WT/DS493/R  
 
20 July 2018 
(18-4541) Page: 1/81 
  Original: English  
 
  
UKRAINE – ANTI -DUMPING MEASURES ON AMMONIUM NITRATE  
REPORT  OF THE PANEL  
 
 WT/DS493/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  10 
1.1   Complaint by the Russian Federation  ................................ ................................ ............ 10 
1.2   Panel establishment and composition  ................................ ................................ ............ 10 
1.3   Panel proceedings  ................................ ................................ ................................ .......10 
1.3.1   General  ................................ ................................ ................................ .................. 10 
1.3.2    Additional Working Procedures on Business Confidential Information  .............................. 11 
1.3.3    Request for a Preliminary Ruling  ................................ ................................ ................ 11 
1.3.4    Communications addressing procedural issues  ................................ ............................ 11 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 11 
3   PARTIES'  REQUESTS FOR FINDING S AND RECOMMENDATION  ................................ .. 12 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  14 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  14 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 14 
7   FINDIN GS ................................ ................................ ................................ .................  14 
7.1   General principles regarding treaty interpretation, the standard of review, and 
burden of proof  ................................ ................................ ................................ .................. 14 
7.1.1    Treaty interpretation  ................................ ................................ ................................ 14 
7.1.2    Standard of review ................................ ................................ ................................ ...15 
7.1.3    Burden of proof  ................................ ................................ ................................ .......16 
7.2   Substantive and procedural rules under Article  11 of the Anti -Dumping Agreement 
applicable to interim and expiry reviews  ................................ ................................ ............... 16 
7.3   Findings on terms of reference  ................................ ................................ ..................... 16 
7.3.1    Consistency of Russia's  panel request with Article  6.2 of the DSU  ................................ ..17 
7.3.1.1    Legal Standard  ................................ ................................ ................................ .....17 
7.3.1.1.1    Specific measures at issue ................................ ................................ ................... 18 
7.3.1.1.2    Brief summary of the legal basis of the complaint ................................ ................... 18 
7.3.1.2    Measures Ukraine alleges were outside the scope of Russia's  panel request  .................. 18 
7.3.1.3    Claims that Ukraine alleges were not presented in Russia's  panel request in 
conformity with Article  6.2 of the DSU  ................................ ................................ .................. 21 
7.3.1.3.1    Claims  presented in item number 1 of Russia's  panel request  ................................ ..21 
7.3.1.3.2    Claims presented in item number 4 of Russia's  panel request  ................................ ..22 
7.3.1.3.3    Claims presented in item number 17 of Russ ia's panel request  ................................ 23 
7.3.1.4    Overall conclusion  ................................ ................................ ................................ .25 
7.3.2    Claims that Ukraine alleges were outside the scope of the consultation request  ............... 25 
7.3.2.1    Legal standard  ................................ ................................ ................................ ......25 
7.3.2.2    Whether Russia's  "public notice" claims under Articles  12.2 and 12.2.2 fall 
outside our terms of reference in light of its consultation request  ................................ ............. 25 
7.3.2.3    Whether Russia's  "claims" under Articles  3.1 and  3.4 fall outside our terms of 
reference in light of its consultation request  ................................ ................................ .......... 27 
7.3.2.4    Overall conclusion  ................................ ................................ ................................ .28 WT/DS493/R  
 
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  7.4   Dumping and likelihood -of-dumping determinations  ................................ ........................ 28 
7.4.1    Cost adjustment claims under Articles  2.2.1.1 and 2.2 of the Anti -Dumping 
Agreement  ................................ ................................ ................................ ........................ 29 
7.4.1.1    Legal standard  ................................ ................................ ................................ ......29 
7.4.1.2   MEDT of Ukraine's  cost assessments in the underlying reviews  ................................ ...30 
7.4.1.3    Rejection of the reported gas cost  ................................ ................................ ........... 31 
7.4.1.3.1    Ukraine's  arguments based on the use of the word "normally"  ................................ .32 
7.4.1.3.2    Rejection of the reported gas cost pursuant to the second condition of 
Article  2.2.1.1  ................................ ................................ ................................ ................... 33 
7.4.1.4    Replacement of reported gas cost with surrogate price of gas  ................................ .....37 
7.4.2    Claims under Articles  2.2.1 and 2.1 of the Anti -Dumping Agreement regarding 
MEDT of Ukraine's  ordinary -course -of-trade test  ................................ ................................ ....40 
7.4.2.1    Legal standard  ................................ ................................ ................................ ......41 
7.4.2.2    Evaluation  ................................ ................................ ................................ ............ 42 
7.4.2.2.1    Claim under Article  2.2.1................................ ................................ ..................... 42 
7.4.2.2.2    Claim under Article  2.1 of the Anti -Dumping Agreement ................................ .......... 44 
7.4.3    Fair comparison under Article  2.4 of the A nti-Dumping Agreement  ................................ .44 
7.4.4    Claims under Articles  11.1, 11.2, and 11.3 of the Anti -Dumping Agreement  .................... 45 
7.5   Non-termination of investigation against EuroChem  ................................ ........................ 46 
7.5.1    Treatment of EuroChem in the original investigation phase  ................................ ........... 47 
7.5.2    Legal standard  ................................ ................................ ................................ ........ 48 
7.5.3    Evaluation  ................................ ................................ ................................ .............. 49 
7.5.3.1    Claim under Article  5.8 of the Anti -Dumping Agreement concerning the 
determinations in the original investigation phase  ................................ ................................ ..50 
7.5.3.2    Claim under Article  5.8 of the Anti -Dumping Agreement concerning the 
underlying reviews  ................................ ................................ ................................ ............. 53 
7.5.3.3    Claims under Articles  11.1, 11.2, and 11.3 of the Anti -Dumping Agreement 
concerning the underlying reviews  ................................ ................................ ....................... 54 
7.6   Likelihood -of-injury determination  ................................ ................................ ................ 54 
7.6.1    Legal standard  ................................ ................................ ................................ ........ 55 
7.6.2    Evaluation  ................................ ................................ ................................ .............. 57 
7.6.2.1    Whether MEDT of Ukraine made an injury determination under Article  3 in the 
underlying reviews  ................................ ................................ ................................ ............. 58 
7.6.2.2    Whether Russia can claim violations under Articles  11.1, 11.2, and 11.3 even if 
MEDT of Ukraine did not determine injury under Articles  3.1 and 3.4  ................................ ........ 61 
7.6.2.3    Conclusion  ................................ ................................ ................................ ........... 63 
7.7   Facts available  ................................ ................................ ................................ ........... 63 
7.8   Disclosure of essential facts  ................................ ................................ ......................... 65 
7.8.1    Legal standard  ................................ ................................ ................................ ........ 65 
7.8.2    Evaluation  ................................ ................................ ................................ .............. 67 
7.8.2.1    Disclosure claims  ................................ ................................ ................................ ..67 
7.8.2.1.1    Disclosure of essential facts forming the basis of the likelihood -of-injury 
determination  ................................ ................................ ................................ .................... 67 WT/DS493/R  
 
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  7.8.2.1.1.1    Disclosure on price effects  ................................ ................................ ................ 68 
7.8.2.1.1. 2   Disclosure of essential facts regarding the economic state of the domestic 
Ukrainian industry  ................................ ................................ ................................ .............. 71 
7.8.2.1.2    Disclosure of es sential facts forming the basis of the dumping determinations  ........... 75 
7.8.2.2    Sufficiency of time given to respond to disclosure  ................................ ..................... 77 
7.9   Consequential claims  ................................ ................................ ................................ ..78 
8   FINDINGS AND RECOMME NDATION  ................................ ................................ ..........  79 
 
 WT/DS493/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 B usiness Confidential Information  9 
ANNEX B  
ARGUMENTS OF THE PARTIES   
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of Russia  12 
Annex  B-2 First i ntegrated executive summary of the arguments of Ukraine  21 
Annex B -3 Second integrated executive summary of the arguments of Russia  28 
Annex B -4 Second integrated executive summary of the arguments of Ukraine  38 
ANNEX C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Executive summary of the arguments of Argentina  49 
Annex  C-2 Executive summary of the arguments of Australia  52 
Annex  C-3 Executive summary of the arguments of Brazil  55 
Annex  C-4 Executive summary of the arguments of China  58 
Annex  C-5 Executive summary of the arguments of Colombia  61 
Annex  C-6 Executive summary of the arguments of the European Union  63 
Annex  C-7 Executive summary of the arguments of Japan  68 
Annex  C-8 Executive summary of the arguments of Mexico  71 
Annex  C-9 Executive summary of the arguments of Norway  75 
Annex  C-10 Executive summary of the arguments of the United States  77 
ANNEX D  
PANEL COMMUNICATIONS   
Contents  Page  
Annex  D-1 Communication dated 23 August 2017 regarding deadlines set out in the  
timetable for this dispute  83 
Annex  D-2 Communication dated 23 August 2017 regarding Ukraine 's first integrated 
executive summary  84 
Annex  D-3 Communication dated 30 August 2017  85 
Annex  D-4 Communication dated 12 September 2017  86 
Annex  D-5 Communication dated 21 September 2017  88 
Annex  D-6 Communication dated 16 October 2017  89 
ANNEX E 
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  91 
  WT/DS493/R  
 
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CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
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  
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 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1161 
Canada – Contin ued 
Suspension  Appellate Body Report, Canada – Continued Suspension of Obligations in the EC 
– Hormones Dispute , WT/DS321/AB/R , adopted 14 November 2008, 
DSR 2008:XIV, p. 5373 
Canada – Welded Pipe  Panel Report, Canada – Anti-Dumping Measures on Imports of Certain Carbon 
Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu , WT/DS482/R  and Add .1, adopted 25 January 2017 
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 S tates, WT/DS414/R  and 
Add.1, adopted 16 November 2012, upheld by Appellate Body Report 
WT/DS414/AB/R, DSR 2012:XII, p. 6369 
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 
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  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / WT/DS398/AB/R , adopted 
22 February 2012, DSR 2012:VII, p. 3295 
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24 April 2013, DSR 2013:III, p. 659 
Dominican Republic – Import 
and Sale of Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 
19 May 2005, DSR 2005:XV, p. 7367 
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 Re port WT/DS397/AB/R, 
DSR 2011:VIII, p. 4289 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 1 5 January 2008, and Corr.1, 
DSR 2008:I, p. 3 WT/DS493/R  
 
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  Short title  Full case title and citation  
EC – Selec ted Customs Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast 
Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 18 August 2003, 
as modified by Appellate Body Report WT/DS 219/AB/R, DSR 2003:VII, p. 2701 
EC and certain member States 
– Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7 
EU – Biodiesel (Argen tina) Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26  October  2016 
EU – Biodiesel (Argentina)  Panel Report, European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26 October 2016, as modified by 
Appellate Body Report WT/DS473/AB/R  
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 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, 
DSR 1998:IX, p. 3767 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey Portland 
Cement from Mexico , WT/DS156/R , adopted 17 November 2000, DSR 2000:XI, 
p. 5295 
Indonesia – Import  Licensing 
Regimes  Panel Report, Indonesia – Importation of Horticultural Products, Animals and 
Animal Products , WT/DS477/R , WT/DS478/R , Add.1 and Corr.1, adopted 
22 November 2017, as modified by Appellate Body Report WT/DS477/AB/R, 
WT/DS478/AB/R  
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  
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 – Anti-Dumping 
Measures  on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, as 
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, p. 11007  
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 
Russia – Commercial Vehicles  Panel Rep ort, Russia – Anti-Dumping Duties on Light Commercial Vehicles from 
Germany and Italy , WT/DS479/R  and Add.1, adopted 9 April 2018, as modified 
by Appellate Body Report WT/DS479/AB/R  
US – Anti-Dumping 
Methodologies (China)  Panel Report, United States – Certain Methodologies and Their Application to 
Anti-Dumping Proceedings Involving China , WT/DS471/R  and Add.1, adopted 
22 May 2017, as modified by Appellate Body Report WT/DS471/AB/R  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779 
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – Corrosion -Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, p. 3 
US – Corrosion -Resistant Steel 
Sunset Review  Panel Report, United States – Sunset Review of Anti -Dumping Duties on 
Corrosion -Resistant Carbon Steel Flat Products from Japan , WT/DS244/R , 
adopted 9 January 2004, as modified by Appellate Body Report 
WT/DS244/AB/R, DSR 2004:I, p. 85 
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United State s – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027 WT/DS493/R  
 
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  Short title  Full case title and citation  
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131 
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R , adopted 19 March 1999, DSR 1999:II, p. 521 
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 – OCTG (Korea)  Panel Report, United States – Anti-Dumping Measures on Certain Oil Country 
Tubular Goods from Korea , WT/DS488/R  and Add.1, adopted 12  January  2018 
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  Panel Report, United States – Sunset Reviews of Anti -Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/R  and Corr.1, adopted 
17 December 2004, as modified by Appellate Bod y Report WT/DS268/AB/R, 
DSR 2004:VIII, p. 3421 
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article  21.5 – Argentina)  Panel 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/RW , adopted 11 May 2007, as modifie d by Appellate 
Body Report WT/DS268/AB/RW, DSR 2007:IX, p. 3609 
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  
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R , 
adopted 17 February 2004, DSR 2004:II, p. 571 
US – Softwood Lumber IV 
(Article  21.5 – Canada)  Appellate Body Report, United States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Ca nada – Recourse by Canada 
to Article  21.5 of the DSU , WT/DS257/AB/RW , adopted 20 December 2005, 
DSR 2005:XXIII, p. 11357  
US – Softwood Lumber V 
(Article  21.5 – Canada)  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article  21.5 of the DSU by 
Canada , WT/DS264/AB/RW , adopted 1 S eptember 2006, DSR 2006:XII, 
p. 5087 
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 , adop ted 9 May 2006, and Corr.1, 
DSR 2006:XI, p. 4865 
US – Stainless Steel (Mexico)  Appellate Body Report, United States – Final Anti -Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R , adopted 20 May 2008, 
DSR 2008:II, p. 513 
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 
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 
US – Zeroing (Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R , adopted 23 January 2007, DSR 2007:I, p. 3 
US – Zeroing (Japan)  Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R , adopted 23 January 2007, as modified by Appellate 
Body Report WT/DS322/AB/R, DSR 2007:I, p. 97  
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article  21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31 August 2009, DSR 2009:VI II, p. 3441  WT/DS493/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreement on Implementation of Article  VI of the General Agreement on Tariffs 
and Trade 1994  
BCI Business Confidential Information  
DDSR  Digital Dispute Settlement Registry  
District Court  District Administrative Court of Ukraine  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EuroChem  JSC MCC EuroChem  
GAAP  Generally accepted accounting principles  
GATT 1994  General Agreement on Tariffs and Trade 1994  
Gazprom  JSC Gazprom  
ICIT Intergovernmental Commission on International Trade  
MEDT  of Ukraine  Ministry of Economic Development  and Trade of Ukraine  
RIP Review investigation period  
SCM Agreement  Agreement on Subsidies and Countervailing Measures  
WTO World Trade Organization  
 WT/DS493/R  
 
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  1  INTRODUCTION  
1.1  Complaint by the Russian Federation  
1.1.  On 7 May 2015 , the Russian Federation (Russia)  requested consultations with Ukraine  
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 Tariffs 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 25 June 2015 , but failed to resolve this dispute . 
1.2  Panel establishment and composition  
1.3.  On 29 February 2016 , Russia  requested the establishment of a panel.2 At its meeting on 
22 April 2016 , the Dispute Settlement Body (DSB) established a panel pursuant to 
Russia 's request , in accordance with Article  6 of the DSU.3 
1.4.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by the Russian Federation in 
document WT/DS493/2 and to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements.4 
1.5.  On 23 January 2017 , Russia  requested the Director -General to determine the composition of 
the panel, pursuant to Article  8.7 of the DSU . On 2 February 2017 , the Director -General  
accordingly composed the Panel as follows:  
Chairperson:  Ms Andrea Marie Dawes  
 
Members:   Mr José Antonio Buencamino  
   Ms Penelope Jane Ridings  
 
1.6.  Argentina, Australia, Brazil, Canada, China, Colombia, the European Union, Japan, 
Kazakhstan, Mexico, Norway,  Qatar, and the United States  notified their interest in participating in 
the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.7.  After consultation with the parties, we adopted our  Working Procedures5 and timetable on 
3 April 2017 . We amended th e Working Procedures on 21 September 20176 and the timetable on 
12 September 2017 .7 We updated the timetable on  27 November 2017.  
                                                
1 Request for consultations by Russia, WT/DS493/1 (Russia's  consultation request).  
2 Request for the establishment of a panel by Russia, WT/ DS493/2  (Russia's  panel request) . 
3 DSB, Minutes of the meeting held on 22 April 2016, WT/DSB/M/377.  
4 Constitution note of the Panel, WT/DS493 /3. 
5 See the Panel's  Working Procedures in Annex A -1. 
6 Paragraph 26(a) of the Working Procedures provides that each party and third party shall su bmit all 
documents to the Panel by filing them via the Digital Dispute Settlement Registry (DDSR), and that the 
electronic version of the documents uploaded into the DDSR shall constitute the official version for the purpose 
of the record of the dispute. I n our communication of 12 September 2017, and pursuant to 
Russia's  communication on this matter, we invited the parties to comment on our proposal to modify 
paragraph  26(a) by adding a footnote that specifically addresses situations where a party uploads s ubmissions 
or exhibits on the DDSR without facing any apparent technical difficulty, but other users, including the other 
party, do not have access to them due to, inter alia , technical issues relating to the DDSR. We amended the 
Working Procedures on 21 S eptember 2017 after considering the parties'  comments in this regard . Our 
communications in this regard are set out in Annexes D -4 and D -5 of this Report.  WT/DS493/R  
 
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  1.8.  We held our  first substantive meeting with the parties on 26 and 27 July 2017 , and a  session 
with the third parties on 27 July  2017. We held our  second substantive meeting with the parties on 
21 and 22 November 2017 . We issued the descriptive part of our Report to the parties  on 
29 January 2017 , the Interim Report on 24 April 2018 , and the  Final Report on 29 May 2018 . 
1.3.2   Additional Working Procedures on Business Confidential Information  
1.9.  After consultation with the parties, we adopted , on 3 April 2017, Additional Working 
Procedures on Business Confidential Information ( BCI). 
1.3.3   Request for a  Preliminary Ruling  
1.10.   On 12 June 2017, Ukraine requested a  preliminary ruling  that certain claims and measures 
invoked by Russia fall outside our terms of reference.8 Ukraine requested us to issue this ruling 
prior to 15 September 2017, but we declined to do so.9 We addres s Ukraine 's request  for a 
preliminary ruling  in our findings below . 
1.3.4   Communications addressing procedural issues  
1.11.   We issued several  communications to the parties addressing procedural issues arising in this 
dispute. These  communications  are set out in Annex D of this Report .10 
2  FACTUAL ASP ECTS  
2.1.  The Ukrainian authorities11 originally imposed anti -dumping duties on imports of ammonium 
nitrate from Russia following an anti -dumping investigation on imports of this product into Ukraine. 
These duties were imposed by the Intergovernmental Commission  on International Trade (ICIT)  
through its decision of 21 May 2008 (2008 original decision).12 This 2008 original decision was 
successfully challenged by the Russian producer  JSC MCC  EuroChem  (EuroChem ) before the 
domestic courts in Ukraine. ICIT implemente d these court judgment s through an amendment 
decision  on 25 October 2010, which amended the 2008 original decision  (2010 amendment) .13 
2.2.  The Ukrainian authorities subsequently initiated an interim and expiry review (underlying 
reviews) of these original measu res. Pursuant to the underlying reviews , the Ministry of Economic 
Development and Trade of Ukraine (MEDT of Ukraine) issued its " [m]aterials " on interim and 
                                                                                                                                                  
7 In our communication of 12 September 2017, we agreed to Russia's  request to extend the deadline for  
the parties'  second written submission as Ukraine's  delay in filing its written response to Russia's  questions 
following the first substantive meeting had deprived it of an adequate opportunity to prepare its rebuttal 
submission within the deadlines origi nally set in the timetable. Our communications of 23 August 2017 and 
30 August 2017 set out the reasons for this delay on the part of Ukraine, and our decisions in this regard. 
These communications are set out in Annexes D -1, D-3, and D -4. 
8 Ukraine's  first written submission, para.  72. 
9 Ukraine's  opening statement at the first meeting of the Panel, para.  7. 
10 Russia objected to Ukraine's  designation of UKR -53 (BCI), UKR -54 (BCI), and UKR -55 (BCI) as BCI in 
these proceedings. While we have cited these exhi bits in footnote 263 below,  we have not found it necessary to 
reproduce, or refer to any specific content from the exhibits in our report. Therefore, the question of redaction 
of references to such exhibits because they are BCI does not arise. We note that Russia has had access to 
these exhibits throughout the course of the proceedings, and Russia does not contend that its participation in 
these proceedings was affected by the designation of these documents as BCI.  (Communication to the parties 
on 16 October 2017, (Annex D -6); Russia 's response to Panel question No. 45, paras.  5-10). We do not 
consider it necessary to address this procedural objection in order to resolve this dispute.  
11 Under Ukrainian domestic law, the Intergovernmental Commission on International Trade (ICIT) has 
the power to initiate an anti -dumping investigation; to terminate or extend anti -dumping measures (as in the 
case of expiry reviews); or to terminate, extend, or change the extent of anti -dumping measures (as in the 
case of interim reviews). (Ukraine's  respo nse to Panel question No. 1, paras.  1-2). The Ministry of Economic 
Development and Trade of Ukraine (MEDT of Ukraine) is responsible for conducting the anti -dumping 
investigation or review, as well as drafting a final report containing its conclusions and recommendations. This 
report forms the basis for ICIT's  final decision. (Ukraine's  response to Panel question No. 1, para.  3). We use 
the term "Ukrainian authorities" to refer to both ICIT and MEDT of Ukraine.  
12 CIT, Decision on the application of definiti ve anti -dumping measures on imports of ammonium nitrate 
originating in Russia No.  АD-176/2008/143 -47 (21 May 2008)  (2008 original decision), ( Exhibit RUS -2b). 
13 ICIT, Decision implementing court orders regarding EuroChem (25 October 2010) (2010  
amendment),  (Exhibit RUS -8b). WT/DS493/R  
 
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  expiry review  of the anti -dumping measures on imports  of ammonium nitrate originating in Russia 
(Investigation Report14), which contained its findings and recommendations for the continued 
imposition of anti -dumping duties, but at modified rates.15 ICIT issued its notice on the changes 
and extension of anti -dumping measures on imports of ammonium nitrate originating in Russia 
(2014 extension decision) on the basis of this report , thereby  continuing the imposition of 
anti-dumping duties on imports of ammonium nitrate from Russia  at modified rates.16 
2.3.  Russia challenges  in these panel proceedings  the Ukrainian authorities ' determinations in the 
underlying reviews, as well as their conduct during these reviews.17 Russia also challenges certain 
aspects of the original anti -dumping measures imposed by ICIT.  
3  PARTIES ' REQUESTS FOR FINDING S AND RECOMMENDATION  
3.1.   Russia  requests us to find that18: 
a. With respect to the Ukrainian authorities ' dumping determinations in the underlying 
review s, Ukraine acted inconsistently with :  
i. Articles  2.2 and 2.2.1.1 of the Anti -Dumping Agreement because in determining the 
constructed normal value , the Ukrainian  authorities  failed to calculate costs on the 
basis of records kept by the Russian producers and exporters, even though the costs 
associated with the production and sale of ammonium nitrate were accurately and 
reasonably reflected in these exporters ' and producers ' records , and the records 
were in a ccordance with the generally accepted accounting principles  (GAAP)  of the 
country of origin  and export ; 
ii. Articles  2.2 and 2.2.1.1 of the Anti -Dumping Agreement because the Ukrainian 
authoriti es replaced the cost  of gas actually borne by the Russian producers and 
exporters for production of ammonium nitrate with data on gas prices outside Russia  
that did not reflect the cost  of production in the country of origin, and used such 
prices subsequen tly for constructing the normal value;  
iii. Article  2.2.1 of the Anti -Dumping Agreement because the Ukrainian authorities  
improperly treated  the domestic sales of ammonium nitrate  of the Russian producers 
and exporters  as not being in  the ordinary course of tra de and disregarded them in 
determining normal value;  
iv. Article  2.4 of the Anti -Dumping Agreement because the Ukrainian authorities  failed 
to make a fair comparison between the export price and the constructed normal 
value by improperly calculating constructe d normal value for ammonium nitrate 
produced in Russia ; 
v. Article  2.1 of the Anti -Dumping Agreement because the Ukrainian authorities  failed 
to determine the dumping margins  of the Russian producers  and exporters by 
comparing the export price of ammonium nitrate exported from Russia  to Ukraine 
with the domestic sales price of the  like product in Russia ; and 
vi. Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping Agreement because  the Ukrainian 
authorities  calculated and relied on dumping margins for ammonium nitrate which 
                                                
14 Russia objects to the use of the term "Investigation Report", and asks us to use the term "disclosure" 
to refer to this document. (Russia's  second written submission, para.  5). We do not share Russia's  concern 
regarding the use of this  term "Investigation Report", and note that the paragraph makes it quite clear that we 
use this term as a shorthand. We use the term "disclosure" to refer to this document when reviewing 
Russia's  claims under Articles  6.9 and 6.2 of the Anti -Dumping Agreem ent. 
15 MEDT of Ukraine, Materials on interim and expiry review  of the anti -dumping measures on imports  of 
ammonium nitrate originating in Russia  (25 June 2014 ) (Investigation Report), (Exhibit RUS -10b).  
16 ICIT, Notice on the changes and extension of anti -dumping measures on import s of ammonium 
nitrate origin ating in Russia  (8 July 2014)  (2014 extension decision) , (Exhibit RUS -4b). 
17 The documents relied upon with respect to these claims are the Investigation Report of MEDT of 
Ukraine, and the 2014 extension decision issued by ICIT.  
18 Russia's  first written submission, para.  347. WT/DS493/R  
 
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  were not established consistent ly with Articles  2.1, 2.2, 2.2.1, 2.2.1.1 , and 2.4 of the 
Anti-Dumping Agreement . 
b. Ukraine acted inconsistently with Article  5.8 of the Anti -Dumping Agreement because the 
Ukrainian authorities failed to terminate the  original  anti-dumping measures in respect of 
EuroChem , whose dumping margin was de minimis , and imposed a 0% anti -dumping 
duty on this exporter .19 
c. Ukraine acted inconsistently with Articles  5.8, 11.1, 11.2 , and 11.3 of the Anti -Dumping 
Agreement because  the Ukrainian authorities  included  EuroChem , whose dumping 
margin was de minimis , in the scope of the underlying  review s and imposed 
anti-dumping duties  on it following their determinations in these review s.20 
d. Ukraine acted inconsistently with Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping 
Agreement because the Ukrainian authorities  determined and relied on injury which was 
not established in accordance with Articles  3.1 and 3.4 of the Anti -Dumping Agreement , 
and in particular failed to establish facts and to conduct an unbiased and objective 
examination of these facts in its likelihood -of-injury determination . 
e. With respect to the Ukrainian authorities ' conduct in the underlying review s, Ukraine 
acted inconsi stently with:  
i. Article  6.8 and paragraphs 3, 5 , and 6 of Annex II to the Anti -Dumping Agreement 
because of the numerous procedural violations by the Ukrainian authorities . 
ii. Articles  6.2 and 6.9 of the Anti -Dumping Agreement because  the Ukrainian 
authorities  failed to adequately disclose the essential facts under consideration which 
formed the basis for the decision to apply anti -dumping measure s, which included 
the essential facts underlying the:  
 determinations on the existence of dumping, the calculation of the dumping 
margins, including relevant data and formula applied;  
 
 determination of injury21, including the price comparisons and the underlying 
data, information on import , and domestic prices used therein.  
 
iii. Article  6.9 of the Anti -Dumping Agree ment because the  Ukrainian authorities failed 
to give interested parties sufficient time to defend their interest s by commenting on 
MEDT of  Ukraine 's disclosure.  
f. Ukraine acted inconsistently with Articles  12.2 and 12.2.2 of the Anti -Dumping  
Agreement because  the Ukrainian authorities  failed to provide in sufficient detail in the 
2014 extension  decision  and the Investigation Report  the findings and conclusions 
reached on all issues of fact and law that they considered in making their preliminary 
and final dete rminations and failed to provide all r elevant information and reasons  which 
led to the imposition of the measure . 
g. Ukraine violated Articles  1 and 18.1 of the Anti -Dumping Agreement as well as  Article  VI 
of the GATT  1994 as a consequence of violations under  the Anti-Dumping Agreement.  
                                                
19 Russia's  response to Panel question No. 24, paras.  57-58. Ukraine in its comments on the descriptive 
part of the report stated that Russia had not made this claim in its first written submission. We note, however, 
that as part of its request for a preliminary ruling in its first written submission, Ukraine a sked us to find that 
this "claim", along with the measures challenged as part of this claim, were outside our terms of reference. 
(Ukraine's  first written submission, paras.  72(i), 224 -225, and 230 -231). Whether this claim falls outside our 
terms of refere nce is a separate issue that we discuss below.  
20 Russia's  response to Panel question No. 24, paras.  59, 60, and 65 -66. 
21 In its request for findings Russia also alleged that there was no disclosure of essential facts regarding 
the determination of "causati on". But no claim regarding the disclosure of such facts is presented in the 
arguments section of the first written submission, or subsequent submissions.  WT/DS493/R  
 
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  3.2.  Ukraine requests us to reject Russia 's claims in this dispute in their entirety while , as noted 
above,  also contending that several  claims as well as certain measures invoked as part of  some of  
these claims fall outside our terms of reference.22  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries as provided to us in 
accordance with paragraph 19 of the Working Procedures (see Annexes B -1 to B-4).23 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Argentina, Australia, Brazil, China, Colombia, the European Union, Japan, 
Mexico, Norway, and the United States  are reflected in their executive summaries, provided in 
accordance with paragraph 19 of the Working Procedures (see Annexes C -1 to C-10). Canada, 
Kazakhstan, and Qatar did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  On 24 April 2018, we issued our Interim Report to the parties. On 8 May 2018, Russia and 
Ukraine each submitted written requests for the Panel to review precise aspects of the Interim 
Report. Neither party requested for an interim review meeting. On 15 May 2018, both parties 
submitted comments on the other party's  requests for review.  
6.2.  The parties'  requests made at the interim review stage as well as  the Panel's  discussion and 
disposition of those requests are set out in Annex E -1. 
7  FINDINGS  
7.1.  In this section, we first set out  the general principles regarding treaty interpretation, 
standard of review and burden of proof, as well as  certain  rules under Article 11 of the 
Anti-Dumping Agreement applicable to determinations made in interim and expiry reviews, which  
we apply in this dispute . We then set out  our findings on issues raised by Ukraine regarding our 
terms of reference, and finally proceed to examin e on substantive grounds the claims and 
measures that fall within our terms of reference. In making these findings , we first set out the 
relevant legal standard , and then apply that standard to  resolv e the jurisdictional and substantive 
issues  before us.  
7.1  General principles regarding treaty interpretation, the standard of review, and 
burden of proof  
7.1.1   Treaty interpretation  
7.2.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreements  "in accordance with customary rules of 
interpretation of public international law". Article  17.6(ii) of the Anti -Dumping Agreement similarly 
requires panels to interpret that Agreement 's provisions in accordance with the customary rules of 
interpretation of public international law.24 It is generally accepted that the principles codified in 
Articles  31 and 32 of the Vienna Convention on the Law of Treaties are such customary rules.  
                                                
22 Ukraine's  first written submission, paras.  72 and 396.  
23 In our communication of 23 August 2017, we  noted that Ukraine submitted two separate executive 
summaries as part of its first integrated executive summary, namely: (a) an executive summary of its first 
written submission; and (b) an executive summary of its oral statement. However, inconsistently with 
paragraph 20 of our Working Procedures, the combined length of these documents exceeded 15 pages. We 
informed Ukraine that we would thus only accept one of the two executive summaries, which were within the 
page limit set out in paragraph 20, and aske d it to identify the document we should use in this regard. Ukraine 
asked us to treat the executive summary of its oral statement as the first integrated executive summary. Our 
communications in this regard are set out in Annexes D -2 and D -3. 
24 Article  17.6(ii) of the Anti -Dumping Agreement also provides that if a panel finds that a provision of 
the Anti -Dumping Agreement admits of more than one permissible interpretation, it shall uphold a measure 
that rests upon one of those interpretations.  WT/DS493/R  
 
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  7.1.2   Standard of review  
7.3.  Article  11 of the DSU provides, in relevant part, that:  
[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 agreements.  
In addition, Article  17.6 of the Anti -Dumping Agr eement sets forth the special standard of review 
applicable to disputes under the Anti -Dumping Agreement:  
 
(i) in 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 establishment 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 ove rturned;  
(ii) the 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 perm issible 
interpretation, the panel shall find the authorities ' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations.  
Thus, Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement together esta blish the 
standard of review we will apply with respect to both the factual and the legal aspects of the 
present dispute.  
 
7.4.  The Appellate Body has explained that where a panel is reviewing an investigating 
authority 's determination, the "objective assessmen t" standard in Article  11 of the DSU requires a 
panel to review whether the authority has provided a reasoned and adequate explanation as 
to: (a) how the evidence on the record supported their factual findings; and (b) how those factual 
findings support th e overall determination.25 In reviewing an investigating authority 's 
determination, a panel should not conduct a de novo review of the evidence, nor substitute its 
judgment for that of the investigating authority. A panel must limit its examination to the e vidence 
that was before the investigating authority during the investigation26 and must take into account 
all such evidence submitted by the parties to the dispute.27 At the same time, a panel must not 
simply defer to the conclusions of the investigating aut hority; a panel 's examination of those 
conclusions must be "in -depth" and "critical and searching".28 
7.5.  In the context of Article  17.6(i) of the Anti -Dumping  Agreement, the Appellate Body has 
clarified that while the text of this provision is couched in terms  of an obligation on a panel, in 
effect it defines when an investigating authority can be considered to have acted inconsistently 
with the Anti -Dumping Agreement in the course of its "establishment" and "evaluation" of the 
relevant facts.29 Therefore, a panel must assess if the establishment of the facts by the 
investigating authority was proper and if the evaluation of those facts by that authority was 
unbiased and objective.30 If these broad standards have not been met, a panel must hold th e 
investigating authority 's establishment or evaluation of the facts to be inconsistent with the 
Anti-Dumping Agreement.31 
                                                
25 Appellate B ody Reports, US – Countervailing Duty Investigation on DRAMS , para.  186; US – Lamb , 
para. 103. 
26 Article  17.5(ii) requires a panel to examine the matter based on the facts made available to the 
authorities.  
27 Appellate Body Report, US – Countervailing Duty  Investigation on DRAMS , para.  187. 
28 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para.  93. 
29 Appellate Body Report, US – Hot-Rolled Steel , para.  56. 
30 Appellate Body Report, US – Hot-Rolled Steel , para.  56. 
31 Appellate Body Report, US – Hot-Rolled Steel , para.  56. WT/DS493/R  
 
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  7.1.3   Burden of proof  
7.6.  The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a pa rty claiming a violation of a provision of a WTO Agreement must assert 
and prove its claim.32 Therefore, as the complaining party in this proceeding, Russia bears the 
burden of demonstrating that the challenged aspects of the measures at issue are inconsist ent 
with the Anti -Dumping Agreement and the GATT 1994. The Appellate Body has stated that a 
complaining party will satisfy its burden when it establishes a prima facie  case, namely a case 
which, in the absence of effective refutation by the defending party , requires a panel, as a matter 
of law, to rule in favour of the complaining party.33 Finally, it is generally for each party asserting a 
fact to provide proof thereof.34 
7.2  Substantive and procedural rules  under Article  11 of the Anti -Dumping Agreement  
applica ble to  interim and expiry reviews  
7.7.  Article  11.2 of the Anti -Dumping Agreement applies to interim reviews whereas Article  11.3 
of this Agreement applies to expiry reviews. Several WTO panels have taken the view that these 
two Articles  operationalize the gene ral principle in Article  11.1 of the Anti -Dumping Agreement 
that an anti-dumping duty remain in force for as long as, and to the extent necessary to , 
counteract dumping which is causing injury.35 Thus, according to these panels, Article  11.1 does 
not impose  independent obligations on a Member.36 
7.8.  Article  11.2 provides for an examination of whether "continued imposition of the 
[anti-dumping] duty is necessary to offset dumping", "whether the injury would be likely to 
continue or recur if the duty were removed o r varied", "or both". If as a result of a review under 
Article  11.2, the investigating authorit ies determine that the imposition of the anti -dumping duty is 
no longer warranted, the duty shall be terminated immediately. Article  11.3 requires termination 
of the anti -dumping duty no longer than five years from the date of its imposition unless the 
authorit ies determine, in a review, that expiry of this duty would be "likely to lead to continuation 
or recurrence of dumping and injury". The Appellate Body has c oncluded, based on its 
understanding of the words "review" and "determine" in Article  11.3, that in making a 
likelihood -of-dumping or likelihood -of-injury determination investigating authorities  are obliged to 
act with an "appropriate degree of diligence" in order to arrive at a "reasoned conclusion".37 
Article  11.2 uses the same two words, and we consider  that the same standard applies under this 
provision as well.38 
7.9.  With respect to procedural rules, Article  11.4 of the Anti -Dumping Agreement states that the  
provisions of Article  6 of this Agreement regarding evidence and procedure, which include 
Articles  6.2, 6.8, and 6.9  of this Agreement , would apply to Article  11 reviews.39 Article  12.3 of the 
Anti-Dumping Agreement states that Article  12 of this Agreement, which sets out public notice 
obligations, shall apply mutatis mutandis  to Article  11 reviews.  
7.3  Findings on t erms of reference   
7.10.   In its request for a preliminary ruling, Ukraine ask ed us to find that Russia 's panel request 
was deficient and inconsistent with Article  6.2 of the DSU, insofar as it concern ed the claims set 
out in the following item numbers of this request:  
                                                
32 Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:1, p.  337. 
33 Appellate Body Report, EC – Hormones , paras.  98 and 104.  
34 Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:1, p.  337. 
35 Panel Reports, US – Shrimp II (Viet Nam) , para. 7.364; EC – Tube or Pipe Fittings , para. 7.113; and 
US – DRAMS , para. 6.41. 
36 Panel Reports, US – Shrimp II (Viet Nam) , para. 7.363; EC – Tube or Pipe Fittings , para. 7.113.  
37 Appellate Body Reports, US – Corrosion -Resistant Steel Sunset Review , para. 111; US – Oil Country 
Tubular Goods Sunset Reviews , paras.  283-284. 
38 See, e.g. Panel Report, US – Shrimp II (Viet Nam) , para. 7.367.  
39 See, e.g. Appellate Body Report, US – Corros ion-Resistant Steel Sunset Review , para. 152; Panel 
Report, US – Oil Country Tubular Goods Sunset Reviews ( Article  21.5 – Argentina) , fn 78. WT/DS493/R  
 
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  a. item number 1, concerning claims under Articles  5.8, 11.1, 11.2, and 11.3 of the 
Anti-Dumping Agreement40; 
b. item number 4, concerning claims under Article  6.8 and paragraphs 3, 5, and 6 of 
Annex  II to the Anti -Dumping Agreement41; and 
c. item number 17, concerning claims under Articles  11.1, 11.2, 11.3, 3.1, and 3.4 of the 
Anti-Dumping Agreement .42 
7.11.   Ukraine also conte nded that the 2008 original decision as amended  by the 2010  amendment 
of ICIT and the  2010 amendment  were outside the scope of the panel request.43 Ukraine asserted  
that the determinations made by the Ukrainian authorities in relation to the original investigation 
fall outside our terms of reference because in its panel request Russia only challenged the 
determinations made by these authorities in the interim and expiry reviews.  
7.12.   Further, Ukraine ask ed us to find that claims set out in the following ite m numbers of the 
panel request were not subject to consultations, and d id not reasonably evolve from the legal basis 
set out in the consultation request:  
a. item number 7, concerning claims under Articles  12.2 and 12.2.2 of the Anti -Dumping 
Agreement44; and  
b. item number 17, insofar as it concern ed the claims under  Articles  3.1 and 3.4 of the 
Anti-Dumping Agreement.45 
7.13.   Ukraine ask ed us to find, on this basis, that the aforementioned claims and measures fall 
outside our terms of reference.  We will first consider Ukraine 's submissions regarding the 
consistency of Russia 's panel request  with Article  6.2 of the DSU , and then examine its 
submissions regarding claims that it alleges are outside our terms of reference because they were 
outside the scope of the consultat ion request . 
7.3.1   Consistency of Russia 's panel request with Article  6.2 of the DSU  
7.3.1.1   Legal Standard  
7.14.   Pursuant to our terms of reference, set out in paragraph 1.4 above , we must examine the 
"matter" referred to the DSB by Russia in its panel  request. We recall that the terms of reference, 
and the panel request on which they are based, serve the due process objective of notifying 
respondents and potential thir d parties of the nature of the dispute and of the parameters of the 
case to which they must begin preparing a response.46 However, due process is not constitutive of, 
but rather follows from, the proper establishment of a panel 's jurisdiction, and therefore  a deficient 
panel request cannot be cured by a complainant 's subsequent written submissions.47 Article  6.2 of 
the DSU requires that a panel request:  
[I]ndicate  whether consultations were held, identify the specific measures at issue and 
provide a brief sum mary of the legal basis of the complaint sufficient to present the 
problem clearly.  
7.15.   Article  6.2 imposes two distinct requirements, which a panel  request needs to comply 
with: (a) identify the specific measures at issue ; and (b) provide a brief summary of t he legal 
                                                
40 See also Russia's  first written submission, para.  347(7).  
41 See also Russia's  first written submission, para.  347(9).  
42 See also Russia's  first written submission, para.  347(8).  
43 Ukraine's  first written submission, paras.  30-32. 
44 See also Russia's  first written submission, para.  347(12).  
45 Russia's  first written  submission, para.  347(8).  
46 Appellate Body Report, US – Continued Zeroing , para.  161. 
47 Appellate Body Report, China – Raw Materials , para.  233 (referring to Appellate Body Report, EC and 
certain member States – Large Civil Aircraft , para.  640).  WT/DS493/R  
 
- 18 - 
 
  basis of the complaint.48 These  two elements  i.e. the measures and the claims together comprise 
the matter referred to the DSB , which we are required to examine .49 Compliance with these 
Article  6.2 requirements must be demonstrated on the face of th e panel request.50 Further, 
compliance must be determined on the merits of each case, based on a consideration of the panel 
request as a whole, and in light of the attendant circumstances.51 
7.3.1.1.1   Specific measures at issue  
7.16.   Article  6.2 of the DSU requires identifi cation of the "specific" measures at issue. This 
specificity requirement means that the measures at issue must be identified with sufficient 
precision so that what is referred to adjudication by a panel may be discerned from the panel 
request.52 However, as  long as each measure is discernible from the panel request, a complainant 
is not required to identify each challenged measure independently from other measures in order to 
comply with this specificity requirement.53 
7.3.1.1.2   Brief summary  of the legal basis of the complaint  
7.17.   To be consistent with Article  6.2 of the DSU, a panel request must: (a) set out the legal 
basis of the complaint; and (b) provide a brief summary of that legal basis sufficient to present the 
problem clearly. The "legal basis" of the complaint pe rtains to the specific provision of the covered 
agreement that contains the obligation alleged to be violated.54 A "brief summary" of the legal 
basis of the complaint aims to succinctly explain how or why the measure at issue is considered by 
the complainant to be violating the WTO obligation in question, and the narrative part of the panel 
request serves this function.55 The brief summary must be sufficient to present the problem 
clearly.56 Moreover, the pa nel request must also plainly connect the challenged measure(s) with 
the provision(s) of the covered agreements claimed to have been infringed.57 
7.3.1.2   Measures Ukraine alleges were outside the scope of Russia 's panel request  
7.18.   Russia, as noted earlier, challenges certain aspects of the original anti -dumping measures 
imposed by the Ukrainian authorities on imports of ammonium nitrate from Russia. We recall in 
this regard that following the original investigation, ICIT imposed anti -dumping dut ies on 
ammonium nitrate exported to Ukraine  by certain Russian producers, including EuroChem. ICIT 
imposed these duties  through its decision of 21 May 2008 , which we refer to as the 2008 original 
decision.58 EuroChem challenged this decision, and specifically the dumping determina tions made 
for EuroChem, before the domestic courts in Ukraine. The Ukrainian courts r uled in favour of 
EuroChem.59 
                                                
48 See, e. g. Appellate Body Reports, Argentina – Import Measures , para.  5.39; and US – Carbon Steel , 
para. 125. 
49 See, e.g. Appellate Body Reports, Guatemala – Cement  I, paras.  69-76; US – Carbon Steel , 
para. 125; US – Continued Zeroing , para.  160; and EC and certai n member States – Large Civil Aircraft , 
para. 639. 
50 Appellate Body Report, US – Carbon Steel , para.  127. 
51 Appellate Body Report, US – Carbon Steel , para.  127. 
52 Appellate Body Report, US – Continued Zeroing , para.  168. See also ibid. para.  169. The Appel late 
Body stated that the identification of a measure needs be framed only with sufficient particularity to indicate 
the nature of the measure and the gist of what is at issue.  
53 Appellate Body Report, US – Continued Zeroing , para.  170. 
54 Appellate Body Report, EC – Selected Customs Matters , para. 130. 
55 Appellate Body Reports, EC – Selected Customs Matters , para. 130; US – Countervailing and 
Anti-Dumping Measures (China) , para.  4.26. 
56 Appellate Body Report, EC – Selected Customs Matters , para. 130. 
57 Appellate Body Report, China – Raw Materials , para.  220 (referring to Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para.  162).  
58 2008 original decision,  (Exhibit RUS -2b). 
59 See, e.g. Judgment of the Kiev District Admi nistrative Court No. 5/411 (6 February 2009)  (Judgment 
of the District Court 2009) , (Exhibit  RUS-6b). This judgment of the District Court was upheld by higher courts 
in Ukraine ( Judgment of the Kiev Appellate Administrative Court No. 2 -a-8850/08 (26 August  2009)  (Judgment 
of the Appellate Court 2009) , (Exhibit  RUS-5b); Judgment of the Higher Administrative Court of Ukraine 
No. K-42562/09 (20 May 2010)  (Judgment of the Higher Court) , (Exhibit RUS -7b)). WT/DS493/R  
 
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  7.19.   In pursuance of these court judgment s, ICIT issued the 2010 amendment, which  amend ed 
the 2008 original decision60 by reducing  the anti -dumping duty rate for EuroChem from 10.78% to 
0%.61 Ukraine contends that the 2008 original decision  as amended by the 2010 amendment of 
ICIT (2008 amended decision),  and the 2010 amendment were not identified in Russia 's panel 
request as the "specific meas ures at issue", and t herefore,  they fall outside our terms of reference.  
7.20.   Russia does not  challenge the 2008 original decision in and of itself.62 Instead, Russia 
challenge s the 2008 amended decision  as well  as the 2010 amendment .63 Thus, we must consider 
whether Russia 's panel request covered the: (a) 2008 amended decision ; and (b) the 2010 
amendment.64 
7.21.   Article  6.2 of the DSU requires, inter alia , that the panel request "identif [ies] the specific 
measures at issue". Measures not prop erly identified in the panel request fall outside a 
panel 's terms of reference65, and cannot be the subject of panel findings or recommendations. The 
measures at issue must be identified with sufficient precision so that what is referred to 
adjudication may  be discerned from the panel request.66 A panel request will satisfy this 
requirement where it identifies the measure  at issue with sufficient particularity so as to indicate 
the nature of the measure and the gist of what is at issue.67 Therefore, the issue that we have to 
consider  is whether the panel request, read as a whole, identified the 2008 amended decision and 
the 2010 amendment  with sufficient precision, in a manner consistent with Article  6.2 of the DSU.  
7.22.   We note that the opening paragraph of the pan el request refers to the measures subjected 
to WTO consultations between Ukraine and Russia. The opening paragraph states that Russia 
requested consultations with respect to:  
Ukraine 's measures imposing anti -dumping duties on imports of ammonium nitrate 
originating in the Russian Federation in connection with expiry and interim reviews. 
These measures are set forth in the Decision of the Intergovernmental Commission on 
International Trade No. AD -315/2014/4421 -06 of 1 July 2014 and Notice "On the 
changes and  extension of anti -dumping measures in respect of import to Ukraine of 
ammonium nitrate, origin from the Russian Federation", published on 8 July 2014 in 
"Uryadoviy Courier", No 120, including any and all annexes, notices, communications 
and reports of the  Ministry of Economic Development and Trade of Ukraine and any 
amendments thereof.[*]68 
 [*fn original]2 The definitive anti -dumping measures were imposed through the Decision of the 
Intergovernmental Commission on International Trade No. AD -176/2008/143 -47 of 
21 May 2008 "On the Application of the Definitive Anti -Dumping Measures on Import 
into Ukraine of Ammonium Nitrate Originating in the Russian Federation", as amended 
by the Decision No. AD -245/2010/4403 -47 of 25 October 2010 . The expiry review was 
initiated pursuant to the Decision of the Intergovernmental Commission on In ternational Trade 
No. AD-294/2013/4423 -06 of 24 May 2013. According to this Decision, the anti -dumping duties 
on import of ammonium nitrate originating in the Russian Federation were t o remain in force 
pending the outcome of the review. The interim review was initiated pursuant to the Decision of 
the Intergovernmental Commission on International Trade No. AD -296/2013/4423 -06 of 
2 July 2013. As a result of the simultaneously conducted ex piry and interim reviews, the 
definitive anti -dumping duty rates on imports of ammonium nitrate from the Russian Federation, 
that were initially imposed by the Decision No. AD -176/2008/143 -47 of 21 May 2008, were 
increased and extended for the duration of five years by the Decision of the Intergovernmental 
Commission on Intern ational Trade No.  AD-315/2014/4421 -06 of 1 July 2014, which came into 
force on 8 July 2014.  
                                                
60 2010 amendment , (Exhibit RUS -8b). 
61 2010 amendment , (Exhibit RUS -8b). 
62 See, e.g. Russia's  opening statement at the second meeting of the Panel, para.  153; response to 
Panel question No. 24, para.  57. 
63 Russia's  opening statement at the second meeting of the Panel, para.  153; response to Panel 
question No. 24, para.  57. 
64 As Russia does not independently challenge the 2008 original decision, we do not find it necessary to 
rule on whether the 2008 original decision falls within our terms of reference.  
65 Appellate Body Reports, Dominican Republic – Import and  Sale of Cigarettes , para.  120; EC and 
certain member States – Large Civil Aircraft , para.  790. 
66 Appellate Body Report, US – Continued Zeroing , para. 168. 
67 Appellate Body Report, US – Continued Zeroing , para. 169. 
68 Emphasis added; certain fns  omitted.  WT/DS493/R  
 
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  7.23.   Then, item number 1 of the panel request states:  
[Russia] considers that the measures at iss ue are inconsistent with 
Ukraine 's obligations under the following provisions of the Anti -Dumping Agreement 
and the GATT:  
1. Articles  5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement, because Ukraine 
failed to exclude a certain Russian exporter whose dumping margin was de minimis  
from the anti -dumping measures  [*] and because Ukraine subjected this exporter to 
expiry and interim reviews  [.]69 
[*fn original]3 The following decisions of Ukrainian authorities determined that in the original 
investigation a dumping margin of JSC MHK EuroChem was de minimis : the Decision of the 
District Administrative Court of the City of Kiev of 6 February 2009 No 5/411, the Deci sion of the 
Kiev Appellate Administrative Court of 26 August 2009 No. 2 -а-8850/08 and the Decision of the 
Higher Administrative Court of Ukraine of 20 May 2010 No. К -42562/09 and No. К -42568/09, the 
Decision of the Intergovernmental Commission on Internati onal Trade 
No. AD-245/2010/4403 -47 of 25 October 2010 "On reversal of Decision of the 
Intergovernmental Commission on International Trade No. AD -176/2008/143 -47 of 
21 May 2008 "On the Application of the Definitive Anti -Dumping Measures on Import 
into Ukrai ne of Ammonium Nitrate Originating in the Russian Federation" in respect of 
JSC MHK EuroChem ". 
7.24.   The part of footnote 2 marked in bold above refers to the 2008 amended decision. Item 
number 1  of the panel request  states that Russia claims violations under Articles  5.8, 11.1, 11.2, 
and 11.3 because of the alleged failure of the Ukrainian authorities to exclude a certain Russian 
exporter from the "anti -dumping measures". The reference to the "anti -dumping measures" here is 
followed by footnote 3, which refers  to the 2010 amendment, and notes that it  amended the 
2008 original decision.  Thus, the references  to the 2008 amended decision and the 2010 
amendment  in footnotes 2 and 3  show that Russia took issue, in its panel request, with the alleged 
failure to exclu de the Russian exporter from the 2008  amended  decision. Thus, in our view, 
Russia 's panel request  was sufficiently precise to identify the measures, i.e.  2008 amended 
decision , and the 2010 amendment, which were being referred for adjudication.  
7.25.   Ukraine argues that  these references were not sufficient to identify these measures  as the 
specific measures at issue  because : 
a. the phrase "in connection with the expiry and interim reviews" in the opening paragraph 
of the panel request restricted the scope of Russ ia's challenge to the underlying 
reviews70; and  
b. measures  could not have been  identified in footnotes 2 and 3 of the panel request, 
because  footnotes do not "ha [ve] the value, or the substance, to determine the terms of 
reference of the Panel".71 
7.26.    With respec t to Ukraine 's first argument, the opening paragraph of the panel request 
cannot be read in isolation from other parts of the panel request, including item number 1 of this 
request, as a panel request needs to be read as a whole. We already noted in paragr aph 7.24 
above that footnote 2 of the panel request and the reference to "anti -dumping measures" in item 
number 1 of the panel request covered both the 2008 amended decision, and the 2010 
amendment. Therefore, we disagree with Ukraine that  the phrase "in connection with the expiry 
and interim reviews" in the opening paragraph of the panel request restricted the scope of 
Russia 's challenge to the under lying reviews.   
7.27.   With respect to the second argument, we note that nothing  in Article  6.2 of the DSU 
specifically prohibits the identification of the specific measures in the footnotes of a panel request. 
Therefore, we are not persuaded by Ukraine 's argumen t that the measures identified in a footnote 
of the panel request fall outside our terms of reference . We also not e that the Appellate Body in 
US – Countervailing and Anti -Dumping Measures (China)  found that "footnotes are part of the text 
                                                
69 Emphasis added.  
70 Ukraine's  opening statement at the first meeting of the Panel, para.  12. 
71 Ukraine's  opening statement at the first meeting of the Panel, para.  19. WT/DS493/R  
 
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  of a panel request, and may be relevant to the identification of the measure at issue or the 
presentation of the legal basis of the complaint".72 
7.28.   Based on the foregoing, we find that the 2008 amended decision and the 2010 amendment 
were identified as specific measures  at issue in the panel request, and thus do not fall outside our 
terms of reference.  
7.3.1.3   Claims that Ukraine alleges were not presented in Russia 's panel request in 
conformity with Article  6.2 of the DSU  
7.29.   Ukraine argues that item numbers 1, 4 , and 17 of the pan el request do not meet the 
requirement under Article  6.2 of the DSU  as the claims in these item numbers were not set out in 
sufficient detail in this request . We understand Ukraine 's arguments to be based on the view that 
Russia failed to provide in each o f these item numbers a brief summary of the legal basis of the 
complaint that was sufficient to present the problem clearly. Hence, in Ukraine 's view, the claims  
presented in these item numbers, and set out in paragraph 7.10 above, fall outside our terms of 
reference.  
7.3.1.3.1   Claims  presented in item number 1 of Russia 's panel request  
7.30.   Ukraine argues that item number 1 of the panel request, which concerns Russia 's claims 
under Articles  5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement, is inconsistent with 
Article  6.2 of the DSU as it does not clearly state which of the multiple obligations in these 
provisions the claims relate to.73 The question before us therefore  is whether Russia 's panel 
request sets out these claims with adequate clarity, and specifically whether it provides a "brief 
summary" of these claims which  is sufficient to present the problem clearly. We recall that the  
brief summary would be sufficient to present the problem clearly when, as stated in 
paragraph  7.17 above , it succinctly explain s how or why the measure at issue is considered by the 
complainant to be violating the WTO obligation in question . Moreover, the panel request must  
plainly connect  the challenged measure(s) with the provision(s) of the covered agreements 
claimed to have been infringed.  
7.31.   Item number 1 of the panel request states in this regard:  
[Russia]  considers that the measures at issue are inconsistent with 
Ukraine 's obligations u nder the following provisions of the Anti -Dumping Agreement 
and the GATT:  
1. Articles  5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement, because  Ukraine 
failed to exclude a certain Russian exporter whose dumping margin was de minimis  
from the anti -dumping measures [*] and because  Ukraine subjected this exporter to 
expiry and interim reviews [.]74 
7.32.   The word "because" is used twice in item number  1. This  suggests that in this item number, 
Russia  challenge d two aspects of the measures  at issue : first, that Ukraine failed to exclude a 
certain Russian exporter whose dumping margin was de minimis from the "anti -dumping 
measures" ; second, that Ukraine  subjected this exporter to expiry and interim reviews.  
7.33.   Regarding the first aspect, in the narrative part of the panel request, Russia claimed  that 
Ukraine failed to exclude a certain Russian exporter  whose dumping margin was de minimis  from 
the "anti -dumping measures". The reference to anti-dumping measures, a s stated in 
paragraph  7.24 above , is followed by footnote 3, which refers to the 2010 amendment and notes 
that it amended the 2008 original decision . These are the determinations made in the original 
investigation phase . Footnote 3 also identifies the  court decisions as well as the 2010 amendment 
as the decisions of the Ukrainian authorities pursuant to which they allegedly determined a de 
minimis  dumping margin  for EuroChem in the original investigation. This suggests, as noted 
above, that the fi rst aspect of item number 1 concerns Ukraine 's failure to exclude a Russian 
                                                
72 Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.39; see also 
Panel Report, Indonesia – Import Licensing Regimes , preliminary ruling of the panel, para.  3.15. 
73 Ukraine's  first written submission, para.  43; second written submission, para.  13. 
74 Emphasis added; fn  omitted.  WT/DS493/R  
 
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  exporter from the scope of the original anti -dumping investigation phase. The second sentence of 
Article  5.8 states that "[t]here shall be immediate termination [of an investigation] in cases where 
the authorities determine that the margin of dumping is de minimis ". In claiming in item number 1 
that Ukraine failed to exclude a ce rtain Russia exporter from the anti -dumping measures whose 
dumping margin was de minimis  Russia relies on th is text of th e second sentence of Article  5.8. 
The narrative part of the request does make it clear that this first aspect is concerned with 
Ukraine 's failure to exclude an exporter with a de minimis  dumping margin from the original 
investigation phase, which in Russia 's view was contrary to the requirements under the second 
sentence of Article  5.8. 
7.34.   Regarding the second aspect, the narrative part in item number 1 identifies the issue as 
Ukraine 's subjection of an exporter to an interim and expiry review, when it should have excluded 
this exporter from the "anti -dumping mea sures", i.e. determinations made in the original 
investigation phase.  Russia  invokes Articles  5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping 
Agreement in this regard. All these Articles  could be potentially relevant to the issue identified by 
Russia.  The second sentence of Article  5.8, as stated above, requires the "immediate terminatio n" 
of the investigation in respect of an exporter with a de minimis  margin of dumping. Article  11.2 
sets out obligations concerning interim reviews, while Article  11.3 sets out obligations concerning 
expiry reviews. Specifically, Article  11.2 provides that  the authorities shall review the "need for the 
continued imposition of the [anti -dumping] duty". Article  11.3 provides that an authority shall 
determine whether "the expiry of the duty" would be likely to lead to continuation or recurrence of 
dumping and injury. Articles  11.2 and 11.3 have been understood in past cases to operationalize 
the general  principle set out in Article  11.1, which provides that an "anti -dumping duty shall 
remain in force only as long as and to the extent necessary to counteract dum ping which is 
causing injury".  Therefore, the narrative part of the panel request, coupled with the references to 
Articles  5.8, 11.1, 11.2 , and 11.3, makes it sufficiently clear that Russia intended to challenge 
under these provisions  Ukraine 's decision to subject an exporter to the interim and expiry reviews 
when it should have terminated the investigation against it.  
7.35.   Based on the foregoing, we find that item number 1 of Russia 's panel request  was 
consistent with Article  6.2 of the DSU  as it pro vided a brief summary of the legal basis which was 
sufficient to present the problem clearly . Thus, we find that the claims presented in this item 
number are within our terms of reference.  
7.3.1.3.2   Claims presented in item number 4 of Russia 's panel request  
7.36.   Ukraine argues that item number 4 of the panel request, in which Russia claims that 
Ukraine violated Article  6.8 and paragraphs 3, 5 , and 6 of Annex II of the 
Anti-Dumping  Agreement, is inconsistent with Article  6.2 of the DSU as it does not indicate which  
aspects of the investigation were in violation of these provisions.75 Ukraine contends  that it was 
"completely blindsided" by Russia 's arguments in its first written submission that took issue with 
MEDT of Ukraine 's decision to reject the gas prices set ou t in the records of the investigated 
Russian producers, and replace it with the average price of gas exported from Russia at the 
German border.76 
7.37.   Russia 's claims under Article  6.8 and paragraphs 3, 5 , and 6 of Annex II of the 
Anti-Dumping Agreement are presented in item number 4 of the panel request, which states:  
[Russia] considers that the measures at issue are inconsistent with 
Ukraine 's obligations under the following provisions of the Anti -Dumping Agreement 
and the GATT:  
4. Article  6.8 and Annex II,  in particular paragraphs 3, 5 and 6, of the Anti -Dumping 
Agreement, because:  
(i) Ukraine failed to take into account all information  pertaining to the determination 
of the dumping margins  which was verifiable, supplied in a timely fashion and 
appropriate ly submitted so that it could be used in the investigation without undue 
difficulties;  
                                                
75 Ukraine's  first written submission, para.  44; second written submission, para.  13. 
76 Ukraine's  first written submission, para.  44. WT/DS493/R  
 
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  (ii) Ukraine failed to inform the Russian exporters and producers of the reasons why 
the supplied information and evidence were not accepted;  
(iii) Ukraine failed to g ive the Russian exporters and producers an opportunity to 
provide further explanations within a reasonable period of time [.]77 
7.38.   We note that Russia 's panel request identified  the relevant legal provision s that it invoked, 
namely, Article  6.8 and paragraphs 3 , 5, and 6 of Annex II of the Anti -Dumping Agreement. 
Ukraine 's argument that Russia simply referred to the legal provisions at issue in its panel request, 
and did not indicate in any detail what aspects of the investigation were conducted in violation of 
these provisions, takes issue with the degree of clarity with wh ich Russia presented its claims. 
Thus, the issue before us is whether Russia 's panel request, insofar as this item number is 
concerned, provided a brief summary of the legal basis that was sufficient to present the problem 
clearly.  
7.39.   We consider that the ita licized part of the quoted extract in item number 4(i) of  
Russia 's panel request , set out in paragraph 7.37 above,  makes it clear that Russia took issue with 
the Ukrainian authorities ' alleged failure to take into account all information  pertaining to the 
determination of dumping. This includes information furnished by these producers with respect to 
their cost of production, including the gas prices  that they paid, which was rejected by MEDT of 
Ukraine.78 Thus, contrary to Ukraine 's argument, the panel reques t, and specifically item 
number  4(i), does identify the aspect of the investigation that Russia took issue with, namely, the 
Ukrainian authorities ' alleged failure to take into account all information pertaining to dumping 
determinations.  
7.40.   Item number s 4(ii) and (iii) have to be understood in this context. The panel request could 
have been clearer if Russia were to additionally explain tha t it took issue with the rejection of 
certain information pertaining to constructed normal value, or that it took issue with the rejection 
of gas prices paid by the investigated Russian producers. However, we consider it to be sufficient ly 
clear to meet th e obligations under Article  6.2 of the DSU to  provide a "brief summary" that was 
sufficient to clearly present the "problem", i.e. MEDT  of Ukraine 's alleged failure to take into 
account all information pertaining to its dumping determinations.  Therefore, t his request covers  
claims regarding the alleged use of facts available in constructing the normal value by rejecting 
the gas prices reported by the investigated Russian producers in their records.  
7.41.   Based on the foregoing, we find that item number 4 of Russi a's panel request sets out a 
brief summary of the legal basis that is sufficient to present the problem clearly. Thus, we find the 
claims presented in this item number to be within our terms of reference.  
7.3.1.3.3   Claims presented in item number 17 of Russia 's pane l request  
7.42.   Ukraine argues that item number 17 of the panel request does not clearly state which of the 
multiple obligations in Articles  11.1, 11.2, 11.3, 3.1, and 3.4 of the Anti -Dumping Agreement its 
claims relate to.79 The issue before us is  whether Russia 's panel request , insofar as the claims 
presented in item number 17 of the panel request are concerned,  provides a brief summary of the 
legal basis sufficient to present the problem clearly . We must address this question based on a 
review of  the panel requ est as a whole.  
7.43.   In terms of the structure of the panel request, item numbers 14, 15, and 16 precede item 
number 17, and state:  
[Russia] considers the measures at issue are inconsistent with Ukraine 's obligations 
under the following provisions of the Anti -Dumping Agreement and the GATT:  
… 
                                                
77 Emphasis added.  
78 Ukraine notes that these gas prices were the only information pertaining to the dumping 
determinations t hat were rejected by MEDT of Ukraine. (Ukraine's  response to Panel question No. 29, 
para. 97). 
79 Ukraine's  first written submission, para.  43. WT/DS493/R  
 
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  14. Articles  3.1 and 3.2 of the Anti -Dumping Agreement because 
Ukraine 's determination on injury was not based on positive evidence and did not 
involve an objective examination of the volume of the allegedly dumped imports and 
the effect of those imports on prices in the domestic market for like products.  
15. Articles  3.1 and 3.4 of the Anti -Dumping Agreement because Ukraine failed to 
base findings on injury on positive evidence and to conduct an objective examination 
of all  relevant factors and indices having a bearing on the state of the domestic 
industry.  
16. Articles  3.1 and 3.5 of the Anti -Dumping Agreement because Ukraine fail ed to 
conduct an objective examination of factors other than the allegedly dumped imports 
and a ttributed the alleged injury to the allegedly dumped imports.  
7.44.   Each of these item numbers set out the relevant provisions of Article  3 that Russia alleges 
the Ukrainian authorities  infringed through the actions or omissions identified therein . In our view, 
item number 17 needs to be read in  conjunction with item numbers 14, 15, and 16. Item number 
14, which refers to Articles  3.1 and 3.2, and item number 15, which refers to Articles  3.1 and 3.4, 
set out the aspects of the alleged injury analysis  made by MEDT  of Ukraine,  that Russia took issue 
with, namely: (a)  the considerations regarding the volume of allegedly dumped imports and the 
effect of those imports on domestic like product prices; and (b) the examination of the state of the 
domestic industry. Paragraph 16 refers to causation -related issues under Article  3.5. These are the 
aspects of the relevant measures that Russia took issue with  in its panel request .80 
7.45.   Item number 17 immediately follows item numbers 14, 15, and 16 , and states  that the 
measure s were inconsistent with Ukraine 's obligations under : 
17. Articles  11.1, 11.2 and 11.3 of the Anti -Dumping Agreement because Ukraine 
determined and relied on injury which was not established in accordance with 
Articles  3.1, 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement.  
7.46.   Item number 17 refers to the provisions at issue, namely Articles  11.1, 11.2 , and 11.3 . It 
does not specifically identify the textual obligations under these provisions that Russia  invokes in 
its claims. However, considering item number 17 immediately follows item numbers 14, 15, and 
16, cross -refers to the Article  3 injury provisions discussed in these item numbers, and states that 
the violations under Articles  11.1, 11.2, and 11.3 occurred because Ukraine "determined and relied 
on injury "81 not established in accordance with these Article  3 injury provisions, it is clear that 
Russia was invoking the injury related provisions of Articles  11.2 and 11.3. In particular, 
Articles  11.2 and 11.3, while worded differently, both refer to the likeliho od of continuation or 
recurrence of injury, and these cross references, along with the reference to "injury " in item 
number 17 make it clear that it is this aspect of Articles  11.2 and 11.3 that Russia sought to 
challenge. Articles  11.2 and 11.3 operationa lize the general principle  under Article  11.1, and thus a 
failure to follow these provisions could lead to a failure to ensure that anti -dumping duty remain s 
in force only as long as and to the extent necessary to counteract dumping which is causing injury . 
Thus, when  read as a whole, the panel request plainly  connect s the relevant aspects of the 
measures with the legal basis of its complaint, and succinctly explains  how or why Russia 
considers Ukraine to have acted inconsistently with these provisions.  
7.47.   Based on the foregoing, we find  that item number 17 of Russia 's panel request sets out a 
brief summary of the legal basis that is sufficient to present the problem clearly.  Thus, to the 
extent Russia 's claims in item number 17 of the panel request are based o n the premise that the 
Ukrainian authorities  acted inconsistently with Articles  11.1, 11.2 , and 11.3 because they 
determined and relied on injury not established in accordance with Articles  3.1, 3.2, 3.4 , and 3.5, 
this request is not inconsistent with Article  6.2 of the DSU.  
                                                
80 However,  Russia does not pursue any causation -related claims in its first written submission.  
81 Emphasis added.  WT/DS493/R  
 
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  7.3.1.4   Overall conclusion  
7.48.   Based on the foregoing, we find that the claims presented in the following item numbers fall 
within our terms of reference:  
a. item number 1 of the panel request with respect to the claims specified under 
Articles  5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement;  
b. item number 4 of the panel request with respect to claims under Article  6.8 and 
paragraphs 3, 5 , and 6 of Annex II of the Anti -Dumping Agreement; and  
c. item number 17 of the panel request with respect to  claims under Articles  11.1, 11.2 , 
and 11.3 of the Anti -Dumping Agreement insofar as they are based on the view that  the 
Ukrainian authorities determined and relied on injury which was not established in 
accordance with Articles  3.1, 3.2, 3.4 , and 3.5 of t he Anti -Dumping Agreement.  
7.3.2   Claims that Ukraine alleges were outside  the scope of the consultation request  
7.3.2.1   Legal standard  
7.49.   Article  4.4 of the DSU provides that a consultation request shall be "submitted in writing 
and shall give the reasons for the request , including identification of the measures at issue and an 
indication of the legal basis for the complaint ". The issue before us concerns the indication of the 
legal basis of the complaint in Russia 's consultation request. The language of Article  4.4 in thi s 
regard  has been understood to impose a less stringent standard than Article  6.2 of the DSU, where 
a mere "indication" of the legal basis would not suffice.82 
7.50.   The Appellate Body has clarified in this regard  that a claim specified in the panel request will 
not necessarily fall outside a panel 's terms of reference because they are not specified in the 
consultation request.83 In particular, there is no need for a precise and exact identity between a 
consultation request and a panel request.84 The rationale is th at consultations may lead to 
reformulation of the complaint that takes into account new information such that additional 
provisions of the covered agreements become relevant.85 The panel request may thus refer to 
additional provisions  that are not invoked i n the consultation request . 
7.51.   However, the legal basis or claims set out in the panel request still need to reasonably 
evolve from the legal basis that formed the subject of consultations.86 The panel request must thus 
not change the essence of the measures a nd the legal basis set out in the consultation request.87 
In examining the sufficiency of the request for consultations, a panel should examine the 
consultation request, and not consider what happened in the consultations.88 
7.3.2.2   Whether Russia 's "public notice" claims under Articles  12.2 and 12.2.2 fall 
outside our terms of reference in light of its consultation request  
7.52.   In item number 7 of its panel request, Russia stated:  
[Russia] considers that the measures at issue are inconsistent with 
Ukraine 's obligations under the following provisions of the Anti -Dumping Agreement 
and the GATT:  
…  
                                                
82 Panel Report, EC – Fasteners (China) , para.  7.206.  
83 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  138. 
84 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  137 (referring to Appellate 
Body Report, Brazil – Aircraft, para.  132).  
85 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  138. 
86 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  138. 
87 Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice , paras.  137-138; Brazil – Aircraft , 
para. 132. 
88 Appellate Body Report, US – Upland Cotton , para.  287. WT/DS493/R  
 
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  7. Articles  12.2 and 12.2.2 of the Anti -Dumping Agreement, because Ukraine failed to 
provide in sufficient detail in the Decision of the Intergovernmental Commission on 
Internati onal Trade No. AD -315/2014/4421 -06 of 1 July 2014, as referred to in Notice 
"On the changes and extension of anti -dumping measures in respect of import to 
Ukraine of ammonium nitrate, origin from the Russian Federation", and in the 
Communication of the Min istry of Economic Development and Trade of Ukraine 
No. 4421-10/21367 -07 of 25 June 2014 the findings and conclusions reached on all 
issues of fact and law it considered in making its preliminary and final determinations 
and failed to provide all relevant i nformation and reasons, which have led to the 
imposition of the measure. Ukraine did not provide the calculations used to determine 
the dumping margins in the final determination and the data it relied upon in order to 
make the calculations.  
7.53.   Russia 's  consultation request  does not refer  either to Articles  12.2 and 12.2.2 or the 
subject matter governed under Article  12, such as the adequacy of the public notice issued by an 
investigating authority.  However, Russia contends that its claims under Articles  12.2/12.2.2  in the 
panel request  naturally evolved from the legal basis set out in item number 10 of the consultation 
request, which deals with its claims under Article  6.9 of the Anti -Dumping Agreement . In item 
number 10, Russia stated:  
The measures at issue appear to be inconsistent with Ukraine 's WTO obligations, in 
particular, under the following provisions of the Anti -Dumping Agreement and the 
GATT 1994:  
… 
10. Article  6.9 of the Anti -Dumping Agreement because Ukraine failed to adequately 
disclose the essential facts under consideration which form the basis for the decision 
to impose antidumping measures, including the essential facts underlying the 
determinations of the existence of dumping and the calculation of the margins of 
dumping, the determinati on of injury, and the casual link. Ukraine failed to provide 
sufficient time for all interested parties to review and response to the essential facts 
under consideration in order to defend their interests.  
7.54.   Russia asserts  that both Article  6.9 and Articles  12.2/12.2.2 conceptually relate to the 
obligation to disclose information underlying an investigating authority 's decision .89 Further,  Russia 
notes that the issuance of a public notice within the meaning of Articles  12.2/12.2.2 is an event 
that follows the disclosure of essential facts, and asserts that a failure to "provide sufficient 
details" in the public notice, as required under Articles  12.2/12.2.2 is a logical consequence of, and 
closely connected to, the failure to disclose essential facts.90 The ques tion before us is whether 
Russia 's claims  in the panel request under Articles  12.2 and 12.2.2 reasonably evolve d from the 
legal basis of the consultation request, including  its claims under Article  6.9 of the Anti -Dumping 
Agreement  set out in item number 10 of that request , or whether it changed its essence . 
7.55.   We recall that the Appellate Body in China – GOES  as well as  Russia – Commercial Vehicles  
distinguished between the obligations under Article  12.2.2 and Article  6.9 of the Anti -Dumping 
Agreement, by noting that Article  12.2.2 governs the disclosure of matters of fact and law and 
reasons at the conclusion of the anti -dumping investigations, while Article  6.9 requires the 
disclosure of "facts" in the course of the investigation its elf.91 We consider that  these provisions 
are distinct in the following  important  ways92: 
a. they govern different aspects of the investigation process  as Article  6.9 applies before a 
final determination is made, while Articles  12.2 and 12.2.2 apply once that 
determination is made;  
                                                
89 Russia's  comments on Ukraine's  preliminary ruling request, para.  125. 
90 Russia's  comments on Ukraine's  preliminary ruling request, paras.  123 and 125.  
91 Appellate  Body Reports, China – GOES , para.  240; Russia – Commercial Vehicles , para. 5.177 . 
92 Thus, while both Article  6.9 and Articles  12.2/12.2.2 could be characterized as transparency 
obligations, such characterization is not dispositive of the issues before us.  WT/DS493/R  
 
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  b. Article  6.9 requires disclosure to interested parties, whereas Articles  12.2 and 12.2.2 
require notice to the "public" , which is broader than interested parties93; and  
c. the scope  and legal standard under  these provisions are different,  with Article  6.9 in 
certain cases requiring disclosure of facts that need not be disclosed in a public notice 
pursuant to Articles  12.2 and 12.2.2.94 
7.56.   Taking into account the se differences  between Article  6.9 and Articles  12.2/12.2.2 , we do 
not consider tha t Russia 's public notice claims under Articles  12.2 and 12.2.2 could be said to have 
reasonably evolved from its claims under Article  6.9 in item number 10 of the consultation 
request.  Moreover, the factual basis of Russia 's claims under Article  6.9 and Articles  12.2/12.2.2 is 
not identical . In particular, Russia challenges ICIT 's 2014 extension decision as part of its 
Articles  12.2/12.2.2 claims, but this document is not  a disclosure document, and hence not  
relevant to its Article  6.9 claims.95 Further, a s Russia contends, item number 7 of the panel 
request covers claims under Articles  12.2/12.2.2 challenging the Ukrainian authorities ' alleged 
failure to disclose in sufficient detail the data underlying its  injury margin calculation s.96 However, 
Russia does  not make any claim under Article  6.9 regarding the disclosure of the data underlying  
the injury margins. In these circumstances, we do not consider that Russia 's claims under 
Articles  12.2/12.2.2 reasonably evolved from its claims under Article  6.9. 
7.57.   We no te that Russia also contends that in describing the measures in the consultation 
request, it challenged "all annexes, notices and reports" of MEDT of Ukraine.97 Russia states that 
the reference to "notices" in the plural in its consultation request cover s the "public notice" of the 
final determination.98 It is not entirely clear to us whether Russia  refers to this description of the 
measures in the consultation request in support of a view that its public notice claims under 
Articles  12.2/12.2.2 evolved from its consultation request. If so, we do not consider that such a 
vague reference to "notices" in the description of the measures at issue could have indicated that 
Russia intended to  raise public notice claims under Articles  12.2 an d 12.2.2.  
7.58.   Based on the foregoing, we find that Russia 's claims  in the panel request  under Articles  12.2 
and 12.2.2 of the Anti -Dumping Agreement fall outside our terms of reference because they did 
not reasonably evolve from the legal basis set out in its consultation request.99 
7.3.2.3   Whether Russia 's "claims" under Articles  3.1 and 3.4 fall outside our terms of 
reference in light of its consultation request  
7.59.   In its request for a preliminary ruling, Ukraine contended that Russia 's claims under 
Articles  3.1 and 3.4 of the Anti -Dumping Agreement were outside our terms of reference because 
they were not mentioned in the consultation request, and their addition in the panel request 
                                                
93 The panels in China – HP-SSST (Japan)  / China – HP-SSST (EU)  stated that the object of Article  6.9 is 
to provide interested parties with sufficient factual information to defend their interests during the 
investigation. By contrast, the object of Articl e 12.2.2 is to ensure that the investigating authorities'  reasons 
for concluding as it did can be discerned and understood by the public. ( Panel Reports, China – HP-SSST 
(Japan)  / China – HP-SSST (EU) , para. 7.275)  
94 Panel Reports, China – HP-SSST (Japan)  / China – HP-SSST (EU) , paras.  7.274 -7.275.  
95 Russia's  first written submission, para.  328. 
96 Russia's  second written submission, paras.  724-727 and 730.  
97 Russia's  comments on Ukraine's  preliminary ruling request, para.  126. 
98 Russia's  comments on Ukraine 's preliminary ruling request, para.  127. 
99 We note that a similar decision was made by the panel in EC – Fasteners (China) . In that case, the 
panel examined whether a claim under Article  6.9 regarding the disclosure of the EU authorities'  dumping 
determinations in an anti -dumping investigation on fasteners was within its terms of reference. The claim was 
made in the panel request, but there was no reference to Article  6.9 in the consultation request, or a narrative 
description indicating that China  might intend to raise a claim under Article  6.9 in this context.  (Panel Report, 
EC – Fasteners (China) , para.  7.506).  China, while acknowledging that it did not invoke Article  6.9 in the 
consultation request, noted that in the context of presenting its cl aims under Articles  6.2 and 6.4 of the 
Anti-Dumping Agreement it had referred to the EU authorities'  failure to provide opportunity to the interested 
parties to see all relevant information, including information relating to dumping margin calculations.  (Panel 
Report, EC – Fasteners (China) , para.  7.503; China's  consultation request in EC – Fasteners (China) , 
para. 2(xiv)). Noting the differences in the nature of obligations set forth in Articles  6.2 and 6.4, and that set 
out in Article  6.9, the panel concl uded that China's  claims under Article  6.9 could not have reasonably evolved 
from these claims under Articles  6.2 and 6.4.  (Panel Report, EC – Fasteners (China) , para.  7.508).  WT/DS493/R  
 
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  broadened  the scope of this dispute.100 In response to Russia 's clarification that it is not making 
independent claims under Articles  3.1 and 3.4, and not requesting independent findings in this 
regard, Ukraine acknowledge d that its request had become moot.101 
7.60.   Based on the foregoing, we  find Ukraine 's request for a ruling that Russia 's "claims " under 
Articles  3.1 and 3.4  in item number 17 of Russia 's panel request  fall outside our terms of reference  
to be moot , and do not make any findings in this regard.  
7.3.2.4   Overall conclusion  
7.61.   Based on the foregoing, we find that the claims presented under Article s 12.2 and 12.2.2 of 
the Anti -Dumping Agreement in item number 7 of the panel request fall outside our terms of 
reference because they did not reasonably evolve from the legal basis set out in its consultation 
request. We do not make any findings on whethe r Russia 's "claims" presented under Articles  3.1 
and 3.4  of the Anti -Dumping Agreement  in item number 17 of the panel request  fall outside  our 
terms of reference.  
7.4  Dumping  and likelihood -of-dumping determinations  
7.62.   Russia contends that MEDT of Ukraine 's dumping determinations in the underlying reviews 
were inconsistent with Articles  2.1, 2.2, 2.2.1, 2.2.1.1, and 2.4 of the Anti -Dumping Agreement.102 
Russia submits that in addition to violating these provisions of Article  2, MEDT of Ukraine acted 
inconsisten tly with Articles  11.1, 11.2, and 11.3 of the Anti -Dumping Agreement because it relied 
on these Article  2-inconsistent dumping determinations to make its likelihood -of-dumping 
determination.103 Russia asserts that MEDT of Ukraine also acted inconsistently wi th Article  11.1 of 
the Anti -Dumping Agreement because in its view this provision does not permit the continued 
imposition of anti -dumping duty if no dumping exists.104 Russia argues that if MEDT of Ukraine had 
properly calculated the dumping margin in the un derlying reviews, no dumping would have been 
found to exist, and no anti -dumping duties could have been imposed.105 Ukraine asks us to dismiss 
all of Russia 's claims.  
7.63.   In making our findings, we first examine Russia 's claims under Articles  2.2.1.1 and 2.2 (co st 
adjustment claims), then its claims under Articles  2.2.1, 2.1, and 2.4, and finally those under 
Articles  11.1, 11.2, and 11.3.  
                                                
100 Ukraine's  first written submission, paras.  66 and 70.  
101 Ukraine's  response to Panel question No. 51(a), para.  21. 
102 There is no dispute between the parties that Article  2 of the Anti -Dumping Agreement applies in the 
context of the underlying reviews, and that we can make findings under the relevant provisions of Article  2. We 
recall  in this regard that in US – Corrosion -Resistant Steel Sunset Review  the Appellate Body stated that should 
investigating authorities choose to rely upon dumping margin calculations in making their 
likelihood -of-dumping determination in an expiry review, th ese margins must be calculated consistently with 
Article  2.4 of the Anti -Dumping Agreement. If they are not consistent with Article  2.4, this " could give rise to 
an inconsistency not only with Article  2.4, but also with Article  11.3" of the Anti -Dumping Ag reement.  
(Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  127 (emphasis added)). We 
understand this statement of the Appellate Body to suggest that if dumping margins are calculated 
inconsistently with Article  2 obligations in th e context of a review, there could be independent violations under 
the relevant provisions of Article  2 of the Anti -Dumping Agreement, in addition to any violation under 
Article  11.2 or Article  11.3. We note that in EU – Footwear (China)  the panel adopted a different approach. The 
EU authorities in that case had calculated dumping margins in an expiry review, and relied on those margins to 
make their likelihood -of-dumping determination. The panel took the view that Article  2 is not directly applicable 
to a determination under Article  11.3, and thus it would review the likelihood -of-dumping determination in 
order to consider whether the complainant had shown a violation under Article  11.3 of the Anti -Dumping 
Agreement, and not in order to make findings as to whether those determinations were inconsistent with 
Article  2. (Panel Report, EU – Footwear (China) , para.  7.157). In this case, however, we see no reason why we 
should not make findings under Article  2. We find it relevant to note that the dumping margins  that MEDT of 
Ukraine calculated in the underlying reviews formed the basis of revisions in the anti -dumping duty rate 
imposed on the investigated Russian producers, and these margins were not used purely for the purposes of 
making a likelihood -of-dumping determination under Articles  11.2 and 11.3.  
103 Russia's  first written submission, paras.  147 and 151; second written submission, para.  408. 
104 Russia's  second written submission, para.  409. 
105 Russia's  second written submission, paras.  409-410. WT/DS493/R  
 
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  7.4.1   Cost adjustment claims under Articles  2.2.1.1 and 2.2 of the Anti -Dumping 
Agreement  
7.64.   Russia claims that:  
a. MEDT of Ukraine acted inconsistently with Articles  2.2.1.1 and 2.2 because in calculating 
the cost of production of the investigated Russian producers, as part of its dumping 
determinations, it rejected  the price of gas that they paid, and reported in their records 
(reported ga s cost).106 
b. MEDT of Ukraine acted inconsistently with Articles  2.2 and 2.2.1.1 because it replaced  
the reported gas cost with gas prices outside Russia, specifically the price of gas 
exported from Russia to the German border, adjusted for transportation expe nses 
(surrogate price of gas).107 
7.4.1.1   Legal standard  
7.65.   Article  2.2.1.1 of the Anti -Dumping Agreement, in relevant part, provides:  
For the purpose of paragraph  2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such 
records are in accordance with the generally accepted accounting principles of the 
exporting country and reasonably reflect the costs associated with the production and 
sale of the product under consideration.  
7.66.   "[P]aragraph  2" in Article  2.2.1.1 refers to Article  2.2 of the Anti -Dumping Agreement, 
which states that:  
When there are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular ma rket 
situation or the low volume of the sales in the domestic market of the exporting 
country, such sales do not permit a proper comparison, the margin of dumping shall 
be determined by comparison with a comparable price of the like product when 
exported t o an appropriate third country, provided that this price is representative, or 
with the cost of production in the country of origin  plus a reasonable amount for 
administrative, selling and general costs and for profits.108 
7.67.   The first sentence of Article  2.2.1.1 states  that costs shall "normally" be calculated on the 
basis of the records kept by the exporter or producer under investigation, provided that such 
records are: (a) in accordance with the GAAP of the exporting country (first condition); and 
(b) reasonably reflect the costs associated with the production and sale of the product under 
consideration (second condition).  
7.68.   Even t hough the question whether the  use of the word "normally" in the opening sentence 
permits investigating authorities  to reject t he record costs even when these two conditions are met 
has been alluded to in previous disputes, neither a panel nor the Appellate Body has made findings 
on this issue. In EU – Biodiesel (Argentina) , for instance, noting that the investigating authority 
relied explicitly on the second condition of Article  2.2.1.1 of the Anti -Dumping Agreement in 
rejecting the record costs, the panel and the Appellate Body did not consider if the use of the word 
"normally" suggested there could be some basis other than these  two conditions to reject the 
record costs.109 
                                                
106 Russia's  first written submission, paras.  76-77. 
107 Russia's  first written submission, paras.  104-105. Ukraine submits that this price represented the 
price at the German border ( Waidhaus ), adjusted back to represent costs in Russia. (Ukraine 's first writt en 
submission, para. 186; opening statement at the first meeting of the Panel, paras.  105 and 109; and opening 
statement at the second meeting of the Panel, para.  147). 
108 Emphasis added; fns  omitted .  
109 Appellate Body Report, EU – Biodiesel (Argentina) , fn 120; Panel Report, EU – Biodiesel (Argentina) , 
para. 7.227.  WT/DS493/R  
 
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  7.69.   With respect to the second condition of Article  2.2.1.1 of the Anti -Dumping Agreement, the 
Appellate Body in EU – Biodiesel (Argentina) understood the focus of this condition to be on 
whether the records of the exporter or producer reasonably reflect their costs, rather than whether 
the costs incurred by them are reasonable.110 Thus, the second condition does not permit 
investigating authorities to reject the record costs because the costs do not pertain to the 
production and sale of the product under consideration in what the authorities consider to be 
"normal circumstances".111 Instead, the Appellate Body found that the records of an exporter or 
producer could be said to reasonably reflect the costs associated with the production and sale of 
the product under consideration, when the records suitably and sufficiently correspond to or 
reproduce those costs incurred by the investigated exporter or producer that have a genuine 
relationship with the production and sale of  the specific product under consideration.112 
7.70.   Both the panel and the Appellate Body in EU – Biodiesel (Argentina)  recognized that there 
may be circumstances where records that meet the first condition of Article  2.2.1.1, and are thus 
GAAP compliant, may not reasonably reflect the costs associated with the production and sale of 
the product under consideration. This may be the case, for instance, when transactions involving 
inputs purchased by the exporter or producer are not at arm 's length.113 
7.71.   Regarding Article  2.2, the issue in this dispute is whether the cost of production determined 
for the investigated Russian producers in the underlying reviews was the cost "in the country of 
origin". The Appellate Body has noted that Article  2.2 does not specify the  type of evidence or 
information that must be used to determine the cost of production in the country of origin, and 
does not preclude the possibility that the authority may have to use out -of-country evidence for 
this purpose.114 However, the reference to " in the country of origin" indicated to the Appellate 
Body that the information or evidence used by the authorities to determine the cost of production, 
must be apt to or capable of yielding the cost of production in the country of origin.115 This 
suggested t o the Appellate Body that information or evidence from outside the country of origin 
may need to be adapted in order to ensure that it is suitable to determine the cost of production in 
the country of origin.116 
7.4.1.2   MEDT of Ukraine 's cost assessments in the unde rlying reviews  
MEDT of Ukraine calculated the dumping margins for two of the investigated Russian 7.72.   
producers.117 In calculating these dumping margins, MEDT of Ukraine constructed the normal 
value of the investigated Russian producers on the basis of their cos t of production. However, in 
doing so, MEDT of Ukraine rejected their reported gas cost, and replaced it with the surrogate 
price of gas.  
MEDT of Ukraine stated in this regard that "the price for gas indicated in the accounting 7.73.   
records of [the] Russian pro ducers [could not] be used to analyse the production expenses 
incurred" by them.118 This is because their "records" did "not completely reflect the costs 
associated with production and sale of the [product under consideration], in particular, the gas 
expense s".119 The parties do not dispute  that the reported gas cost was the price actually paid by 
the investigated Russian producers for gas. MEDT of Ukraine concluded, however, that their 
records did not completely reflect the costs associated with the production  and sale of ammonium 
                                                
110 Appellate Body Report, EU – Biodiesel (Argentina) , paras.  6.20 and 6.37.  
111 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.30. In that case, the European Union had 
argued that the EU  authorities were permitted to consider whether costs in the records pertained to the 
product and sale of biodiesel in normal circumstances, i.e. in the absence of the alleged distortion caused by 
Argentina's  export tax system.  
112 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.26. 
113 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.33; Panel Report, EU – Biodiesel 
(Argentina) , para. 7.232 and fn 400. 
114 Appellate Body Report, EU – Biodiesel (Argentina) , paras.  6.70 and 6.73.  
115 Appellate B ody Report, EU – Biodiesel (Argentina) , para. 6.70. 
116 Appellate Body Report, EU – Biodiesel (Argentina) , paras.  6.70 and 6.73.  
117 Ukraine's  first written submission, para.  342; Investigation Report, (Exhibit RUS -10b), pp.  27-28. 
118 Investigation Report, (Exh ibit RUS -10b), p.  23. 
119 Investigation Report, (Exhibit RUS -10b), p.  23. WT/DS493/R  
 
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  nitrate because the gas price in those records was distorted.120 It reached this conclusion on the 
following grounds:  
a. the gas price in the domestic Russian market was not a market price, as the state 
controlled the price for gas121; 
b. due t o the existence of state control, the price of gas for the investigated Russian 
producers was much lower than the selling price of gas exported from Russia and the 
prices for producers in other countries, as well as the market price in certain countries 
such as the United States, Canada, Japan, or the European Union122;  
c. calculations that showed that JSC Gazprom (Gazprom), a Russian supplier of gas, was 
selling below its cost of production and that the profitability of this supplier  was due to 
export sales.123 
With respect to allegations of government regulation of the price of gas in Russia, Ukraine 7.74.   
acknowledges that it is the price of Gazprom, and not that of other independent domestic 
suppliers, that was subject to price control in Russia.124 However, Ukraine s ubmits that the prices 
set by other independent gas suppliers in Russia were aligned with the regulated price of Gazprom 
due to the dominant position of this supplier in the  domestic  Russian market.125 In addition, 
though Ukraine confirms that MEDT of Ukrain e did not ask the investigated Russian producers to 
provide information regarding their suppliers of gas126, it asserts that MEDT of Ukraine "logically 
inferred" that Gazprom was virtually the sole supplier of gas.127 However, Ukraine acknowledges 
that there w as no relationship between Gazprom and the investigated Russian producers128, and 
we note that MEDT of Ukraine did not make any finding that the reported gas cost was affected by 
any relationship between the investigated Russian producers and their gas suppl iers. 
Even t hough Russia questions Ukraine 's assertion that MEDT of Ukraine found Gazprom to 7.75.   
be virtually the sole supplier of gas, the substance of its claims is that the findings made by MEDT 
of Ukraine, as set out in the Investigation Report, did not constitute  an adequate basis to conclude 
that the records of the investigated Russian producers, insofar as the reported gas cost was 
concerned, did not reasonably reflect the costs associated with the production and sale of 
ammonium nitrate.129 To address R ussia's claims under Articles  2.2.1.1 and 2.2, therefore, we 
examine whether MEDT of Ukraine 's findings in the Investigation Report constituted  an adequate 
basis to meet the requirements under Articles  2.2.1.1 and 2.2 of the Anti -Dumping Agreement.  
7.4.1.3   Rejecti on of the reported gas cost  
Russia makes claims under Article  2.2.1.1 as well as Article  2.2 challenging MEDT of 7.76.   
Ukraine 's rejection of the reported gas cost, but its arguments focus on alleged violations of 
Article  2.2.1.1. In presenting its claim under Article 2.2, for example, Russia contends that MEDT 
of Ukraine constructed the normal value of the investigated Russian producers inconsistently with 
this provision because it used costs that were calculated inconsistently with Article  2.2.1.1.130 
                                                
120 Investigation Report, (Exhibit RUS -10b), p.  23. 
121 Investigation Report, (Exhibit RUS -10b), pp.  21-22. 
122 Investigation Report, (Exhibit RUS -10b), p.  22. 
123 Investigation Report, (Exhib it RUS -10b), pp.  22-23. Ukraine does not contend that Gazprom was an 
interested party in the underlying reviews, or participated in the review in any manner.  
124 See, e.g. Ukraine's  response to Panel question No. 10(a), para.  34. 
125 Ukraine's  response to Panel question No. 10(a), para.  35. 
126 Ukraine's  response to Panel question No. 9, para.  31. 
127 Ukraine's  response to Panel question No. 9, para.  31. 
128 Ukraine's  response to Panel question No. 8, para.  30. Ukraine asserts that MEDT of Ukraine "logically 
inferred" that Gazprom was virtually the sole supplier of gas to the investigated Russian producers, but states 
that though the relations between Gazprom and these producers were examined no demonstrable link could be 
established between  them. (Ukraine's  responses to Panel question No. 8, para.  17, and No. 8.2, para.  30). 
129 See, e.g. Russia's  first written submission, paras.  59-78. While questioning Ukraine's  argument that 
Gazprom was virtually the sole supplier of gas, Russia submits tha t even if MEDT of Ukraine had properly 
established the identity of the Russian gas suppliers it would still have violated Articles  2.2.1.1 and 2.2. 
(Russia's  second written submission, para.  102).  
130 Russia's  first written submission, para.  77. WT/DS493/R  
 
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  Therefore, we find it useful to first examine Russia 's claim under Article  2.2.1.1, and then turn to 
its claim under Article  2.2. 
7.77.   With respect to Article  2.2.1.1, Russia asserts that MEDT of Ukraine relied on the second 
condition of Article  2.2.1.1 to reject the repo rted gas cost, but it did not properly meet this 
condition.131 Further, Russia submits that because MEDT of Ukraine relied on this second condition 
in the underlying reviews, arguments that it advances in the panel proceedings on other legal 
bases, such as t he use of the word "normally" in the first sentence of Article  2.2.1.1, constitute 
ex post facto  rationalizations which we must reject.132 
7.78.   Ukraine relies on two alternative bases under Article  2.2.1.1 of the Anti -Dumping 
Agreement to justify MEDT of Ukraine 's rejection of the reported gas cost.133 First, Ukraine 
contends that the second condition of Article  2.2.1.1 permits rejection of costs reported in an 
exporter 's or producer 's records when the records do not reasonably reflect the costs associated 
with the production and sale of the product under consideration, here, ammonium nitrate.134 
Ukraine submits that the records of the investigated Russian producers, insofar as the reported 
gas cost was concerned, did not meet this second condition, and hence MEDT of U kraine was 
justified in rejecting it.135 Second, relying on the use of the word "normally" in the first sentence of 
Article  2.2.1.1, Ukraine asserts that MEDT of Ukraine was permitted to depart from the obligation 
to "normally" calculate the cost of producti on of the product under consideration on the basis of 
the exporter 's or producer 's records because the gas price in the domestic Russian market was 
fixed by the state, not of a commercial nature, and below the cost of production of gas.136 In 
particular, Ukraine notes that "normally" means "under normal or ordinary conditions; as a rule", 
and submits that the use of this word in the first sentence of Article  2.2.1.1 suggests that the use 
of an exporter 's or producer 's records to calculate i ts cost of production is not mandatory in every 
case where the two conditions of Article  2.2.1.1 are met.137 
7.4.1.3.1   Ukraine 's arguments based on the use of the word "normally"   
7.79.   We note that though Ukraine relies on the use of the word "normally" in Article  2.2.1.1, 
MEDT of Ukraine rejected the reported gas cost based on the italicized part of the following 
provision of Ukrainian law ( Article  7(9) of Ukraine 's anti-dumping law):  
For the purpose of this Article, costs shall be generally calculated on the basis  of 
accounting  reports of the party, a subject to an anti -dumping investigation, under 
condition such accounting  report is made according to the principles and norms of 
bookkeeping, generally accepted in the  country which is a subject of consideration and 
completely reflects the costs, related to the production and sale of products subject to 
consideration .138 
7.80.   While this italicized part is not identical, in terms of its wording, to the second condition of 
Article  2.2.1.1, Ukraine does not argue that the scope  and purpose of this part of Ukrainian law is 
different from the second condition of Article  2.2.1.1. Instead, Ukraine itself relies on the second 
condition of Article  2.2.1.1 to justify MEDT of Ukraine 's rejection of the reported gas cost. Further, 
MEDT o f Ukraine 's finding, as set out in paragraph 7.73 above, that the records  of the investigated 
Russian producers "[did] not completely reflect the c osts associated with production and sale of 
the Products, in particular, the gas expenses" shows that MEDT of Ukraine 's decision was based on 
perceived problems with the records of these producers insofar as they did not completely reflect 
                                                
131 Russia's  first written submission, para.  63; opening statement at the first meeting of the Panel, 
para. 59. 
132 Russia's  opening statement at the first meeting of the Panel, paras.  59-60. 
133 Ukraine does not dispute that the records of the investigated Russi an producers were 
GAAP -compliant, and thus complied with the first condition under Article  2.2.1.1.  
134 Ukraine's  first written submission, paras.  166-167. 
135 Ukraine's  first written submission, paras.  144-145. 
136 Ukraine's  first written submission, para.  162. 
137 Ukraine 's first written submission, para. 91. 
138 Law "On Protection of the National Producer from the Dumped Import" , N 330-XIV (with changes and 
amendments)  (22 December 1998), (Exhibit UKR -9) (emphasis added); Ukraine's  responses to Panel question 
No. 6(a), para. 12, and No. 6(b), para. 14; and Confidential version of the Investigation Report, 
(Exhibit  UKR-52b (BCI) ), p. 26. WT/DS493/R  
 
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  the gas expenses.139 MEDT of Ukraine did not conclude  in the Investigation Report , for example, 
that though the records were maintained consistently with the first and the second conditions of 
Article  2.2.1.1 or analogous provisions of domestic law, it would neverth eless reject this cost 
because of the perceived distortions in the domestic Russian market for gas. Therefore, we find 
that Ukraine 's arguments based on the use of the word "normally" in Article  2.2.1.1 constitute ex 
post facto  rationalizations, which we c annot consider.140 Instead, we will limit our review to the 
parties ' arguments on the second condition of Article  2.2.1.1.141 
7.4.1.3.2   Rejection of the reported gas cost pursuant to the second condition of 
Article  2.2.1.1  
7.81.   The specific question before us is whether MEDT  of Ukraine provided an adequate basis to 
reject the reported gas cost of the investigated Russian producers because their records did not 
meet the second condition of Article  2.2.1.1, i.e. they did not reasonably reflect the costs 
associated with the prod uction and sale of ammonium nitrate.  
7.82.   Russia argues  that while the second condition of Article  2.2.1.1 permits investigating 
authorities to examine whether the records of the exporter or producer reasonably  reflect their 
costs, it does not permit them to e xamine whether the reported costs are reasonable .142 However, 
in Russia 's view, in rejecting the reported gas cost of the investigated Russian producers based on 
a finding that the price of gas in Russia was regulated by the government, and lower than the 
export price of Russian gas, and prices in third countries, MEDT of Ukraine essentially examined 
the reasonableness of the reported gas cost.143 Thus, it acted inconsistently with the second 
condition of Article  2.2.1.1, as interpreted by the Appellate Body in  EU – Biodiesel (Argentina) . 
Further, noting that Ukraine relies on the panel 's and the Appellate Body 's statement in EU – 
Biodiesel (Argentina)  that the second condition permits investigating authorities to examine  
non-arm's length transactions  or other p ractices  which may affect the reliability of the record  
costs, Russia submits that MEDT of Ukraine did not reject the reported gas cost because of any 
alleged effect of "non-arm's length" transactions and "other practices" on the records of the 
investigated Russian producers.144 Therefore, in Russia 's view, Ukraine 's arguments based on the 
terms "non -arm's length" and "other practices" are ex post facto  rationalizations as MEDT of 
Ukraine did not itself make its determination by relying on these te rms. 
7.83.   In Ukraine 's view, "non-arm's length transactions" and "other practices" are "legal 
exceptions" carved out by the Appellate Body in EU – Biodiesel (Argentina)  under Article  2.2.1.1 . 
Ukraine argues that MEDT of Ukraine was justified in rejecting the re ported gas cost because such 
non-arm's length transactions and other practices affected the reliability of the reported gas cost. 
In support of its argument, Ukraine proposes definitions of the term "arm 's length", and presents 
its interpretation of the te rm "other practices".145 Based on these definitions and interpretation, 
                                                
139 Investigation Report, (Exhibit RUS -10b), p.  23. 
140 Pursuant to Article  17.5(ii) of the Anti -Dumping Agreement, a WTO panel should examine the matter 
based on "the facts made available in conformity with appropriate domestic procedures to the authorities of the 
importing  Member". This precludes us from considering ex post facto  rationalizations th at have no basis in the 
determinations made by the investigating authority. Moreover, the  manner in which Ukraine presents its 
argument on this issue further confirms that its submissions based on the use of the word "normally" 
constitute ex post facto rationalizations. In particular, instead of providing any proper basis in the underlying 
determination that could suggest that MEDT of Ukraine relied on the word "normally" in Article  2.2.1.1 to reject 
the reported gas cost, it states that there is "no [] need to get to the discussion of 'normally '", but should "the 
Panel deem it useful" it would "be pleased to discuss " why MEDT of Ukraine was justified, in light of the use of 
the word "normally" in Article  2.2.1.1, in rejecting the reported gas cost.  (Ukraine 's opening statement at the 
first meeting of the Panel, para. 103; second written submission, para. 49). 
141 We find our view to be consistent with that taken by the panel and the Appellate Body in EU – 
Biodiesel (Argentina) , where, having noted that the inve stigating authority relied on a provision analogous to 
the second condition of Article  2.2.1.1 under domestic law to reject the record costs, the panel and the 
Appellate Body did not examine whether the authority's  decision to reject such costs could be ju stified based 
on the word "normally" in the first sentence of Article  2.2.1.1. (Ap pellate Body Report, EU – Biodiesel 
(Argentina) , fn 120; Panel Report, EU – Biodiesel (Argentina) , para. 7.227 ). 
142 Russia 's first written submission, paras.  51 and 66 (referring to  Panel Report, EU – Biodiesel 
(Argentina) , fn 400; and Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.41).  
143 Russia's  first written submission, para.  67. 
144 Russia 's opening statement at the first meeting of the Panel, paras.  51-52; response to Panel  
question No. 7, paras.  12-13. 
145 Ukraine's  opening statement at the first meeting of the Panel, paras.  94-100. WT/DS493/R  
 
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  Ukraine submits that the reported gas cost was affected by non -arm's length transactions and 
other practices because the gas price in the domestic Russian market was distorted due to 
governmental regulation. Specifically, Ukraine contends that the reported gas cost was purchased 
at non -arm's length prices because the domestic prices were set pursuant to governmental decree, 
rather than profit maximization motivations of the gas suppliers,  and were below cost.146 Ukraine 
asserts that alternatively, if the transactions between the investigated Russian producers and their 
suppliers cannot be categorized as non -arm's length transactions, they qualify as "other practices" 
affecting the reliabilit y of the records.147 In response to Russia 's statement that 
Ukraine 's arguments based on these terms constitute ex post facto rationalizations , Ukraine 
submits that while MEDT of Ukraine may not have specifically mentioned in the Investigation 
Report that it  was rejecting the reported gas cost because of the effect of "non -arm's length" or 
"other practices" on the records of the investigated Russian producers, it did meet the substance 
of these two "exceptions".148 On this basis, Ukraine justifies MEDT of Ukrai ne's rejection of the 
reported gas cost.  
7.84.   Considering how heavily the parties, and especially Ukraine relies  on the observations of the 
panel in EU – Biodiesel (Argentina)  that investigating authorities are free pursuant to the second 
condition of Article  2.2.1.1 to " examine non -arms-length transactions or other practices which may 
affect the rel iability of the reported costs" , we find  it useful to commence our analysis by setting 
out the panel 's observations in their proper context. We recall that in makin g these observations in 
footnote 400 of its report, the panel in EU – Biodiesel (Argentina)  stated149: 
[W]e do not understand the phrase "reasonably reflect" to mean that whatever is 
recorded in the records of the producer or exporter must be automatically a ccepted. 
Nor does it mean, as argued by Argentina, that the words "reasonably reflect" are 
limited only to the "allocation" of costs. The investigating authorities are certainly free 
to examine the reliability and accuracy of the costs recorded in the reco rds of the 
producers/exporters, and thus, whether those records "reasonably reflect" such costs. 
In particular, the investigating authorities are free to examine whether all costs 
incurred are captured and none has been left out; they can examine whether t he 
actual costs incurred have been over or understated; and they can examine if the 
allocations made, for example for depreciation or amortization, are appropriate and in 
accordance with proper accounting standards. They are also free to examine 
non-arms-length transactions or other practices which may affect the reliability of the 
reported costs . But, in our view, the examination of the records that flows from the 
term "reasonably reflect" in Article  2.2.1.1 does not involve an examination of the 
"reasonab leness" of the reported costs themselves, when the actual costs recorded in 
the records of the producer or exporter are otherwise found, within acceptable limits, 
to be accurate and faithful.150 
7.85.   We consider these observations to reflect that panel 's view tha t in certain cases the records 
of an exporter or producer under investigation, while otherwise consistent with the first condition 
of Article  2.2.1.1, and thus GAAP -compliant, may not reasonably reflect the costs associated with 
the production and sale of the product under consideration .151 We recognize that investigating 
authorities are free to examine the reliability and accuracy of the costs in the records of the 
investigated exporter or producer.  However, we do not find it necessary to consider, in the 
abstract, whether the conditions in the domestic Russian market and the conditions of sale of gas 
                                                
146 Ukraine's  opening statement at the first meeting of the Panel, para.  98. 
147 Ukraine's  opening statement at the first meeting of  the Panel, para.  100. 
148 Ukraine's  second written submission, para.  36. 
149 The Appellate Body reproduced these observations in questioning the European Union's  reading of 
the panel report. (Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.41).  
150 Emphasis added.  
151 The Appellate Body in EU – Biodiesel (Argentina)  also discussed other situations where 
GAAP -compliant records may not reasonably reflect the cost s associated with production and sale of the 
product under consideration . For instance, it noted that although the product under consideration in a 
particular anti -dumping investigation may be limited to a single model, size, type , or specification of a product, 
the exporter or producer under investigation may export or produc e a number of different products . However, 
the records of such exporter or producer may include costs that concern multiple products without allocating 
them on a product -by-product or model -by-model basis. Thus, the manner in which an exporter or producer 
registers its costs may not reasonably reflect the costs associated with the production and sale of the product 
under consideration in a specific anti -dumping investigation. (Appellate Body Report, EU – Biodiesel 
(Argentina) , fn 127). WT/DS493/R  
 
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  met the definitions of "non -arm's length transactions" proposed by Uk raine, or its interpretation of 
what it refers to as an "other -practices" "exc eption".152 Instead, the question is whether the 
records of the exporter s or producers reasonably reflect the costs associated with production and 
sale of the product under conside ration. This is a question which needs to be assessed on a 
case-by-case basis, taking into account the evidence before the investigating authority, and the 
determination  that it makes.   
7.86.   In light of this, we  must examine whether MEDT of Ukraine provided an adequate basis in 
the Investigation Report to find that the records of the investigated Russian producers, insofar as 
the reported gas cost was concerned, did not reasonably reflect the costs associated wit h the 
production and sale of ammonium nitrate , as is provided for under the second condition of 
Article  2.2.1.1 . In making this examination, we will consider Ukraine 's argument that the reliability 
of the reported gas cost was affected due to the condition s that MEDT of Ukraine found to exist in 
the domestic Russian market  for gas. 
We note in this regard that Article  2.2.1.1 forms part of the disciplines set out in Article  2 of 7.87.   
the Anti -Dumping Agreement. Article  2 provides the relevant rules governing the "determination of 
dumping". Dumping arises from the pricing behavior of individual exporters or foreign 
producers.153 The first sentence of Article  2.2.1.1 is concerned with  establishing the costs for these 
individual exporters or producers under investigation.154 The Appellate Body has stated that the 
phrase "costs associated with the production and sale of the product under consideration" in the 
second condition of Article  2.2.1.1 means the costs incurred  by the producer or exporter  that are 
genuin ely related to the production and sale of the product under consideration.155 The phrase 
"reasonably reflect" in Article  2.2.1.1 refers to the "records" of the individual exporter or producer 
under investigation, while the term "reasonably" qualifies the rep roduction or correspondence of 
the costs in those records.156 To the extent the costs are genuinely related to the production and 
sale of the product under consideration in a particular anti -dumping investigation, there is no 
additional standard of reasonabl eness that applies  to "costs"  in the second condition under 
Article  2.2.1.1.157 
We set out in paragraph 7.73 above  the factual basis on which MEDT of Ukraine found that 7.88.   
the records of the investigated Russian producers did not meet the second condition of 
Article  2.2.1.1. We recall that MEDT of Ukraine found  that the gas price in the domestic Russia n 
market was not a market price as the state controlled this price , that this price was artificially 
lower than the export price of gas from Russia as well as the price of gas in other countries, and 
that it was below the cost of production.158 MEDT of Ukraine concluded on thi s factual basis that 
the records of the investigated Russian producers did not completely reflect the costs associated 
with the production and sale of ammonium nitrate, insofar as the reported gas cost was 
concerned. Thus, MEDT of Ukraine found that these records did not meet the second condition of 
Article  2.2.1.1.  
7.89.   We do not consider this factual basis to have been adequate for MEDT of Ukraine to  
conclude that the  records of the investigated Russian producers did not reasonably reflect the 
costs associated  with the production and sale of ammonium nitrate . MEDT of Ukraine  examined 
whether due to government regulation of gas price in Russia, the costs incurred by these 
producers were lower compared to prices in other countries, or export prices of gas from Ru ssia. 
This shows that MEDT of Ukraine 's enquiry was focused on whether the cost of gas incurred by 
these producers in the production and sale of ammonium nitrate was reasonable, or was the cost 
they would incur under what it considered to be normal circums tances, i.e. in the absence of the 
alleged distortions in the domestic Russian market  for gas. However, that is not the purpose of the 
enquiry under the second condition of Article  2.2.1.1 . This second condition  permits investigating 
authorities to examine  whether the records reasonably reflect the costs associated with the 
production and sale of the product under consideration . This is different from an examination on 
                                                
152 We do not consider that either the panel or the Appellate Body in EU – Biodiesel (Argentina)  "carved 
out" an open-ended "exception" for "non -arm's -length transactions or other practices" as Ukraine appears to 
suggest . (Ukraine's  opening statement at the first meeting of the  Panel, para.  91). 
153 Appellate Body Reports, US – Zeroing (Japan) , para.  111; US – Stainless Steel (Mexico) , para.  98. 
154 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.17. 
155 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.30. 
156 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.20. 
157 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.37. 
158 Investigation Report, (Exhibit RUS -10b), p p. 21-23; Ukraine 's second written submission, para. 31. WT/DS493/R  
 
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  whether  the costs contained in the records are not reasonable because , for instance, they are 
lower than those in other countries , which is what MEDT of Ukraine examined in the underlying 
reviews . 
7.90.   In addition, MEDT of Ukraine took the view in its Investigatio n Report that Gazprom sells  
gas in the domestic Russian market bel ow cost. However,  there is nothing in this report that shows 
that this affected the r eliability of the records of the investigated Russian producers , such that the 
records  did not reasonably reflect the cost s associated with production and sale of ammonium  
nitrate . In particular, we note  that MEDT of Ukraine did not find that  Gazprom was affiliated with 
these producers, and Ukraine has not pointed to anything in the Investigation Report that suggests 
that MEDT of Ukraine even considered who these producers ' suppliers wer e.159 Further, we note 
that Article  2.2.1.1 forms part of Article  2, which sets out the relevant rules regarding the 
determination of dumping. Article  2 is concerned with the pricing behaviour of individual exporters 
and producers. The exporter s and producers may source inputs  used to produce the product under 
consideration  from multiple unrelated suppliers. The prices paid by the producer to these unrelated  
suppliers would form part of the costs that it incurs to produce the product under consi deration. 
We do not consider that the investigated Russian producers ' own records could be said to be 
unreliable, or not reasonably reflect the costs associated with the production and sale of the 
product under investigation,  because its unrelated  suppliers ' prices are government regulated, 
lower than the prices prevailing in other countries, or allegedly priced below their cost of 
production.  In these circumstances, we do not consider that the factual findings relied upon by 
MEDT of Ukraine, and set out in paragraph 7.73 above , provided a sufficient basis for MEDT of 
Ukraine to conclude that the records of the investigated Russian producers d id not reasonably 
reflect the costs associated with the production and sale of ammonium nitrate.  
7.91.   Our conclusions in this regard are consistent with the legal findings and interpretation 
developed by the panel and the Appellate Body in EU – Biodiesel (Argen tina). We recall that in that 
case, the EU authorities had found that the domestic prices of the main input (soybeans and 
soybean oil) used by the biodiesel producers in Argentina were artificially lower than international 
prices due to distortions created  by Argentin a's export tax system, and consequently the costs of 
these inputs were not reasonably reflected in the records of the investigated Argentin ian 
producers.160 First, the panel, and then the Appellate Body, found that this was not a sufficient 
factual basis under the second condition of Article  2.2.1.1 to reject the reported cost of these 
inputs. We note Ukraine 's argument in this regard that the factual circumstances in EU – Biodiesel 
(Argentina)  and those before us are different, because in that ca se the investigating authority did 
not find any evidence of direct state intervention in regulating the costs of input and  the distortion 
was not appreciable, even though the Argentinian export tax system had a price depressing effect 
on input prices.161 However, nothing  in the panel or the Appellate Body report in EU – Biodiesel 
                                                
159 We note Russia's  argument that MEDT of Ukraine presumed that Gazprom was the only company 
that produced and supplied gas in Russia. (Russia's  second written submission, para.  111). Ukraine 
acknowledges that MEDT of Ukraine did not ask the investigated Rus sian producers the names of their gas 
suppliers. (See, e.g. Ukraine's  response to Panel question No. 9, para.  31). Instead, Ukraine contends that 
MEDT of Ukraine "logically inferred" that Gazprom was the main and virtually sole supplier of gas. However, it  
does not point to anything in MEDT of Ukraine's  own findings to support that view, and its argument is 
undermined by its own acknowledgment that EuroChem had other suppliers.  (Ukraine's  response to Panel 
question No. 8, fn  10). There is no reference to su ch suppliers of EuroChem in the Investigation Report, or any 
finding that the records of the investigated Russian producers, insofar as they reflected the prices paid to these 
suppliers, were unreliable. Further, while Ukraine contends that EuroChem did no t cooperate with MEDT of 
Ukraine in this regard, we note that it does not argue, and the Investigation Report does not show, that MEDT 
of Ukraine found EuroChem to be a non -cooperating exporter pursuant to the criteria in Article  6.8 and Annex 
II of the An ti-Dumping Agreement. (See, e.g. Ukraine's  opening statement at the second meeting of the Panel, 
paras.  63-64). In addition, while it contends that prices of suppliers other than Gazprom were affected by 
prices of Gazprom, which allegedly accounted for 56%  of Russian gas sales, there is, again, nothing in MEDT of 
Ukraine's  finding to support this view. (Ukraine's  response to Panel question No. 10(a), para.  35). Such 
arguments are therefore, ex post facto  rationalizations, and there is no correlation in MEDT of 
Ukraine's  findings between alleged below -cost sales by Gazprom and the reliability of the records of the 
investigated Russian producers.  
160 Panel Report, EU – Biodiesel (Argentina) , para. 7.221. The EU authorities  found that the export taxes 
on soybeans and soybean oil  depressed the domestic price of soybeans and soy bean oil to an artificially -low 
level which, as a consequence, affected the costs of the biodiesel producers.  Specifically, the EU author ities 
found that the difference between the international and domestic prices of soybeans and soybean oil was 
equivalent to export taxes on the product and the expenses involved in exporting them. (Panel Report, EU – 
Biodiesel (Argentina) , para.  7.181).  
161 Ukraine's  first written submission, paras.  116-118 and 138.  WT/DS493/R  
 
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  (Argentina)  suggest s that the economic level, and the direct or indirect nature of the regulation in 
question, were relevant to the panel 's or Appellate Body 's analysis of the second  condition under 
Article  2.2.1.1. Instead the legal findings and interpretation developed in that dispute are relevant 
to the facts before us.162 Therefore, we do not consider that MEDT of Ukraine had a proper basis 
under the second condition of Article  2.2.1.1 to reject the reported gas cost of the investigated 
Russian producers.163 
7.92.   Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with 
Article  2.2.1.1 of the Anti -Dumping Agreement because it did not provide an adequate basis under 
the second condition of Article  2.2.1.1 to reject the reported gas cost of the investigated Russian 
producers .164 In light of this finding under Article  2.2.1.1, we do not find it necessary to resolve 
Russia 's claim under Article  2.2 of the Anti -Dumping Agre ement. We therefore exercise judicial 
economy with respect to this claim.  
7.4.1.4   Replacement  of reported gas cost with surrogate price of gas  
7.93.   Russia makes claims under Articles  2.2 and 2.2.1.1 challenging MEDT of 
Ukraine 's calculation of the cost of production of the investigated Russian producers on the basis of 
the surrogate price of gas. Russia contends that MEDT of Ukraine acted inconsistently with 
Articles  2.2 and 2.2.1.1 because in using a surrogate price of gas that d id not represent the cost in 
Russia  it failed to calculate the cost of production in the "country of origin".165 Article  2.2 
specifically requires investigating authorities to calculate the cost of production in the country of 
origin. Russia 's claim raises t he question as to whether the surrogate price of gas used by MEDT of 
Ukraine reflected costs in the "country of origin", i.e. Russia. We thus find it useful to first examine 
Russia 's claim under Article  2.2 of the Anti -Dumping Agreement, and then turn to i ts claim under 
Article  2.2.1.1 of the Anti -Dumping Agreement.  
7.94.   We recall that the surrogate price of gas was the export price of Russian gas at the German 
border, adjusted for transportation expenses. Russia asserts that MEDT of Ukraine could not have 
used this surrogate price of gas to calculate the cost in the country of origin as it was a price 
charged outside Russia and was determined under market conditions different from those in 
                                                
162 Ukraine also distinguishes the panel and the Appellate Body Report in EU – Biodiesel (Argentina)  by 
contending that "governmental price -fixing" of the domestic Russian gas prices was WTO -inconsi stent, 
specifically invoking Article  XVII:1(b) and the second Ad Note to Article  VI:1 of the GATT 1994 in this regard. 
(Ukraine's  opening statement at the first meeting of the Panel, paras.  76-79). We do not find these arguments 
to be relevant to our analy sis, considering that our terms of reference require us to review MEDT of 
Ukraine's  determinations, and not Russia's  compliance with its own WTO obligations. Similarly, Ukraine argues 
that MEDT of Ukraine found that the gas prices were set inconsistently w ith Russia's  WTO commitments, as set 
out in its Working Party Report. (Ukraine's  opening statement at the second meeting of the Panel, paras.  36-37 
and 41). We note that while there is a discussion in the Investigation Report on statements and concerns 
raised by WTO Members about the domestic gas prices in Russia, the report does not as such identify any 
WTO-commitment that was violated by Russia. In any case, Ukraine does not contend that Russia's  Working 
Party Report or its Accession Protocol provides leg al justification for MEDT of Ukraine's  decision to reject the 
reported gas cost. To the extent Ukraine alleges that Russia failed to comply with its own WTO commitments, 
we note that such issues have to be resolved through the DSU. (Appellate Body Report, Canada – Continued 
Suspension , para.  371).  
163 Ukraine also relies, as context, on Articles  2.3 and 2.2.1 of the Anti -Dumping Agreement and the 
second Ad Note to Article  VI:1 of the GATT 1994 to advance the view that prices that are not of a "commercial 
nature" are unreliable. (Ukraine's  first written submission, paras.  151-152). We note that the provisions cited 
by Ukraine permit rejection of prices only in the specific circumstances set out therein. Those circumstances 
are not applicable here. Article  2.3, for example, permits construction of export prices where, inter alia , it 
appears to the authorities concerned that the export price is unreliable because of "association or a 
compensatory arrangement" between the exporter and the importer or a third party.  Article  2.2.1 permits 
investigating authorities to reject domestic sales as a basis for calculating normal value, only when the specific 
circumstances set out therein are met. The second Ad Note of Article  VI:1 applies only to certain types of 
non-market economies, specifically those economies in which the country has a complete or substantially 
complete monopoly on its trade and the State fixes all prices. (Appellate Body Report, EC – Fasteners (China) , 
fn 460). It is not alleged that Russia meets these c riteria.  
164 Our findings in this dispute are limited to the second condition of Article  2.2.1.1 of the Anti -Dumping 
Agreement, which we found was invoked by MEDT of Ukraine to reject the gas prices of the investigated 
Russian producers.  
165 Russia 's first written submission, para. 96; second written submission, para. 326; and opening 
statement at the second meeting with the Panel, para. 99.  WT/DS493/R  
 
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  Russia.166 In addition, Russia asserts that MEDT of Ukraine did not adapt t he surrogate price of gas 
to reflect the price of gas in Russia.167 Ukraine does not argue that the price of gas exported from 
Russia to the German border was in and of itself a price in the "country of origin", but contends 
that this price was adapted  to ensure that the resulting surrogate price of gas reflected the price in 
Russia.168 In particular, Ukraine argues that it adapted the price of gas exported from Russia to 
the German border by making an adjustment for transport expenses.169 
7.95.   The question before us is whether the surrogate price of gas used by MEDT of Ukraine in 
calculating the cost of production of the investigated Russian producers was the cost in the 
"country of origin", i.e. Russia. We note that the panel and the Appellate Body in EU – Biodiesel 
(Argentina)  addressed a similar claim under Article  2.2. 
7.96.   In that case,  having found that the domestic price of soybean used in the production of 
biodiesel w as artificially lower than international soybean prices due to distortions cr eated by 
Argentin a's export tax system, the EU authorities  replaced th is domestic price with the price that it 
considered Argentin ian producers would have paid in the absence of the distortion s created by this 
tax system.170 In particular, they replaced this  price with the average reference price of soybeans 
published by Argentin a's Ministry of Agriculture for export during the investigated period, 
free-on-board, minus fobbing cost.171 The question before that panel was whether this average 
reference price repr esented the cost of Argentin ian producers in the "country of origin". The panel 
found that it did not.  
7.97.   The panel noted that the EU authorities specifically selected this average reference price to 
remove the perceived distortions in the domestic price of s oybeans, and thus they selected this 
price precisely because it was not the cost of soybeans in Argentina.172 Moreover, the panel found 
it irrelevant that the average reference price was published by Argentina 's Ministry of Agriculture 
as this cost did not r epresent the cost of soybeans for domestic purchasers of soybean in 
Argentina.173 Accordingly, the panel concluded that the EU authorities acted inconsistently with 
Article  2.2 because this average reference price did not constitute the cost in the "country of 
origin".  
7.98.   On appeal, the European Union argued, inter alia , that the subtraction of the fobbing costs 
from the average reference price published by Argentin a's Ministry of Agriculture rendered the 
surrogate price for soybeans used by the EU authorities a  reasonable proxy for the undistorted 
price of soybeans in Argentina.174 The Appellate Body noted that other than pointing to the 
deduction of fobbing costs, the European Union had not asserted that the EU authorities adapted, 
or even considered adapting, th e information used in their calculation in order to ensure that it 
represented the cost of production in Argentina .175 Instead, like the panel, the Appellate Body 
found that the EU authorities specifically selected the surrogate price for soybeans to remove the 
perceived distortion in the cost of soybeans in Argentina.176 
7.99.   In the underlying reviews, MEDT of Ukraine concluded that the export price from Russia at 
the German border was representative, and could be used to calculate the cost of production 
because Ge rmany was the biggest consumer of Russian natural gas, and this price was revised 
according to market conditions in 2012.177 Ukraine does not argue in these proceedings that this 
export price was in and of itself the cost in the country of origin.178 Indeed, t he export price from 
Russia to Germany was not the cost of gas for the investigated Russian producers in Russia. 
Instead, Ukraine 's argument is that MEDT of Ukraine adapted this export price  to ensure that this 
                                                
166 Russia 's first written submission, para. 99. 
167 Russia 's second written submission, para. 343. 
168 Ukraine's  response to Panel question No. 12(c), para.  57. 
169 Ukraine's  response to Panel question No. 12(c), para.  57. 
170 Panel Report, EU – Biodiesel (Argentina) , para.  7.257.  
171 Panel Report, EU – Biodiesel (Argentina) , para.  7.257.  
172 Panel Report, EU – Biodiesel (Argen tina), para.  7.258.  
173 Panel Report, EU – Biodiesel (Argentina) , para.  7.259.  
174 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.79. 
175 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.81. 
176 Appellate Body Report, EU – Biodiesel (Argentina) , para. 6.81. 
177 Investigation Report, (Exhibit RUS -10b), p.  23. 
178 Ukraine 's response to Panel question No. 12(c), para. 57. WT/DS493/R  
 
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  price reflected the cost of gas in Russia.179 We recognize that investigating authorit ies may use 
out-of-country evidence to calculate the cost of production in the country of origin provided they 
adapt this evidence to reflect  the cost in the country of origin. However, except for an adjustment 
for transportation expenses, the record does not show  how MEDT of Ukraine adapted this export 
price to reflect the prices in Russia . We do not see any explanations in the Investigation Report as 
to why adjustments for such transportation expe nses were adequate  to adapt the out -of-country 
evidence , i.e. export price from Russia  at the German border , to reflect the cost of the investigated 
Russian producers in the country of origin. Instead, MEDT of Ukraine 's explanation suggests that it 
selecte d this price because the export price was an  out-of-country benchmark, and  that it  did not 
adapt this price to reflect costs in Russia . In these circumstances, we do not consider that the 
adjustment  for transportation expenses made by MEDT of Ukraine w as sufficient to adapt the 
export price from Russia to reflect the cost of gas in the country of origin, i.e. Russia.  We note that 
the panel and the Appellate Body in EU – Biodiesel (Argentina ) reached a similar conclusion under 
Article  2.2. In particular, as stated above, the panel and the Appellate Body found that 
adjustments for fobbing costs were not sufficient to adapt the average reference price of soybeans 
published by Argentin a's Ministry of Agriculture for export to prices in the "country of origin"  under 
Article  2.2.  
7.100.   We note in this regard Ukraine 's argument that it could not use gas price in the domestic 
market in Russia to calculate the cost of production of the investigated Russian producers because 
there was no undistorted domestic market for g as in Russia.180 Ukraine relies on the Appellate 
Body report in US – Softwood Lumber IV  in support of its arguments.181 Specifically, Ukraine relies 
on the Appellate Body 's finding under Article  14(d) of the Agreement on Subsidies and 
Countervailing Measures ( SCM Agreement)  that investigating authorities may use out -of-country 
benchmarks when private prices in a country are distorted due to the government 's predominant 
role in the market.182 Ukraine submits that the Appellate Body 's findings support the view that  the 
obligations of investigating authorit ies should not be interpreted in a manner that undermines the 
right of Members to countervail subsidies, or, as is allegedly the case here, counteract injurious 
dumping.183 
7.101.   We disagree with Ukraine 's argument that ME DT of Ukraine could not use the gas price in 
the domestic Russian market to calculate the cost of production of these producers in the 
underlying reviews. As noted above, we have found that MEDT of Ukraine did not provide a proper 
basis to reject the repor ted gas cost of the investigated Russian producers. We also consider  
Ukraine 's reliance on the Appellate  Body's finding under Article  14(d) of the SCM Agreement in 
US – Softwood Lumber IV  to be inapposite. We note that Article  14 of the SCM Agreement is titled 
"[c]alculation of the amount of a subsidy in terms of the benefit to the recipient". Article  14(d) is 
concerned with the assessment of the "benefit" granted to an exporter or producer due to 
governmental provision of goods and services. In interpret ing the text of Article  14(d), the 
Appellate Body stated that a government 's role in providing a financial contribution, in terms of 
provision of goods and services, may be so predominant that it effectively determines the price at 
which private suppliers sell the same or similar goods, thereby making the entire domestic market 
distorted.184 The Appellate Body considered that in these circumstances, the comparison of the 
price at which the government provides goods with the price at which private suppliers se ll these 
goods in the domestic market could indicate a benefit that was artificially low, or even zero, such 
that the full extent of the subsidy would not be captured, thereby undermining the rights of 
Members under the SCM  Agreement to countervail subsidi es.185 
7.102.   Article  2.2 of the Anti -Dumping Agreement concerns the calculation of the cost of 
production of an investigated producer  in its country of origin  to construct normal value , for the 
purpose of ultimately ascertaining whether this producer is dumping, a nd the dumping margin . 
Unlike Article  14(d), the purpose of Article  2.2 is not to ascertain the benefit conferred on such a 
producer by the government al provision of goods and services , and the extent of such benefit. 
Thus, the purpose of cost calculation under Article  2.2 of the Anti -Dumping Agreement, and 
benefit calculation under Article  14(d) of the SCM Agreement is different, and should not be 
                                                
179 Ukraine 's response to Panel question No. 12(c), para. 57. 
180 Ukraine 's opening statement at the first meeting of the Pan el, para. 105. 
181 Ukraine's  first written submission, paras.  176-179. 
182 Ukraine's  first written submission, para.  179. 
183 Ukraine 's first written submission, para. 183. 
184 Appellate Body Report, US – Softwood Lumber IV , paras.  93 and 101.  
185 Appellate Body Report, US – Softwood Lumber IV , para. 100. WT/DS493/R  
 
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  conflated. Considering the underlying review s concern a determination in an anti -dumping 
proceeding, rather th an an anti -subsidy proceeding, the question of ascertaining the benefit 
granted to a producer through the governmental provision of goods and services does not arise. 
Therefore , we disagree with Ukraine that the Appellate Body 's findings under Article  14(d) are 
relevant to our interpretation of Article  2.2 of the Anti -Dumping Agreement. We also do not 
consider that our findings undermine the rights of a Member to countervail subsidies in a manner 
consistent with the relevant provisions of the SCM  Agreement or the GATT 1994, as neither the 
SCM Agreement nor the subsidy -related aspects of the GATT 1994 are before us . 
7.103.   Based on the foregoing, we conclude that MEDT of Ukraine acted inconsistently with 
Article  2.2 of the Anti -Dumping Agreement because it failed to calculate the cost of production of 
the investigated Russian producers "in the country of origin". Having found that MEDT of Ukraine 
acted inconsistently with Article  2.2 of the Anti -Dumping Agreement, we do not find it necessary to 
resolve Russia 's claim under Article  2.2.1.1 of the Anti -Dumping Agreement  in this regard . 
Therefore, we exercise judicial economy with respect to this claim.  
7.4.2   Claims under Articles  2.2.1 and 2.1 of the Anti -Dumping Agreement regarding 
MEDT of Ukraine 's ordinary -course -of-trade test  
7.104.   Russia claims that MEDT of Ukraine acted inconsistently with Article  2.2.1 of the 
Anti-Dumping Agreement in finding that the investigated Russian producers ' domestic sales of 
ammonium nitrate were outside the ordi nary course of trade by reason of price because186: 
a. in conducting its ordinary -course -of-trade test under Article  2.2.1, MEDT of Ukraine used 
a cost of production that was calculated inconsistently with Article  2.2.1.1;  
b. it failed to analyse whether alleged b elow-cost domestic sales were made "within an 
extended period of time", "in substantial quantities" , or "at prices which [did] not 
provide for the recovery of all costs within a reasonable period of time", as is required 
under Article  2.2.1; and  
c. even if it  conducted this analysis, the use of costs that were calculated inconsistently 
with Article  2.2.1.1 infected the results of its ordinary -course -of-trade test.  
7.105.   Russia also claims that MEDT of Ukraine acted inconsistently with Article  2.1 of the 
Anti-Dumping  Agreement, because it should have determined the dumping margin of the 
investigated Russian producers by comparing their export price with their domestic sales price of 
ammonium nitrate.187 According to Russia, MEDT of Ukraine failed to do so because it con ducted 
an ordinary -course -of-trade test inconsistently with its obligations under Articles  2.2.1 and 
2.2.1.1.188 
7.106.   Ukraine asks us to dismiss Russia 's Article  2.2.1 claim, asserting that:  
a. even if we find that the costs of the investigated Russian producers we re calculated 
inconsistently with Article  2.2.1.1, we cannot on that basis find consequential violations 
under Article  2.2.1, as these two provisions contain different obligations and Russia has 
not demonstrated that the domestic sales of these producers would have been found to 
be in the ordinary course of trade if the reported gas cost was used to calculate the cost 
of production189; and  
b. contrary to Russia 's arguments, MEDT of Ukraine analysed whether alleged below -cost 
domestic sales were made "within an  extended period of time", "in substantial 
quantities" , or "at prices which do not provide for the recovery of all costs within a 
reasonable period of time".190 
                                                
186 Russia 's first written submission, paras.  118-120; second written submission, para. 353. 
187 Russia's  first written submission, paras.  140-141. 
188 Russia 's first written submission, paras.  139-141; second written submission, para. 405. 
189 Ukraine 's first written submission, para. 197; second written submission, paras.  65-66; and opening 
statement at the second meeting of the Panel, para.  168. 
190 Ukraine's  response to Panel question No. 14, para.  59; second written submission, paras.  62-63.  WT/DS493/R  
 
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  7.107.   Ukraine also asks us to dismiss Russia 's Article  2.1 claim, contending that this is a 
definitiona l provision that does not impose independent obligations.  
7.4.2.1   Legal standard  
7.108.   Article  2.2.1 of the Anti -Dumping Agreement states:  
Sales of the like product in the domestic market of the exporting country or sales to a 
third country at prices below per unit (fixed and variable) costs of production plus 
administrative, selling and general costs may be treated as not being in the ordinary 
course of trade by reason of price and may be disregarded in determining normal 
value only if the authorities[ *] determine t hat such sales are made within an extended 
period of time[ **] in substantial quantities[ ***] and are at prices which do not 
provide for the recovery of all costs within a reasonable period of time.  If prices which 
are below per unit costs at the time of sa le are above weighted average per unit costs 
for the period of investigation, such prices shall be considered to provide for recovery 
of costs within a reasonable period of time.191  
[*fn original]3 When in this Agreement the term "authorities" is used, it s hall be interpreted as 
meaning authorities at an appropriate senior level.  
[**fn original]4 The extended period of time should normally be one year but shall in no case be 
less than six months.  
[***fn original]5 Sales below per unit costs are made in subst antial quantities when the 
authorities establish that the weighted average selling price of the transactions under 
consideration for the determination of the normal value is below the weighted average per unit 
costs, or that the volume of sales below per u nit costs represents not less than 20 per cent of the 
volume sold in transactions under consideration for the determination of the normal value . 
7.109.   Article  2.2.1 describes a methodology for determining whether below -cost sales may be 
treated as not being made  in the ordinary course of trade.192 The first sentence of Article  2.2.1 
refers to the "[s]ales of the like product in the domestic market of the exporting country or sales 
to a third country at prices below per unit (fixed and variable) costs of production  plus 
administrative, selling and general costs".193 It states that "such sales", i.e. below -cost sales, may 
be treated as not being in the ordinary course of trade by reason of price, and disregarded in 
determining normal value, only if the requirements set out in Article  2.2.1 are met. The 
methodology under the first sentence of Article  2.2.1 involves two steps.194 
7.110.   First, the below -cost sales that may potentially be treated as not being in the ordinary 
course of trade by reason of price must be ascertained .195 This requires investigating authorities to 
identify sales that are made at prices below "per unit (fixed and variable) costs of production plus 
administrative, selling and general costs".  Second, the investigating authorit ies must determine 
whether such be low-cost sales display the following three specific characteristics, i.e. they are 
made : (a) within an extended period of time; ( b) in substantial quantities; and ( c) at prices which 
do not provide for the recovery of all costs within a reasonable period o f time.196 Only when the 
below -cost sales are found to exhibit all three of these characteristics, they can be treated as not 
being made in the ordinary course of trade by reason of price.197 Though these three specific 
characteristics show that investigating authorities may act inconsistently with Article  2.2.1 in 
different ways, Article  2.2.1 does not contain multiple and distinct obligations in this regard.198 
Instead, Article  2.2.1 sets out a single obligation whereby investigating authorit ies may disregard 
below-cost sales of the like product only  if it determines the below -cost sales display these three 
characteristics.199 
                                                
191 Emphasis added.  
192 Panel Report, EC – Salmon (Norway) , para.  7.231.  
193 Emphasis added.  
194 Panel Report, EC – Salmon (Norway) , para.  7.232.  
195 Panel Report, EC – Salmon (Norway) , para.  7.232.  
196 Panel Report, EC – Salmon (Norway) , para.  7.233.  
197 Panel Report, EC – Salmon (Norway) , para.  7.233.  
198 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.22. 
199 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.22. WT/DS493/R  
 
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  7.111.   Article  2.1 of the Anti -Dumping Agreement states:  
For the purpose of this Agreement, a product is to be considered as being dumped, 
i.e. introduced into the commerce of another country at less than its normal value, if 
the export price of the product exported from one country to another is less than the 
comparable price, in the ordinary course of trade, for the like product when destined 
for consumption in the exporting country.  
7.112.   The Appellate Body in US – Zeroing (Japan)  found Article  2.1 to be a definitional provision 
that does not impose independent obligations, stating that:  
Article  2.1 of the Anti -Dumping Agreement and Article  VI:1 of th e GATT 1994 are 
definitional provisions.  They set out a definition of "dumping" for the purposes of the 
Anti-Dumping Agreement and the GATT 1994. The definitions in Article  2.1 and 
Article  VI:1 are no doubt central to the interpretation of other provisions  of the 
Anti-Dumping Agreement , such as the obligations relating to, inter alia , the calculation 
of margins of dumping, volume of dumped imports, and levy of anti -dumping duties to 
counterac t injurious dumping. But, Article  2.1 and Article  VI:1, read in is olation, do 
not impose independent obligations.200 
7.4.2.2   Evaluation  
7.4.2.2.1   Claim under Article  2.2.1  
7.113.   We noted in paragraph s 7.109 -7.110  above  that the methodology under the first sentence 
of Article  2.2.1 involves two steps. We understand Ukraine to argue that MEDT of Ukraine 
conducted its ordinary -course-of-trade test in the underlying reviews on the basis of these two 
steps. First, MEDT of Ukraine found that the domestic selling prices of the investigated Russian 
producers were "lower than [the] reasonable per unit costs for its production (taking int o account 
the natural gas value adjustment) ".201 As the italicized part of MEDT of Ukraine 's finding shows, 
and Ukraine confirms, MEDT of Ukraine did not use the reported gas cost of the investigated 
Russian producers when ascertaining whether their domestic  sales were below cost.202 Second, 
Ukraine submits that MEDT of Ukraine assessed whether these below -cost sales met the three 
characteristics set out in the first sentence of Article  2.2.1, and found that:  
a. Considering this determination was made for the peri od of review, which was 12 months, 
below -cost sales were made over an extended period of time (i.e. the first 
characteristic).  
b. Below -cost sales were made in substantial quantities (i.e. the second characteristic) 
because the weighted average selling price  of the transactions under consideration for 
the determination of the normal value was " below weighted average per unit costs ".203  
c. Below -cost sales were at prices which did not provide for the recovery of all costs within 
a reasonable period of time (i.e. the third characteristic), because the weighted average 
selling price  was below the weighted average costs  during the period of review.204 
7.114.   Ukraine confirms that the weighted average costs used as part of this assessment were 
calculated on the basis of the surrogate price of gas, and not the reported gas cost of the 
investigated Russian producers.205 Thus, MEDT of Ukraine used the surrogate pric e of gas, rather 
than the reported gas cost, first, to identify the below -cost sales, and second, to assess whether 
the below -cost sales exhibited the characteristics set out in the first sentence of Article  2.2.1, 
specifically the second and the third cha racteristics. We have already found that MEDT of 
                                                
200 Appellate Body Report, US – Zeroing (Japan) , para.  140 (fn  omitted).  See also, Panel Report, EU – 
Footwear (China) , para.  7.260.  
201 Investigation Report, (Exhibit RUS -10b), pp.  25-26. (emphasis added)  
202 Ukraine's  response to Panel question No. 50, paras.  17-18. 
203 Ukraine's  response to Panel question No. 14, paras.  59, 61, and 63 (emphasis added); Investigation 
Report, (Exhibit RUS -10b), pp.  25-26.  
204 Ukraine's  responses to Panel question No. 14, paras.  59, 61, and 63, and No. 49, paras.  5-16. 
205 Ukraine's  response to Panel question No. 50, paras.  17-18. WT/DS493/R  
 
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  Ukraine 's rejection of the reported gas cost was inconsistent with Article  2.2.1.1 of the 
Anti-Dumping Agreement. Thus, the use of costs that were calculated inconsistently with 
Article  2.2.1.1 tainted MEDT of Ukraine 's ordinary -course -of-trade test.  
7.115.   Ukraine takes the view that a finding that MEDT of Ukraine calculated costs inconsistently 
with Article  2.2.1.1 cannot lead to a violation of Article  2.2.1. In this regard, Ukraine puts forth 
two arguments. First, Ukraine argues that cost calculations under Article  2.2.1.1 and the 
ordinary -course -of-trade test under Article  2.2.1 are separate and sequential obligations, and to 
find a consequential viola tion under Article  2.2.1 due to inconsistencies with Article  2.2.1.1 would 
"greatly diminish[]" the importance of this provision, and create systemic problems.206 Second, 
Ukraine asserts that Russia has not made a prima facie  case that if costs were not calc ulated on 
the basis of the methodology adopted by MEDT of Ukraine, the results of the 
ordinary -course -of-trade test under Article  2.2.1 would be different.207 We disagree with 
Ukraine 's arguments.  
7.116.   With respect to its first argument, we note that Article  2.2.1.1 applies to "[p]aragraph 2". 
The reference to "[p]aragraph 2" covers not just Article  2.2 but also Article  2.2.1. The panel in 
EC – Salmon (Norway) recognized that the rules for  calculating the costs used in a determination  
under Article  2.2.1 are found in Article  2.2.1.1.208 It would follow, in our view, that costs used in 
the ordinary -course -of-trade test under Article  2.2.1 must be consistent with Article  2.2.1.1. 
Further, if we were to accept Ukraine 's arguments, we would essentially be concluding that the 
investigating authority was free to disregard the specific rules under Article  2.2.1.1 when 
calculating the cost of production used for the purposes of the ordinary -course -of-trade test under 
Article  2.2.1. However, there is nothing in the text of  Article  2.2.1 or Article  2.2.1.1 to support 
such a view.  Such an interpretation is also likely to create systemic problems as in conducting their 
ordinary -course -of-trade test under Article  2.2.1 investigating authorities would be free to use a 
cost of pr oduction calculated inconsistently with Article  2.2.1.1, thereby frustrating the very 
purpose  of this test.209 
7.117.   As regards Ukraine 's second argument, we are not permitted to examine whether the 
results of MEDT of Ukraine 's ordinary -course -of-trade test would have been different if it had 
calculated the costs consistently with its obligations under Article  2.2.1.1 as such an examination 
would be outside our mandate, and would require us to conduct a de novo  review of the record 
evidence. Thus, Russia is not obligated to show that the results of MEDT of 
Ukraine 's ordinary -course -of-trade test would have been different if the reported gas cost was 
used. We note that  Ukraine 's argument is that the outcome of the ordinary -course -of-trade test 
would not have changed if MEDT of Ukraine had calculated the costs of the investigated Russian 
producers consistently with Article  2.2.1.1  and thus essentially argues that the violations under 
Article  2.2.1 constituted harmless error. We do not consider such an argument of harmless error to  
be relevant to our analysis.210 
7.118.   Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with 
Article  2.2.1 of the Anti -Dumping Agreement because in making its determinations under this 
provision it relied on co sts that were calculated inconsistently with Article  2.2.1.1 of the 
Anti-Dumping Agreement.  
                                                
206 Ukraine's  response to Panel question No. 15, paras.  67-70. 
207 Ukraine's  response to Panel question No. 15, paras.  71-72. 
208 Panel Report, EC – Salmon (Norway) , para.  7.252.  
209 Ukraine also makes a contextual ar gument under Article  2.2.2 of the Anti -Dumping Agreement, 
contending that if the use of costs calculated inconsistently with Article  2.2.1.1 in the ordinary -course -of-trade 
test could lead to a violation under Article  2.2.1, then any mistake in the determi nation of administrative, 
selling, and general costs or profits under Article  2.2.2 in the ordinary -course -of-trade test could also lead to a 
violation under Article  2.2.1. Such a result, in Ukraine's  view, will be "undesirable and de facto  absurd" 
because  it would not clarify what authorities should rectify under Article  2.2.1. (Ukraine's  response to Panel 
question No. 15, para.  70). We disagree. While we do not address a claim under Article  2.2.2 in this dispute, in 
our view, a violation under Article  2.2.1 due to an investigating authority's  failure to follow the specific rules 
set out in the Anti -Dumping Agreement would not be undesirable or absurd.  
210 See, e.g. Panel Reports, EC – Salmon (Norway) , fn 763; and US – Anti-Dumping Methodologies 
(China) , para. 7.92. These panels have taken a similar view with respect to parties'  arguments based on the 
concept of harmless error.  WT/DS493/R  
 
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  7.4.2.2.2   Claim under Article  2.1 of the Anti -Dumping Agreement  
7.119.   Russia asserts that if in calculating the cost of production, MEDT of Ukraine had used the 
reported gas cost o f the investigated Russian producers, instead of the surrogate price of gas, it 
would not have been able to conclude that the domestic sales of these producers were outside the 
ordinary course of trade by reason of price.211 Thus, it would not have had a pro per basis under 
Article  2.2 of the Anti -Dumping Agreement to disregard the domestic sales of the investigated 
Russian producers in calculating normal value, and would not have been able to construct the 
normal value.212 Therefore, in Russia 's view, MEDT of U kraine should have calculated the dumping 
margin s of these producers by comparing the export price with the comparable price of the like 
product destined for consumption in Russia, as provided in Article  2.1. Russia submits that MEDT 
of Ukraine acted incon sistently with Article  2.1 by failing to do so.213 With respect to the Appellate 
Body's finding in US – Zeroing (EC)  that Article  2.1 is a definitional provision, and read in isolation, 
does not impose independent obligations, Russia asserts that it strongly  disagrees with the 
approach set out in this finding.214 Russia argues that nothing in the text of Article  2.1 indicates 
that it does not contain an independent obligation.215 Ukraine argues that Article  2.1 is a 
definitional provision and does not impose obli gations in isolation.216 Further, Ukraine submits that 
Article  2.1 does not apply to the facts of the present case as there were no sales of ammonium 
nitrate in Russia in the ordinary course of trade.217 
7.120.   Article  2.1 stipulates that a product is to be considere d as being dumped i.e. introduced 
into the commerce of another country at less than its normal value, "if the export price of the 
product exported from one country to another is less than the comparable price, in the ordinary 
course of trade, for the like product when destined for consumption in the exporting country ". We 
share the Appellate Body 's view, set out in paragraph 7.112  above , that Article  2.1 is a definitional 
provision , which when read in isolation,  does not impose independent obligations.  
7.121.   We note that while Russia expresses strong disagreement with the Appellate Body 's view 
in this regard, it does not properly show how MEDT of Ukraine co uld be said to have acted 
inconsistently with this provision in the underlying reviews. In particular, Russia 's Article  2.1 claim 
is premised on its view that if MEDT of Ukraine had complied with its obligations under 
Articles  2.2.1.1 and 2. 2.1 in the mann er proposed by Russia, it would not have found any basis to 
conclude that the domestic sales of the investigated Russian producers were not in the ordinary 
course of trade by reason of price. However as we noted in paragraph 7.117  above, it is not  for us 
to conduct a de novo  review of the record evidence to ascertain what the results of MEDT of 
Ukraine 's ordinary -course -of-trade test under Article 2.2.1 would have been if the 
WTO-inconsistencies that we have found with respect to MEDT of Ukraine 's determination in this 
regard were removed.  Further, Russia 's claim is essentially based on a hypothesis that if MEDT of 
Ukraine conducted its dumping d eterminations in the manner proposed by Russia, it would not 
have any basis to construct the normal value, but would have used domestic sales instead. Even if 
one assumes that were true, Russia does not show  how that makes MEDT of Ukraine 's dumping 
determi nations in the underlying reviews inconsistent with Article  2.1 of the Anti -Dumping 
Agreement. In any case, our role is to resolve this dispute based on the determinations actually 
made by the investigating authority, and not on the basis of hypothetical s ituations.  
7.122.   Based on the foregoing, we find that Russia has not shown that MEDT of Ukraine acted 
inconsistently with Article  2.1 of the Anti -Dumping Agreement, and reject Russia 's claim.  
7.4.3   Fair comparison under Article  2.4 of the Anti -Dumping Agreement  
7.123.   Russia  contends that a comparison of the investigated  Russian  producers ' export price with 
a constructed normal value, which was inflated due to the replacement of the reported gas cost 
with the surrogate price of gas, was not "fair" within the meaning of the fi rst sentence of 
                                                
211 Russia 's first written submission, para. 140. 
212 Russia's  response to Panel question No. 16, para.  32; second written submission,  para. 405; and first 
written submission, para.  140. 
213 Russia's  second written submission, para.  405. 
214 Russia's  opening statement at the second meeting of the Panel, para.  132. 
215 Russia's  opening statement at the second meeting of the Panel, para.  136. 
216 Ukraine's  first written submission, para.  19. 
217 Ukraine's  first written submission, paras.  20-22. WT/DS493/R  
 
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  Article  2.4.218 Russia clarifies that its claim is under the first sentence of Article  2.4, and not the 
second or third, and thus Russia is not arguing that adjustments should have been made to the 
export price or constructed normal value to ensure a fair comparison between them.219 Ukraine 
states that the substance of Russia 's claim concerns MEDT of Ukraine 's calculation of the 
constructed normal value based on the surrogate price of gas.220 Ukraine submits that this is an 
issue governed under Article  2.2.1.1, not Article  2.4.221  
7.124.   The first sentence of Article  2.4 of the Anti -Dumping Agreement provides that "[a] fair 
comparison shall be made between the export price and the normal value". This is an independent 
obligation under Article  2.4.222 
7.125.   We have already found  that MEDT of Ukraine acted inconsistently with Articles  2.2, 
2.2.1.1 , and 2.2.1 of the Anti -Dumping Agreement by rejecting the reported gas cost and 
replacing it with the surrogate price of gas in calculating the cost of production of the investigated 
Russian producers. Thus, MEDT of Ukraine constructed the normal value of ammonium nitrate in a 
WTO-inconsistent manner.  
7.126.   Russia 's claim under Article  2.4 is that MEDT of Ukraine failed to make a "fair" comparison 
between the export price and no rmal value because the constructed normal value was "inflated" 
due to the use of the surrogate price of gas, instead of the reported gas cost. Thus, Russia 's claim 
takes issue with the manner in which MEDT of Ukraine constructed the normal value. Having 
already concluded that MEDT of Ukraine constructed the normal value of ammonium nitrate in a 
WTO-inconsistent manner, we do not find it necessary to additionally consider whether by 
comparing such a constructed normal value with the export price of the inves tigated Russian 
producers, MEDT of Ukraine also acted inconsistently with the fair comparison obligation under 
Article  2.4. 
7.127.   Based on the foregoing, we exercise judicial economy with respect to Russia 's claim under 
Article  2.4 of the Anti -Dumping Agreement.223 
7.4.4   Claims under Articles  11.1, 11.2, and 11.3 of the Anti -Dumping Agreement  
7.128.   Russia, as noted in paragraph 7.62 above , argues that MEDT of Ukraine ac ted 
inconsistently with Articles  11.2 and 11.3 of the Anti -Dumping Agreement because in making its 
likelihood -of-dumping determinations it relied on dumping margins that were calculated 
inconsistently with Articles  2.1, 2.2, 2.2.1, 2.2.1.1, and 2.4 of the Anti-Dumping Agreement.224 
Russia also makes an independent claim under Article  11.1 in this regard.225 Ukraine asks us to 
dismiss these claims based on its view that MEDT of Ukraine calculated the dumping margins 
consistently with Article  2 of the Anti -Dumping Agreement.226 
7.129.   We recall that Article  11.2 provides that interested parties shall have the right to request 
the authorities to examine whether the continued imposition of the anti -dumping duty is necessary 
to offset dumping, and if the authorities det ermine that the anti -dumping duty is no longer 
warranted, they shall terminate it immediately . Article  11.3 requires a determination that the 
expiry of the anti -dumping duty would be likely to lead to, inter alia , continuation or recurrence of 
                                                
218 Russia's  first written submission, para.  133. 
219 Russia's  response to Panel question No. 17, para.  34. 
220 See, e.g. Ukraine's  second written submission, para . 70. 
221 Ukraine's  second written submission, para.  71. 
222 See, e.g. Appellate Body Reports, US – Zeroing (Japan) , para.  168; US – Softwood Lumber V 
(Article  21.5 – Canada) , para.  142. The Appellate Body in US – Softwood Lumber V ( Article  21.5 – Canada)  
found, for example, that the manner in which the dumping margin was calculated by the investigating 
authority was not impartial, even -handed or unbiased, and thus did not satisfy the fair comparison requirement 
under Article  2.4 of the Anti -Dumping Agreement. (See also Panel Report,  US – Zeroing (Japan) , para.  7.154).  
223 We note that the Appellate Body in EU – Biodiesel (Argentina) , having upheld the panel's  finding that 
the EU authorities acted inconsistently with Articles  2.2.1.1 and 2.2 in calculating the cost of production used 
for the purpose of constructing normal value, found it unnecessary to examine whether the EU authoritie s 
acted inconsistently with the obligation under Article  2.4 to make a fair comparison between the export price 
and the constructed normal value. (Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.89).  
224 Russia's  first written submission, para.  147; second written submission, para.  408. 
225 Russia 's first written submission, para. 152; second written submission, paras.  409-410. 
226 Ukraine's  first written submission, para.  209. WT/DS493/R  
 
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  dumping. The se determinations must rest on a sufficient factual basis that allows the investigating 
authorities to draw reasoned and adequate conclusions.  
7.130.   Past panels and the Appellate Body have held that if investigating authorities rely on 
dumping margin calculation s as part of their determinations under Article  11.2 or Article  11.3, they 
must ensure that the margins are calculated consistently with Article  2.227 If the dumping margins 
relied on in this regard are calculated inconsistently with the relevant provisions of Article  2, this 
inconsistency would lead to a violation not just under the relevant provisions of Article  2, but also 
Articles  11.2 or 11.3 of the Anti -Dumping Agreement.228 We agree with these findings, and find no 
reason to adopt a different approach in  these proceedings.  
7.131.   We note that MEDT of Ukraine made a likelihood -of-dumping determination as part of the 
underlying reviews. It is undisputed that MEDT of Ukraine relied on the dumping margins that it 
calculated for the investigated Russian producers to make affirmative determinations regarding the 
likelihood of dumping.229 We have already found that MEDT of Ukraine calculated the dumping 
margins inconsistently with Articles  2.2, 2.2.1, and 2.2.1.1  of the Anti -Dumping Agreement in the 
underlying reviews. Th erefore, we find that MEDT of Ukraine also acted inconsistently with 
Articles  11.2 and 11.3 of the Anti -Dumping Agreement.  
7.132.   With respect to Article  11.1 of the Anti -Dumping Agreement, while Russia asserts that its 
claim under this provision is independent o f its claims under Articles  11.2 and 11.3230, we do not 
consider additional findings under Article  11.1 to be necessary to resolve this dispute.231 Thus, we 
exercise judicial economy with respect to this claim under Article  11.1. 
7.133.   Based on the foregoing, we find that the Ukrainian authorities acted inconsistently with 
Articles  11.2 and 11.3 of the Anti -Dumping Agreement in relying on dumping margin s calculated 
inconsistently with Articles  2.2, 2.2.1 and 2.2.1.1 to make their likelih ood-of-dumping 
determinations. We exercise judicial economy with respect to Russia 's claim under Article  11.1 of 
the Anti -Dumping Agreement.  
7.5  Non-termination of investigation against EuroChem  
7.134.   We recall, as stated in paragraph 2.1 above , that the Ukrainian authorities originally 
imposed anti -dumping duties on imports of ammonium nitrate from Russia through the 
2008 original decision. EuroChem succ essfully challenged this decision before the domestic courts 
in Ukraine. ICIT, as discussed in more detail in paragraph 7.137  below , implemented t he 
judgments of these courts  through the 2010 amendment to the 2008 original decision, thereby 
reducing the anti -dumping duty on EuroChem to 0%. The Ukrainian authorities,  however, included 
EuroChem within the scope of the underlying reviews, and imposed an anti -dumping duty of 
36.03% on it pursuant to the 2014 extension decision.232 
                                                
227 Panel Report, US – Shrimp II (Viet Nam) , para.  7.393; Appellate Body Repo rt, US – 
Corrosion -Resistant Sunset Steel Review , para.  127. 
228 Panel Report, US – Shrimp II (Viet Nam) , para.  7.393; Appellate Body Report, US – 
Corrosion -Resistant Steel Sunset Review , para.  127. 
229 Russia's  response to Panel question No. 18, para.  37; Ukr aine's  response to Panel question No. 18, 
para. 74. 
230 Russia's  response to Panel  question No. 5, para.  3. 
231 Russia claims that MEDT of Ukraine violated Article  11.1 because the dumping determinations were 
inconsistent with the relevant provisions of Articl e 2. (Russia's  second written submission, para.  408). This 
issue is adequately resolved through our findings under Articles  11.2 and 11.3. Further, Russia contends that 
MEDT of Ukraine would have determined negative dumping margins for the investigated Rus sian producers if it 
had used their reported gas cost to calculate these dumping margins, and thus would not have imposed 
anti-dumping duties. (Russia's  second written submission, para.  410). We cannot find a violation under 
Article  11.1 on this basis as w e are not permitted to speculate on whether MEDT of Ukraine would have found 
these margins to be negative if it calculated them consistently with its WTO obligations.  
232 2014 extension decision, (Exhibit RUS -4b). WT/DS493/R  
 
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  7.135.   Russia claims that the Ukrainian authorities acted inconsistently with their WTO obligations 
in respect of their treatment of EuroChem in the original investigation phase233 as well as in the 
underlying reviews, stating in particular that:  
a. With respect to determinations made in relation to the original investigation, the 
Ukrainian authorities acted inconsistently with Article  5.8 of the Anti -Dumping 
Agreement because234: 
i. the 2008 decision, as amended by the 2010 amendment, which we refer to as the 
2008 amended decision, failed to terminate the investigation against EuroChem; and  
ii. the 2010 amendment impo sed a 0% anti -dumping duty on EuroChem, rather than 
terminate the investigation against it.  
b. With respect to the underlying reviews, the Ukrainian authorities acted inconsistently 
with Article  5.8 of the Anti -Dumping Agreement because they235: 
i. included EuroCh em within the scope of the underlying reviews, instead of excluding 
it from the scope of such measures; and  
ii. imposed an anti-dumping dut y on this producer  following the determinations made in 
the underlying reviews.  
c. With respect to the underlying reviews, t he Ukrainian authorities ' inclusion of EuroChem 
within the scope of the underlying reviews , as well as subsequent duty imposition,  also 
resulted in violations under Articles  11.1, 11.2, and 11.3 of the Anti -Dumping 
Agreement.236 
7.5.1   Treatment of EuroChem in the original investigation phase  
7.136.   MEDT of Ukraine calculated an above de minimis  dumping margin of 10.78% for EuroChem 
in the original investigation on imports of ammonium nitrate from Russia.237 ICIT accepted the 
recommendations and dumping margins proposed by MEDT of Ukraine, and on this basis imposed 
an anti -dumping duty of 10.78% on EuroChem, through its 2008 original decision. EuroChem 
challenged this decision before the District Administrati ve Court of Ukraine (District Court), 
contending that the authorities had made errors in calculating its dumping margin. The District 
Court concluded:  
The case files reaffirm the calculations  of the normal value presented by the plaintiff, 
the export price  and the dumping margin which has a negative value/rate . 
…  
Based on the evidence collected and examined in the court session in the aggregate, 
the court comes to the conclusion on the absence of dumping , and, therefore, on 
the need to satisfy the claims o f the plaintiff for declaring unlawful and partial reversal 
of the [2008 original decision].238 
                                                
233 We use the term "original investigation ph ase" to refer collectively to the original investigation before 
MEDT of Ukraine/ICIT, domestic court proceedings where the Ukrainian authorities'  original determinations 
were challenged under domestic law, and ICIT's  order implementing the judgment of thes e domestic courts.  
234 Russia's  response to Panel  question No. 24, paras.  56-58; second written submission, para.  455. 
235 Russia's  response to Panel  question No. 24, paras.  56 and 59 -60; second written submission, 
para. 455. 
236 Russia's  second written submissi on, para.  461; response to Panel question No. 47, para.  33. 
237 Ukraine's  response to Panel question No. 19(a), para.  75; Russia's  response to Panel question 
No. 19(a), para.  38. 
238 Judgment of the District Court 2009 , (Exhibit RUS -6b) (emphasis added). In ad dressing 
EuroChem's  petition, the District Court found that MEDT of Ukraine erroneously considered in the original 
investigation that EuroChem had provided a discount on domestic sales prices that were used in calculation of 
the normal value, and thus inco rrectly adjusted this normal value by adding the value of the discount to the WT/DS493/R  
 
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  7.137.   This judgment was upheld on appeal by the higher courts in Ukraine.239 ICIT implemented 
these court judgments, noting in its 2010 amendment that "in pursuance of" t he judgments of the 
Ukrainian courts, including the District Court, it had decided:  
1. To terminate  in regards of [EuroChem], Commission decision of 21.05.2008 
number AD -176/2008  / 143-47 "\On the Application of the Definitive Anti -Dumping 
Measures on Impo rt into Ukraine of Ammonium Nitrate Originating in the Russian 
Federation "[i.e. the 2008 decision].  
2. The third paragraph of Section. 2.4 [of the 2008 decision] shall be read as follows:  
"For the exporter JSC MCC EuroChem, which is located at: 115114, Ru ssian 
Federation, m. Moscow Kozhevnicheskiy travel, 4, d. 1.2 - 0% ".240 
7.138.   Both parties take the view that though the 2010 amendment specifically refers to 
ICIT's decision to "terminate" the 2008 original decision with regard to EuroChem, there was no 
terminat ion within the meaning of Article  5.8 of the Anti -Dumping Agreement, which requires 
"immediate termination in cases where the authorities determine that the margin of dumping is de 
minimis ".241 Ukraine acknowledges that EuroChem , despite imposition of a 0 % duty, was not 
formally excluded from the scope of the original anti -dumping measures.242 The Ukrainian 
authorities subsequently included EuroChem in the scope of the underlying reviews; MEDT of 
Ukraine calculated an above de minimis  dumping margin for this producer in these reviews; and 
ICIT imposed an anti -dumping duty on this basis.243 
7.5.2   Legal standard  
7.139.   Article  5.8 of the Anti -Dumping Agreement states:  
An application under paragraph 1 shall be rejected and an investigation shall be 
terminated promptly as soon as the authorities concerned are satisfied that there is 
not sufficient evidence of either dumping or of injury to justify proceeding with the 
case. There shall be immediate termination in cases where the authorities 
determine that the margin of dumping is de minimis , or that the volume of 
dumped imports, actual or potential, or the injury, is negligible. The margin 
of dumping shall be considered to be de minimis  if this margin is less than 
2 per cent, expressed as a percentage of the export price.  The volume of 
dumped imports shall normally be regarded as negligible if the volume of dumped 
imports from a particular country is found to account for l ess than 3 per cent of 
imports of the like product in the importing Member, unless countries which 
individually account for less than 3 per cent of the imports of the like product in the 
                                                                                                                                                  
domestic sales prices when calculating the dumping margin. The District Court found that no such discount 
had, in fact, been given by EuroChem, and thus the adjustment to the nor mal value was not correct.  
239 Judgment of the Appellate Court 2009 , (Exhibit RUS -5b). In upholding the judgment of the District 
Court, the Kiev Appellate Administrative Court concluded that the District Court " correctly established the 
circumstances of the case, the court 's decision was rendered pursuant to the norms of substantive and 
procedural law, the respondent did not prove the lawfulness of the issued decision  [i.e. the 2008 original 
decision]  and acted contrary to the Constitution and the laws of Ukraine". The Higher Administrative Court of 
Ukraine, which heard appeals against the judgment of the District Court, and the Kiev Appellate Administrative 
Court concluded, inter alia : 
It also follows from the case files that no discounts were granted by the claimant [i.e. EuroChem]  
in the ordinary course of trade  operations , the conclusion of the first instance court that [MEDT 
of Ukraine]  did not have any grounds for adjustment is lawful.  
Under such circumstances, the panel of judges is of the  opinion  that the first instance court and 
the court of appeal correctly established the actual circumstances of the case, thoroughly 
investigated the existing evidence, correctly evaluated them and made a lawful and grounded 
decision in accordance with th e requirements of substantive and procedural law.  
(Judgment of the Higher Court,  (Exhibit RUS -7b)) 
240 2010 amendment , (Exhibit RUS -8b). (emphasis added)  
241 Russia's  response to Panel question No. 20, para.  41; Ukraine's  response to Panel question No. 20, 
para. 78. 
242 Ukraine's  response to Panel question No. 20, para.  79. 
243 Investigation Report, (Exhibit RUS -10b), p.  28; 2014 extension decision , (Exhibit RUS -4b). WT/DS493/R  
 
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  importing Member collectively account for more than 7 per cent of impor ts of the like 
product in the importing Member.244 
7.140.   The second sentence of Article  5.8 requires "immediate termination" of the investigation 
where investigating authorities determine  that the margin of dumping is de minimis , i.e. less than 
2%. The second sent ence has been interpreted by the Appellate Body in Mexico – Anti-Dumping 
Measures on Rice . Based  on the text of the second sentence, and in light of the context provided 
by other provisions of the Anti -Dumping Agreement, it concluded that Article  5.8 requi res 
immediate termination of the investigation in respect of producers for which a zero or de minimis 
dumping margin is determined in the original investigation.245 The Appellate Body also stated that 
the only way to terminate immediately an investigation in  respect of such producers is to exclude 
them from the scope of the anti -dumping duty order.246 Investigating authorities cannot impose 
anti-dumping duties – including duties at 0% – on producers  excluded from such measures.247 
Indeed, the issuance of an order  imposing anti -dumping duty is the ultimate step of an 
"investigation" contemplated under Article  5.8, and follows the final determination made by the 
investigating authority.248 Therefore, if the  investigation itself were to be terminated, there could 
be no  order imposing anti-dumping duty, even at 0% rates .249 The parties do not dispute this 
interpretation of the second sentence of Article  5.8 by the Appellate Body in  Mexico – 
Anti-Dumping Measures on Rice , or ask us to revisit it.  
7.141.   Past panels or the Appellat e Body have not made any specific findings under Articles  11.1, 
11.2, or 11.3 of the Anti -Dumping Agreement regarding the inclusion of a producer found to have 
had de minimis  dumping margin in the original investigation, within the scope of an interim or 
expiry review. But in addressing claims  under Article  5.8 of the Anti -Dumping Agreement and 
Article  11.9 of the SCM Agreement, the panel in Mexico – Anti-Dumping Measures on Rice  
examined the WTO -consistency of a domestic law provision that required an annu al review of 
producers that were found not to have engaged in, inter alia , dumping during the original 
investigation.250 The panel in that case found that the logical consequence of terminating an 
investigation against a producer that was found not to be dum ping in the original investigation is 
that this producer cannot be subjected to administrative or changed circumstances reviews, the 
latter being a review conducted under Article  11.2 of the Anti -Dumping Agreement.251 The panel 
concluded on this basis that t his domestic law provision was inconsistent with Article  5.8 of the 
Anti-Dumping Agreement.252 On appeal, the Appellate Body agreed with the panel 's finding, 
noting, inter alia , that because changed circumstances reviews under Article  11.2 examine "the 
need for the continued imposition  of the duty", producers  excluded from the anti -dumping 
measure by virtue of their de minimis  dumping margins  in the original investigation  cannot be 
subjected to changed circumstances reviews.253 The Appell ate Body added that if investigating 
authorities were to undertake a review of producers  that were excluded from the anti -dumping 
measure by virtue of their de minimis margins,  those producers effectively would be made subject 
to the anti -dumping measure, inconsistent ly with Article  5.8.254 
7.5.3   Evaluation  
7.142.   We will first examine Russia 's claim under Article  5.8 alleging that the Ukrainian authorities 
acted inconsistently with the second sentence of this provision in the context of the original 
investigation  phase . Then we will examine its claim under Article  5.8 challenging 
EuroChem 's inclusion in the underlying reviews as well as the subsequent imposition of 
                                                
244 Emphasis added.  
245 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 217; Panel  Report, Mexico – 
Anti-Dumping Measures on Rice , para. 7.140.  
246 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 219. 
247 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 305. 
248 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 219. 
249 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 219. The Appellate 
Body found that given that the order establishing anti -dumping duties necessarily occurs after the final 
determination is made, the only way to terminate immediately an investigation in respect of producers for 
which a de minimis  dumping margin is determined is to exclude them from the scope of the anti -dumpin g duty 
order.  
250 Panel Report, Mexico – Anti-Dumping Measures on Rice , paras.  7.250 -7.251.  
251 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.251.  
252 Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.251.  
253 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 305. (emphasis added)  
254 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 305. WT/DS493/R  
 
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  anti-dumping duty on it pursuant to the reviews. Finally, we will examine Russia 's claims under 
Articles  11.1, 11.2, and 11.3 of the Anti -Dumping Agreement.  
7.5.3.1   Claim under Article  5.8 of the Anti -Dumping Agreement concerning the 
determinations in the original investigation phase  
7.143.   Russia contends that the Ukrainian authorities acted inconsistently with Article  5.8 of the 
Anti-Dumping Agreement because in implementing the Ukrainian court judgment s that found that 
EuroChem had a negative dumping rate in the original investigation , ICIT : (a) failed to exclude, 
through the 2008 amended decision, EuroChem from the scope of the original anti-dumping 
measures; and (b) imposed anti -dumping duty of 0% on EuroChem through the 2010 amendment 
rather than terminate the measure against it by excluding it from the scope of these  measures. 
Russia argues, relying on the Appellate Bod y Report in Mexico – Anti-Dumping Measures on Rice , 
that the only way to terminate an investigation immediately  in respect of a producer  with a de 
minimis  margin of dumping, as required by Article  5.8 of the Anti -Dumping Agreement, is to 
exclude it from the scope of the anti -dumping duty order.255 The Ukrainian authorities failed to do 
so, and thus, according to Russia, acted inconsistently with Article  5.8.  
7.144.   Russia disputes in this regard Ukraine 's argument that the obligations under Article  5.8 do 
not app ly to the present case because the Ukrainian courts did not have the legal competence 
under domestic law to calculate EuroChem 's dumping margin , and the Ukrainian authorities  
themselves  never calculated a de minimis  dumping margin for EuroChem in the origi nal 
investigation. Russia asserts that such an argument is based on Ukrainian domestic law, and is not 
relevant in WTO proceedings.256 Russia asserts that considering ICIT implemented the orders of 
Ukrainian courts that found absence of dumping by EuroChem, the combined effect of the 
Ukrainian court judgments, and their implementation by ICIT 's 2010 amendment, was that the 
dumping margin in the original investigation phase for EuroChem was found to be de minimis .257 
7.145.   Ukraine, in rebutting Russia 's arguments,  does not dispute that if a de minimis  dumping 
margin is determined for a producer in the original investigation, pursuant to the second sentence 
of Article  5.8, the investigating authority would have to terminate the investigation against this 
producer. Ukrai ne acknowledges that the imposition of a 0% anti -dumping duty on EuroChem is 
evidence that its authorities did not terminate, within the meaning of Article  5.8, the investigation 
against EuroChem.258 However, it argues  that the "central aspect" of the Appellate Body 's finding 
in Mexico – Anti-Dumping Measures on Rice  was that there should be a legally valid determination 
of a de minimis  dumping margin in respect of a given producer.259 Ukraine also contends that in 
the original determination, the Ukrainia n authorities calculated an above de minimis dumping 
margin for EuroChem  because: (a) the Ukrainian courts did not have the authority under domestic 
law to recalculate EuroChem 's dumping margin; (b) ICIT imposed an anti -dumping duty of 0% on 
EuroChem to im plement the court orders, but never recalculated its dumping margin.260 Therefore, 
in Ukraine 's view, the obligations under the second sentence of Article  5.8 of the Anti -Dumping 
Agreement were not triggered in the present case.261 
7.146.   We note that the parties do not disagree on the legal interpretation of the second sentence 
of Article  5.8, which requires "immediate termination in cases where the authorities determine that 
the margin of dumping is de minimis ". Instead, they disagree on whether these obligations we re 
triggered in the present case, as Ukraine contends no legally valid de minimis  dumping margin was 
determined for EuroChem in the original investigation phase. Thus, the question that we have to 
address is a factual one: Was a de minimis  dumping margin d etermined for EuroChem in the 
original investigation phase? If it was, then the obligations under the second sentence of 
Article  5.8 of the Anti -Dumping Agreement would apply, and we would rule that the Ukrainian 
authorities were required to terminate the original investigation against EuroChem.  
                                                
255 Russia's  first written submission, para.  175.  
256 Russia's  second written submission, para.  479. 
257 Russia's  second  written submission, para.  474; opening statement at the second meeting of the 
Panel, para.  171. 
258 Ukraine's  response to Panel question No. 20, paras.  78-79. 
259 Ukraine's  first written submission, para.  238. 
260 Ukraine's  first written submission, para.  253; response to Panel question No. 21, para.  83; and 
opening statement at the first meeting of the Panel, para.  138. 
261 Ukraine's  first written submission, para.  256. WT/DS493/R  
 
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  7.147.   In this regard, w e note, as set out in paragraph 7.136  above, that the District Court 
concluded that there was "absence of dumping" by EuroChem in the original investigation. Further, 
the District Court found that the case files reaffirmed the ca lculations presented by EuroChem 
showing that its dumping margin had a "negative value/rate". This District Court judgment was 
upheld by higher courts, which found that the District Court had correctly established the 
circumstances of the case, and thoroug hly investigated the existing evidence.262 ICIT itself 
implemented these court judgments , stating that in "pursuance" of the court judgments it had 
decided to, inter alia , make the anti -dumping duty on EuroChem 0%. We find nothing in this 
2010 amendment, or other evidence on record that would suggest to us that in implementing the 
court judgment s, ICIT disputed the finding of the courts that EuroChem had a negative value/rate 
of dumping.263 Indeed, Ukraine submits that it does not question the legal validity of  the rulings  
made in the court judgment s for EuroChem.264 In these circumstances, we agree with Russia that 
the combined effect of the Ukrainian court judgments, and their implementation by 
ICIT's 2010 amendment was that the dumping margin for EuroChem in th e original investigation 
phase was de minimis .265  
7.148.   Further, Ukraine 's argument as to why no "legally valid" dumping margin was calculated 
for EuroChem in the original investigation phase is based on the following principal grounds:  
a. the courts made their find ings based on dumping margin calculations presented  by 
EuroChem alone, and ICIT itself could not provide refuting evidence to the Ukrainian  
courts as it has a policy of not disclosing confidential dumping margin calculations in 
court proceedings, which in Ukraine are open to the public266;  
b. the Ukrainian courts were not permitted to calculate any dumping margins  as only MEDT 
of Ukraine and ICIT have the authority under Ukrainian law to calculate dumping 
margins267; 
c. ICIT's 2010 amendment only enforced the rulings of the Ukrainian courts that 
EuroChem 's dumping margin was not correctly determined, and ICIT itself did not 
recalculate the dumping margin originally determined268; and  
d. in the absence of any specific instructions by the court to reopen the investigation and 
apply a particular methodology for calculating the dumping margin, ICIT could not 
recalculate the dumping margin, but had to bring down the duty to 0%.269 
7.149.   These grounds, however, are  essentially matters  under Ukraini an domestic law. It is up to 
each WTO Member to decide how it implements decisions of its domestic courts, but these 
arrangements or classifications under domestic law are not determinative of issues raised in WTO 
                                                
262 See fn 239 above.  
263 Ukraine submits in this regard that ICIT did not accept that EuroChem had a negative or de minimis  
dumping margin because it did not exclude EuroChem from the original anti -dumping measures but merely 
assigned it a 0% duty. (Ukraine's  response to Panel question No. 21, para.  82). We do not see how 
ICIT's  conduct in this regard, which Russia alleges is WTO -inconsistent, is proof that ICIT did not accept the 
courts'  finding (which it i mplemented) that EuroChem had a negative rate of dumping. Moreover, Ukraine 
submits that Exhibits UKR -53 (BCI), UKR -54 (BCI), UKR -55 (BCI), and UKR -56 (BCI) show that the Ukrainian 
authorities did not recalculate the dumping margin, and did not endorse any  dumping margin calculated by the 
Courts. (Ukraine's  second written submission, para.  99). However, Ukraine does not attempt to show what in 
these exhibits supports Ukraine's  submission in this regard.  
264 Ukraine's  first written submission, para.  253. 
265 We also find it relevant to note that accepting Ukraine's  argument essentially means that if 
investigating authorities correctly calculate the dumping margin in an original investigation, and find the 
dumping margin to be de minimis , they would be required, p ursuant to the second sentence of Article  5.8, to 
immediately terminate the investigation against an exporter. But, if the margins are calculated as above de 
minimis  due to substantive or clerical errors in the authorities'  determination, and these errors are successfully 
challenged in domestic courts, investigating authorities may rely on domestic law provisions to avoid complying 
with the obligations under this second sentence. We do not consider that such an asymmetrical application of 
the second sentenc e of Article  5.8 is rational, or intended under the Anti -Dumping Agreement.  
266 Ukraine's  response to Panel question No. 21, paras.  84-85. 
267 Ukraine's  opening statement at the first meeting of the Panel, paras.  138 and 142; response to Panel 
question No. 21,  para. 83. 
268 Ukraine's  opening statement at the first meeting of the Panel, para.  138. 
269 Ukraine's  second written submission, para.  97; response to Panel question No. 22, paras.  92-93. WT/DS493/R  
 
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  dispute settlement proceedings.270 Thus, we are not persuaded that the grounds advanced by 
Ukraine show that no de minimis  dumping margin was determined for EuroChem in the original 
investigation phase.  
7.150.   We note, for instance, Ukraine 's assertion that because  court hearings are open to the 
public in Ukraine, ICIT could not provide its own dumping calculations, or refuting evidence to the 
courts. Thus, the courts ' judgments  were based on submissions made by EuroChem alone. Even if 
this was true, such supposed restraints on ICIT arise under  domestic law . We do not see how they 
affect the probative value of the court judgment s, as implemented by ICIT, in these panel 
proceedings.271 Further, considering ICIT implemented court judgment s that found that EuroChem 
had a negative rate of dumping, we do not see on  what basis Ukraine now argues that no negative 
or de minimis  dumping margin was found for EuroChem in the original investigation  phase . The 
fact that in implementing the court judgment s which found negative rate of dumping, ICIT did not, 
or could not, rec alculate the dumping margin itself is, again, a matter of domestic law, and does 
not diminish the probative value of these court judgment s or ICIT 's order implementing it.272 
Ukraine thus has failed to  rebut Russia 's submission that the record evidence  in the original 
investigation phase  shows the absence of dumping by EuroChem.  
7.151.   Therefore, we agree with Russia that the obligation under the second sentence of 
Article  5.8 applies in this case because EuroChem had a de minimis  dumping margin in the original 
investigation phase. In these circumstances, the Ukrainian authorities would have been required 
pursuant to the second sentence of Article  5.8 to immediately terminate the investigation against 
EuroChem. As stated in paragra ph 7.140  above,  the only way to terminate the investigation 
against a producer found to have de minimis  dumping margin in the original investigation  is to 
exclude that producer from the scope of the anti -dumping measures, and not to impose any 
anti-dumping duty on it, even at a 0% rate. However, as Ukraine acknowledges, the Ukrainian 
authorities failed to exclude EuroChem from the scope of the origina l anti -dumping measures, 
specifically the 2008 amended decision. They also imposed a 0% anti -dumping duty on EuroChem 
through the 2010 amendment. Thus, the Ukrainian authorities acted inconsistently with Article  5.8 
of the Anti -Dumping Agreement.  
7.152.   Based on the foregoing, we find that the Ukrainian authorities acted inconsistently with 
Article  5.8 of the Anti -Dumping Agreement because they:  
a. failed to exclude EuroChem from the scope o f the original anti -dumping measures, 
specifically the 2008 amended decision;  and 
b. imposed a 0% anti -dumping duty on EuroChem through the 2010 amendment, instead 
of excluding it from the scope of the anti -dumping duty order.  
                                                
270 Appellate Body Report, US – Softwood Lumber IV ( Article  21.5 – Canada ), para.  82. 
271 See, e.g.  Appellate Body Report, US – Zeroing (Japan) ( Article  21.5 – Japan) , fn 452. The Appellate 
Body noted in this case that restrictions under domestic law on the executive branch from taking any action on 
a matter during the pendency o f domestic judicial proceedings could not provide a basis for delaying 
compliance with the DSB's  recommendations and rulings beyond the reasonable period of time.  
272 In any event, we observe that Ukraine has changed its factual arguments over the course of the 
proceedings on whether, as a matter of Ukrainian domestic law, the Ukrainian authorities could recalculate the 
dumping margin pursuant to the court judgments. In its first written submission, Ukraine stated that "under 
the Ukrainian Anti -Dumping Law an d the Constitution of Ukraine (Article  19), a re -calculation of a dumping 
margin can be performed only in course of a review of an anti -dumping duty". (Ukraine's  first written 
submission, fn  85). However, in subsequent responses it stated that "[i]t is onl y when the Court specifically 
instructs ICIT to reopen the investigation and adopt a particular methodology" can ICIT recalculate the 
dumping margin. (Ukraine's  response to Panel question No. 22, para.  94). These two descriptions appear to 
contradict each other. The first description suggests that the Ukrainian authorities can only calculate the 
dumping margins in a review, and thus cannot do so pursuant to a court judgment. The second description 
suggests that the Ukrainian courts can ask ICIT to recalcula te dumping margins even in the absence of a 
review. In this regard, we also observe that in support of its argument that absent court instructions to reopen 
the investigation and to apply a particular methodology to calculate the dumping margin, ICIT had n o other 
option under Ukrainian law but to reduce the anti -dumping duty down to zero, Ukraine cites Articles  258-259 of 
the Code of Administrative Procedure of Ukraine (Exhibit UKR -43) and Article  4 of Ukraine's  Law on 
enforcement proceedings, (Exhibit UKR -44). (Ukraine's  second written submission, para.  97; response to Panel 
question No.  22, para.  92). Ukraine does not show how these provisions of Ukrainian law support its argument.  WT/DS493/R  
 
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  7.5.3.2   Claim under Article  5.8 of the Anti -Dumping Agreement concerning the 
underlying reviews  
7.153.   Russia argues that the Ukrainian authorities ' inclusion of EuroChem within the scope of the 
underlying reviews, and their decision to impose an anti-dumping duty on this producer through 
the 2014 extension decision was inconsistent with the obligation under Article  5.8 to "i mmediately 
terminate" an investigation against a producer found not to be dumping in the original 
investigation.273 We note that Ukraine makes two main arguments as to why the Ukrainian 
authorities did not violate  the second sentence of Article  5.8 in including EuroChem in the 
underlying reviews, and then imposing an anti-dumping dut y on it following the review 
determinations. First, it argues that no legally valid de minimis  dumping margin was determined 
for EuroChem  in the original investigatio n phase .274 Second, it submits, relying on the panel 
reports in US – Corrosion -Resistant Steel Sunset Review  and US – DRAMS , that Article  5.8 does 
not apply to review determinations, and thus Russia 's claim under this provision fails.275 Thus, 
Ukraine contends  that even if the dumping margin calculated in a review is de minimis , Article  5.8 
does not impose an obligation on investigating authorities to terminate such a review. In any case, 
Ukraine notes that the margin calculated for EuroChem in the underlying r eviews was  not de 
minimis . 
7.154.   We have already rejected in paragraph 7.151  above Ukraine 's first argument that no 
legally valid de minimis  dumping margin was determined for EuroChem  in the original investigation  
phase . With respect to its second argument, we note Russia 's submission that Ukraine 's reliance 
on the panel reports in US – Corrosion -Resistant Steel Sunset Review  and US – DRAMS  is 
inapposite because the question before the Panel is not whether a de minimis  threshold applies in 
review determinations, as was discussed by the panels in these two cases .276 Instead, the question 
in Russia 's view concerns the consequences of a finding that  a producer had a de minimis  dumping 
margin in the original investigation phase on the subsequent interim or expiry review.277 We 
agree.  
7.155.   The interpretative issue before us is indeed not the same as that before the panels in US – 
Corrosion -Resistant Steel Sun set Review and US – DRAMS . The issue in those cases was whether 
the de minimis  standard of Article  5.8 applies in the context of determinations made in expiry and 
other types of reviews. The panels found in this context that the de minimis  standard of Article 5.8 
applies to original investigations, not such types of reviews.278 In contrast, the issue before us is 
whether Article  5.8 permits investigating authorit ies to include in a review a producer found to 
have had a  de minimis  dumping margin in the original investigation  and impose anti -dumping 
duties on it pursuant to such review.  
7.156.   We consider that once an investigation is terminated, or brought to an end against a 
producer, it cannot subsequently be revived through an interim or expiry review. We f ind support 
for this view  in the panel and the Appellate Body  reports  in Mexico – Anti-Dumping Measures on 
Rice which stated that the logical consequence of terminating an investigation against a producer 
that was found not to be dumping in the original in vestigation is that this producer cannot be 
subjected to administrative or changed circumstances reviews.279 The inclusion of such a producer 
in an interim or expiry review as well as the subsequent anti -dumping duty imposition on it 
following such reviews w ould be inconsistent with the obligation under the second sentence of 
Article  5.8 to immediately terminate the original investigation against it. Therefore, we reject 
Ukraine 's second argument as well.   
7.157.   Based on the foregoing, we find that the Ukrainian au thorities acted inconsistently with 
Article  5.8 of the Anti -Dumping Agreement in including EuroChem within the scope of the review 
determinations, and in imposing anti -dumping duties on it through the 2014 extension decision.  
                                                
273 Russia's  response to Panel  question No. 24, paras.  59-60. 
274 Ukraine's  first written submission, para.  238. 
275 Ukraine's  second written submission, paras.  90-91. 
276 Russia's  opening statement at the second meeting of the Panel, para.  160. 
277 Russia's  opening statement at the second meeting of the Panel, para.  160. 
278 Panel Reports, US – Corrosion -Resistant Steel Sunset Review , para.  7.85; US – DRAMS , 
paras.  6.89-6.90. 
279 See para. 7.140  above . WT/DS493/R  
 
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  7.5.3.3   Claims under Articles  11.1, 11 .2, and 11.3 of the Anti -Dumping Agreement 
concerning the underlying reviews  
7.158.   Russia 's claims under Articles  11.1, 11.2, and 11.3 are based on the "link" between these 
provisions and Article  5.8.280 Russia contends that the Ukrainian authorities acted inconsi stently 
with Articles  11.2 and 11.3 of the Anti -Dumping Agreement by including EuroChem within the 
scope of the underlying reviews and imposing anti -dumping duties on it following these reviews.281 
Russia also submits that the Ukrainian authorities acted inc onsistently with Article  11.1 of the 
Anti-Dumping Agreement because if there should have been no anti -dumping duty to start with, 
the question of that duty remaining in force to the extent necessary to counteract dumping, as 
provided in Article  11.1 does not arise.282 Ukraine argues that Russia 's claims under Articles  11.1, 
11.2, and 11.3 must be rejected because they are purely consequential to its claims under 
Article  5.8; that, in its first written submission, Russia merely cited the provisions of Article s 11.1, 
11.2, and 11.3 without specifying any action or inaction of the Ukrainian authorities that resulted 
in a violation under these provisions; and that Russia has failed to make a prima facie  case as to 
why these provisions were violated.283 
7.159.   We note that  Russia 's claims under Articles  11.1, 11.2, and 11.3 arise from the same basis 
as its claims under Articles  5.8 with respect to the underlying reviews, namely, the inclusion of 
EuroChem within the scope of the underlying reviews and imposition of anti -dump ing duty on it 
following the determinations made in the underlying reviews. In these circumstances, we do not 
consider that  additional findings under these provisions would contribute towards the positive 
resolution of this dispute.  
7.160.   Based on the foregoing , we exercise judicial economy with respect to Russia 's claims under 
Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping Agreement.  
7.6  Likelihood -of-injury determination  
7.161.   In its panel request, and its request for findings in the first written submission, Russia 
claimed that Ukraine acted inconsistently with Articles  11.1, 11.2 , and 11.3 of the 
Anti-Dumping  Agreement because the Ukrainian authorities "determined and relied on" injury 
which was not established in accordance with Articles  3.1 and 3.4 of this Agreeme nt.284 Russia 
explains that this request covers the following two separate claims285: 
a. MEDT of Ukraine violated Articles  11.2, 11.3 , and 3.1 of the Anti -Dumping Agreement 
because it failed to exclude imports of the Russian producer EuroChem, which had 
negative dumping margin in the original investigation phase, from the volume of 
dumped imports286; and  
b. MEDT of Ukraine violated Articles  11.2, 11.3 , and 3.4 of the Anti -Dumping Agreement 
because its evaluation of economic factors and indices having a bearing on the state of 
the Ukrainian domestic industry was not based on an objective examination of positive 
evidence.287 
                                                
280 Russia's  first wri tten submission, paras.  172 and 177.  
281 Russia's  first written submission, para.  177; second written submission, para.  520. 
282 Russia's  response to Panel question No. 26, para.  73. 
283 Ukraine's  first written submission, para.  235; second written submission, p aras. 112 and 115.  
284 Russian's  panel request, item number 17; first written submission, para.  347(8).  
285 In addition to these two claims, Russia made what it described as an "argument" challenging MEDT 
of Ukraine's  analysis in a section of the Investigation  Report titled "[p]ossibility of new types of dumping that 
will cause injury to the national producer". (Russia's  response to Panel question No. 37, para.  110). In this 
section, MEDT of Ukraine considered certain arguments regarding the possible increase o f imports from Russia 
into Ukraine because, for instance, other countries had already imposed anti -dumping duties on Russian 
exports of ammonium nitrate, and Ukraine was one of the key consumers of ammonium nitrate from Russia. 
(Investigation Report, (Exhi bit RUS -10b), p.  16). Russia clarified that this "argument" does not pertain to any 
of the two claims made by Russia in these proceedings. (Russia's  response to Panel question No. 53, para.  45). 
Therefore, we have no basis to address this argument.  
286 Russia's response to Panel question No. 33, para.  94. 
287 Russia's  response to Panel question No. 33, para.  94. WT/DS493/R  
 
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  7.162.   In response to Ukraine 's submission that MEDT of Ukraine made a likelihood -of-injury 
determination in the underlying reviews, and that Article  11, not  Article  3, applies to such a 
determination, Russia states that when investigating authorit ies assess the current  state of the 
domestic industry in a review to ascertain whether the industry is suffering injury, this assessment 
has to comply with the relev ant provisions of Article  3.288 Russia asserts that MEDT of Ukraine 
made such an assessment in the underlying reviews, and thus made an injury determination 
within the meaning of Article  3, but this determination did not comply with Articles  3.1 and 3.4.289 
However, Russia clarifies that it is not actually making independent claims under Articles  3.1 and 
3.4, in the sense that it is not asking us to make independent findings under these provisions.290 
Instead, it is contending that because MEDT of Ukraine relied on an injury assessment  that did not 
comply with Article  3 to make its likelihood -of-injury determination, it acted inconsistently with 
Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping Agreement.291 
7.163.   Ukraine states that MEDT of Ukraine was neither required t o nor made an injury 
determination under Article  3 of the Anti -Dumping Agreement.292 Instead, it made a 
likelihood -of-injury determination within the meaning of Articles  11.2 and 11.3. Ukraine asks us to 
dismiss Russia 's injury -related claims because they su ffer from a legal error inasmuch as Russia 
asks us to review MEDT of Ukraine 's likelihood -of-injury determination under Article  3, rather than 
Article  11 of the Anti -Dumping Agreement.293 
7.6.1   Legal standard  
7.164.   The enquiries relating to injury under Article  11.2 and  Article  11.3 of the 
Anti-Dumping  Agreement, while worded differently, are similar. Article  11.2 states that interested 
parties shall have the right to request the authorities to examine, inter alia , "whether the injury 
would be likely to continue or recur  if the [anti -dumping] duty were removed or varied". If 
pursuant to a review conducted under Article  11.2, the authorities determine that the 
anti-dumping duty is no longer warranted, they shall terminate this duty immediately. Article  11.3 
refers to a det ermination on whether the expiry of the existing anti -dumping duty "would be likely 
to lead to continuation or recurrence of dumping and injury". Article  11.3 requires investigating 
authorities to terminate the existing anti -dumping duty unless the authori ties find a likelihood of 
injury (and dumping) in the expiry review.  
7.165.   Neither Article  11.2 nor Article  11.3 prescribes a specific methodology that investigating 
authorities must follow when making a likelihood -of-injury determination. Thus, investigating 
authorities have some discretion in this regard. However, like in the context of 
likelihood -of-dumping determinations, the use of the words "review" and "determine" in 
Article  11.3 suggests that the investigating authorities ' likelihood -of-injury determinati on must rest 
on a sufficient factual basis that allows the authorities to draw reasoned and adequate 
conclusions.294 Considering the use of the words "review" and "determine" in Article  11.2, as 
stated above, the same standard may be said to apply to likelih ood-of-injury determinations made 
in the context of interim reviews conducted pursuant to this provision.295 Moreover, as we noted 
above, investigating authorities are also under a general obligation, pursuant to Article  17.6(i) of 
the Anti -Dumping Agreement , to establish facts properly and evaluate them in an unbiased and 
objective manner, and this obligation applies in reviews as well.  Therefore, if the 
authorities ' conclusions regarding the likelihood of injury are not reasoned and adequate, or based 
on a sufficient factual basis, thus showing that their determination was not based on an objective 
and unbiased evaluation of properly established facts, the determination would be inconsistent 
with Articles  11.2 and 11.3 of the Anti -Dumping Agreement.  
7.166.   With res pect to the application of Article  3 of the Anti -Dumping Agreement to 
likelihood -of-injury determinations made in the context of Article  11 reviews, the Appellate Body 
                                                
288 Russia's  response to Panel question No. 32(b), para.  93. 
289 Russia's  responses to Panel question No. 32(a), para.  92; and No. 31, para.  91. 
290 Russia's  responses to Panel question No. 32(a), para.  92; and No. 51, para.  35. 
291 Russia's  responses to Panel question No. 32(a), para.  92; and No. 51, para.  35; opening statement 
at the second meeting of the Panel, para.  200. 
292 Ukraine's  first written su bmission, paras.  269 and 274.  
293 Ukraine's  first written submission, paras.  264 and 305.  
294 See, e.g. Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  284. 
295 Panel Report, US – Shrimp II (Viet Nam) , paras.  7.367 and 7.375. This panel took a similar view with 
respect to the obligations under Article  11.2 of the Anti -Dumping Agreement.  WT/DS493/R  
 
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  has noted that Article  3 is titled "[d]etermination  of injury" and lays down the steps involved and 
the evidence to be examined in order to make an injury determination.296 This determination is 
mandatory in the context of an original investigation where investigating authorities must 
demonstrate, pursuant t o such a determination, that the domestic industry is facing injury or a 
threat thereof at the time of this investigation.297 However, the Appellate Body has clarified that 
such an injury determination under Article  3 is not required in an expiry review, whi ch requires a 
likelihood -of-injury determination, not an injury determination.298 
7.167.   The Appellate Body 's clarification was based on the fact that there are no cross -references 
to Article  3 in the text of Article  11.3, and Article  3 itself does not indicate tha t the investigating 
authorities must make an injury determination in a review.299 The Appellate Body also explained 
that the lack of a textual basis to apply Article  3 in likelihood -of-injury determinations makes sense 
in light of the different nature and pu rpose of original investigations on one hand, and reviews on 
the other. In particular, unlike in the case of an original investigation, investigating authorities are 
not required to demonstrate in an interim or expiry review that the domestic industry is s uffering 
material injury at the time of the review. Instead, to allow authorities to maintain an existing 
anti-dumping duty, Article  11.3 requires them to review an anti -dumping duty order that has 
already been established – following the prerequisite dete rminations of dumping and injury – so as 
to determine whether that order should be continued or revoked.300 Similarly, Article  11.2 gives 
interested parties the right to request investigating authorities to, inter alia , examine whether the 
injury would be li kely to continue or recur if the anti -dumping duty were removed, or varied, or 
both. 
7.168.   While injury determinations are not required in the context of reviews, certain of the 
analyses mandated by Article  3 may prove to be probative, or possibly even required,  in order for 
investigating authorities to arrive at a "reasoned conclusion".301 Factors such as the volume, price 
effects, and the impact on the domestic industry of dumped imports, taking into account the 
conditions of competition, may be relevant to varyi ng degrees in a given likelihood -of-injury 
determination.302 The necessity of conducting such an analysis in a given case results from the 
requirements imposed by Article  11.3 (or Article  11.2) – not Article  3 – that a likelihood -of-injury 
determination rest  on a sufficient factual basis so as to allow the authorities to draw reasoned and 
adequate conclusions.303 
7.169.   While there is no obligation to make an injury determination under Articles  11.2 and 11.3, 
past panels have dealt with situations where the investigat ing authorities were alleged to have 
made an injury determination under Article  3 in a review. In EU – Footwear (China) , there was no 
dispute between the parties  that the investigating authority had made an injury determination, 
and relied on it in making its likelihood -of-injury determination.304 The panel stated  that if 
investigating authorities make an injury determination in a review that is inconsistent with 
Article  3, and rely on that injury determination to make a likelihood -of-injury determination, the 
inconsistency with Article  3 would taint the likelihood determination.305 The panel 's rationale was 
that in such a case the likelihood determination would not rest on a sufficient factual basis, and 
thus not allow the investigating authorities to draw reasoned and adequate conclusions regarding 
the likelihood of injury.306 Thus, the likelihood -of-injury determination would be inconsistent with 
                                                
296 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  277. 
297 Appellate Body Report, US – Oil Country Tubular Goods Sunset Re views , para.  279. See, e.g. 
Article  3.5 of the Anti -Dumping Agreement, which requires investigating authorities to "demonstrate[] that the 
dumped imports are … causing injury … to the domestic industry".  
298 Appellate Body Report, US – Oil Country Tubular Go ods Sunset Reviews , para.  279. 
299 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  278. The Appellate 
Body's  findings were under Article  11.3, not Article  11.2, but considering the similar text and nature of enquiry 
on injury in b oth of these provisions, we consider that the Appellate Body's  finding is equally relevant to 
determinations under Article  11.2. 
300 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  279. 
301 Appellate Body Report, US – Oil Country Tu bular Goods Sunset Reviews , para.  284. 
302 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  284. 
303 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  284. While the 
Appellate Body reached its conclusions wi th respect to Article  11.3, considering the similar text and purpose of 
Article  11.2 of the Anti -Dumping Agreement, the same standards may be said to apply to likelihood -of-injury 
determinations in interim reviews as well.  
304 Panel Report, EU – Footwear (Ch ina), paras.  7.334 and 7.338.  
305 Panel Report, EU – Footwear (China) , para.  7.337.  
306 Panel Report, EU – Footwear (China) , para.  7.337.  WT/DS493/R  
 
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  Article  11.3. On the basis of this understanding, that panel considered whether the investiga ting 
authority had failed to act in accordance with Article  3 of the Anti -Dumping Agreement when it 
made its injury determination in the review.307 However, it clarified that it would make its findings 
under Article  11.3, not Article  3 per se , as Article  3 is not directly applicable to likelihood -of-injury 
determinations.308 In US – Oil Country Tubular Goods Sunset Reviews , the panel stated that it 
would address the complainant 's claims under Article  3 only to the extent it found that the 
investigating authorit y had made an injury determination, as opposed to a likelihood -of-injury 
determination in the expiry review.309 Having concluded that the investigating authority did not 
make an injury determination, the panel confined its review to claims under Article  11.3, and 
declined those relating to Article  3.310 
7.6.2   Evaluation  
7.170.   We must consider two threshold questions before examining the substantive aspects of 
Russia 's injury -related claims. First, we must decide whether, as a legal matter, we can examine 
the consistency of  injury -related aspects of MEDT of Ukraine 's determinations in an interim and 
expiry review with Article  3 of the Anti -Dumping Agreement. We acknowledge Russia 's clarification 
that it is not making independent claims under Article  3, and thus we are not expected to make 
independent findings of violations with respect to Article  3 provisions.311 But, Russia claims that 
MEDT of Ukraine acted inconsistently with Articles  11.1, 11.2 , and 11.3 "because it determined 
and relied on injury wh ich was not established in accordance with Articles  3.1 and 3.4 of the 
Anti-Dumping Agreement".312 Russia asks us to conclude, as part of its Article  11 claims, that 
MEDT of Ukraine 's determinations did not comply with Articles  3.1 and 3.4 (without making 
independent findings in this regard).313 Therefore, we must consider whether MEDT of Ukraine 
made a determination in the underlying reviews that is governed under Article  3, and specifically 
Articles  3.1 and 3.4.  
7.171.   In this regard, Russia acknowledges the Appella te Body 's finding in US – Oil Country 
Tubular Goods Sunset Review s that Article  3 does not apply to expiry reviews, and does not ask us 
to deviate from these findings of the Appellate Body.314 However, it asserts that if  investigating 
authorit ies make a dete rmination of injury under Article  3, they must ensure that this injury 
determination complies with the relevant provisions of Article  3.315 Russia contends that MEDT of 
Ukraine made such an injury determination in the underlying reviews.316 In our view, the issue 
that we have to resolve is a factual one : Did MEDT of Ukraine make an injury determination under 
Article  3 of the Anti -Dumping Agreement?  
7.172.   If we find that MEDT of Ukraine did not make such an injury determination, then the 
second question that we must address is whether we can , consistent with our terms of reference,  
examine Russia 's injury -related claims under Articles  11.1, 11.2 , and 11.3 . In particular, 
                                                
307 Panel Report, EU – Footwear (China) , para.  7.340.  
308 Panel Report, EU – Footwear (China) , para.  7.157.  
309 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , para.  7.276.  
310 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , para.  7.279.  
311 Russia's  response to Panel question No. 51(a), para.  35. 
312 Russia 's first written submission, para. 347(8), opening stat ement at first meeting of the Panel, 
para. 125; and second written submission, para. 551. 
313 See, e.g. Russia 's first written submission, para. 347(8); second written submission, paras.  551 and 
553; and opening statement at the second meeting of the Panel, para. 200. 
314 Russia's  second written submission, para.  569. Russia appears to distinguish the Appellate Body 
Report in US – Oil Country Tubular Goods Sunset Review s by arguing  that provisions other than Articles  3.7 
and 3.8 were not subject to detailed analysis in this case. (Russia's  second written submission, 
paras.  563-565). But it ultimately concludes, based on its understanding of the panel's  and the 
Appellate  Body's  finding in this case, that Article  3 generally does not apply to expiry reviews, bu t if 
investigating authorities make an examination falling within Article  3, then they are bound by Article  3. 
(Russia's  second written submission, para.  569). We do not preclude the possibility that investigating 
authorities may, on their own volition, ma ke an injury determination under Article  3 in the context of a review, 
in which case they would have to follow the obligations under Article  3. But, contrary to Russia's  assertion, the 
Appellate Body's  finding is not limited to Articles  3.7 and 3.8 of the Anti-Dumping Agreement. The Appellate 
Body specifically upheld the panel's  finding that Article  3 does not apply to likelihood -of-injury determinations, 
and declined to make any findings under Articles  3.1, 3.2, 3.4, and 3.5. (Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Review s, para.  285).  
315 Russia's  second written submission, paras.  566 and 569; opening statement at the first meeting of 
the Panel, paras.  133-134. 
316 Russia's  response to Panel question No. 31, para.  91. WT/DS493/R  
 
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  considering Russia claimed in the panel request that the Ukrainian authorities acted inconsistentl y 
with these Article  11 provisions because they "determined and relied on injury" which was not 
established in accordan ce with provisions of Article  3, should Russia 's claim fail if we find that 
MEDT of Ukraine did not make such an injury determination?  
7.6.2.1   Whether MEDT of Ukraine made an injury determination under Article  3 in the 
underlying reviews  
7.173.   Russia bears the burden of establishing that MEDT of Ukraine made an injury 
determination under Article  3 in the underlying reviews.317 Ukraine denies that MEDT of  Ukraine 
made such an injury determination, and submits instead that MEDT of Ukraine only examined, as 
part of its likelihood -of-injury determination, whether the domestic industry had completely 
recovered from the material injury it was  found to suffer in  the original investigation.318 Russia 
contends, however, that MEDT of Ukraine made such an injury determination because it assessed 
the current  state of the domestic industry in the underlying reviews, and did not make a purely 
prospective analysis.319 Russia  makes two main arguments in support of its view.  
7.174.   First, noting that Articles  11.2 and 11.3 refer to the likelihood of continuation  or recurrence  
of injury to the domestic industry, Russia states that MEDT of Ukraine made a 
likelihood -of-continuation -of-injury determination in the underlying reviews, and not a 
likelihood -of-recurrence -of-injury determination, though Ukraine disputes this statement.320 Russia 
asserts that considering only existing injury can continue, investigating authorities can make a 
positive determination of likelihood of continuation  of injury only when they find that the domestic 
industry is suffering material injury during the period of review, or currently suffering injury.321 
Therefore, in Russia 's view, MEDT of Ukraine must have examin ed the existing or current state of 
the domestic industry, and thus made an injury determination  under Article  3. Second, Russia 
points to MEDT of Ukraine 's statements in several parts of the Investigation Report that allegedly 
show that it made such an in jury determination.322 
7.175.   Regarding Russia 's first argument, as we stated above, whether or not MEDT of Ukraine 
made an injury determination is a factual issue that has to be resolved based on an examination of 
its Investigation Report. Thus, we cannot assume t hat MEDT of Ukraine made an injury 
determination, even assuming that MEDT of Ukraine made a determination regarding the likelihood 
of continuation, not recurrence of injury, to the domestic industry.323 We thus turn to 
Russia 's second argument, i.e. the Inve stigation Report shows that MEDT of Ukraine made an 
injury determination under Article  3. 
7.176.   Russia quotes from parts of the Investigation Report that allegedly show that MEDT of 
Ukraine made an injury determination. Russia notes in this regard that:   
a. MEDT of Ukraine examined and evaluated such factors qualifying the state of the 
domestic industry as the volume of dumped imports, production and sales of ammonium 
nitrate by domestic producers, capacity utilization and stock reserves, productivity of 
                                                
317 Russia as the comp lainant has the burden of making a prima facie  case with respect to its claims. 
Moreover, as the party asserting that MEDT of Ukraine made an injury determination, it has the burden to 
prove it.  
318 Ukraine's  first written submission, para.  270. 
319 See, e.g. Russia's  response to Panel question No. 32(a), para.  92. 
320 Russia's  response to Panel question No. 35(b), para.  104; Ukraine's  second written submission, 
para, 137. Ukraine states that MEDT of Ukraine made a determination regarding the recurrence , not 
continuation , of injury to the domestic industry.  
321 Russia's  response to Panel question No. 35(b), para.  105. 
322 Russia's  response to Panel question No. 31, paras.  88-91. 
323 Russia does not argue that MEDT of Ukraine was required  to make an injury determination because it 
made a likelihood -of-continuation -of-injury determination. (Russia's  response to Panel question No. 55, 
para. 49). Instead, Russia's  argues that MEDT of Ukraine made a likelihood -of-continuation -of-injury 
determination in support of its factual assertion that MEDT of Ukraine made an injury determination. 
Considering, as stated above, we have to examine, as a factual matter, whether MEDT of Ukraine made an 
injury determination, we do not find it necessary to resolve the disagreement between the pa rties as to 
whether MEDT of Ukraine made a determination regarding the continuation , or recurrence , of injury to the 
domestic industry.  WT/DS493/R  
 
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  labour, investments, the financial performance of the domestic producers, and the 
liquidity of assets.324 
b. It assessed through such an examination whether the conditions of the domestic 
industry had deteriorated due to dumped imports.325 
c. Based on this analysis of t he current state of the domestic industry, MEDT of Ukraine 
concluded that injury to the domestic industry was not completely eliminated, and 
further when making its recommendations stated that the level of anti -dumping 
measures "was not sufficient to elimi nate injury to the [domestic industry]".326 
7.177.   Russia takes the view that MEDT of Ukraine could only have reached a conclusion that 
injury to the domestic industry was not completely eliminated by examining the current state of 
the domestic industry, and this e xamination was not conducted in accordance with Article  3 of the 
Anti-Dumping Agreement.327 In addition, Russia submits that the following references in the 
Investigation Report show that MEDT of Ukraine made an injury determination:  
a. MEDT of Ukraine stated i n section 11.3 of the Investigation Report that it would conduct 
an "analysis of the state of the Ukrainian [domestic ] industry"328; 
b. considered "the changes in the situation of the Ukrainian domestic industry since the 
imposition of the anti -dumping measures "329; and 
c. concluded that "the Ukrainian industry had not completely recovered from the injury".330 
7.178.   Russia states that there is no difference between a finding that the domestic industry did 
not completely recover from injury, and a finding that the domestic in dustry was suffering material 
injury caused by dumped imports.331  
7.179.   To ascertain whether MEDT of Ukraine made an injury determination, we must holistically 
review its injury analysis, and consider the references relied upon by Russia in their proper 
context. We note that MEDT of Ukraine 's analysis on injury -related issues is contained in 
section  11 of the Investigation Report, specifically sub -sections 11.1, 11.2, 11.3, and 11.4. Russia 
quotes mainly from section 11.3 in support of its view that MEDT of Ukrain e made an injury 
determination.  
7.180.   Section 11.3 is titled "[e]xamination of the effect the dumping import had on the Claimant 
[i.e. the domestic industry]".332 MEDT of Ukraine stated here that "[b]ased on information 
obtained during the [period of ] [r]eview", i t "determined whether the [domestic industry 's ] 
condition s [had] deteriorated due to the dumped imports". Based on its consideration of the 
performance of the domestic industry across various economic factors and indices having a 
bearing on the state of t he domestic industry, it concluded:  
The analysis of the information provided demonstrated that the consequence of the 
anti-dumping measures  in respect of the import into Ukraine of Product originating 
from the Russian Federation was the opportunity of the national producers to increase 
the production volumes, the percentage of the used production capacity, the growth of 
sales of the Products and the share in the domestic market of Ukraine, and retain the 
number of employees on the Claimant 's payroll.  
                                                
324 Russia's  response to Panel question No. 31, para.  88. 
325 Russia's  second written submission, para.  590. 
326 Russia's  response to Panel question No. 31, paras.  89-90. See also opening statement at the second 
meeting of the Panel, paras.  215-216. 
327 Russia's  second written submission, para.  593. 
328 Russia's  response to Panel question No. 31, para.  91; second written submission, para. 598. 
329 Russia's  response to Panel question No. 31, para.  91; second written submission, para.  598. 
330 Russia's  response to Panel question No. 31, para.  91; second written submission, para.  598. 
331 Russia's  second written submission, para.  588. 
332 Investigation Report, (Exhibit RUS -10b), p.  34. WT/DS493/R  
 
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  Howeve r, the financial performance of the Claimant and the ratio of coverage of the 
current liabilities precludes the Ministry from concluding that the injury is completely 
eliminated  that was caused to the national producer due to the definitive anti -dumping 
measures in respect of the import into Ukraine of the Product originating from the 
Russian Federation.333 
7.181.   Having reviewed section 11.3 of the Investigation Report as a whole, it appears to us that 
MEDT of Ukraine was assessing in this section the effectiveness  of the anti -dumping measures 
already in place, rather than establishing that the domestic industry was suffering material injury 
during the period of review. For instance, in setting out its conclusions in section 11.3, quoted 
above, MEDT of Ukraine consi dered " the consequence of the anti -dumping measures", which were 
put in place following the dumping and injury determinations in the original investigations, on the 
performance of the domestic industry. It acknowledged the improvement in performance in lig ht of 
the existence of such measures, while also noting the negative performance in profitability. 
Similarly, in concluding that "the injury [was] [not] completely eliminated" "due to the definitive 
anti-dumping measures", MEDT of Ukraine was reviewing the  effectiveness of the original 
anti-dumping measures in eliminating the injury established in the original investigation. These are 
precisely the sort of analyses that investigating authorit ies could be expected to make to 
determine whether the expiry of the anti -dumping duty, or change in its rate thereof, would lead 
to the continuation or recurrence of injury to the domestic industry. We do not see why such an 
analysis should be understood to be an injury determination, as opposed to an analysis of the 
possible impact on the domestic industry if the anti -dumping duties originally imposed were to 
expire , or be varied .334 
7.182.   Further, we find it conceivable that in assessing the effectiveness of the an ti-dumping 
measures already in force, and considering whether the existing anti -dumping duty had the 
desired effect of mitigating the material injury that the domestic industry was found to suffer in 
the original investigation, investigating authorities wo uld consider the current state of the domestic 
industry. It is also conceivable that as a result of the anti -dumping measure already in force, the 
situation of that domestic industry may have improved relative to the original period of 
investigation, but t he likelihood of continuation or recurrence of injury to the domestic industry 
persists. Thus, some of the analyses that would be relevant in an injury determination, such as the 
effect of subject imports on prices, or the impact of those imports on the do mestic industry, may 
also be relevant in a likelihood -of-injury determination. Indeed, it may be difficult to make an 
objective and unbiased examination of the likelihood of injury without considering to some extent 
the effect of imports from the subject c ountries on the current state of the domestic industry. 
However, such a consideration does not show that the investigating authorities were making an 
injury determination, as opposed to a likelihood -of-injury determination. We consider our views to 
be cons istent with that taken by the Appellate Body in US – Oil Country Tubular Goods Sunset 
Review s, where it stated:  
[W]e are of the view that the fundamental requirement of Article  3.1 that an injury 
determination be based on "positive evidence" and an "object ive examination" would 
be equally relevant to likelihood determinations under Article  11.3. It seems to us that 
factors such as the volume, price effects, and the impact on the domestic industry of 
dumped imports, taking into account the conditions of comp etition, may be relevant to 
varying degrees in a given likelihood -of-injury determination. An investigating 
authority may also, in its own judgement, consider other factors contained in Article  3 
when making a likelihood -of-injury determination. But the ne cessity of conducting 
such an analysis in a given case results from the requirement imposed by Article  11.3 
                                                
333 Investigation Report, (Exhibit RUS -10b), p.  35. (emphasis added)  
334 We note that, at first glance, and when read in isolation, certain statements in the Investigation 
Report may suggest that MEDT of Ukraine  was making an injury determination. For instance, the above -quoted 
title of section 11.3 reads" [e]xamination of the effect the dumping import had on the Claimant". However, 
when read in proper context, it is clear that MEDT of Ukraine was not making such  an injury determination, i.e. 
a determination that dumped imports caused material injury to the domestic industry during the period of 
review. For example, as is clear from the conclusion of section 11.3, MEDT of Ukraine was focused on the 
impact of the o riginal anti -dumping measures on the economic state of the domestic industry.  WT/DS493/R  
 
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  – not Article  3 – that a likelihood -of-injury determination rest on a "sufficient factual 
basis" that allows the agency to draw "reasoned and adequa te conclusions".335 
7.183.   The Appellate Body 's statement recognizes  that factors such as the impact of dumped 
imports  on the domestic industry, taking into account the conditions of competition, may be 
relevant to varying degrees in a given likelihood -of-injury determination.336 However, the necessity 
of conducting such an analysis arises from Article  11.3 of the Anti -Dumping Agreement, which 
governs likelihood -of-injury determinations, and not Article  3, which governs injury 
determinations. Hence, just because an investigating authority considers the existing state of the 
domestic industry, based, inter alia , on various factors and indices showing the performance of 
that industry, does not mean that it was seeking to establish that the domestic industry was 
sufferi ng material injury during the period of review.  
7.184.   Moreover, in assessing whether MEDT of Ukraine made an injury determination, we must 
consider the totality of its injury -related analysis in the underlying reviews, including that 
contained in sections 11.1, 11.2, and 11.4 of the Investigation Report. In section 11.1, MEDT of 
Ukraine considered the impact of the definitive anti -dumping measures already in force, and noted 
that these measures had the "expected result" considering the changes in the volume and p rice of 
dumped imports during the examined period.337 It considered that in case of termination of the 
existing anti -dumping measures, the volume of the imports from Russia could increase.338 In 
section 11.2, in considering the price effects of subject imports  on the domestic industry, MEDT of 
Ukraine evaluated the effect of subject imports on domestic industry prices during the time the 
anti-dumping measures were applied.339 In section 11.4, MEDT of Ukraine focused on whether 
imports from Russia could increase i f the existing anti -dumping duties were suspended or reduced, 
by considering facts such as the production capacity and export orientation of Russian producers of 
ammonium nitrate.340 These references show that MEDT of Ukraine 's analysis was focused on the 
impact of the anti -dumping measures already in force, and the likelihood of injury to the domestic 
industry continuing or recurring if such measures were terminated. This further confirms our view 
that MEDT of Ukraine was making a likelihood -of-injury determ ination in the underlying reviews . 
7.185.   Based on the foregoing, we find that Russia has not established that MEDT of Ukraine 
made an injury determination under Article  3 of the Anti -Dumping Agreement in the underlying 
reviews. Considering Article  3 governs  injury determinations, and not likelihood -of-injury 
determinations, we cannot examine whether MEDT of Ukraine 's determinations in the underlying 
reviews were consistent with Articles  3.1 and 3.4 of the Anti -Dumping Agreement.  
7.6.2.2   Whether Russia can claim viol ations under Articles  11.1, 11.2 , and 11.3 even if  
MEDT of Ukraine did not determine injury under  Articles  3.1 and 3.4  
7.186.   We set out in paragraph 7.161  above the two claims that Russia makes with respect to 
MEDT of Ukraine 's injury analysis in the underlying reviews. These claims are derived from item 
number 17 of the panel request. We stated in paragraph 7.44 above that item number 17 of the 
panel request needs to be read in  conjunction with item numbers  14-16 of that request. In item 
numbers 14 -16, Russia stated how different aspects of the Ukrai nian authorities ' "determination" 
and "findings" on injury were inconsistent with Articles  3.1, 3.2, 3.4 , and 3.5 of the Anti -Dumping 
Agreement. In item number 17, Russia cross -referred to the Article  3 violations alleged in item 
numbers 14 -16, and stated that Ukrainian authorities acted inconsistently with Articles  11.1, 11.2 , 
and 11.3 of the Anti -Dumping Agreement because they " determined and relied on injury  which 
                                                
335 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review s, para.  284. (emphasis 
original)  
336 We understand the Appellate Body's  statement in US – Oil Country Tubular Goods Sunset Review s 
that the fundamental requirement of Article  3.1 that an injury determination be based on "positive evidence" 
and an "objective examination" would be equally relevant to likelihood determinations under Article  11.3 to 
mean that likeliho od determinations should rest on a sufficient factual basis so as to allow the investigating 
authorities to draw reasoned and adequate conclusions. This does not mean that a likelihood -of-injury 
determination can be found to be inconsistent with Article  3.1 of the Anti -Dumping Agreement. We recall, as 
set out in footnote 314 above , the Appellate Body itself decided not to make a finding under, inter alia, 
Article  3.1 of the Anti -Dumping Agreement.  
337 Investigation Report, (Exhibit RUS -10b), p.  32. 
338 Investigation Report, (Exhibit RUS -10b), pp.  32-33. 
339 Investigation Report, (Exhibit RUS -10b), pp.  33-34. 
340 Investigation Report, (Exhibit RUS -10b), pp.  38-39.  WT/DS493/R  
 
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  was not established in accordance with Articles  3.1, 3.2, 3.4 and 3.5 of the  Anti-Dumping 
Agreement".341 Russia did not invoke Articles  3.2 and 3.5 in its first written submission, but, 
closely reflecting its panel request, asked us to find that:  
Ukraine acted inconsistently with Articles  11.1, 11.2 and 11.3 of the Anti -Dumping 
Agreement because it determined and relied on injury  which was not established in 
accordance with Articles  3.1 and 3.4 of the Anti -Dumping Agreement. In particular, 
Ukraine failed to properly establish facts and to conduct an unbiased and objective 
examination  of these facts in its likelihood of injury determination[.]342 
7.187.   In our view, Russia 's claims, as presented in its panel request , clearly showed that its 
claims under Articles  11.1, 11.2 , and 11.3 were dependent on the premise that MEDT of Ukraine 
determined,  and then relied on, injury not established in accordance with Articles  3.1 and 3.4. 
However, in response to our questions at the second substantive meeting, Russia argued that its 
two claims did not depend, or did not entirely depend, on a conclusion that  MEDT of Ukraine failed 
to act in compliance with Articles  3.1 and 3.4.343  
7.188.   Russia 's first claim, as set out in paragraph 7.161  above, is that MEDT o f Ukraine violated 
Articles  11.2, 11.3, and 3.1 of the Anti -Dumping Agreement because it failed to exclude imports of 
the Russian producer EuroChem, which had a negative dumping margin in the original 
investigation phase, from the volume of dumped imports.  Russia explains that Article  11.3 itself 
obligates investigating authorities to make an objective examination of positive evidence, and thus 
we need not examine this aspect of the measure under Article  3.1 as well.344 Therefore, Russia 
contends that we may examine pursuant to Article  11.3 whether MEDT of Ukraine 's action to 
include imports from EuroChem in the volume of subject imports was objective and unbiased, even 
if we do not examine whether MEDT of Ukraine acted in accordance with Article  3.1 in this 
regard.345 
7.189.   Russia 's second claim, as also set out in paragraph 7.161  above , is that MEDT of Ukraine 
violated Articles  11.2, 11.3 , and 3.4 of the Anti -Dumping Agreement because its evaluation of the 
economic factors and indices having a bearing on the state of the Ukrainian domestic industry was 
not based on an objective examination of positive evidence. Russia sta tes that this second claim is 
premised on Russia 's view that MEDT of Ukraine acted inconsistently with Article  3.4 of the 
Anti-Dumping Agreement.346 However, it qualifies this acknowledgment by stating that its claims 
of violations under Articles  11.2 and 11 .3 do not "entirely depend[]" on violation of Article  3.4, as 
the obligation under Article  11.3 to make an objective examination based on positive evidence 
applies to expiry reviews even if the panel cannot find any inconsistency under Article  3.4.347 
Theref ore, Russia appears to argue that because the objectivity standard under Article  11.3 
applies , even if  we do not examine whether MEDT of Ukraine acted in accordance with  Article  3.4 
in this regard , its claim under Article  11.3 should succeed . 
7.190.   While we find  Russia 's responses somewhat confusing in certain respects348, the main point 
that it makes is that a WTO panel can review the objectivity of an investigating 
authority 's likelihood -of-injury analysis under Article  11.3 (and Article  11.2), even if it did not  
make an injury determination under  Article  3. We, of course, agree. Articles  11.2 and 11.3 are 
precisely the provisions setting out the rules applicable to a likelihood -of-injury determination. 
                                                
341 Emphasis added.  
342 Russia's  first written submission, para.  347(8) (emphasis added). Russia reiterated in its opening 
statement at the first substantive meeting, as well as its second written submission, how MEDT of 
Ukraine's  determination and reli ance on injury not established in accordance with Articles  3.1 and 3.4 had led 
to violations under these Article  11 provisions. (Russia's  opening statement at first meeting of the Panel, 
para. 125; second written submission, para.  551).  
343 Russia's  response to Panel question No. 52, paras.  40 and 42.  
344 Russia's  response to Panel question No. 52, para.  38. 
345 See, e.g. Russia's  response to Panel question No. 52, paras.  38 and 40.  
346 See, e.g. Russia's  response to Panel question No. 52, para.  41. 
347 See, e.g. Russia's  response to Panel question No. 52, para.  42. 
348 It is not clear to us for example how Russia reconciles its statement that its second claim is premised 
on its view that ME DT of Ukraine acted inconsistently with Article  3.4, with its statement that this claim does 
not "entirely depend[]" on our conclusion regarding any violation under Article  3.4. (Russia's  response to Panel 
question No. 52, paras.  41-42). Moreover, while Ru ssia invokes the standard of objectivity under Article  11.3, 
it does not specifically invoke Article  11.1 or Article  11.2 in its responses, though it makes claims under these 
provisions as well. (See, e.g. Russia's  response to Panel question No. 52, paras.  38-39 and 42).  WT/DS493/R  
 
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  However, the question before us is not whether a panel can review a likelihood -of-injury 
determination under Articles  11.2 and 11.3, but whether, having claimed violations under 
Articles  11.1, 11.2 , and 11.3 in its panel request because MEDT of Ukraine determined, and relied 
on, injury not established in accordance with Articles  3.1 and 3.4, Russia can now claim violations 
under these Article  11 provisions even if  MEDT of Ukraine did not make an injury determination 
under  Article  3. 
7.191.   It is well established that the panel request delineates the scope of the claims that  the 
complainant may pursue before a panel, and that a panel 's terms of reference do not exten d to 
matters that fall outside this scope. Nothing in Russia 's panel request suggests that it intended to 
challenge MEDT of Ukraine 's likelihood -of-injury determination on its own terms under 
Articles  11.1, 11.2 , and 11.3. Indeed, the panel request does not even refer to a determination 
regarding the likelihood of continuation or recurrence of injury to the domestic industry, as is 
provided for in Articles 11.2 and 11.3. Instead, item number 17 of Russia 's panel request clearly 
states that Russia claims violations under Articles  11.1, 11.2 , and 11.3 because MEDT of Ukraine 
determined and relied on injury not established in accordance with Articles  3.1 and 3.4. 
Russia 's request for findings in paragraph 347(8) of  its first written submission further confirms 
our understanding of the nature of Russia 's Article  11 claims in this regard.349 It follows, that if 
MEDT of Ukraine did not make an injury determinat ion under Article  3, as we found that it did not, 
Russia 's Article  11 claims must also fail.350 
7.6.2.3   Conclusion  
7.192.   Based on the foregoing, we find that Russia has not established that MEDT of Ukraine 
acted inconsistently with Articles  11.1, 11.2 , and 11.3 of the Ant i-Dumping Agreement because it 
determined and relied on injury not established in accordance with Articles  3.1 and 3.4 of the 
Anti-Dumping Agreement.351 
7.7  Facts available  
7.193.   Russia challenges under Article  6.8 and paragraphs 3, 5, and 6 of Annex II of the 
Anti-Dumping Agreement MEDT of Ukraine 's rejection of the reported gas cost of the investigated 
Russian producers, and its use of the surrogate price of gas instead, to calculate the cost of 
production of these producers.352 Russia submits that by doing so, MEDT o f Ukraine de facto  
resorted to "facts available".353 Russia asserts that the conditions under Article  6.8 for use of "facts 
available" were not met in this case, and that MEDT of Ukraine acted inconsistently with Article  6.8 
and paragraphs 3, 5, and 6 of Annex II of the Anti -Dumping Agreement in rejecting the costs data 
of the investigated Russian producers because354: 
a. First, it resorted to "facts available" though  the investigated Russian producers 
cooperated and provided necessary information within a reas onable period of time.  
b. Second, it failed to inform the investigated Russian producers of the reasons for the 
rejection of submitted evidence and information and also failed to give them an 
opportunity to provide such explanations within a reasonable period  of time.  
                                                
349 In any case, defects in a panel request cannot be cured in subsequent submissions made by the 
parties in panel proceedings. (Appellate Body Report, US – Carbon Steel , para.  127).  
350 We also disagree with the distinction that Russia draws b etween its first and second claims, 
inasmuch as it states that its first claim does not depend on whether MEDT of Ukraine relied on an injury 
determination that was not made in accordance with Article  3.1, even if its second claim could be said to be 
premi sed on the view that MEDT of Ukraine relied on an injury determination not made in accordance with 
Article  3.4. Both of these claims are derived from item number 17 of the panel request and paragraph 347(8) 
of the request for findings section of its first written submission, and Russia did not make the sort of distinction 
in its panel request or the first written submission that it now seeks to make.  
351 We find our views to be consistent with taken by past panels. (See, e.g. Panel Report, US – OCTG 
(Korea) , paras.  7.320 -7.324).  
352 Russia's  first written submission, paras.  249 and 275 -276. 
353 Russia's  opening statement at the second meeting of the Panel, para.  249. 
354 Russia's  response to Panel question No. 28, paras.  78-80; first written submission, para.  270. WT/DS493/R  
 
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  c. Third, although the investigated Russian producers fully cooperated and submitted 
verifiable information in a timely fashion so that it could be used in the underlying 
reviews without undue difficulties, this information was rejected.  
7.194.   Ukraine sub mits that MEDT of Ukraine rejected the reported gas cost on substantive 
grounds, pursuant to the rules set out in Article  2.2.1.1 of the Anti -Dumping Agreement, and did 
not take a decision to resort to facts available under Article  6.8 to reject this cost.355 Ukraine 
contends that considering MEDT of Ukraine did not use facts available  under Article  6.8, 
Russia 's claim in this regard is devoid of any factual basis.356 
7.195.   We note that Article  6.8 states that "[i]n cases in which any interested party refuses 
access to, or otherwise does not provide, necessary information within a reasonable period or 
significantly impedes the investigation, preliminary and final determinations, affirmative or 
negative, may be made on the basis of facts available". Article  6.8 further  states that the 
"provisions of Annex II [of the Anti -Dumping Agreement] shall be observed in the application of 
this paragraph". Article  6.8 identifies the circumstances in which investigating authorities may 
overcome a lack of information in responses of  interested parties, by using "facts" which are 
otherwise "available" to the investigating authorities.357 In particular, it  permits investigating 
authorit ies, under certain circumstances, to fill in the gaps in the information necessary to arrive at 
conclus ions regarding dumping and injury.358 
7.196.   In reviewing the factual basis of Russia 's claims, we note that Russia has not alleged the 
rejection of any information other than the reported gas cost. Thus, the factual basis of 
Russia 's claims in this regard is limit ed to the rejection of the reported gas cost.359 With respect to 
the rejection of this cost, the Investigation Report shows that MEDT of Ukraine rejected the 
reported gas cost after finding, pursuant to a domestic law provision analogous to the second 
condit ion of Article  2.2.1.1, that the records of the investigated Russian producers did not 
completely reflect the costs associated with the production and sale of ammonium nitrate , insofar 
as the reported gas cost was concerned .360 Russia has not pointed to anything in the Investigation 
Report that suggest s that MEDT of Ukraine rejected the reported gas cost pursuant to the criteria 
set forth in Article  6.8 or Annex II of the Anti -Dumping Agreement . Thus Russia has not shown 
that MEDT of Ukraine resorted to the facts available mechanism under Article  6.8. In these 
circumstances, we agree with Ukraine that Russia 's claims do not have a proper factual basis, and 
therefore, must fail.361 
7.197.   In this regard, we note our finding above that MEDT of Ukraine 's rejection of the reported 
gas cost was inconsistent with Article  2.2.1.1 because it did not provide a sufficient basis under 
the second condition to justify such rejection. However, that finding does not mean that we can 
also find a violation with respect to a determin ation ( under Article  6.8 or Annex II of the 
Anti-Dumping Agreement ) that was never made by MEDT of Ukraine.362 
                                                
355 Ukraine's  first written submission, para.  311. 
356 Ukraine's  first written submission, para.  312. 
357 Appellate Body Report, US – Hot-Rolled Steel , para.  77. 
358 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  291. 
359 See e.g. Russia's  responses to Panel question No. 28, paras.  77-80, and No. 29, para.  81. 
360 Investigation Report, (Exhibit RUS -10b), p.  23. 
361 Russia argues that Article  6.8 applies not only when investigating authorities reject information 
submitted by investigated exporters or  producers on evidentiary grounds, but also when such rejection is for 
substantive reasons. (Russia 's opening statement at the second meeting of the Panel, para. 246). In our view, 
the question of whether an investigating authority acted inconsistently wit h Article  6.8 of the Anti -Dumping 
Agreement has to be necessarily assessed on a case -by-case basis considering, inter alia , the specific nature 
and scope of the findings made by these authorities , and the information rejected . However, when, as here, it 
is clear that the investigating authority did not make a determination based on the criteria set forth in 
Article  6.8 or Annex II , but rather rejected the reported gas cost based on its view that the records did not 
meet the analogous domestic law provisions  of the second condition of Article  2.2.1.1, we see no factual basis 
to find a violation under Article  6.8, or paragraphs 3, 5, and 6 of Annex II of the Anti -Dumping Agreement. We 
find support for our view in the panel report in  US – Shrimp II (Viet Nam) , where, having concluded that the 
investigating authority did not make a determination based on facts available, the panel rejected the claims 
under Article  6.8 and Annex  II of the Anti -Dumping Agreement. (Panel Report, US – Shrimp II (Viet Nam) , 
para. 7.233). 
362 The Anti -Dumping Agreement recognizes that in certain situations it may not be possible for 
investigating authorities to use an exporter's  or producer's  data for substantive reasons. For example, in WT/DS493/R  
 
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  7.198.   Based on the foregoing, we find that Russia has not established that MEDT of Ukraine 
acted inconsistently with Article  6.8, and paragraphs 3, 5, an d 6 of Annex II of the Anti -Dumping 
Agreement.  
7.8  Disclosure of essential facts  
7.199.   In the underlying reviews, the disclosure took place through the issuance of the 
Investigation Report by MEDT of Ukraine. This report contained MEDT of Ukraine 's draft findings 
and recommendations regarding the continued imposition of anti -dumping duty on imports of 
ammonium nitrate from Russia, at modified rates. ICIT subsequently issued its notice accepting 
the findings  and recommendations  made in this report.  
7.200.   MEDT of Ukraine p repared a confidential and a non -confidential version of its Investigation 
Report . It made the non-confidential version of the Investigation Report available to the interested 
parties . In this section, we  refer to this document as the "disclosure". We also refer, where 
relevant, to the Confidential Version of the Investigation Report. The disclosure was issued on 
25 June 2014, and MEDT of Ukraine gave interested parties time until 27 June 2014, i.e. two days, 
to file their comments on the disclosure.   
7.201.   Russia claims that this disclosure was inconsistent with Articles  6.9 and 6.2 of the 
Anti-Dumping Agreement because MEDT of Ukraine failed to set out in this disclosure the essential 
facts underlying its likelihood -of-injury and dumping determinations (d isclosure claims).363 Russia 
also claims that MEDT of Ukraine acted inconsistently with Article  6.9 of the Anti -Dumping 
Agreement because it failed to give the interested parties "sufficient time" to respond to the 
disclosure.364 Ukraine asks us to dismiss all  of Russia 's claims.  
7.8.1   Legal standard  
7.202.   Article  6.9 of the Anti -Dumping Agreement, which sets out the specific obligations that 
apply to the disclosure of essential facts, states:  
The authorities shall, before a final determination is made, inform all interest ed 
parties of the essential facts under consideration which form the basis for the decision 
whether to apply definitive measures. Such disclosure should take place in sufficient 
time for the parties to defend their interests.  
7.203.   As the first sentence makes cl ear, Article  6.9 requires the disclosure of essential  facts, and 
not all the facts that are before an investigating authority.365 The context provided by the last part 
of the first sentence of Article  6.9, and its second sentence clarifies that essential fac ts are those 
facts that "form the basis for the decision whether to apply definitive measures", and the 
disclosure of which ensures the ability of the interested parties to defend their interests.366 These 
are the facts that are significant in the process of  reaching a decision on whether or not to apply 
definitive measures, and include facts that are salient for a decision to apply definitive measures, 
as well as those that are salient for a contrary outcome.367 Thus, essential facts are not only those 
facts that support the decision ultimately reached by the investigating authorities, but include 
those facts that are necessary to the process of analysis and decision -making by the investigating 
authorities.368 Whether a particular fact is significant in the proce ss of reaching such decisions, and 
thus essential, would depend on the nature and scope of the substantive obligations that 
investigating authorities need to meet to apply definitive measures, the content of a particular 
                                                                                                                                                  
addition to Article  2.2.1.1, which permits rejectio n of costs in an exporter's  or producer's  records if the 
conditions set out therein are not met, Articles  2.2.2 (ii) and (iii) of the Anti -Dumping Agreement refer to 
situations where profit is determined on the basis of the data of "other exporters or prod ucers subject to 
investigation". If an investigating authority acts inconsistently with the rules set out in these provisions, a 
panel may find violations under these particular provisions. However, we do not see any textual basis to 
conclude that findings  of violations under these provisions could automatically lead to violations under 
Article  6.8 or paragraphs 3, 5, and 6 of Annex II of the Anti -Dumping Agreement.  
363 Russia's  first written submission, para.  347(10); response to Panel question No. 38, para.  111. 
364 Russia's  first written submission, para.  347(11).  
365 Appellate Body Report, China – GOES , para.  240. 
366 Appellate Body Report, China – GOES , para.  240. 
367 Appellate Body Report, China – GOES , para.  240. 
368 Panel Report, EC – Salmon (Norway) , para. 7.807 . WT/DS493/R  
 
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  finding needed to satisfy the subst antive obligation at issue, and the factual circumstances of each 
case, including the arguments and evidence submitted by the interested parties.369 
7.204.   In the context of an original investigation, where investigating authorities may take an 
affirmative decision  to apply definitive measures only when dumping, injury , and causal link 
between dumping and injury exist, the Appellate Body has stated that essential facts would include 
those facts that form the basis of the authorities ' conclusions on dumping, injury , and causal link. 
Essential facts would also include those facts that would be necessary to understand the factual 
basis of the intermediate findings that form the basis of the authorities ' conclusions on dumping, 
injury , and causal link.370 Such facts could  include the data forming the basis for these 
intermediate findings.371 
7.205.   In our view, in the context of a review carried out under Article  11.3 of the Anti -Dumping 
Agreement, where definitive measures must be terminated unless the investigating authorities fi nd 
a likelihood of continuation or recurrence of dumping and injury to the domestic industry, the 
essential facts would include those facts that form the basis for the 
authorities ' likelihood -of-dumping and likelihood -of-injury determinations. They would a lso include 
the facts that would be necessary to understand the factual basis of the intermediate findings that 
form the basis of these determinations.  
7.206.   Where there is a revision in the dumping margins pursuant to interim reviews under 
Article  11.2 of the Anti-Dumping Agreement, and subsequent modification in the anti -dumping 
duty rate, the essential facts would include those facts that are necessary to understand the 
factual basis of the new dumping determinations. The Appellate Body has clarified  in this regard 
that with respect to dumping determinations, investigating authorities are  expected to disclose, 
inter alia , the home market and export sales being used, the adjustments made thereto, and the 
calculation methodology that they applied  to determine th e dumping  margin .372 
7.207.   These essential facts must be disclosed in a coherent manner so as to permit an interested 
party to understand the basis for the decision to apply definitive measures.373 This means that the 
interested party must be able to clearly underst and what data was used by the investigating 
authorit ies in their determinations, and how, so that it can defend its interests.374 It also means 
that the disclosure should allow the interested parties to comment on the completeness and 
correctness of the conc lusions reached by the investigating authorities  from the facts being 
considered, to provide additional information or correct perceived errors,  and to comment on or 
make arguments as to the proper interpretation of those facts.375 
7.208.   When the essential facts a re confidential, investigating authorities may meet their 
disclosure obligations through the disclosure of non -confidential summaries of those facts.376 The 
Appellate Body has clarified in this regard , however,  that even if a WTO panel finds that essential 
facts redacted from a disclosure on grounds of confidentiality were not properly treated as 
confidential under Article  6.5 of the Anti -Dumping Agreement the panel cannot presume that such 
inconsistencies with Article  6.5 will also lead to inconsistencies with Article  6.9.377 Instead, the 
panel must examine whether any disclosure made, including that made through non -confidential 
summaries, meet the legal standard under Article  6.9.378 All disclosures should take pl ace in 
sufficient time for the parties to defend their interests.  
7.209.   The question whether  the failure to disclose essential facts leads to a violation under 
Article  6.9 as well as  Article  6.2 has been discussed in past cases. The panels in EC – Salmon 
                                                
369 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.130.  
370 See, e.g.  Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.130.  
371 See, e.g. Appellate Body Report, China – GOES , para.  248; and Panel Reports,  China – HP-SSST 
(Japan) / China – HP-SSST (EU) , para. 7.241.  
372 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131. 
373 Appellate Body Reports, China – GOES , para.  240; China – HP-SSST (Japan) / China – HP-SSST 
(EU), para.  5.130.  
374 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , paras.  5.131 and 5.133.  
375 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.131; China – 
GOES , fn 390; and Panel Report, EC – Salmon (Norway) , para.  7.805 . 
376 Appellate Body Reports, China – GOES , para.  247; Russia – Commercial Vehicles , para.  5.183.  
377 Appellate Body Report,  Russia – Commercial Vehicles , para.  5.183.  
378 Appellate Body Report,  Russia – Commercial Vehicles , paras.  5.183 and  5.189.  WT/DS493/R  
 
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  (Norway ) and Guatemala – Cement II , for instance, examined the claims regarding failure to 
disclose essential facts under Article  6.9. Based on their conclusions under Article  6.9, they 
exercised judicial economy on the Article  6.2 claims, or rejected them.379 
7.8.2   Evaluation  
7.210.   We will first consider Russia 's claims under Articles  6.2 and 6.9 of the Anti -Dumping 
Agreement concerning MEDT of Ukraine 's alleged failure to disclose the essential facts under 
consideration, specifically those concerning its likelihood -of-injury and dumping determinations. 
Then, we will consider Russia 's claim under Article  6.9 concerning MEDT of Ukraine 's alleged failure 
to give the interested parties "sufficient time" to comment on the disclosure.  
7.8.2.1   Disclosure claims  
7.211.   Russia contends that MEDT of Ukraine 's failure to provide the investigated Russian 
producers with the essential facts deprived them of an "opportunity to defend their interests ".380 
Thus,  in the view of Russia, MEDT of Ukraine acted inconsistently with Articles  6.2 and 6.9 of the 
Anti-Dumping Agreement.381 While Russia makes claims under Article  6.2 and Article  6.9, it does 
not raise any factual issues with respect to its Article  6.2 claims that are additional to, or distinct 
from, those it presents with respect to its Article  6.9 claims. Instead, it confirms that the factual 
basis of its claims under Articles  6.2 and 6.9 with respect to the disclosure of essential facts is the 
same.382 Nonetheless, Russia submits  that its claims under Article  6.2 are independent of, and not 
consequential to,  its claims under Article  6.9.383 
7.212.   Considering the factual basis of Russia 's claims concern s the disclosure of essential facts, 
which is an issue specifically addressed under Article  6.9, and it does not provide any separate 
basis for us to make independent f indings under Article  6.2, we will not make any findings under 
Article  6.2.384 To the extent we find a violation under Article  6.9 of the Anti -Dumping Agreement , 
we will exercise judicial economy with respect to Russia 's corresponding claim under Article  6.2 of 
the Anti -Dumping Agreement . If we find no violation under Article  6.9, we will reject 
Russia 's corresponding claim under Article  6.2 as well. Our approach is consistent with that taken 
by past panels.385 
7.8.2.1.1   Disclosure of essential facts forming the basis of  the likelihood -of-injury 
determination  
7.213.   Russia claims that MEDT of Ukraine failed to disclose the essential facts underlying its 
likelihood -of-injury determination386, specifically the facts underlying its conclusions regarding:  
a. the negative impact of dumpe d imports on domestic industry prices, or price effects387; 
and 
b. the economic state of the domestic industry.388 
                                                
379 Panel Report s, EC – Salmon (Norway) , para. 7.809; Guatemala – Cement II , para.  8.232.  
380 Russia's  second written submission, para.  668; opening statement at the first meeting of the Panel, 
para. 148. 
381 Russia's  second written submission, para.  667. See also first written submission, para.  313. 
382 Russia's  response to Panel question No. 38, para.  111. 
383 Russia's  second written submission, para.  666; opening statement at the first meeting of the Panel, 
paras.  146-147. 
384 Russia explains that "[e]ven if  certain information [were] not considered as essential facts" there 
would "still [be] a broader obligation under Article  6.2 to provide interested parties with a full opportunity to 
defend their interests".  Thus, in the view of Russia, investigating autho rities "may" violate this obligation under 
Article  6.2 if they fail to disclose information that does not qualify as essential facts but nevertheless, enables 
interested parties to defend their interests. (Russia's  second written submission, para.  667). Ho wever, Russia 
does not show why the situation it hypothesizes is relevant to the facts of this case.  
385 Panel Report s, EC – Salmon (Norway) , para. 7.809; Guatemala – Cement II , para.  8.232.  
386 Russia's  first written submission, para.  298. 
387 Russia's  first wr itten submission, para.  300. 
388 Russia's  first written submission, para.  301. WT/DS493/R  
 
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  7.214.   In its second written submission, Russia also contended that MEDT of Ukraine 's failure to 
disclose the export price  of the domestic industry in the disclosure resulted in a violation of 
Article  6.9.389 Russia asserts that this particular information formed part of the essential facts that 
MEDT of Ukraine was required to disclose, but makes no argument showing why this inf ormation 
was relevant to the conclusions set out in the paragraph above, or why it constituted an essential 
fact. In the absence of any arguments from Russia in this regard, we decline to address this issue 
in our analysis below.  
7.8.2.1.1.1   Disclosure on price effect s 
7.215.   Russia contends that the disclosure does not contain any figures or analysis on price 
effects, or any substantial facts supporting the conclusion that the alleged dumped imports had a 
negative impact on domestic industry prices.390 In particular, Russia as serts that the level of 
price-undercutting, price -suppression, or price -depression (if any) is unclear from the 
disclosure.391 Ukraine argues that Russia has not made a prima facie  case that these facts were 
"essential".392 In Ukraine 's view, investigating aut horities are not obligated to make a price effects 
analysis as part of their likelihood -of-injury determinations, and thus the analysis on price effects 
or the facts underlying them is not  "essential".393 The issue before us is whether the analysis and 
figures on price effects were "essential", and if so, whether MEDT of Ukraine disclosed them 
consistently with Article  6.9 of the Anti -Dumping Agreement.  
7.216.   To the extent Russia 's reference to the "analysis" on price effects refers to the reasoning 
based on which MEDT of Ukraine reached its conclusions, we agree with Ukraine that investigating 
authorities are not required to disclose them. Investigating authorities need to disclose the 
essential facts under Article  6.9, not their reasoning.394 
7.217.   However, as stated in paragraph 7.205  above , investigating authorities are required to 
disclose the essential facts underlying their likelihood -of-injury determination, including the facts 
necessary to understand the basis of intermediate findings or analysis on which this determination 
is based. MEDT of Ukraine 's price effects analysis, in section 11.2 of the disclosure, formed one of 
the bases for its overall likelihood -of-injury determination in section 11 of the disclosure. Thus, as 
part of its disclosure of the essential facts underlying its likelihood -of-injury determination, MEDT 
of Uk raine would have been required to disclose the facts necessary to understand the factual 
basis of its price effects analysis, irrespective of whether it was required  under the Anti -Dumping 
Agreement  to conduct such an analysis in the first place.395 
                                                
389 Russia's  second written submission, para.  688. 
390 Russia's  first written submission, para.  300. 
391 Russia's  first written submission, para.  300. 
392 Ukraine's  first written submission, para.  325. 
393 Ukraine's  first written submission, paras.  326-327. 
394 See, e.g. P anel Reports, China – GOES , para.  7.407; Argentina – Poultry Anti -Dumping Duties , 
paras.  7.227 -7.228; and US – Oil Country Tubular  Goods Sunset Reviews ( Article  21.5 – Argentina) , 
para. 7.148.  
395 The panel and the Appellate Body report in China – GOES  support this view. In China – GOES , the 
issue was the disclosure of essential facts underlying a price effects analysis made under Article  3.2 of the 
Anti-Dumping Agreement. Article  3.2 states that "[w]ith regard to the effect of the dumped imports on prices" 
the investigating authority shall consider whether there has been a significant price undercutting by dumped 
imports, or whether the effect of  such imports is to depress or suppress domestic prices. The panel in this 
dispute agreed with China that its authorities had not made any specific finding that the subject imports were 
significantly undercutting the prices of domestically produced like pr oducts. (Panel Report, China – GOES , 
para. 7.553). But it found that in reaching an affirmative conclusion on the existence of price suppression and 
price depression, the investigating authority had relied on its finding of low prices of subject imports re lative to 
domestic like product prices. For this reason, the panel considered that the investigating authority was required 
to disclose information on the price comparisons underlying the finding regarding the low prices of  subject 
imports, or price underc utting.  (Panel Report, China – GOES , paras.  7.568 -7.569). This finding of the panel 
was upheld by the Appellate Body. (Appellate Body Report, China – GOES , paras.  250-251). Thus, the panel 
and the Appellate Body found that to the extent the investigating a uthority made its price depression and 
suppression analysis by relying on its findings of price undercutting by subject imports, it would have to 
disclose the factual basis of this finding, irrespective of whether it was required to make a price undercutti ng 
analysis under Article  3.2 in the first place. This finding confirms our view that the relevant issue is not 
whether MEDT of Ukraine was required to make a price effects analysis in a review. Instead, even assuming 
there was no such requirement, to the extent MEDT of Ukraine made such an analysis, and it formed the basis 
of its likelihood -of-injury determination, the facts underlying that analysis would be essential.  WT/DS493/R  
 
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  7.218.   In the u nderlying reviews MEDT of Ukraine conducted its price effects analysis by 
comparing the export price of the  investigated  Russian producers (subject import prices) with the 
domestic selling prices and cost of production of the domestic industry.396 This analy sis is set out 
in section  11.2 of the disclosure.  
7.219.   Table 11.2.1  in this section  sets out the subject import prices, domestic industry prices and 
domestic industry costs, in 2010, 2011, 2012 , and the period of review. The actual figures on 
domestic industry prices and costs were set out in the Confidential Version of the Investigation 
Report, but redacted from the disclosure. Instead, growth/drop percentage rate s were provided as 
follows:  
Table 1: Table  11.2.1  
 2010  2011  2012  RIP 
Average price of 
Product originating 
in the Russian 
Federation  186.2  265.1  260 274.8  
Growth/drop rate, %  - 42.37  39.63  47.58  
Average price of 
ammonium nitrate of 
the national 
producers  [ ] [ ] [ ] [ ] 
Growth/drop rate, %  - 42.12  46.47  45.39  
Cost of sales of the 
domestic producers, 
USD/t  [ ] [ ] [ ] [ ] 
Growth/drop rate, %  - 29.33  61.19  58.76 
Source: Investigation Report, (Exhibit RUS -10b), p. 33; Ukraine 's translation of Table 11.2.1 (Exhibit UKR -17). 
7.220.   In the accompanying text in section 11.2, MEDT of Ukraine stated that:  
During the examination period, the prices of import of the Product to Ukraine were 
lower than the sales price  and the production cost of like products sold by the 
Claimant  in the domestic market of Ukraine.  
… 
These conditions of the import into Ukraine of the Product under the Review 
negatively influenced the construction of sale prices for like products of the national 
manufacturers in the domestic market of Ukraine and deprived them of the 
opportunities to se ll their own Products at the prices proportionate to the increased 
production cost, which led to losses by the national producer in 2012 and the [review 
investigation period]  from the sales of the Product in the domestic market of 
Ukraine.397 
7.221.   The italicized part in the first paragraph of the quoted excerpt shows that MEDT of Ukraine 
found that:  
a. subject import prices were lower  than the prices at which the domestic industry sold the 
like product in the Ukrainian market; and  
b. subject import prices were lower  than the cost of production of the domestic industry.  
7.222.   The second paragraph of the quoted excerpt shows that MEDT of Ukraine relied, inter alia , 
on this finding of lower -priced subject imports to conclude  that these conditions negatively 
affected the domestic producers ' sales prices for the like products, and deprived them of the 
opportunity to sell their products at prices proportionate to the increased production cost, which in 
turn led to losses.398 MEDT of Ukraine went on to conclude based on this analysis th at imports 
                                                
396 Ukraine's  response to Panel question No. 42, para.  106. 
397 Investigation Report, (Exhibit RUS -10b), p. 33. (emphasis added)  
398 Investigation Report, (Exhibit RUS -10b), p.  33. WT/DS493/R  
 
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  from Russia, during the time -frame the original anti -dumping measures were applied, adversely 
affected the sales price of the domestic industry, leading to losses in their sales in the domestic 
Ukrainian market.399 This shows that the existence of  lower -priced subject imports formed the 
basis of MEDT of Ukraine 's price effects analysis. Therefore, interested parties would have required 
access to information regarding the price comparison between subject import prices, domestic 
industry prices, and domestic industry costs to understand the factual basi s of its price effects 
analysis.  If this information was confidential, an adequate non -confidential summary would be 
required.  
7.223.   However, as Russia argues, the disclosure does not contain any information regarding the 
level of price -undercutting or price -suppression, or any price comparisons.400 Specifically, 
Table  11.2.1 does not disclose this information. While it does disclose the year -on-year 
growth/drop percentage rates, such rates do not provide any in dication of the prices of subject 
imports relative to domestic industry prices and costs.401 Specifically, they do not indicate whether 
subject imports were higher or lower than domestic industry prices or costs during the examined 
period.402 Thus, such rates were not sufficient to understand the factual basis of MEDT of 
Ukraine 's conclusion that subject imports were priced lower than domestic industry prices and 
costs.  
7.224.   Ukraine additionally argues that MEDT of Ukraine disclosed the factual basis of its 
conclusi ons regarding the differences between subject import prices and domestic industry costs 
through the disclosure of injury margins. MEDT of Ukraine determined these injury margins 
pursuant to domestic law requirements , to calculate the amount of anti -dumping  duty rate 
sufficient to avoid injury to the domestic industry.403 
7.225.   There  are important differences in the comparison figures on domestic industry costs and 
subject imports discussed in Table 11.2.1 of the disclosure, and relied upon by MEDT of Ukraine to 
make its price effects analysis, and the injury margins. First, unlike Table 11.2.1, these margins 
were calculated only for the period of review, and not 2010 -2012. Second, MEDT of Ukraine 
calculated, for the period of review, exporter -specific  injury margin of 20.51% for one producer, 
and 36.03% for the other. It also calculated an injury margin of 36.03% at a country -wide level. 
Third, while Table 11.2.1 represent ed the differences between subject imports and domestic 
industry costs, Ukraine does not appear to argue that the injury margins disclosed these 
differences as such. Instead, the injury margins represent ed the differences between subject 
import prices and a target price, which, in turn was based on the domestic industry costs.404 To 
calculate the targe t price, MEDT of Ukraine added a 10% profit margin to the cost of production.405 
7.226.   Ukraine takes the view that the knowledge of injury margins would have allowed 
interested parties to understand the differences between subject import prices and domestic 
indust ry costs during the period of review.406 In particular, Ukraine asserts that the disclosure of 
injury margins for the period of review would have allowed the investigated Russian producers to 
know that their prices were lower than the cost of production of t he domestic industry by 10 -20%, 
                                                
399 Investigation Report, (Exhibit RUS -10b), pp.  33-34. 
400 Russia's  first written submission, paras.  300 and 347(10).  
401 See, e.g. Appellate Body Report, China – GOES ; paras.  246-247; and Panel Reports, China – X-Ray 
Equipment , para.  7.409 ; and China – GOES , para.  7.572. In China – GOES , for example, China argued that its 
investigating authority disclosed the essential facts regarding its price depression and suppressio n analysis, 
which was found to be based on the low -price of subject imports relative to domestic industry prices, by 
disclosing percentage changes in average domestic prices as well as costs over a given period. The panel as 
well as the Appellate Body foun d that the disclosure of such trends was not sufficient to meet the 
authorities'  obligation to disclose the essential facts regarding its price depression analysis.  
402 For example, assume in a hypothetical situation, the domestic industry prices and cost in creased or 
decreased in the period of review relative to what they were in the year before, but remained higher than the 
subject import prices. In such a situation, the growth/drop percentage rates showing changes in domestic 
industry prices and costs woul d not provide any indication on whether the subject import prices were lower or 
higher than those prices and costs.  
403 Investigation Report, (Exhibit RUS -10b), p.  29. MEDT of Ukraine explained in the disclosure that 
pursuant to Ukrainian domestic law, the a mount of final anti -dumping duty rate may not exceed the amount of 
dumping margin, and may be lower than this margin, if such a lower rate was sufficient to avoid the injury 
suffered by the domestic industry.  (Investigation Report, (Exhibit RUS -10b), p.  30). 
404 Ukraine's  response to Panel question No. 56(a)(i), para.  29. 
405 Ukraine's  response to Panel question No. 56(a)(i), para.  29. 
406 Ukraine's  response to Panel question No. 56(a)(i), para.  29. WT/DS493/R  
 
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  though it does not show how.407 Further, in Ukraine 's view, once the Russian producers had 
knowledge of the injury margin during the period of review, they could assess the difference s 
between the subject import prices and cos t of production over 2010 -2012 as well because 
Table  11.2.1 provided the growth/ drop percentage rates, representing the year -on-year changes 
in subject import imports and domestic industry cost.408 Finally, Ukraine submits that because the 
two exporting Russ ian producers for which injury margins were calculated made up 100% of 
Russian exports to Ukraine, the disclosure of injury margins effectively led to a disclosure of the 
basis of MEDT of Ukraine 's finding that subject imports were lower -priced than domest ic industry 
costs.409 We disagree with Ukraine 's argument s. 
7.227.   Investigating authorities are required to disclose essential facts in a coherent manner. 
Thus, interested parties are not expected to engage in back -calculations and inferential reasoning, 
or piece together a puzzle to derive the essential facts. To derive, on the basis of these injury 
margins, the difference s between subject import prices and domestic industry costs for the period 
2010-2012 and the period of review based on which MEDT of Ukraine rea ched its conclusions on 
price effects, the interested parties would have to do precisely that. We are not convinced that 
interested parties should have had to derive the essential facts through such kind of 
back-calculations and inferential reasoning  when MEDT of Ukraine  could just as well have disclosed 
these facts in a coherent manner. Therefore, we find that the disclosure of such injury margins 
was not sufficient to understand the factual basis of MEDT of Ukraine 's price effects analysis.  
7.228.   Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with Article  6.9 
of the Anti -Dumping Agreement because it failed to disclose the essential facts that were required 
to understand the factual basis of its conclusions on price effect s in section 11.2 of the 
Investigation Report, and which formed one of the bases of its affirmative determination on the 
likelihood of injury. We exercise judicial economy on Russia 's claim under Article  6.2 of the 
Anti-Dumping Agreement  insofar a s it aris es from the same factual basis as this claim under 
Article  6.9 of the Anti -Dumping Agreement . 
7.8.2.1.1.2   Disclosure of essential facts regarding the economic state of the domestic 
Ukrainian industry  
7.229.   In section 11.3 of the disclosure, MEDT of Ukraine analysed and made  findings regarding 
the economic state of the domestic industry. In its analysis, it examined various economic factors 
and indices (indices) having a bearing on the state of the domestic industry. The section contains 
six tables that show the performance o f the domestic industry across these indices for the period 
2010, 2011, 2012 , and the period of review (Injury Tables 11.3.1 to 11.3.6). Tables 11.3.1 to 
11.3.6 of the Confidential Version of the Investigation Report set out the absolute figures showing 
the domestic industry 's performance for the period 2010 -2012 and the period of review across the 
different indices examined in these tables.410 It also provided a growth/drop percentage rate, 
which shows, in percentage form, the year -on-year changes in the per formance of the domestic 
industry from 2010 up to the period of review. The absolute figures were redacted from the 
disclosure, and the growth/drop percentage rates were provided instead. The tables were also 
accompanied by narrative text.411 The domestic in dustry, whose performance these Injury Tables 
                                                
407 Ukraine's  response to Panel question No. 56(a)(i), para.  29. 
408 Ukraine's  response to Panel question No. 56(a)(i), paras.  29-30. 
409 Ukraine's  response to Panel question No. 56(b), paras.  31-32. 
410 MEDT of Ukraine examined the following indices in the Injury Tables: Table 11.3.1 – (a) sales of 
ammonium nitrate by domesti c producers in the domestic market , (b) domestic consumption , (c) share of 
sales by the domestic producers in domestic consumption; Table 11.3.2 – (a) production volumes of the 
product of the national producer , (b) capacity utilization , (c) warehouse stock  balance of the national producers 
at the end of the period; Table 11.3.3 – (a) average number of employees of domestic producers , (b) average 
monthly salaries in companies of the domestic producers, (c) employees engaged in production , sales and 
management, (d) employed in production of the product, (e) labour productivity; Table 11.3.4 – (a) domestic 
producers ' investments; Table 11.3.5  – (a) financial result (profit/loss) of the domestic producers from sales of 
the ammonium nitrate in  the internal market, (b) profitability on sales of ammonium nitrate by the domestic 
producers; Table 11.3.6 – absolute liquidity.  (Investigation Report, (Exhibit RUS -10b), pp.  34-36; Confidential 
Version of the Investigation Report, (Exhibit UKR -52b (BCI) ), pp.  41-43). 
411 Investigation Report, (Exhibit RUS -10b), pp.  34-36. WT/DS493/R  
 
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  represented, comprised the following domestic producers: JSC Azot OJSC, JSC Rivneazot, CJSC 
Severodonetsk Azot Association , and JSC Concern Stirol.412  
7.230.   Russia contends that the absolute figures redacted from Inju ry Tables 11.3.1 to 11.3.6 
constituted the essential facts underlying MEDT of Ukraine 's likelihood -of-injury determination, 
which it should have disclosed.413 Russia asserts that these figures represented aggregate figures 
of four different producers, and th us could not have been redacted for reasons of confidentiality.414 
Further, Russia submits that MEDT of Ukraine did not comply with Article  6.5 of the Anti -Dumping 
Agreement when treating these figures as confidential, as this provision permits confidential 
treatment of information only when "good cause" is shown, but no such good cause was shown by 
the domestic industry.415  
7.231.   Ukraine asserts that Russia has not made a prima facie  case showing why the data in the 
Injury Tables constituted essential facts.416 Ukraine submits in this regard that the sufficiency of 
the disclosure should be assessed taking into account the determinations made by the 
investigating authority.417 Ukraine contends that i n the underlying reviews, MEDT of Ukraine made 
its determinations on the basis of the trends in the various economic indices examined in the 
Injury Tables, rather than the absolute figures, and disclosed these trends through the 
growth/drop percentage rates.418 Thus, in Ukraine 's view, MEDT of Ukraine disclosed the essenti al 
facts forming the basis of its likelihood -of-injury determination, specifically its analysis of the state 
of the domestic industry.  
7.232.   Further, Ukraine notes that Article  6.9 does not require the disclosure of essential facts 
that benefit from confidential  treatment under Article  6.5 of the Anti -Dumping Agreement, and 
when essential facts are properly treated as confidential under Article  6.5, disclosure obligations 
can be met through the issuance of non -confidential summaries of such essential facts.419 Ukraine 
submits that absolute figures redacted from the Injury Tables were confidential, as they 
represented the aggregated figures of producers belonging to a single group of companies, 
namely, the Ostchem Group, and these producers sought confidential treatm ent for these 
aggregated figures.420 Ukraine points to a collective submission made by these four domestic 
producers (Exhibit UKR -51b) in support of its view. Ukraine notes that in any case Russia did not 
make a claim under Article  6.5 of the Anti -Dumping Ag reement, and therefore cannot question the 
confidential treatment of these absolute figures under this provision. Ukraine asserts that MEDT of 
Ukraine met its disclosure obligations through the issuance of non -confidential summaries, 
namely, the growth/dro p percentage rates.421 
7.233.   We begin our analysis by noting that Russia has not made any claim under Article  6.5 
challenging the confidential treatment of the absolute figures, and thus, we cannot examine 
whether MEDT of Ukraine acted inconsistently with this pro vision in treating these absolute figures 
as confidential.422 We also note that  Ukraine has asserted that the domestic industry sought 
confidential treatment for the absolute figures in the Injury Tables, and except information 
pertaining to certain indices in Injury Table 11.3.3423, has substantiated its assertion by pointing to 
                                                
412 Investigation Report, (Exhibit RUS -10b), p.  7. 
413 Russia 's first written submission, para. 301; second written submission, para. 684. 
414 Russia's  response to Panel question No. 39, para.  114. 
415 Russia's  opening statement at the second meeting of the Panel, paras.  264 and 265 -266. 
416 Ukraine's  first written submission, para.  328. 
417 Ukraine's  first written submission, para.  339. 
418 Ukraine's  first written submission, paras.  340-341. 
419 Ukraine' s first written submission, para.  335. 
420 Ukraine's  response to Panel question No. 40, para.  102; second written submission, para.  181. 
421 Ukraine's  first written submission, para.  337. 
422 Our decision in this regard is consistent with that taken by other pan els, which, in the absence of a 
claim under Article  6.5, have declined to examine whether the confidential treatment of essential facts was 
justified under this provision. ( See, e.g. Panel Report, Korea – Certain Paper , para. 7.327 ). See also Panel 
Report,  China – Broiler Products  (Article  21.5 – US), para.  7.327.  
423 Table 11.3.3 sets out figures pertaining to, inter alia , the following indices: (a) average monthly 
salaries in companies of the domestic producers; (b) employees engaged in production, sales and 
management; (c) employment in production of the product; and (d) labour productivity . Ukraine, as stated 
above, relied on Exhibit UKR -51b, to show that  the domestic industry requested confidential treatment for 
aggregate figures pertaining to the indices set out in the Injury Tables. But Exhibit UKR -51b does not contain 
any request for confidential treatment for figures pertaining to these indices  contained in Injury Table 11.3.3.  WT/DS493/R  
 
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  the relevant evidence on the record.424 In addition, as clarified by the Appellate Body in its recent 
report in Russia – Commercial Vehicles  "regardless of whether or not the essential f acts at issue 
[are] treated  [by the investigating authority]  as confidential consistently with the requirements of 
Article  6.5, a panel must examine whether any disclosure made – including that made through 
non-confidential summaries under Article  6.5.1 – meets the requirements of Article  6.9".425 
Therefore, even if we were to assume that MEDT of Ukraine did not treat the essential facts at 
issue as confidential consistently with Article  6.5, as is argued by Russia, we would still have to 
examine whether any disclosure made, which includes in this case the growth/drop percentage 
rates disclosed by MEDT of Ukraine, was sufficient to discharge its obligations under Article  6.9. 
Thus, the question before us is not whether MEDT of Ukraine acted inconsistently wit h Article  6.9 
in failing to disclose the absolute figures redacted from the Injury  Tables, but whether the 
disclosure that it made was sufficient to meet the requirements of Article  6.9. 
7.234.   Ukraine, as noted earlier, makes two main (and alternative) arguments  in this regard. 
First, it contends that MEDT of Ukraine made its determinations based on trends, rather than 
absolute figures, and the growth/drop percentage rates were sufficient to disclose the factual basis 
of the determinations actually made. Thus, in  Ukraine 's view, the growth/drop percentage rates, 
not the absolute figures, were the essential facts that needed to be disclosed. Russia does not 
respond to this argument. Instead, noting Ukraine 's argument that the absolute figures redacted 
from the tables do not amount to essential facts, Russia simply asserts that "exactly those 
numbers [i.e. the absolute figures] that are missing precluded the Russian producers from a 
proper defence".426  
7.235.   Second, Ukraine contends that these rates constituted an adequate non-confidential 
summary of confidential facts, i.e. the absolute figures. Russia, instead of properly responding to 
this argument, continued to assert throughout these proceedings that the failure to disclose the 
absolute figures led to a violation of  Article 6.9, and insisted that MEDT of Ukraine was required to 
disclose these figures to comply with its obligations in this regard.427 These arguments, however, 
                                                
424 Ukraine's  response to Panel question No. 58(b), para.  34 and Annex I. Exhibit UKR -51b did not 
contain any request for confidential treatment for absolute figures pertaining to the following indices: 
(a) domestic consum ption and share of sales by the domestic industry in Table 11.3.1; or (b) production 
volumes of the domestic industry in Table 11.3.2. However, with respect to domestic consumption and share of 
sales, we note Ukraine's  argument that domestic consumption wa s calculated as the sum of total import sales 
(which was disclosed) and domestic sales of the domestic industry (for which confidential treatment was 
requested), and thus disclosure of absolute figures pertaining to these indices would have allowed interes ted 
parties to calculate the domestic sales volume of the domestic industry, thereby compromising its confidential 
treatment. Having reviewed the Confidential Version of the Investigation Report and the disclosure, we agree 
with Ukraine that, as a matter o f fact, the disclosure of absolute figures with respect to domestic consumption 
would have compromised the confidential treatment of domestic sales of the domestic industry as interested 
parties could simply subtract figures on total volume of import sales  from the volume of total domestic 
consumption. Similarly, the disclosure of the percentage market share of the domestic industry in domestic 
consumption would have also allowed interested parties to calculate the volume of domestic sales of the 
domestic i ndustry in absolute terms. With respect to production volumes of the domestic industry, we note that 
this information was disclosed in another section of the disclosure (Table 4.1.1). Thus, while we could agree 
that this particular information could have b een presented in a more organized manner in the disclosure, 
having reviewed the narrative part of Table 4.1.1, we consider that interested parties should have been able to 
understand that these figures pertained to the domestic production of the domestic i ndustry, and make their 
comments on the disclosure on the basis of this information.  
425 Appellate Body Report, Russia – Commercial Vehicles , para.  5.189. The panel in that case had found 
that if confidential treatment was granted to information that constit utes essential facts without complying with 
the requirements of Article  6.5, the obligations under Article  6.9 may not be met through the disclosure of 
non-confidential summaries within the meaning of Article  6.5.1 of the Anti -Dumping Agreement. (Appellate  
Body Report, Russia – Commercial Vehicles , para.  5.188; Panel Report,  Russia – Commercial Vehicles , 
paras.  7.268 -7.269). The panel accordingly did not consider it necessary to examine the alleged disclosure of 
essential facts made through the non -confiden tial summaries of confidential information. (Appellate Body 
Report, Russia – Commercial Vehicles , para. 5.188; Panel Report,  Russia – Commercial Vehicles , para. 7.269). 
The Appellate Body noted that the panel understood that where essential facts are not p roperly treated as 
confidential in accordance with Article  6.5, this would automatically lead to an inconsistency  with Article  6.9. 
The Appellate Body found this understanding to be erroneous and reversed the panel's  findings in this regard. 
(Appellate Bod y Report, Russia – Commercial Vehicles , para.  5.189).  
426 Russia's  opening statement at the first meeting of the Panel, para.  152. 
427 For example, even as late as in its second written submission, Russia argued that "[w]ithout the 
knowledge of concrete figure s", the Russian producers were unable to meaningfully address the issue by 
commenting on the figures, and that the information in the "blank space", i.e. redacted figures in the Injury 
Tables, should be treated as essential facts that MEDT of Ukraine faile d to disclose. (Russia's  second written WT/DS493/R  
 
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  do not fully address Ukraine 's point that the growth/drop percentages rates were adequate 
non-confidential summaries of confidential facts that it could not disclose. In response to our 
question to Russia as to why the growth/drop percentage rates did not constitute an adequate 
non-confidential summary Russia simply stated:  
[Russia] is of a strong opinion that the knowledge of the rate of increase/decrease 
across the factors is not enough to enable interested parties to properly defend their 
interests in accordance with the Anti -Dumping Agreement. These data do not give a 
concrete picture as to how the figures relate to each other, nor are they helpful to 
assess the state of the domestic industry. Taken alone, they might be indicative for 
one factor but together the figures do not add up to the sufficient degree of clarity to 
understand whether the l ikelihood -of-injury determination rests on objective 
examination of positive evidence.  
As an illustrative example, the absence of figures on sales in combination with the 
absence of figures on production volumes precludes interested parties from 
understand ing the ratio between these numbers. In this regard, [Russia] recalls 
Appellate Body 's understanding that essential facts are not only "those that are salient 
for a decision to apply definitive measures", but also "those that are salient for a 
contrary out come."428  
7.236.   Ukraine contends that this response of Russia is substantially equal to a failure to 
respond.429 Ukraine states that instead of providing a concrete response to the Panel 's questions, 
Russia argues, essentially, that absolute figures should have bee n provided because such figures 
are generally more informative than a rate of increase/decrease, and that Russia cannot calculate 
the ratio of sales to production.430 Ukraine submits that while absolute figures may well be more 
informative, to the extent they could not be disclosed on grounds of confidentiality, Russia does 
not present any argument as to why such rates could not constitute sufficient disclosure of the 
confidential figures.431 We agree.  
7.237.   We note for instance that Russia argues that the absence of figures on sales and 
production volumes precluded interested parties from understanding the ratio between these 
numbers. However, Russia  does not at all substantia te why such information  was necessary to 
understand the factual basis of MEDT of Ukraine 's determinations . It also does not substantiate  
why such information was salient for a decision to apply definitive measures, or salient to a 
contrary outcome. Similar ly, in the opening statement that it presented  at the  second meeting of 
the Panel, Russia asserted that the non -confidential summaries provided in the Injury Tables were 
not consistent with Article  6.5.1 of the Anti -Dumping Agreement  because these Tables  did not 
show how the information across the different tables were related , in particular, the information on 
sales (Table 11.3.1) and that on  production volumes (Table  11.3.2).432 Russia, we note, has not 
pursued any claim under Article  6.5.1 in these proceed ings. In addition, Russia 's statement is 
extremely unclear. It is not clear to us, for instance, what kind of relation Russia expects between 
the information in the different Injury Tables for the growth/drop  percentage  rates to constitute an 
adequate non -confidential summary, and why.  
7.238.   We cannot  make the case for Russia by considering, without adequate arguments from it, 
why: (a) the growth/ drop percentage rates were not sufficient to meet MEDT of 
Ukraine 's disclosure obligations though Ukraine contends tha t taking into account the nature of the 
determination made by MEDT of Ukraine (i.e. a determination based on trends, rather than 
absolute figures) the growth/ drop percentages were sufficient to meet these disclosure 
obligations; and (b) the growth/drop per centage rates did not constitute an adequate 
                                                                                                                                                  
submission, paras.  683-684). We note that these arguments were made under a subheading of the written 
submission titled "[t]he information provided does not constitute an effective non -confidential summary". But 
the arguments presented under this subheading focus on why MEDT of Ukraine needed to disclose absolute 
figures to comply with its obligation under Article  6.9. (Russia's  second written submission, paras.  681-684).  
428 Russia's  response to Panel question No. 39(b), paras.  118-119. See also second written submission, 
para. 683. 
429 Ukraine's  second written submission, para.  188. 
430 Ukraine's  second written submission, para.  188. 
431 Ukraine's  second written submission, para.  189. 
432 See also Russia's  second written submission, para.  683. WT/DS493/R  
 
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  non-confidential summary, which was  sufficient to understand the factual basis of MEDT of 
Ukraine 's determinations. That was the task for Russia, which it has failed to fulfil.  
7.239.   Based on the foregoing, we find th at Russia has not established that MEDT of Ukraine 
acted inconsistently with Article  6.9 of the Anti -Dumping Agreement with respect to the disclosure 
of the essential facts underlying its analysis of the state of the domestic industry. We thus reject 
Russia 's corresponding claim under Article  6.2 of the Anti -Dumping Agreement as well.  
7.8.2.1.2   Disclosure of essential facts forming the basis of the dumping determinations  
7.240.   Russia contends that MEDT of Ukraine failed to disclose the essential facts underlying its 
dumping determinations, particularly the relevant data and formula applied in making the dumping 
calculations, and the precise figures used.433 Russia submits  that the disclosure does not set out 
the calculation methodology, whether in the form o f worksheets and computer output or in details 
of the data and formulas applied.434 Ukraine does not deny that the precise figures or the data 
underlying MEDT of Ukraine 's dumping determinations, specifically, constructed normal value, 
export price , and adjustments , were not disclosed to the investigated  Russian producers. Instead, 
Ukraine takes the view that this data was already in the possession of the investigated producers, 
and MEDT of Ukraine provided sufficient details in the narrative part of the disclosure to ena ble 
these producers to know which specific data in their possession was used to calculate their 
dumping margins, and how.435 
7.241.   We note that Russia 's claim concerns the disclosure of the precise figures, data , and 
formulas used for dumping determinations. In the underlying reviews MEDT of Ukraine calculated 
separate dumping margins for the Russian producers EuroChem and JSC Dorogobuzh.436 MEDT of 
Ukraine did not provide in the disclosure the actual figures showing the constructed normal value, 
export price , and ad justments.437 The actual figures were instead replaced with an empty bracket. 
Ukraine also does not deny that MEDT of Ukraine did not disclose the data underlying its 
calculations of constructed normal value, export price , and adjustments to the interested p arties, 
though it contends that this data was already in the possession of the concerned producers. With 
respect to the formulas, the specific formulas that Russia alleges were not disclosed are certain 
formulas applied by MEDT of Ukraine in calculating th e cost of production of the product under 
consideration , and subsequently used in construct ing normal value. Specifically, MEDT of Ukraine 
set out in the Confidential Version of the Investigation Report certain formulas used for calculating 
the cost of amm onia and nitric acid, but the disclosure does not refer to  these formulas.438 
7.242.   Ukraine does not dispute that the figures, data , and formulas that MEDT of Ukraine did not 
disclose were essential facts. Instead, it s arguments are based on the form in which  such facts 
need to be disclosed . Thus, the  question before us is whether MEDT of Ukraine disclosed, in a 
coherent manner, the facts necessary to understand the factual basis of its dumping 
determinations.  
7.243.   In addressing this question, we recall, as stated i n paragraph 7.207  above, that the 
disclosure should allow the interested parties to comment on the completeness and correctness of 
the conclusions the investigating authorities reached from the facts being considered, to provide 
additional information or correct perceived errors,  and to comment or make arguments as to the 
proper interpretation of those facts.439 Moreover, the disclosure must allow the interested party to 
clearly understand what data the investigating authority has used, and how, to determine the 
dumping margin.440 We consider in this regard Ukraine 's argument that though MEDT of Ukraine 
did not disclose the precise figures, it did provide  sufficient details in the disclosure to enable these 
                                                
433 Russia's  first written submission, paras.  347(10), 304, and 308 -310. 
434 Russia's  first written submission, para.  310. 
435 Ukraine's  first written submission, paras.  349, 355, and 358.  
436 Ukraine' s first written submission, para.  342. 
437 Investigation Report, (Exhibit RUS -10b), pp.  19-21 and 24 -28. It is not argued that company -specific 
disclosures were provided to the investigated Russian producers disclosing these details. Thus, this report is 
the only document relevant to our review.  
438 Investigation Report, (Exhibit RUS -10b), pp.  24-27; Confidential version of the Investigation Report, 
(Exhibit UKR -52b (BCI)), pp.  31-34. 
439 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.131; China – 
GOES , fn 390; and Panel Report, EC – Salmon (Norway) , para.  7.805.  
440 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.131.  WT/DS493/R  
 
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  producers to know which specific data in their possession was used to calculate their dumping 
margins, and how. The issue before us is similar to that discussed by the panel and the Appellate 
Body in China – HP-SSST (Japan) / China – HP-SSST (EU) . 
7.244.   In that dispute, noting that the basic data underlying dumping determinations constitute s 
essential facts, the panel focused on the manner in which these facts were disclosed.441 The panel 
found that the investigating authority had described, in the narrative part of its disclosure, the 
sales data under consideration, the basis for determining normal value and export price, and the 
adjustments made thereto.442 Moreover, the investig ating authority had specified when it used 
data or made adjustments requested by the exporters, and in addition, disclosed actual data when 
it departed from the data submitted by the exporters.443 The panel found that the complainants 
had not shown why these  narrative descriptions were not sufficient to meet the investigating 
authority 's obligations under Article  6.9.444 
7.245.   The Appellate Body reversed the panel 's findings. It found that such a disclosure was not 
sufficient to meet an investigating authority 's obligation under Article  6.9 of the 
Anti-Dumping  Agreement.445 In particular, it found that the mere fact that an investigating 
authority refers in its disclosure to data that is in the possession of an interested party does not 
mean that the investigating autho rity has:  
a. disclosed the factual basis for its determination in a manner that enables interested 
parties to comment on the completeness and correctness of the conclusions the 
investigating authority reached from the facts being considered, and to comment on  or 
make arguments as to the proper interpretation of those facts446; and 
b. disclosed the essential facts that are salient for a decision to apply definitive measures, 
as well as those that are salient for a contrary outcome, in a coherent way, so as to 
permit  an interested party to understand the basis for the decision whether or not to 
apply definitive measures, and to defend its interests.447 
7.246.   Ukraine seeks to distinguish these findings by arguing that the dispute in China – HP-SSST 
(Japan) / China – HP-SSST (E U) concerned a situation where the investigated producers submitted 
various data, and it was not clear which data was selected by the investigating authority to 
calculate the dumping margins.448 Ukraine submits that by contrast in the present case MEDT of 
Ukraine specifically identified the data used to determine the dumping margins in the narrative 
part of the disclosure.449 
7.247.   Contrary to Ukraine 's arguments,  however,  the Appellate Body 's finding in China – 
HP-SSST (Japan) / China – HP-SSST (EU) is not limited to cases where investigating authorit ies 
select some data, from amongst various data furnished by the investigated producers. The 
Appellate Body also raised other concerns. In particular, it said that such  a type of disclosure 
would not allow the  investiga ted producers to correct clerical and mathematical errors in dumping 
margin calculations or confirm that the investigating authority determined the dumping margin in 
the manner it purported to do.450 Moreover, it stated  that mere references to the data in 
possession of the investigated producer in the narrative part of a disclosure would not result in the 
disclosure of such essential facts to interested parties other than this producer.451 Thus, we do not 
agree with Ukraine 's understanding of the scope of the A ppellate Body 's findings in China – 
HP-SSST (Japan) / China – HP-SSST (EU ). 
7.248.   Instead, we find the concerns raised by the Appellate Body to be fully applicable to the 
situation before us. In particular, we do not consider that in the absence of precise figur es or the 
                                                
441 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  7.235.  
442 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  7.236.  
443 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  7.236.  
444 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  7.236.  
445 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , paras.  5.131 and 5.133.  
446 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.131.  
447 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.133.  
448 Ukraine' s first written submission, para.  348. 
449 Ukraine's  first written submission, paras.  349, 355, and 358.  
450 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , fn 323. 
451 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), fn 325. WT/DS493/R  
 
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  underlying data used for constructed normal value, export price , and adjustments, interested 
parties would be able to comment on the accuracy of the calculations made by MEDT of Ukraine or 
confirm that it actually did what it purported to do. We also find that MEDT of Ukraine 's failure to 
disclose certain formulas used in calculating the cost of production deprived the interested parties 
of an opportunity to understand the basis for this calculation and comment on it.  
7.249.   Based on the foregoing, we fi nd that MEDT of Ukraine acted inconsistently with Article  6.9 
of the Anti -Dumping Agreement because it failed to disclose in a coherent manner the facts 
necessary to understand the factual basis of its dumping determinations, including the precise 
figures and data underlying its calculation of constructed normal value, export price , and 
adjustments thereto. Moreover, insofar as MEDT of Ukraine failed to disclose certain formulas that 
it used to calculate the cost of production, and constructed normal value,  it also acted 
inconsistently with Article  6.9 of the Anti -Dumping Agreement.  We exercise judicial economy on 
Russia 's claim under Article  6.2 of the Anti -Dumping Agreement insofar as it arises from the same 
factual basis as this claim under Article  6.9. 
7.8.2.2   Sufficiency of time given to respond to disclosure  
7.250.   MEDT of Ukraine gave the interested parties two days to comment on the disclosure. 
Russia considers this to be an "outrageous violation" of Article  6.9, which requires investigating 
authorities to give int erested parties "sufficient time" to comment on the disclosed essential 
facts.452 Russia states that taking into account the complexity of the issues discussed in the 
disclosure, the time of two days was insufficient.453 Further, according to Russia,  MEDT of 
Ukraine 's decision to reject EuroChem 's comments on the disclosure on the ground that they were 
filed after business hours on the due date  was inconsistent with Article  6.9.454 Ukraine considers 
that the time of two days was sufficient in this case, and notes  that two of the three Russian 
producers filed comments on the disclosure.455 With respect to EuroChem, Ukraine notes that it 
filed its comments on the disclosure after working hours on the due date and thus MEDT of 
Ukraine could not accept them.456 
7.251.   Article  6.9 stipulates that the disclosure of essential facts should take place in sufficient 
time for the parties to defend their interests. Thus, while Article  6.9 does not prescribe any 
particular time -frame, it does suggest that the time should be sufficient for  the parties to defend 
their interests. We consider that the sufficiency of the time that investigating authorities give to 
parties to comment on the disclosure has to be assessed on a case -by-case basis considering, 
inter alia, the nature and complexity o f the issues to which the parties have to respond in order to 
defend their interest.  
7.252.   Russia notes in this regard that the disclosure covered several  issues regarding the product 
under consideration , export price and normal value determinations, dumping mar gin calculations 
as well  as analyses on the injury suffered by the domestic industry.457 Russia states that interested 
parties needed  time to prepare a proper response regarding each part of these analyses.458 
Moreover, Russia observes that the investigated Russian producers became aware of MEDT of 
Ukraine 's proposed rejection of the reported gas cost only when they received the disclosure, and 
would have needed time to make comments in this regard.459 Ukraine does not deny that the 
investigated Ru ssian producers became aware of MEDT of Ukraine 's rejection of the reported gas 
cost only when the  disclosure was issued.460 But Ukraine contends that the investigated Russian 
producers were on notice prior to the issuance of the disclosure  that MEDT of Ukra ine would reject 
their reported gas cost for two reasons. First, these producers were aware that the domestic 
industry had requested MEDT of Ukraine to reject this reported gas cost.461 Second, an  
investigating authority in another jurisdiction that initiate d anti -dumping investigations on import s 
                                                
452 Russia 's first written submission, paras.  321-324; second written submission, paras.  695-697 and 
699. 
453 Russia's  second written submission, paras.  698-699. 
454 Russia's  second written submission, para.  707. 
455 Ukraine's  first written submission, paras.  362 and 367.  
456 Ukraine's  first written submission, para.  368. 
457 Russia's  opening statement at the second meeting of the Panel, para.  271. 
458 Russia's  opening statement at the second meeting of the Panel, para.  271. 
459 Russia's  first written submission, para.  321 
460 Ukraine's  response to Panel question No. 41, para.  104. 
461 Ukraine's  first written submission, para.  364. WT/DS493/R  
 
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  of ammonium nitrate, and in which the  same producers had participated, had done the same.462 
Ukraine also asserts that the disclosure was quite short, and thus two days was sufficient for the 
parties to respond to it.  
7.253.   We agree with Russia that "two days" was insufficient time for the parties to comment on 
this disclosure, and thus not sufficient to defend their interests before the Ukrainian authorities.  
Besides the broad range of issues to which the investigated Russi an producers had to respond, the 
disclosure was the first time that the investigated Russian producers were made aware of the 
factual basis of MEDT of Ukraine 's dumping determinations, including the facts based on which the 
surrogate price of gas (rather t han the reported gas cost) would be ascertained .463 This added  to 
the complexity of the issues to which the investigated Russian producers had to respond.  
7.254.   We disagree in this regard with Ukraine 's argument that the investigated Russian 
producers were on notice that MEDT of Ukraine would reject the reported gas cost because that is 
what the domestic industry had request ed, and that is what certain other anti -dumping authorities 
had done. The purpose of a disclosure under Article  6.9 is to disclose the essential facts that form 
the basis of an investigating authority 's decision to apply definitive measures  in sufficient time for 
the parties to defend their interests . Investigating authorities cannot forego this obligation simply 
because their decision to impose definitive measures is based on grounds that are similar or 
identical to that taken by investigating authorities in other jurisdictions, or based on a request 
made by the domestic industry.464 Moreover, timely disclosure would also have been necessary to 
allow the interested parties to comment on the appropriateness or correctness of the facts that 
MEDT of Ukraine decided to use to calculate the surrogate price of gas, which could not have been 
communicated to them earlier than the disclosure. In any case, our findings are based on a review 
of the disclosure as a whole, and not just the disclosure regarding the gas prices used for normal 
value construction.  
7.255.   Based on the foregoing, we find that MEDT of Ukraine acted inconsistently  with Article  6.9 
of the Anti -Dumping Agreement by failing to give the parties "sufficient time" to defend their 
interests.465 
7.9  Consequential claims  
7.256.   Russia contends that as a consequence of violations under the Anti -Dumping Agreement, 
the Ukrainian authoritie s acted inconsistently with Articles  1 and 18.1 of the Anti -Dumping 
Agreement as well as Article  VI of the GATT 1994.466 Ukraine asks us to reject these claims.467 
7.257.   With respect to Russia 's claims under Articles  1 and 18.1 of the Anti -Dumping Agreement, 
we note  that these claims are consequential to finding s of violations under other provisions of the 
Anti-Dumping Agreement. Having found substantive violations under  various provisions of the 
Anti-Dumping Agreement, we do not find it necessary to address Russia 's consequential claims in 
                                                
462 Ukraine's  first written submission, para.  365. 
463 Ukraine's  response to Panel question No. 41, para . 104. 
464 We note that Ukraine contends that in EU – Footwear (China) , the investigating authority gave the 
interested parties only five days to comment on the disclosure, and this time was considered by the panel to be 
"sufficient" within the meaning of Ar ticle 6.9. (Ukraine's  first written submission, para.  361). We do not share 
Ukraine's  understanding of the panel report in EU – Footwear (China) . In that case, the investigating authority 
first issued a general disclosure, and subsequently sent an addition al disclosure document, which reflected 
revisions made by the authority in response to comments received on the general disclosure. The authority 
gave interested parties five days to respond to this additional disclosure document. It is the time given to t he 
interested parties to respond to this more limited additional disclosure document that was challenged in EU – 
Footwear (China) . (Panel Report, EU – Footwear (China) , para.  7.833). Unlike in EU – Footwear (China) , 
MEDT  of Ukraine issued only one disclosu re, and gave interested parties only two days to respond to that 
disclosure. Thus, we find Ukraine's  reliance on EU – Footwear (China) to be inapposite.  
465 We note Russia's  argument that MEDT of Ukraine's  refusal to accept comments from EuroChem on 
the due date for submissions also led to a violation of Article  6.9. (Russia's  opening statement at the second 
meeting of the Panel, para.  281). We have already found that the time given to the interested parties to 
comment on the disclosure was not sufficient for  them to defend their interests. We thus need not separately 
address Russia's  arguments challenging MEDT of Ukraine's  decision to not accept EuroChem's  comments on 
the disclosure.  
466 Russia's  first written submission, paras.  345 and 347(13).  
467 Ukraine's  first written submission, paras.  25-26. WT/DS493/R  
 
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  this regard to secure a positive resolution of this dispute. Th us, we exercise judicial economy with 
respect to Russia 's claims under  Articles  1 and 18.1 of the Anti -Dumping Agreement.  
7.258.   With respect to Russia 's claims under Article  VI of the GATT 1994, we note that Russia 
simply presented a claim under Article  VI, without identifying either in its panel request or in its 
written submissions the specific paragraphs or the specific obligations under these paragraphs that 
it seeks to challenge.468 This was Russia 's task, which it has failed to undertake.469 Therefore, we 
reject Russia 's claim under Article  VI of the GATT 1994.  
7.259.   Based on the foregoing, we exercise judicial economy on Russia 's claims under Articles  1 
and 18.1 of the Anti -Dumpin g Agreement, but reject its claim under Article  VI of the GATT 1994.  
8  FINDINGS  AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, with respect to Ukraine 's request for a preliminary 
ruling on  our terms of reference , we find that : 
a. ICIT's 2008 amend ed decision and the 2010 amendment are within our terms of 
reference;  
b. the claims identified in the following item numbers of Russia 's panel request are within  
our terms of reference:  
i. item number 1 of the panel request with respect to the claims under Articles 5.8, 
11.1, 11.2, and 11.3 of the Anti -Dumping Agreement;  
ii. item number 4 of the panel request with respect to claims under Article  6.8 and 
paragraphs 3, 5 , and 6 of Annex II of the Anti -Dumping Agreement;  
iii. item number 17 of the panel request with respect to claims under Articles  11.1, 
11.2, and 11.3 of the Anti -Dumping Agreement insofar as they are based on the 
view that  the Ukrainian authorities determined and relied on injury which was not 
established in accordance with Articles  3.1, 3.2, 3.4 , and 3. 5 of the Anti -Dumping 
Agreement;  
c. the claims identified in item number 7 of Russia 's panel request  under Articles  12.2 and 
12.2.2 of the Anti -Dumping Agreement fall outside our terms of reference because they 
did not reasonably  evolve from the legal basis set out in the consultation request , and 
thus we do not consider  these claims ; and 
d. Ukraine 's request for a ruling that the alleged claims identified in item number 17 of the 
panel request under Articles  3.1 and 3.4  of the Anti -Dumping Agreement  fall outside our 
terms of reference is moot.  
8.2.  For the reasons set forth in this Report, with respect to Russia 's claims concerning the 
Ukrainian authorities ' dumping and likelihood -of-dumping determinations in the underlying 
reviews , we find that : 
a. the Ukrainian authorities acted inconsistently with Article  2.2.1.1 of the Anti -Dumping 
Agreement in rejecting the reported gas cost of the investigated Russian producers 
without providing  an adequate basis under the second condition of Article  2.2.1.1;  
                                                
468 Russia's  panel request, item number 19; first written submission, paras.  341, 344 -346, and 347(13).  
469 See, e.g. Panel Report, US – OCTG (Korea) , para.  7.337. The panel in US – OCTG (Korea)  reached a 
similar conclusion with respect to a claim of consequential violation under Article  VI. We note that some panels 
have made findings of consequential violations under Article  VI without identifying the specific obligation under 
this provision whic h was violated. (See, e.g. Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , 
para. 7.336; and Canada – Welded Pipe , para.  7.223). However, we do not consider this approach is warranted 
in the present case.  WT/DS493/R  
 
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  b. the Ukrainian authorities acted inconsistently with Article  2.2 of the Anti -Dumping 
Agreement in using a cost for gas that did not reflect the cost of the product under 
consideration "in the country of origin" , i.e. Russia ; 
c. the Ukrainian authoriti es acted inconsistently with Article  2.2.1 of the Anti -Dumping 
Agreement by relying on costs that were calculated inconsistently with Article  2.2.1.1 of 
the Anti -Dumping Agreement to make their determinations under Article  2.2.1;  
d. the Ukrainian authorities acted inconsistently with Articles  11.2 and 11.3 of the 
Anti-Dumping Agreement in relying on dumping margins calculated inconsistently with 
Articles  2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement to make their 
likelihood -of-dumping determinations;  
e. Russia has failed to establish that the Ukrainian authorities acted inconsistently with 
Article  2.1 of the Anti -Dumping Agreement in connection with the Ukrainian 
authorities ' decision to not use the domestic sales price of the like product in Russia to 
calculate normal value of the investigated Russian producers;  
f. we do not need to address , and exercise judicial economy on , Russia 's claim under 
Article  2.2 in connection with the Ukrainian authorities ' rejection of the reported gas cost  
of the investigated Russian producers ; 
g. we do not need to address, and exercise judicial economy on,  Russia 's claim under 
Article  2.2.1.1 of the Anti -Dumping Agreement in connection with the Ukrainian 
authorities ' use of the export price of gas from Russia  at the German border to calculate 
the cost of production of the investigated Russian producers;  
h. we do not need to address , and exercise judicial economy on , Russia 's claim under 
Article  2.4 of the Anti -Dumping Agreement in connection with the Ukrainian 
authorities ' alleged failure to make a fair comparison between the export price and the 
constructed normal value;  and 
i. we do not need to address , and exercise judicial economy on , Russia 's claim under 
Article  11.1 of the Anti -Dumping Agreement.  
8.3.  For the reason s set forth in this report, with respect to Russia 's claims concerning the 
non-termination of the investigation against EuroChem , we find that : 
a. the Ukrainian authorities acted inconsistently with Article  5.8 of the Anti -Dumping 
Agreement by: 
i. failing to exc lude EuroChem from the scope of the original anti -dumping measures, 
specifically the 2008 amended decision;  
ii. imposing a 0% anti -dumping duty on EuroChem through the 2010 amendment, 
instead of excluding it from the scope of the anti -dumping duty order ; 
iii. including EuroChem within the scope of the review determinations, and imposing 
anti-dumping duties on it through the 2014 extension decision ; 
b. we do not need to address , and exercise judicial economy on , Russia 's claim s under 
Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping Agreement . 
8.4.  For the reasons set forth in this Report, we find that Russia has not established that the 
Ukrainian authorities acted inconsistently with Articles  11.1, 11.2 , and 11.3 of the Anti -Dumping 
Agreement in connection wi th the Ukrainian authorities ' alleged  determin ation of and reli ance on 
injury not established in accordance with Articles  3.1 and 3.4 of the Anti -Dumping Agreement  in 
making their likelihood -of-injury determination.  
8.5.  For the reasons set forth in this Report , with respect to Russia 's claims challenging the 
Ukrainian authorities ' conduct in the underlying reviews , we find that : WT/DS493/R  
 
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  a. the Ukrainian authorities acted inconsistently with Article  6.9 of the Anti -Dumping 
Agreement in failing to disclose the essential fac ts underlying:  
i. MEDT of Ukraine 's price effects analysis, which formed part of the determinations on 
likelihood of injury;  
ii. MEDT of Ukraine 's dumping determinations ; 
b. the Ukrainian authorities acted inconsistently with Article  6.9 of the Anti -Dumping 
Agreemen t in failing  to give interested parties sufficient time to comment on MEDT of 
Ukraine 's disclosure;  
c. Russia has failed to establish that the Ukrainian authorities acted inconsistently with 
Article  6.8, and paragraphs 3, 5, and 6 of Annex II of the Anti -Dumping Agreement in 
connection with alleged procedural violations by the Ukrainian authorities ; 
d. Russia has failed to establish that the Ukrainian authorities acted inconsistently with 
Article  6.9 of the Anti -Dumping Agreement in connection with the disclo sure of essential 
facts underlying its analysis of the economic state of the domestic industry , as part of 
the likelihood -of-injury determination ; 
e. Russia has failed to establish that the Ukrainian authorities acted inconsistently with 
Article  6.2 of the An ti-Dumping Agreement in connection with the disclosure of essential 
facts underlying its analysis of the economic state of the domestic industry , as part of 
the likelihood -of-injury determination;  and 
f. we do not need to address , and exercise judicial econom y on, Russia 's claim s that the 
Ukrainian authorities acted inconsistently with Article  6.2 of the Anti -Dumping 
Agreement in failing  to disclose the essential facts underlying:  
i. MEDT of Ukraine 's price effects analysis, which formed part of its determination s on 
likelihood of injury;  
ii. MEDT of Ukraine 's dumping determinations.  
8.6.  For the reasons set forth in this Report,  with respect to the Russia 's claims of consequential 
violations , we find that : 
a. Russia has failed to establish that the Ukrainian authorities acte d inconsistently with 
Article  VI of the GATT 1994 as a consequence of alleged violations under the 
Anti-Dumping Agreement;  and 
b. we do not need to address, and exercise judicial economy on , Russia 's claim s under 
Articles  1 and 18.1 of the Anti -Dumping Agreement.  
8.7.  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 
inconsistent with certain provisions of the Anti -Dumping  Agreement , they have nullified or 
impaired benefits accruing to Russia  under t his agreement.  
8.8.  Pursuant to Article  19.1 of the DSU, we recommend that Ukraine  bring its measures into 
conformity with its obligations under the Anti-Dumping  Agreement.  
 
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