WT/DS405/R 
 Page D-1 
 
 
  
ANNEX D 
  
ORAL STATEMENTS, OR EXECUTIVE SUMMARIES  
THEREOF, OF THE THIRD PARTIES 
 
 
Contents Page 
Annex D-1 Third Party Statement of Brazil D-2 
Annex D-2 Third Party Statement of Colombia D-5 
Annex D-3 Executive Summary of the Third Party Statement of Japan D-8 
Annex D-4 Third Party Statement of Turkey D-12 
Annex D-5 Executive Summary of th e Third Party Statement of the 
United States D-15 
 WT/DS405/R 
Page D-2  
 
ANNEX D-1 
 
 
THIRD PARTY STATEMENT OF BRAZIL 
 
 
1. Brazil would like to begin by expressing its appr eciation for your service in this panel.  This 
oral statement highlights a few points on the proper legal interpretation of certain provisions of the 
GATT 1994 and the Anti–Dumping Agreement (the "ADA").  Brazil recognizes that many of the issues in this dispute are factual in nature, and fro m the outset Brazil would like to clarify that it takes 
no position as to whether the European Union (the "E U") has or has not complied with its obligations 
under these two agreements.  
2. Today, Brazil will address four issues in  addition to those put forward in its written 
submission: (i) the relevance of Article 9 of the ADA in the context of China's claims regarding 
Article 9(5) of the Basic AD Regulation; (ii) the non-attribution requirement of Article 3.5 of the 
ADA; (iii) the publicity obligations under Article 12. 2 of the ADA; and (iv) the relationship between 
Articles 11.3 and 3 of the ADA.  
 
3. Brazil would like to start, however, by briefly reiterating one of the points dealt with in its 
written submission.  Brazil notes that, according to  WTO case law, Members are not prevented from 
treating multiple companies as a single exporter/producer under Article 6.10 of the ADA, as the Panel held in Korea – Paper AD Duty .
1 Brazil considers that, for companies operating in non-market 
economy ("NME") countries, it would be justified to classify, as a rule, exporters/producers as a 
single entity and, as such, subject to a single or, otherwise, common dumping margin determination, unless they are able to demonstrate their clear inde pendence from the State.  The rationale behind this 
method of imposing anti-dumping duties is that, in NME countries, it is the State that ultimately defines or, as a minimum, is able to define individual companies' objectives and commercial behaviour. Thus, Brazil considers that establishing a country-wide dumping margin and duty rate in 
the case of companies operating in NME countries is  perfectly consistent with the GATT 1994 and 
the ADA.  4. With these remarks, Brazil wishes to furt her elaborate on China's claim concerning the 
determination of individual anti-dumping duties to each exporter being investigated.  China claims 
that Article 9(5) of the Basic AD Regulation violates Articles 9.2, 9.3 and 9.4 of the ADA.
2 
 5. In this regard, Brazil fails to see the releva nce of Article 9 of the ADA to China's claims 
concerning Article 9(5) of the Basic AD Regulation.  Article 9 of the ADA does not provide or even imply that authorities are compelled to impose individual duties upon each company nor does it prevent the authority to consider companies that are closely related as a single entity for the purposes 
of dumping margin determination.  
 6. China's assertion that Article 9.2 of the AD A creates the obligation to establish individual 
anti-dumping duties for each exporter/producer finds no support in the text of this provision. 
Article 9.2 provides, in relevant part, that duties ar e to be collected "in the appropriate amounts".  The 
meaning of "appropriate amount" under this pr ovision was interpreted by the panel in Argentina - 
Poultry Anti-Dumping Duties  to mean an amount not exceeding the margin of dumping.
3  The panel 
also noted that a violation of Article 9.2 of the ADA is entirely dependent on a violation of 
                                                      
1  See Korea – Paper AD Duty , Panel Report, para. 7.161. 
2 China's First Written Submission, paras. 212-278. 
3 See Argentina - Poultry Anti-Dumpin g Duties, Panel Report, para. 7.365.  WT/DS405/R 
 Page D-3 
 
 
Article 9.3, which means that an anti-dumping dut y that is in conformity with Article 9.3 is 
necessarily "appropriate" within the meaning of Article 9.2.  7. With regard to Article 9.3 of the ADA, Chin a's claims are based on the understanding that the 
dumping margin for exporters who do not receive individual treatment is not established in 
compliance with Article 2 of the ADA.  However, China's argument seems to disregard the fact that 
non-market economy exporters do not have their dumping margin calculated solely on the basis of the 
provisions of Article 2 of the ADA in the first plac e.  This is provided in Article 2.7 of the ADA and 
the second Supplementary Provision to para graph 1 of Article VI of GATT 1994. 
 
8. As to China's claim concerning Article 9.4 of the ADA, it is based on the assumption of a 
breach of Article 9.3 of the ADA, which, as expl ained above, is based on an incorrect reading of 
Article 9.  9. Brazil notes that the margin of dumping a nd the appropriate amount of anti-dumping duty can 
only be determined after the decision on whether or  not companies may be regarded as single entities 
for dumping margin determination purposes.  Thus , it would be illogical to conclude that not 
establishing individual duties to companies which are found to operate as a single exporter is incompatible with Article 9 of the ADA.  10. The second point Brazil wishes to address con cerns China's suggestion that under the non-
attribution requirement of Article 3.5 of the ADA authorities are under an obligation to estimate or, 
somehow, to quantify, the impact of factors other than dumped imports on injury
4, an interpretation of 
Article 3.5 that Brazil does not share.  11. Brazil considers that in order to comply with  Article 3.5 of the ADA, investigating authorities 
must identify, separate and distinguish the injurious effects of the dumped imports from the injurious 
effects of other factors.  This does not mean, however, that Article 3.5 of the ADA establishes an obligation upon Members' investigating authorities to  quantify or otherwise proceed to an estimation 
of the injury caused by other factors.  It is e nough for the authority to (i) investigate other factors 
claimed to be causing injury; (ii) then to separate and distinguish th e injurious effects of these other 
factors (for instance by considering that it is not subs tantial, or not of a nature of breaking the causal 
link); and (iii) finally to assess whether, in the absen ce of these factors, injury would still have taken 
place.  12. As noted by the Appellate Body in US - Hot Rolled Steel
5, the ADA does not prescribe the 
methodology by which an investigating authority must avoid attributing the injury caused by factors 
other than dumped imports.  The Appellate Body me rely requires from investigating authorities that 
they identify the effects of other factors, i.e., " undertake the process of assessing appropriately, and 
separating and distinguishing, the injurious effect s of dumped imports from those of other known 
causal factors. " 6  The Appellate B ody adds that " this requires a satisfactory explanation of the nature 
and extent of the injurious effects of the other factors,  as distinguished from th e injurious effects of the 
dumped imports ".7 Investigating authorities enjoy, however, broad discretion to choose how to 
conduct such an analysis. 
 13. The next point Brazil would like to comment  on concerns Article 12.2 of the ADA.  Brazil 
would like to recall that, pursuant to Article 12.2 of the ADA, the obligation imposed upon WTO 
Members is that the public notice must contain inform ation on findings reached on material issues.  In 
this regard, the Panel in EC - Pipe Fittings  considered that material findings are those related to issues 
                                                      
4 China's First Written Submission, paras. 562-621, and paras. 1192-1249. 
5 See US – Hot Rolled Steel , Appellate Body Report, para. 224. 
6 Ibid., para. 228. 
7 Ibid., para. 226. WT/DS405/R 
Page D-4  
 
that must necessarily be resolved in order for the investigating authorities to be able to reach their 
determination.
8 
 14. China lists in its submission several points  which it believes should have been published by 
the EU authorities, both in the context of the review and the definitive Regulations.
9  The EU rejected 
China's claim and indicated that all these points had been dealt with in the Regulations and disclosure 
documents sent to interested parties.10   
 15. Brazil does not express a position on whether or not  the EU is in breach of Article 12.2 of the 
ADA regarding this specific issue.  However, in Braz il's view, China's claim implies the inclusion of a 
higher level of detail than the standard laid down in  Article 12.2 of the ADA.  Brazil understands that 
Article 12.2 of the ADA does not impose the publication of all information but only of material issues of fact and law.  Brazil sustains that the standard set in this article is the information expressly listed 
in items (i) to (v) of Article 12.2.1 of ADA, which are as follows:  names of suppliers or the countries 
involved, description of the product, margin of dum ping and explanation of th e methodology, relevant 
considerations to the injury determination (in light of the fifteen impact factors brought by Article 3.4 
of ADA) and the main reasons leading to the prelim inary or final determination (such as causal link).  
 16. It should be noted that Article 12.2 of the ADA deals with publicity of determinations and not 
with the right of defence, which involves distinct standards.  Brazil recalls that even when certain 
information is not available on the public notice, this does not mean that the information was not 
disclosed to the interested parti es in the course of the proceedings. 
 17. Moving on to the fourth point, Brazil w ould like to comment on China's assertion that 
Article 3 of the ADA is applicable to sunset reviews conducted under Article 11.3 of this same 
Agreement.
11  
 
18. In what pertains to this issue, Brazil re fers to the findings of the Appellate Body in US – 
OCTG from Argentina12 and notes that Article 3 and Article 11.3 of the ADA deal with two 
independent determinati ons: on the one hand, a determination of injury or threat thereof under 
Article 3;  and, on the other hand, a determina tion of likelihood of continuation or recurrence of 
(dumping and) injury under Article 11.3.  In addi tion, there is no provision within Article 11.3, 
Article 3 or elsewhere in the ADA which would ma ndate investigating authorities to comply with 
Article 3 provisions when conducting sunset reviews.   19. Accordingly, in the words of the Appellate  Body, "[g]iven the absence of textual cross-
references, and given the different nature and purpose of these two dete rminations, we are of the view 
that, for the "review" of a determination of injury that has already been esta blished in accordance with 
Article 3, Article 11.3 does not require that injury again be determined in accordance with Article 3.  
We therefore conclude that investigating authorities are not mandated  to follow the provisions of 
Article 3 when making a likeli hood-of-injury determination".
 13 (original emphasis) 
  Mr. Chairman, distinguished members of the Panel, this concludes Brazil's statement.  Brazil 
will be pleased to answer any questions you ma y have.  Thank you for your attention. 
                                                      
8 See EC - Pipe Fittings , Panel Report, para. 7.424. 
9 China's First Written Submission, paras. 797-808 and paras. 1387-1402. 
10 EU's First Written Submission, para. 508. 
11 China's First Written Submission, para. 421 et seq.  
12 See US – OCTG from Argentina , Appellate Body Report, para. 278. 
13 Ibid., para. 280.  WT/DS405/R 
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ANNEX D-2 
 
 
THIRD PARTY STATEMENT OF COLOMBIA 
  
I. INTRODUCTION 
 1. Mr. Chairman, distinguished Members of th e Panel, on behalf of the Government of 
Colombia, I thank you for giving us the opport unity to express our views in this dispute. 
 2. Our participation as a third party is based on our  systemic interest in the proper interpretation 
of several provisions of the WTO covered agreem ents, discussed in this case.  In its written 
submission, Colombia set out its understanding of some of the major legal issues arising from this 
dispute.  I will therefore not repeat all the content of the submission, but will rather focus on a few specific comments regarding the interpretation of the applicable WTO provisions in administrative 
and sunset reviews of definitive anti-dumping duties.       3. Colombia recognizes that many of the issues in this dispute are factual in nature.  In that 
regard, Colombia would like to emphasize that it does not take a position as to whether the European 
Union has or has not complied with its obligations under the Anti-dumping Agreement. 
 
II. RULES APPLICABLE TO ADMINISTRATIVE AND SUNSET REVIEWS OF ANTI-
DUMPING DUTIES 
 
4. Among China's claims against Council Im plementing Regulation (EU) No. 1294/2009 of 
22 December 2009 (the "AD Review Regulation"), Co lombia finds specially interesting the legal 
debate surrounding claims II:2 to II:5, relative to how the EU reviewed the anti-dumping duties 
imposed through Council Regulation (EC) No. 1472/2006 of 5 October 2006.   5. Colombia's interest in this debate lies in th e need to clarify the applicable WTO provisions to 
administrative and sunset reviews of anti-dumping duties imposed as a consequence of an initial 
investigation.  In this vein, Colombia supported pr oposals in the context of the negotiations under the 
Doha Development Agenda to ame nd the Anti-dumping Agreement.   
 6. According to China's claims
1, Article 3 of the Anti-dumping Agreement, except for 
Article 3.3, is totally binding upon national author ities in charge of undertaking administrative and 
sunset reviews of anti-dumping duties pursuant to numerals 2 and 3 of Article 11 of the Anti-dumping 
Agreement.  
 7. The EU has not contended the prior issue for the purposes of its defence.  Nonetheless, 
Colombia considers that this is a relevant opportuni ty to complement the systemic interpretation of 
the Anti-dumping Agreement and to recall the proposal s that on the matter have been made under the 
auspices of the negotiations of the Doha Development Agenda.  
 8. Numerals 2 and 3 of Article 11 of the An ti-dumping Agreement contain the conditions in 
which administrative and sunset reviews can be  undertaken with respect to anti-dumping duties 
imposed as a consequence of an initial investigation. 
                                                      
1 China's First Written Submission, paras. 421-428. WT/DS405/R 
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 9. Within the legal framework of Article 11 of the Anti-dumping Agreement, paragraph 4 
clarifies that the evidence and procedures of admi nistrative and sunset reviews should be undertaken 
in accordance with Article 6 of the Anti-dumping Agre ement.  There is no additional clarification of 
what other WTO provisions are applicable to those reviews.    
 
10. Faced with this limited normative clarity, the panel US – DRAMS
2 held that for the purposes 
of injury determination in these types of reviews,  national authorities should follow the framework of 
Article 3 of the Anti-dumping Agreement.  
 
11. Following this view, it has been accepted under the WTO that with respect to injury 
determination, national authorities undertaking admi nistrative and sunset reviews, must follow the 
conditions provided for that matter in Ar ticle 3 of the Anti-dumping Agreement. 
 12. In response to the lack of clarity on the lega l framework of administrative and sunset reviews 
for anti-dumping duties, a group of Members presented on 14 July 2004 a proposal to modify and 
complement some provisions of the Anti-dumping Agreement.  These proposals are introduced in 
WTO document TN/RL/GEN/10.  With a view to contributing to the legal debate, Colombia 
highlights two of those proposals in order to provide  the Panel with additional information that it may 
consider when arriving at a decision on this case.  Of course, Colombia is aware that the proposals do 
not constitute a means of interpretation as provided for in the VCLT and that such proposals represent 
the view of a group of Members and not necessarily of the membership as a whole. 
 13. Proposal 1 of the mentioned document, suggests that it should be clarified that administrative 
and sunset reviews are subject, where relevant, to  the provisions of Articles 2 (determination of 
dumping), 3 (determination of injury), 4 (definition of  domestic industry), 5 (in itiation and subsequent 
investigation) and 6 (evidence).  In addition,  to the extent that it is appropriate, the de minimis  rule in 
Article 5.8 of the Anti-dumping Agreement should appl y to the mentioned reviews.  Finally on this 
point, it is suggested that the methodology applied to the original investigation for comparison between normal price and export price as stipulated in Article 2.4.2 of the Anti-dumping Agreement 
should be applied to the reviews, unless a differe nt methodology is requested by the exporters.  
 
14. On the other hand, Proposal 2 of document TN /RL/GEN/10, suggests that indicative lists for 
the assessment of dumping and "likelihood of inju ry" under Article 11.2 should be developed.  
 15. Among the elements of the indicative lists  for dumping assessment, Members' investigating 
authorities should take into account:  (i) that dumping margins to be considered are those based on 
current market conditions and pricing, rather than the ones at the time of the initial investigation;  (ii) 
in case the measure has been subject to reviews, they shall rely on the margin found in the most recent 
review; and (iii) if no dumping margin is found, the "likelihood of injury" test shall not apply and the 
measure shall be terminated.  16. With respect to the analysis of the "likelihood of injury", Members' authorities should take 
into account:  (i) that the assessment should be ba sed on current market information and not on the 
conditions at the time of the initial investigation; as provided for in Article 3 of the Anti-dumping 
Agreement, the investigation should be based on f acts, and not merely on allegations, conjectures or 
speculations; and (ii) the determination of whethe r the antidumping duty continuation is warranted or 
not, shall be based on the current volume of dumped imports.  
 
17. Based on the above mentioned c onsiderations, Colombia invites the Panel to take into account 
the mentioned proposals, as a non-legally binding information, in the review of the EU'S 
implementation of Article 11 of the Anti-dumping Agreement.  Colombia considers that these 
                                                      
2 Panel Report, US – DRAMS , footnote 501.  WT/DS405/R 
 Page D-7 
 
 
proposals can be especially relevant to clarify the debate between the Parties as to how to use the 
provisions of Article 3 of the Anti-dumping Agreement in the present case.  Particularly, with respect 
to how the EU undertook and c oncluded on the extension of the definitive anti-dumping duty 
reviewed under its Regulation.  III. CONCLUSION 
 
18. Mr. Chairman, distinguished Members of the Panel, with these comments, Colombia expects 
to contribute to the legal debate of the parties in this case, and would like to express again its 
appreciation for this opportunity to share its points of view on this relevant  debate, regarding the 
applicable WTO provisions for administrative and sunset reviews of the Anti-dumping Agreement. 
We thank you for your kind attention and remain at your disposal for any question you may have.    WT/DS405/R 
Page D-8  
 
  
ANNEX D-3 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
STATEMENT OF JAPAN 
 
 
I. INTRODUCTION 
 
1. In this oral statement, Japan would like to  address the following important systemic issues.   
 
 Whether Article 2.4 of the AD Agreement  is applicable to the EU's analogue country 
selection in the case of import from non-market economy; 
 
 Whether "positive evidence" and "objective assess ment" requirements under Article 3.1 of the 
AD Agreement  apply to its examination in a sunset review; and 
 
 Whether Article 3.5 of the AD Agreement requires an authority to make quantitative analysis 
in separating and distinguishing the injurious e ffects of the other factors from the injurious 
effects of the dumped imports. 
 
II. DISCUSSION 
 
A. THE PANEL SHOULD CAREFULLY EXAMINE WHETHER ARTICLE 2.4 OF THE AD 
AGREEMENT  IS APPLICABLE TO THE EU'S ANALOGUE COUNTRY SELECTION  
 2. According to Article 2.7(a) of the Council Regulation No 384/96, which provides for the EU's 
analogue country selection,  "[i]n the case of imports from non-market economy countries, normal value shall be determined on the basis of the pri ce or constructed value in a market economy third 
country".  As to this mechanism, China submits that Article 2.4 of the AD Agreement , which requires 
the investigating authorities to make a fair compar ison between the export pri ce and the normal value, 
"sets forth certain principles regarding the co mparability of export prices and normal value."
1  China 
further claims that "an improper selection of an  analogue country […] directly precludes a fair 
comparison between the export price and the normal value"2, and thus that the EU's analogue country 
selection violates Article 2.4 of the AD Agreement .  On the other hand, the European Union states that 
"the purpose of the analogue country methodology must  be to find a normal value that is compatible 
with the export price," and that "[o]nce such a nor mal value has been identif ied the obligation stated 
in Article 2.4 of making a fair comparison comes into play, but not before. The very wording of 
Article 2.4 assumes that a normal value already exists."3 
 
3. Thus, the question to be addressed by the Panel is whether Article 2.4 of the AD Agreement  is 
applicable to the selection of the analogue country in the context of determining the existence of 
dumping for imports from non-market economy.  
                                                      
1 First Written Submission by China  submitted to this Panel on 20 August 2010 ("China FWS"), 
paras. 370, 924. 
2 China FWS, paras. 375, 927. 
3 First Written Submission by the European Union submitted to this Panel on 24 September 2010, 
para. 171. See also Brazil Third Party Written Submission, para. 38.  WT/DS405/R 
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4. As China argues that "the selection of an appr opriate or suitable analogue country is the first 
fundamental step in ensuring fair comparison"4, the selection of the analogue country was the starting 
point for the European Union to complete the en tire process of determining the existence of dumping 
in this case, including a fair comparison of the export price with the normal value.  It is also correct 
that Article 2 of the AD Agreement  sets forth the substantive rul es and disciplines on the process of 
determining the existence of dumping.   
 5. In this regard, the panel in Egypt – Rebar  has found, in the context of examining the scope of 
the requirement not to impose "an unreasonable burden of  proof" referred to in Article 2.4, that "[a] 
straightforward consideration of the ordinary meanin g of this provision confirms that it has to do not 
with the basis for and basic establishment of the export price and normal value (which are addressed 
in detail in other provisions), but with the nature of the comparison of export price."
5  In this context, 
the panel also found that Article 2.4 in its entirety "has to do with ensuring a fair comparison" of export price and normal value, and "does not apply to the investigating authority's establishment of 
normal value as such."
6  It is also noted that the issue as to who the parties to rele vant sales should be 
in calculating the normal value under Article 2.1, the Appellate Body in US – Hot-Rolled Steel  stated 
that, given that Article 2.4 of the AD Agreement  provides that a fair comparison "shall be made at the 
same level of trade, normally at the ex-factory level," "[t]he use of downstream sales prices to calculate normal value may affect the comparability  of normal value and export price because, for 
instance, the downstream sales may have been made at a different level of trade from the export 
sales."
7 
 
6. Japan respectfully requests the Panel to caref ully review the arguments on the applicability of 
Article 2.4 of the AD Agreement  to the EU's analogue country selection, taking into account 
viewpoints as discussed above.  
B. APPLICABILITY OF "POSITIVE EVIDENCE" AND "OBJECTIVE ASSESSMENT" 
REQUIREMENTS UNDER ARTICLE 3.1 OF THE AD AGREEMENT  TO SUNSET 
REVIEWS 
 7. Japan is mindful that, in US – Oil Country Tubular Goods Sunset Review , the Appellate Body 
has found that "investigating authorities are not mandated to follow the provisions of Article 3 when 
making a likelihood-of-injury determination", that "f actors such as the volume, price effects, and the 
impact on the domestic industry of dumped impor ts, taking into account the conditions of 
competition, may be relevant to varying degrees in  a given likelihood-of-injury determination", and 
that "the necessity of conducting such an anal ysis in a given case results from the requirement 
imposed by Article 11.3—not Article 3".
8   
 
8. It must be emphasized, however, that the above  findings of the Appellate Body should be read 
in their contexts.  The Appellate Body also has found  that authorities in a sunset review are obliged to 
act with an appropriate degree of diligence and arri ve at a reasoned conclusion on the basis of positive 
evidence.9  The Appellate Body has found that "[c]erta in of the analyses mandated by Article 3 and 
necessarily relevant in an original inv estigation may prove to be probative, or  possibly even required , 
                                                      
4 China FWS, para. 387. 
5 Panel Report, Egypt - Rebar , para. 7.333. 
6 Panel Report, Egypt - Rebar , para. 7.335. 
7 Appellate Body Report, US – Hot-Rolled Steel , paras. 167-168. 
8 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, paras. 280, 284. 
9 See Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 283. Appellate 
Body Report, US – Corrosion Resistant Sunset Review , para. 111.  See also Third Party Submission of Japan, 
paras. 23-27. WT/DS405/R 
Page D-10  
 
in order for an investigating authority in a sun set review to arrive at a 'reasoned conclusion'."
10  It 
further found "[i]n this respect, we are of the view th at the fundamental requireme nt of Article 3.1 that 
an injury determination be based on 'positive evid ence' and an 'objective examination' would be 
equally relevant to likelihood de terminations under Article 11.3."11  These findings suggest that, when 
a likelihood-of-injury determinati on is inconsistent with the fund amental requirements of "positive 
evidence" and "objective examination" mandated by Article 3.1, this would also demonstrate the 
inconsistency of the likelihood-of-i njury determination with the requirement in Article 11.3 that the 
authority arrive at a reasoned conclusion.12   
 9. While Japan does not take any particul ar position on China's establishment of a prima facie 
case with respect to inconsistency of the EU's like lihood-of-injury determination with Article 11.3, it 
respectfully requests the Panel to carefully review  this issue, taking into account viewpoints as 
discussed above.  C. ANALYSIS REQUIRED UNDER ARTICLE 3.5 OF THE AD AGREEMENT  TO 
SEPARATE AND DISTINGUISH INJURIOUS EFFECTS OF DUMPED IMPORTS FROM 
THE INJURIOUS EFFECTS OF OTHER FACTORS 
 10. Article 3.5 of the AD Agreement  provides that "the injuries caused by […] other [known] 
factors must not be attributed to the dumped imports ." In this regard, as the Appellate Body pointed 
out in US – Hot-Rolled Steel ,
13 the investigating authorities are required to "appropriately" separate 
and distinguish the injurious effects of the othe r factors from the injurious effects of the dumped 
imports under Article 3.5 of the AD Agreement . 
 11. However, the AD Agreement  does not set any particular methods or approaches as to how 
investigating authorities are to appropriately separate and distinguish these effects.  In this connection, 
Japan recalls that the Panel is ob liged to examine "whether the inv estigating authority has provided a 
reasoned and adequate explanation"  and that "a panel can assess whether an authority's explanation 
for its determination is  reasoned and adequate only if the panel critically examines that explanation in 
the light of the facts".
14  In order for the Panel to examine whether the authority's explanation on the 
causation is reasoned and adequate, therefore, the Pa nel must review the adequacy of the authority's 
analysis of the non-attribution issue upon an examination of the particular facts of this case.   
 
12. In some cases, it might be sufficient for th e authority to make a qualitative analysis on the 
injurious effects of dumped imports and those of other factors in order to provide the reasoned and adequate explanation that the injury is actually caused by those imports.  In other cases it might be 
necessary for the authorities to conduct a quantitativ e analysis separating and distinguishing the 
injurious effects of dumped imports from the injurious  effects of other factors for this purpose.  At a 
minimum, as stated by the panel in EC – Countervailing Measures on DRAM Chips in the context of 
evaluating the non-attribution requirement under Article 15.5 of the SCM Agreement , "[a]n 
investigating authority must do more than simply lis t other known factors, and then dismiss their role 
with bare qualitative assertions".
15   
 
13. In sum, the AD Agreement  neither mandates nor exempts the authorities from making a 
quantitative analysis to comply with the non-attribut ion rule under Article 3.5.  The analytical method 
                                                      
10 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 284 (Emphasis 
Added). 
11 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 284. 
12 See China FWS, para. 812. 
13 Appellate Body Report, US – Hot-Rolled Steel , para. 223 
14 See Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), paras. 98-99 
(Emphasis Original). 
15 Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.405.  WT/DS405/R 
 Page D-11 
 
 
that an authority would be required to adopt depe nds on the underlying facts of the given case.  Japan 
respectfully requests that the Panel review whethe r the Commission provided a reasoned and adequate 
explanation that it adequately separated and distin guished the injurious effects of the other factors 
from the injurious effects of the dumped imports.  III. CONCLUSION 
 
14. Japan respectfully requests the Panel to examin e carefully the facts presented by the parties to 
this dispute in light of Japan's arguments as discusse d in its submission and above to ensure the fair 
and objective application of the provisions of the AD Agreement . 
 
 WT/DS405/R 
Page D-12  
 
 
ANNEX D-4 
 
 
THIRD PARTY STATEM ENT OF TURKEY 
 
 
1. I am glad to present you with the views of Turkey at this stage of the panel proceedings 
regarding the complaint launched by People's Repub lic of China.  I will summarize Turkish position 
on the subject, to the extent possible, by refraini ng from repetition of details presented in our written 
submission.  Turkey takes no position as to the de fence and allegations presented by the parties. 
Turkey wishes to contribute by focusing on two majo r issues during this oral statement, namely 
Analogue Country Selection and Sampling.  
 
I.  ANALOGUE COUNTRY SELECTION 
 
2.  Article 2.1 of the Anti-Dumping Agreemen t ("ADA") provides under what circumstances a 
product is considered as being dumped.  A plain interpretation of Article 2.1 clearly indicates that an investigating authority has to work on two data  groups namely normal value and export price to 
determine whether dumping is present for the produc t under consideration.  Accordingly, the 
investigating authority is legally obliged to make  a fair comparison based on the rules and standards 
stipulated in Article 2.4 of the ADA between normal value and export price.  
 3.  Most of the time, the normal value is determined by looking at sales of the like product in the ordinary course of trade in the domestic market of  the exporting country.  Ho wever, as envisaged in 
Article 2.2 of the ADA, in some situations dom estic prices and the exporting prices do not permit a 
proper comparison.  In order to overcome these di fficulties, the ADA provides alternative ways to 
find a comparable price.  4.  Furthermore, Ad. Article VI.2 of GATT1994 together with paragraph 15(a) of the Accession 
Protocol of China provides derogation from the provi sions of the ADA regardi ng the determination of 
normal value.  In this context a WTO member may use a methodology that is not based on a strict 
comparison with domestic prices or costs in China if the investigated producers cannot clearly show 
that they are operating in market economy conditions.   5.  Turkey considers that selecting an analogue country is the most reasonable method for determining the normal value when the investig ated companies are not operating under market 
economy conditions.  In fact from the submission of th e Parties, Turkey understands that the use of 
the analogue country procedure is not disputed between the parties.   6.  Turkey would like to point that inves tigating authorities sometimes face difficulties in 
analogue country selection.  Companies to whic h analogue county questionnaires are sent sometimes 
may not co-operate with the investigating authorities.   Even if they respond properly, verification of 
the data is another problem that the investiga ting authorities have to face with.  The responding 
countries are mostly reluctant to open their data a nd premises for verification since they are not party 
of the investigation.   7.  Turkey would also like to emphasize that th ere is no clear-cut provision in the ADA regarding 
the selection procedure of analogue country.  In this  regard, Turkey considers that to some extent 
members have the flexibly to adopt thei r own rules and procedures on this issue. 
  WT/DS405/R 
 Page D-13 
 
 
8.  The critical question here is whethe r the selected analogue country should be an  appropriate 
or the most appropriate country.  Taking into account the difficulties regarding the selection of 
analogue country  and the fact that the rules and procedures on this issue is not prescribed in the 
ADA, Turkey considers that the standard applied in  regard to the selection of the analogue country 
should be "an appropriate country" standard, not "the most appropria te country" standard.  Therefore,  
if it can be determined that the selected country is  appropriate in order to determine the normal value, 
then the investigating authorities are not required to search for   the most appropriate country to select 
as analogue country.   9.  In this context, if Brazil is an appropriate country under the internal standards set forth by the 
EU, there is no need to search for the more or most  appropriate country , since the standard is "an 
appropriate country" standard.  However, Turk ey refrains from making comments on whether the 
selection of Brazil is appropriate for the footwear i ndustry since it is the question of the concrete case. 
Turkey would like to share its opinion about what  the threshold question should be on this issue. 
 
10.  With regard to the arguments whether the "fair comparison principle" prescribed under 
Article 2.4 applies to the selection procedure of  the analogue country, Turkey considers that 
Article 2.4 does not govern the analogue country selection process.  In Turkey's view, the "fair comparison principle" prescribed under Article 2.4 requires the authorities to compare the "normal 
value" and "export price" in a fair manner.  Howeve r this requirement is rela ted with the comparison 
stage of these two prices and not related with the calculation stage of the normal value or the export 
price.  Since there is no comparison, there is no "fair comparison" requirement as well before the 
stage of determining the normal value and export price.  Howeve r, once the normal value and the 
export price are determined, the investigating au thorities are bound by the "fair comparison" rule.  
The analogue country selection process is related with  determining the normal value stage, not related 
with the comparison stage. 
 
11.  Consequently, Turkey considers that the fa ir comparison principle set out under Article 2.4 
does not govern the calculation of normal value or expor t price, it just covers the stage of comparison 
of these two prices.  The determination of whether Br azil is an appropriate analogue country is not an 
issue that can be argued in the context of fair comparison principle.   II.  SAMPLING 
 
12.  It is clearly understood from Article 6.10  of the ADA that while the general rule is to 
calculate individual dumping margin for every known exporter/producer, sampling is an exception to 
that general rule when the number of exporters/pro ducers/importers/types of products is too large to 
make such an individual treatment. 
 13.  China claims that by not examining the Ma rket Economy Treatment (MET) application of the 
non-sampled companies, EU violated Article 6.10 of the Anti-Dumping Agreement.  According to China, an investigating authority has to evaluate separately all the MET applications, even if sampling 
is recoursed and the companies in question are not included in the sampling process.  
 
14.  Turkey considers that this interpretation is incompatible with the spirit of the sampling 
exception.  When it is impractical to examine all th e co-operated companies, by applying sampling the 
investigating authorities have opportunity to exam ine only a limited group of exporters in order to 
reach a determination in a timely manner on whether dumping exists.  
 
15.  Therefore once the sampling is applied, the investigating authorities make the examination of 
whether dumping exists according to the data of the only sampled companies.  This means that the 
investigating authorities limit their examinati on only to a group of companies.  The MET/IT 
determinations constitute the part of  this examination that is limited to group of sampled companies. WT/DS405/R 
Page D-14  
 
In other words the investigating authorities have to examine only the MET/IT application of the 
companies that are included in the sample.  16.  Especially, when a product in a fragmented i ndustry such as footwear is subject to an anti-
dumping investigation, it is actually not possibl e to examine all the co-operated companies' 
applications since there may be hundreds of produ cers/exporters.  That is the reason why sampling is 
prescribed under the Article 6.10 as an exception to the individual treatment.   17.  Consequently Turkey considers that  the sampling rule prescribed under Article 6.10, which is 
as an exception to the individual treatment principle,  does not oblige the investigating authorities to 
examine separately all the MET applications of th e companies which are not included in the sampling 
process.  Therefore, according to Turkey's view  when sampling is recoursed, the investigating 
authorities have to examine only the responses of the companies that are included in the sample 
regardless of whether they applied for MET/IT.  III.  CONCLUSION 
 
18.  Turkey wishes to thank the Panel for the opportunity to submit its views during this hearing 
and welcomes any questions the Pa nel or the parties may have.  
   WT/DS405/R 
 Page D-15 
 
 
  
ANNEX D-5 
 
 
EXECUTIVE SUMMARY OF  THE THIRD PARTY  
STATEMENT OF THE UNITED STATES 
 
 
1. While the United States is not discussing today a ll of the issues that it addressed in its written 
submission, the Panel should not interpret this as an indication that the United States considers those 
issues to be unimportant.  Indeed, even though the United States will not be discussing today most of 
China's procedural claims, the United States would like to use this opportunity to reiterate its 
appreciation of China's acknowledgment in its fi rst written submission of the importance of due 
process and transparency in trade remedy proceed ings.  The United States trusts that China will 
demonstrate these in its administration of its own trade remedy laws.   2. One of China's principal claims in this dis pute is that Article 9(5) of the EU's Basic AD 
Regulation is inconsistent with provisions of various covered ag reements because Article 9(5) 
requires the investigating authority to apply a single dumping margin to multiple firms unless certain conditions are met.  China argues that Article 6. 10 of the AD Agreement permits application of a 
single dumping margin to multiple exporters or pr oducers only where the number of producers and 
exporters is so large as to make impracticable the application of individual dumping margins for 
specific exporters or producers and, because Article 9( 5) of the Basic AD Regulation does not fit into 
this narrow exception, it is inconsistent with Article 6.10.   3. The EU responds that China's argument fa ils because limiting the exporters or producers 
examined due to their large number is not the only exception to the general requirement of an 
individual margin contained in the first sentence of Article 6.10.  A ccording to the EU, Article 6.10 
permits application of a single margin of dum ping to multiple firms depending on the economic 
realities of those firms.   4. The United States agrees that the economic realities of the firm s included in the investigation 
are key to implementing the obligations in Article 6.10 of the AD Agreement.  However, as we will 
explain, these economic realities do not provide an additional exception to the first sentence of 
Article 6.10.  Instead, evaluation of the economic real ities of the firms included in the investigation is 
part of the investigating authority's task in dete rmining the "exporters" and "producers" for which it 
must generally determine an individual margin.   5. Article 6.10, first sentence, states that: "[ t]he authorities shall, as a rule, determine an 
individual margin of dumping for each known export er or producer concerned of the product under 
investigation."  The provision then provides one exce ption to this rule when the number of exporters 
or producers is so large as to make such a determination impracticable.   6. However, a fundamental question an investig ating authority must answer when fulfilling the 
requirement of the first sentence of Article 6.10 is  which "exporters" or "producers" are included in 
the investigation.  Put differently, Article 6.10 establishes that the identification of the specific 
producers or exporters in an investigation is a condition precedent to calculating a dumping margin.  
This question must be addressed in all anti-dum ping proceedings, both those involving market 
economies and those involving non-market economies.  
 WT/DS405/R 
Page D-16  
 
7. The United States recalls that the AD Ag reement does not define what constitutes an 
"exporter" or "producer," nor does it establish criteria for an investigating authority to evaluate when 
making this determination.  As the United States and other Members in this dispute have recognized, 
one particularly meaningful criterion in this inquiry  is the economic realities of the firms included in 
the investigation, including their structure and ope rations in the particular economy at issue.  For 
example, if a firm included in the investigation has a parent company that controls fundamental 
business decisions such as those related to produc tion and pricing for the firm included in the 
investigation, then it may be appropriate to cons ider that firm and its parent company as a single 
exporter or producer.   
8. Under such circumstances, it would not make sense to assign the firm and its parent company 
separate margins of dumping because such a close relationship would permit the related exporters or producers to channel exports through an affiliate w ith a lower dumping margin, thereby significantly 
undermining the effectiveness of anti-dumping measu res.  Nothing in the rule established in 
Article 6.10 of the AD Agreement requires such a result.  
 
9. The panel's reasoning in Korea – Paper  fully supports the understanding of the United States 
and other Members  regarding Article 6.10.  Consiste nt with this reasoning, the Panel should find that 
nothing in Article 6.10 prohibits an investiga ting authority from treating multiple firms as one 
exporter or producer if the facts demonstrate that the firms are sufficiently close that such treatment is 
appropriate.  Furthermore, to the extent that Article 9(5) of the EU Basic AD Regulation is a 
mechanism for the investigating authority to examin e such a close relationship between firms, that 
mechanism would not appear to be inconsistent w ith Article 6.10.  Rather, such a mechanism would 
be critical to assist the investigating authority in co mplying with the general rule in Article 6.10 to 
calculate a single margin of dumping for every known exporter or producer.   
10. Before leaving this discussion of Article 6. 10 of the AD Agreement, the United States would 
like to address China's suggestion that Article 9( 5) of the Basic AD Regulation inappropriately 
imposes "extra" conditions that have to be satisfi ed before firms in non-market economies can qualify 
for an individual margin.  As we have just d escribed, Article 6.10 of the AD Agreement does not 
prohibit an investigating authority from consideri ng the economic realities of a firm when deciding 
whether the firm on its own qualifies as a "producer" or "exporter" and should therefore receive an 
individual margin.  These economic realities necess arily include the kind of economy in which the 
firm operates and, in a non-market economy situatio n, the degree of a firm's independence from the 
government.   11. Among the distinguishing features of a non-market economy is that the role of the 
government distorts the functioning of market principl es.  That such distortion exists in the Chinese 
economy is well understood.  As the EU has pointed  out, there is no shortage of evidence of the 
Chinese government intervening in the Chinese economy.  Indeed, the fact that WTO Members have 
recognized the pervasiveness of government influe nce on the Chinese economy is reflected in both 
China's Protocol of Accession and its Working Party Report.   
12. Thus, in a non-market economy, the governme nt can exert influence over companies, which 
can include the government making decisions related to production and pricing for the firm included 
in the investigation.  A lack of independence in pr oduction or pricing decisions is an important factor 
in determining whether a firm constitutes an "exporte r" or "producer" for whic h an individual margin 
of dumping must be calculated pursuant to Article 6.10 of the AD Agreement.  Thus, firms in non-
market economies such as China operate under economi c realities that make it particularly important 
for an investigating authority to analyse more closely the particular structures and operations of these 
firms to evaluate their independence.    13. According to China, the EU acted inconsis tently with Article 2.4 of the AD Agreement 
because the analogue country selection procedure and the selection of Brazil as the analogue country  WT/DS405/R 
 Page D-17 
 
 
precluded a fair comparison between export price and normal value.  China argues that the first sentence of Article 2.4 sets out the "overarching principl e or 'generic rule' that a fair comparison shall 
be made between the export price and the normal value."  China further argues that this fair 
comparison requirement should guide the standard  by which investigating authorities select an 
analogue country.  Thus, according to China, "an improper analogue country selection procedure 
leading to the selection of an unsuitable/inappropria te analogue country . . . directly precludes a fair 
comparison within the meaning of Article 2.4 ... ."  14. The EU responds that Article 2.4 does not apply to the selection of the analogue country because the purpose of such selection is to find a normal value that is comparable with the export 
price and only once a normal value has been identifie d does the fair comparison obligation stated in 
Article 2.4 come into play.  According to the EU, "the  'fair value' rule in paragraph 4 does not apply to 
the choice of the normal value . . ." but, rather, th at the "standard process of finding the normal value 
is set out" in Articles 2.1 and 2.2.     
15. The United States agrees that Article 2.4 does not apply to the selection of an analogue 
country.  Contrary to China's assertions, Article 2. 4 does not impose an "overarching principle" of fair 
comparison in the selection of an analogue country .  Nor does it guide the standard by which an 
analogue country is selected.  Instead, the focus of  Article 2.4 is on how th e authorities ar e to select 
specific transactions for comparison and make the a ppropriate adjustments for differences that affect 
price comparability once the method for determining normal value has been selected.  The general 
obligation to make a "fair comparison" in the firs t sentence of Article 2.4 cannot be divorced from the 
remainder of Article 2.4, which exemplifies the typ es of adjustments that an authority is obliged to 
make in pursuit of price comparability.        16. As noted by the EU, the purpose of selecting an analogue country is "to find a normal value 
that can be placed in comparison with the expor t price."  In a market economy proceeding, an 
authority would apply the rules in Articles 2.1 and 2.2 of the AD Agreement in selecting the home market, a third country market or cost of produc tion as the method for determining normal value.  
When dealing with a non-market economy, the selec tion of an analogue country substitutes for the 
choice between home market, third country market or cost of production in a market economy proceeding.  Just as nothing in the text of Articles 2.1, 2.2 or 2.4 indicates that the first sentence of 
Article 2.4 is relevant to the choice between home ma rket, third country market or cost of production, 
nothing in paragraph 15(a)(ii) of the Protocol or  Article 2.4 suggests that the first sentence of 
Article 2.4 is relevant to the sel ection of the analogue country.   
 17. In summary, an authority uses the analogue c ountry selection procedure to select the basis on 
which normal value will be determined.  While Ar ticle 2.4 addresses how the export price and normal 
value will be compared  and the obligation to make adjustme nts for differences that affect price 
comparability, it does not govern the basis on which no rmal value is determined.  Thus, the obligation 
under Article 2.4 to ensure a fair comparison betw een normal value and export price does not apply to 
the selection of an analogue country.  
18. China has asserted that the provisions of Article 3 of the AD Agreement apply to expiry 
reviews (also referred to as "sunset" reviews) c onducted under Article 11.3 of the AD Agreement.   
The EU responds – correctly in our view – that Chin a's argument is in legal error because the relevant 
provision setting forth the disciplines relevant to the e xpiry review at issue is primarily Article 11.3 of 
the AD Agreement and not Article 3.  As the EU notes, China's arguments are directly contradicted by 
the Appellate Body report in US - OCTG from Argentina .  
 19. As the United States explained in its writte n submission, the specific requirements imposed 
by Article 3 of the AD Agreement for original inve stigations do not apply to sunset reviews under 
Article 11.3.  The Appellate Body has explained this on two occasions, noting that the AD Agreement 
distinguishes between "determinations of injury " addressed in Article 3 and determinations of WT/DS405/R 
Page D-18  
 
likelihood of "continuation or recurrence . . . of in jury" addressed in Article 11.3.  Moreover, turning 
to the text of the Agreement, Artic le 11.3 contains no cross-refere nces to Article 3 that would make 
Article 3 provisions applicable to sunset review s.  Nor does the text of Article 3 mandate that 
whenever the term "injury" is u sed in the AD Agreement, a determination of injury pursuant to the 
provisions of Article 3 is required. 
 
20. We also observe that Colombia's third party submission invites the Panel to consider proposals made in the on-going Rules Negotiations con cerning sunset reviews.  We urge the Panel not 
to do so for at least two reasons.  First, there is no basis in customary rules of interpretation of public 
international law, as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties , 
for considering these proposals, as Colombia noted in  its oral statement today.  The proposals do not 
lend guidance to the meaning of the existing provis ions of the AD Agreement.  Second, the proposals 
do not reflect any consensus of Members.  Instead, th ey merely reflect the views of some Members as 
to how the Agreement should be changed.  For these reasons, the proposals should not be given any 
weight. 
 
21. China asserts that the EU acted inconsisten tly with Article 6.9 because the investigating 
authority did not allow sufficient time for parties to respond to a supplemental disclosure  explaining a 
new methodology being used to calculate the "lesser duty."  The EU responds that this disclosure was 
not one of essential facts, but disclosed only outcomes or methodologies and, therefore, the provision of Article 6.9 requiring sufficient time to respond is not applicable. 
 
22. The United States agrees with the EU to the ex tent that the EU asserts that Article 6.9 does 
not pertain to the disclosure of outcomes or methodologies by the investigating authority.  Rather, the focus of Article 6.9 is whether there is a disclosur e of "essential facts" and, if so, whether the time 
allotted to interested parties to analyse and comme nt on the disclosure of such facts was reasonable 
under the circumstances. 
 23. In addition, even when Article 6.9 applies,  its text does not specify any minimum amount of 
time that would constitute "sufficient time" for a party to defend its interest.  Therefore, what 
constitutes "sufficient time" for an interested part y to defend its interests and respond to an essential 
facts disclosure will depend on the size, significance, and nature of the disclosure. 
 
24. China claims that the EU acted inconsisten tly with Article 3.3 of the AD Agreement by 
cumulating imports from China and Vietnam because the conditions of competition between the imports from China and Vietnam were not equivalent.  China's claim is based on the erroneous legal 
premise that an investigating authority must est ablish that imports from different countries have 
similar volume and market share trends in order to demonstrate that cumulation is appropriate in light 
of the conditions of competition pursuant to Article 3.3.  25. The text of Article 3.3 sets out the only specific requirements for cumulation, and there is no legal basis to impose other requirements for cumulation.  These specific requirements are that the dumping margins for the individual countries must be more than de minimis , the volume of imports 
from the individual countries cannot be negligible , and there must be a determination that a 
cumulative assessment is appropriate in light of  conditions of competition between the imported 
products and between the importe d products and the domestic like product.  The AD Agreement does 
not elaborate on the factors to be considered by an authority in making the determination regarding 
conditions of competition, let alone require that an authority must find the type of identity in trends 
described by China. 
 26. In its third party submission, Colombia invit es the Panel to identify standards with respect to 
the criteria that an authority should take into account when considering conditions of competition.  
We urge the Panel to reject Colombia's invitation.   First, we note that Colombia itself acknowledges 
that Article 3.3 of the AD Agreement does not specify criteria that must be considered under the  WT/DS405/R 
 Page D-19 
 
 
conditions of competition.  Second, to the extent that  Colombia is asking the Panel to do more than is 
necessary to resolve this dispute, we woul d recall the Appellate Body's admonition in US – Wool 
Shirts  that panels and the Appellate Body should not "'make law' by clarifying existing provisions of 
the WTO Agreement  outside the context of resolving a particular dispute." 
 
27. Regarding China's claim that the EU authorities acted inconsistently with Article 6.1.1 of the 
AD Agreement by allowing less than 30 days for in terested parties to submit responses to MET and 
IT claim forms, the United States notes that the panel in US – AD/CVD Duties on Products from 
China  recently rejected a similar claim by China under Article 12.1.1 of the SCM Agreement, a 
provision that is almost identical to Article 6.1. 1, at paragraphs 15.15 to 15.37 of the report. 
 
 
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