
production", could "never" be "by nature" confidential. In any case, we recall that Japan has not challenged the 
Enforcement Rule and the KIA 's system "as such", and accepts that " Article  15 of the Enforcement Rules of the 
Customs Act of Korea could potentially be applied in a manner that is consistent with Article  6.5". 
(Japan 's response to Panel question No. 110, para. 103). Japan has not demonstrated how the potential for the 
Enforcement  Rule and the KIA 's system to be applied in a WTO -inconsistent manner alone establishes that the 
KIA's treatment of each piece of challenged information is inconsistent with Article  6.5. 
632 Japan's  response to Panel question No.  109, paras.  94-95 and 99.  
633 Japan's  first written submission, paras.  337-339; second written submission, para.  551; response s to 
Panel question No.  82, paras.  386-387 and 389 , No. 83, paras.  390-391, No. 108, para. 93, No. 109, para. 97, 
No. 110, para. 102, No.  112, paras.  105-108, and No. 114, paras.  113-114; and comments on 
Korea 's response to Panel question No.  107, para. 190. 
634 Japan 's response to Panel question No.  109, paras.  95 and 99.  
635 See fn 633 above.  
636 Japan's  second written submission, para.  550; responses to Panel question  No. 109, para. 97, 
No. 112, paras.  107-108, and No. 114, paras.  113-114. With respect to the Appellate  Body' s observations in 
Korea  – Pneumatic Val ves, see fn 626 above . 
637 To the extent that Japan subsequently sought to submit item -specific reasons for which "good cause" 
was not shown (e.g. Japan 's rebuttals to Exhibit KOR -35, (Exhibit JPN -39); and Japa n's correction to 
Exhibit  KOR-82, (Exhibit JPN -44), which appear primarily directed at Article  6.5.1 but potentially contain 
arguments relevant to Article  6.5), we observe that these were made in response to Korea 's rebuttal, as 
opposed to forming the basi s of Japan 's original claim as set out in its first written submission. (Working 
Procedures, clause 3(1) ; see also Appellate  Body Report, Argentina – Textiles and Apparel , para. 79; and Panel 
Reports, US – Washing Machines , paras.  7.82-7.85; US – Carbon Steel (India ) (Article  21.5 – India) , 
para. 7.101).  WT/DS553/R  
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  7.6.3   Whether the KIA  failed to specify "on what basis" the confidential treatment was 
afforded  
7.211.   As noted above, Japan also argues that the KIA  acted inconsistently with Article  6.5 because 
the KIA  failed to specify "on what basis" the confidential treatment was afforded .638 Japan contends 
that this is evidenced by the absence of any "specific indication, in the relevant documents on record " 
indicating "on what basis the [KIA]  granted confidential treatment to such information" .639 Korea 
responds that Article  6.5 only requires tha t an authority "satisfy itself" as to  whether good cause 
was shown.640 In our understanding, the consequence of Korea's argument is that Korean officials 
should be assumed to have checked whether the redacted information in the documents fell into the 
categories of the Enforcement Rule , and to have thus discharged the requirement for good cause in 
Article  6.5.641 In view of Japan 's argument and Korea 's rebuttal, we understand the resolution to 
Japan 's claim on this point  to turn on whether , in light of the KIA's system and the circumstances of 
the present case, the KIA was required under  Article  6.5 to provide a report or other written evidence 
indicating on what basis good cause was granted.  
7.212.   We begin by addressing a number of interpretive questions arising fr om Japan 's argument 
and Korea 's rebuttal. Japan  argues that KIA 's failure to provide a report or some other written 
document  evidencing "on what basis " confidential treatment was granted was inconsistent with 
Article  6.5.642 In Japan 's view, Article  6.5 provides that an authority  must "objectively assess [] [the] 
facts introduced by the party seeking confidential treatment, must decide whether the confidential 
treatment should be granted, and must indicate such assessment in its published repor t or related 
supporting documents".643 In our view, a s noted at paragraph  7.206  above, Article  6.5 does not 
require the submitter of information to necessarily submit  explicit reasons  justifying the confidential 
treatment sought. Similarly, we see nothing in the text of Article  6.5 to support the proposition that 
it require s an authority , in all cases,  to provide a report or other written evidence indicating the 
author ity's assessment of good cause. Rather, Article  6.5 relevantly requires that informatio n that 
is "by nature" confidential or "provided on a confidential basis"  not be disclosed "upon good cause 
shown". We agree with the panel's observations in Mexico  – Steel Pipes and Tubes  that:  
[W]e do not consider that the obligations contained in Article  6.5 set forth exactly how 
an investigating authority should or must eva luate a request for confidential 
treatment[]. Nor do we consider that this provision sets forth how an investigating 
authority should or must indicate (explicitly or otherwise in the record of the 
investigation ) how, and the extent to which, it assessed an applicant 's assertion  to 
conclude that "good cause" existed for the information to be treated as confidential 
within the meaning of Article  6.5[.]644 
7.213.   As with the panel in Mexico  – Steel Pipes and Tubes , we do not consider that Article  6.5 
contains any stri ct requirement that an authority provide a written report evidencing its assessment. 
Rather, we consider that whether good cause has been shown in a given case must be determined 
by the facts of that particular case. The absence of any indication by the KI A evidencing its 
assessment of good cause is thus simply a fact that must be taken into account in determining 
whether Japan has established that the KIA failed to ensure "good cause shown", and whether Korea 
has effectively rebutted that case.  
 
638 Japan's  first written submission , para. 339. We note that Japan also argued that the KIA  failed to 
objectively assess whether good cause had been shown by the applicants . As discussed at 
paragrap h 7.206  above, that argument is based on the incorrect view that Article  6.5 assigns distinct roles to 
the submitter and the authority. We thus consider that this lim b of Japan's  argument fails.  
639 Japan 's first written submission, para. 339.  
640 Korea 's first written submission, paras.  426-427; second written submission, paras.  290 and 295.  
641 Korea 's first written submission, para. 426. 
642 Japan 's first written submission, para. 339; opening statement at the first meeting  of the Panel , 
para. 81.  
643 Japan 's response to Panel question No. 82 , para. 389. 
644 Panel Report, Mexico – Steel Pipes and Tubes , para. 7.393. The Panel in Mexico – Steel Pipes and 
Tubes  upheld the confidential treatment of information under Article  6.5 despite the absence of any "explicit 
indication, on the part of [the authority], as to why it considered that the assertions of 'good cause'  for 
confidential treatment of the informat ion concerned were merited". (Ibid.  para. 7.394). WT/DS553/R  
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  7.214.   However, we  disagree with Korea 's argum ent that an investigating authority need only 
"satisfy itself" that good cause is shown before treating information as confidential.645 If an authority 
were only required to "satisfy itself" that good cause had been shown, there would be no basis for a 
panel t o objectively assess compliance with Article  6.5.646 In the absence of any textual or contextual 
support, we cannot endorse Korea 's interpretation of Article  6.5 on this point.  
7.215.   We turn now to whether Japan has established that the KIA failed to specify "on what basis" 
good cause was shown for the pieces of information at issue. Korea argues that the Panel should 
presume the KIA  investigators acted in compliance with domestic laws , and thus that good cause 
was properly shown in accordance with Article  6.5.647 Japan responds that such compliance  cannot 
be presumed as there was no specific indication in the documents on the record evidencing that the 
KIA complied with domestic laws or which of the Enforcement Rule 's categories each item of 
information was found t o fall under.648 
7.216.   It is undisputed that the KIA did not provide any indication as to "on what basis" good cause 
was shown for the items of information at issue. As we will explain, Japan has identified a range of 
instances that indicate that the KIA failed t o adequately check the redacted information and ensure 
"good cause shown", in contrast to Korea 's description of the way in which the KIA 's system and 
practice would ordinarily operate.  
7.217.   First, Japan has identified a number of instances of information that  is already publicly 
available and thus could not be "by nature" confidential.649 Korea responded that these instances 
pertained to  information that was not publicly available but is rather "commercially supplied by the 
KITA"  and is thus consequently "by nature" confidential as its "disclosure of which would inevitably 
have a significantly adverse effect upon KITA".650 While we accept  that information that was 
commercially available only to a restricted group could be "by nature" confidential, Korea has not 
pointed to any evidence showing that the exporters  or other members of the public  were unable to 
reasonably access the same information through,  e.g. purchas ing it from the Korea International 
Trade Association (KITA) . Additionally , we note that Korea appears to concede that the KITA data 
used for another exhibit was based entirely on data made public by the Korea Customs Service.651  
7.218.   Second, Japan has identified information ( Nos. 14, 46, and 65 ) where the source material is 
not disclosed, and contends that, without the source material, the KIA would have been unable to 
verify that this information was not publicly available and hence confirm that "good cause" was 
"shown".652 Korea responds that  the KIA's confidential treatment of this information was consistent 
with its obligation not to disclose information upon good cause shown , and that there is no 
requirement under Article  6.5 to disclose the "source"  of the information, nor was the information 
at issue " particularly relevant to the final determination ".653 In light of our review of the nature of 
the specific information at issue in Nos. 14, 46, and 65 – which was supplied by the applicants, but 
 
645 Korea's  first written submission , para. 426; second written submission , paras.  290 and 295. 
646 Article  6.5 requires that an authority shall, "upon good cause shown", not disclose confidential 
information. The absence of any indication that Article  6.5 only requires an authority to "satisfy itself" indicates 
that this was not intended. The interpretation of Article  6.5 is further informed by t he basic right of Members to 
request that a panel be composed to review other Members ' compliance with the Anti -Dumping  Agreement; 
this is part of th e context  in which we interpret Article  6.5. Such scrutiny requires tha t there be some basis to 
enable a panel to assess an authority 's conformity or non -conformity with Article  6.5. 
647 Korea 's first written submission, para. 426.  
648 Japan 's first written submission, para. 339. 
649 Japan's  first written submission , para. 339 and fn 415 (referring to Nos. 10, 15, 16, 19, 40, 44, 
and 45 of the annex ). In relation to Nos. 10, 15, 16, 19, 40, 44, and 45 of the annex, Japan argues the 
information appears to be sourced from public databases and thus the KIA had no basis to presume it should 
be treated confidentially. (Japan's  first written submission , para. 339 and fn 415).  
650 Korea's  response to Japan's  Article  6.5.1 allegations, ( Exhibit KOR -35), Nos. 10, 15, 16, 19, 40, 44, 
and 45.  
651 Korea 's response to Panel question No. 71 (discussing Import Clearance Matrix , 
(Exhibit  KOR-43.b (BCI)) ). While there is no evidence before this Panel that would allow the Panel  to infer 
that the source information for Nos. 10, 15, 16, 19, 40, 44, and 45 is non -proprietary public information from 
the Korea Customs Service, Korea has failed to clarify what information from KITA does originate from the 
Korea Customs Service.  
652 Japan's  first written submission , para. 339 and fn 414 (referring to Nos.  14, 46, and 65). See also 
Japan's  response to Panel question No.  113, paras.  109-111. We note that Japan added further items to its 
contention in this regard (see ibid. para.  112), but did so  at a very late stage in these proceedings.  
653 Korea 's comments on Japan 's response to Panel  question  No. 113, p. 60. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  does no t pertain to the applicants ' own operations  – we cannot see  how the KIA could  have 
performed the alleged checks and confirm ed, in the manner claimed by Korea, that  there was indeed 
"good cause" for protecting those  items as confidential  without any underst anding of their source or 
origins.  
7.219.   Third, Japan observes that Korea itself conceded that further materials had already been 
made public.654 Having tacitly conceded that these items had "already been made public"655 and 
that, for some of these items, that Ja pan "already has full access to the information"656, Korea later 
asserted  that it had described the information as "public" only in "the sense that [it] could be 
obtained by the relevant public such as members of the [Japan's Stainless Steel Association ] or 
following payment".657 We consider that Korea clearly acknowledged  that Nos. 78-79, 81, 83, 
and 95-97 are public information. Korea 's later attempts to clarify the meaning of "publicly available" 
were incomplete and unsupported by evidence.658 
7.220.   We also no te that, in respect of one of the pieces of protected information, Korea 
suggested  arguendo  that the KIA would not have needed to disclose it because no request for 
disclosure was made by the exporters.659 It is not clear to us whether the KIA itself relied  on the 
premise that information for which confidential treatment was requested need only be disclosed if a 
request or challenge were made by another interested party. However, to the extent that this does 
indeed reflect an approach pursued the KIA  in the review at issue , it would suggest that  some 
information may have been presumptively protected as confidential unless an interested party 
explicitly challenged that designation or requested its disclosure. As Japan observed, such an 
approach would have no basis in Article  6.5660, and would run c ounter to Korea 's own arguments 
about the process of checks that the KIA would ordinarily undertake.   
7.221.   Our starting point in evaluating Japan 's claim is to presume that the KIA abided  by and 
implemented, in good faith, Korean laws, regulations, and policies  regarding the treatment of 
confidential information. The existence of a series of items for which there are manifest inadequacies, 
however, means that in the review at issue we are unable to rely on a presumption that the KIA 
properly followed its  system of checking implicit assertions against predetermined categories to 
ensure that there was "good cause shown".  These inadequacies were present not just for a handful 
of items, but for a significant number of the redactions at issue. Therefore, the fact of t he existence 
of the aforementioned system of checking does not , in and of itself , provide a sufficient rebuttal to 
Japan 's claims regarding this particular sunset review.  The absence of any reference to the 
KIA's basis for protecting information as confide ntial in the record  means that we have no 
other  grounds to ascertain  whether the KIA ensured that "good cause" was properly shown for each 
of the challenged pieces of information. We therefore find that the KIA acted inconsistently with 
 
654 Japan's  second written submission, para.  562 and fn 767 (referring to Nos.  78-79, 81, 83, 
and 95-97). In relation to Nos. 78-79, 81, 83, and 95-97, Japan argues that that Korea has conceded that the 
information is already public, and therefore inappropria te to be treated confidentially. (Japan's  second written 
submission , para. 562). Korea first stated in Exhibit KOR -35 accompanying the first written submissions that 
these items had "already been made public". (Korea's  response to Japan's  Article  6.5.1 all egations,  
(Exhibit  KOR-35), Nos. 78-79, 81, 83, and 95-97). In respect of Nos. 79, 83, and 95-97, Korea additionally 
observed that Japan "already has full access to the information". (Korea's  response to Japan's  Article  6.5.1 
allegations,  (Exhibit KOR -35), Nos. 79, 83, and 95-97). Korea later asserted  that it had described the 
information as "public" only in "the sense that [it] could be obtained by the relevant public such as members of 
the JSSA or following payment". (Korea 's response to Panel question No. 108, para. 231; see also 
Korea 's response to Exhibit JPN-39, (Exhibit KOR -82), Nos. 78-79, 81, 83, and 95-97). We consider that Korea 
clearly conceded that Nos. 78-79, 81, 83, and 95-97 are public information. Korea 's later attempts to clarify 
the meaning of "publicly available" were incomplete and unsupported by evidence.  
655 Korea's  response to Japan's  Article  6.5.1 allegations,  (Exhibit KOR -35), Nos.  78-79, 81, 83, 
and 95-97. 
656 Korea's  response to Japan's  Article  6.5.1 allegations,  (Exhibit KOR -35), Nos.  79, 83, and 95-97. 
657 Korea 's response to the Panel question No. 108, para. 231. See also Korea 's response to 
Exhibit  JPN-39, (Exhibit KOR -82), Nos. 78-79, 81, 83, and 95-97. 
658 While Korea contends that this information is "sold to subscribers subject to the condition that the 
information is not disclosed to the general public", we have no evidence before us to suggest that the "general 
public" could not reasonably become "subsc ribers" based on e.g. cost or other restrictions . (Korea 's comments 
on Japan 's response to Panel question No. 108, p. 52). 
659 Korea also indicated this information  was "by nature" confidential . (Korea's  response to 
Japan's  Article  6.5.1 allegations,  (Exhibi t KOR -35), No. 61; Korea's  response to Panel question No.  107, 
para. 228).  
660 See, e.g. Japan's  second written submission , para. 563 (referring to Korea's  response to 
Japan's  Article  6.5.1 allegations, (Exhibit KOR -35), No.  61).  WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  Article  6.5 by granting of confidential treatment to the 102 items identified in the annex. We 
recall  that Japan  made its claim under Article 6.5 in tandem with a claim under A rticle 11.4 of the 
Anti-Dumping  Agreement, since Article 11.4 provides the legal basis for which Article 6.5 applied to 
the sunset review at issue. In view of our findings in relation to Article 6.5, we likewise find that the 
KIA acted inconsistently with Article 11.4.  
7.222.   We emphasi ze that our finding is confined to the particular redactions challenged by Japan 
in the review at issue in these proceedings. We reiterate that, in our view, Japan has not 
demonstrated that the KIA 's system for protecting informatio n as confidential is incapable of 
operating in a manner consistently with Article  6.5. Rather, we see merit in the general approach 
adopted by the KIA to protecting confidential information.  
7.223.   Given the above finding, we do not consider it necessary to consi der Japan 's other 
arguments with respect to Article  6.5. As we have already found that the KIA 's confidential treatment 
of all 102 items of information at issue to be inconsistent with Article  6.5, it adds nothing further to 
consider Japan 's arguments in r elation to certain specific items.  
7.7  Judicial economy  
7.224.   Japan makes a number of claims in addition to those considered above, namely that the KIA 
acted inconsistently with : 
a. Article  11.3 of the Anti -Dumping  Agreement  by conducting a cumulative assessment of 
Indian and Japanese imports661;  
b. Article  VI:6(a) of the GATT 1994  by its decision to continue levying anti -dumping 
duties662;  
c. Articles  6.9 and 11.4 of the Anti -Dumping  Agreement  by failing to properly disclose certain 
alleged "essential facts"663;  
d. Articles  12.2, 12.2.2, and 12.3 of the Anti -Dumping  Agreement  by failing to provide the 
Japanese exporters with a public notice stating the findings and all relevant information 
regardi ng matters of fact and law in sufficient detail664; and  
e. Articles  6.5.1  and 11.4  of the Anti ‑Dumping  Agreement  in respect of 80 instances in the 
documents as identified in the annex .665 
7.225.   For the reasons set out below we consider it appropriate to exercise judicial economy with 
respect to these claims. We will first consider the principle of judicial economy, and then apply that 
principle  to each of the claims listed above.666 
7.226.   It is well est ablished that a panel  need only address those claims that must be addressed in 
order to resolve the matter in issue in a dispute.667 This principle of j udicial economy "allows a panel 
to refrain from making multiple findings that the same measure is inconsi stent with various 
provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve 
the dispute ".668 Thus, a "panel has to address those claims on which a finding is necessary in order 
to enable the DSB to make sufficient ly precise recommendations and rulings so as to allow for prompt 
 
661 Japan's  first written sub mission, para.  91.  
662 Japan's  first written submission, para.  193; second written submission, paras.  438-448. 
663 Japan's  first written submission, para.  12. 
664 Japan's  first written submission, para.  348. 
665 Japan 's first written submission, paras.  328 and 340, and annex, p p. 145-165. 
666 We give a brief overview of each of Japan's  claims and Korea's  corresponding response. This is solely 
for the purpose of identifying the claim over which we are exercising judicial eco nomy, and is not intended to 
be provide a comprehensive or fulsome account of the parties'  respective arguments and rebuttals on each 
point.  
667 Appellate  Body Report, US – Wool Shirts and Blouses , DSR 1997:I, p.  340. 
668 Appellate  Body Report s, Argentina – Import Measures , para. 5.190 ( quoting  Appellate  Body Report, 
Canada – Wheat Exports and Grain Imports , para. 133).  (emphasis on Canada – Wheat Exports and Grain 
Imports ) WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  compliance by a Member with those recommendations and rulings".669 However, for other claims – 
i.e. claims on which a finding is not necessary so as to allow for prompt compliance by the Membe r 
concerned  – panels may exercise judicial economy.  
7.227.   In instances where a panel exercises judicial economy, it is required to explain its decision 
to decline to examine those claims.670 While we explain below our exercise of judicial economy for 
each of Japa n's claims listed in paragraph  7.224 , we make the overarching point that findings on 
these claims would add nothing to the way in which Korea chooses to comply with the inconsistencies 
that we have already found in section s 7.5 and 7.6. The significance of this lies in our "objective 
assessment" under Article 11 of the DSU encompassing not only a duty to ensure a positive and 
effective resolution to the dispute, but also a prompt  resolution in light of the magnitude and 
complexity of the matter to be resolved.671 The DSU envisages that a balance is struck  between 
providing " high-quality panel reports, while not unduly delaying the panel process ".672 Prudent 
expeditiousness is a core facet of our "objective assessment". With that in mind, we explain our 
exercise of judicial economy for each applicable claim.  
7.228.   First, Japan contends that the KIA acted inconsistently with Article  11.3 of the 
Anti-Dumping  Agreement  by conducting a cumulative assessment of Indian and Japanese imports 
for the purposes of its likelihood -of-injury assessment .673 Japan argues  there is limited competition 
between Japanese and Indian imports because of the differences in the mix of grades a nd price 
levels.674 Japan contends, therefore, that the KIA could not  have assume d that Japanese and Indian 
products could be cumulated, and failed to conduct an adequate analysis of the competitive 
relationship between them.675 Korea rejects Japan 's argumen t and responds that the competitive 
relationship was adequately addressed  in the KIA 's determination, and  moreover, the difference in 
product mixes  was rendered irrelevant by the "high adaptability" of SSB production facilities  and the 
made -to-order nature  of the market, together with the fact that all relevant producers could and did 
compete over the same demand .676 
7.229.   We consider it appropriate to exercise judicial economy over Japan 's claim that the 
KIA's cumulation analysis was inconsistent with Article  11.3. It emerged during these proceedings 
that the KIA 's likelihood -of-injury assessment was not conducted exclusively on a cumulative basis. 
On the contrary, with respect to the KIA 's examination of prices during the POR and the 
consequences of the drop in p rices arising from lifting the anti -dumping duties, the KIA engaged in 
both cumulative and decumulative analyses, including with respect to Japan individually.677 Each of 
the intermediate findings on the consequences of the drop in prices arising from lifti ng the 
anti-dumping duties, which in turn led to the ultimate conclusion, incorporated findings specific to 
Japan.678 The intermediate finding of the "large recovery of price competitiveness in the domestic 
market" was based on a Japan -specific analysis of the effects of its prices falling by KRW  [[***]].679 
The subsequent intermediate finding of a "growth in exports to Korea and weaken[ing] [of] the price 
competitiveness of the like products" was likewise based on a Japan -specific analysis of a p rice 
decline by " [[***]]% for Japanese products".680 Accordingly, the ultimate conclusion that "a drop in 
the price of the dumped imports and an increase in the volume of dumped imports will lead to 
 
669 Appellate  Body Report, Australia – Salmon , para.  223.  
670 Appellate  Body Report, Canada – Autos , para.  117. 
671 See, e.g. Articles  3.3, 3.7 , 11, 12.2, 12.8, and 21.1 of the DSU.  
672 Article  12.2 of the DSU.  
673 Japan's  first written submission, paras.  90-105.  
674 Japan 's first written submission, paras.  106-115; second written submission paras.  10 and 151-153. 
675 Japan 's first written submission, paras.  116-118; second written submission paras.  151-155. 
676 Korea 's first written submission, paras.  133-182; second written submission, paras.  50, 52, 59, 
and 71. 
677 Korea's first written submission, para.  247; responses to Panel question No.  19(a)(ii), and 
Nos. 64(a)  and 64(d); and second written submission, paras.  90, 105, and 185.  
678 Korea 's first written submission, para. 247; response to Panel question No.  64(a); and 
second  written submission, paras.  105, 185, and 240 -241. 
679 OTI's final report, (Exhibit KOR -5.c (BCI) ), p. 63; see also Korea 's response to Panel 
question  No. 64(a).  
680 OTI's final report, (Exhibit KOR -5.c (BCI) ), p. 67; see also Korea 's first written submission, 
para. 247; and second written submission, para. 185. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  recurrence of material injuries to the domestic industry" was, with respect to the consequences of 
the drop in Japanese prices, premised on certain Japan -specific findings.681  
7.230.   Thus, with respect to Japan, the ultimate conclusion on the consequences of the drop in 
prices did not turn on a cumulative assessment. We  therefore agree with Korea that " [t]he relevance 
of the cumulation decision is thus very limited as the authorities complemented and supplemented 
the cumulative analysis consistently with a country -specific analysis" .682 As Korea explains, "[t] he 
decision to cumulate therefore did not mean that no separate, complementary analysis of prices just 
for Japan took place ".683 Moreover, with respect to production capacity and capacity utilization, we 
see nothing in the KIA 's determination to indicate that Japan 's capacity utilization rate was 
cumulated with India 's capacity utilization rate for the purposes of the KIA 's ultimate conclusion.684 
With that in mind, given that we have found that the KIA acted inconsistently with Article  11.3 on 
the basis of findings by the KIA that rested upon Japan -specific analyses, we do not see why a 
finding on the KIA 's decision to cumulate the effects of Indian and Japanese dumped imports for 
certain aspects of its analysis would assist in resolving the present dispute.  Specifically, we cannot 
see how such a finding would affect, or add to, the manner in which Korea chooses to comply with 
the inconsistencies that we have already found under Article  11.3 in section  7.5.685 
7.231.   We note that some of the parties ' arguments relating to the competitive market relationship 
amongst SSBs from the respective countries had relevance beyond Japan 's cumulation claim. We 
have addressed these, to the extent necessary, in section  7.5. In terms of Korea 's description of the 
KIA's findings of the competitive market relationship, our evaluatio n proceeded on the basis of 
Korea 's explanation686, and in view of our findings in that section , we did not consider it necessary 
to address Japan 's objections against aspects of that explanation as ex post, except where 
specifically required to resolve an aspect of the claim in question.   
7.232.   Second, Japan claims that Korea 's decision to continue levying anti -dumping duties is 
inconsistent with Article  VI:6(a) of the GATT 1994 .687 Japan argues this is because the KIA has not 
established that the effect of the alleged dumping is such as to cause or threaten material injury to 
an established domestic industry.688 Korea reject 's Japan 's claim, and further responds that Japan 
has failed  to specify which obligations under Article  VI:6(a) of the GATT 1994  were allegedly violated 
and consequently that the argument is outside the Panel 's terms of reference.689 
7.233.   We consider it appropriate to exercise judicial economy with regard to this claim. 
Japan 's claim under Article  VI:6(a) of the GATT 1994 is entirely consequential on Japan 's arguments 
made under Article  11.3 of the Anti -Dumping  Agreement .690 We have already determined that the 
KIA's likelihood -of-injury determination is inconsistent with Article 11.3 of the 
Anti-Dumping  Agreement . It would thus add nothing to the resolution of the dispute to reach a 
finding on Japan 's claim under Article  VI:6(a) of the GATT 1994 , and we therefore decline to address 
 
681 OTI's final report, (Exhibit KOR -5.c (BCI) ), p. 67. As we understand it, the KIA "noted current price 
trends over the POR of the dumped imports, both on a cumulated and de -cumulated basis" and found that 
"without duties, the underselling would be very significant for the dumped imports, and that prices of Japanese 
dumped imports would drop significantly by at least [[***]]%", and in turn " [t]his intermediate finding  
supported t he overall reasonable  conclusion  that there was a likelihood of future injury if the duties expired". 
(Korea 's second written submission, para. 185 (emphasis added); see also first written submission, 
paras.  247-248). We reject Japan 's argument to the contrary. (Japan 's response to Panel question No.  40, 
paras.  225-226).  
682 Korea 's second written submission, para.  90. 
683 Korea 's second written submission, para. 105. 
684 Rather, the KIA's  determination consistently referenced respective country -specific figu res for India 
and Japan on production capacity.  (OTI's final report , (Exhibit KOR -5.c (BCI)),  pp. 57-61 and 67; KTC's final 
resolution , (Exhibit  KOR-4.b (BCI)), pp.  19-22). 
685 See further Annex A -3 (Interim Review), para. 2.211.  
686 See, e.g. paras.  7.70-7.74 above.  
687 Japan 's first written submission, para. 193; second written submission, paras.  438-448. 
688 Japan 's first written submission, para. 193; second written submission, paras.  438-448. 
689 Korea's first written submission, paras.  458-464; second written submission, paras.  313-318. 
690 Japan's  first written submission, para.  193; second written submission, paras.  438-448. WT/DS553/R  
BCI deleted, as indicated [[***]]  
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  it. It is likewise unnecessary to consider  whether or not Japan 's claim under Article  VI:6(a) of the 
GATT  1994 would be outside our terms of reference.691  
7.234.   Third, Japan claims that certain alleged "essential facts" pertaining to six of the KIA 's findings  
were not sufficiently disclosed under Articles  6.9 and 11.4  of the Anti -Dumping  Agreement .692 Japan  
argues that neither  the information disclosed  nor the method of disclosure  was sufficient to enable 
the interested part ies to understand the basis of the  KIA's decision and to comment on the 
completeness or correctness of conclusions reached by the investigating authority.693 Korea 
responds that the KIA disclosed all essential facts under consideration in a manner consistent with 
Article  6.9.694 
7.235.   We consider it appropriate to exercise judicial economy over these  claims. Japan 's claims 
under Articles  6.9 and 11.4  pertain to alleged "essential facts" concerning the 
KIA's likelihood -of-injury determination.695 We have already found the KIA 's likelihood -of-injury  
determination  to be  inconsistent with Article  11.3 due to a failure by the KIA to engage in an 
"unbiased and objective" evaluation of certain factual matters. Any fresh evaluation of the likelihood 
of injury by the KIA as a consequence of the findings in section  7.5 of this Report would necessarily 
require a renewed factual assessment of those matte rs.696 A fresh factual evaluation would warrant 
a fresh disclosure of the "essential facts" under consideration for the purposes of Article  6.9.697 A 
determination in the present Panel proceedings as to whether the KIA complied with the 
requirements of Article 6.9 in the review at issue would relate only to the particular factual 
assessment in the review at issue, and not to a fresh factual evaluation undertaken to comply with 
DSB rulings arising from this Report. Thus, findings in the present Panel proceedin gs would be 
relevant to a fresh factual evaluation by analogy only, if at all; any such fresh factual evaluation 
would again be subject to the procedural requirements of Article  6.9, and therefore the 
authority 's compliance with Article  6.9 in respect of t hat fresh evaluation would turn on the particular 
circumstances of that case. Thus, our exercise of judicial economy over the present claims would 
not affect the obligation under Article  6.9 to "inform all interested parties of the essential facts under 
consideration which form the basis for the decision", including "in sufficient time for the parties to 
defend their interests", as part of any reinvestigation to comply with DSB rulings arising from this 
Report. We consider it relevant, in this regard, that Japan clarified explicitly that it "does not intend 
to challenge Korea 's system … 'as such ' in the current case".698 Questions concerning systemic or 
regular practices of the KIA which may arise in a later review or fresh factual evaluation have thus 
not be en raised as a matter for this Panel 's consideration. Accordingly, a finding on Japan 's claims 
under Articles  6.9 and 11.4 of the Anti -Dumping  Agreement  would add nothing to the manner in 
which  Korea chooses to comply with the inconsistencies that we have already found under 
Article  11.3 of the Anti -Dumping  Agreement .699 
 
691 While questions of jurisdiction are fundamental, we consider it appropriat e and expeditious to apply 
judicial economy to Japan's  claim on an arguendo  basis to "enhance the simplicity and efficiency" of the 
proceedings. (Appellate  Body Report, China – Publications and Audiovisual Products , para. 213; Panel Report, 
US – Large Civi l Aircraft (2nd complaint) , fn 2933). Treating Japan's  claim on an arguendo  basis in this context 
allows this Panel to directly exercise judicial economy to remove the claim from consideration. Additionally 
considering Korea's  rebuttal argument that Japan's  claim is outside our terms of reference would add 
complexity to this anal ysis without affecting the outcome.  
692 Japan 's first written submission, paras.  295-327; second written submission, paras.  529-542. 
693 Japan 's first written submission, paras.  295-327; second written submission, paras.  529-542. 
694 Korea's  first written submis sion, paras.  395-411. 
695 See para.  7.15 above.  
696 We note that under Article  21.3 of the DSU, the implementation of DSB recommendations and 
rulings is left, in the fir st instance, to the discretion of the implementing Member, and we do not seek to 
presuppose what method of implementation Korea might adopt in the present dispute. (Panel Reports, US – 
Shrimp II (Viet Nam) , para.  8.6; EU – Footwear (China) , para.  8.12; EC – Fasteners (China) , para.  8.8; and 
US – Hot-Rolled Steel , para.  8.11).  
697 Panel Report, US – Carbon Steel (India)  (Article  21.5 – India) , paras.  7.236 -7.237.  
698 Japan's  first written submission, para.  283. 
699 By contrast, we do not consider that our findings in section  7.5 of this Report would require the 
resubmission of the documents at issue in Japan's  claims under Arti cles 6.5 of the Anti -Dumping  Agreement, 
nor a re -evaluation by the KIA of "good cause shown" regarding the information in those documents for which 
confidential treatment was requested. Therefore, unlike our consideration of Japan's  claims concerning 
"esse ntial facts" and "public notice", we cannot exercise judicial economy over Japan's  claims under 
Articles  6.5 on the basis that the KIA would need to re -observe those aspects of Articles  6.5 with respect to the 
documents at issue as a corollary of our findi ngs in section  7.5. WT/DS553/R  
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  7.236.   Fourth, Japan claims that the exporters were not provided with a public notice stating the 
findings and all relevant informatio n regarding matters of fact and law in sufficient detail as required 
by Articles  12.2, 12.2.2, and 12.3 of the Anti -Dumping  Agreement .700 Japan contends that it is not 
clear whether the KTC's final resolution, the OTI 's final report, or the Ministry of Stra tegy and 
Finance 's final report  constituted public notice to the interested parties.701 Regardless, Japan argues 
that none of these documents provide sufficient detail in relation to a range of the KIA 's findings.702 
Korea responds that the M inistry of Strat egy and Finance 's final report  constituted public notice and 
contained the KTC 's final determination and the OTI 's final report.703 Korea continues that this public 
notice fully complied with the disclosure obligations of Articles  12.2, 12.2.2, and 12.3 of the 
Anti-Dumping  Agreement .704 
7.237.   We consider it appropriate to exercise judicial economy over these  claim s for the same 
reasons as with respect to Japan 's "essential facts" claims under Article  6.9. In particular, as w e 
have already found the KIA 's likelihood -of-injury  determination to be inconsistent with Article  11.3, 
any fresh evaluation of the facts by the KIA as a consequence  of this Report would necessitate 
compliance with  the disciplines  contained in Articles  12.2, 12.2.2 , and 12.3 of the 
Anti-Dumping  Agreement . Accordingly, a finding on Japan 's claims under Articles  12.2, 12.2.2 , 
and 12.3 of the Anti -Dumping  Agreement  would add nothing to the manner in which Korea chooses 
to comply with the inconsistencies that we have already found under Article 11.3 of the 
Anti-Dumping  Agreement . 
7.238.   Fifth, Japan claims that Korea acted inconsistently with Articles  6.5.1 and 11.4  of the 
Anti‑Dumping  Agreement  in respect of 80 instances in the documents as identified in the annex.705 
Japan argues that the KIA acted inconsistently with Articles  6.5.1  and 11.4  of the 
Anti‑Dumping  Agreement  because the KIA failed to ensure the provision of non ‑confidential 
summaries without reference to exceptional circumstances justifying such failure.706 Japan further 
argues that, to the extent non ‑confidential summaries were provided, such summaries were not 
sufficiently detailed.707 Korea rejects Japan 's argument that the KIA acted inconsistently with 
Articles  6.5.1 and 11.4 of the Anti ‑Dumping  Agreemen t.708 
7.239.   We consider it appropriate to exercise judicial economy over  Japan 's claim s with respect to 
Articles  6.5.1 and 11.4 . We have already determined that the KIA acted inconsistently with 
Article  6.5 with respect to its  confidential treatment  of this same information .709 This finding makes 
it unnecessary to consider whether the KIA complied with Articles  6.5.1  and 11.4  on the provision 
of non -confidential summaries for that information . We thus exercise judicial economy in respect of 
these claim s in the inte rest of the efficient resolution of this dispute.  
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows :  
a. With respect to Korea 's request for a preliminary ruling under Articles  4.4 and 6.2 of the 
DSU and Articles  17.3 and 17.4 of the Anti -Dumping  Agreement , Korea has not 
demonstrated that any of Japan 's claims are not properly before this Panel.  
b. With respect to Japan 's claims under Article  11.3 of the Anti -Dumping  Agreement :  
i. The KIA acted inconsistently with Article  11.3 of the Anti -Dumping  Agreement  in its 
examination of the price and volume effects of the Japanese imports, by failing to 
 
700 Japan's  first written submission, para.  348. 
701 Japan's  first written submission, para.  348 (referring to KTC's notification of final determinat ion, 
(Exhibit JPN-21.b)  and Ordinance No. 624 and Public Notice No. 2017 -86, (Exhibit JPN -24.b)).  
702 Japan's  first written submission, paras.  348-388. 
703 Korea's  first written submission, paras.  445-457. 
704 Korea's  first written submission, paras.  445-457. 
705 Japan 's first written submission, paras.  328 and 340, and annex, p p. 145-165. 
706 Japan 's first written submission, paras.  328 and 340, and annex, p p. 145-165. 
707 Japan 's first written submission, paras.  342 and 346.  
708 Korea's  first written submission, para. 344; second written submission, paras.  560-561. 
709 See section 7.6.3 above.  WT/DS553/R  
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  undertake an unbiased and objective evaluati on of the facts on the consequences of 
the drop in Japanese prices.  
ii. The KIA acted inconsistently with Article  11.3 of the Anti -Dumping  Agreement  in its 
findings on the exporters ' production capacity and capacity utilization by rejecting data 
submitted by t he Japanese exporters on the basis of their failure  to comply with certain 
parameters of which they were not properly informed , and thereby failing to undertake 
an unbiased and objective evaluation of the facts on Japan 's production capacity and 
capacity u tilization . 
iii. Japan has not demonstrated that the KIA acted inconsistently with Article  11.3 of the 
Anti-Dumping  Agreement  by failing to consider, as other potential injury factors, the 
cost of raw materials, and the weak demand in the domestic and export ma rkets.  
iv. Given our findings at paragraph 8.1. b.i, we exercise judicial economy with respect to 
Japan 's claim under Article  11.3 of the Anti -Dumping  Agreement  in relation to the 
assessment of KIA 's alleged failure to examine third -country imports  as an other 
potential injury factor . 
v. Given our findings at paragraph s 8.1.b.i and ii , we exercise judicial economy with 
respect to Japan 's claim under Article  11.3 of the Anti -Dumping  Agreement  in relation 
to the KIA 's cumulation of Japanese imports with Indian i mports for the purposes of 
its likelihood -of-injury assessment.  
c. With respect to Japan 's claims under Articles  6.8 and 11.4 and paragraphs 3 and 7 of 
Annex II to the Anti -Dumping  Agreement :  
i. The KIA acted inconsistently with Articles  6.8 and 11.4  by having recourse to the "facts 
available" in respect of Japan 's production capacity.  
ii. Given our finding at paragraph 8.1. c.i, we exercise judicial economy with regard to 
Japan 's claims under paragraphs 3 and 7 of Annex II to the Anti -Dumping  Agreement . 
d. With respect  to Japan 's claims under Articles  6.5, 6.5.1, and 11.4 of the 
Anti-Dumping  Agreement :  
i. The KIA acted inconsistently with Articles  6.5 and 11.4  of the 
Anti-Dumping  Agreement  regarding its treatment of information provided by the 
applicants as confidential information.  
ii. Given our finding at paragraph 8.1. d.i, we exercise judicial economy with respect to 
Japan 's claims under Articles  6.5.1  and 11.4  of the Anti -Dumping  Agreement . 
e. Given our findings at paragraph s 8.1.b.i and ii , we exercise judicial  economy with respect 
to Japan 's claim under Article  VI:6(a) of the GATT  1994 and Korea 's corresponding 
objection under Article  6.2 of the DSU that Japan 's claim in this regard was not properly 
before us . 
f. Given our findings at paragraph s 8.1.b.i and ii , we exercise judicial economy with respect 
to Japan 's claim under Articles  11.4 and 6.9 of the Anti -Dumping  Agreement  in relation to 
the KIA 's disclosure of "essential facts".  
g. Given our findings at paragraph s 8.1.b.i and ii , we exercise judicial economy with respect 
to Japan 's claim that the KIA acted inconsistently with Articles  12.2, 12.2.2, and 12.3 of 
the Anti -Dumping  Agreement  in relation to the provisions of the findings and conclusions 
reached on all issues of fact and law.  
8.2.  Under Article  3.8 of the DSU,  in cases where there is an infringement of the obligations 
assumed under a covered  Agreement , the action is considered prima  facie to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are WT/DS553/R  
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  inconsis tent with certain provisions of the Anti -Dumping  Agreement , they have nullified or impaired 
benefits accruing to Japan under that  Agreement . 
8.3.  Pursuant to Article  19.1 of the DSU, we recommend that Korea bring its measure into 
conformity with its obligations under the Anti -Dumping  Agreement . 
 
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