WORLD TRADE  
ORGANIZATION  WT/DS295/R 
6 June 2005 
 
 (05-2184) 
 Original:   English 
 
         
MEXICO – DEFINITIVE ANTI-DUMPING MEASURES 
ON BEEF AND RICE  
 
Complaint with Respect to Rice  
  
Report of the Panel 
  
 
      
 
  WT/DS295/R 
Page i 
 TABLE OF CONTENTS 
 
Page  
 
I. INTRODUCT ION................................................................................................................... ..1 
II. FACTUAL A SPECTS ..............................................................................................................2  
III. PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIONS.........................3  
A. UNITED STATES ...........................................................................................................................3  
B. MEXICO ............................................................................................................................... ........4  
IV. ARGUMENTS OF TH E PARTIES ........................................................................................7  
A. FIRST WRITTEN SUBMISSION OF THE UNITED STATES ...............................................................7  
1. The imposition of anti-dumping duties on US long-grain white rice ...................................7  
(a) Economía’s Use of a Stale Period of Investigation Breached Articles VI:2 of 
GATT 1994 and Articles 1, 3.1, 3.2, 3.4, and 3.5 of the AD Agreement ...................................7  
(b) Economía Breached Articles 1, 3.1, 3.5, and 6.2 of the AD Agreement by Limiting Its Examination of Injury to Only Six Months of 1997, 1998, and 1999 ........................................8
 
(c) Economía’s Conduct of its Injury Analysis Breached Articles 3.1, 3.2, 3.4, 3.5, 6.8, 12.2, and Annex II of the AD Agreement...................................................................................8
 
(d) Economía’s Failure to Exclude Firms with  Anti-dumping Margins of Zero per cent 
from the Anti-dumping Measure is Inconsistent with Article 5.8 of the AD Agreement...................................................................................................................... .............9
 
(e) Economía’s Application of an Adverse “Facts Available” Dumping Margin to 
Producers Rice and to US Producers and Exporters that It Did Not Examine Is Inconsistent with Article VI:2 of the GATT 1994, Articles 1, 6.1, 6.2, 6.6, 6.8, 6.10, 
9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreem ent, and Paragraphs 1, 3, 5, 6, and 7 of 
Annex II of the AD Agreement................................................................................................... 9
 
(i) Analysis of Articles 6.1, 6.8, 6.10, and 9.4 of the AD Agreement, and Paragraph 1 of 
Annex II of the AD Agreement ..................................................................................................1 0 
(ii) Economía’s Application of an Adverse “Facts Available” Dumping Margin to 
Producers Rice Breached Articles 6.8, 9.4, and 9.5, and Paragraphs 3, 5, 6, and 7 of Annex II of the AD Agreement ..................................................................................................1 1
 
(iii) Economía’s Application of an Adverse “Facts Av ailable” Dumping Margin to the US 
Producers and Exporters that It Did Not Examine Breached Articles 6.1, 6.2, 6.6, 6.8, 6.10, 9.4, 9.5, 12.1, and Paragraphs 1 and 7 of Annex II of the AD Agreement ......................11
 
(iv) Economía’s Failure to Provide Sufficie nt Information on the Findings and 
Conclusions of Fact and Law and the Reas ons that Led to the Imposition of the 
Adverse Facts Available-Based Margin  on Producers Rice and the Unexamined 
Exporters and Producers Breached Article 12.2 of the AD Agreement ...................................12  
(v) Economía’s Application of an Adverse Fact s Available-Based Margin to Producers 
Rice and the Unexamined Exporters and Producers Breached Articles 1 and 9.3 of the AD Agreement and Article VI:2 of GATT 1994 ..................................................................12
 
2. Mexico's Foreign Trade Act and its FCCP – Articles 53, 64, 68, 89D, 93V, and 97 
of Mexico’s Foreign Trade Act, and Section 366 of Mexico’s FCCP, are inconsistent “as such” with several of Mexico’s obligations under the AD and SCM Agreem ents ................................................................................................................. ...13
 WT/DS295/R 
Page ii   B.
 FIRST WRITTEN SUBMISSION OF MEXICO .................................................................................14  
1. Request for a preliminary ruling...........................................................................................14  
(a) Introduction................................................................................................................... ............14  
(b) Requirements for the request fo r establishment of a Panel.......................................................14  
(c) Deficiencies in the request for the est ablishment of a Panel submitted by the 
United States .................................................................................................................. ...........15  
(i) Ambiguous and vague complaints which do not present the problem clearly..........................15  
(ii) Failure to identify a specific  measure at issue..........................................................................15  
(iii) Complaints which were at no time included by  the United States in its consultations 
with Mexico, but which it nevertheless presents in its panel request........................................15  
(d) Conclusion ..................................................................................................................... ...........16  
2. Legal arguments................................................................................................................ ......16  
(a) Economía complied with Article VI:2 of th e GATT 1994 and Articles 1, 3.1, 3.2, 3.4 
and 3.5 of the AD Agreement with regard to the establishment of the Period of Investigation.................................................................................................................. ............16
 
(b) Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with 
regard to the establishment of the Period of Analysis ..............................................................17  
(c) Economía conducted its injury analysis in acco rdance with Articles 3.1, 3.2, 3.4, 3.5, 
6.8 and 12.2 and Annex II of the AD Agreement.....................................................................18  
(d) Article 5.8 of the AD Agreement is not applicable to firms with dumping margins of zero per cent.................................................................................................................. ............20
 
(e) Mexico applied the facts available to Producers Rice  and to the US producers and 
exporters that were not investigated in a manner consistent with the AD Agreement .............21  
(f) Complaints by the United States regarding the Foreign Trade Act ..........................................22  
C. FIRST ORAL STATEMENT OF THE UNITED STATES ...................................................................25  
1. Opening statement .............................................................................................................. ....25  
(a) Mexico’s use of a stale POI .................................................................................................... ..26 
(b) Mexico limited its injury analysis to only six months of 1997, 1998, and 1999 ......................26  
(c) Mexico’s conduct of its injury analysis ....................................................................................26  
(d) Mexico’s failure to exclude firms with AD margins of zero from the measure .......................27  
(e) Mexico’s application of an adverse “facts available” margin to Producers Rice and to 
US producers and exporters that it did not examine .................................................................27  
(f) Claims Regarding the Foreign Trade Act and Article 366 of the FCCP ..................................28  
2. Closing statement.............................................................................................................. ......29  
D. FIRST ORAL STATEMENT OF MEXICO .......................................................................................30  
1. Preliminary ruling ............................................................................................................. .....30  
(a) Ambiguities of the United States ..............................................................................................3 0 
(b) Damage requirement in procedural violations ..........................................................................31  
(c) Identification of the measure .................................................................................................. ..31  WT/DS295/R 
 
  (d)
 Legal bases not included in the consultations...........................................................................31  
2. Legal arguments regarding the anti-dumping investigation into imports of 
United States' long-grain white rice ......................................................................................31  
(a) Economía complied with Article VI:2 of the GATT 1994 and with Articles 1, 3.1, 
3.2, 3.4 and 3.5 of the AD Agreement with regard to the establishment of the Period of Investigation ............................................................................................................... ..........31
 
(b) Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with 
regard to the establishment of the period analysed ...................................................................32  
(c) Economía conducted its injury analysis in acco rdance with Articles 3.1, 3.2, 3.4, 3.5, 
6.8 and 12.2 and Annex II of the AD Agreement.....................................................................32  
(d) Article 5.8 of the AD Agreement is not applicable to firms with dumping margins of zero per cent.................................................................................................................. ............34
 
(e) Mexico applied the facts available to Producers Rice and to the US producers and 
exporters that were not investigated in a manner consistent with the AD Agreement .............34  
3. Complaints by the United States re garding the Foreign Trade Act...................................35  
E. SECOND WRITTEN SUBMISSION OF THE UNITED STATES .........................................................38  
1. Introduction................................................................................................................... ..........38  
2. Economía’s use of a stale Period of Investigation ................................................................38  
(a) Mexico is unable to justify Ec onomía’s use of a stale POI ......................................................38  
(b) An investigating authority must base its inju ry investigations on a period that includes 
the most recent available information.......................................................................................38  
3. Economía’s limitation of it s examination of injury..............................................................39  
4. Economía’s conduct of its injury analysis.............................................................................40  
5. Economía’s failure to exclude Farmers Ri ce and Riceland from the measure .................42  
6. Economía’s application of an adverse “Facts Available” dumping margin......................42  
(a) Economía should have taken steps to investigate additional exporters ....................................42  
(b) Mexico is misinterpreting the relevant requirements of the AD Agreement ............................43  
(c) An investigating authority may not apply a facts available margin to an exporter that 
was never even sent the questionnaire ......................................................................................44  
(d) Economía breached paragr aph 7 of Annex II ...........................................................................45  
7. Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure..............................45  
8. Mexico has failed to contest numerous US claims................................................................47  
F. SECOND WRITTEN SUBMISSION OF MEXICO .............................................................................47  
1. Complaints relating to the anti-dumping investigation on imports of long-grain 
white rice originating in the United States of America regardless of the country of provenance .................................................................................................................. ........47
 
(a) Introduction................................................................................................................... ............47  
(b) Mexico complied with Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement and 
Articles VI:2 and VI:6(a) of the GATT 1994 with regard to the establishment of the period of investigation ........................................................................................................ ......48
 WT/DS295/R 
Page iv   (c)
 Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement regarding the establishment of the period of analysis ...............................................................................49
 
(d) Economía conducted its injury analysis in a manner consistent with Articles 3.1, 3.2, 
3.4, 3.5, 6.8 and 12.2 and Annex II of the AD Agreement.......................................................50  
(e) Article 5.8 of the AD Agreement is not applicable to firms with margins of dumping of zero per cent ............................................................................................................... ..........54
 
(f) Mexico applied the facts available to US producers and exporters in a manner 
consistent with the AD Agreement ...........................................................................................54  
2. Complaints relating to the Foreign Trade Act and Article 366 of the 
Federal Code of Civil Procedure ...........................................................................................57  
(a) Article 53 ..................................................................................................................... .............57  
(b) Article 64 ..................................................................................................................... .............57  
(c) Article 68 of the Foreign Trade Act..........................................................................................58  
(d) Article 89D of the Foreign Trade Act.......................................................................................59  
(e) Article 93.V of the Foreign Trade Act......................................................................................60  
(f) Article 366 of the FCCP and Articles 68 and 97 of the Foreign Trade Act..............................60  
G. SECOND ORAL STATEMENT OF THE UNITED STATES ...............................................................61  
1. Opening statement .............................................................................................................. ....61  
(a) Mexico’s use of a stale POI .................................................................................................... ..61 
(b) Economía limited its injury examination to six months of 1997, 1998, and 1999 ...................62  
(c) Mexico’s conduct of its injury analysis ....................................................................................62  
(d) Mexico’s failure to exclude firms with AD margins of zero per cent.......................................63  
(e) Mexico’s application of an adver se “facts available” dumping margin....................................63  
(f) Claims regarding the Foreign Trade Act and Article 366 of the FCCP....................................64  
(g) Conclusion ..................................................................................................................... ...........66  
2. Closing statement.............................................................................................................. ......66  
H. SECOND ORAL STATEMENT OF MEXICO ...................................................................................67  
1. Anti-dumping investigation on imports of  long-grain white rice originating in 
the United States regardless of the country of provenance.................................................68  
(a) Mexico Complied with Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement and 
Articles VI:2 and VI:6(a) of the GATT 1994 w ith Regard to the Establishment of the 
Period of Investigation........................................................................................................ ......68  
(b) Mexico Complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with Regard 
to the Establishment of the Period of Investigation ..................................................................68  
(c) Economía Conducted its Injury Analysis in a Manner Consistent with Articles 3.1, 
3.2, 3.4, 3.5, 6.8, 12.2 and Annex II of the AD Agreement......................................................69  
(d) Article 5.8 of the AD Agreement Is Not Applicable to Firms with Margins of 
Dumping of Zero Per Cent....................................................................................................... .70  WT/DS295/R 
 
 (e)
 Mexico applied the facts available to Producers Rice  and to the US Producers and 
Exporters That Were Not Investigated  in a Manner Consistent with the AD 
Agreement...................................................................................................................... ...........71  
2. Complaints relating to the Foreign Trade Act and article 366 of the Federal 
Code of Civil Procedure ........................................................................................................ .74 
V. ARGUMENTS OF THE THIRD PART IES ........................................................................76  
A. THIRD PARTY WRITTEN SUBMISSION OF CHINA ......................................................................76  
1. Issue 1:  The closeness of the Period of Investigation to the Date of Initiation .................76  
2. Issue 2:  The seasonality of the Period of Investigation.......................................................77  
3. Issue 3:  Investigating authorities’ obligations as to evidence collection ...........................77  
4. Issue 4:  Know n exporters...................................................................................................... 78 
5. Issue 5:  Exporters that had no export during the POI.......................................................79  
B. THIRD PARTY WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES ................................79  
1. Stale period of investigation.................................................................................................. .79 
2. Use of March to August 1997, 1998 and 1999 for injury analysis ......................................79  
3. Injury analysis including non-dumped imports...................................................................80  
4. De minimis  dumping margin..................................................................................................80  
5. All others rate, facts available............................................................................................... .80 
(a) Irrelevance of Articles 9.4 and 10.6 of the AD Agreement ......................................................80  
(b) An all others rate is perm issible for unknown exporters...........................................................80  
(c) Meaning of known and unknown exporters..............................................................................81  
(d) Application of an all others  rate to unknown producers ...........................................................81  
(e) Application of an all others  rate to known producers ...............................................................81  
6. As such ........................................................................................................................ .............81  
C. THIRD PARTY WRITTEN SUBMISSION OF TURKEY ...................................................................81  
1. Selection of an investigation period that ended more than fifteen months prior to 
the date of initiation of the investigation...............................................................................82  
2. Limitation of inquiry .......................................................................................................... ....82  
3. Application of “adverse facts available” to certain companies...........................................83  
4. Consistency of domest ic legislation .......................................................................................84  
5. Conclusion ..................................................................................................................... ..........85  
D. THIRD PARTY ORAL STATEMENT OF CHINA .............................................................................85  
1. Issue 1:  The closeness of the Period of Investigation to the Date of Initiation .................85  
2. Issue 2:  The seasonality of the Period of Investigation.......................................................85  
3. Issue 3:  Investigating authorities’ obligations as to evidence collection ...........................86  
4. Issue 4:  Know n exporters...................................................................................................... 87 
5. Issue 5:  Exporters that had no export during the POI.......................................................87  WT/DS295/R 
Page vi   E.
 THIRD PARTY ORAL STATEMENT OF THE EUROPEAN COMMUNITIES ......................................88  
1. Introduction................................................................................................................... ..........88  
2. Stale period of investigation.................................................................................................. .88 
3. Use of March to August 1997, 1998 and 1999 for injury analysis ......................................89  
4. All others rate, facts available............................................................................................... .90 
5. Fines imposed pursuant to Article 93V of the Foreign Trade Act......................................90  
F. THIRD PARTY ORAL STATEMENT OF TURKEY ..........................................................................90  
VI. INTERIM RE VIEW...............................................................................................................92  
A. COMMENTS BY THE UNITED STATES ........................................................................................92  
B. COMMENTS BY MEXICO ............................................................................................................93  
1. Observations concerning the section on the anti-dumping measure imposed on 
imports of long-grain white ri ce from the Unit ed States.....................................................93  
2. Observations concerning the section concerning the Foreign Trade Act 
("the Act") .................................................................................................................... ...........97  
VII. FINDINGS....................................................................................................................... ........98  
A. GENERAL ISSUES .......................................................................................................................98  
1. Standard of Review............................................................................................................. ....98  
2. Burden of Proof................................................................................................................ .......99  
B. MEXICO 'S REQUEST FOR PRELIMINARY RULINGS ....................................................................99  
1. Arguments of the Parties....................................................................................................... .99 
(a) Mexico ......................................................................................................................... .............99  
(b) United States .................................................................................................................. .........101  
2. Analysis....................................................................................................................... ...........102  
(a) Conformity of the Request for Establis hment with Article 6.2 of the DSU ...........................102  
(b) Lack of Identity between the Request for Consultations and the Request for 
Establishment.................................................................................................................. ........105  
(c) Nullification or Impairment of Benefits under Article 17.5 of the AD Agreement................108  
3. Conclusion ..................................................................................................................... ........108  
C. CLAIMS RELATING TO THE ANTI-DUMPING MEASURE ON RICE.............................................109  
1. Claims relating to the In jury determination ......................................................................109  
(a) Claim 1:  Economía’s use of a period of  investigation that ended more than 
fifteen months prior to the initiation of the anti-dumping investigation and nearly three years prior to the final determination is inconsistent with Mexico’s obligations 
under Article VI:2 of GATT 1994 and Articles 1, 3.1, 3.2, 3.4, and 3.5 of the 
AD Agreement................................................................................................................... .....109
 
(i) Arguments of the Parties....................................................................................................... ..109  
(ii) Analysis....................................................................................................................... ............110   WT/DS295/R 
 
  (b)
 Claim 2:  Economía’s limitation of its inju ry analysis to only six months of 1997, 
1998, and 1999 is inconsistent with Mexico’s obligations under Articles 1, 3.1, 3.5, 
and 6.2 of the AD Agreement .................................................................................................115  
(i) Arguments of the Parties....................................................................................................... ..115  
(ii) Analysis....................................................................................................................... ............117  
(c) Claim 3:  Economía’s failure to collect the evidence on price effects and volumes that 
it needed to conduct its injury analysis in  an objective manner is inconsistent with 
Mexico’s obligations under Articles 3.1, 3.2,  6.8 and Annex II of the AD Agreement .........121  
(i) Arguments of the Parties....................................................................................................... ..121  
(ii) Analysis....................................................................................................................... ............123  
(d) Claim 4:  Economía’s failure to objectively consider whether there was a significant  
increase in the volume of  dumped  imports or whether the dumped imports had a 
significant effect on prices is inconsistent  with Mexico’s obligations under Articles 
3.1 and 3.2 of the AD Agreement ...........................................................................................130  
(i) Arguments of the Parties....................................................................................................... ..130  
(ii) Analysis....................................................................................................................... ............132  
(e) Claim 5:  Economía’s failure to conduct an objective analysis of the relevant 
economic factors is inconsistent with Mexi co’s obligations under Articles 3.1 and 3.4 
of the AD Ag reement............................................................................................................ ..132  
(i) Arguments of the Parties....................................................................................................... ..132  
(ii) Analysis....................................................................................................................... ............132  
(f) Claim 6:  Economía’s inclusion of non-dumpe d imports in its evaluation of volume, 
price effects, and the impact of the dumped imports on the domestic industry is inconsistent with Mexico’s  obligations under Articles 3.1, 3.2, and 3.5 of the 
AD Agreement................................................................................................................... .....133
 
(i) Arguments of the Parties....................................................................................................... ..133  
(ii) Analysis....................................................................................................................... ............133  
(g) Claim 7:  Economía’s failure to provide  in sufficient detail the findings and 
conclusions reached on all issues of fact and law with respect to its determination of 
injury is inconsistent with Mexico’s  obligations under Article 12.2 of the 
AD Agreement................................................................................................................... .....134  
(i) Arguments of the Parties....................................................................................................... ..134  
(ii) Analysis....................................................................................................................... ............134  
2. Claims relating to the margin of dumping and the application of the measure..............134  
(a) Claim 8:  Economía’s failure to exclude firms with anti-dumping margins of 
zero per cent from the anti-dumping measure is inconsistent with Mexico’s obligations under Article 5.8 of the AD Agreement...............................................................134
 
(i) Arguments of the Parties....................................................................................................... ..134  
(ii) Analysis....................................................................................................................... ............135  
(b) Claim 9:  Economía’s application of an adverse facts available-based dumping 
margin to the non-shipping exporter Producer s Rice is inconsistent with Mexico’s 
obligations under Articles 6.2, 6.4, 6.8, 9.4, and 9.5 of the AD Agreement and Paragraphs 3, 5, 6, and 7 of Annex II .....................................................................................139
 WT/DS295/R 
Page viii   (i)
 Arguments of the Parties....................................................................................................... ..139  
(ii) Analysis....................................................................................................................... ............141  
 
(c) Claim 10:  Economía’s application of an adverse facts available-based dumping 
margin to the US producers and exporters th at it did not investigate is inconsistent 
with Mexico’s obligations under Articles 6.1, 6.6, 6.8, 6.10, 9.4, 9.5, and 12.1 of the 
AD Agreement and paragraphs  1 and 7 of Annex II ..............................................................146  
(i) Arguments of the Parties....................................................................................................... ..146  
(ii) Analysis....................................................................................................................... ............149  
(d) Claim 11:  Economía’s failure to provide sufficient information on the findings and 
conclusions of fact and law and the reasons  that led to the imposition of the adverse 
facts available-based margin on Producers Rice and the unexamined US exporters and producers is inconsistent with Mexico ’s obligations under Article 12.2 of the 
AD Agreement................................................................................................................... .....156
 
(i) Arguments of the Parties....................................................................................................... ..156  
(ii) Analysis....................................................................................................................... ............156  
(e) Claim 12:  Economía’s application of an adverse facts available-based margin to 
Producers Rice and the unexamined US exporte rs and producers is inconsistent with 
Mexico’s obligations under Articles 1 and 9.3 of the AD Agreement....................................156  
(i) Arguments of the Parties....................................................................................................... ..156  
(ii) Analysis....................................................................................................................... ............157  
(f) Claim 13:  Economía’s levying of an anti-dumping duty greater than the margin of 
dumping is inconsistent with  Mexico’s obligations under Article VI:2 of GATT 1994 ........157  
(i) Arguments of the Parties....................................................................................................... ..157  
(ii) Analysis....................................................................................................................... ............157  
D. CLAIMS CONCERNING MEXICO 'S FOREIGN TRADE ACT AND SECTION 366 OF 
MEXICO 'S FCCP  AS SUCH .......................................................................................................157  
1. Claim 14:  Article 53 of Mexico’s Foreign Trade Act is inconsistent "as such" 
with Article 6.1.1 of the AD Agreement and Article 12.1.1 of the SCM Agreement...................................................................................................................... ........157
 
(a) Arguments of the Parties....................................................................................................... ..157  
(i) United States.................................................................................................................. .........157  
(ii) Mexico......................................................................................................................... ............158  
(b) Analysis ....................................................................................................................... ...........158  
2. Claim 15:  Article 64 of Mexico’s Foreign Trade Act is inconsistent "as such" 
with Articles 6.8, 9.3, 9.4, and 9.5 of the AD Agreement, paragraphs 1, 3, 5, and 7 of Annex II of the AD Agreement, and Articles 12.7 and 19.3 of the SCM Agreement...................................................................................................................... ........161
 
(a) Arguments of the Parties....................................................................................................... ..161  
(i) United States.................................................................................................................. .........161  
(ii) Mexico......................................................................................................................... ............162  
(b) Analysis ....................................................................................................................... ...........163   WT/DS295/R 
 
  
3.
 Claim 16:  Article 68 of Mexico’s Foreign Trade Act is inconsistent "as such" 
with Articles 5.8, 9.3, and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement .........................................................................................................16 6
 
(a) Arguments of the Parties....................................................................................................... ..166  
(i) United States.................................................................................................................. .........166  
(ii) Mexico......................................................................................................................... ............166  
(b) Analysis ....................................................................................................................... ...........167  
4. Claim 17:  Article 89D of Mexico’s Foreign Trade Act is inconsistent "as such" 
with Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement.............172  
(a) Arguments of the Parties....................................................................................................... ..172  
(i) United States.................................................................................................................. .........172  
(ii) Mexico......................................................................................................................... ............172  
(b) Analysis ....................................................................................................................... ...........172  
5. Claim 18:  Article 93V of Mexico’s Foreign Trade Act is inconsistent "as such" 
with Article 18.1 of the AD Agreement and Article 32.1 of the SCM Agreement...........174  
(a) Arguments of the Parties....................................................................................................... ..174  
(i) United States.................................................................................................................. .........174  
(ii) Mexico......................................................................................................................... ............175  
(b) Analysis ....................................................................................................................... ...........175  
6. Claim 19:  Articles 68 and 97 of Mexico’s Foreign Trade Act, and Section 366 of 
Mexico’s FCCP, are inconsistent "as such" with Articles 9.3, 9.5, and 11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement.................................177
 
(a) Arguments of the Parties....................................................................................................... ..177  
(i) United States.................................................................................................................. .........177  
(ii) Mexico......................................................................................................................... ............178  
(b) Analysis ....................................................................................................................... ...........178  
VIII.  CONCLUSIONS AND RE COMMENDATIONS..............................................................182  
 WT/DS295/R 
Page xi 
 TABLE OF ANNEXES 
 
 
ANNEX A 
 
 
Responses of the United States to Mexico's request of a preliminary ruling 
 
Content Page 
Annex A-1 Responses of the United States  A-2 
 
 
ANNEX B 
 
 
Parties' and Third Parti es' Responses to questions 
posed in the context of the first substantive meeting of the Panel 
 
Content Page 
Annex B-1 Responses of the United States  B-2 
Annex B-2 Responses of Mexico B-25 
Annex B-3 Responses of the European Communities B-37 
 
 
ANNEX C 
 
 
Parties' Responses to questions 
posed in the context of the second substantive meeting of the Panel 
 
Content Page 
Annex C-1 Responses of the United States  C-2 
Annex C-2 Responses of Mexico C-14 
 
 
ANNEX D 
 
 
Request for Consultations and Request  for the Establishment of a Panel 
 
Content Page 
Annex D-1 Request for Consultations by the United States D-2 
Annex D-2 Request for the Establishment of a Panel by the United States D-5 
 WT/DS295/R 
Page xiii 
 TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Me asures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Poultry Anti-
Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 
Brazil – Aircraft  Panel Report, Brazil – Export Financing Programme for Aircraft , WT/DS46/R, 
adopted 20 August 1999, as modified by the Appellate Body Report, 
WT/DS46/AB/R, DSR 1999:III, 1221 
Canada – Wheat Exports and 
Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment 
of Imported Grain , WT/DS276/R, adopted 27 Se ptember 2004, as upheld by 
the Appellate Body Report, WT/DS276/AB/R 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 
25 September 1997, DSR 1997:II, 591 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2049 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the 
DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003  
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, 5295 
Japan – Agricultural 
Products II  Panel Report, Japan – Measures Affecting Agricultural Products , WT/DS76/R, 
adopted 19 March 1999, as modified by the Appellate Body Report, 
WT/DS76/AB/R, DSR 1999:I, 315 
Japan – Film  Panel Report, Japan – Measures Affecting C onsumer Photographic Film and 
Paper , WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179 
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R and Corr.1, adopted 
24 February 2000, DSR 2000:III, 1345 
Mexico – Corn Syrup  
(Article 21.5 – US)  Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 
of the DSU  by the United States , WT/DS132/AB/RW, adopted 
21 November 2001, DSR 2001:XIII, 6675 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Allo y Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 WT/DS295/R 
Page xiv   
Short Title Full Case Title and Citation 
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections 
of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/R, adopted 
5 April 2001, as modified by the A ppellate Body Report, WT/DS122/AB/R, 
DSR 2001:VII, 2741 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002 
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  
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, 521 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, 4697 
US – Malt Beverages GATT Panel Report, United States – Measures A ffecting Alcoholic and Malt 
Beverages , adopted 19 June 1992, BISD 39S/206. 
US – Offset Act  
(Byrd Amendment ) Appellate Body Report, United States – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 
27 January 2003 
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada , WT/DS257/R and Corr.1, 
adopted 17 February 2004, as modified  by the Appellate Body Report, 
WT/DS257/AB/R  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, adopted 
23 May 1997, DSR 1997:I, 323 
  WT/DS295/R 
 
 
I. INTRODUCTION 
1.1 On 16 June 2003, the Government of United States requested consultations with the Government 
of Mexico pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes ("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994  
("GATT 1994"), Article 17.3 of the Agreement on Implementation of Article VI of the  General Agreement 
on Tariffs and Trade 1994  ("AD Agreement"), and Article 30 of the Agreement on Subsidies and 
Countervailing Measures ("SCM Agreemen t"), with respect to Mexico's definitive anti-dumping 
measures on beef and long-grain white rice, published in the Diario Oficial  on 28 April 2000 and 5 June 
2002 respectively, as well as any amendments thereto or extensions thereof and any related measures and also with respect to certain provisions of Mexico's  Foreign Trade Act and its Federal Code of Civil 
Procedure.
1  Mexico and the United States held consulta tions on 31 July and 1 August 2003, but failed to 
settle the dispute.   
1.2 On 19 September 2003, the United States requested the establishment of a panel2 pursuant to 
Article 6 of the DSU, Article 17.4 of the AD Agreement, and Article 30 of the SCM Agreement.   At its 
meeting on 7 November 2003, the Dispute Settlement  Body (the "DSB") established a Panel in 
accordance with Article 6 of the DSU to examine th e matter referred to the DSB by United States in 
document WT/DS295/2.3  At that meeting, the parties to the dispute also agreed that the Panel should 
have standard terms of reference.  The term s of reference are, therefore, the following: 
"To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the United States in document WT/DS295/2, the matter referred to the DSB by the United States in that document, and to ma ke such findings as will assist the DSB in 
making the recommendations or in giving the rulings provided for in those agreements". 
1.3 On 4 February 2004, the United States requested  the Director-General to determine the 
composition of the Panel, pursuant to paragraph 7 of  Article 8 of the DSU. This paragraph provides: 
"If there is no agreement on the panelists within 20 days after the date of the 
establishment of a Panel, at the request of  either party, the Director-General, in 
consultation with the Chairman of the DSB a nd the Chairman of the relevant Council or 
Committee, shall determine the composition of  the panel by appointing the panelists 
whom the Director-General considers most appropriate in accordance with any relevant 
special or additional rules or procedures of the covered agreement or covered agreements 
which are at issue in the dispute, after cons ulting with the parties to the dispute.  The 
Chairman of the DSB shall inform the Memb ers of the composition of the panel thus 
formed no later than 10 days after the date  the Chairman receives such a request". 
1.4 On 13 February 2004, the Director-General accordingly composed the Panel as follows: 
Chairman: Mr. Crawford Falconer 
 Members: Ms. Marta Calmon Lemme   Ms. Enie Neri de Ross  1.5 China, the European Communities, and Turkey r eserved their rights to participate in the Panel 
proceedings as third parties.   
                                                     
 
1 WT/DS295/1, G/L/631, G/ADP/D50/1,G/SCM/D54/1.  
2 WT/DS295/2.  The United States did not include clai ms with respect to the anti-dumping measure on beef 
in its request for the establishment of a Panel. 
3 WT/DS295/3. WT/DS295/R 
Page 2   1.6 The Panel met with the parties on 17-18 May 2004 and on 3 August 2004.  It met with the third 
parties on 18 May 2004. 
1.7 The Panel submitted its interim report to the pa rties on 11 March 2005.  The Panel submitted its 
final report to the parties on 25 May 2005. 
II. FACTUAL ASPECTS 
2.1 This dispute concerns the imposition of defin itive anti-dumping duties by Mexico on imports of 
"long-grain white rice" from the United States.  The United States also challenges a number of provisions of Mexico's Foreign Trade Act and a provision of its  Federal Code of Civil Procedure on an "as such" 
basis. 
2.2 On 2 June  2000, the Mexican Rice Council (Consej o Mexicano del Arroz, A.C. or “CMA”) filed 
a petition with the Secretariat of Commerce and Industrial Development (“SECOFI”), the administrator of Mexico’s anti-dumping law at that time
4.  
2.3 The initiation of the investigation was published in the Diario Oficial de la Federación  dated 
11 December 2000.  The investigated product was defi ned as "long-grain white rice".  "Long-grain white 
rice" is produced from paddy rice  or whole rice.  After drying and cleaning (and storing), paddy rice  is 
ground to produce whole rice with the layers of bran th at still cover the grain.  Later, the whole rice is 
further ground with machines to extract the bran layers through abrasion.  After the bran layers have been taken away from the grain, the rice is called regular  ground white rice.  Machines will then separate the 
whole grains from the broken ones, and sort them out by size, thus producing various types of rice including the "long-grain white rice".
5 
2.4 The period of investigation for the purpose of the dumping determination covered the period of 
1 March to 31 August 1999.  For the purpose of injury  examination, the Ministry of Economy (SECOFI's 
successor agency that administers th e Mexican anti-dumping laws) analyzed data for the same period of 
1 March to 31 August for the years 1997, 1998 and 19996.  The Ministry of Economy ("Economía") 
notified the initiation of the anti-dumping investigati on to the petitioners, to the Government of the 
United States and to the two exporters that were sp ecifically identified as the "exporters" in the petition, 
Producers Rice Mill Inc. ("Producers Rice") and Riceland Foods Inc. ("Riceland"), providing them with a 
copy of the petition and its attachments, as well as of the official questionnaire of the investigation.  
 2.5 Subsequent to initiation and prior to the prelimin ary determination, two additional exporters came 
forward to ask for copies of the questionna ire:  The Rice Company("Rice Company")
7 and Farmers Rice 
Milling Company (“Farmers Rice”).  Both compani es, together with Producers Rice and Riceland, 
submitted questionnaire responses to Economía on 22 Fe bruary 2001 and 6 March 2001.  In addition to 
the questionnaire responses, Producers Rice, Riceland,  Rice Company, Farmers Rice, and the USA Rice 
Federation (a trade association based in the Un ited States) made a submission commenting upon and 
contesting various aspects of the petition and notice of initiation.   
                                                     
 
4 Due to a name change, the investigation was completed by the current administrator of Mexico’s anti-
dumping law, the Ministry of Economy (S ecretaria de Economía or “Economía”). 
5 Final Determination (Exhibit MEX-11, US-6 and US-7 ), paras.5 and  161. More precisely, Economia has 
defined it as having the following characteristics: a) It is a graminaceous plant, of the genus Olyza, and the species 
Sativa;  b) Of a white crystalline color; c) With proportions  Length: Width greater than 2:1; d) With characteristic 
culinary uses. (Final Determination, para.5) 
6 The data gathered by Economía, however, seemed to have covered the full 3-year period of the 
investigation. 
7 This company is also referred to in the Final Determination as "The Rice Corporation".   WT/DS295/R 
 
 2.6 Economía published its preliminar y determination on 18 July 2001.  In it, Economía determined 
that Riceland, Rice Company, and Farmers Rice were not dumping.  As to the fourth exporter, Producers Rice, Economía preliminarily determined that it made no sales of subject rice to Mexico during the POI.  Economía’s preliminary determination also found that  there was no evidence of injury to the domestic 
industry.  
2.7 On 5 June 2002, Economía publishe d its final determination.  In it, Economía found no evidence 
of dumping regarding Farmers Rice and Riceland and imposed a zero per cent duty to these exporters.  
For the Rice Company, Economía found a 3.93 per cent margin of dumping and imposed a duty of 3.93 per cent.  For the imports from the remaining US exporters, Economía imposed a duty of 10.18 per cent based on the facts available. 
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
A. U
NITED STATES  
3.1 The United States requests that the Panel make the following findings8: 
(a) Economía’s use of a POI that ended more than fifteen months prior to the initiation of the 
anti-dumping investigation and nearly three years prior to the final determination is inconsistent with Mexico’s obligations unde r Article VI:2 of GATT 1994 and Articles 1, 
3.1, 3.2, 3.4, and 3.5 of the AD Agreement; 
(b) Economía’s limitation of its injury analysis  to only six months of 1997, 1998, and 1999 
is inconsistent with Mexico ’s obligations under Articles 1, 3.1, 3.5, and 6.2 of the 
AD Agreement; 
(c) Economía’s failure to collect the evidence on price effects and volumes that it needed to 
conduct its injury analysis in an objectiv e manner is inconsistent with Mexico’s 
obligations under Articles 3.1, 3.2, and 6.8 and Annex II of the AD Agreement; 
(d) Economía’s failure to objectively consider wh ether there was a significant increase in the 
volume of dumped imports or whether the dumped imports had a significant effect on 
prices is inconsistent with Mexico’s ob ligations under Articles 3.1 and 3.2 of the 
AD Agreement; 
(e) Economía’s failure to conduct an objective anal ysis of the relevant economic factors is 
inconsistent with Mexico’s obligations under Articles 3.1 and 3.4 of the AD Agreement; 
(f) Economía’s inclusion of non-dumpe d imports in its evaluation of volume, price effects, 
and the impact of the dumped imports on th e domestic industry is inconsistent with 
Mexico’s obligations under Articles 3.1, 3.2, and 3.5 of the AD Agreement; 
(g) Economía’s failure to provide in sufficient detail the findings and conclusions reached on 
all issues of fact and law with respect to its determination of injury is inconsistent with 
Mexico’s obligations under Article 12.2 of the AD Agreement; 
(h) Economía’s failure to exclude firms with anti-dumping margins of zero per cent from the 
anti-dumping measure is inconsistent with Me xico’s obligations unde r Article 5.8 of the 
AD Agreement; 
                                                     
 
8 United States' first written submission, para. 291. In its oral statement at the first substantive meeting 
(para. 8) as well as in its second written submission (p aras. 16 and 18), the United States also made a claim on 
Article VI:6(a) of GATT 1994.  WT/DS295/R 
Page 4   
(i) Economía’s application of an adverse facts available-based dumping margin to the  
non-shipping exporter Producers Rice is incons istent with Mexico ’s obligations under 
Articles 6.2, 6.4, 6.8, 9.4, and 9.5 of the AD Agreement and Paragraphs 3, 5, 6, and 7 of 
Annex II; 
(j) Economía’s application of an adverse facts available-based dumping margin to the US 
producers and exporters that it did not inv estigate is inconsistent with Mexico’s 
obligations under Articles 6.1, 6.6, 6.8, 6.10, 9.4, 9.5, and 12.1 of the AD Agreement and paragraphs 1 and 7 of Annex II; 
(k) Economía’s failure to provide sufficient info rmation on the findings and conclusions of 
fact and law and the reasons that led to the imposition of the adverse facts available-based margin on Producers Rice and the une xamined US exporters and producers is 
inconsistent with Mexico’s obligations  under Article 12.2 of the AD Agreement; 
(l) Economía’s application of an adverse facts available-based margin to Producers Rice and 
the unexamined US exporters a nd producers is inconsistent with Mexico’s obligations 
under Articles 1 and 9.3 of the AD Agreement; 
(m) Economía’s levying of an anti-dumping duty greater than the margin of dumping is 
inconsistent with Mexico’s obliga tions under Article VI:2 of GATT 1994; 
(n) Article 53 of Mexico’s Foreign Trade Act is inconsistent “as such” with Article 6.1.1 of 
the AD Agreement and Article 12.1.1 of the SCM Agreement; 
(o) Article 64 of Mexico’s Foreign Trade Act is in consistent “as such” with Articles 6.8, 9.3, 
9.4, and 9.5 of the AD Agreement, paragra phs 1, 3, 5, and 7 of Annex II of the 
AD Agreement, and Articles 12.7 and 19.3 of the SCM Agreement; 
(p) Article 68 of Mexico’s Foreign Trade Act is in consistent “as such” with Articles 5.8, 9.3, 
and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement; 
(q) Article 89D of Mexico’s Foreign Trade Act is  inconsistent “as such” with Article 9.5 of 
the AD Agreement and Article 19.3 of the SCM Agreement; 
(r) Article 93V of Mexico’s Foreign Trade Act is inconsistent “as such” with Article 18.1 of 
the AD Agreement and Article 32.1 of the SCM Agreement; and 
(s) Articles 68 and 97 of Mexico’s Foreign Trade Act, and Section 366 of Mexico’s Federal 
Code of Civil Procedure (“FCCP"), are incons istent “as such” with Articles 9.3, 9.5, and 
11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement. 
3.2 The United States requests that, based on the a bove findings, the Panel recommend that Mexico 
bring its measures into conformity with its oblig ations under the AD Agreement, the SCM Agreement, 
and GATT 1994. 
B. M
EXICO  
3.3 As a preliminary matter, Mexico requests that  the Panel issue a preliminary ruling on the 
deficiencies of the United States' panel request and dec line to rule on the complaints raised in breach of  WT/DS295/R 
 
 Article 4.5, 4.7 and 6.2 of the DSU or Article 17.4 of the AD Agreement. Specifically, Mexico claims as follows
9: 
(a) The United States' panel request exhib its three basic deficiencies, i.e.: 
(i) it does not present the problem clearly; 
(ii) it does not identify a specific measure at issue;  and 
(iii) it raises complaints regarding matters that were not the subject of consultations.  
(b) The above is contrary to DSU Articles 6.2,  4.5 and 4.7 and AD Agreement Article 17.4. 
(c) Consequently, the United States' request w as filed in a manner inconsistent with 
AD Agreement Article 17.5. 
3.4 On the merits, Mexico requests that the Panel make the following determinations10: 
 (a) In regard to the challenge raised ag ainst the measures imposed on dumped imports of 
long-grain white rice: 
 
(i) Mexico established its period of investig ation without breaching its obligations 
under Article VI:2 of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement; 
(ii) Mexico, in limiting its injury analysis to the months of March to August of 
1997, 1998 and 1999, did not contravene its  obligations under Articles 1, 3.1, 
3.5, and 6.2 of the AD Agreement; 
(iii) Mexico conducted its injury analysis in  an objective manner by carrying out an 
objective examination based on positive evidence of price effects and volumes, without violating its obligations under Ar ticles 3.1, 3.2 and 6.8 and Annex II to 
the AD Agreement; 
(iv) Mexico objectively considered whether there was a significant increase in the 
volume of dumped imports and whether the dumped imports had a significant 
effect on prices, thus acting in a manne r consistent with its obligations under 
Articles 3.1 and 3.2 of the AD Agreement; 
(v) Mexico conducted an objective analysis of  the relevant economic factors, thus 
meeting its obligations under Articles 3.1 and 3.4 of the AD Agreement; 
(vi) Mexico did not violate its obligations under Articles 3.1, 3.2 and 3.5 of the 
AD Agreement; 
(vii) Mexico provided in sufficient detail the findings and conclusions reached on all 
issues of fact and law with respect to its determination of injury, thus meeting its 
obligations under Article 12.2 of the AD Agreement; 
(viii) Mexico, in imposing an anti-dumping measure of zero per cent, did not 
contravene its obligations under Article 5.8 of the AD Agreement; 
                                                     
 
9 Mexico's first written submission, para. 309.  
10 Mexico's first written submission, para. 310. WT/DS295/R 
Page 6   
(ix) Mexico, in applying a facts available-based dumping margin, did not act in a 
manner inconsistent with its obligations under Articles 6.2, 6.4, 6.8, 9.4 and 9.5 
of the AD Agreement and paragraphs 3, 5, 6, and 7 of Annex II to the AD Agreement; 
(x) Mexico, in applying a facts available-based dumping margin to the US 
producers and exporters that it did not investigate, did not violate its obligations under Articles 6.1, 6.6, 6.8, 6.10, 9.4, 9.5 and 12.1 of the AD Agreement and paragraphs 1 and 7 of Annex II to the AD Agreement; 
(xi) Mexico provided sufficient information on its findings and conclusions of fact 
and law and the reasons that led the inv estigating authority to impose the facts 
available-based margin on Producers Rice  and the unexamined US exporters 
and producers, without contravening its obligations under Article 12.2 of the 
AD Agreement; 
(xii) Mexico, in applying a facts available-based margin to Producers Rice  and the 
unexamined US exporters and producers, did not violate its obligations under 
Articles 1 and 9.3 of the AD Agreement;  and 
(xiii) Mexico did not levy an anti-dumping duty greater than the margin of dumping 
calculated and hence did not contravene its  obligations under Article VI:2 of the 
GATT 1994; 
 (b) In regard to the challenge raised ag ainst the revision of the Foreign Trade Act: 
 
(i) Article 53 of Mexico's Foreign Trade Act is  consistent as such with Article 6.1.1 
of the AD Agreement and Article 12.1.1 of the SCM Agreement; 
(ii) Article 64 of Mexico's Foreign Trade Act is  consistent as such with Articles 6.8, 
9.3, 9.4 and 9.5 and paragraphs 1, 3, 5 and 7 of Annex II to the AD Agreement, 
and Articles 12.7 and 19.3 of the SCM Agreement; 
(iii) Article 68 of Mexico's Foreign Trade Act is  consistent as such with Articles 5.8, 
9.3 and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement; 
(iv) Article 89D of Mexico's Foreign Trade Act is consistent as such with Article 9.5 
of the AD Agreement and Article 19.3 of the SCM Agreement; 
(v) Article 93.V of Mexico's Foreign Trad e Act is consistent as such with 
Article 18.1 of the AD Agreement and Ar ticle 32.1 of the SCM Agreement;  and 
(vi) Articles 68 and 97 of Mexico's Foreign Trade Act and Article 366 of Mexico's 
Federal Code of Civil Procedure are consis tent as such with Articles 9.3, 9.5 and 
11.2 of the AD Agreement and Articles 19.3 and 21.2 of the SCM Agreement. 
3.5 In view of the foregoing, Mexico requests that the Panel conclude that the definitive anti-dumping 
measures adopted in respect of imports of long-grain white rice from the United States and the amendment of the Foreign Trade Act are consistent with Mexico's obligations under the AD Agreement, 
in particular Articles 1, 3, 5, 6, 9, 12, 18 and Annex II;  the SCM Agreement, in particular Articles 11, 12, 
19, 21 and 32;  and the GATT 1994,  in particular Article VI.  WT/DS295/R 
 
 
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set forth in their written and oral submissions to the Panel, and in 
their answers to questions.  The parties' arguments  as presented in their submissions are summarised in 
this section.  The summaries are based on th e executive summaries submitted by the parties.11  The 
response of the United States to Mexico's request for a preliminary ruling as well as parties' written 
answers to questions from the Panel are set forth in the Annexes.  ( See list of annexes at page xi.)   
A. FIRST WRITTEN SUBMISSION OF THE UNITED STATES  
4.2 The following are the United States' arguments in its first written submission: 
1. The imposition of anti-dumping duties on US long-grain white rice 
(a) Economía’s Use of a Stale Period of Investigation Breached Articles VI:2 of GATT 1994 
and Articles 1, 3.1, 3.2, 3.4, and 3.5 of the AD Agreement 
4.3 The purpose of an anti-dumping measure is not to punish exporters for past dumping practices.  
Rather, it is to “offset or prevent” dumping that is pr esently causing or threatening to cause material injury 
to a domestic industry in the importing country.  A Member is not offsetting or preventing injurious 
dumping if the dumping or injury has completely ceased or never existed.  Thus, in order to impose an 
anti-dumping measure, the investigating authority must  examine, as part of its initial investigation 
pursuant to Article 5 of the AD Agreement, a period of  time that is as close to the date of initiation as 
practicable. 
4.4 In the present case, the petitioning industry selected the POI that it wanted Economía to examine 
for the dumping investigation and the evaluation of  injury, and Economía accepted its request over the 
objection of the US exporters and the importers.  As a consequence, there was more than a fifteen-month 
gap between the end of the POI (August 1999) and th e initiation of the investigation (December 2000).  
Economía did not even collect, much less examine, an y data for that fifteen-month period.  By the time 
Economía issued its final determina tion on 5 June 2002, this gap had st retched to nearly three years. 
4.5 These periods were so remote in time that the info rmation collected by the investigating authority 
was incapable of providing a basis for an objective finding of dumping, injury, and causation (as those terms are defined and used in the AD Agreement) or a determination based on positive evidence.  For 
example, the more than fifteen-month gap between th e end of the POI and the date of initiation (and the 
nearly three-year gap between the end of th e POI and the final determination) means: 
• Economía’s examination of volume and price effects was not objective or based on positive 
evidence as required by Articles 3.1 and 3.2 of the AD Agreement; 
 
• Economía’s examination of “all re levant economic factors” having a bearing on the state of the 
domestic industry was not objective or based on positive evidence as required by Articles 3.1 and 3.4 of the AD Agreement; and 
 
• Economía’s determination that the dumped impor ts were “causing” injury to the domestic 
industry was not objective or based on positive evid ence as required by Articles 3.1 and 3.5 of the 
AD Agreement.  
4.6 Economía also lacked the information it needed  to determine that the subject imports are
 being 
dumped, and that they are  the cause of present  material injury (or threat) to the domestic industry 
producing the like product. 
                                                      
11 All the footnotes in sections IV:A – IV:H are original footnotes of the parties.   WT/DS295/R 
Page 8   4.7 Thus, the imposition of an anti-dumping measure on long-grain white rice from the United States 
breached Articles 1, 3.1, 3.2, 3.4, and 3.5 of the AD Agreement and Article VI:2 of the GATT 1994. 
(b) Economía Breached Articles 1, 3.1, 3.5, and 6.2 of the AD Agreement by Limiting Its 
Examination of Injury to Only Six Months of 1997, 1998, and 1999 
4.8 The petitioner in the rice investigation asked Ec onomía to examine only the March to August time 
period, because this period allegedly reflected the main import activ ity of the product under investigation. 
 Economía agreed that imports were concentrated dur ing that period, and consequently limited its injury 
analysis to the data for March - August of each of the years at issue in its investigation (1997, 1998, 
1999). Economía’s decision to conduct its analysis in th is manner resulted in breaches of Articles 1, 3.1, 
3.5, and 6.2 of the AD Agreement. 
4.9 First
, Economía’s investigation of injury was not based on “positive evidence.”  As the 
Appellate Body stated in United States - Hot-Rolled Steel , the term “positive evidence” relates to “the 
quality of the evidence that authorities may rely upon in making a determination. . . . [T]he evidence must be of an affirmative, objective and verifiable char acter, and . . . it must be credible.”  Economía’s 
investigation of injury was not based on “positive ev idence” for the simple reason that it failed even to 
examine
 the evidence pertaining to half of the period of injury analysis. 
4.10 Second , Economía’s decision to focus its investigati on on only March to August of each year also 
prevented its examination from being objective.  To examine only those parts of the year when imports 
levels are high may overlook positive developments in ot her parts of the year, and thus give a misleading 
impression of the data relating to the condition of th e industry as a whole.  But this is exactly what 
Economía did. 
4.11 These actions contravened Articles 1, 3.1, 3.5, and 6.2 of the AD Agreement. 
(c) Economía’s Conduct of its Injury Analysis Breached  Articles 3.1, 3.2, 3.4, 3.5, 6.8, 12.2, and 
Annex II of the AD Agreement 
4.12 Separate and apart from the breaches arising from Economía’s choice of a POI, Economía’s 
conduct of its injury analysis was inconsistent with WTO rules. 
4.13 First, Article 3.1 of the AD Agreement states that  injury determinations must be based on 
“positive evidence” and must involve an “objective ex amination” of the volume of the dumped imports 
and their effect on prices in the domestic market fo r like products, and the consequent impact of the 
imports on domestic producers of such products.  By fa iling to actively seek out information pertinent to 
these matters, Economía did not make it possible to conduct an objective examination of the injury factors, and consequently did not base its de termination on positive evidence.  Economía then 
compounded its error by basing its determination on the facts available, contrary to Article 6.8 and Annex II. 
4.14 Second
, Article 3.2 of the AD Agreement requires investigating authorities to consider “whether 
there has been a significant  increase in the dumped  imports, either in absolute terms or relative to 
production or consumption in the importing Member.”  Nothing in the discussion of this issue indicates that Economía actually considered whether there were significant  absolute or relative increases in the 
volume of the dumped  imports.  Economía’s failure to conduc t a proper examination of this issue 
breached Articles 3.1 and 3.2 of the AD Agreement. 
4.15 Third
, Economía breached Articles 3.1 and 3.4 of the AD Agreement by failing to conduct an 
objective analysis of certain “relevant economic factors”  that it was required to evaluate under Article 3.4. 
  WT/DS295/R 
 
 4.16 Fourth
, Economía breached Articles 3.1, 3.2, and 3.5 of the AD Agreement by focusing its injury 
analysis on all imports of the investigated product from th e United States, irrespective of whether the 
imports were dumped, instead of conducting an obj ective examination of the effect of the dumped  imports 
alone. 
4.17 Finally , Economía failed to explain sufficiently th e findings and conclusions it reached on all 
issues of law, and thus breached 12.2 of the AD Agreement. 
(d) Economía’s Failure to Exclude Firms with An ti-dumping Margins of Zero per cent from 
the  Anti-dumping Measure is Inconsistent with Article 5.8 of the AD Agreement 
4.18 Economía also breached WTO rules by failing to exclude two of the firms it examined – 
Farmers Rice and Riceland – from the anti-dumping measure.  Farmers Rice and Riceland each had dumping margins of zero per cent.  Since neither firm was dumping, neither firm was causing any injury to the Mexican rice industry through the “effects of  dumping.”  Nevertheless, Economía applied the  
anti-dumping measure to both firms, and each firm re mains subject to future review and the possible 
application of anti-dumping duties.  By treating Fa rmers Rice and Riceland in this manner, Economía 
breached Article 5.8 of the AD Agreement. 
(e) Economía’s Application of an Adverse “Facts  Available” Dumping Margin to Producers 
Rice and to US Producers and Exporters that It Did Not Examine Is Inconsistent with 
Article VI:2 of the GATT 1994, Articles 1, 6.1, 6.2, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreement, and Paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement 
4.19 A basic principle underlying the AD Agreement, embodied in Article 1, is that anti-dumping 
measures shall be applied “only . . . pursuant to i nvestigations initiated and conducted in accordance with 
the provisions of this Agreement.”  The Agreemen t provides for conducting investigations based on the 
actual data of individual interested parties, and Article 6.10 of the AD Agreement requires “as a rule” that the authorities “shall determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation.” 
4.20 The sole exception provided to this rule, set fo rth in the second sentence of Article 6.10, arises 
when the sheer number of potential interested parties is so large that making an individual determination 
for each exporter or producer would be “impracti cable.”  In such cases, authorities may limit their 
examination, either by using statistically valid sam ples or by examining the largest percentage of the 
volume of the exports which can reasonably be inv estigated.  The Agreemen t then provides for the 
“residual” margin (i.e., the margin assigned to the uni nvestigated firms) to be based on the calculation 
method set out in Article 9.4 of the AD Agreement for determining the ceiling for the “all others” rate. 
4.21 Economía’s conduct of the rice investigation breached these rules.  Specifically, Economía 
improperly: 
• sent its anti-dumping questionnaire to only two co mpanies that were listed in the petition but 
claimed to be investigating every producer or exporter in the United States; 
 
• calculated individual margins of dumping for one of those companies and two others that came 
forward on their own initiative and asked to be included in the investigation, but assigned an 
adverse “facts available” margin taken from the petition to Producers Rice, even though that firm 
demonstrated that it had no exports to Mexico during the POI;  and 
 
• treated all other exporters and producers in the United States as “uncooperative” respondents, and 
assigned them an adverse facts available marg in taken from the petition, even though Economía WT/DS295/R 
Page 10   
never sent any of the affected companies a copy of the questionnaire or informed them of the 
consequences that would flow from not providing th e information that it never requested them to 
provide. 
 
(i) Analysis of Articles 6.1, 6.8, 6.10, and 9.4 of the AD Agreement, and Paragraph 1 of Annex II of 
the AD Agreement 
4.22 The core legal provisions implicated by this i ssue are Articles 6.10 and 9.4 of the AD Agreement, 
Articles 6.1 and 6.8 of the AD Agreement, and pa ragraph 1 of Annex II.  These provisions require 
investigating authorities to either individually exam ine and then calculate an individual margin of 
dumping for every producer or exporter of the product in  the country under investigation, or else, if the 
authorities limit their examination to a subset of exporters or producers, to assign a neutral “all others” rate to those producers and exporters that are not individually examined.  An investigating authority is not 
permitted to do what Economía did in the rice investiga tion – which was to individually investigate just a 
few exporters, and then assign an adverse facts available-based margin to everyone else. 
4.23 This conclusion flows from the text of Article 6. 10, which requires, “as a rule,” that individual 
dumping margins be established for each  producer or exporter.  The rule is subject to a single exception, 
when the number of exporters or producers is so larg e that the determination of individual margins for 
each producer or exporter would be impracticable.  In such cases, and only in such cases, an investigating authority may limit its examination to a subset of pr oducers or exporters.  Article 6.10 does not permit an 
investigating authority to announce the initiation of an  anti-dumping investigation, send its questionnaire 
to a few producers or exporters, deem every other producer or exporter in the country as also being 
investigated, and apply a dumping margin based on th e “facts available” to any company that does not 
“appear.” 
4.24 Articles 1, 5, 6.1, 6.5, 6.6, 6.8, and 9.4 of  the AD Agreement, and paragraph 1 of Annex II, 
provide contextual support for the conclusion that Ar ticle 6.10 does not permit investigating authorities to 
take such a passive approach to their investigations. 
4.25 First
, Articles 6.1 and 6.8 of the AD Agreement, a nd paragraph 1 of Annex II, provide that an 
investigating authority must make known to the exporte rs or producers the information that is required of 
them.  This informs the nature of the examination to be undertaken by authorities under Article 6.10 in 
determining margins:  an investigating authority ca nnot simply wait for exporters or producers to respond 
to a general notice and then apply the facts available to any firms that do not appear; rather, the authorities 
must actively seek to identify individual exporters and producers, inform them of the information that is 
needed, and ensure they understand the consequen ces of not supplying the requested information. 
4.26 Second , Article 9.4 requires investigating authoriti es to assign a neutral “all others” rate to 
producers and exporters that they do not individually examine.  The Appellate Body has described this 
rate as a “maximum limit, or ceiling” that investigating authorities “shall not exceed.”12  Inasmuch as the 
calculation method in Article 9.4 does not allow the resulting margin to contain any element of the facts 
available, there is no basis for an interpretation of Article 6.10 that would permit investigating authorities 
to routinely assign total “facts available” margins to firms that they do not individually investigate. 
4.27 Third , Articles 1, 5, 6.5, and 6.6 of the AD Agreement provide context for confirming that 
Articles 6.1, 6.8, 6.10, 9.4, and pa ragraph 1 of Annex II, require an i nvestigating authority to (1) actively 
determine the universe of potential respondents;  (2 ) actively send questionnaires to those producers or 
exporters from which it is seeking information;  and (3 ) either take active steps to investigate every known 
producer and exporter, or else examine a representative sample and assign a neutral “all others” margin that is not
 based on the facts available to everyone else. 
                                                      
12  Report of the Appellate Body, US – Hot-Rolled Steel , para. 116.  WT/DS295/R 
 
  (ii) Economía’s Application of an Adverse “Facts Av ailable” Dumping Margin to Producers Rice 
Breached Articles 6.8, 9.4, and 9.5, and Paragraphs 3, 5, 6, and 7 of Annex II of the AD Agreement 
4.28 Given these requirements, Economía breached its WTO obligations by applying a margin based 
on adverse “facts available” to Producers Rice.  Pr oducers Rice was named in the petition and in the 
Initiation Notice.  The record demonstrates that Produ cers Rice was an “appearing party” that, with other 
respondent parties, established a domicile for legal pur poses in Mexico in order to participate in the 
investigation, requested an extension of time to respond to Economía’s questi onnaire, provided a timely 
response to that questionnaire, including arguments re garding flaws in the petition, requested and attended 
a technical information meeting, participated through its representative at the public hearing, offered post-
hearing final allegations, and file d “additional remarks.”  Economía, however, disregarded all of these 
facts, and only took into account that Producers Rice did not export to Mexico during the six-month POI. 
4.29 Under Article 17.6(i) of the AD Agreement, a panel that is assessing the facts of a matter before it 
must determine whether the authority’s establishment of the facts was proper and whether its evaluation 
of those facts was unbiased and objective.  An unbiased and objective investigating authority would not have concluded that Producers Rice ha d failed to appear in the rice i nvestigation, or that the necessary 
prerequisites for assigning an adverse facts available margin to Producers Rice were met.  Economía’s decision to apply adverse facts available to Producers Rice in the absence of any legitimate grounds to do so was inconsistent with Articles 6.2, 6.8, 9.4, and 9. 5 of the AD Agreement, paragraphs 3, 5, 6, and 7 of 
Annex II of the AD Agreement. 
4.30 In addition, Economía breached Articles 6.2 and 6.4 of the AD Agreement by failing to disclose 
to Producers Rice (and Farmers Rice, Riceland, and Ri ce Company) the Export Price information that the 
petitioner used in calculating the adverse facts available margin in the petition. 
(iii) Economía’s Application of an Adverse “Facts Avail able” Dumping Margin to the US Producers 
and Exporters that It Did Not Examine Breached Articles 6.1, 6.2, 6.6, 6.8, 6.10, 9.4, 9.5, 12.1, and Paragraphs 1 and 7 of Annex II of the AD Agreement 
4.31 Economía breached Articles 6.1, 6.2, 6.6, 6.8, 6.10, 9.4, 9.5, and 12.1 of the AD Agreement, and 
paragraphs 1 and 7 of Annex II of the AD Agreement,  by individually examining only three exporters or 
producers in the rice investigation and assigning an adve rse facts available margin to every other producer 
and exporter in the United States.   
4.32 For example, Economía made no effort to investigate each exporter or producer of the subject 
merchandise, choosing instead to (i) send its questionna ire to just the two firms officially designated as 
exporters in the petition, (ii) investigate only those firms and two other firms that came forward on their own, and (iii) apply an adverse, facts available-based  margin to every other producer and exporter in the 
United States.  An objective and unbiased investigati ng authority would not have concluded that there 
were only two exporters or producers of long-grai n white rice in the United States.  Economía’s 
establishment of the facts with respect to this matter was improper, and that by conducting its investigation in this manner, Economía breached Article 6.10. 
4.33 Similarly, Article 6.6 of the AD Agreement requires that authorities “satisfy themselves as to the 
accuracy of the information supplied by interested  parties upon which their findings are based.”  The 
petition identified only two US exporte rs of long-grain white rice, and Economía apparently accepted that 
listing at face value (even though the petition itself re lied upon data from another major exporter).  Once 
again, an objective and unbiased investigating authority  would not have reached such a conclusion, and 
Economía’s establishment of the facts with respect to this matter was improper. 
4.34 Furthermore, in US – Hot-Rolled Steel , the Appellate Body found that the calculation method set 
forth in Article 9.4 for determining the ceiling for th e “all others” rate precludes the use of any margins WT/DS295/R 
Page 12   which are calculated, even in part
, using facts available.  The rate applied by Economía to US rice 
exporters was not based in part  on facts available, as was the case in US – Hot-Rolled Steel .  It was based 
entirely  on facts available.  Not only that, but the 10.18 per cent rate was adverse  facts available – a clear 
breach of Mexico’s WTO obligations. 
4.35 Economía also breached Article 6.8 and paragraph 7 of Annex II of the AD Agreement, by using 
the petition margin without corroborating the underlying information that the petitioner used to calculate 
the margin.  As was the case with r espect to Producers Rice, there is no evidence on the record of the rice 
investigation to suggest that the unexamined exporte rs and producers – which were never sent a copy of 
Economía’s anti-dumping questionnair e – were uncooperative in any way.  Moreover, as previously 
explained, Economía failed to check the presumptions  embodied in the petition against independent data 
available during the investigation, much less to exerci se “special circumspection” in its application of the 
petition information to the unexa mined producers and exporters. 
4.36 Finally, Economía’s efforts to identify and obtain contact information for interested parties other 
than those listed in the petition were inadequate.  Economía failed to examine the accuracy and adequacy 
of the CMA’s list of only two “known” exporters, a lis t that did not even include a third exporter, the 
Rice Company, whose website, the content of which w as attached to the petition as Annex H, describes it 
as “one of the largest US exporters as regards pa ddy rice and white milled rice.”  In this manner, 
Economía breached Article 12.1 of the AD Agreement,  which requires authorities to notify interested 
parties about the initiation of an investigation. 
(iv) Economía’s Failure to Provide Sufficient Inform ation on the Findings and Conclusions of Fact 
and Law and the Reasons that Led to the Imposition of the Adverse Facts Available-Based Margin on Producers Rice and the Unexamined Exporters and Producers Breached Article 12.2 of the AD Agreement 
4.37 Article 12.2 of the AD Agreement requires that th e public notice of any preliminary or final  
anti-dumping determination “shall set forth, or othe rwise make available through a separate report, in 
sufficient detail the findings and conclusions reached on all issues of fact and law considered material by 
the investigating authorities.”  Despite this re quirement, Economía provided only the most summary 
rationale for its decision to base the margin fo r Producers Rice and the unexamined exporters and 
producers on adverse facts available.  Furthermore, Economía’s references to Article 54 of the Mexican 
Foreign Trade Act as a supposed basis for its decision to apply a facts available margin to these firms 
were unfounded. 
(v) Economía’s Application of an Adverse Facts Ava ilable-Based Margin to Producers Rice and the 
Unexamined Exporters and Producers Breached Articles 1 and 9.3 of the AD Agreement and Article VI:2 of GATT 1994 
4.38 Article 9.3 of the AD Agreement states that “[ t]he amount of anti-dumpi ng duty shall not exceed 
the margin of dumping as established under Article 2. ”  Because Economía failed to calculate the residual 
margin on the basis of the neutral formula set forth in  Article 9.4, the amount of the margin it assigned to 
Producers Rice and the unexamined exporters and produ cers exceeded the margin of dumping established 
under Article 2, and thus breached Article 9.3. 
4.39 Article 1 of the AD Agreement provides that an anti-dumping measure shall be applied only 
under the circumstances provided for in Article VI of  GATT 1994 and pursuant to investigations initiated 
and conducted in accordance with the provisions of th is Agreement.  Because Economía’s conduct of the 
rice investigation breached numerous other provisions  of the AD Agreement, Economía also breached 
Article 1. 
4.40 Finally, as a result of the adverse assumptions made in assigning an adverse margin to non-
shipper Producers Rice and to the other non-examined  companies in the rice investigation, the anti- WT/DS295/R 
 
  dumping duty levied on their products was “greater in amount than the margin of dumping in respect of such products” which could permissibly have been cal culated in accordance with the provisions of the AD 
Agreement.  Because the duties Mexi co levied on these “all others” companies was, and continues to be, 
greater in amount than the appropriate margin of dumping, Mexico violated Article VI:2 of GATT 1994. 
2. Mexico's Foreign Trade Act and its FCCP – Articles 53, 64, 68, 89D, 93V, and 97 of 
Mexico’s Foreign Trade Act, and Section 366 of  Mexico’s FCCP, are inconsistent “as such” 
with several of Mexico’s obligations under the AD and SCM Agreements 
4.41 Various provisions of Mexico’s Foreign Trade Act and its FCCP are inconsistent with Mexico’s 
WTO obligations. 
4.42 First
, Article 53 of the Foreign Trade Act requires interested parties to present arguments, 
information, and evidence to the investigating author ities within 28 days of the day after publication of 
the initiation notice.  This provision breaches Articles 6.1.1 and 12.1.1 of the AD and SCM Agreements, respectively, by counting the time to respond from the da te of initiation instead of the date of receipt, and 
by preventing the investigating authorities from considering and granting extension requests. 
4.43 Second
, Article 64 of the Foreign Trade Act is the provision of Mexican law that applies to the 
calculation of individual anti-dumping and countervailing duty margins and the application of margins to 
exporters and producers that are not individually exam ined and that do not receive individual margins.  
The provision does not, however, provide for the application of a neutral “all others” margin to the unexamined firms.  Rather, Article 64 requires the i nvestigating authorities to apply a margin based on 
adverse facts available – specifically, the highest
 margin obtained from the facts available – to any firm 
that does not receive an individual margin.  Artic le 64 requires this outcome even for a firm, like 
Producers Rice, that participates in the investigati on and demonstrates that it had no exports during the 
period of investigation.  By requiring the investiga ting authorities to assign rates in this manner, Article 
64 is inconsistent “as such” with Mexico’s obligati ons under Articles 6.8, 9.3, 9.4, and 9.5 of the AD 
Agreement, paragraphs 1, 3, 5, and 7 of Annex II of the AD Agreement, and Articles 12.7 and 19.3 of the 
SCM Agreement. 
4.44 Third , Article 68 of the Foreign Trade Act is the provision of Mexican law that applies to the 
review of final anti-dumping and countervailing duty margins determined in investigations.  By requiring investigating authorities to conduct reviews of produ cers that were found not to be dumping or receiving 
countervailable subsidies during the original investig ation, Article 68 is inc onsistent with Mexico’s 
obligations under Article 5.8 of the AD Agreem ent and Article 11.9 of the SCM Agreement. 
4.45 In addition, Article 68 of the Foreign Trade Act also requires producers and exporters seeking 
reviews of their own anti-dumping or countervailing dut y margins to demonstrate that their sales during 
the review period were “representative.”  The im position of this “representativeness” requirement is 
inconsistent as such with Articles 9.3 and 11.2 of  the AD Agreement, and with Article 21.2 of the 
SCM Agreement. 
4.46 Fourth
, Article 89D of the Foreign Trade Act is the provision of Mexican law that implements the 
expedited review provisions of the AD and SCM Agreements.  By impermissibly restricting the ability of parties to obtain such reviews, Article 89D breach es Mexico’s obligations under Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement. 
4.47 Fifth
, Article 93V of the Foreign Trade Act provides for the application of fines on importers that 
enter products subject to anti-dumpi ng and countervailing duty investigati ons while such investigations 
are underway.  This provision constitutes a non-permissible specific action against dumping or a subsidy that is inconsistent with Mexico ’s obligations under Article 18.1 of the AD Agreement and Article 32.1 of 
the SCM Agreement. WT/DS295/R 
Page 14   4.48 Finally
, Article 366 of Mexico’s FCCP and Articl es 68 and 97 of Mexico’s Foreign Trade Act 
preclude Mexican authorities from conducting reviews of anti-dumping and countervailing duties while a 
judicial review of the underlying anti-dumping or  countervailing duty measure is ongoing, including a 
“binational panel” review under Chapter Nineteen of the North American Free Trade Agreement .  By 
requiring the Mexican authorities to reject requests for such reviews, Articles 366, 68, and 97 breach 
Articles 9.3, 9.5, and 11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement. 
4.49 Article 64 of the Foreign Trade Act exacerbates th e harm caused by the fact that Articles 366, 68 
and 97 preclude the Mexican authorities from conducting the reviews that WTO rules require.  As previously discussed, Article 64 requires Economía to  apply an adverse, facts available-based anti-
dumping or countervailing duty margin to every  producer or exporter in the country subject to the 
investigation, other than those few that receive indivi dual rates, even if the firms subject to the adverse, 
facts  available-based margins demonstrate that they had no shipments during the period of review or were 
never even sent a questionnaire.  These firms lose twi ce:  Economía first assigns them an adverse (often 
petition-based) margin that has no relation to reality but  effectively locks them out of the Mexican market, 
and it then denies them any review, and thus any oppor tunity to obtain an individual rate, over the course 
of a judicial challenge that may take years. 
B. F
IRST WRITTEN SUBMISSION OF MEXICO  
4.50 The following are Mexico's arguments in its first written submission: 
1. Request for a preliminary ruling 
(a) Introduction 
4.51 Throughout these proceedings, the United States has not shown the slightest respect for the formal 
requirements governing the terms of reference of the Pa nel, affecting the latter's capacity to settle this 
dispute and Mexico's rights to due process.  The reque st for the establishment of a panel does not fulfil the 
requirements laid down in Articles 4.5, 4.7 and 6.2 of the DSU, nor has the United States duly complied with Article 17.4 and 17.5 of the AD Agreement.  Mexico's capacity for rebuttal was also impaired by the fact that Mexico did not receive the Spanish vers ion of the United States' first written submission until 
16 April 2004. 
(b) Requirements for the request for establishment of a Panel 
4.52 The Appellate Body has clarified the elements of the matter referred to the DSB,
13 specifying that 
flaws in a request for the establishment of a panel cannot be subsequently be cured.14  Concepts such as 
"specific measures at issue" and "leg al basis" are esse ntial for an understanding of the nature of the matter 
referred to the DSB.  Article 6.2 lays down the mini mum requirements for a definition of a panel's terms 
of reference and the precise procedural stage at which this should be done.  Under Article 6.2 of the DSU, 
"[i]t is not enough ... that 'the legal basis of the complaint' is summarily identified;  the identification must 'present the problem clearly'".
15  In addition, a responding party is entitled to know what case it has to 
answer so that it can begin preparing its defence.16 
                                                      
13 US – Carbon Steel , Report of the Appellate Body, paragraph 125. 
14 EC – Bananas III , Report of the Appellate Body, paragraph 143. 
15 Korea – Dairy , Report of the Appellate Body, paragraph 120. 
16 Thailand – H-Beams , Report of the Appellate Body, paragraph 88.  WT/DS295/R 
 
  (c) Deficiencies in the request for the establishm ent of a Panel submitted by the United States 
(i) Ambiguous and vague complaints which do not present the problem clearly 
4.53 First of all, the United States submits that Mexico violated Article VI of the GATT 1994;
17  this is 
as ambiguous as to assert a violation of the AD and SCM Agreements as a whole.  Second, the United States alleges violations of Article 4.1 of the AD Agreement
18 defining the "domestic industry", to 
which the facts referred to bear no relation.  Thir d, the United States argues that Mexico breached the 
AD Agreement by applying the facts available to a US rice exporter,19 whereas the provisions on which 
the United States relies do NOT refer to the case in questi on.  Fifth, the United States is equally mistaken 
in saying that Mexico applied the facts available in  establishing the anti-dumping margins assigned to US 
exporters that were not individually investigated.20  The United States attempted to correct the omission in 
paragraph 40 of its first written submission. 
(ii) Failure to identify a specific measure at issue 
4.54 In paragraph 3 of the request for the establishmen t of a panel, the United States goes as far as to 
claim that Mexico breached a number of Articles of the AD and SCM Agreements, on the basis of 
"conversations" with a number of Mexican officials.  It has been made clear that such conversations 
cannot be deemed to be a measure.21  Consequently, the affirmation in the United States' request for the 
establishment of a panel clearly fails to  identify a specific measure at issue 
4.55 If, arguendo , the above were to constitute a measure, the manner in which the United States 
presents its argument would clearly constitute a failure to comply with Article 6.2 of the DSU since the 
problem would be far from being presented clearly, thus denying Mexico any basis for rebuttal. 
(iii) Complaints which were at no time included by the Un ited States in its consultations with Mexico, 
but which it nevertheless presents in its panel request 
4.56 Pursuant to Article 4.5 of the DSU, WTO Member s are under the obligation to attempt to achieve 
a solution in the course of the consultations, and failure  to settle the dispute during the consultations is a 
precondition for entitlement to request the establishment of a panel under Article 4.7 of the DSU.  In other 
words, the United States is required to request consu ltations on all matters included in the panel request.  
Article 17.4 of the AD Agreement confirms such a requirement and, according to the Appellate Body, 
consultations "... provide the parties an opportunity to  define and delimit the scope of the dispute between 
them ...".22  Thus, matters left outside the scope of the c onsultations could not be taken up in the panel  
                                                      
17 Request for the establishment of a panel (WT/DS295/2), paragraph 1(a). 
18 Ibid. 
19 Ibid., section 1(f).  The provisions in question are Ar ticles 6.6, 6.8 and 6.10,  9.3, 9.4 and 9.5 and 
paragraphs 1, 3, 5, 6 and 7 of Annex II of the Anti-Dumping Agreement. 
20 Ibid.,  section 1(g). 
21 Japan – Film , Report of the Panel, paragraph 10.43.  US – Corrosion-Resistant Steel Sunset Review , 
Report of the Appellate Body, paragraph 87.  
22 Mexico – Corn Syrup (Article 21.5 – US) , Report of the Appellate Body, paragraph 54. WT/DS295/R 
Page 16   request submitted by the United States;  the provisions at issue are the following: 
Provisions invoked Paragraphs in the request for the establishment 
of a panel not included in the consultations 
AD Article 1 Paragraphs 1(a), 1(g) 
AD Article 4.1 Paragraph 1(a) 
AD Article 11.2 Paragraph 2(c) 
AD Article 18.1 Paragraph 2(e) 
Paragraph 1 of Anne x II Paragraph 2(b) 
Paragraph 3 of Anne x II Paragraph 2(b) 
Paragraph 5 of Anne x II Paragraph 2(b) 
Paragraph 6 of Anne x II Paragraph 2(b) 
Paragraph 7 of Anne x II Paragraph 2(b) 
SCM Article 12.5 Paragraph 2(b) 
SCM Article 21.2 Paragraph 2(c) 
SCM Article 32.1 Paragraph 2(e) 
Article VI:2 of the GATT Paragraph 1(i) 
 
4.57 Even the United States claim in paragraph 1(a) of the panel request was not the subject of 
consultations with Mexico except in relation to the anti-dumping investigation on beef, as is expressly 
noted in the third paragraph of the request for consultations. 
4.58 Mexico had already brought up these irregularities at the DSB meeting of 2 October 2003.23 
(d) Conclusion 
4.59 As the responding party, Mexico has a right to due  process.  The request for the establishment of 
a panel exhibits fundamental flaws that prevent Mexi co from preparing its defence.  In view of the 
foregoing, Mexico requests the Panel to issue a prelim inary ruling on the deficiencies in the panel request 
submitted by the United States and to refrain fro m ruling on claims brought in contravention of 
Articles 4.5, 4.7 and 6.2 of the DSU and Article 17.4 and 17.5 of the AD Agreement. 
2. Legal arguments 
(a) Economía complied with Article VI:2 of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4 and 3.5 of 
the AD Agreement with regard to the estab lishment of the Period of Investigation 
4.60 Economía complied with Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement and VI:2 of the 
GATT, by correctly establishing the periods of i nvestigation (for dumping purposes) and analysis (for 
determination of injury) in the anti-dumping investig ation on imports of long-grain white rice originating 
in the United States, as a result of an obj ective examination based on positive evidence. 
4.61 The United States argues that the examination of volume and effects on prices, the examination of 
"all relevant economic factors and indices" and the de termination that the dumped imports caused injury 
were neither objective nor based on positive eviden ce because of the obsolescence of the information 
used. There is no provision in the AD Agreement which indicates how remote a period of investigation should be.  Consequently, Mexico did not breach Article 3.2 of the Agreement. 
4.62 Economía complied with Article 3.1, 3.2 a nd 3.4 of the AD Agreement by conducting an 
objective examination, based on positive evidence, of the volume of the imports, their effect on prices, 
and all relevant economic factors and indices.  Moreover, the final determination notes that the dumped  
                                                     
 
23 Minutes of the DSB meeting of 2 October 2003.  WT/DS295/R 
 
  imports caused injury to the domestic industry during the period of analysis, so that there are no grounds 
for alleging lack of information for the purposes of such a determination. 
(b) Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with regard to the 
establishment of the Period of Analysis 
4.63 The United States argues that Economía violated Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement 
in allowing the petitioner to set the period of inv estigation as March to August 1999 and in establishing 
the months of March to August 1997, 1998 and 1999 as the period of analysis. 
4.64 The periods of investigation and analysis were established correctly and Economía carried out an 
objective examination based on positive evidence, maki ng sure that the parties had an opportunity to 
defend their interests in accordance with  Article 6.2. of the AD Agreement. 
4.65 The AD Agreement does not specify in detail how th e period of analysis should be included in an 
anti-dumping investigation.  In order to prevent dist ortions stemming from seasonal market fluctuations, a 
comparison was made between AD Agreement Article  3.4 indicators for similar periods in 1997, 1998 
and 1999.  The Economía did not violate the AD Agreement in setting the period of analysis inasmuch as the Agreement does not prohibit the comparison of peri ods equivalent to the period of investigation for 
the purposes of injury determination. 
4.66 The United States indicates that the spring/summe r (S/S) (October to December) season yield of 
paddy rice is greater than the fall/winter (F/W) (June -July) yield and, consequently, domestic production 
of long-grain white rice is greater during the S/S season than during the F/W season.  Hence, the United States argues that, by setting the period of an alysis as March to August of each year, Economía 
acted in a manner inconsistent with the AD Agreement because it failed to analyse the S/S harvest period, 
which is that during which, according to the United States, imports decline.  The reason for setting the 
period of analysis as March to August 1997, 1998 a nd 1999 was to maintain the objectivity of the 
analysis. The argument that there we re increases in domestic production a nd falls in imports of long-grain 
white rice during the S/S season is without foundation insofar as domes tic production of this product does 
not depend on domestic production of pa ddy rice;  indeed, when there is a drop in the latter domestic 
producers of long-grain white rice rely on imported paddy rice.  Domestic production of long-grain white rice therefore remains virtually constant throughout the year – as was the case in 1997, 1998 and 1999. 
4.67 Furthermore, the domestic producers only pr oposed March to August 1999 as the period of 
investigation and, having found this  period to be reasonable, Economía established it as such, without 
violating the AD Agreement.  As stated in paragra ph 68 of the preliminary determination, moreover, the 
exporters provided no evidence of the convenience to select another period of investigation. 
4.68 The investigating authority established the period of analysis on the basis of previous periods 
comparable to the period of investigation, wh ich does not contravene the AD Agreement.  The 
investigating authority's examination was objec tive and based on positive evidence, since it used 
comparable information concerning the same seasonal segments. 
4.69 The United States argues that, in setting the peri od of analysis, Economía acted inconsistently 
with the AD Agreement because it did not examine "all relevant evidence" as required by Article 3.5 of 
the AD Agreement and because, in disregarding the cl aims of exporters and importers concerning the 
exclusion of information pertaining to the periods fro m September to February and the remoteness in time 
of the period analysed, Economía did not provide an oppor tunity to the parties to defend their interests, 
thereby infringing Article 6.2 of the AD Agreement. 
4.70 The period of analysis was established without contravening the AD Agreement and all relevant 
evidence was examined in the injury analysis.  Since there was no infringement of Article 3.5 of the 
AD Agreement, it cannot be argued that Article 6.2 was violated as a result of a breach of Article 3.5. WT/DS295/R 
Page 18   4.71 The investigating authority complied with Article  6.2 of the AD Agreement in giving the parties 
attending the public hearing an opportunity to meet w ith other parties having adverse interests, and the 
exporting companies had a full opportunity  to present their arguments in relation to the hearing, which 
they did. 
(c) Economía conducted its injury analysis in accordance with Articles 3.1, 3.2, 3.4, 3.5, 6.8 and 12.2 
and Annex II of the AD Agreement 
4.72 Economía based its injury dete rmination on positive evidence and on an objective examination of 
the effect on prices, the volume of imports, the imp act on domestic prices and relevant economic factors, 
properly using the best information available and gi ving sufficient detail of its  findings and conclusions 
on issues of fact and law.  It thus complied with Artic les 3.1, 3.2, 3.4, 3.5, 6.8 and 12.2 and Annex II of 
the AD Agreement. 
4.73 The United States argues that Economía did not carry out an objective examination of the effect 
on prices inasmuch as it based its analysis on information selected by the petitioner and "did not send questionnaires to any purchasers".  In addition, it submits that Economía did not examine the import  declarations ( pedimentos de importación ).  The United States says that Economía made no effort to 
identify exporters and importers other than those me ntioned by the petitioner and thereby contravened the 
AD Agreement. 
4.74 An investigating authority complies with the standard laid down in Article 3.1 of the 
AD Agreement when:  (a) It bases itself on affirmative, objective, verifiable and credible evidence;  and 
(b) it gathers and evaluates that evidence in good faith  and fundamental fairness.  Economía fulfilled those 
conditions by carrying out an objective examinati on, based on positive evidence, of the volume of 
imports, their effect on prices for like products and the impact on the domestic industry. 
4.75 The AD Agreement does not require any particular methodology for making price comparisons 
and evaluating effects on prices, but the analysis must  be objective and based on positive evidence.  In the 
absence of specific guidelines, an investigating authority may conduct its analysis in the manner it deems appropriate provided that it bases itself on positive evidence and makes an objective examination. 
4.76 The United States argues that Economía based its analysis on information sources selected by the 
petitioner in the investigation, in breach of the AD Ag reement.  As the Appellate Body determined in  
US – Wool Shirts and Blouses , the United States failed to discharge its burden of proof in not putting 
forward a clear and detailed allegation or any s upporting evidence.  Notwithstanding the foregoing, 
Mexico submits that it did not infringe the AD Agreement. 
4.77 As regards the fact that no questionnaires were sent to the purchasers, the AD Agreement contains 
no provision requiring such steps to be taken in an i nvestigation, so that it is wrong to maintain that 
Mexico failed to act in comp liance with the AD Agreement. 
4.78 As to the pedimentos , these are not available to the investig ating authority nor were they supplied 
by the petitioner.  The investigating authority has "lists of pedimentos ", which provide a variety of 
information but do not show the names or domiciles of the exporting firms. 
4.79 The United States further argues that Economía's collection of information for the purposes of 
considering absolute and relative volumes of produc tion and consumption was not objective and that 
Economía failed to conduct an objective eval uation of volume in using neither the pedimentos  nor 
accurate information on the importers' import volumes.   Mexico repeats that  although the AD Agreement 
does not lay down any particular methodology for anal ysing the volume of imports and does not require 
the investigating authority to obtain more information th an that supplied by the parties, the analysis must 
be carried out objectively, on the basis of positive ev idence.  Moreover, Economía  requested information  WT/DS295/R 
 
  from the exporters and importers but did not obtain an ad equate response.  Mexico holds that it carried out 
an objective examination based on positive evid ence, in accordance with  the AD Agreement. 
4.80 Mexico did not use the information supplied by The Rice Company  because, despite being asked 
to do so, the firm failed to provide data for 1997 a nd 1998.  Therefore, the information it supplied for 
1999 was disregarded for reasons of procedural fairness,  since other appearing parties did submit data for 
the entire period of analysis. 
4.81 The United States indicates that Economía used the methodology proposed by the petitioners, 
even though it could only identify the long-grain white rice imports corresponding to the investigated period and cannot be extrapolated to the previous similar periods, in breach of Article 3.2. of the 
AD Agreement.  Mexico repeats that Article 3.2 contai ns no guideline whatsoever as to whether use of the 
methodology proposed by the petitioner constitutes a vi olation of the AD Agreement.  This methodology 
was used from the outset, in the preliminary determin ation, and no objection or better proposal was made. 
 Consequently, the investigating authority requested further information from th e exporters and the latter 
either did not respond or failed to supply the relevant information.  
4.82 The United States asserts that Economía violated Ar ticle 6.8 and paragraphs  1 and 7 of Annex II 
of the AD Agreement by basing its injury analysis on the best information available, arguing that the 
reason for this is that Economía lacked accurate information on import volumes and value because it did 
not send questionnaires to all exporters, importers and purchasers and failed to consult the pedimentos .  In 
the opinion of the United States, the investigating au thority did not make the necessary effort to obtain 
information from the interested parties, nor did it no tify them pursuant to paragraph 1 of Annex II relating 
to the use of the best information available.  Th e United States accordingly concludes that none of the 
requirements of Article 6.8 of the AD Agreement w as met for the purposes of applying the "adverse facts 
available". 
4.83 There is no obligation to send questionnaires to all exporters, importers and purchasers, nor does 
the AD Agreement contain any provision requiring the investigating authority actively to seek information in an anti-dumping investigation, so  that the above-mentioned argument is unfounded. 
4.84 According to Article 6.1.1 of the AD Agreement, an investigating authority has the option to send 
questionnaires to producers and forei gn exporters but is under no obligation to do so, much less in respect 
of all of them.  In the case of purchasers, the possib ility is not even contemplated in the AD Agreement, 
and so there is no obligation to send questionnaires to them.  Mexico complied with its obligations, 
moreover, by transmitting to the United States authorities the public notice of initiation, the text of the application for initiation of an investigation and the annexes thereto, and the questionnaire for exporters 
and foreign producers. 
4.85 In compliance with paragraph 1 of Annex II to the AD Agreement, the third paragraph of the 
introduction on the questionnaire provided to Producers  Rice and Riceland , as well as to the United 
States' Embassy in Mexico, specified that if th e required information was not supplied, Economía's 
determination would be based on the facts available.  Accordingly, the United States' allegation that these 
points were not notified to the exporters is without foundation. 
4.86 The United States argues that Economía violated Article 3.1 and 3.2 of the AD Agreement by 
failing to objectively consider whether there had been  a significant increase in the volume (in absolute or 
relative terms) of dumped imports or significant effects on prices.  Mexico rejects this argument. 
4.87 According to the Panel's finding in 
Thailand – H-Beams , Mexico is under no obligation to make 
an explicit finding as to whether the increase in dumped imports is "significant".  Mexico contends that 
the examination relating to the increase in total imports and dumped imports and the analysis of 
significant effects on prices is dealt with, albe it not explicitly, in the final determination. WT/DS295/R 
Page 20   4.88 The United States submits that Economía violated  Article 3.1 and 3.4 of the AD Agreement in 
failing to conduct an objective analysis of the releva nt economic factors.  It also argues that the 
investigating authority did not properl y evaluate inventories or market share, nor did it evaluate factors 
affecting domestic prices.  For the purposes of its injury analysis, Economía carried out an objective 
examination in accordance with Article 3.4 of the AD Ag reement.  As detailed in the final determination, 
the analysis was properly conducte d and covered the inventories, the objective assessment of market 
share, the factors affecting domestic prices and their impact on the domestic industry.  All the factors listed in Article 3.4 were reviewed in the anti-dum ping investigation and, as a result of this overall 
evaluation, Economía arrived at the conclusi on set forth in the final determination. 
4.89 The United States argues that Economía violated Article 3.1, 3.2 and 3.5 of the AD Agreement by 
including non-dumped imports in its evaluation of volume, effects on prices and the impact of dumped imports on the domestic industry. 
4.90 The final determination shows that both the " volume of imports" and the "volume of dumped 
imports" were analysed and that the latter were the cause of the injury suffered by the domestic industry. 
4.91 The United States also submits that Economía contravened Article 12.2 of the AD Agreement by 
failing to include in sufficient detail in its final determination the findings and conclusions reached on 
issues of law. 
4.92 Economía considers that the final determinati on sets out in ample and sufficient detail the 
findings and conclusions reached on issues of fact  and law relating to dumping, injury and causal 
relationship which it deemed relevant, as well as the reasons which led the investigating authority to 
impose definitive measures. 
(d) Article 5.8 of the AD Agreement is not applicable  to firms with dumping margins of zero per cent 
4.93 The United States argues that Economía failed to exclude firms with dumping margins equivalent 
to zero per cent from the measures imposed in the fina l determination, contending that the investigation 
should have been terminated immediately.  Furthermore, it submits that, inasmuch as these firms were not excluded from the anti-dumping measures, they remain subject to future administrative review and the 
possible imposition of anti-dumping duties, which is inc onsistent with Article 5.8 of the AD Agreement. 
4.94 Mexico contends that Article 5.8 of the AD Ag reement does not apply because the investigation 
resulted in a determination of dumping, injury and causal link between the two.  This led Economía to 
impose definitive anti-dumping measures by issuing a public notice of termination, whereby the  
anti-dumping investigation was concluded.  Furthermor e, a zero per cent duty does not de facto constitute 
an anti-dumping duty as it causes no prejudice to the expor ter.  As no anti-dumping duty is being charged, 
it cannot be considered that a de minimis  margin exists or that an anti-dumping duty in excess of the 
dumping margin is being charged. 
4.95 As to the claim that US exporters will be subj ect to review and the possible application of a 
definitive measure, Mexico would point out that, if  those exporters do not engage in dumping, such 
reviews will not lead to the application of any measure.  The AD Agreement does not prohibit
 a review of 
exporters for which a zero per cent dumping margin h as been calculated.  If the negotiators of the 
Agreement had determined that such exporters should not be subject to review, they would have done so 
explicitly. 
4.96 Consequently, Mexico reiterates that it did not violate Article 5.8 of the AD Agreement and that 
this provision does not apply in this specific instan ce, given that the anti-dumping investigation ended 
with the publication in the Official Journal (DOF) of the official notice of termination and a zero per cent 
duty cannot actually be regarded as an anti-dumping duty.  WT/DS295/R 
 
  (e) Mexico applied the facts available to Producers Rice  and to the US producers and exporters that 
were not investigated in a manner consistent with the AD Agreement 
4.97 The United States is wrong in claiming that Econom ía applied the "adverse facts available" to 
Producers Rice  and to the producers and exporters which it did not examine, and that this is inconsistent 
with the WTO Agreements. 
4.98 This argument is entirely unfounded.  The United States is seeking to impose on Mexico 
obligations that are not derived from the AD Agreement or, contrary to Article 17.6 of the AD Agreement, it rejects a priori  Mexico's permissible interpretation of the provisions of the Agreement. 
4.99 Mexico is not
 obliged to determine an individual dumping margin for all  exporters or producers 
inasmuch as Article 6.10 of the AD Agreement establish es the obligation to do so solely in respect of 
known  exporters, which is what Economía did.  Mexico  complied with the AD Agreement by issuing the 
public notice of initiation and by notifying the know n exporters and the United States' Embassy in 
Mexico. 
4.100  Moreover, Mexico did not limit its examination to a reasonable number of exporters and was 
therefore under no obligation to calculate a margin of  dumping in conformity with Article 9.4 of the 
AD Agreement for exporters or producers that  were not included in the examination. 
4.101  In the case of US exporters that were not inves tigated individually and were not included in the 
investigation and/or did not provide the information needed to calculate a margin of dumping, Economía was obliged to apply the facts ava ilable, in accordance with Article 6. 8 of the AD Agreement.  Mexico 
complied with its obligations in providing the United States' authorities with the public notice of initiation 
of the investigation, the text of the application fo r initiation and the annexes thereto and the questionnaire 
for exporters and foreign producers, a nd in convening all natural or legal persons that had an interest in 
the investigation, through the publication of the public notice of initiation. 
4.102  Likewise, Economía acted consistently with Ar ticle 6.8 of the AD Agreement in applying to 
Producers Rice the facts available, because if an interested party does not participate in the investigation 
or has no exports during the period of investigati on, it must be considered that it did not provide
 the 
information needed to calculate a dumping margin. 
4.103  Regarding the United States' claim that Mexico act ed in a manner inconsistent with Annex II to 
the AD Agreement, Mexico would make the following comments: 
(a) Mexico acted consistently with paragra ph 3 of Annex II to the AD Agreement by 
applying Article 6.8 of the Agreement to the exporting firm Producers Rice , as this firm 
did not provide the information needed and there was thus no information to be taken 
into account. 
(b) The investigating authority acted consisten tly with paragraph 5 of Annex II to the 
AD Agreement, as the exporting firm Producers Rice  did not provide information that 
was ideal in any respect for the purposes of calculating a dumping margin.  Economía therefore was under no obligation to ta ke this information into account. 
(c) In addition, Mexico acted consistently  with paragraph 6 of Annex II to the 
AD Agreement because Economía did not reject any evidence or information provided by Producers Rice. but accepted
 that information and acted in accordance with the 
provisions of the AD Agreement in calculating the dumping margin applicable. 
4.104  Contrary to the United States' claim, the determinations of Economía amply and sufficiently 
reflect the findings and conclusions reached by the investigating authority on the questions of dumping, WT/DS295/R 
Page 22   injury and their causal relationship, and include all the issues of fact and law considered relevant by 
Economía.  Consequently, there was no violation of the AD Agreement in that respect. 
4.105  Mexico did not levy anti-dumping duties in excess of the dumping margins.  The margins were 
correctly calculated by Economía and the duties levied are consistent with those margins.  Mexico thus 
acted consistently with the GATT 1994. 
(f) Complaints by the United States regarding the Foreign Trade Act 
4.106  The United States challenges, as such, a number of provisions of the Foreign Trade Act and of 
other legal instruments as well.  Its complaints are without merit for the following reasons: 
• There is no prima facie  case of violation of these provisions, as such; 
 
• the United States bases itself on misinterpretations of the Foreign Trade Act and 
disregards the meaning and scope of  the provisions challenged;  and 
 
• it relies on the rice investigation, which ende d before the challenged provisions came into 
effect, to support its claims. 
 4.107  According to the report of the Appellate Body in US– Carbon Steel , where the consistency of a 
Member's law as such with a WTO Agreement is bei ng challenged, the country's legislation is presumed 
to be consistent until proven otherwise
.  Thus, the burden of establishing prima facie  that there has been a 
violation as such of the WTO Agreements rests with the complaining party.  The United States 
consequently bears the burden of proving prima facie  that Mexican legislation infringes the 
WTO Agreements, but has not done so. 
4.108  The United States also claims that the Mexican  law is "mandatory", without analysing the 
relationship between this legislati on and international agreements.  According to the Appellate Body 
report in US – Corrosion-Resistant Steel Sunset Review , in the event of claims brought against legislation 
"as such" the distinction between mandatory and di scretionary legislation should be analysed on a case-
specific basis and should not be applied in a "mechanistic" fashion. 
4.109  Article 53 of the Foreign Trade Act is consistent as such with Articles 6.1.1 of the 
AD Agreement and 12.1.1 of the SCM Agreement, whic h specify that "[e]xporters or foreign producers 
receiving questionnaires  ... shall be given at least 30 days for re ply ...".  Mexico is therefore not required 
to grant this time-limit to exporters that were not sent a questionnaire .  This is confirmed in the final 
report of the Panel in Argentina – Poultry Anti-dumping Duties . 
4.110  If the 30-day period were granted to any interested party that presented itself after the initiation of 
the investigation, the ensuing delay would lead to infringement of the time-limits laid down in 
Articles 5.10 of the AD Agreement and 11.11 of the SCM Agreement. 
4.111  On the subject of extensions, Mexico rejects the United States' argument on the grounds that 
Article 53 of the Foreign Trade Act does not in any wa y prohibit the granting of extensions, and even in 
administrative procedures extensions have been gran ted on request.  The United States has thus failed to 
make a prima facie  case that this Foreign Trade Act provision is inconsistent as such with the AD and 
SCM Agreements. 
4.112  Article 64 of the Foreign Trade Act is consistent with Articles 6.8 of the AD Agreement and 
12.7 of the SCM Agreement inasmuch as, if an interested  party does not participate in the investigation or 
had no exports during the period of investigation and consequently the exporter in question does not 
provide  the necessary information, the investigating aut hority may calculate its margin of dumping or  WT/DS295/R 
 
  subsidization on the basis of the facts available, purs uant to Articles 6.8 of the AD Agreement and 12.7 of 
the SCM Agreement. 
4.113  The United States mistakenly alleges that Article 64 of the Foreign Trade Act is inconsistent with 
the AD Agreement because it mandates the investigating authority to impose on exporters that had no 
exports during the period of investigation, or did not participate in the investigation, a margin of dumping other than that determined in accordance with Article 9.4 of the AD Agreement, and that imposition of an  
anti-dumping duty in excess of the dumping margin therefore constitutes a violation of Article 9.3 of the AD Agreement. 
4.114  It should be pointed out that Article 9.4 of the AD Agreement only applies where the 
investigating authority has limited its examination to  a reasonable number of interested parties, in 
accordance with Article 6.10 of the AD Agreement.  The calculation method set out in Article 9.4 does 
not apply to exporters or foreign producers which have not provided the necessary information or have 
not participated in the investigation.  The dumping margin for such exporters and foreign producers must 
be calculated on the basis of the facts available,  pursuant to Article 6.8 of the AD Agreement.  
Consequently, a violation of Article 9.3 cannot be alleged where Article 9.4 does not apply. 
4.115  Article 64 of the Foreign Trade Act is consis tent with paragraph 3 of Annex II to the 
AD Agreement because it requires the investigating aut hority to consider all verifiable information
.  If an 
exporter fails to provide the necessary information – normal value and export price in the case at hand – 
then there is no verifiable information to consider. 
4.116  Paragraph 5 of Annex II to the AD Agreement stipulates that the investigating authority may not 
disregard the information provided by the exporter even if it is not ideal in all respects .  In other words, if 
it is to be taken into consideration, the information mu st be ideal in at least one respect.  Mexico repeats 
that if an exporter fails to provide the information – namely normal value and export price data – needed 
to determine its margin of dumping, then there is no minimum amount of information to be considered.  
4.117  Mexico rejects the United States' argument con cerning paragraphs 1 and 7 of Annex II to the 
AD Agreement, inasmuch as paragraph 1 specifies that if the interested party fails to provide the 
information required, the investigating authority will be free to make determinations on the basis of the 
facts available, including those contained in the appli cation for the initiation of an investigation, and the 
last sentence of paragraph 7 of the Annex provides that  if an interested party does not cooperate and fails 
to provide the investigating authority with relevant in formation, this situation may lead to a result which 
is less favourable  to the interested party than if the party did cooperate. 
4.118  Article 68 of the Foreign Trade Act is consistent "as such" with Ar ticles 5.8, 9.3 and 11.2 of the 
AD Agreement and 11.9 and 21.1 of the SCM Agreement.   Articles 5 of the AD Agreement and 11 of the 
SCM Agreement apply solely to investigations and not to reviews.  If in the course of the investigation 
sufficient evidence of dumping or subsidization is f ound to exist, there is no obligation whatsoever under 
these Articles to refrain from conducting subsequent  proceedings (such as administrative reviews), 
because once the definitive measure h as been imposed, Articles 5.8 of the AD Agreement and 11.9 of the 
SCM Agreement cease to apply.  
4.119  Moreover, the fact of subjecting to review e xporters to which no positive margin of dumping or 
subsidization was assigned in the investigation does not cause them prejudice of any kind, since it does 
not entail any payment of duty.  In any case, reviews carried out in respect of exporters with no positive 
dumping margin are similar to those provided for in Article 9.3.1 of the AD Agreement. 
4.120  The United States' interpretation of  Article 68 of the Foreign Trade Act is wrong inasmuch as this 
provision does not impose a "representativeness" re quirement as a condition for the investigating 
authority to conduct reviews such as those provided for in Articles 21.2 of the SCM Agreement and 9.3 WT/DS295/R 
Page 24   and 11.2 of the AD Agreement.  The United States will therefore have to prove, prima facie , that the 
Foreign Trade Act is inconsistent with the WTO Agreements. 
4.121  As has already been recognized in the submissions circulated in the course of the proceedings of 
the WTO Negotiating Group on Rules,
24 there are no  clear provisions in the Agreements as to how to 
conduct administrative review and new shipper pr ocedures, and the authorities of WTO Members 
therefore have discretion to establish the rules that they deem appropriate. 
4.122  Article 89D of the Foreign Trade Act  is consistent as such with Articles 9.5 of the 
AD Agreement and 19.3 of the SCM Agreement.  The United States basically puts forward two 
arguments:  This Article applies only to producers and not to exporters;  and it requires producers to 
demonstrate that their exports were representative. 
4.123  The first claim of the United States is without foundation because the provisions of the Foreign 
Trade Act – as stipulated in Article 2 of the Act – must be applied in a manner consistent with those of the international treaties to which Mexico is party.  Mexico accordingly confines itself to applying anti-
dumping and countervailing duties as provided for in Article VI of the GATT 1994 and in the AD and 
SCM Agreements. 
4.124  The second claim of the United States is also without foundation because, although Articles 9.5 of 
the AD Agreement and 19.3 of the SCM Agreement do not expressly so provide, in view of their context, 
object and purpose, it is both natural and logical to re quest that a new shipper's volume of exports during 
the review period be representative.  If such were not  the case, it would be impossible for the investigating 
authority to make a proper price comparison, and it woul d be unable to meet its obligation to determine an 
individual margin of dumping if the new shipper were to export one single unit of the product under 
investigation. 
4.125  The United States is wrong in claiming that Article 93.V of the Foreign Trade Act  requires the 
Mexican investigating authority to impose fines on impor ters that import goods that are like or identical to 
goods subject to an anti-dumping or countervailing dut y investigation and that this constitutes a non-
permissible specific action against dumping or a subsid y, prompting it to contend that Article 93.V is 
inconsistent as such with Articles 18.1 of th e AD Agreement and 32.1 of the SCM Agreement. 
4.126  First, Mexico repeats that insofar as the United St ates has failed to prove that Article 93.V of the 
Foreign Trade Act is inc onsistent with the AD Agreement or the SCM Agreement, Article 93.V should be 
deemed to be consistent with Mexico's WTO obliga tions, as determined by the Appellate Body in its 
report on US – Carbon Steel . 
4.127  Second, even if the United States had produced th e relevant evidence, Mexico will demonstrate 
that there is no inconsistency of any kind between  Article 93.V of the Foreign Trade Act and the 
WTO Agreements inasmuch as Article 2 of the Forei gn Trade Act stipulates that all provisions of the 
Foreign Trade Act must be applied in accordance with  the provisions of international treaties to which 
Mexico is party. 
4.128  Furthermore, Article 93.V of the Foreign Trade Ac t does not require the investigating authority to 
apply its provisions but gives it discretion to impose fines.  This is proved by the fact that Mexico has never imposed such fines on WTO Members, even though this possibility has existed in the Foreign Trade 
Act since 1994. 
                                                     
 
24 Submission From Canada Respecting the Agreement On Implementation of Artic le VI of the GATT 1994 
(The Anti-Dumping Agreement ), TN/RL/W/47, presented to the Negotiating Group on Rules on 27 January 2003 and 
circulated to Members the following day.  WT/DS295/R 
 
  
Article 366 of the Federal Code of Civil Procedu re and Articles 68 and 97 of the Foreign Trade Act 
do not, as such, violate Articles 9.3, 9.5 and 11.2 of the AD Agreement or 19.3 and 21.2 of the SCM Agreement 
 
4.129  The United States mistakenly argues that Articles 68 and 97 of the Foreign Trade Act and 366 
of the Federal Code of Civil Procedure (FCCP) preclude the investigating authority from conducting 
reviews while a judicial review is under way, and th at this violates Articles 9.3, 9.5 and 11.2 of the 
AD Agreement and 19.3 and 21.2 of the SCM Agreement. 
4.130  With regard to Article 366 of the FCCP, the United States has failed to satisfy the burden of proof 
required of the claimant.  This allegation should therefore not be considered further by the Panel.  Indeed, the supporting evidence adduced by the United States (Exhibit US-20) contains no reference to this 
Article, and the United States has not put forward a clear and detailed allegation or produced any evidence 
of its assertion. 
4.131  Moreover, Articles 68 and 97 of the Foreign Trad e Act, by considering as definitive only anti-
dumping or countervailing duties that have not been  challenged under any procedure, provide legal 
certainty by ensuring that there are no contradictory ru lings.  Mexico considers that legal certainty affords 
a guarantee for exporters, who do not even have to  pay any anti-dumping or countervailing duties while 
the challenge procedure is under way. 
4.132  Articles 68 and 97 of the Foreign Trade Act do not infringe Article 9.3.2 of the AD Agreement 
inasmuch as they do not prohibit the reimbursement of du ties paid in excess or state that such duties will 
not be refunded, and the refund is made promptly within the time-frame  specified in the AD Agreement, 
once the proceedings in question have come to an end. 
4.133  Moreover, Articles 68 and 97 of the Foreign Trade Act are not in breach of Articles 9.5 of the 
AD Agreement and 19.3 of the SCM Agreement.  Th e provisions of the Foreign Trade Act neither 
preclude nor prohibit such a procedure.  The United St ates is seeking to attribute to Mexico obligations 
that are not to be found in the WTO Agreements, given that the AD and SCM Agreements do not require a new shipper review to be initiated
 immediately after an application for such a review has been made, but 
specify that a new shipper review, once initiated, should be carried out promptly/expeditiously.  The 
United States will have to prove its assertions by establishing a prima facie  case in this respect. 
C. FIRST ORAL STATEMENT OF THE UNITED STATES  
4.134  The following summarizes the United States' argumen ts in its first oral opening and closing 
statements:  
1. Opening statement 
4.135  Authorities conducting AD investigations must c onduct their examinations in an objective and 
unbiased manner.  The authority must investigate the domestic industry, and the effects of dumped imports, in an unbiased manner, without favouring the interests of any party in the investigation.  
Authorities “are not entitled to conduct their investigati on in such a way that it becomes more likely that, 
as a result of the fact-finding or evaluation process, they will determine that the domestic industry is injured.” 
4.136  Mexico did not conduct its rice investigation in an objective and unbiased manner.  It allowed the 
petitioner to decide which exporters and producers s hould be sent the anti-dumping questionnaire, and to 
choose which part of the year should be examin ed for dumping and injury.  When the US firm 
Producers Rice demonstrated that it had no shipments of  rice to Mexico during the POI, Mexico rejected 
its information and based its margin on adverse facts av ailable.  And Mexico failed even to collect, much 
less examine, more than a year’s worth of data th at preceded the initiation of the investigation.  The WT/DS295/R 
Page 26   AD Agreement places obligations on Mexico, and Me xico has failed to rebut the United States' 
prima facie  case that it has breached them. 
(a) Mexico’s use of a stale POI 
4.137  With the exception of Mexico, all of the parties in this dispute agree that a Member’s discretion in 
setting a POI is not boundless.  The period investigated cannot be so remote in time that the information 
that the authority collects is incapable of providi ng a basis for an objective finding of dumping, injury, 
and causation.  The fifteen month gap in the present case (and the three year gap between the end of the 
POI and the final determination) is  inconsistent with numerous provisions of the AD Agreement and the 
GATT 1994. 
4.138  Mexico argues that the AD Agreement creates no oblig ations with respect to the age of the data 
that a Member may use in reaching its determinations , and that it has complete freedom to do whatever it 
wants.  This is not correct.  The POI should end as cl ose to the initiation date as practicable.  Mexico has 
pointed to nothing justifying its decision to ignore 15 months worth of recent data, let alone the three 
years of data by the time of the final determination.  The only rationale that Mexico provided in its notice 
was that it selected the POI the petitioner wanted. 
(b) Mexico limited its injury analysis to  only six months of 1997, 1998, and 1999 
4.139  An authority conducting an analysis of injury and causation must conduct an objective 
examination, and it must base its determinations  on positive evidence.  Mexico’s limitation of its 
investigation to only half of each of the years at issue failed to meet either of these requirements. 
4.140  Mexico argues that the AD Agreement creates no ob ligations on this matter, that it is “entirely 
free” to do whatever it wants, and that therefor e its approach was objective and based on positive 
evidence. Mexico is wrong.  For example, the text of  Article 3.5 of the AD Agreement plainly states that 
an authority must examine “all relevant evidence” that is before it.  Mexico has failed to explain why the 
evidence for half of the POI was not “relevant.” 
4.141  Mexico’s approach created distortion, because fo cusing an injury and causation analysis on the 
period when import presence is highest cannot but create a misleading picture of the state of the domestic industry.  Mexico has no idea
 what the state of the industry was over the course of the entire  POI, because 
Mexico did not examine the data for half of that period. 
(c) Mexico’s conduct of its injury analysis 
4.142  Mexico’s examination of the injury data was fl awed in four ways.  The first flaw arises from 
Mexico’s failure to collect the evidence on price effect s and volumes that it needed to conduct its analysis 
in an objective manner, and its improper use of the f acts available.  Mexico argues that the AD Agreement 
creates no relevant obligations.  It fails, however, to explain why  the approach that it chose was objective 
and based on positive evidence, as Article 3.1 requires. 
4.143  For example, if Mexico had sought information from purchasers of long-grain white rice, it would 
have been able to directly compare the prices th e purchasers paid for the domestic product and the prices 
they paid for the imported product.  Similarl y, Mexico could have obtained data from the pedimentos.  
Furthermore, Mexico rejected accurate data that  The Rice Company submitted for the year 1999, in 
favour of using inaccurate data from the petitioner.  In  addition, Article 6.8 and Annex II do not permit an 
authority to base its analysis of in jury on the facts available without first making an effort to obtain the 
data from the interested parties, or to use that  data without first seeking to corroborate it against 
independent data sources.  WT/DS295/R 
 
  4.144  The second flaw arises from Mexico’s failure to  objectively consider whether there was a 
significant increase in the volume of dumped imports or si gnificant price effects.  Only four paragraphs of 
its determination were relevant to the examination of the dumped imports, and they show that the volume
 
of the dumped imports declined  during the three-year period of the injury analysis.  And none of those 
paragraphs even mention significant price  effects. 
4.145  The third flaw arises from Mexico’s failure to c onduct an objective analysis of certain “relevant 
economic factors.”  Mexico’s examination of invent ories and market share was not objective, and it did 
not even examine “other factors affecting domestic pri ces.”  The final flaw in Mexico’s analysis of the 
injury data is that it included non-dumped imports in  its evaluation of volume, price effects, and the 
impact of the dumped imports on the domestic industry. 
(d) Mexico’s failure to exclude firms w ith AD margins of zero from the measure 
4.146  Mexico ignores that the second and third sentences of Article 5.8 refer to the “margin” of 
dumping being de minimis .  The term “margin” refers to the “individual margin of dumping determined 
for each of the investigated exporters and producers” of  the investigated product.  When Article 5.8 refers 
to terminating when the “margin” is de minimis , it is referring to termination for individual firms.  The 
fourth sentence of Article 5.8 provides contextual  support for this interpretation.  That sentence 
demonstrates that the “volume” analys is may be done on a country-wide ba sis.  There is no such language 
addressing the dumping analysis. 
(e) Mexico’s application of an adverse “facts av ailable” margin to Producers Rice and to US 
producers and exporters that it did not examine 
4.147  Mexico investigated only the two exporters that  the petitioner named in the petition and two other 
firms that came forward on their own, and it applied an  adverse, facts-available margin to Producers Rice 
and every other exporter and producer in the Unite d States.  Mexico argues that the AD Agreement 
contains no obligations with respect to this topic and that it has total freedom to apply the facts available 
to such firms, including “less favourable” facts av ailable from the petition.  Mexico’s argument is 
illogical, inconsistent with the text of the AD Agr eement, and contradictory to the findings of the 
Appellate Body on this topic. 
4.148  Mexico’s argument is inconsistent with the te xt of the AD Agreement because Mexico bases its 
entire argument on a flawed interpretive approach that relies on partial citations of Articles 6.8 and 6.10, 
viewed in isolation, and divorced from the broader context of the overall Agreement.  Its argument is 
contrary to the findings of the Appellate  Body because the Appellate Body found in EC Bed Linen 21.5  
that Article 6.10 of the AD Agreement “requires, ‘as a rule’, that individual dumping margins be established for each  producer or exporter.”  Its in terpretation is illogical because the drafters established a 
detailed set of rules that were meant to ensure that  unexamined firms are not unfairly prejudiced if they 
are not included in an AD investigati on.  The idea that the drafters would have created detailed rules to 
protect “known” firms, and left “unknown” firms subject to the application of adverse facts available, is 
implausible at best. 
4.149  The AD Agreement protects both known firms and
 unknown firms.  It does this by requiring 
authorities to send their questionnaire to firms that ar e included “in the investigation,” and by restricting 
the application of margins based on the facts available to cases where a firm is  sent the questionnaire, is 
warned about the consequences of not responding,  but nevertheless fails to provide the necessary 
information.  If an authority does not take these steps,  then it cannot claim to be including the firm “in the 
investigation,” and the firm is entitled to a neutral a ll other’s rate calculated in accordance with Article 9.4 
of the AD Agreement. 
4.150  Mexico argues that Article 9.4 only applies when th e authority limits its investigation to a subset 
of exporters.  But Mexico did  limit its investigation by choosi ng not to send its questionnaire to WT/DS295/R 
Page 28   The Rice Company.  It also did so by failing to consult the pedimento  data held by Mexican Customs, 
when it chose not to reference public data that w ould have identified every producer of the subject 
product in the United States, and when it chose not to ask the petitioner whether the two firms listed as 
“known” exporters in the petition were truly the only
 exporters or producers that the petitioner knew of.  
Mexico’s submission does not contest several of the United States' claims addressing its treatment of Producers Rice and the unexamined firms. 
(f) Claims Regarding the Foreign Trade Act and Article 366 of the FCCP 
4.151  Mexico argues that treaties are self-executing under Mexican law and that it must apply its laws 
in a way that is consistent with its treaties.  This is beside the point if Mexico’s laws mandate
  
WTO-inconsistent action. 
4.152  The first statutory provision at issue is Article 53 of the Foreign Trade Act, which sets a 
mandatory deadline of 28 working days for interested  parties to respond to Mexico’s AD questionnaire, 
and counts the 28 days from the date of publication of  the initiation notice.  Mexico argues that it would 
be “illogical” to provide the full 30 days to interested  parties that are not initially sent the questionnaire.  
The issue for the Panel is quite clear: Is Mexico corr ect that Articles 6.1.1 and 12.1.1 only apply when an 
authority “sends” the questionnaire to an interested party?  Or is the proper interpretation that both 
provisions count the 30 day deadline from the date of receipt ? 
4.153  The second statutory provision at issue in this dispute is Article 64 of the Foreign Trade Act.  
Article 64 requires  Mexico to apply the highest  level of facts available to firms that do not export during 
the POI or that do not “appear” in its investigation.  Mexico argues that Article 6.8 of the AD Agreement 
permits a Member to apply the facts available to a party that fails to provide necessary information, and 
Mexico is therefore justified in applying the facts av ailable to firms that have no shipments during the POI 
or that do not “appear” in the investigation.  Mexico ’s argument is based on a partial citation of a portion 
of Article 6.8 without reference to any of the other provisions of the AD Agreement, including Article 6.1 and paragraph 1 of Annex II. 
4.154  Mexico argues that Article 64 is not inconsiste nt with Article 9.4 of the AD Agreement because 
Article 9.4 requires Members to exclude margins that are based on the facts available.  Mexico misses the 
point.  Article 64 is inconsistent  with Article 9.4 of the AD Agreement, because Article 64 requires 
Mexico to apply
 facts available-based margins to firms that should have  received a neutral “all others” 
margin calculated in accordance with Article 9.4. 
4.155  Mexico’s argument with respect to paragraph 1 of Annex II ignores that an authority must 
“specify in detail the information required” and “ensure  that the party is aware” of the consequences of 
not providing the information, before it may apply the facts available.  Its argument that paragraph 7 of 
Annex II permits a “less favourable” result if a firm refuses to cooperate ignores that by requiring Mexico to always
 apply the highest  level of facts available, Article 64 precludes taking cooperation into account.  
It does not contest that Article 64 of the Foreign Trade Act breaches Article 9.5 of the AD Agreement or 
Article 19.3 of the SCM Agreement. 
4.156  The third provision at issue is Article 68 of the Foreign Trade Act, which mandates a breach of 
WTO rules for two reasons:  first , it requires Mexico to review firms that were found not to be dumping or 
receiving subsidies; and second , it mandates that Mexico require firms seeking reviews to demonstrate 
that the volume of their exports was “representative.” 
4.157  Articles 5.8 of the AD Agreement and 11.9 of th e SCM Agreement require authorities to exclude 
firms from AD and CVD measures if the authorities find that the firms are not dumping or receiving subsidies.  If a firm is excluded from the measure, then there is no basis to subject the firm to a review.  
Yet Article 68 requires such reviews.  Therefore, it breaches Articles 5.8 and 11.9.  Moreover, a proper 
textual analysis of Articles 9.3 and 11.2 of the AD Agreement, and Article 21.2 of the SCM Agreement  WT/DS295/R 
 
  demonstrates that a firm that meets th e criteria in those provisions has a right
 to obtain a review.  Since 
those conditions do not include showing that impor t volumes were “representative,” Article 68 of the 
Foreign Trade Act – by imposing that condition – breaches Articles 9.3, 11.2, and 21.2. 
4.158  The fourth provision at issue is Article 89D of the Foreign Trade Act, which mandates that firms 
seeking expedited reviews demonstrate that the volume of  their exports was repres entative.  The ordinary 
meaning of the text  of the provisions demonstrates that a firm that meets the criteria in those provisions 
has a right  to obtain an expedited review.  Those cond itions do not include showing that import volumes 
were “representative.”  And Article 89D breaches Artic le 9.5 of the AD Agreement and Article 19.3 of the 
SCM Agreement because it only allows producers (and not non-producing exporters) to obtain reviews. 
4.159  The fifth provision is Article 93V of the Forei gn Trade Act, which requires Mexico to impose 
fines on importers that import certain goods subject to  an AD or CVD investigation.  Article 93V is 
inconsistent with Articles 18.1 of the AD Agreement and 32.1 of the SCM Agreement because it is a non-permissible specific action against dumping.  Mexico has not contested that Article 93V is “specific” to 
dumping or subsidization; “against” dumping or s ubsidization;  and not “in accordance with the 
provisions of GATT 1994,” as interpreted by the AD and SCM Agreements.  Mexico’s only defence is to argue that it has discretion not to impose the fine.  But, although Article 93V gives Mexico discretion to 
determine whether the factual predicates for applying a fine exist, it mandates
 the application of a fine if 
they do. 
4.160  The final set of provisions at issue are Article 366 of the FCCP and Articles 68 and 97 of the 
Foreign Trade Act.  They are inconsistent “as su ch” with the AD and SCM Agreements because they 
preclude the Mexican authorities from conducting reviews of AD and CVD measures during judicial proceedings.  Article 366 states that a proceeding “sh all be suspended” pendi ng resolution of another 
matter.  By precluding Mexico from conducting reviews in  this manner, Article 366 is inconsistent with 
Articles 9.3, 9.5, and 11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement. 
4.161  Mexico’s submission does not even address the Un ited States' claim that Articles 68 and 97 of the 
Foreign Trade Act breach Article 11.2 of the AD Agreem ent and Article 21.2 of the SCM Agreement.  As 
for the fact that Articles 68 and 97 breach Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement, Mexico asserts that those provisions  allow a Member to wait as long as it likes before 
initiating an expedited review, if it conducts the review promptly on ce it initiates.  Mexico’s argument 
contradicts the text of Articles 9.5 and 19.3. 
4.162  Mexico does not contest that Articles 68 and 97 of the Foreign Trade Act preclude Mexico from 
conducting reviews of measures under Article 9.3.2 of the AD Agreement while judicial reviews of the measures are underway.  It argues instead that its approach is permissible because the duties are not 
“definitive” until the judicial review is complete.  Mexico is wrong on the facts. 
2. Closing statement 
4.163  As the United States noted in its oral statement, Mexico’s submission had failed to rebut the 
United States' prima facie  case that Mexico has breached its WTO obligations in numerous ways.  
Mexico’s oral statement yesterday was quite similar to its written submission, and also did not rebut the 
United States' prima facie case. 
4.164  Because the United States' oral statement addressed  the content of Mexico’s written submission, 
and because Mexico’s oral statement was quite similar to its written submission, it has only a few additional comments to make today. 
4.165  The first point pertains to Mexico’s request for a preliminary ruling.  The United  States addressed 
all of the points that Mexico raised yesterday, in the United States' written response.  The United States  
filed that response on 7 May.  The United States would like to make one additional point, however, WT/DS295/R 
Page 30   pertaining to Mexico’s argument that it was prejudiced because it only received the Spanish-language version of the United States' written submission on 16 April, a week before its written submission was 
due. If there were merit to this claim, one might have  expected that Mexico’s oral statement would have 
set out the new arguments that Mexico did not have tim e to include in its written submission.  Mexico has 
had the  
Spanish-language version of the submission of the United States for at least a month.  The fact that Mexico’s oral statement did not differ much from its written submission suggests that it was not prejudiced by the date it received the translation of the submission of the United States. 
4.166  The second point pertains to Mexico’s use of the facts available in assigning an anti-dumping 
margin to Producers Rice.  Mexico argued yesterday that  its application of the facts available was justified 
because Producers Rice had what Mexico  described as an “obligation” to present the information that 
Mexico needed to conduct a margin.  But Producer s Rice demonstrated to Mexico that it had no 
shipments during the POI.  There was nothing more that  Producers Rice could have given to Mexico.  It is 
not objective or unbiased for an authority to apply an  adverse anti-dumping margin to a firm that was 
unable to provide information that does not exist. 
4.167  The United States would also like to address Mexico’s comment yesterday that Articles 68 and 
89D of the Foreign Trade Act do not require firms seek ing reviews to demonstrate that the volume of their 
sales was representative.  The United States is confused by Mexico’s argument.  Article 68 reads:  “[t]he 
Party requesting a review shall satisfy Economía that the volume of exports to Mexico during the review 
period is representative.”  Article 89D contains vi rtually identical text.  The provisions speak for 
themselves. 
4.168  On the issue of Article 93V of the Foreign Trade Act, Mexico argued that the application of fines 
is discretionary, and that proof of this fact is that it has never, in fact, applied such a fine.  This proves 
nothing, because Mexico has not pointed to any case where it found that the conditions for imposing a 
fine were met, and yet it decided not to impose one .  The text of the provision itself is mandatory. 
4.169  Finally, the United States will comment further on the Panel's questions about the 
mandatory/discretionary issue, and the relevance of th at issue to Mexico’s laws, in its response to the 
Panel's questions and in the United States' second written submission. 
D. F
IRST ORAL STATEMENT OF MEXICO  
4.170  The following summarizes Mexico's arguments  in its first oral statements:  
1. Preliminary ruling 
(a) Ambiguities of the United States 
4.171  Firstly, the fact that Mexico did not, at the preliminary stage, contest certain claims by the 
United States does not mean that Mexico accepts that  the United States met the formal requirements. 
4.172  Mexico notes that the United States asserts th at Mexico confuses what is a claim ( reclamación ) 
with what is an argument ( argumento ).  This is not correct.  The United States' claims were not set out 
clearly or simply refer to irreleva nt provisions.  Mexico did not suggest  that the United States should have 
put forward arguments in its request for the establishment of a panel. 
4.173  The United States' request is ambiguous in at least  three instances.  Firstly, the United States is 
highly ambiguous when it alleges a violation of Article VI of the GATT 1994 as it does not specifically indicate to which paragraphs it is referring and pr oposes unrealistic methods to make good the omission.  
Secondly, the United States refers to Article 4.1 of  the AD Agreement, even though this is in no way  WT/DS295/R 
 
  related to the rest of the claim.  Thirdly, the "na rrative description" given by the United States in sections 
1(g) and 1(f) of the request for the establishment of a panel has no relevance to the legal bases claimed. 
(b) Damage requirement in procedural violations 
4.174  The United States wrongly argues that at the curre nt stage of the proceedings (i.e. the panel 
stage), Mexico has not shown how the violations caused by ambiguity have affected it.  Firstly, there is no 
provision laying down such a requirement.  Secondly, arguendo  that such a requireme nt existed, at the 
present procedural stage it is impossible to  determine the effect.  Thirdly, also arguendo  that a 
requirement existed, the combination of factors incl uding the ambiguities and the long delay in translating 
the first written submission of the United States, had an impact on Mexico's defence. 
(c) Identification of the measure 
4.175  Article 366 of the Federal Code of Civil Procedur e may be considered a measure.  Nevertheless, 
the United States does not understand the relationship among the Articles of various Mexican laws and 
endeavours to remedy this by citing statements by "Mexican officials".  Article 366 is a measure that 
bears no relation to the anti-dumping proceedings and the United States tries to make good this error by 
using statements by "Mexican officials". 
4.176  Alternatively, as Mexico indicated in its written s ubmission, in the event that the Panel rejects its 
arguments the United States did not provide a brief summary of the legal bases of the complaint sufficient to present the problem clearly. 
(d) Legal bases not included in the consultations 
4.177  In its request for the establishment of a panel,  the United States improperly added 13 new legal 
bases that were not included in its request for consu ltations.  This is contrary to the provisions of 
Article 4.5 and 4.7 of the DSU and Article 17.4 and 17.5 of the AD Agreement.  The United States argued 
that the wording of Article 4.4 of the DSU allowed it to omit almost anything.  A proper reading of Articles 4.4 and 6.2 of the DSU, however, indicates that the legal bases of the complaint must be the same in the request for consultations and in the request for a panel;  the only thing that changes is the level of 
specificity, not the legal basis.  Following the Un ited States' criterion would lead to absurd cases. 
2. Legal arguments regarding the anti-dumping investigation into imports of United States' 
long-grain white rice 
4.178  Mexico emphasizes that the United States' argumen ts are not substantiated by the AD Agreement 
and considers that the United States is trying to impo se on Mexico obligations that are not covered by the 
Agreement, thus violating Article 17.6 of the AD Agreement by dismissing a priori  the permissible 
interpretation of those provisions by Mexico. 
(a) Economía complied with Article VI:2 of the GATT 1994 and with Articles 1, 3.1, 3.2, 3.4 and 3.5 
of the AD Agreement with regard to the est ablishment of the Period of Investigation 
4.179  Economía complied with Articles 1, 3.1, 3.2, 3. 4 and 3.5 of the AD Agreement and Article VI:2 
of the GATT in the anti-dumping investigation into imports of long-grain white rice from the United States by correctly establishing the periods of investigation (for dumping purposes) and analysis (for determination of injury), as a result of an objective examination based on positive evidence. 
4.180  In the request for the establishment of a panel,  the United States set out arguments on Articles 1 
of the AD Agreement and VI:2 of the GATT 1994 that were not the subject of consultations, violating 
Articles 4.5 and 4.7 of the DSU and 17.4 of the AD Agr eement;  therefore, its claims should be dismissed. WT/DS295/R 
Page 32   4.181  With regard to determination of the period of investigation, the AD Agreement does not contain 
any provision establishing how remote that period should be.  Since it is impossible to violate an obligation that does not exist, Mexico did not contra vene Article 3.2 of the AD Agreement in fixing that 
period.  Furthermore, in the course of the investig ation, no exporter put forward objections or evidence 
sufficient to change it. 
4.182  Economía complied with Article 3.1, 3.2 a nd 3.4 of the AD Agreement by conducting an 
objective examination, based on positive evidence of the volume of the imports, their effect on prices, and 
relevant economic factors and indices.  Moreover, the final determination indicates that during the period analysed dumped imports caused injury to the domestic industry. 
(b) Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with regard to the 
establishment of the period analysed 
4.183  In the request for the establishment of a panel,  the United States included arguments on Articles 1 
of the AD Agreement and VI of the GATT 1994 that were  not the subject of consultations, thus violating 
Articles 4.5 and 4.7 of the DSU and 17.4 of the AD Agreement. 
4.184  The periods of investigation and analysis were established correctly and Economía carried out an 
objective examination based on positive evidence, maki ng sure that the parties had an opportunity to 
defend their interests in accordance with  Article 6.2 of the AD Agreement. 
4.185  The AD Agreement does not indicate how the period of analysis should be included in an  
anti-dumping investigation, therefore Economía did not violate the AD Agreement, which does not prohibit the comparison of periods equivalent to the pe riod of investigation in order to determine injury.  
In this particular case and in order to prevent dist ortion, the factors listed in Article 3.4 of the AD 
Agreement that related to the period of investigati on were compared to similar periods in 1997 and 1998, 
and this is not inconsistent with the AD Agreement.   
4.186  The United States indicates that the spring/summer (October-December) season yield of paddy 
rice is greater than the fall/winter (June – July) yield and, consequently, domestic production of long-
grain white rice is greater in the former than in the latter. 
4.187  Mexico set the period of analysis as March to  August 1997, 1998 and 1999, in order to maintain 
the objectivity of the analysis.  When there is a drop in domestic production of paddy rice, domestic 
producers of long-grain white rice rely on imported paddy rice, so the domestic production of the product investigated remained virtually constant in 1997, 1998 and 1999.  The United States' argument is 
therefore without foundation inasmuch as dom estic production of this product does not
 depend on 
domestic production of paddy rice. 
4.188  In the analysis of injury and the causal rela tionship with dumping, all relevant evidence was 
examined and, therefore, there was no breach of Ar ticle 3.5 of the AD Agreement.  Consequently, it 
cannot be argued that, as a result of this violation, Ar ticle 6.2 of the AD Agreement was also violated.  In 
compliance with Article 6.2 of the AD Agreement, a pub lic hearing was held and interested parties were 
given the opportunity to meet with parties having a dverse interests;  moreover, the exporting companies 
subsequently presented their arguments in rela tion to what occurred during the hearing.   
(c) Economía conducted its injury analysis in accordance with Articles 3.1, 3.2, 3.4, 3.5, 6.8 and 12.2 
and Annex II of the AD Agreement 
4.189  In its request for the establishment of a pa nel, the United States included arguments on 
paragraphs 1, 3, 5, 6 and 7 of Annex II to the AD Ag reement that were not the subject of consultations, 
thus violating Articles 4.5 and 4.7 of the DSU and 17.4 of the AD Agreement.  WT/DS295/R 
 
  4.190  Economía based its injury dete rmination on positive evidence and on an objective examination of 
the effect on prices, the volume of imports, the imp act on domestic prices and relevant economic factors, 
properly using the best information available and gi ving sufficient detail of its  findings and conclusions 
on issues of fact and law.  It thus complied with Artic les 3.1, 3.2, 3.4, 3.5, 6.8 and 12.2 and Annex II of 
the AD Agreement. 
4.191  The investigating authority of a WTO Member complies with Article 3.1 of the AD Agreement 
when:  (a) It bases itself on affirmative, objective, veri fiable and credible eviden ce;  and (b) it gathers and 
evaluates that evidence in good faith and fundamental  fairness.  Economía fulfilled those conditions by 
carrying out an objective examination, based on positive evidence, of the volume of imports, their effect 
on prices for like products and the impact on the domestic industry. 
4.192  The AD Agreement does not require any particular methodology for making price comparisons 
and evaluating effects on prices, and this was recognized  by the United States in paragraph 90 of its first 
submission.  An investigating authority may, therefore, conduct its analysis in the manner it deems appropriate provided that it bases itself on positive evidence and makes an objective examination, as 
Mexico did.   
4.193  The United States does not put forward a clear a nd detailed allegation or any supporting evidence 
regarding the information sources used by Economía to carry out its analysis, thus failing to discharge its 
burden of proof, as determined by the Appellate Body in US – Wool Shirts and Blouses .  Furthermore, it 
is sufficient to state that, in its analysis , Mexico did not violate the AD Agreement. 
4.194  In addition, the AD Agreement does not estab lish an obligation to send questionnaires to 
purchasers, and the investigating authority did not cons ider it necessary to do so.  It is therefore wrong to 
maintain that Mexico failed to act in compliance with the Agreement. 
4.195  With regard to the import declarations ( pedimentos ), it should be emphasized that these are not
 
available to the investigating authority.  The investigating authority only has "list of pedimentos ", which 
do not  show the names or domiciles of exporters. 
4.196  Mexico also reiterates that the AD Agreement does not lay down any particular methodology for 
analysing the volume of imports nor does it require the investigating authority to obtain more information 
than that supplied by the parties.  In this conn ection, Economía did request information from exporters 
and importers on this particular point but did not obtain an adequate response25, as can be seen in 
Exhibit MEX-4 to the first written submission. 
4.197  Mexico repeats that Article 3.2 of the AD Agr eement does not say that use of the methodology 
proposed by the petitioner constitutes a breach of th e AD Agreement.  This methodology was used from 
the outset and no objection was raised by the exporte rs.  Once the preliminary determination had been 
issued, no objection or better or alternative proposal was made. 
4.198  Furthermore, Mexico submits that there is  no obligation to send questionnaires to all  exporters, 
importers and purchasers.  Pursuant to Article 6.1.1 of the AD Agreement, an investigating authority may 
send questionnaires to foreign producers and exporters, but is not obliged to send them to all.  Mexico 
complied with its obligations by transmitting to the United States' authorities the public notice of 
initiation, the text of the application for initiation of  an investigation and the annexes thereto, and the 
questionnaire for exporters and foreign producers. 
4.199  Moreover, in compliance with paragraph 1 of A nnex II to the AD Agreement, as indicated in the 
third paragraph of the introduction on the investigati on questionnaire, Mexico did inform the interested 
                                                      
25 Official communications UPCI.310.01. 0623, UPCI.310.01.0631 and UPCI.310.01.0632 of 
23 March 2001 (Exhibit MEX-4). WT/DS295/R 
Page 34   parties that, if the information required in the qu estionnaire was not provided, Economía's determination 
would be based on the facts available.  Accordingly,  the United States' allegation that these points were 
not notified to the exporte rs is without foundation. 
4.200  Regarding an objective analysis of the relevant  economic factors, Economía made an objective 
examination in accordance with Article  3.4 of the AD Agreement.  The final determination contains an 
analysis of all these factors;  consequently, the Un ited States' allegation in this respect is without 
foundation. 
4.201  Furthermore, it is wrong to assert that Mexico included non-dumped imports in its evaluation of 
volume, effect on prices and the impact of dumpe d imports on the domestic industry.  The final 
determination shows that both the "total volume of  imports" and the "volume of dumped imports" were 
analysed and that the latter were the cause of the injury suffered by the domestic industry. 
4.202  Regarding the content of the final determination, Economía considers that it sets out in ample and 
sufficient detail the findings and conclusions reached on issues of fact and law relating to dumping, injury 
and the causal relationship which it deemed relevant , as well as the reasons which led the investigating 
authority to impose definitive measures;  conseque ntly, Mexico asserts that it did not violate any 
provision of the AD Agreement. 
(d) Article 5.8 of the AD Agreement is not applicable  to firms with dumping margins of zero per cent 
4.203  Article 5.8 of the AD Agreement cannot be used  in support of the argument that firms with 
dumping margins of zero per cent should be excluded fro m the measure because the investigation resulted 
in a determination of dumping, injury and their causal relationship, which led Economía to impose 
definitive anti-dumping measures.  Furthermore, a zero per cent duty does not constitute a de facto  anti-dumping duty as it causes no prejudice to the exporter.  Since no anti-dumping duty is being charged, 
it cannot be considered that a de minimis  margin exists or that an anti-dumping duty in excess of the 
dumping margin is being charged, as argued by the United States. 
4.204  As to the claim that US exporters will be subj ect to review and the possible application of a 
definitive measure, if those exporters do not engage  in dumping, such reviews will not lead to the 
application of any measure.  The AD Agreement does not prohibit
 a review of exporters with a 
zero per cent dumping margin.  If the negotiators of th e Agreement had determined that such exporters 
should not be subject to review, th ey would have done so explicitly. 
(e) Mexico applied the facts available to Producers Rice and to the US producers and exporters that 
were not investigated in a manner consistent with the AD Agreement 
4.205  In the request for the establishment of a pa nel, the United States put forward arguments 
concerning Articles 1 and 9.3 and pa ragraphs 1, 3, 5, 6 and 7 of Annex II of the AD Agreement and 
Article VI:2 of the GATT 1994 that were not the subject  of consultations, thus violating Articles 4.5 and 
4.7 of the DSU and 17.4 of the AD Agreement. 
4.206  The United States' argument concerning the appli cation of a dumping margin to US exporters on 
the basis of the facts available is not substantiate d by the AD Agreement.  Mexico considers that the 
United States is trying to impose obligations on Mexico  that are not to be found in the AD Agreement;  
or, contrary to Article 17.6 of the AD Agreement, it rejects a priori  Mexico's permissible interpretation of 
the provisions of the Agreement. 
4.207  Mexico is not  obliged to determine an individual dumping margin for all  exporters or producers 
inasmuch as Article 6.10 of the AD Agreement establis hes the obligation to do so only in respect of 
known  exporters, which is what Economía did.    WT/DS295/R 
 
  4.208  Moreover, Article 9.4 of the AD Agreement only a pplies when the investigating authority limits 
its examination to a reasonable numbe r of exporters or producers.  Mexico did not limit its examination to 
a reasonable number of exporters or  producers;  therefore, this Article does not apply when a dumping 
margin is calculated for exporters that did not e xport or did not participate in the investigation. 
4.209  In the case of US exporters that were not investigated individually and were never included in the 
investigation and/or did not provide the necessary info rmation, Economía was obliged to apply the facts 
available, in accordance with Article 6.8 of the AD Agreement.  Mexico acted consistently with the 
AD Agreement in applying the facts available to Producers Rice , because if an interested party does not 
participate in the investigation or has no exports duri ng the period of investigation, it must be considered 
that it did not provide
 the information needed to calculate a dumping margin.  Article 6.8 of the 
AD Agreement allows a dumping margin to be cal culated on the basis of the facts available. 
4.210  Mexico acted in a manner consistent with Annex II to the AD Agreement, as  can be seen from the 
following considerations: 
(a) Mexico acted consistently with paragraph 3 of Annex II to the Agreement by applying 
Article 6.8 of the AD Agreement to Producers Rice  as the firm did not provide the 
information needed to calculate a dumping margin and there was thus no information 
from the exporter to be taken into account. 
(b) Economía acted consistently with paragra ph 5 of Annex II to the AD Agreement, as 
Producers Rice  did not provide information that was ideal in at least one respect for the 
calculation of a dumping margin. 
(c) In addition, Economía acted consistently  with paragraph 6 of Annex II to the 
AD Agreement because it did not reject any of the information provided by Producers Rice but accepted
 it and acted in accordance with the provisions of the 
AD Agreement in calculating the dumping margin applicable. 
4.211  Furthermore, contrary to the United States' cl aim, the determinations of Economía amply and 
sufficiently reflect the findings and conclusions reached on the dumping, injury and their causal 
relationship, and include all the issues of fact and law considered relevant by  Economía.  Consequently, 
there was no violation of the AD Agreement in that respect.   
4.212  Mexico did not levy anti-dumping duties in excess of the dumping margins.  The margins were 
correctly calculated by Economía and the duties levied are consistent with those margins.  Mexico thus 
acted consistently with the GATT 1994 and the AD Agreement. 
3. Complaints by the United States regarding the Foreign Trade Act 
4.213  According to the report of the Appellate Body in US – Carbon Steel , it is presumed that a 
Member's legislation is consistent as such with the WTO Agreements until proven otherwise .  Thus, the 
burden of establishing prima facie  that there has been a violation in th is respect rests with the complaining 
party.  The United States bears the burden of proving prima facie  that the Foreign Trade Act violates the 
WTO Agreements, but has not done so. 
4.214  The United States asserts that the Foreign Trade Ac t is "mandatory", wit hout taking into account 
the relationship between this legisl ation and international agreements.  According to the Appellate Body 
report in US – Corrosion-Resistant Steel Sunset Review , in the event of claims brought against legislation 
"as such" the distinction between mandatory and di scretionary legislation should be analysed on a case 
specific basis and should not be applied in a "mechanistic" fashion. WT/DS295/R 
Page 36   
4.215  Article 53 of the Foreign Trade Act  is consistent as such with Articles 6.1.1 of the 
AD Agreement and 12.1.1 of the SCM Agreement, which provide that "[e]xporters or foreign producers receiving questionnaires
 ... shall be given at least 30 days for repl y ... ".  Mexico is therefore not required 
to grant this time-limit to exporters that were not sent a questionnaire .  This is confirmed in the final 
report of the Panel in Argentina – Poultry Anti-Dumping Duties .  On the subject of extensions, Article 53 
of the Foreign Trade Act does not  in any way prohibit the granting of extensions, and in administrative 
procedures US exporters have been grante d extensions when they so requested. 
4.216  Article 64 of the Foreign Trade Act  is consistent with Articles 6.8 of the AD Agreement and 
12.7 of the SCM Agreement inasmuch as if a party do es not participate in the investigation or had no 
exports during the period of investiga tion, and consequently does not provide  the necessary normal value 
and export price information, the investigating authority may calculate the relevant margin on the basis of the facts available. 
4.217  Likewise, Article 9.4 of the AD Agreement only a pplies where the investigating authority limits 
its examination to a reasonable number of interested  parties, in accordance with Article 6.10 of the 
AD Agreement.  The calculation method set out therein does not apply to exporters or foreign producers that have not provided the necessary information or have not participated in the investigation.  It cannot 
therefore be claimed ― as the United States does ― that applying Article 64 of the Foreign Trade Act 
means imposing an anti-dumping duty in excess of the dumping margin, in violation of Article 9.3 of the AD Agreement. 
4.218  Article 64 of the Foreign Trade Act is consis tent with paragraph 3 of Annex II to the 
AD Agreement as it requires the investigating author ity to consider all verifiable information
.  Thus, if an 
exporter fails to provide the necessary information on th e normal value and export price, then there is no 
verifiable information to consider .  Paragraph 5 of the Annex provides that the investigating authority 
should not disregard the information provided by the exporter even if it is not ideal in all respects .  In 
other words, if it is to be taken into consideration, the information must be ideal  in at least one respect;  
therefore, if no information on the normal value and export price is provided, it cannot be taken into 
account. 
4.219  Mexico rejects the United States' argument con cerning paragraphs 1 and 7 of Annex II to the 
AD Agreement inasmuch as paragraph 1 specifies that if the interested party fails to provide the 
information required, the investigating authority will be free to make determinations on the basis of the 
facts available, including those contained in the appli cation for the initiation of the investigation, and the 
last sentence of paragraph 7 of the Annex provides that  if an interested party does not cooperate and fails 
to provide the investigating authority with relevant in formation, this could lead to a result which is less 
favourable  to for the interested party than if the part y did cooperate.  This would occur after the said 
information had been compared with that available from independent sources. 
4.220  Article 68 of the Foreign Trade Act is consistent "as such" with Ar ticles 5.8, 9.3 and 11.2 of the 
AD Agreement and 11.9 and 21.1 of the SCM Agreement.   Articles 5 of the AD Agreement and 11 of the 
SCM Agreement apply solely to investigations and not  to reviews.  Once the definitive measure has been 
imposed, Articles 5.8 of the AD Agreement and 11.9 of  the SCM Agreement cease to apply.  In any case, 
reviews carried out in respect of exporters with no positive dumping margin are similar to those provided 
in Article 9.3.1 of the AD Agreement. 
4.221  The United States' interpretation of Article 68 of the Mexican Foreign Trade Act is wrong 
inasmuch as this provision does not impose a "repr esentativeness" requirement as a condition for the 
investigating authority to conduct reviews such as those provided for in Articles 21.2 of the SCM Agreement and 9.3 and 11.2 of the AD Agreement. 
4.222  Article 89D of the Foreign Trade Act  is consistent as such with Articles 9.5 of the 
AD Agreement and 19.3 of the SCM Agreement.  The United States basically puts forward two  WT/DS295/R 
 
  arguments: this Article applies only to producers and not  to exporters;  and it requires foreign producers to 
demonstrate that their exports were representative. 
4.223  Mexico reiterates that the provisions of the Fo reign Trade Act must be applied in a manner 
consistent with those of the international treaties to which Mexico is party, as stipulated in Article 2 of the Foreign Trade Act.  Thus, Mexico confines itsel f to applying anti-dumping and countervailing duties as 
provided for in Article VI of the GATT 1994 and in the AD and SCM Agreements. 
4.224  Although Articles 9.5 of the AD Agreement and 19.3 of the SCM Agreement do not expressly so 
provide, in view of their context, object and purpose, it is both natural and logical to request that a new 
exporter's volume of exports during the review peri od be representative.  If such were not the case, it 
would be impossible for the investigating authority to make a proper price comparison, and it would be 
unable to meet its obligation to determine an indivi dual margin of dumping if the new exporter were to 
export one single unit of the product investigated. 
4.225  Article 93.V of the Foreign Trade Act  is consistent as such with Articles 18.1 of the 
AD Agreement and 32.1 of the SCM Agreement.  The United States has failed to prove that Article 93.V 
of the Foreign Trade Act is inconsistent with the AD Agreement or the SCM Agreement.  Even if the 
United States had produced the relevant evidence, Mexico  holds that there is no inconsistency of any kind 
between Article 93.V of the Mexican law and th e WTO Agreements inasmuch as Article 2 of the 
Foreign Trade Act stipulates that all of the provisi ons of the Foreign Trade Act must be applied in 
accordance with the provisions of international treaties to which Mexico is party.  Furthermore, Article 
93.V of the Foreign Trade Act does not
 require the investigating authority to apply its provisions but 
gives Economía discretion to impose fines.  This is proved by the fact that Mexico has never imposed 
such fines on Members of the WTO, even though this  possibility has existed in the Foreign Trade Act 
since 1994. 
4.226  Articles 68 and 97 of the Foreign Trade Act and 366 of the Federal Code of Civil Procedure  
(FCCP) do not violate Articles 9.3, 9.5 and 11.2 of the AD Agreement and 19.3 and 21.2 of the 
SCM Agreement. 
4.227  With regard to Article 366 of the FCCP, the United States has failed to make a prima facie  case of 
violation as such of this Article;  therefore, its alle gation should not be considered  further by the Panel.  
Even in its Exhibit US-20 there is no proof that Article 366 of the FCCP was applied. 
4.228  Articles 68 and 97 of the Foreign Trade Act, by  considering as definitive only anti-dumping or 
countervailing duties that have not been challenged unde r any procedure, give interested parties legal 
certainty.  On the one hand, the Foreign Trade Ac t allows them to guarantee the amount of the anti-
dumping duties fixed in the final determination that is  subject to challenge;  and on the other, it ensures 
that there are no contradictory rulings by the author ities.  Such legal certainty affords a guarantee for 
exporters, who are not required to pay any duties while  the challenge procedure is under way.  Where the 
ruling is in their favour, the security is annulled or the amounts already paid are refunded with interest. 
4.229  Articles 68 and 97 of the Foreign Trade Act are not inconsistent with Article 9.3.2 of the 
AD Agreement inasmuch as they do not prohibit the re imbursement of duties paid in excess.  The refund 
is made promptly within the time-frame specified in  the AD Agreement, once the proceedings in question 
have come to an end. 
4.230  Moreover, Articles 68 and 97 of the Foreign Trade Act are not in breach of Articles 9.5 of the 
AD Agreement and 19.3 of the SCM Agreement on the new exporter procedure inasmuch as none of the provisions of the Foreign Trade Act precludes or expr essly prohibits such a procedure.  The requirement 
in the AD Agreement is that a new exporter procedure,  once initiated, should be carried out promptly (or 
expeditiously in the words of the SCM Agreement).  There is no
 requirement to initiate  the new exporter 
procedure immediately after an applicati on for such a procedure has been made. WT/DS295/R 
Page 38   E. S
ECOND WRITTEN SUBMISSION OF THE UNITED STATES  
4.231  The following are the United States' arguments in its second written submission: 
1. Introduction 
4.232  Mexico’s imposition of an anti-dumping measure on long-grain white rice from the United States 
breached numerous provisions of the AD Agreemen t and the GATT 1994.  Several provisions of 
Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure (“FCCP”) are inconsistent with 
provisions of the AD Agreement and the SCM Agreement. 
4.233  Mexico’s responses to the United States’ claims  have barely addressed the substance of the 
arguments of the United States.  Instead, Mexico has mo stly replied with broad assertions that the AD and 
SCM Agreements create no obligations with respect to  the issues that the United States has raised, and 
that Mexico has freedom to do whatever it wants.  Mexico is incorrect.  The AD and SCM Agreements do 
place obligations on Mexico, and Mexico has failed to rebut the prima facie  case of the United States that 
Mexico has breached these obligations. 
2. Economía’s use of a stale Period of Investigation 
(a) Mexico is unable to justify Economía’s use of a stale POI 
4.234  The purpose of an anti-dumping investigation is to determine whether a domestic industry is 
presently  injured (or threatened with injury) by dumping that is presently  occurring.  Therefore, an 
authority must seek to base its determinations of dumping and injury on a period that includes the most recent available information.  If an authority chooses instead to examin e information that does not include 
the most recent available information, it must be able to justify its approach and explain why its 
determinations are objective, unbiased, and based on positive evidence. 
4.235  Mexico’s response to the Panel’s question 2(c) has confirmed that Econom ía had no justification 
for its decision to base its injury determination on stale data, except that it selected the POI that the 
petitioner asked it to examine.  It took this a pproach even though the foreign respondents and the 
importers objected.  Mexico has also confirmed that Economía did not seek to use a POI that ended as close to the initiation date as practicable. 
4.236  Furthermore, Mexico has not contested that Economía took no steps to update the injury 
information after it initiated its investigation, with th e result that its final determination of injury was 
based on data that was three to five
 years old. 
4.237  Mexico’s sole defence on this issue is that it interprets the AD Agreement as placing no limits on 
the age of the information that an authority may use in reaching its determinations of dumping and injury, and that Economía is under no obligation to obtain th e most recent information available when it conducts 
its investigations.  Mexico is wrong. 
(b) An investigating authority must base its injury investigations on a period that includes the most 
recent available information 
4.238  Numerous provisions in the AD Agreement and the GATT 1994 illustrate the need for authorities 
to base their injury investigations on a period that includes the most recent available information.  For 
example, Article 3.7 of the AD Agreement requires an authority to base a threat determination: 
on facts, and not merely on allegation, conject ure or remote possibility.  The change in 
circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent.  WT/DS295/R 
 
  4.239  If an authority fails to evaluate data that includes the most recent available data, it will not be in a 
position to make judgments about situations that are
 imminent; at most, it will be able to make predictions 
about situations that might have been imminent at some time in the past.26  Thus, Article 3.7 of the 
AD Agreement presumes that the authority is maki ng its determination based on data that include  the 
most recent available information. 
4.240  Similarly, Article 3.4 of the AD Agreement requires an authority to evaluate all relevant 
economic factors, including actual and potential  decline in sales, profits, etc., and actual and potential  
negative effects on cash flow, inventories, etc.  The term  “potential” refers to the future, and implies that 
the authority is evaluating data that includ es information that is as current as possible. 
4.241  In addition, Article VI:1 of the GATT 1994 states that dumping “is to be condemned if it causes 
or threatens  material injury,” and Article VI:6(a) states that a contracting party may only levy an anti-
dumping duty if it finds that the dumping is such as to cause or threaten  material injury (emphasis added). 
 Both of these provisions imply that the injury is o ccurring in the present (or thr eatening to occur in the 
near future). An objective authority will only be in a position to make determinati ons about the present, or 
the near future, if it is examining a period th at includes the most recent data available. 
4.242  The necessity for an authority to consider events  that happened in the past does not give an 
authority free rein to choose which part of the past to  consider.  In the rice investigation, Economía made 
no effort to collect information for the period betw een the end of the POI and the initiation of the  
anti-dumping investigation or to update its data thereaf ter.  The fifteen-month gap between the end of the 
POI and the date of initiation and the nearly three-year  gap between the end of the POI and the final 
determination means (1) Economía’s examination of volume and price effects was not objective or based on positive evidence as required by Articles 3.1 and 3.2 of the AD Agreement;  (2) Economía’s examination of “all relevant economic factors” having a bearing on the state of the domestic industry was not objective or based on positive evid ence as required by Articles 3.1 and 3.4 of the AD Agreement;  and 
(3) Economía’s determination that the dumped imports  were “causing” injury to the domestic industry 
was not objective or based on positive evidence as require d by Articles 3.1 and 3.5 of the AD Agreement. 
3. Economía’s limitation of its examination of injury 
4.243  Economía’s decision to allow the petitioners to set the POI for its dumping analysis as March - 
August 1999 and its focus on only March to August of 1997, 1998, and 1999 for its injury analysis 
resulted in breaches of Articles 1, 3.1, 3.5, and 6.2 of the AD Agreement. 
4.244  First
, the sole reason for Economía’s decision to base its dumping  analysis on the March to 
August time period was that the petitioner requested it to examine that period.  Moreover, instead of using a neutral approach, Economía always assumes that the POI that the petitioner suggests is appropriate; if 
the foreign respondents disagree, it places the evidentia ry burden on them to demonstrate that it should 
use another period instead.  Moreover, when the respondents in the rice investigation did
 come forward 
and object to the POI, Economía summarily rejected their concerns.27  Contrary to Mexico’s assertion, 
footnote 4 of the AD Agreement is not relevant, because it merely addresses the determination of whether sales have been made below cost over an extended period of time. 
4.245  Second
, the sole reason for Economía’s decision to base its injury  analysis on the March to 
August time period was that the petitioner requested it to  examine that period.  Mexico’s statement that 
Economía conducted its injury analysis on the basis of the “period selected by the petitioners” speaks 
                                                      
26  Similarly, footnote 10 to Article 3.7 states that one  situation that might support an affirmative finding of 
threat of material injury is where “there is convincing reason to believe that there will be, in the near future, 
substantially increased importation of the product at dumped prices.”  An authority will only be in a position to make predictions about the “near future” if it is basing thos e predictions on information that includes recent data. 
27  See, e.g., Preliminary Determination, para. 66 (Exhibits US-14&15). WT/DS295/R 
Page 40   volumes.  The petitioner requested Economía to exam ine the March to August time period specifically 
because the petitioner believed imports were concentrat ed in that period, and Economía initia ted the case 
on that basis. An objective and unbiased authority would not have done so. 
4.246  Third
, Mexico has rejected the idea that Economía  took “seasonality” into account in making this 
decision.  Therefore, there are absolutely no grounds to  conclude that concerns about seasonality justified 
the approach that Economía took. 
4.247  Fourth , Economía did collect data for every month in the three-year injury POI; it simply chose 
not to examine half of that information.  By contrast, a proper  injury analysis looks at the evidence for the 
entire  POI.  The fact that the non-examined half of each of the three years reflects a large portion of 
domestic production makes it vital  for an authority to examin e evidence for the entire POI. 
4.248  The Appellate Body made a similar point in US – Hot-Rolled Steel , when it found that an 
authority could not objectively examine a domestic industr y if it focused on just one part of that industry. 
 As the Appellate Body stated: 
Different parts of an industry may exhib it quite different economic performance during 
any given period.  Some parts may be pe rforming well, while others are performing 
poorly.  To examine only the poorly performing parts of an industry . . . may give a misleading impression of the data relating to the industry as a whole, and may overlook positive developments in other parts of the industry.  Such an examination may result in highlighting the negative data in the poorly pe rforming part, without drawing attention to 
the positive data in other parts of the industry. 
4.249  In sum, “an examination of only certain parts of a domestic industry does not ensure a proper 
evaluation of the state of the domestic industry as a whole, and does not, therefore, satisfy the requirements of ‘objectiv[ity]’ in Article 3.1 of the Anti-Dumping Agreement .” 
4.250  The Appellate Body’s observations are equally va lid with respect to the examination of the 
entirety of the injury data relating to an industry.   The economic performance of a domestic industry may 
vary over the course of a year.  To examine only one  part of the year may overlook positive developments 
in other parts of the year, and thus give a misleading impression of the data relating to the condition of the 
industry as a whole.  Yet this is exactly what Economía did. 
4.251  Moreover, ignoring the evidence for half of each of the three years of the POI precluded 
Economía from conducting an objective examination of the causal relationship between the dumped 
imports and any injury to the domestic industry.  Ec onomía’s approach ensured that its examination was 
not based on all relevant evidence before it, as Article 3.5 of the AD Agreement requires. 
4. Economía’s conduct of its injury analysis 
4.252  Economía’s injury analysis breached Articles 3.1, 3.2, 3.4, 3.5, 6.8, 12.2, and Annex II of the 
AD Agreement on at least four different grounds. 
4.253  Mexico’s response to the Panel’s questions further demonstrates that Economía breached 
Articles 3.1, 3.2, and 6.8 of the AD Agreement, as well as Annex II, by failing to collect the information on price effects and volumes that it needed to conduct its injury analysis in an objective manner and to 
base its determinations on positive evidence. 
4.254  To be specific, Mexico has confirmed that numerous types of non-subject rice entered during the 
POI under tariff heading 1006.30.01 of Mexico’s tari ff schedule, and its answers demonstrate that 
Economía failed properly to separate  the subject imports from the non-subject imports before it conducted 
its injury analysis.  WT/DS295/R 
 
  4.255  Mexico argues that Economía did separate the s ubject imports from the non-subject imports, and 
that it used several methodologies to do so.  In actuality, however, the only methodology that Economía used was the flawed procedure supplied by the pe titioner.  The petitioner’s methodology was based on a 
flawed statistical procedure that focused on isolati ng imports of short-grain and medium-grain rice using 
monthly average
 prices for those products in the US  market, that arbitrarily assumed that any rice that 
entered Mexico above a certain price had  to be short-grain or medium grain and could not  be long-grain 
white rice, and that did not even address the question of how to separate imports of glazed rice and parboiled rice, which were also not part of the subject product.
28  Moreover, even that analysis is applied 
only to 1999.  Economía simply guessed at import levels for 1997 and 1998.29  Furthermore, Mexico is 
mistaken in claiming that Economía also sought to base its injury determination on information obtained 
from the exporters.  In actuality, Economía only sought  volume and value information from Farmers Rice, 
Riceland, The Rice Company, and Producers Rice. 
4.256  Mexico is also mistaken in claiming that Economía sought to separate the subject imports from 
the non-subject imports using information on the total volume of imports from the United States.  The fact that the import data contained both subject and non-subject merchandise in tariff heading 1006.30.01 is 
what created the need to separ ate the two in the first place. 
4.257  Finally, Mexico has confirmed that Economía ignor ed one reliable and neutral method that would
 
have allowed it to collect the information that it need ed to conduct an objective examination of the injury 
factors, and to base its determination on positive evidence – namely, consulting the pedimentos . 
4.258  Mexico confirms that the pedimentos  identify the volume and value of each import.  Thus, it is 
indisputable that Economía  could have used the pedimentos  to obtain volume and value data that would 
have been specific to the subject merchandise, and substantially more accurate than the information on 
which it relied. 
4.259  Mexico argues that the description field in the pedimentos  does not necessarily describe in 
sufficient detail the product being imported, and that Economía would have needed  to consult the invoices 
in cases where the description was not sufficiently preci se.  The invoices, however, are attached to the 
pedimentos .  Moreover, even if Economía had only used the pedimentos  that specifically identified the 
imports as long-grain white rice, it still would have had a substantial amount of precise data on volumes 
and values that it could have used in its determinations. 
4.260  Mexico also argues that it would have been  “impractical” to consult each and every pedimento .  
Even if Economía had only consulted a representative sample, however, it still would have had better data that it could have used in performing its analyses. 
4.261  In addition, Mexico confirmed that the pedimentos  identified the exporter and importer for each 
shipment.  Thus, if Economía had consulted the pedimentos  and encountered questions about the content 
of a particular shipment, it could ha ve consulted either party, confir med the nature of the merchandise, 
and ensured that it had accurate information on volumes and values.  Alternatively, since the pedimentos  
listed the names and addresses of the exporters and im porters, Economía could have simply sent them its 
questionnaire, and asked them
 to provide the necessary information.  Economía failed to do so. 
4.262  Finally, the Panel may wish to keep in mind the evidence that the United States submitted in 
response to question 17 from the Panel, which demons trates that Mexico has been willing to use the 
pedimentos  to benefit domestic industries seeking the imposition of anti-dumping measures.  Mexico has 
gone so far as to release actual pedimentos  to its domestic industry, and has allowed them to use the 
pedimentos  to support their allegations of dumping and injury. 
                                                      
28  In fact, paragraphs 229-232 of the final determ ination, setting out Economía’s methodology, make no 
reference to any attempt to separate out glazed rice and parboiled rice. 
29  See Final Determination , para. 239 (Exhibits US-6&7). WT/DS295/R 
Page 42   
5. Economía’s failure to exclude Farmers Rice and Riceland from the measure 
4.263  Article 5.8 of the AD Agreement requires Member s to exclude from anti-dumping measures firms 
that are individually examined in an anti-dumping i nvestigation and found not to  be dumping.  Mexico’s 
failure to exclude Farmers Rice and Riceland from the anti-dumping measure on long-grain white rice breached Article 5.8. 
4.264  Mexico will impose an anti-dumping measure on ever y producer and exporter in the investigated 
country as long as it finds at least one
 exporter to be dumping at more than de minimis  levels.  This 
includes applying the measure to producer s that are investigated and found not  to be dumping.  Economía 
will not examine whether the weighted average margin of all exporters is greater than de minimis  when it 
decides to impose an anti-dumping measure. 
4.265  The outcome of the rice investigation illustrates the consequences of Mexico’s approach.  By 
“deeming” every exporter and producer in the investigated country as being included in the investigation and applying an adverse, facts available-based ma rgin to the unexamined exporters and producers, 
Economía will almost certainly find at least one firm  to be dumping in every anti-dumping investigation, 
and thus it will never find a basis to terminate an investigation due to “de minimis ” dumping margins.  
Mexico’s interpretation of Article 5.8 reads the de minimis  dumping language out of the AD Agreement. 
4.266  Mexico’s interpretation of Article 5.8 fails to take into account that the second and third sentences 
of Article 5.8 refer to the “margin” of dumping being de minimis .  The Appellate Body has interpreted the 
term “margin” in Article 9.4 of the AD Agreement as referring to the “individual margin of dumping determined for each of the investigated exporters a nd producers” of the investigated product.  Nothing in 
the text of Article 5.8 of the AD Agreement suggest s that the term “margin” should be interpreted 
differently in Article 5.8 than in Article 9.4. 
4.267  The fourth sentence of Article 5.8 of the AD Agreement provides contextual support for 
the view of the United States.  That sentence stat es that the “volume” analysis is normally done on a 
country-wide basis.  The absence of similar language suggesting that the dumping analysis is to be done 
on a country-wide basis supports the conclusion that the de minimis  standard is to be applied on a 
company-specific basis. 
4.268  The EC claims that the term “country” is used  in various places in the AD Agreement and the 
GATT 1994, and that the concept of dumping involves a “strong connotation of a country-wide assessment.”  In actuality, however, the concept of dumping involves a strong connotation of firm-specific
 
assessment.  Several provisions of the AD Agreement support this view. 
4.269  Moreover, there is no “internal inconsistenc y” involved in terminating an anti-dumping 
investigation on a firm-specific basis, and no risk that doing so will lead to “parallel” investigations.  Nor 
will interpreting Article 5.8 to require the exclusion of firms with zero margins of dumping require or lead to “several company specific cases or investigations.”  On the contrary, an authority can conduct a single 
investigation of multiple firms, and then terminate its investigation with respect to specific firms by 
excluding firms that were investigated and found not to be dumping from the measure. 
6. Economía’s application of an adverse “Facts Available” dumping margin 
(a) Economía should have taken steps to  investigate additional exporters 
4.270  Mexico has confirmed that the pedimentos  identify the exporters of the subject merchandise, and 
that Mexico therefore knew the identity of every
 exporter of the subject merchandise to Mexico during the 
POI.  Economía’s failure to review the pedimentos  to obtain the contact information for the exporters or to 
take any other steps to investigate more than just the two exporters that the petitioner designated in the 
petition was neither objective nor unbiased.  WT/DS295/R 
 
  4.271  First
, Mexico’s argument that examining the pedimentos  would have caused a “significant delay” 
in the initiation of the investigation is not credible.  Economía only investigated dumping  for March to 
August 1999, so even under Mexico’s theory, reviewing the pedimentos  would have taken approximately 
two weeks at most.  It took Economía six months  to initiate the investigation; the need to spend two 
weeks to gather the information it needed to contact the “known” expor ters would not have dissuaded an 
objective and unbiased authority. 
4.272  Second , Economía could have chosen instead to take other steps to identify additional exporters.  
For example, if Economía had consulted the Rice Journal , it would have obtained the names, addresses, 
and phone numbers for every  rice miller in the United States. 
4.273  Third , Mexico mischaracterizes the arguments of th e United States on this issue when it claims 
that it was under no obligation to identify all  of the exporters of long-grain white rice in the United States. 
 The United States agrees that there is no such ob ligation.  On the contrary, the second sentence of 
Article 6.10 explicitly permits an authority to limit its investigation.  Therefore, Economía only needed to 
identify enough exporters to allow it to take either  approach.  An objective and unbiased administering 
authority would have done so. 
4.274  Fourth , Economía’s failure to conduct a proper i nvestigation of the known exporters was 
particularly biased and non-objective because of the c onsequences for the firms that it did not individually 
investigate.  Economía treated every  exporter or producer in the United States as being included in the 
investigation.  It then applied an adverse, facts av ailable-based margin taken from the petition to any firm 
that did not learn of the investigation on its own and appear at the clerk’s office in Mexico City to obtain a copy of the questionnaire.  Given the negligible consequences for the petitioner of a slight delay in 
initiation, an objective and unbiased authority would have taken the necessary time to ensure that the due process rights of the foreign respondents were adequately protected. 
4.275  Finally
, Economía did not satisfy itself as to the accuracy of the petitioner’s listing of only two 
exporters, as Articles 5.3 and 6.6 of the AD Agreement require.  Although Economía used the listado  data 
to check the volume and value data that the petitione r submitted, it was not able to use that source to 
confirm the identity of the exporters, and it did not check the pedimentos . 
(b) Mexico is misinterpreting the relevant requirements of the AD Agreement 
4.276  Economía also breached the AD Agreement and the GATT 1994 by applying an adverse, facts 
available-based margin taken from the petition to  Producers Rice and the unexamined exporters and 
producers.  Mexico’s only response to the claims of the United States has been to argue that the 
AD Agreement creates no obligations with respect to  “unknown” exporters and producers, or exporters 
that had no shipments during the POI, and that Artic le 6.8 of the AD Agreement authorized it to apply 
adverse facts available to such firm s.  Mexico even claims that an authority only needs to consider the 
exporters that are “known” to the petitioner , and not those known to itself.  Mexico’s interpretation is 
incorrect. 
4.277  The illogic of Mexico’s interpretation can perhaps best be seen by considering the response that 
the EC  provided to the Panel’s question 1(A) to the EC.  Like Mexico, the EC disclaims any need for an 
authority to take any steps to identify exporters othe r than those listed in the petition.  The EC further 
argues that it would be permissible for an authority to initiate an anti-dumping investigation even if the 
petitioner only identifies the exporting country, and identifies no  exporters or producers at all.  The EC 
has also agreed with Mexico that an authority is under no obligations with respect to “unknown” exporters 
or producers, and that it is permissible to appl y facts available-based margins to those firms. 
4.278  Thus, taken to its logical conclusion, the EC’s and Mexico’s interpreta tion of Articles 6.10 and 
9.4 and the facts available provisions would permit an authority to initiate an investigation on the basis of a petition that did not identify any
 “known” exporters, publish a notice of the initiation of an anti-WT/DS295/R 
Page 44   dumping investigation in its official jour nal, and then send its questionnaire to nobody
.  Then, unless a 
firm learned of the investigation on its own, en tered an appearance, and obtained a copy of the 
questionnaire, the authorities could apply the petition margin to the entire country without having to 
examine anyone .  While this outcome might be expedient for the authority (and beneficial for the 
petitioner), it is not consistent with the terms of the AD Agreement. 
4.279  As the United States has previously discussed, Me xico’s interpretation is based on a flawed 
interpretive approach that relies on partial citations of Articles 6.8 and 6.10, viewed in isolation, and 
divorced from the broader context of the overall AD Agreement.  Mexico’s approach is wrong.  A proper interpretive approach must ta ke into account the entirety
 of the AD Agreement.  This means Mexico must 
take into account all of the provisions that the United States has identified in its submissions and 
statements, and that Mexico has ignored to date. 
4.280  Mexico must also explain how its interpreta tion is consistent with Article 9.5 of the 
AD Agreement, which permits certain exporters to recei ve an expedited review if they can demonstrate, 
among other conditions, that they are “not related to  any of the exporters or producers in the exporting 
country who are subject to the anti-dumping duties on the product .”  (Emphasis added.)  This provision 
applies specifically  to exporters and producers who did not  export the subject merchandise to the 
importing Member during the POI.  Mexico includes every  exporter or producer of the product in its 
investigations, and it applies the anti-dumping duties on the product to all of them (either because they 
receive an individual calculated rate or because they are assigned the adverse, facts available rate taken 
from the petition).  Therefore, because Producers Rice and the unexamined exporters and producers are all 
“subject to the anti-dumping duties on the product,” th ey do not qualify for an expedited review under 
Article 9.5 of the AD Agreement.  Mexico’s interp retation reads Article 9.5 out of the AD Agreement. 
(c) An investigating authority may not apply a facts available margin to an exporter that was never 
even sent the questionnaire 
4.281  The AD Agreement prohibits an authority from appl ying a margin based on the facts available to 
an exporter or producer that was never even sent the questionnaire.  Article 6 and Annex II of the 
AD Agreement are the provisions most relevant to this point.  The Appe llate Body has described Article 6 
as an article that: 
“establishes a framework of procedural and due process obligations.”  Its provisions “set 
out evidentiary rules that apply throughout  the course of the anti-dumping investigation, 
and provide also for due process rights that are enjoyed by ‘interested parties’ throughout 
such an investigation.” 
4.282  This “framework of procedural and due pr ocess obligations” includes Article 6.1 of the 
AD Agreement, which requires  investigating authorities to give interested parties “in an anti-dumping 
investigation” notice of the information that they require and ample opportunity to present in writing all 
evidence which the interested parties consider releva nt in respect of the investigation in question.  
Moreover, the Appellate Body has emphasized that Article 6.1 creates obligations with respect to 
individual  exporters and producers. 
4.283  Paragraph 1 of Annex II of the AD Agreement then reiterates this obligation by requiring  
investigating authorities to ensure  that respondents receive proper  notice of the rights of the investigating 
authorities to use the facts available.  Although Article  6.8 permits investigating authorities to apply the 
facts available to firms that fail to provide necessary information, they “are not entitled to resort to best 
information available in a situation where a party do es not provide certain information if the authorities 
failed to specify in detail the information which was required.” 
4.284  Given these requirements, Economía cannot simply publish a general notice in its Diario Oficial  
announcing the initiation of an anti-dumping investigati on, purport to be investigating every producer and  WT/DS295/R 
 
  exporter in the subject country, and apply a facts ava ilable-based margin to any firms that do not come 
forward on their own and enter an appearance in the pr oceeding.  Rather, it must observe the procedural 
and due process obligations th at are contained in Article 6 and that  it owes to interested parties throughout
 
the investigation.  This means that if Economía is including a particular exporter “in an anti-dumping 
investigation,” it must give notice to that individual  exporter by sending the exporter a copy of the 
questionnaire, asking it to respond, and ensuring  that the exporter understands  that a failure to respond 
may result in the application of a margin based on the f acts available.  If it fails to take these steps, then it 
cannot apply a facts available-based margin to that exporter. 
4.285  Alternatively, an authority may choose to limit its  investigation in accordance with Article 6.10 of 
the AD Agreement.  In that case, however, it may onl y apply a neutral “all others” rate, calculated in 
accordance with Article 9.4 of the AD Agreement,  to the unexamined exporters and producers.  
Regardless of the approach it chooses, an authority cannot  apply a facts available-based margin to an 
exporter or producer that is never sent the questionnaire. 
(d) Economía breached paragraph 7 of Annex II 
4.286  Mexico concedes that it did not observe the re quirements of paragraph 7 of Annex II when it 
applied the facts available to Producers Rice.  Mexico  claims that it was under no obligation to do so.  It 
also failed to observe paragraph 7 with respect to the unexamined exporters and producers.  Similarly, 
there is no evidence on the record of the rice investigation to suggest that Economía failed to take steps to 
check the presumptions embodied in the petition ag ainst independent data available during the 
investigation, or to exercise "special circumspec tion" in its application of the petition margin to 
Producers Rice and the unexamined producers and exporters. 
7. Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure 
4.287  Mexico has largely agreed with the United States' interpretation of the operation of the various 
articles of the Foreign Trade Act and the FCCP at issu e in this dispute; it has focused its defence instead 
on the United States' interpretation of the relevant WT O obligations.  For the most part, this defence has 
been composed of broad assertions that the AD and SCM Agreements create no obligations with respect 
to the matters addressed by the challenged provisions.  Mexico’s arguments are wrong. 
4.288  Mexico has also argued that the United States' ar guments on this issue have failed to take into 
account the interrelationship between the AD and SCM Agreements and Mexico’s domestic law.  The 
United States has previously explained why this argument is incorrect as well. 
4.289  Mexico’s replies to the Panel’s questions ha ve also failed to rebut the United States' prima facie  
case.  In question 28, the Panel asks Mexico whether it would be required to amend a law in the event that 
the DSB adopted a panel report finding the law to be WT O-inconsistent.  Mexico fails to respond directly 
to the question, stating only that it would be obligated to  remove the inconsistency.  It is not at all clear 
what this means.  The important point, however, is that the stated scenario will only arise if the Panel 
finds the laws to be WTO-inconsistent.  Mexico vi ews each of the actions that the challenged provisions 
require as consistent with its WTO obligations;  ther efore, Mexico does not, as a matter of its municipal 
law, have any ability not to perform the actions the challenged provisions require. 
4.290  Furthermore, because Mexico sees no conflict between  its WTO obligations and the actions that 
the challenged provisions require, the scenario that the Panel sets out in question 29 can also arise, if at 
all, only if the Panel itself finds the laws to be  WTO-inconsistent (and the Dispute Settlement Body 
adopts that finding).  At that point, Mexico woul d be in the same position as any other Member whose 
laws are found to be inconsistent with WTO rules – it will need to determine what steps are necessary to 
remove the inconsistency. WT/DS295/R 
Page 46   4.291  Similarly, Mexico states that the WTO agreemen ts would prevail over the Foreign Trade Act in 
the event that a certain provision of the law were found in consistent with WTO rules.  Again, even if this 
were true, the key point is that Economía is the ad ministrator of the Foreign Trade Act, and Economía 
views each of the challenged provisions as consistent with WTO rules.  Therefore, in Mexico’s view, 
there is no conflict, and thus there is no basis in  Mexico’s municipal law for the WTO Agreement to 
override any of the challenged provisions. 
4.292  In reply to the Panel’s question 31, Mexico asserts  that Article 68 of the Foreign Trade Act does 
not require an exporter to demonstrate that its vol ume of exports was “representative” as a sine qua non 
for the initiation of a review.  It states that the exporter “should” make this  demonstration during the 
course of the proceeding itself, however.  As the Unite d States demonstrated in its response to this same 
question, Economía does in fact require exporters seeking reviews to make such a demonstration;  
Economía addresses the issue in the initiation notice itself. 
4.293  In any event, Mexico’s argumen t seeks to elevate form over substance.  Rejecting a review 
request in the course of a proceeding for a failure to demonstrate a “representative” volume of sales is 
tantamount to rejecting the review at the outset.  In either event, Article 68 precludes firms from obtaining a review; therefore, it is inconsistent as such with  Articles 9.3 and 11.2 of the AD Agreement, and with 
Article 21.2 of the SCM Agreement.
30 
4.294  Mexico’s response to the Panel’s question 33 attempts to defend Ar ticle 89D of the Foreign Trade 
Act by pointing to Article 47 of its regulations .  The cited provision does nothing to rebut the 
United States' prima facie  case that Article 89D is inconsistent “as such” with Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement.   Article 47 establishes rules for determining the 
costs of production for trading companies.  It appears in the section of Mexico’s anti-dumping regulations that sets out the methodologies that Economía is to apply in calculating anti-dumping margins.  It has nothing to do with the question of who is entitled to obt ain an expedited review, however.  And even if it 
did, the hierarchy of laws in Mexico is such that the regulations are subordinate to the Foreign Trade Act;  the decree that implemented Article 89D makes clear th at the regulations continue in effect only insofar 
as they are not inconsistent with the provisions of the decree. 
4.295  Finally, Mexico seeks to convince the Panel that no issue arises from the fact that Article 366 of 
Mexico’s FCCP and Articles 68 and 97 of Mexico’s Foreign Trade Act preclude Mexican authorities from conducting reviews of anti-dumping a nd countervailing duties while a judicial review of the underlying 
anti-dumping or countervailing duty measure is ongoing, because the interested parties may post a bond in lieu of paying the duties themselves while the litiga tion is underway.  The ability to post a bond does not 
ameliorate the negative effects of the preclusion of reviews, or to remedy the WTO breaches that result 
therefrom. 
4.296  The United States previously submitted to the Pa nel a letter from Economía to Sun Land, a US 
beef exporter that is subject to Mexico’s anti- dumping measure on certain US beef products.  That 
measure, imposed in July 2000, is being review ed by a “binational panel” established under 
Chapter Nineteen of the North American Free Trad e Agreement.  Economía denied Sun Land’s request 
for a review on the grounds that Articles 68 and 97 of the Foreign Trade Act preclude it from conducting 
the review while the NAFTA litigation is underway.  Although the binational panel recently remanded the 
beef determination to Economía for further proceedings, the litigation continues today. 
4.297  Anti-dumping duties are assessed against the importers , not the exporters or producers.  Thus, it is 
the importer, and not the exporter or producer, that has to decide whether it is willing to post a bond as 
security against potential anti-dumping duties.  After Mexico refused to conduct a review of Sun Land 
                                                     
 
30  Mexico makes the same assertion with respect to Ar ticle 89D of the FTA in its response to the Panel’s 
Question 32.  As the United States demonstrated in its response to Panel Question 32, Mexico’s arguments about 
Article 89D are similarly without merit, and the Panel should reject them as well.  WT/DS295/R 
 
  while the NAFTA litigation was ongoing, Sun Land’s im porter informed Sun Land that it was not willing 
to post a bond with respect to any of Sun Land’s b eef products that are subject to the Mexican  
anti-dumping measure.  In addition, Sun Land was una ble to find another importer willing to post a bond. 
 As a consequence of its inability to obtain a re view and post a bond, Sun Land has been effectively 
locked out of the Mexican market for the products subject to the anti-dumping measure. 
4.298  Thus, the preclusion of reviews causes real and subs tantial commercial harm to exporters that are 
subject to Mexican anti-dumping measures.  It also presents exporters that are subject to Economía’s adverse, facts available-based petition margins with  two mutually exclusive choices: they can seek 
judicial review of the order itself, knowing that doing so will preclude them from obtaining an administrative review that might reduce their margin , thus guaranteeing their exclusion from the market 
for a period of years;  or they can seek an administra tive review in an effort to reduce their margin, and 
thus forfeit any chance to challenge th e legitimacy of the order in court.
31  Neither the AD Agreement nor 
the SCM Agreement permits a Member to impose such a choice under its domestic law. 
8. Mexico has failed to contest numerous US claims 
4.299  Finally, Mexico has failed to date to contest  – let alone rebut – numerous claims of the 
United States. 
F. SECOND WRITTEN SUBMISSION OF MEXICO  
4.300  The following are Mexico's arguments in its second written submission: 
1. Complaints relating to the anti-dumping invest igation on imports of long-grain white rice 
originating in the United States of America regardless of the country of provenance 
(a) Introduction 
4.301  Mexico hereby refutes the assertions made by the Un ited States at the first substantive meeting of 
the Panel and reaffirms the arguments put forward by Mexico in its first written submission and its oral 
statement at that substantive meeting. 
4.302  Mexico emphasizes that its first wr itten submission, oral statement, replies to the questions posed 
by the Panel at the first substantive meeting and rebu ttal submission should be considered as a whole.  It 
also requests the Panel that, in view of their signifi cance, the preliminary objections raised in its first 
written submission be treated on a par with the investig ation itself.  In this connection, the United States 
once again introduces a number of arguments based on Artic les that were not the subject of consultations 
or included in its request for the establishment of a panel or its first submission.  Mexico accordingly 
requests that these arguments be dismissed. 
4.303  The United States puts a tendentious interpreta tion on Mexico's arguments and misrepresents 
them, while making claims based on a priori  premises with no grounding in the AD Agreement and 
seeking to impose on Mexico its own administrativ e practice and its own interpretation of the 
AD Agreement, in breach of Article 17.6 of the Agreement. 
                                                      
31  In addition, if they forfeit their chance to seek judicial review and wait to seek an administrative review 
instead, they run the risk that a different firm will request judi cial review in the meantime.  In that case, they will find 
themselves with no remedy at all, because Mexico refuses to conduct administrative reviews of any firm if any other firm is seeking judicial review. WT/DS295/R 
Page 48   4.304  The aforementioned points are clearly visible in the affirmations made by the United States in its 
Opening Statement  at the first substantive meeting and in the document entitled Answers of the 
United States to Questions of the Panel in Connection with its First Substantive Meeting  ("Answers "). 
4.305  In this document, Mexico responds to the assertions of the United States in its Opening Statement  
of 17 May 2004 and to a number of the replies contained in its Answers .  Since many of the United States' 
arguments are a repetition of those set forth in its first submission, Mexico reiterates its position and 
makes cross-references to its own first written subm ission, indicating the paragraphs in which it has 
already responded to the questions raised by the United States. 
4.306  The United States' arguments con cerning the alleged inconsistency of the Foreign Trade Act with 
the WTO Agreements are based on a single premise, which is the supposedly mandatory nature of the 
Articles of the Foreign Trade Act at issue.  A contrario sensu , this means that if the Articles in question 
are not mandatory, then they are not in any way inconsistent with the WTO Agreements. 
4.307  The United States has not established a prima facie case of violation of the WTO Agreements.  
Mexico stresses that the provisions of the Foreign Tr ade Act are consistent with these Agreements, as its 
own arguments have demonstrated. 
(b) Mexico complied with Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement and Articles VI:2 
and VI:6(a) of the GATT 1994 with regard to th e establishment of the period of investigation 
4.308  Article VI:6(a) of the GATT 1994 was not cited in the request for consultations, the request for 
the establishment of a panel or the first submission of  the United States.  The United States' arguments in 
this respect should therefore be dismissed. 
4.309  Mexico believes that a clear reading of the Artic le is important, because no violation of the GATT 
attributable to the Mexican investigating authority can be deduced from its wo rding since the authority 
applied an anti-dumping duty after it had determined  that dumped exports from the United States were 
causing injury to Mexico's domestic industry, as expl ained in paragraph 398 of the final determination. 
4.310  Mexico (as indeed any other WTO Member) does not
 have complete freedom to do whatever it 
wants and has never made any such claim.  On the other hand, it does  have discretion to establish the 
period of investigation that it deems most appropr iate.  As concerns the remoteness of the period 
investigated, the circumstances of each case will dete rmine what timeframe is appropriate for the 
investigation. 
4.311  Mexico takes the view that it is desirable fo r the period of investigation to be as close as 
practicable to the date of initiation of an anti-dumpi ng investigation but observes that there is no provision 
establishing any obligation in that regard.  If the peri od under investigation is remo te and yet adequate for 
the anti-dumping investigation, it should not be rejected  but should be evaluated and, as appropriate, used 
for the purposes of the relevant analysis. 
4.312  Mexico stresses the biased emphasis, in  footnote 4 in the United States' Answers , on the fact that 
it set as the period of investigation the months fro m March to August 1999 for two reasons:  (a) because 
the petitioner so requested;  and (b) b ecause the imports of long-grain white rice were concentrated in that 
period.  The United States attempts to make it appear as though Mexico acted in an arbitrary and  non-objective manner. 
4.313  The first part of the United States' claim reiterat es the statement made in the United States' first 
submission, without referring to the arguments Mexico  adduced in paragraphs 55, 56 and 67 of its first 
written submission to show that Mexico did not breach the AD Agreement in setting the period of investigation in the way that it did.  WT/DS295/R 
 
  4.314  As regards the second part of the claim, although imports of long-grain white rice were indeed 
negligibly higher over the periods March to August of 1999 and 1998 than during the rest of each year, 
this was not the case in 1997, when imports from the Un ited States were lower in that period than during 
the rest of the year.  Thus, imports of white ri ce from the United States increased and the comparable 
periods differed slightly from the rest of each year in terms of imports.  The United States' argument is 
therefore without substance. 
4.315  Mexico observes that in paragraph 9 of its Answers  the United States misrepresents Mexico's 
arguments and then directs the Panel to them as it sees fit. 
4.316  As can be noted in paragraph 55 of its first written submission, Mexico did not establish the 
period of investigation in order to eliminate distortions but used, as the period of injury analysis, previous 
periods comparable to the period investigated .  The period of investigation was not "selected" by the 
investigating authority but was suggested by  the petitioner and, since no one demonstrated  that it was 
inappropriate, the investigati ng authority had no objections. 
4.317  The United States' assertion in paragraph 11 of its Answers  should be dismissed because there is 
no line of reasoning to be derived therefrom.  In an y event, Mexico has already stated its reasons for 
setting the period of investigation in the way that  it did.  The United States has failed to establish prima 
facie  that Mexico committed a violation in this regard. 
4.318  In addition, as Mexico demonstrated in its firs t written submission and its  response to question 13 
posed by the Panel, there is no seasonality with  respect to domestic production or the imports. 
4.319  Furthermore, the United States did not respond to the Panel's first  question regarding the use of 
events that happened in the past, nor did it offer any opinion as to whether a period of investigation 
covering 12-month-old data would be  inconsistent with the AD Agreement.  On the other hand, the 
United States emphasized that it was "not arguing that there is a specific length of time beyond which the 
POI becomes per se  inconsistent with the AD Agreement", in contradiction to the argument developed in 
its first submission in respect of the remoteness of the period of investigation.  The United States having 
changed its mind, it must be assumed that it is abandoni ng the argument set forth in its first submission.  
Mexico also refers to its response to question 2 posed  by the Panel.  The United States' reply to this 
question is that there is no consistent approach in Mexican practice with respect to the establishment of a 
period of investigation.  Mexico stresses that, on aver age, there are about 10 months between periods of 
investigation and the initiati on of its investigations. 
4.320  In the investigations on partia lly hydrogenated fatty acid and triple-pressed stearic acid, the 
periods investigated used data that were 10 months  old, which demonstrates the consistency with which 
Economía determines periods of investigation.  On the other hand, the period did not necessarily have to 
be the same in both cases, since periods of investiga tion should be consistent with the circumstances of 
each case.  When a petitioner suggests a period of inv estigation, the investigating authority therefore 
determines whether or not it is appropriate.  (c) Economía complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement regarding the 
establishment of the period of analysis  
4.321  With regard to the comparable periods within th e period of analysis, Mexico's comparison, for the 
purposes of injury analysis, between the periods March-August of 1997, 1998 a nd 1999 was carried out in 
an objective manner and on the basis of positive evid ence.  Mexico reiterates that (as any other 
WTO Member) it does not have complete freedom to do whatever it wants, but it does have discretion to 
establish the period of analysis that it deems most appropriate, provided that it does so in a manner consistent with the AD Agreement. WT/DS295/R 
Page 50   4.322  The United States held that Mexico breached Ar ticle 3.5 of the AD Agreement because Mexico 
failed to consider half of the peri od of investigation and to explain wh y it was not relevant.  Mexico finds 
no link between the period of investig ation and Article 3.5 of the AD Agreement, given that this provision 
relates to the period of injury analysis.  Moreover, Me xico did consider all the information relevant to the 
dumping analysis within the period of investigation. 
4.323  Mexico submits that the use of comparable peri ods eliminated any distortions that might have 
occurred in the injury analysis. 
4.324  Mexico fails to understand why the United States considers that Mexico had no idea what the 
state of the industry was over the course of the peri od of investigation, even though it examined all the 
information for the period investigated and compared it in its entirety
 with the data for previous 
comparable periods within the period of analysis.  No w, if the United States is referring to the fact that 
Mexico had no knowledge of the state of the domes tic industry because its injury analysis did not 
encompass all three years in question, Mexico directs th e Panel to its replies to questions 3 and 4 of the 
Panel relating to the first substantive meeting. 
4.325  Mexico repeats that it complied with Article 6. 2 del AD Agreement, since it gave the parties 
every opportunity to defend their interests.  Th e United States is seeking to place on Mexico the 
obligation to analyse information that was not part of the anti-dumping investigation. 
(d) Economía conducted its injury analysis in a manner consistent with Articles 3.1, 3.2, 3.4, 3.5, 6.8 
and 12.2 and Annex II of the AD Agreement 
4.326  As regards the alleged breaches of Articles 3.1, 3. 2, 3.4, 3.5, 6.8 and 12.2 and Annex II of the 
AD Agreement, Mexico examined the data for the entire period of investigation and not only half of the 
data, since the period investigated c overed the period March to August 1999. 
4.327  Turning to the United States' argument concerning the failure to collect evidence on price effects 
and volumes, Mexico refers to its reply on the subject  in its first written submission and maintains that it 
did conduct its injury analysis in an objective manne r, on the basis of positive evidence.  So far, the 
United States has failed to prove the contrary. 
4.328  Economía does not have physical possession of the pedimentos , which are brought to the 
knowledge of the investigating authority when pe titioners produce them as evidence.  The fact of 
requesting and awaiting the reception of such documen ts would delay the initiation of an investigation 
even further.  Hence, the investigating authority relies on the list of pedimentos . 
4.329  In respect of the claim in paragraph 51 of the United States' Answers , there are cases in which the 
pedimentos  are produced by the petitioners, since there are agreements to that effect between certain 
chambers or associations and the Ministry of Finan ce and Public Credit, as provided for in Article 144, 
paragraph XXVI,32 of Mexico's Customs Law.  This does not mean that the Mexican Rice Council (CMA) 
concluded any such agreement or that it was under the obligation to do so. 
                                                      
32 "Article 144.  The Ministry [SHCP] shall, in addi tion to the powers conferred on it under the Tax Code of 
the Federation and other laws, have discretion to: 
... XXVI.-  Release the information c ontained in the pedimentos to Industrial Chambers and Industry 
Associations grouped in Confederations, as pr ovided in the Law of Business Chambers and 
Confederations thereof, that participate with the Tax Administration Service in the Program on Customs and Tax Control by Industrial Sector.  Sim ilarly, it may release to taxpayers information 
in the pedimentos pertaining to any operations performed by them. ... ."
  WT/DS295/R 
 
  4.330  The United States has not demonstrated why it contends that Economía's failure to seek 
information from the purchasers of the merchandise under investigation constitutes a breach of the 
AD Agreement.  Moreover, it points out that it did not suggest that the questionnaire be sent to all 
purchasers;  the opposite emerges from its first submi ssion, however.  The United States thus appears to 
be seeking to partly modify its argument, which should therefore be dismissed. 
4.331  The United States argues in its Opening Statement  that Article 6.1.1 of the AD Agreement refers 
only to the time frame for exporters to respond to ques tionnaires, and fails to mention that this time frame 
applies solely to exporters that have received the ques tionnaire.  On this matter, Mexico directs the Panel 
to its first written submission. 
4.332  The United States puts a tendentious interpreta tion on the AD Agreement, making only partial 
reference to it and establishing non-existent linkages be tween its provisions.  Mexico did not say that its 
interpretation of AD Agreement Article 6.1.1 nu llified the obligation laid down in AD Agreement 
Article 3.1.  It established the regulatory scope of Ar ticle 6.1.1 and concluded th at neither this provision 
nor Article 3.1 had been breached. 
4.333  Concerning the analysis of the significant increase in the volume of dumped imports and 
significant price effects, Mexico refers the Panel to  paragraphs 114 to 117 of its  first written submission. 
4.334  The United States alleges that Mexico did not c onduct an objective analysis of certain factors 
listed in Article 3.4 of the AD Agreement.  Mexico re fers the Panel to its argum ents in paragraphs 118 to 
122 of its first submission.  The United States also places on Mexico the non-existent obligation to collect 
data for the period subsequent to the period of inv estigation.  In so doing, it makes yet another baseless 
allegation of violation of the AD Agreement. 
4.335  As regards paragraph 37 of the United States' Opening Statement , Mexico refers the Panel to 
paragraph 124 of its first written submission. 
4.336  In response to paragraph 10 of the United States' Answers , Mexico refers to its written replies to 
questions 3 and 4 of the Panel relating to the firs t substantive meeting, and repeats that Economía 
gathered data for each month be tween January 1997 and December 1999. 
4.337  The United States asserts that Mexico gathered no additional injury data after initiating its 
investigation.  According to Mexico, this is not incons istent with the AD Agreement.  In addition, this is 
an argument that was not raised in the consultations or included in the panel request or the first written 
submission of the United States, in violation of Artic les 4.5 and 4.7 of the DSU and Article 17.4 of the 
AD Agreement.  It should therefore be dismissed. 
4.338  In paragraph 12 of its Answers , the United States contends that Economía did not act in an 
objective and impartial manner, because at least half of domestic production occurred during the 
September-February time frame, and yet Economía set the months of March to August as the period of 
investigation. 
4.339  Firstly, the fact that at least half of domestic production occurred during the September to 
February period does not affect the impartiality and objec tiveness of the injury anal ysis, since the analysis 
covered the same periods of each year.  In other word s, the comparison was not between half of domestic 
production and all imports for an entire year.  Sec ondly, the domestic producers argued that the imports 
were concentrated over the months of March to August,  but this occurred, to a negligible extent, only in 
the years 1998 and 1999 a nd consequently, Economía accepted that peri od.  In addition, no one raised any 
objections or proposed any other time frame.  Mexico refers the Panel to its first written submission, 
which explains in detail why use of the months of March to August of each year does not contravene the 
AD Agreement.  The United States' argumen t is therefore entirely without basis. WT/DS295/R 
Page 52   4.340  The United States claims in its Answers  that the problems arising from an examination of only 
partial year data "are particularly acute when the domestic industry has production during all 12 months 
of a year" and that in order to comply with Ar ticles 3.1, 3.4 and 4.1 of the AD Agreement, the 
investigating authority must examine the impact of  the dumping on the domestic industry over a full-year 
period.  The United States bases its claim on Article 4. 1 of the AD Agreement, which was not the subject 
of consultations or included in its pa nel request or its first submission, in breach of Articles 4.5 and 4.7 of 
the DSU and Article 17.4 of the AD Agreement.  Mexico accordingly requests that the claim be 
dismissed. 
4.341  Moreover, seasonality being irrelevant , one segment of a given year is identical in structure to any 
other segment of that same year.  The selection of the period has no implications in terms of comparability. Even if seasonality were an issue, the structure would be the same for a comparison of the 
same periods of each year.  Thus, Mexico holds that th e claim set out in paragraph 13 of the United States' 
Answers  is entirely without merit. 
4.342  Furthermore, Mexico does not bear the burden of proving that Articles 3.2 and 3.4 of the 
AD Agreement explicitly permit it to take the action it did.   It is for the United States to demonstrate that 
Mexico acted in a manner inconsistent with the AD Agreement.  Since the United States has provided no 
evidence in support of its arguments nor has it made a prima facie  case, Mexico requests that its claims in 
this regard be dismissed. 
4.343  In paragraph 19 of its Answers , the United States says that Article 4.1 of the AD Agreement 
requires an investigating authority to examine the dom estic industry "as a whole" or those producers that 
constitute a "major proportion of total domestic production", and that because Economía examined 
production for half of each year, there was no way for it to be certain that it was complying with Article 4.1.  The United States once again introduces a cl aim that was not the subject of consultations or 
mentioned in any subsequent document, in violation of Articles 4.5 and 4.7 of the DSU and Article 17.4 
of the AD Agreement.  This claim should therefore be dismissed. 
4.344  Firstly, Article 4.1 of the AD Agreement does not provide grounds for the United States' 
assertions.  Article 4.1 specifies that  the investigation should include ev ery domestic producer but not that 
it should encompass production for all months of the year.  Secondly, the United States loses sight of where the burden lies in asserting that there was no way for Economía to be certain that it was complying 
with Article 4.1.  The United States ought to produce ev idence of its assertion, rather than expect Mexico 
to prove that its argument is without merit.  In addition to the United States' argument not being sufficient to establish a prima facie  case that Mexico violated the AD Agreemen t, the fact that it was not raised in 
the consultations or included in any subsequent document gives Mexico cause to request that it be 
dismissed. 
4.345  As to the United States' argument in paragraph 20 of its Answers , Mexico refers the Panel to its 
reasoning in paragraphs 84 to 88 of its first written submission. 
4.346  Concerning paragraphs 21 to 23 of the United States' Answers , it should first be pointed out that 
the United States once again introduces new arguments based on Article 4.1 of the AD Agreement, which 
was not the subject of consultations or included in an y subsequent document, in breach of Articles 4.5 and 
4.7 of the DSU and Article 17.4 of the AD Agreement.  Secondly, the United States makes bald assertions 
with no underlying reasons.  Its complaint should therefore be dismissed.  Thirdly, Mexico emphasizes that its injury analysis of economic factors and i ndices relating to the domestic industry involved a major 
proportion of the industry at all times.  The reasons for not considering the same subset of producers in the analysis of each injury factor we re that there were producers that fa iled to provide the appropriate data 
or verifiable information, or they were no longer in operation.  This is not a violation of Article 4.1 or 
Article 3.1 of the AD Agreement and, as Mexico stated earlier, the United States does not adduce 
evidence in support of its claim.  WT/DS295/R 
 
  4.347  With respect to the United States' claim in paragraph 27 of its Answers  regarding the modification 
of tariff heading 1006.30.01, Mexico emphasizes that th e United States yet again puts forward arguments 
that were included neither in its request for consu ltations nor in any subsequent document, which is 
contrary to Articles 4.5 and 4.7 of the DSU and Artic le 17.4 of the AD Agreement.  They should therefore 
be dismissed. 
4.348  Moreover, the modification introduced on 18 Ma y 2001 applied as of that date and was not 
applicable to the earlier data.  Since the informati on considered in the investigation on long-grain white 
rice pre-dated 18 May 2001, the modification had no impact  on the data considered in the investigation. 
4.349  Regarding paragraph 32 of the United States' Answers , Mexico refers the Panel to paragraphs 93 
and 94 of its first written submission, in which it explains why it was unable to use the pedimentos  and 
demonstrates that such action is not inconsistent  with the WTO Agreements.  In addition, it was 
impracticable to separate out the imports of long-grain white rice on the basis of the pedimentos . 
4.350  It is odd that the United States should argue that, for the purpose of determining the volume of 
imports of long-grain white rice, it is  necessary to separate out all type s of rice other than long-grain white 
rice that come under the same tariff heading in order to ascertain, by process of elimination, the volume 
corresponding to the imports at issue.  This is impr actical, and Economía therefore considered that the 
best method of identifying the volumes corresponding to long-grain white rice was to do so directly and not by process of elimination, as stated in paragraph 231 of the determination.  In view of the foregoing, 
Mexico holds that the United States' argum ents are no more than idle speculation. 
4.351  The United States contends that the table and argum ents in paragraphs 60 to 62 of Mexico's first 
written submission were prepared for the purposes of this dispute.  It is not true that the table does not 
appear in the administrative record.  The data lis ted in the table were provided by the CMA in its 
application for the investigation, the responses to the notice issued by Economía and the replies to 
requests for information.  Since that information was not challenged, Economía regarded it as valid.  
Consequently, Mexico repeats that the United States' assertions regarding the inclusion of the table in the 
administrative record are irrelevant. 
4.352  As to the United States' argument regarding Covadonga 's prices and the fact that Economía failed 
to explain the causal relationship between the dumpe d imports from the United States and those prices, 
Mexico observes that the United States once again makes claims that were not part of the consultations or 
included in subsequent documents, wh ich is contrary to Articles 4.5 a nd 4.7 of the DSU and Article 17.4 
of the AD Agreement.  Mexico accordingly request s the Panel to dismiss these claims.  The above 
notwithstanding, Mexico emphasizes that Covadonga  was the only
 enterprise in the entire domestic 
industry that apparently  displayed "different" behaviour.  As detailed in paragraph 286 of the final 
determination, however, the extent of the difference wa s practically negligible and the industry as a whole 
nevertheless recorded adverse performance. 
4.353  Concerning paragraph 36 of the United States' Answers , Mexico responded that "... it is not said 
that even if all the pedimentos  had been available it would have been possible to determine with certainty 
the total amount of imports of the subject product ... " and went on to develop a series of arguments in that respect.  The United States' claim is therefore totally unfounded.  In this connecti on, Mexico refers to its 
written reply to question 15 of the Panel in relation to the first substantive meeting. 
4.354  The United States loses sight of certain aspects in its response to question 18 of the Panel asking 
it to provide more information on the USA Rice Federation  and to indicate the number of producers it 
represents.  The United States replied to both queries but in so doing added a further argument against 
Mexico that was not included in the request for cons ultations or in any sub sequent document and should 
therefore be dismissed.  The United States cont ends that Economía could have contacted the 
USA Rice Federation to obtain information on the US firms.  Had Mexico taken such a course of action, it WT/DS295/R 
Page 54   would have violated Article 5.5. of the AD Agreement.  The United States' argument is therefore without merit. 
4.355  The United States submits that Economía looked at all imports from the United States and not just 
the dumped imports in evaluating whether import levels  had increased during the period of investigation, 
and that it based its conclusions  only on data from the exporter Farmers Rice .  Paragraph 217 of the final 
determination contains merely descriptive information, and it is therefore not valid to infer therefrom that 
the dumped imports were not taken into account.  With  regard to its having considered only data from 
Farmers Rice , Mexico refers the Panel to  paragraphs 205, 228, 229 and 230 of the preliminary ruling and 
paragraph 270 of the final determination. 
4.356  As to Economía having compared the fall in domestic prices to the fall in prices of all imports and 
not just of the dumped imports, including the prices of Farmers Rice  and Riceland , Mexico refers the 
Panel to paragraph 269 of the fi nal determination and paragraph 248 of the preliminary ruling. 
4.357  While it is true that the share of the dumped impor ts did not increase in relative terms, this is not 
decisive evidence for concluding that there was no in jury to the domestic industry, since the injury 
analysis should be comprehensive.   Furthermore, although the dumped imports did not rise in terms of 
relative share, they did
 show an increase in absolute terms, as stated in paragraph 244 of the final 
determination. 
(e) Article 5.8 of the AD Agreement is not applicable to firms with margins of dumping of 
zero per cent 
4.358  With respect to the argument relating to Article  5.8 of the AD Agreement, Mexico refers the 
Panel to the considerations set out in paragr aphs 131 to 137 of its first written submission. 
4.359  In paragraph 41 of its Opening Statement , the United States observes that, as the WTO 
Appellate Body held in pa ragraph 118 of its report in US – Hot-Rolled Steel , the term "margin" refers to 
the "individual margin of dumping determined for each  of the investigated exporters and producers".  
Thus, the United States argues that Article 5.8 of the AD Agreement refers to termination of the 
investigation for individual firms.  The United St ates is mistaken in its interpretation.  In EC – Bed Linen , 
which constitutes the basis for the Appellate Body's reasoning in paragraph 118 cited above, the Appellate 
Body refers to the fact that the term "margins" s hould reflect a comparison that is based upon examination 
of all of the relevant home market and export market transactions, and that it should be calculated for each 
individual firm.  The Appellate Body thus describes only what the calculation of a margin of dumping should include, without referring to the scope of the term "margin" as it appears in Article 5.8 of the 
AD Agreement.  On the other hand, Article 3.3 of the AD Agreement speci fies that the basis for 
calculating margins of dumping in accordance with AD Ag reement Article 5.8 applies to each country as 
a whole.  Hence Article 5.8 does not establish that firms with de minimis  margins of dumping should be 
excluded from the measure but that the investigation is to be terminated where the investigating authority 
concludes that the margin of dumping is de minimis – a determination that must be made for each country 
as a whole and not on a firm-specific basis. 
4.360  In view of the foregoing, there are no grounds fo r the United States to assert that certain firms 
should not be subject to the measure and should be exempt from subsequent review. 
(f) Mexico applied the facts available to US producers and exporters in a manner consistent with the 
AD Agreement 
4.361  Turning to the claim in paragraph 44 of the United States' Opening Statement , Mexico emphasizes 
that it has never made the assertions attributed to it by the United States.  WT/DS295/R 
 
  4.362  The statement in paragraph 46 of the United States' Opening Statement  is an a priori  premise 
without substance.  Mexico refers the Panel to the response it gave in its first written submission 
concerning the Articles mentioned by the United States. 
4.363  Mexico's first written submission already responds to the claim made by the United States in 
paragraph 47 of its Opening Statement.  
4.364  The claim in paragraph 48 of the United States' Opening Statement  relies on a partial citation of 
Article 6.10 of the AD Agreement.  On this matter, Me xico refers the Panel to paragraph 141 of its first 
written submission. 
4.365  The United States specifies what steps an investig ating authority should s upposedly take in order 
to calculate a dumping margin based on the facts availabl e and submits that if these steps are not taken the 
margin should be calculated in accordance with Artic le 9.4 of the AD Agreement.  Mexico is under no 
obligation to conduct its investigations in the manner indicated by the United States.  On this matter, 
Mexico refers the Panel to paragraphs 138 to 181 of its first written submission. 
4.366  The United States also alleges that Mexico did limit its examination to a reasonable number of 
interested parties and ought therefore to have a pplied an "all others" dumping margin calculated in 
accordance with Article 9.4 of the AD Agreement.  The United States thus accepts by implication that 
Article 9.4 of the AD Agreement applies only where th e examination is limited.  Consequently, if the 
United States fails to demonstrate that Mexico limite d its examination in accordance with Article 6.10 of 
the AD Agreement, its argument should be dismissed. 
4.367  The United States advances a number of reasons in  support of the foregoing.  On this matter, 
Mexico refers the Panel to paragr aphs 138 to 181 of its first written submission and emphasizes that none 
of these "reasons" affords valid grounds for the United States' claim.  Thus, since it did not limit its examination, Mexico was under no obligation to calcu late "all others" margins in conformity with 
Article 9.4 of the AD Agreement. 
4.368  As to the claim in paragraph 53 of the United States' Opening Statement , Mexico refers the Panel 
to paragraphs 163, 164, 171 and 172 of its first written submission. 
4.369  Lastly, in paragraph 54 of its Opening Statement , the United States submits that Mexico failed to 
respond to the following complaints: 
 (a) That Mexico's treatment of Producers Rice  was inconsistent with  paragraph 7 of Annex 
II of the AD Agreement.  On this point, Mexi co refers the Panel to paragraph 164 of its 
first written submission. 
  (b) That Mexico breached Article 6.6 of the AD Agreement by failing to satisfy itself that 
the list of known exporters was accurate and comp lete.  On this point, Mexico refers the 
Panel to paragraph 152 of its  first written submission. 
  (c) That Mexico breached Articles 6.2 and 6.4 of the AD Agreement by failing to provide 
the US exporters with the pedimentos that it gave to the Mexican industry.  Mexico 
insists that its first written submission must be  read as a whole.  In addition, paragraphs 
41 and 42 of the final determination show  that information was sought from the 
petitioners, which sent a copy of pedimento de importación  3035 8000812 with the 
corresponding invoice.  Thus, the United States' claim is unfounded since the documents WT/DS295/R 
Page 56   
it refers to are in the investigation file
33 and were available to the parties.  This matter 
was dealt with in paragraphs 93 and 94 of Mexico's first written submission. 
  (d) That Mexico has not denied that the marg in contained in the petition was "adverse".  On 
this point, Mexico refers to its written answer  to question 25 of the Panel in relation to 
the first substantive meeting, in whic h Mexico stated that whether or not Producers Rice.  
cooperated bears no
 relationship to the fact that a facts-available dumping margin was 
calculated for that firm, since Article 6. 8 of the AD Agreement stipulates that its 
provisions apply when a party does not provide the necessary information.  Economía therefore applied paragraph 1 of the Annex. 
  (e) That Mexico has not denied that it breached Article 12.1 of the AD Agreement by failing 
to give notice to the parties.  On this point , Mexico refers the Pane l to paragraphs 155 to 
157 of its first written submission. 
  (f) That Mexico's determination is inconsiste nt with Article 12.2 of the AD Agreement.  
Mexico answered this claim in paragraph 177 of its first written submission.  Mexico 
insists that it is for the United States to submit proof of its assertion in order to make a prima facie  case, rather than expect Mexico to do so in its capacity as defendant. 
 4.370  In its Answers , the United States raised a number of arguments that have a bearing on the issues 
discussed here. Mexico responds to these arguments in the paragraphs below. 
4.371  Concerning paragraphs 28 to 31 of the United States' Answers , it cannot be inferred from the 
petition that the prices taken by the petitioners to calculate the normal value correspond to rice with a 
higher price than that used in reckoning the export price.   It is therefore incorrect to say that Economía's 
intent was to increase the margin of dumping.  Mo reover, Economía took the appropriate action since 
there were no objections to the calculations proposed by the petitioner. 
4.372  With respect to paragraphs 38 to 41 of the United States' Answers , Mexico refers to its written 
answer to question 16(a) posed by the Panel in  relation to the first substantive meeting. 
4.373  In paragraph 39 of its Answers , the United States claims that there is no basis for limiting the 
obligation to send a copy of the petition only to  those exporters known to the petitioner if the 
investigating authority knows of other exporters .  Mexico submits that the investigating authority relies on 
exporters identified by the petiti oners and, if it knows no others , must send the petition to those exporters 
alone. 
4.374  In paragraph 41 of its Answers , the United States contends that China's interpretation (as indeed 
Mexico's interpretation of Article 6.10 of the AD Agreement) is illogical because it would create an 
incentive for petitioners to under-report the range of known exporters.  In this connection, Article 6.1.3 of 
the AD Agreement seeks to avert such  a situation in laying down an obligation for the investigating 
authority to send the petition to the authorities of the exporting country .  For the above reasons, Mexico 
holds that the United States' interpretation is entirely unfounded. 
4.375  According to paragraph 42 of the United States' Answers , the issue before the Panel is whether 
Mexico was bound under the AD Agreement to take cer tain steps in conducting its investigation and 
whether it failed to take them.  The United States evades the Panel's question without explaining the 
practical effect of its assertions.  The issue before the Panel is not that indicated by the United States.  The 
issue to be addressed is whether the AD Agreemen t sets rules on the subject, whether or not the 
United States is right in its interpretation regarding th e obligations of an investigating authority, whether 
                                                      
33 Administrative file of the anti-dumping investigation concerning long-grain white rice 07/00, confidential 
version, Volume 20, Folio 0103882.  WT/DS295/R 
 
  its interpretation is the only permissible one and whet her Mexico acted in a manner that cannot be treated 
as a permissible interpretation.  Since the AD Agreemen t does not establish clear rules, its provisions have 
to be interpreted.  The United States fails to expl ain why Mexico's practice "is unreasonable" and when 
the Panel draws its attention to the matter it merely skirts the question. 
4.376  In response to the United States' argum ents in paragraphs 43 to 49 of its Answers , Mexico stresses 
that the United States is seeking to impose on Mexico its administrative practice and its interpretation of 
various provisions of the AD Agreement, in breach of Article 17.6 of the AD Agreement. 
4.377  The questionnaires can be obtained from Economía's web site, so the United States' claim in 
paragraph 45 of its Answers  is unfounded.  Mexico emphasizes that in various investigations US exporters 
have known of the investigation and have appeared before the Mexican authority.  It is common practice 
for officials of the United States' Embassy to forwar d notices of initiation of an investigation to their 
exporters, which are not barred from participating in the investigati on.  The anti-dumping investigation 
concerning United States' exports of bovine meat  and edible offal provided evidence of this. 
4.378  As to paragraph 49 of the United States' Answers,  Mexico refers the Pane l to paragraph 112 of its 
first written submission, in which it explains  why the United States' claim is unfounded. 
2. Complaints relating to the Foreign Trade Act and Article 366 of the Federal Code of Civil 
Procedure 
(a) Article 53 
4.379  As demonstrated in paragraphs 218 to 221 of Mexico's first written submission, the time-limit set 
in Article 6.1.1 of the AD Agreement and Article 12. 1.1 of the SCM Agreement applies only to foreign 
producers and/or exporters who have been sent th e questionnaire, that is, those that are known. 
4.380  Both the AD Agreement and the SCM Agreement est ablish a period of 37 days for exporters or 
foreign producers to reply to the questionnaires.  T hus, the period allowed by the Foreign Trade Act is 
longer (28 working days) than that provided by th e Agreements, meaning that the Foreign Trade Act 
affords greater opportunities for defence.  This was demonstrated in paragraph 228 of Mexico's first 
written submission. 
4.381  If the period of 37 days were granted to any interested party that presented itself after the 
initiation of the investigation, the ensuing delay w ould entail non-observance of the time-limits prescribed 
in Article 5.10 of the AD Agreement and Article 11.11 of the SCM Agreement.  The above is in line with paragraph 33 of the report of  the Appellate Body in US – Hot-Rolled Steel.  
(b) Article 64 
4.382  Most of the United States' arguments challenging the provision of the Foreign Trade Act in 
question are based on the allegation that Mexico h as misconstrued the WTO provisions.  That only goes 
to show that the United States has based its argumen t on mere suppositions that are devoid of substance. 
4.383  The United States submits that Mexico cites only pa rt of Article 6.8 of the AD Agreement without 
referring to Article 6.1 and paragra ph 1 of Annex II of the AD Agreement.  Mexico cited Article 6.8 of 
the AD Agreement properly and showed in paragraph 240 of its first written submission that Article 64 of 
the Foreign Trade Act is consistent with the AD Agreement for the following reasons (which apply 
equally to Article 12.7 of the SCM Agreement): 
 (a) It allows the investigating authority to calculate margins of dumping for parties that do 
not provide the necessary information, as upheld by the Appellate Body in paragraph 119 of its report on US – Hot-Rolled Steel
. WT/DS295/R 
Page 58     (b) If an interested party does not appear in  the investigation or had no exports during the 
period of investigation, then  that exporter will not provide
 the necessary normal value 
and export price data. 
  (c) In such cases, the investigating authority  may calculate the margin of dumping on the 
basis of the facts available. 
 (d) Article 64 of the Foreign Trade Act thus stipulates that margins of dumping are to be 
calculated on the basis of the facts availabl e for parties that do not appear in the 
investigation or have no exports dur ing the period of investigation. 
 4.384  Article 6.1 of the AD Agreement was not the subject of consultations, and Mexico therefore 
requests the Panel to disregard it.  Furthermore,  the United States has not explained why it deems 
Article 64 of the Foreign Trade Act to be incons istent with Article 6.1 of the AD Agreement. 
4.385  Article 64 of the Foreign Trade Act is not inc onsistent with Annex II of the AD Agreement, as 
has already been demonstrated in paragraphs 246 to 252 of Mexico's first written submission. 
4.386  The United States contends in paragraph 70 of its Opening Statement  that Article 64 of the 
Foreign Trade Act is inconsistent with Article 9. 4 of the AD Agreement because it requires Mexico to 
apply a margin calculated on the basis of the facts av ailable to firms that should have received an "all 
others" margin.  Mexico refers th e Panel in this connection to para graphs 241 to 245 of its first written 
submission. 
4.387  As to the allegation that Article 64 is inconsis tent with Article 9.5 of the AD Agreement and 
Article 19.3 of the SCM Agreement, the United States asserts that the investigating authority is required 
to apply the highest margin of dumping to firms with  no shipments and that where such firms are "deemed 
to have been investigated", they are "subject to an ti-dumping duties" and are not eligible for new shipper 
review.  The interpretation the United States puts on the above-mentioned Articles of the AD Agreement and the SCM Agreement is absurd and contradicts its  own administrative practice.  If one were to accept 
the United States' assertion, an "all others" margin calculated in accordance with Article 9.4 of the 
AD Agreement would likewise prevent firms with no shipments from applying for a new shipper review. 
4.388  Article 64 of the Foreign Trade Act does not prev ent foreign producers or exporters that made no 
shipments during the period of investigation from seeki ng a new shipper review, provided that they fulfil 
the requirements of Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement.  Indeed, on 
the request of a US exporter, after the revision of th e Foreign Trade Act had taken effect, Mexico initiated 
a new shipper review.
34 
(c) Article 68 of the Foreign Trade Act 
4.389  In paragraph 76 of its Opening Statement , the United States cites Article 5.8 of the 
AD Agreement and Article 11.9 of the SCM Agreement in  alleging the inconsistency of Article 68 of the 
Foreign Trade Act with the WTO Agreements.  With re gard to the United States' interpretation of Article 
5.8 of the AD Agreement – particularly the scope of the word "margin" – Mexico has the following 
comments.  Article 5.8 of the AD Agreement does not establish that firms that are not dumping must be excluded from the measure.  The Article says that th e investigation must be terminated where the 
investigating authority determines that the margin of dumping is de minimis , and the margin is to be 
                                                     
 
34 Resolution accepting the application of the interested party and declaring initiation of the new shipper 
procedure, pertaining to the final determination on imports of dessert apples of the varieties Red Delicious and its 
mutations and Golden Delicious, currently classified under heading 0808.10.01 of the Tariff established under the 
General Import and Export Duty Law, originating in the Un ited States, regardless of the country of provenance.  
Published in the Official Journal of the Fe deration (DOF) of 21 October 2003 (Exhibit MEX-12).  WT/DS295/R 
 
  determined for the country as a whole and not firm by  firm, pursuant to Article 3.3 of the AD Agreement 
and Article 15.3 of the SCM Agreement.  There are thus no grounds for alleging that some firms should 
not be subject to the measure and are hence exempt from subsequent review. 
4.390  As to the representative volumes required by Article 68 of the Fore ign Trade Act, and in response 
to paragraphs 76 to 81 of the United States' Answers , Mexico affirms once again that representative export 
volumes are not a requirement for the initiation of a re view, and refers the Panel to paragraphs 262 to 266 
of its first written submission. 
4.391  Mexico emphasizes that the United States interprets  to suit its own ends the resolution that it 
offers as evidence, since nowhere does the text of the resolution
35 mention the representativeness of 
import volumes as a requirement for initiation of the review.  What the resolution does contain is an analysis of import volumes derived from the fact that the review applicants supplied such information.  
The dumping analysis is to be found in paragraphs 46 and 47 of the resolution. 
4.392  Moreover, there is no evidence in the resolution that the application for review was rejected 
because it did not fulfil the representativeness requirement .  It was rejected for other reasons, which are 
detailed in paragraph 95 of the resolution. 
(d) Article 89D of the Foreign Trade Act 
4.393  According to paragraph 79 of the United States' Opening Statement , Mexico alleged that the 
WTO Agreements establish no obligation in respect  of the requirement to show representativeness 
prescribed in Article 89D of the Foreign Trade Ac t – an argument that Mexico did not adduce.  
Furthermore, the United States repeats that Article 89D  of the Foreign Trade Act applies only to foreign 
producers and not to exporters, and that producers ar e required to demonstrate that the exports were 
representative. 
4.394  With regard to the first of those claims, in its Opening Statement  the United States overlooks the 
argument in paragraphs 268 and 269 of Mexico's first written submission, which refers to Article 2 of the 
Foreign Trade Act and the fact that the Act must be considered as a whole and not
 in isolation when 
determining whether or not its provisions are incons istent with the WTO Agreements.  Mexico also 
indicates that in the case of unfair international trade practices by WTO Members, it applies anti-dumping and countervailing duties as provided for in Ar ticle VI of the GATT 1994 and in the AD and 
SCM Agreements. 
4.395  In order to disprove the United States' allegation,  Mexico refers the Panel to Article 47 of the 
Foreign Trade Act Regulations, which establishes how th e buying cost is to be determined for exporters, 
i.e. trading enterprises. 
4.396  Mexico has conducted new shipper reviews both for foreign producers and for exporters on the 
basis of Article 47 of the Foreign Trade Act Regula tions, proof of which is the resolution initiating the 
new shipper procedure concerning imports of apples from the United States,
36 paragraph 19 of which 
establishes that the provisions of the Foreign Trade Act Regulations that govern ordinary procedures – 
which include Article 47 mentioned a bove – apply to the new shipper procedure.  Thus, the provisions of 
the Foreign Trade Act Regulations that apply to new shipper reviews are those set forth in Titles IV and 
                                                      
35 Resolution declaring initiation of the review of the definitive anti-dumping duties imposed on imports of 
dessert apples of the varieties Red Delicious and its mu tations and Golden Delicious, currently classified under 
heading 0808.10.01 of the Tariff established under the Gene ral Import and Export Duty Law, originating in the 
United States, regardless of the country of provenance.  Published on 21 October 2003 in the Official Journal of the 
Federation (DOF) (first section), page 16 (Exhibit MEX-13). 
36 Ibid.  Supra footnote 21. WT/DS295/R 
Page 60   VI thereof.  Furthermore, paragraphs 3 and 32 of the resolution show that a new shipper review was 
initiated at the request of an exporting firm, which invalidates the United States' claim. 
4.397  With regard to the second claim, Mexico stresses that representativeness is a requirement not for 
initiating a new shipper review but for the determinati on of an individual margin of dumping or subsidy, 
this being for economic reasons.  Thus, although Article 9.5 of the AD Agreement and Article 19.3 of the 
SCM Agreement do not expressly so provide, given the context and the object and purpose of the Agreements it is natural and logical to request that  a new shipper's volume of exports during the review 
period be representative. 
4.398  Concerning paragraphs 82 to 84 of the United States' Answers , Mexico explains that paragraph 16 
of the resolution initiating the above-mentioned new shi pper procedure states that " … a review shall be 
carried out promptly to determine the individual ma rgin of price discrimination for the exporters or 
producers  … provided that the said exporters or producers demonstrate that they have carried out export 
operations in representative volumes … " (emphasis added).  Consequently, the representative volume 
requirement is for determining the individual margin  of dumping and not for initiating of a new shipper 
review. 
(e) Article 93.V of the Foreign Trade Act 
4.399  The United States argues in paragraphs 82 and 83 of its Opening Statement that Article 93.V of 
the Foreign Trade Act is inconsistent w ith the WTO Agreements because it requires  the investigating 
authority to apply the fines established therein.  In re buttal, Mexico refers the Panel to paragraphs 274 to 
282 of its first written submission, which specifies that in interpreting the context of Article 93.V of the 
Foreign Trade Act account should be ta ken of Article 2 of the Foreign Trade Act, which stipulates that the 
Foreign Trade Act must be applied in a manner consiste nt with the international treaties to which Mexico 
is party. 
4.400  In paragraph 84 of its Opening Statement , the United States asserts that the language of 
Article 93.V is enough to show that Mexico lacks the discretionary authority to impose the fines.  Mexico refers the Panel in this connecti on to paragraphs 283 to 286 of its fi rst written submission.  It should 
likewise be pointed out that Article 93.V of the Fore ign Trade Act establishes that the fines are to apply 
"when ... it is deemed probable that [the imports] unde rmine the remedial effect of the countervailing duty 
… ".  Thus, Economía has discretion as to whether or not the fines are to be applied. 
(f) Article 366 of the FCCP and Articles 68 and 97 of the Foreign Trade Act 
4.401  With regard to the United States' claim that Artic le 366 of the FCCP is inconsistent as such with 
the WTO Agreements, Mexico repeats what it said in paragraph 297 of its first written submission, i.e. 
that the Article does not apply directly to the subj ect-matter or the procedures regulated by the Foreign 
Trade Act.  The United States notes in this context that the very fact of attaching the text of Article 366 of 
the FCCP to its first written submission is enough to demonstrate the scope and meaning of its provisions. 
 On this point, Mexico refers the Panel to paragra phs 293 to 299 of Mexico's fi rst written submission, and 
note in addition that the United States must prove its claim prima facie . 
4.402  In paragraph 87 of its Opening Statement , the United States observes th at Mexico did not contest 
the allegation that Articles 68 and 97 of the Forei gn Trade Act breach Article 11.2 of the AD Agreement 
and Article 21.2 of the SCM Agreement.  Mexico wishes to  clarify that its rebuttal of this claim is to be 
found in paragraphs 300 to 303 of its  first written submission.  The United States misinterprets Mexico's 
arguments.  Indeed, by waiting for the duties to be c onfirmed in order to carry out a review of them, 
Mexico is securing and safeguarding the interests of the parties, sparing them any possible injury.  This is 
borne out by the fact that applicants that challenge  the final determination are not required to pay any 
duties pending the resolution of their case, and are asked only for a surety to cover the duties, pursuant to 
Article 98.III of the Foreign Trade Act.  WT/DS295/R 
 
  4.403  As to the United States' argument in paragraph 92 of its Opening Statement , Mexico emphasizes 
that although in its Semi-Annual Re port Mexico reported the conclusion of an anti-dumping investigation 
concerning beef with the application of "definitive duties", this does not
 imply that the duties were 
confirmed.  The US exporters brought challenge pro ceedings and accordingly provided sureties in respect 
of the imports they have effected in recent years,  pursuant to Article 98 of the Foreign Trade Act. 
4.404  Concerning the alleged inconsistency of Artic les 68 and 97 of the Foreign Trade Act with 
Article 9.3.2 of the AD Agreement, Mexico reiterat es what it said in paragraph 304 of its first written 
submission. 
4.405  With respect to the alleged inconsistency of Articles 68 and 97 of the Foreign Trade Act with 
Article 9.5 of the AD Agreement and Article 19.3 of  the SCM Agreement, Mexico is unaware of the 
grounds for the United States' claim, since none of the provisions of the Foreign Trade Act precludes or expressly prohibits a new shipper review from being carried out. 
4.406  It should also be noted that the WTO Agreements  require new shipper reviews to be carried out 
promptly (AD Agreement) and expeditiously (SCM Agreement).  The United States is thus attempting to assign to Mexico obligations that are not to be f ound in the Agreements, since neither the AD Agreement 
nor the SCM Agreement lays down an obligation to initiate
 a new shipper review as soon as it has been 
applied for;  what the Agreements do require is th at, once initiated, the review must be carried out 
promptly and/or expeditiously. 
4.407  As to paragraph 93 of the United States' Opening Statement , Articles 68 and 97 of the 
Foreign Trade Act provide certainty in law and preclude  conflicting court rulings by treating as definitive 
only such anti-dumping or countervailing duties as have not been challenged in some procedure.  Thus, 
once the dispute is settled the sureties posted by the e xporters will be collected, or else it may determined 
that the original duty was unlawful, in  which case the sureties will be returned. 
G. SECOND ORAL STATEMENT OF THE UNITED STATES  
4.408  The following summarizes the United States' arguments in its second oral opening and closing 
statements:  
1. Opening statement 
(a) Mexico’s use of a stale POI 
4.409  Numerous provisions in the AD Agreement and the GATT 1994 illustrate the need for authorities 
to base their injury investigations on a period that includes the most recent ava ilable information.  The 
panel report in US – Softwood Lumber VI also supports this conclusion. 
4.410  The US – Softwood Lumber VI panel stated that it must be clear from an authority’s determination 
of threat of material injury that the authority h as evaluated “how the future will be different from the 
immediate  past, such that the situation of no present material  injury will change in the imminent future to 
a situation of material injury . . . .”.  An authority that fails to examine data that includes the most recent 
available information will not be in a positi on to make judgments about the immediate  past.  The same 
can be said about findings of present injury.  An au thority can only make objective determinations about 
the present, or the imminent future, if it is examining a period that includes  the most recent available 
information. 
4.411  In its second submission, Mexico says it would be “preposterous” for a Member to base its 
findings on information that is ten years old.  Thus, Mexico apparently now concedes that an authority’s 
discretion in setting a POI is not without limit.  Acco rding to Mexico, the appropriateness of a particular 
POI will depend on the facts of a particular case.  The United States and Mexico apparently agree. WT/DS295/R 
Page 62   However, Mexico has pointed to nothing to justify its  decision to ignore 15 months worth of recent data, 
or its decision not to collect any additional injury da ta after the initiation of the investigation.  Although 
Mexico baldly asserts in its second submission that the POI in the rice investigation yielded objective 
information on dumping and injury, it has provided no evidence in support of its claim. 
(b) Economía limited its injury examinati on to six months of 1997, 1998, and 1999 
4.412  Mexico claims not to understand the argument of the United States that Economía breached WTO 
rules by only examining injury information for half of  the POI.  To clarify, Mexico breached WTO rules 
by only examining half of the injury
 POI. 
4.413  Mexico also seeks to rebut the United States' claims by introducing another new table.  This new 
table allegedly contains information on imports from the United States to Mexico on a monthly basis from 
1997 through 1999.  The Panel should disregard Mexico’s table. 
4.414  First, the new table does not appear to be record  evidence.  Mexico has provided no citation to the 
record for this table, or a photocopy of the page in the record where it is contained.  Second, Mexico has 
failed to identify the source of the data in the tabl e.  Economía lacked accurate data on imports of  
long-grain white rice from the United States.  The petitioners’ import data in cluded unknown quantities of 
glazed and parboiled rice, as well as short-grain rice and medium-grain rice.  Thus, if the information in 
the table is from the petitioners’ data, there is no basis to conclude that it accurately reflects the true level 
of imports of long-grain white rice during the three-year injury POI.  Third, the table directly contradicts Economía’s findings that imports were concentrated  in the March to August time period.  Mexico’s 
complete reversal of its own positi on demonstrates that there was no justification for Economía’s decision 
to examine only half of the injury POI. 
4.415  In any event, the United States is objecting per se  to Economía’s decision to limit its injury 
analysis to only half of the injury POI.  Mexico has conceded that seasonality was not relevant, and it is 
indisputable that Economía failed to examine at l east half of the domestic industry’s production over the 
course of the entire injury POI.  Thus, Economía’s in jury analysis would have been inconsistent with 
WTO rules even if imports had not
 been concentrated in the March to August time period. 
4.416  Mexico’s argument that it was acceptable to look at a “representative sample” of the data is 
unfounded.  Nothing in Economía’s published determinations indicates that it focused on the March to 
August time period because it believed that period w as a “representative sample. ”  Nor are there any 
findings or evidence demonstrating that the period w as, in fact, representative of the year as a whole. 
(c) Mexico’s conduct of its injury analysis 
4.417  Mexico argues that Economía does not have access to the pedimentos .  In actuality, although 
Economía may not have possession  of the pedimentos , it does have access  to them.  It simply does not 
request such access, because Economía believes the AD Agreement does not require it to do so, and 
because it would take too much time. 
4.418  Second, Mexico notes that Econom ía collected information through December 1999.  But even if 
this is so, the fact remains that it did not consider  information for any period after August 1999. 
4.419  Third, Economía failed to conduct an objective ex amination of the domestic industry as defined 
by Article 4.1 of the AD Agreement because it did not  examine a consistent set of producers when it 
conducted its injury analysis.  Mexico justifies Ec onomía’s approach on the gr ounds that not all of the 
domestic producers provided the requested informati on.  This was the case with respect to production 
volumes, sales, installed capacity, employment  data, wages, and financial performance.  WT/DS295/R 
 
  4.420  These reporting failures were not minor.  The missing data pertained to many of the most critical 
factors necessary for Economía’s injury analysis .  Economía’s published determinations do not 
adequately explain why the domestic industry was unable to provide the requested data.  Nor is there any 
indication that Economía took steps to ensure the objectivity of its injury analysis by making further efforts to obtain it.  Economía seems to have simply used the data its industry was willing to provide.  
Economía’s willingness to conduct its injury analysis in  this way undermined the objectivity of its injury 
determination. An objective investigating authority would not permit its domestic producers to control the 
injury analysis by allowing them to self-select whic h information they are willing to provide.  For in 
doing so, the authority makes it possible for the dom estic industry to influence the outcome of its 
investigation, by having each individual producer only pr ovide its data for factors that are indicative of 
injury.  In this way, the industry can ensure that th e aggregate data for the “industry” will reflect injury. 
4.421  Mexico tries to cast doubt on Economía’s findings  about Covadonga by st ating that Covadonga 
“apparently” exhibited different behaviour.  But Ec onomía made these factual findings.  The alleged fall 
in the domestic industry’s prices was one of the primary findings underlying Mexico’s injury determination, but the evidence demonstrates that C ovadonga’s prices actually rose during the injury POI. 
4.422  Mexico states that it would have breached Article 5.5 of the AD Agreement if it had contacted the 
Rice Federation to obtain information on the “known”  exporters.  Nothing in Article 5.5 prevented 
Economía from contacting the Rice Federation after
 it initiated the investigation. 
4.423  Mexico argues that the dumped imports increased in absolute terms.  But as paragraph 244 of the 
final determination makes clear, the dumped imports actually fell  over the course of the entire injury POI. 
Thus, one of the primary factors underlying Economía’s injury determination was wrong. 
(d) Mexico’s failure to exclude firms with AD margins of zero per cent 
4.424  Mexico argues that Article 3.3 of the AD Agreement demonstrates that the Article 5.8 de minimis  
calculation applies to the country as a whole.  Article 3.3 has nothing to do with the dumping determination.  Article 3.3 is an injury provision that uses the definition of de minimis in Article 5.8 as a 
means to establish a threshold for determining whic h countries may be cumulated for injury purposes.  
The cumulation analysis is country-wide by its very nature. 
4.425  Article 5.8 itself states that the margin of dumping is to be considered de minimis if the margin is 
less than two per cent, “expressed as a percentage of the export price.”  Export prices are inherently  
firm-specific.  If the drafters had intended to require termination only if the weighted average
 margin of 
dumping for all  of the investigated firms was de minimis , they could have said so.  This is what they did 
in Article 9.4 of the AD Agreement, which requires aut horities to calculate the all other’s rate on the basis 
of the “weighted average margin of dumping” cal culated for the selected exporters and producers. 
4.426  Finally, if a company is investigated and found not to be dumping, there is simply no basis under 
Article 1 of the AD Agreement to apply the measure to that firm. 
(e) Mexico’s application of an adverse “facts available” dumping margin 
4.427  Mexico’s arguments on this issue ignore that Articles 6.1 and 6.8 of the AD Agreement, and 
paragraph 1 of Annex II, prohibit  an authority from applying a margin based on the facts available to an 
exporter or producer that was never sent the questionnaire and asked to respond. 
4.428  Mexico argues that a Member is only required to apply a neutral margin under Article 9.4 of the 
AD Agreement when it has investig ated a sample of exporters and producers.  In Mexico’s view, 
Economía did not sample, so it is under no obligation to  apply a neutral margin to the unexamined firms. 
But Articles 6.1 and 6.8, and paragraph 1 of Annex II, contain an independent  set of obligations that a 
Member must always  observe when it bases margins on the facts av ailable.  One of the key obligations is WT/DS295/R 
Page 64   that an authority that includes a pa rticular exporter “in an anti-dumping i nvestigation” must give notice to 
that individual
 exporter, by sending the exporter a copy of  the questionnaire, asking it to respond, and 
ensuring  that the exporter understands that a failure to respond may result in the application of a margin 
based on the facts available.  If an authority fails to take these steps with respect to an individual exporter 
or producer, then it cannot  apply a margin based on the facts available. 
4.429  Mexico also argues that it met the notice require ments of paragraph 1 of Annex II by sending its 
questionnaire to Producers Rice and Riceland, as well as to the Embassy of the United States.  But the 
AD Agreement does not permit an authority to shift the burden for providing the requisite notice to the 
foreign respondents, or the foreign government.  Economía did not send its questionnaire to the 
uninvestigated exporters and producers; therefore, it cannot apply facts available-based margins to them. 
4.430  Mexico argues that it did not “limit” its inves tigation by only sending its questionnaire to the 
exporters and producers that the petitioners identifie d as such in the petition, and by not sending the 
questionnaire to the Rice Company, or to th e exporters and producers identified in the pedimentos,  or to 
the exporters or producers identified in public sources, such as the Rice Journal , because Article 6.10 only 
provides a single basis for limiting an investigation.  But Mexico is only half right.  The only permissible  
basis for limiting an investigation is where the num ber of exporters and producers is so large that 
calculating individual margins would be impracticab le.  Economía limited its investigation in an 
impermissible  way, by remaining passive and taking no st eps to conduct a proper examination of all  of the 
known exporters and producers, or an examination of a representative sample, or the largest percentage of the exporters who could reasonably be investigated. 
4.431  Mexico responds to the United States' demonstr ation that the petition margin was adverse by 
arguing that the petitioners did not inform it that the petition overstated the normal value, and thus 
overstated the dumping margin.  But the petitioners’ s ilence does not excuse Economía from its obligation 
to examine the accuracy of  the information, as Articles 5.3 and 6.6 of the AD Agreement require, or its 
obligation to check the information in the petition ag ainst other independent sources, as paragraph 7 of 
Annex II of the AD Agreement requires.  Nor does it change the fact that the petition margin was
 adverse. 
4.432  Finally, with respect to the claim that Economía  breached Articles 6.2 and 6.4, it has become 
apparent to the United States that it misunders tood the nature of the data taken from the listados .  The 
United States had assumed that it was public informa tion, because Mexico shared it with its domestic 
industry.  But the United States now believes it must be  confidential information.  Articles 6.2 and 6.4 of 
the AD Agreement do not require a Member to disclose c onfidential information to interested parties.  On 
the other hand, if the data is  confidential, the United States does not understand how Mexico justifies 
sharing it with its domestic industry in the first place. 
(f) Claims regarding the Foreign Trade Act and Article 366 of the FCCP 
4.433  Article 53 :  Mexico has confirmed that Article 53 precludes Economía from providing exporters 
and producers who are not initially sent  the questionnaire the full 30 day response time that Article 6.1.1 
of the AD Agreement and 12.1.1 of the SCM Agreemen t require it to provide.  The proper interpretation 
of the relevant WTO provisions is that any  producer or exporter who receives the questionnaire is entitled 
to have 30 days to reply, and that the 30 days are counted from the date of receipt , not from the date the 
questionnaire is sent.  Therefore, Article 53 of the Foreign Trade Act breaches WTO rules. 
4.434  Article 64 :  Mexico argues in its second submission that the United States has not explained why 
Article 64 is inconsistent with Ar ticle 6.1 of the AD Agreement.  Mexico is mistaken.  Article 64 is 
inconsistent with Article 6.1 of the AD Agreement b ecause it requires Economía to apply the highest facts 
available to firms that do not “appear” in the inves tigation, even when Economía has not complied with 
Article 6.1.  Mexico also argues that Article 9.4 onl y applies when an authority investigates a sample of 
exporters or producers.  But by its plain terms, Article 64 always  requires Economía to apply the highest 
level of facts available to exporters and producers that have no exports during the POI or that do not  WT/DS295/R 
 
  “appear” in its investigations.  Therefore, even if  Economía were to overtly limit its investigation in 
accordance with Article 6.10, Article 64 would still require
 it to apply the highest facts available to those 
producers and exporters.  But Article 9.4 requires an au thority that has limited its investigation to apply 
the neutral margin to all  of the exporters or producers that are not included in the examination. 
4.435  Articles 68 and 89D :  Mexico argues that it is both “natural and logical” to require an exporter 
seeking a review to have a representative amount of sales, because the authority would not otherwise be 
able to make a proper price comparison.  But a small num ber of export sales, even the sale of a single unit, 
as long as it is a bona fide sale, is not an obstacle to calculating a margin.  Moreover, Mexico concedes 
that a party must demonstrate a representative volume of sales to obtain an individual margin of dumping 
or subsidization under Article 89D.  In addition, the United States s upplied evidence in response to the 
Panel’s question 31 which confirmed that Mexico requires firms seeking reviews under Article 68 to 
demonstrate a representative volume of sales.  Whether one characterizes it as a requirement to initiate or 
conduct a review of the margin, or a requirement to obtain a new margin, Articles 68 and 89D require 
exporters and producers to demonstrate a representative volume of sales. 
4.436  Article 93 :  Mexico has not contested the United States' demonstration that Article 93V is 
(1) “specific” to dumping or subsidization; (2) “agai nst” dumping or subsidization; and (3) not “in 
accordance with the provisions of GATT 1994,” as in terpreted by the AD and SCM Agreements.  
Moreover, Mexico argues in its second submission th at Article 93V is discretionary, because Economía 
allegedly has discretion to decide in a particular case whether the conditions for imposing a fine are met.  
But if Economía finds the conditions are  met, it must  impose a fine.  Mexico also argues that Article 93V 
is discretionary because it merely states that it “sh all be the responsibility” of Economía to punish the 
infringing activity.  This is equivalent to saying that the law is discretionary because Economía may 
simply choose not to enforce it.  As the panel stated in United States – Measures Affecting Alcoholic and 
Malt Beverages , the non-enforcement of a provision that mandates WTO-inconsistent action does not 
make the provision itself discretionary. 
4.437  Article 366 of the FCCP and Articles 68 and 97 of the Foreign Trade Act :  Mexico has argued 
that Article 366 of the FCCP does not directly  apply to the subject matter or procedures of the Foreign 
Trade Act.  Mexico seems to be implying that the provision is indirectly  applicable.  It is also telling that 
Mexico has made no effort to explain  why Article 366 does not apply, directly or indirectly, to the 
Foreign Trade Act. 
4.438  Turning next to Articles 68 and 97 of the Foreign Trade Act, Mexico appears to be distinguishing 
between duties that are “definitive” and duties that are “binding,” and it seems to accept that a Member 
imposes “definitive duties” at the time that it issues the final determination.  But Articles 11.2 of the 
AD Agreement and 21.2 of the SCM Agreement state that Members “shall” review the need for the 
continued imposition of the duty, “upon request,” if a reasonable period of time has elapsed since the “imposition” of the “definitive duty.”  The term “i mposition of the definitive duty” refers to the 
imposition of the AD or CVD measure itself.  This can  be seen, for example, in Article 11.1 of the AD 
Agreement.  Neither Article 11.2 of the AD Agreem ent nor Article 21.2 of the SCM Agreement permits 
an authority to refuse a review on the grounds that the measure is not “binding” until the end of judicial review. 
4.439  Mexico appears to argue that Articles 68 and 97 do not preclude e xpedited reviews under 
AD Agreement Article 9.5 and SCM Article 19.3.  Bu t Mexico stated during consultations that those 
Articles did
 preclude such reviews.  Moreover, Article 89D of the Foreign Trade Act only permits an 
exporter to request a review if the good is subject  to a “final” duty.  But under Article 97, only 
determinations issued at the end of a judicial proceed ing can be considered “final.”  Therefore, Article 97 
does preclude expedited reviews. WT/DS295/R 
Page 66   (g) Conclusion 
4.440  The United States has two final points.  First, Me xico argues that the Panel should disregard any 
claims or arguments that do not appear in the United States' first written submission.  But nothing in the DSU suggests that a Party’s first written submission defines the scope of permissible claims and arguments that a Party may raise over the course of a dispute.  On the contrary, as the Appellate Body 
found in  
EC – Bananas  III:  
There is no requirement in the DSU or in GATT practice for arguments on all claims 
relating to the matter referred to the DSB to be set out in a complaining party’s first written submission to the panel.  It is th e panel’s terms of reference, governed by 
Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB. 
4.441  All of the claims that the United States has raised in this dispute were in the panel request.  So 
Mexico’s claim that the United States did not set forth certain claims in its request is wrong. 
4.442  Second, the United States feels compelled to co mment on language that Mexico unfortunately 
chose to employ in its second written submission and the allegations of bad faith that Mexico made today. Its allegations are inaccurate, as even a cursory review  of the United States' presentations demonstrates.  
But, that is not why the United States is raising this  matter today.  Rather, the United States' concern is 
with the use by one sovereign nati on of derogatory language towards a nother sovereign nation.  Language 
like this is completely inappropriate and has no place in WTO dispute settlement proceedings, as has been 
recognized in the past by panels and members of the Appellate Body. 
2. Closing statement 
4.443  The United States has presented a prima facie  case with respect to its claims.  Mexico has not 
rebutted that case.  And all of the United States' clai ms are in the panel request, contrary to Mexico’s 
assertions.  For example, Mexico argued that the United States did not make a claim under Article 4.1 of the AD Agreement, but the claim is in the panel request, as part of the first set of claims.  As is a claim 
under Article 1 of the AD Agreement.  The United States ur ges the Panel to look to the papers filed in this 
dispute, and what they actually say, and not just to Mexico’s arguments about them. 
4.444  There was a long discussion today about the POIs that Mexico uses in its dumping cases.  What 
seemed clear from the discussion is that Mexico normally  lets the petitioners pick the POI and then puts 
the burden on the respondents to show why the suggested  POI should not be used.  The United States had 
some of the same questions as the Panel about Mexico ’s approach, so the United States did some research. 
The United States included information about eight or  ten Mexican investigations in the previous 
responses to Panel questions.  In all of those cases, in 2003, the United States found that Mexico accepted 
the petitioners’ proposed POI.  Moreover, the length of the POIs varied quite a bit – from six to 
eighteen months.  The only reason the United States was able to find for this was that those were the 
lengths that the petitioners requested. 
4.445  Regarding the listados , the United States believes Mexico could have done, and should have 
done, what the Panel put its finger on:  i.e., Mexico had the information before it on the importers’ names 
and the pedimento  numbers, and it should have looked at the in formation and used it to gather what it 
needed to be sure it had conducted a full, vigorous inves tigation with all of the facts.  The authorities have 
an interest in a full investigation.  They also coul d have sent injury questionnaires to the importers listed 
in the listados  and obtained – and then used – better volume and value data than they did. 
4.446  Regarding the Foreign Trade Act provisions, the Un ited States is  challenging these provisions of 
Mexico’s law as such, not as applied, so the text is  the relevant evidence.  There is no need for the  WT/DS295/R 
 
  United States to provide examples of the application of  the provisions, as Mexico suggested in its closing 
statement.  If Mexico wishes to provide examples of the application of the provisions to disprove the 
United States' reading of the text, it can provide them, but there is no obligation on the part of the United States to do so to meet its prima facie  case in this dispute. 
4.447  Finally, regarding Mexico’s continued argumen ts that the challenged legal provisions are 
discretionary, Mexico is using an odd formulation of th e mandatory/discretionary principle.  For example, 
Mexico is not claiming that, while its laws are WT O-inconsistent, Article 2 of the Foreign Trade Act 
provides it the discretion to apply the laws in a WTO- consistent manner.  Rather, Mexico holds steadfast 
to its argument that its laws on their face are WTO-c onsistent.  Thus, there is no conflict, in its view, 
between what its laws require and what its WTO oblig ations require.  Therefore, there is no issue of 
discretion here. 
4.448  In that respect, the Appellate Body’s dicta that  the mandatory/discretionary principle cannot be 
mechanistically applied in every dispute is relevant, becau se this principle is not relevant in this dispute.  
Mexico’s so-called “discretionary” argument, if ta ken to its logical end, would mean that any WTO 
Member with a domestic law that says that it sha ll apply its laws in a WTO-consistent manner is 
essentially shielded from any and all claims that its laws are “as such” inconsistent with WTO rules, 
regardless of what the laws say.  This conclusion is untenable. 
H. S
ECOND ORAL STATEMENT OF MEXICO  
4.449  The following summarizes Mexico's arguments in its second oral statements:  
4.450  Mexico observes that the United States continu es to act in bad faith, distorting Mexico's 
arguments and interpreting them with bias, and atte mpting to influence the Panel's view.  It likewise 
persists in attempting to impose on Mexico its ow n administrative practice and interpretation of the 
AD Agreement, and to lay down and impose obligations not derived from that Agreement.  Furthermore, it disregards Article 17.6 of the AD Agreement which allows that there may be more than one permissible interpretation of some of its provisions. 
4.451  The United States is required to act in good faith, according to Article 3.10 of the DSU and the 
ruling set forth in the final report of the WTO Appellate Body in US – Offset Act (Byrd Amendment) , and 
as prescribed by the Panel that heard the case Argentina – Poultry Anti-Dumping Duties . 
4.452  The United States' breaches go beyond the WTO Agreements:  on numerous occasions the 
United States has acted inconsistently with Articles 4.5 and 4.7 of the DSU as well as Article 17.4 of the 
AD Agreement by introducing new arguments, attempting to influence the Panel through bias, capitalizing on its own disregard of the rules and leavi ng Mexico with no basis for defence.  At the same 
time it has attributed to Mexico assertions the latter never made and has demonstrated that it can argue 
either way, depending on the end pursued – witn ess its proposal JOB(04)60 to the Negotiating Group on 
Rules.  In that document it submits that a new shi pper review should be denied  to exporters failing to 
show that they have exported "i n commercial quantity", which is precisely the objection it raises to 
Mexico's Foreign Trade Act although the latter mak es no such provision.  The Panel should accordingly 
dismiss the United States' claims and, above all, fi nd that the United States has acted in breach of the 
principle of good faith embodied in Article 3.10 of the DSU. WT/DS295/R 
Page 68   
1. Anti-dumping investigation on imports of long-grain white rice originating in the 
United States regardless of the country of provenance 
(a) Mexico Complied with Articles 1, 3.1, 3.2, 3.4 and 3.5 of the AD Agreement and Articles VI:2 
and VI:6(a) of the GATT 1994 with Regard to the Establishment of the Period of Investigation 
4.453  In its first written submission the United St ates argues that the POI is inconsistent per se  because 
of its remoteness.  Then, in its "Answers", it deni es making any such assertion only to reiterate it in its 
second written submission.  This lack of inconsiste ncy in the United States' position makes its claim 
unclear and leaves Mexico with no basis on which to mount a defence.  Mexico therefore request the 
Panel to disregard these assertions. 
4.454  With regard to the assertion that an anti-dumping investigation must determine whether or not a 
domestic industry is injured by dumping that is o ccurring presently, Mexico refers the Panel to its 
arguments in paragraphs 43 to 46 of its first written submission. 
4.455  Mexico wishes to point out that the exporters a nd importers disagreed with the POI set by the 
investigating authority, but produced no convincing reas ons for adopting some other POI.  Nor did they 
propose a more suitable alternative period or submit any evidence warranting the selection of a different 
period by the investigating authority. 
4.456  The United States continues to introduce claims that  were not brought up in c onsultations or in its 
request for the establishment of a Panel.  A case in poi nt is Article 3.7 of the AD Agreement, relied on by 
the United States to "illustrate" the fact that th e AD Agreement requires a more recent period for the 
investigation than the one used by Mexico.  Noth ing in that Article warrants such an assumption. 
4.457  Mexico emphasizes that Article VI:6(a) was neither  addressed in consultations nor included in the 
Panel request or the United States' first written submission.  The United States' assertions in this connection must therefore be disregarded. 
4.458  Contrary to the United States' assertion, an investigating authority is not bound to gather 
information between the end of the POI and the initia tion of the anti-dumping investigation, or to update 
the information in the course of the investigation. 
4.459  It is plain from the report of the Appellate Body in EC – Bed linen (21.5 – India) , cited as a 
precedent by the United States, that that case is imma terial to the present dispute since it concerns the 
selection of a method for determining injury and not the selection of a POI.  The United States thus concludes its pleadings with unfounded assertions based on a priori  premises all of which ought, in 
Mexico's opinion, to be dismissed by the Panel. 
(b) Mexico Complied with Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement with Regard to the 
Establishment of the Period of Investigation 
4.460  In response to section III of the United States' s econd written submission, Mexico wishes to make 
the following points.  First
, in determining the POI, the investig ating authority examined the petitioner's 
proposal and since none of the parties submitted any evidence of the need to set a different period, 
accepted it.  This is not the same thing as allowing the petitioner to set the POI.  Secondly , seasonality 
was not  the element that prompted the authority to set the period examined in the way it did.  Thirdly , for 
the injury analysis, in the interests of a fair comp arison earlier periods comparable to the POI were set 
within the period examined (period considered for in jury purposes, which covers three full years), so the 
petitioner did not select the period examined. 
4.461  The United States cites the report of the Appellate Body in US – Hot-Rolled Steel, in which the 
Appellate Body found that the investigating author ity cannot objectively examine a domestic industry by  WT/DS295/R 
 
  focusing on one part of that industry.  The above-men tioned report refers to a case in which the authority 
based its injury analysis on a segment of the industr y, which is not the case here.  The rice investigation 
examined the entire domestic industry during comparable  periods in each year of the period examined.  
Mexico accordingly deems that the United States' reasoning is unsound and that the United States fails to make a prima facie  case of breach of the Agreement. 
4.462  As to the United States' arguments concerning th e use of comparable periods within the period 
examined, Mexico points out that for the injury anal ysis it compared the periods from March to August of 
1997, 1998 and 1999 in an objective manner and on the basis of positive evidence.  In Mexico's view, the use of comparable periods for injury analysis elim inates any distortions that might have occurred during 
the period examined. 
4.463  For the foregoing reasons, Mexico is of the vi ew that the United States' pleas of breach of 
Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement should be rejected. 
(c) Economía Conducted its Injury Analysis in a Manner Consistent with Articles 3.1, 3.2, 3.4, 3.5, 
6.8, 12.2 and Annex II of the AD Agreement 
4.464  With regard to the failure to co llect evidence regarding price effect  and volume, Mexico refers the 
Panel to its first written submission and underlines that it did carry out its injury analysis objectively and 
on the basis of positive evidence.  Th e United States has failed to prove prima facie  that Mexico's injury 
analysis lacked objectivity and was not based on positive evidence. 
4.465  As to the United States contention that the inve stigating authority took into account non- dumped 
imports in evaluating volume, price effects and the impact of dumped imports on the domestic industry, 
and that the injury analysis included all imports, Mexico believes that a distinction must be drawn 
between "volume of imports" and "volume of dumped imports".  The former comprises all imports into 
Mexico and the latter is the volume of dumped imports .  In the final determination the entire section on 
injury analysis, particularly paragr aphs 206 to 221, analyses this matter. 
4.466  The United States alleges that the investigating au thority's findings lacked sufficient detail.  But 
the final determination gives the arguments of fact and of law that Economía took as a basis.  The final 
determination thus meets the requirements of Article 12.2 of the AD Agreement. 
4.467  Furthermore, it cannot be confirmed from Mexico 's answers to questions 10, 12 and 15 of the 
Panel that different types of rice entered under the same tariff heading or that the authority did not separate the dumped imports from the others.  The information analysed by Economía predates that 
modification of tariff heading 1006.30.99 (18 May 2001), a nd the modification applies as from the date of 
into entry into force, it does not apply to the informa tion used in the rice investigation.  It thus has no 
repercussions for the historical data considered in the rice investigation and there is no reason to believe 
that the changes of 18 May 2001 would make the rice investigation data any more precise. 
4.468  According to the United States, Mexico stated that it used only one method and that Mexico's 
assertion that it used several methods is wrong.  Paragraph 239 of the final determination indicates that several methods were used
 but the best was the petitioner's, and not that the petitioner's was the only 
method used.  Mexico also points out that it did not guess the volume of imports but estimated it using the 
method indicated in paragraphs 229 and 230 of the final determination.  It also wishes to clarify that in its 
reply to question 12 of the Panel, it stated not that it based its determination on information from 
exporters but that it took the method proposed by th e latter into account in estimating the volume of 
imports of the subject product. 
4.469  As required by the AD Agreement Economía sent questionnaires to known exporters and 
producers, and sent notice of the initiation of an inv estigation together with the questionnaire and the 
petition to the United States Embassy in Mexico. WT/DS295/R 
Page 70   4.470  The information supplied by two of the importers  was disregarded because no public version of it 
was submitted and because it was not shown to be "confid ential or restricted commercial information" as 
required, in breach of several provisions of the relevant law. 
4.471  In its answer to question 17 of the Panel th e United States gave incorrect information.  
Sometimes, petitioners submit pedimentos  given that, under Article 144 section XXVI of the Customs 
Law, agreements on access to information may exist between Chambers or Associations of domestic 
producers and the Ministry of Finance and Public Credit.   However, that does not mean that the individual 
domestic producers or every Chamber or Association ha ve indeed concluded an agreement of that kind, 
nor that it is mandatory to conclude such agreemen ts for those Chambers or Associations or for the 
Ministry of Finance and Public Credit. 
4.472  As to the allegation that Econom ía could have identified imports  of long-grain white rice by 
consulting the pedimentos , and its assertion concerning the way in which imports of different types of rice 
were separated out, Mexico refers the Panel to pa ragraphs 93 and 94 of its first written submission.  
Furthermore, contrary to what the United States asserts , it is not possible to identify imports of long-grain 
white rice separately from the pedimentos . 
4.473  The conclusion the investigating authority reached  on the injury analysis was the result of an 
overall evaluation of all the relevant economic factors referred to in Article 3.4 of the AD Agreement.  
The United States places on Mexico a non-existent obliga tion to gather information subsequent to the 
POI. Mexico finds it odd that the United States should suggest that in order to determine the volume of imports of long-grain white rice it is necessary to separate all the different types of long-grain white rice, which would be impracticable.  The investigating authority took the view that the best method of 
separating the volumes of long-grain white rice was directly and not by elimination
. 
4.474  The United States also alleges that to dete rmine whether there was any increase in import 
volumes during the POI, Economía took into account total imports from the United States and not only 
dumped imports and that, moreover, it based its conc lusions on the information of a single exporter. 
4.475  As to the allegation that Mexico looked at the information of only one e xporter, paragraph 205 of 
the preliminary determination indicates that Economía requested information from all US exporters that 
appeared and that the only exporter to submit full information was Farmers Rice.   Moreover, the others 
had thirty working days in which to enter any objec tions and supporting evidence but chose not to take up 
the opportunity.  Economía accordingly decided to mainta in its finding.  Mexico therefore considers that 
the United States' argument is without merit. 
(d) Article 5.8 of the AD Agreement Is Not Appli cable to Firms with Margins of Dumping of 
Zero Per Cent 
4.476  With regard to the United States' assertion concer ning Article 5.8 of the AD Agreement, Mexico 
refers the Panel to paragraphs 131 to 137 of its first written submissi on and enlarges below on its answer 
to question 20 of the Panel. 
4.477  In that answer Mexico explained that all exporte rs would be subject to the measure, meaning the 
final determination and not the application of positive anti-dumping duties.  Thus, to impose duties 
Mexico must ascertain in its final determination th e position of each individual exporter.  This does not 
mean that anti-dumping duties will be imposed on every producer and exporter investigated where at least 
one has exports with a margin of dumping above de minimis .  In the same answer Mexico noted:  " Each 
enterprise will be assigned the anti-dumping duty corres ponding to its individual margin, provided that 
the total volume of imports from the count ry in question is above the de minimis level ", since it is logical 
to determine an individual margin of dumping fo r each enterprise that has supplied the requisite 
information during the investigation.  An exporter that submits all the requisite information on normal 
value and export prices will not be subject to the app lication of facts available.  The answer ends:  " Any  WT/DS295/R 
 
  exporter for which the IA finds a more than zero and below de minimis margin of dumping would receive 
a zero per cent duty ", which does not imply the imposition of an anti-dumping duty, and Mexico therefore 
takes the view that it cannot be regarded as such, strictly speaking, let alone as a breach of the AD 
Agreement. 
4.478  The United States submits that in its reply to question 20 Mexico asserted that in deciding to 
impose an anti-dumping measure, Economía will not exam ine whether the weighted average margin of all 
exporters is greater than de minimis , so Mexico is obviously using a firm by firm approach.  The 
United States is mistaken.  Mexico never made such an assertion. 
4.479  Furthermore, according to Article 3.3 of the AD Agreement, paragraph 118 of the report of the 
Appellate Body in US – Hot-Rolled Steel  and paragraph 149 of the report of the Appellate Body in  
US – Carbon Steel , the determination of de minimis  margins of dumping under Article 5.8 of the 
AD Agreement must be based on each country taken as a whole. 
4.480  The United States relies on paragraph 118 of the report of the Appellate Body in  
US – Hot-Rolled Steel  (which in turn refers to the report of the Appellate Body in EC – Bed Linen ) to 
argue that the word "margin" in Article 9.4 of th e AD Agreement refers to the individual margins of 
dumping for each exporter or producer.  As a readi ng of that paragraph shows, the United States' 
interpretation is wrong.  In EC – Bed Linen , the Appellate Body ruled that the term "margins" must reflect 
a comparison that is based upon an examination of all the relevant home market and export market 
transactions, and must be calculated for each individua l firm.  The Appellate Body states only what the 
calculation of a dumping margin is to include, but says nothing of the scope of the word "margin" as it appears in Article 5.8 of the AD Agreement. 
4.481  Mexico points out that the provision in Article 5.8 of the AD Agreement that volume should be 
assessed on the basis of the country as a whole on no account implies that this is an exception to the rule 
or that the rule is a firm-by-firm approach. 
4.482  It must be clearly understood that the anti-dumpi ng investigation ends upon issuance of the final 
determination, a measure from which exporters not s ubjected to an anti-dumping duty cannot be excluded. 
The United States lacks clarity, in Mexico's view, in holding that Mexico should end the investigation in 
respect of exporters whose exports were found not to  have been dumped, since Mexico decides in the 
final determination the anti-dumping duties that are to be imposed, and that determination likewise 
decrees the end of the investigation for all exporters.  Any action taken after the final determination does 
not form part of the investigation, so Article 5.8 of the AD Agreement does not apply to any examination 
carried out after the final determination has been issued. 
4.483  For the foregoing reasons, Mexico deems the United States' assertions to be unfounded. 
(e) Mexico applied the facts available to Producers Rice  and to the US Producers and Exporters That 
Were Not Investigated in a Manner Consistent with the AD Agreement 
4.484  The United States puts forward the following new arguments: 
(i) On the strength of Mexico's assertion that it would have taken 40 days to examine all the 
pedimentos  from 1997 to 1999, the United States submits that it would have taken Mexico only 
two weeks to examine the pedimentos  of 1999. 
 4.485  The United States' assertion is wrong.  What Mexi co said was that it would have taken about 
40 days to obtain
 the pedimentos  – not "examine" them.  The time needed by Economía to examine them 
would have to be added to the 40 days. WT/DS295/R 
Page 72   (ii) The United States alleges that Mexico has not  explained how its interpretation regarding the 
application of facts available is consistent with Article 9.5 of the AD Agreement, since if all firms 
are subjected to anti-dumping duties, there are no e xporters able to apply for an expedited review. 
 4.486  The United states is mistaken.  What Article 9.5 of the AD Agreement says is that there must be 
no relation with other exporters or producers which ar e subject to anti-dumping duties, which means that 
there must be no relation with exporters or produ cers examined individually and which are assigned a 
positive anti-dumping duty.  Besides, if the United States'  reading were correct, even if Mexico were to 
calculate an "all others" margin of dumping in accord ance with Article 9.4 of the AD Agreement – as the 
United States claims it should have done – exporters not investigated individually would not qualify for 
an expedited review under Article 9.5.  The United St ates' interpretation is at odds with its own argument 
and would prevent the holding of an expedited review. 
(iii) The United States submits that Mexico's answ er to question 17(c) of the Panel shows that 
Economía failed to satisfy itself as to the accuracy of the petitioner's list of exporters, as Articles 5.3 and 6.6 of the AD Agreement require. 
 4.487  What Article 5.3 of the AD Agreement requires is  an examination of the accuracy and adequacy 
of the evidence provided in the application to determ ine whether there is suffi cient evidence of dumping, 
injury and a causal relationship .  It lays down no obligation to id entify all existing exporters.  Since 
Mexico used the best available info rmation in respect of exporters that did not appear, Article 6.6 of the 
AD Agreement is immaterial. 
(iv) The United States contends that by not sendi ng a questionnaire to all exporters, Mexico limited its 
investigation to a reasonable number of exporters, a nd that it had a duty to identify a reasonable number 
or the largest percentage of them that could reasonably be investigated.  4.488  Mexico did not limit its examination to a reasona ble number of exporters, but sent a questionnaire 
to known exporters and the United States Government.  Furthermore, it published a notice summoning all exporters and interested persons.  Nothing in the AD Agreement requires Mexico to act in the manner 
prescribed by the United States. 
(v) According to the United States, Mexico claims that it need consider only exporters known to the 
petitioner and not those known to the investigating authority. 
 4.489  The United States is mistaken.  Mexico never made such an assertion. 
(vi) The United States says that " ... the EC's and Mexico's interpretation of ... would permit an 
authority to initiate an investigation on the bas is of a petition that did not identify any
 "known" 
exporters, publish a notice of the initiation ... in its Official Journal, and ... send its questionnaire 
to nobody ." 
 4.490  Since an investigating authority cannot know all exporters and producers of all products marketed 
in the world, to attempt to assign it such a task is  illogical.  By the same token it is logical that the 
investigating authority should notify and send questi onnaires to the authorities of the exporting country 
and to known
 exporters and producers when it is able to dr aw on the information in the petition.  It is 
likewise logical to assume that the authorities woul d forward those documents to their exporters and 
producers that were not notified individually.  The role of the authority in the exporting country as set out 
in Article 6.1.3 of the AD Agreement supports Mexico 's interpretation.  The United States' assertions are 
therefore without merit.  WT/DS295/R 
 
  (vii) The United States submits that nothing in th e negotiating history of the AD Agreement suggests 
that the intent was to allow Members to ignore the requirements of Article 9.4 with respect to 
unexamined firms. 
 4.491  The United States bases that argument on a false assumption that Mexico limited its examination 
to a reasonable number of exporters.  Regardless of th e negotiating history, Article 9.4 applies only when 
the authority limits its examination.  Since Mexi co did not do so, Article 9.4 does not apply here. 
4.492  The United States further submits that Mexico calculated margins of dumping for two exporters 
that came forward on their own.  That assertion is wr ong:  the investigating authority calculated individual 
dumping margins for exporters that were sent the questionnaire and to one exporter
 that came forward 
spontaneously. 
4.493  Economía was not bound to send the questionnaire to all United States producers and exporters, 
but only to those known to the investigating authority.  Mexico would stress in this context that it is 
frequently the case that officials of the United Stat es Diplomatic Representation in Mexico await notices 
of initiation of an investigation and forward th em to their exporters, which are not barred from 
participating in the investigation. 
4.494  Furthermore, the third paragraph of the introduction to the questionnaire sent to Producers Rice  
and Riceland.  and to the US Embassy in Mexico shows that  they were made aware, in accordance with 
paragraph 1 of Annex II of the AD Agreement, that  if the requisite information was not provided, 
Economía would base its determination on facts ava ilable.  The United States' claim is therefore 
unfounded. 
4.495  Besides, the questionnaires for th e investigation can be obtained from Economía's website, so the 
United States' contention that exporters had to go to the authority's offices in Mexico City is unfounded. 
4.496  Mexico denies breaching Article 12.1 of the AD Agreement:  it notified both the United States 
authorities and the exporters known to Economía individually. 
4.497  Mexico complied with Article 6.8 and Annex II of the AD Agreement in calculating the margins 
of dumping on the basis of facts available. 
4.498  Mexico has interpreted the AD Agreement as a w hole, taking account of the full text of every 
material Article.  The United States insists, citing the report of the Appellate Body in US – Wheat Gluten , 
that an investigating authority must not remain "p assive".  In that case the Appellate Body was ruling on 
the evaluation of factors to determin e the existence of material injury  in an investigation concerning 
safeguards , which is quite different from id entifying all exporters or producers  in an anti-dumping  
investigation.  The argument is therefore without merit. 
4.499  The United States' interpretations of  the scope of rights of due process in fact go further even than 
the provisions of Article 6 of the AD Agreement, which is unacceptable. 
4.500  The United States contends that the investigating authority acted inconsistently with paragraph 7 
of Annex II of the AD Agreement.  Whether or not Producers Rice  cooperated bears no  relation to the 
fact that the investigating authority calculated its ma rgin of dumping on the basis of facts available, since 
Article 6.8 of the AD Agreement allows it to do so.  The investigating authority applied not paragraph 7 
but paragraph 1 of Annex II.  The United Stat es' allegation is therefore devoid of merit. WT/DS295/R 
Page 74   
2. Complaints relating to the Foreign Trade Act and article 366 of the Federal Code of Civil 
Procedure 
4.501  The United States' arguments concerning the alleged inconsistency, as such, of the Foreign Trade 
Act with the WTO Agreements are based on a single pr emise:  the supposedly mandatory nature of the 
articles of the Foreign Trade Act at issue.  This means, contrario sensu , that if the articles at issue are not 
mandatory – as Mexico has already demonstrated – then neither are they inconsistent with the 
WTO Agreements. 
4.502  Furthermore, it is necessary to take into account Ar ticle 2 of the Foreign Trade Act and the fact 
that the Act must be considered as a whole and not
 in isolation when determining whether or not its 
provisions are inconsistent with the WTO Agreements. 
4.503  The United States has failed to prove that Mexican le gislation is inconsistent with WTO rules.  In 
other words, it has not made a prima facie  case of breach of those rules by Mexico.  Accordingly, the 
Foreign Trade Act must be deemed consistent with the WTO Agreements. 
4.504  As to the allegations concerning Article 53 of the Foreign Trade Act , the time-limit set in 
Article 6.1.1 of the AD Agreement and Article 12.1.1 of the SCM Agreement applies only to foreign 
producers and/or exporters that were sent the questionnaire , i.e. known producers or exporters .  In this 
respect the Foreign Trade Act allows a longer period ( 38 days) than the Agreements, thus affording more 
opportunity for defence. 
4.505  With regard to Article 64 of the Foreign Trade Act , it is consistent with the AD Agreement and 
the SCM Agreement, because if an interested party does not appear in the investigation and had no 
exports during the POI, then that exporter will not provide  the requisite information on normal value and 
export price, and in that case the investigating author ity may calculate its margin of dumping on the basis 
of facts available. 
4.506  The United States further contends that Article 64 of the Foreign Trade Act is inconsistent with 
Article 9.4 of the AD Agreement because it requires Mexi co to apply a margin based on facts available to 
firms that should have received an "all others" marg in.  Clearly, Article 9.4 should apply only where the 
investigating authority has limited its examination to a reasonable number of interested parties in 
accordance with Article 6.10 of the AD Agreement, which Economía did not do. 
4.507  The United States submits that under Article 64 of  the Foreign Trade Act, the investigating 
authority is required to apply the highest margin of dumping to firms with no shipments and that where such firms are "deemed to have been investigated" they are "subject to anti-dumping duties" and are 
therefore not eligible for new shipper review. 
4.508  That interpretation contradicts even the United States' own practice.  Were one to accept its 
assertion, an "all others" margin calculated in accord ance with Article 9.4 of the AD Agreement would 
likewise prevent firms with no shipments from applying for a new shipper review.  Mexico repeats that 
Article 64 of the Foreign Trade Act is not a bar to applying for a new shipper review.  In fact, at the 
request of a United States exporter and after the re vision of the Foreign Trade Act had taken effect, 
Mexico initiated a new shipper review, as can be seen from Exhibit MEX-12, submitted by Mexico as 
evidence. 
4.509  With regard as to Article 68 of the Foreign Trade Act , the United States alleges that it is 
inconsistent with the WTO Agreements, citing Article  5.8 of the AD Agreement and Article 11.9 of the 
SCM Agreement.  Article 5.8 of the AD Agreement does not require firms that are not dumping to be excluded from the measure.  There are thus no grounds for alleging that some firms must not be subjected to the measure and are hence exempt from subsequent review.  WT/DS295/R 
 
  4.510  As to the representative volumes required by Ar ticle 68 of the Foreign Trade Act, Mexico 
maintains that representative export volumes are not a requirement for initiation of a review. 
4.511  Furthermore, nowhere does the resolution cite d by the United States mention representative 
import volumes as a requirement for initiation of the re view.  Nor does it contain any evidence that the 
application for review was rejected because it did not fulfil the representativeness requirement.  It was 
rejected in the case of some of the applicant firms fo r other reasons, which are detailed in paragraph 95 of 
the resolution. 
4.512  The United States maintains its argument that Article 89D  applies only to foreign producers and 
not to exporters, and that producers are required to de monstrate that their exports were representative.   
4.513  As to the first of those assertions, Article 47 of the Foreign Trade Act Regulations expressly 
provides that "for trading companies, the buying cost shall be taken as the cost of production ... ", which includes exporters. 
4.514  As to the second assertion, Mexico stresses that  representativeness is a requirement not for 
initiating a new shipper review but for determining an  individual margin of dumping or subsidy.  Thus, 
although Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement do not expressly so provide, it is natural and logical to demand of a new e xporter that it make shipments in order for the latter 
to be reviewed.  The United States' interpretation perhaps derives from the f act that the United States 
proposed making representativeness a requirement fo r initiation of a new shipper review in the 
Negotiating Group on Rules
37 at its meeting of 12 and 13 July 2004. 
4.515  With regard to the United States argument concerni ng the hierarchy of laws in the Mexican legal 
system, Mexico points out that this subject is not among the issues covered by the Panel's terms of reference.  Only Mexican courts have the authority to interpret the manner in which Mexico's local laws 
interact.  Mexico accordingly deems that th e United States' assertions must be dismissed. 
4.516  The United States has failed to show that Article 89D of the Foreign Trade Act is inconsistent 
with the WTO provisions.  Mexico, on the other ha nd, has conducted new shipper reviews for foreign 
producers and for exporters on the basis of Article 47 of the Foreign Trade Act Regulations, as shown in 
Exhibit MEX-12. 
4.517  The United States further asserts that Article 93.V of the Foreign Trade Act  is inconsistent with 
the WTO Agreements because it requires
 the investigating authority to a pply the fines established therein. 
 Mexico reiterates that account must be taken of Artic le 2 of the Foreign Trade Act, which stipulates that 
the Foreign Trade Act must be applied in a manner c onsistent with the international treaties to which 
Mexico is a party. 
4.518  As is plain from Article 93.V, Economía has discre tion to determine whether or not the fines must 
be applied.  Further proof of this  is that although this article has been in force since 1993, its provisions 
have never been applied to any Member of the WTO. 
4.519  In response to the United States' claim that Article 366 of the Federal Code of Civil Procedure 
(FCCP)  is inconsistent as such with the WTO Agreemen ts, Mexico wishes to point out that US-20 – to 
which the United States alludes in its reply – does not re fer to Article 366 of the FCCP.  As already stated, 
Article 366 of the FCCP does not apply to the subject-matter or the procedures governed by the Foreign Trade Act.  Mexico maintains that the United States fails to make a prima facie  case and that its 
claim must be dismissed. 
                                                     
 
37 New Shipper Reviews (ADA Article 9.5), informal paper JOB(04)/60 circulated on 25 May 2004/Formal 
document TN/RL/GEN/1 – TN/RL/W/156/Rev.1 circulated on 14 July 2004. WT/DS295/R 
Page 76   
4.520  The United States asserts that Mexico failed to respond to the allegation that Articles 68 and 97 
of the Foreign Trade Act  offend against Article 11.2 of the AD Agreement and Article 21.2 of the 
SCM Agreement.  Mexico's arguments on the matter ar e to be found in paragra phs 300 to 303 of its first 
submission.  By waiting for the duties to be binding in order to carry out a review of them, Mexico is securing and safeguarding the interests of the parties, sparing them any possible injury. 
4.521  As to the allegation that Articles 68 and 97 of the Foreign Trade Act are inconsistent with 
Article 9.3.2 of the AD Agreement, Mexico maintain s what it said in paragraph 304 of its first written 
submission, in which it already established that the i nvestigating authority will return any duties paid in 
excess upon conclusion of the relevant procedure.  In  no instance does Mexico breach the provisions of 
the AD Agreement. 
4.522  As to the allegation that Article 68 and 97 of the Foreign Trade Act are inconsistent with 
Article 9.5 of the AD Agreement and Article 19.3 of  the SCM Agreement, the United States lacks any 
basis for its claim since no provision of the Foreign Trade Act precludes or prohibits the holding of a new shipper review.  Furthermore, the WTO Agreements require new shipper reviews, once initiated, to be 
carried out promptly, according to the AD Ag reement and expeditiously, according to the 
SCM Agreement, but do not require a review to be initiated
 as soon as it is applied for.  
4.523  Mexico wishes to point out to the Panel that the United States' allegation that Articles 68 and 97 
of the Foreign Trade Act constitute a quantitative restri ction to trade is quite mistaken, since never has 
there been any restriction, either de jure  or de facto , on the normal conduct of the commercial transactions 
of Sun Land Beef Company, Inc. or any other foreign company. 
 
V. ARGUMENTS OF THE THIRD PARTIES38 
5.1 The arguments of the third parties are set forth in their written and oral submissions to the Panel, 
which are summarized below.  The third parties' writte n answers to questions posed by the Panel are set 
forth in the Annexes to this report ( see list of annexes at page xi).39  
A. THIRD PARTY WRITTEN SUBMISSION OF CHINA  
5.2 In its third party written submission, China made the following arguments: 
1. Issue 1:  The closeness of the Period of In vestigation to the Date of Initiation 
5.3 In the alleged anti-dumping investigation, Mexico ’s investigating author ities established a period 
of investigation (“POI”) the ending of which was fifteen months earlier than the initiation of the 
investigation. 
5.4 Although the AD Agreement itself does not establis h any specific guidelines for determining an 
appropriate POI, the Anti-Dumping Committee has i ssued a recommendation to the effect that, as a 
general rule, POI shall be “ending as close to the da te of initiation as is practicable”.  China does not 
consider that the time lag of fifteen months between  the ending of POI and the date of initiation is in 
compliance with the spirit and substance of th e recommendation of the Anti-Dumping Committee. 
5.5 China believes that the evaluation of the closeness of the POI to the date of initiation should be 
considered in the context of its purpose and function under the AD Agreement. 
                                                      
38 All the footnotes in sections V:A - V:F ar e original footnotes of the third parties. 
39 The Panel posed questions only to the European  Communities. No other third party responded or 
commented on the questions.   WT/DS295/R 
 
  5.6 The closeness of the POI is important for the inv estigation and the determination of the existence 
of injury and dumping margin.  The data collected in a remote, non-proximate POI cannot prove that the 
dumped imports continue to exist at the present time,  and that the level of such dumped imports “causes 
or threatens to cause material injury” to a domestic i ndustry in the importing country .  In order to ensure a 
fair and equitable investigation, the data collect ed within the POI shall meet the requirement of 
“objectivity” and “positive evidence”, as such terms ar e defined in Article 3.1 of the AD Agreement.  
China agrees with the United States’ assertion that the di scretion of the investigating authorities to set the 
POI “is not boundless”.  As a general rule, the investigating authorities shall select the POI that is as close to the date of initiation of the investigation as practicable. 
2. Issue 2:  The seasonality of the Period of Investigation 
5.7 The United States alleges that Mexico’s inves tigating authorities examined only the March to 
August time period in each year of the POI for injury analysis.  Such six-month period reflected the main 
import activity of the product under investigation when domestic production is at a seasonal low.  
Mexico’s investigating authorities did not investigate the data in the September to February time period 
when domestic production is at a seasonal high and the import of the product under investigation is, 
conversely, relatively low.  For the purpose of injury  analysis, Mexico’s investigating authorities did not 
compare the data of the seasonal high period with those of the seasonal low period.  Instead, it only compared the data of the same season, on a year-to-year basis. 
5.8 China takes no position as to whether or not the me thodology adopted by Mexico in this dispute, 
which is to examine only an annual portion/season of  the POI, as being inconsistent with its WTO 
obligations.  Instead, China deems it a ppropriate to highlight the issue of the seasonal characteristic that is 
implicit in the POI stipulated for this investigation. 
5.9 China believes that the investigating authorities ha ve the discretion to consider seasonality when 
establishing the POI of a specific investigation.  The Anti-Dumping Committee in its recommendation, 
did recognize the discretion of investigating authorities to “take account of the particular circumstances of 
a given investigation, to ensure that periods of da ta collection are appropriate in each case”.  Moreover, 
the Anti-Dumping Committee further recommended that “in establishing the specific periods of data collection in a particular investigation, investig ating authorities may, if possible, consider the 
characteristics of the product in question, including seasonality and cyclicality
” (emphasis added). 
5.10 China also believes that the examination of a domestic industry by the investigating authorities 
from a seasonal perspective shall be conducted in an “objective” manner as required by Article 3.1 of the 
AD Agreement.  The requirements of objectivity mean s that, where investigating authorities undertake an 
examination of a domestic industry in one season, they should, in principle, examine, in like manner, the 
same industry in all other seasons, as well as examine the industry for the whole year.  Or, in the 
alternative, the investigating authorities should provi de a satisfactory explanation as to why it is not 
necessary to examine certain seasons that have been excluded from examination. 
3. Issue 3:  Investigating authorities’ obligations as to evidence collection 
5.11 The United States alleged in the first written submissi on, that Mexico’s “failure to investigate or 
attempt to gather data from readily available sources” breached Articles 3.1 and 3.2 of the AD Agreement because Mexico failed to “identify exporters and importe rs other than the handful of those mentioned in 
the petition”;  failed to “send its anti-dumping questionnair e to exporters and importers other than the few 
designated as such in the petition, or to purchasers”;  failed to “consult the customs declarations”;  and 
failed to “seek to obtain accurate import volume information from importers”.   
5.12 The United States interpreted that the requirements of “objectivity” and “positive evidence” make 
it obligatory for the investigating authorities to “actively seek out information pertinent to” the 
investigation, and to “investigate or attempt to ga ther data from readily available sources”.  In other WT/DS295/R 
Page 78   words, the United States asserts that the investigati ng authorities are obligated to  actively collect evidence 
in order to fulfil the requirements of “objectivity” and “positive evidence”.  China offers a different 
interpretation than that of the United States with regard  to the approach in order to meet the standard of 
“objectivity” and “positive evidence” as set forth in  Articles 3.1 and 3.2 of the AD Agreement. 
5.13 China believes that the obligations of the inv estigating authorities with regard to evidence 
collection are to give notice of information require d to all interested parties and to provide ample 
opportunity to present in writing all evidence, rather than to actively collect evidence as asserted by the 
United States.  Article 6.1 of the AD Agreement clear ly described the obligations of the investigating 
authorities as the following:  “[a]ll interested parties in an anti-dumping investigation shall be given notice 
of the information which the authorities require a nd ample opportunity to present in writing all evidence 
which they consider relevant in resp ect of the investigation in question.” 
5.14 The scope of the obligations of the investigati ng authorities as to the verification of the accuracy 
of the information provided by interested parties as defined in Article 6.6. of the AD Agreement is to 
“satisfy themselves as to the accuracy of the in formation … upon which their findings are based.” 
5.15 The requirement that the investigating authoriti es shall “satisfy themselves as to the accuracy of 
the information provided by interested par ties” was clearly described by the panel in US – DRAMS.  The 
panel here stated that if the investigating aut horities are obligated to ac tively seek evidence from all 
sources available, it is also likely that “anti-dumping investigations would, as a consequence, become 
totally unmanageable”.  China concurs with the panel’s findings. 
5.16 Only when the investigating authorities have to operate under “best information available” as 
described in Paragraph 7 of Annex II of the AD Agreem ent that the obligations to verify the accuracy of 
the information through independent sources arise “where practicable”. 
5.17 In sum, China does not find in the AD Agreemen t a solid legal basis to support the assertion of 
the United States that investigating authorities are obligated to actively seek evidence through 
independent sources except under very specific circumstances. 
4. Issue 4:  Known exporters 
5.18 The United States alleged in this dispute, that Mexico’s investigating authorities “improperly sent 
its anti-dumping questionnaire to only two companies that  were listed in the petition” and “made no effort 
to identify exporters and importers other than the handful of those mentioned in the petition”.  The 
allegation raises the issue of the obligations of inve stigating authorities with re spect to “known” exporters 
for the United States has asserted that Articles 5 and 6 of the AD Agreement “require an investigating 
authority to actively determine the universe of potential respondents
” and to “actively seek to identify 
individual exporters and producers ”.  China does not agree with such assertion and interpretation.  
5.19 China believes that Article 5.2 of the AD Ag reement expressly places the burden of identifying 
“known” exporters on the petitioners by stating that a petition shall include “the identity of each known 
exporter or foreign producer” of the product in question.  In Article 6.1.3, the use of the definite article 
“the” before “known exporters” shows that the phrase “known exporters” has been used in the previous 
text of the AD Agreement.  Given that both Article 5.2 and Article 6.1.3 use the same wording “known exporter”, the “known exporters” unde r Article 6.1.3 refer to “each know n exporter” under Article 5.2. 
Therefore, the AD Agreement suggests that investig ating authorities shall rely on the petitioners to 
identify “known” exporters in their petition(s).  
5.20 China would submit that at the outset of the inves tigation, the investigating authorities shall rely 
on the information in the petition to identify “known” exporters.  The authorities are obligated to check 
the “accuracy and adequacy” of such information and if  the authorities believe that such information is 
not accurate or adequate, it shall give reasonable time to the petitioners to provide further information or  WT/DS295/R 
 
  satisfactory explanation.  There is no legal basis in the AD Agreement for th e interpretation that the 
investigating authorities are obligated to actively seek  to identify “known” exporters by themselves from 
available sources.  
5. Issue 5:  Exporters that had no export during the POI 
5.21 The United States alleged that Mexico’ inves tigating authorities improperly calculated dumping 
margin on the basis of adverse facts available for an exporter that had made no export sale during the POI but that had fully cooperated with the investigating authorities in the investigation.  The United States 
asserts that a neutral “all other rate” shall be applie d to such exporter because its full cooperation left no 
warrant to apply adverse facts available that are stri ctly confined in Article 6.8 of the AD Agreement.  
Furthermore, the United States stated that such expor ter shall be entitled to the “new shipper” review as 
provided in Article 9.5 of the AD Agreement.  China be lieves that the United States’ interpretation that an 
exporter that made no export sales during the POI s hould have certain dumping margin applied to it 
(whether this is the neutral “all other rate”, or the dumping margin based upon facts available) is in error. 
5.22 China would base its position on the following:  firstly
, an exporter that made no export sales 
during the POI shall not be considered as having been dumping the products under investigation because 
no dumping margin can be calculated for such exporter due to the non-existence of an applicable export 
price.  Article 2.1 of the AD Agreement provides that  “a product is to be considered as being dumped, if 
the export price  of the product exported from one country to anot her is less than the comparable price, in 
the ordinary course of trade, for the like product when  destined for consumption in the exporting country” 
(emphasis added).  An exporter that made no export sales during the POI had no export price that can be 
used to compare with the normal value to calcu late dumping margin, therefore, the product under 
investigation of such exporter cannot  “be considered as being dumped”.  
5.23 Secondly , Article 9.5 of the AD Agreement expressl y requires that “no anti-dumping duties shall 
be levied on imports from such exporters or pr oducers” “who have not exported the product to the 
importing Member during the period of investigation”. 
5.24 China believes that it is erroneous to impose any dumping margin on an exporter that made no 
export sales during the POI, whether this be the neutra l “all other rate” or that based upon facts available. 
B. THIRD PARTY WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES  
5.25 In its third party written submission, the EC made the following arguments: 
1. Stale period of investigation 
5.26 Although the AD Agreement contains no express rule in the text concerning the selection of the 
period of investigation, an investigating authority’s  discretion in that respect is not boundless.  Having 
regard to the context and purpose of the relevant provisi ons, particularly the use of the present tense, there 
is a limit on how long the period between the end of th e period of investigation and the initiation of the 
original investigation can be.  An excessive gap woul d not be representative and would not be consistent 
with the obligation contained in Article 3.1 AD Ag reement to conduct an objec tive examination based on 
positive evidence. 
2. Use of March to August 1997, 1998 and 1999 for injury analysis 
5.27 Article 3.1 AD Agreement begins with the words “A determination of injury …” (singular).  
From the wording of this provision it is clear that th e AD Agreement requires an investigating authority to 
make one injury determination.  An investig ating authority cannot, without further reasonable 
explanation, make several discrete injury determina tions relating, for example, to different companies 
forming part of the domestic industry, or relating to  different time periods. Mexico defined the period at WT/DS295/R 
Page 80   issue in its  anti-dumping investigation as beginning on 1 March 1997 and ending on 30 August 1999.  Thus, of its 
own accord, Mexico clearly identified that period as the relevant period for making its (one) injury 
determination.  Having defined the period as it did, Mexico was bound to treat that period consistently 
thereafter in accordance with that definition.  Thus , it follows, with respect to Article 3, including 
Articles 3.1 and 3.5, that Mexico had to make “a dete rmination of injury” for that period – and not for the 
various segments of that period selected by Mexico.  There is nothing in the AD Agreement that provides for an investigating authority to make more than one injury determination; to the contrary, all references 
to the making of an injury determination are referen ces to a determination of injury.  Having defined the 
period at issue as it did, Mexico could not subsequently take the position that some segments of that period were no longer relevant for the purposes of comparison or assessment.  Mexico was not permitted 
to see the temporal characteristics of its injury inv estigation in one way for one purpose, and in another 
way for another.  Mexico had become bound by its own logic. 
3. Injury analysis including non-dumped imports 
5.28 Even where the AD Agreement does not require an y particular methodology for the determination 
of injury, the analysis conducted by an investiga ting authority must be objective and based on positive 
evidence.  Imports from companies found not to have  dumped cannot be included in the evaluation of 
volume, price effects and the impact of dumped imports on the domestic industry. 
4. De minimis  dumping margin 
5.29 The wording of Article 5.8 AD Agreement contemplat es the termination of the “investigation” in 
respect of the exporting country as a whole, not with re spect to individual exporters.  This interpretation is 
in line with the first sentence of Article 5.8 AD Agr eement which requires that a complaint be rejected 
and the investigation be terminated promptly in case of lack of sufficient evid ence to proceed with the 
case.  Where the investigating authority determines a de minimis  dumping margin for a specific exporter, 
Article 5.8 AD Agreement requires that no duty be impo sed and collected from that exporter.  It does not 
require the termination of the entire investigation (provided that the country-wide margin is above 
de minimis ).  In the opinion of the European Communities, both the method used by Mexico and the 
method suggested by the United States constitute pe rmissible interpretations of the AD Agreement. 
5. All others rate, facts available 
(a) Irrelevance of Articles 9.4 and 10.6 of the AD Agreement 
5.30 The provisions of Articles 6.10 (other than the first sentence) and 9.4 AD Agreement relate to the 
situation in which exporters are known and samp ling techniques are used.  Absent sampling, these 
provisions are irrelevant for the dete rmination of an anti-dumping duty.  
(b) An all others rate is pe rmissible for unknown exporters 
5.31 The AD Agreement does not contain any specific rule  concerning the rate or amount of duty to be 
imposed on unknown exporters in the investigated country .  An “all others” rate may be imposed on such 
exporters - a residual country specific rate.  Article 6.10 AD Agreement, first sentence, refers to “known” exporters, and in any event contains the words “as a ru le”.  Contextual support for such an interpretation 
may also be found in Article 2.1 AD Agreement, whic h defines dumping, and which refers to the product 
exported from “one country to anot her”.  Article 9.2 AD Agreement refers to the imposition of duties on 
imports “from all sources”, and permits the authorities to  name the supplying country if it is impractical to 
name the suppliers, as it would be if they are unknown.   Furthermore, Article 9.3 AD Agreement contains 
rules concerning refunds.  If an exporter did not appear  during the original investigation, there is nothing 
on the face of Article 9.3 that would prevent such exporter from requesting a periodic review or a refund  WT/DS295/R 
 
  pursuant to those provisions.  In any event, there be ing no dispute between the parties on this point, there 
is no need for the Panel to make any findings in this respect. 
5.32 Unknown exporters, like known exporters , are interested parties within the meaning of Article 6.8 
AD Agreement.  If unknown exporters do not provide necessary information within a reasonable period, 
then, as in the case of known exporters, determinations ma y be made on the basis of the facts available.  
Unknown exporters choose, following the notice of in itiation, not to appear and not to complete a 
questionnaire response.  It necessarily follows that th e “all others” rate may lawfully be based on the 
highest rate found in respect of a known exporter, whether or not on the basis of the facts available. 
(c) Meaning of known and unknown exporters 
5.33 Absent any contrary indication in the written r ecord, the European Comm unities considers that 
exporters mentioned in the complaint or which respond to the notice of initiation may be considered to be 
known.  That is a reasonable basis on which to pro ceed, which corresponds to a permissible interpretation 
of the AD Agreement.  An investigating authority is  not required by the AD Agreement to make further 
unilateral and autonomous enquiry. 
(d) Application of an all othe rs rate to unknown producers 
5.34 The same analysis, mutatis mutandis, in respect of unknown (non-exporting) producers in the 
investigated country, would also be based on a pe rmissible interpretation of the AD Agreement.  
Article 9.5 AD Agreement contains special rules in r espect of so-called “newcomer” or “new shipper” 
reviews. 
(e) Application of an all others rate to known producers 
5.35 The AD Agreement also does not contain any specifi c rule concerning the rate or amount of duty 
to be imposed on (non-exporting) producers who are known.  Producers Rice was a known producer which did not export during the investigation period.   The imposition on Producers Rice of an “all others” 
rate based on the facts available was consistent with the AD Agreement, for all the reasons set out above.  
As explained above Articles 6.10 (other than the first sentence) and 9.4 AD Agreement relate to sampling and are irrelevant for this specific case.  Producers Rice was not excluded from a sample.  It simply had 
no exports.  The absence of an export price precl udes the calculation of a company specific dumping 
margin, but does not preclude the application of an “all others” rate. Article 9.5 AD Agreement contains 
special rules in respect of so-called “newcomer” or “n ew shipper” reviews in order to address the situation 
in which a producer without any exports and thus s ubject to the all others rate does have exports 
subsequent to the period of investigation.  In all the circumstances, the imposition on Producers Rice of 
the same “all others” rate as that applicable to other unknown exporters and k nown producers, as the case 
may be based on the facts available, was a reasonable basis on which to proceed.  
6. As such 
5.36 Further to the Report of the Appellate Body in US–Corrosion-Resistant Steel Sunset Review , it is 
unnecessary for a measure to be “mandatory” as opposed to  “discretionary” in order for such measure to 
be reviewed by a Panel for consistency with the AD Agreement. 
C. T
HIRD PARTY WRITTEN SUBMISSION OF TURKEY  
5.37 In its third party written submission, Turkey made the following arguments: WT/DS295/R 
Page 82   
1. Selection of an investigation p eriod that ended more than fifteen months prior to the date of 
initiation of the investigation  
5.38 The United States submits that Mexico acted inc onsistently with Article VI:2 of GATT 1994 and 
Articles 1, 3.1, 3.2, 3.4, and 3.5 of the AD Agreement by selecting a period for its dumping investigation that ended more than fifteen months prior to the date of initiation of the investigation.  The United States, 
further contends that, those periods were so remo te in time that the information collected by the 
investigating authority was incapable of providing a basis for an objective finding of dumping, injury and 
causation or a determination based on positive evidence. 
5.39 Turkey submits that although the AD Agreemen t does not establish any specific period of 
investigation, the wording of both the AD Agreemen t and Article VI of GATT 1994 leads authorities to 
investigate the presence of dumping, injury and causation at the most recent time period.  Thus, authorities should not be allowed to initiate a dumpi ng investigation and examine any time period that 
they believe dumping was exercised for the sake of imposing anti-dumping duties. 
5.40 In this respect, Article VI:1 of GATT 1994 states that dumping is to be condemned if it causes or 
threatens material injury to an established industry or materially retards the establishment of a domestic 
industry.  The paragraph continues by the definition of dumping which is also in present tense.  Likewise, Article VI:2 of GATT 1994 states that a contrac ting party may levy on any dumped product an  
anti-dumping duty not greater in amount than the margin of dumping to offset or prevent dumping.  The other paragraphs of Article VI of GATT 1994 also  follow the same trend and presents remedies for 
situations that took place in the near past.  
5.41 Furthermore, Article 3.4 of the AD Agreement lists the relevant economic factors and indices 
having a bearing on the state of the industry that shoul d be examined.  Here one can easily notice that the 
required examination should be done as to the actual a nd potential position of the listed factors.  Also in 
Article 3.5 it is clearly stated that the authorities should demonstrate that dumped imports are causing injury to the domestic industry. 
5.42 In this respect, in light of the above cited clear obligations to examine actual and potential 
positions rather than past experiences, Turkey believe s that even if the AD Agreement does not establish a 
certain time period, an unbiased and objective authority  would not establish dumping margin on the basis 
of the past information that is not valid anymore.  
5.43 In Turkey’s view, the period of data collection for dumping investigations should end as close to 
the date of initiation as is practicable.  This is  also important for purposes of predictability and 
transparency of the investigations and credibility of the authority’s actions. 
2. Limitation of inquiry 
5.44 The United States submits that Mexico’s decision to allow the petitioners to set the POI for its 
dumping analysis as March-August 1999 and its subsequent decision to focus on only March to August of 
1997, 1998 and 1999 for its injury analysis resulted in breaches of Articles 1, 3.1, 3.5 and 6.2 of the AD Agreement.  The United States further contends that Economía’s investigation of injury was not based on positive evidence for simple reason that it failed even to examine the evidence pe rtaining to half of the 
period of injury analysis.  United States continued th at Economía by taking this approach, made it more 
likely to determine that the domestic industry was injured.” 
5.45 In accordance with Article 17 of the AD Agreement,  the panels are entitled to determine whether 
the authorities’ establishment of the facts was prope r and whether their evaluation of those facts was 
unbiased and objective.  In this respect, the Panel ma y consider here if selection of those particular 
periods resulted in a solution different from what it w ould be if the whole one-year period were taken, in 
other words what an objective and unbiased authority w ould do in any given investigation.  In addition,  WT/DS295/R 
 
  Turkey believes that seasonality is an important aspect of  this investigation.  The Panel may also focus on 
the seasonality of the subject product a nd its conformity with the practice of limiting the inquiry to certain 
parts of the year. 
5.46 Turkey being a third party is not in a position to comment on if the results would be different if 
the whole one-year period was evaluated.  Yet, what Turkey would like to emphasi ze is that in any such 
case if the authority is deviating from its normal prac tice it should provide the reasons for such deviation 
and invite the interested parties to submit rebuttal arguments if they would consider such practice not 
appropriate. 
5.47 Turkey reckons that such arbitrary implementations  should not be allowed as they would certainly 
place question marks as regards the objectivity of the aut hority and the outcomes of the investigation.  In 
other words, authorities should not be allowed to manipulate the investigations as necessary. 
3. Application of “adverse facts available” to certain companies 
5.48 The United States considers that  Economía’s application of an adverse “facts available” dumping 
margin to Producers Rice and to US producers and exporte rs that it did not examine is inconsistent with 
Article VI:2 of the GATT 1994, Articles 1, 6.1, 6.2, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1 and 12.2 of the AD Agreement and paragraphs 1, 3, 5, 6 and 7 of Annex II of the AD Agreement.  The United States continues that an investigating authority is not perm itted to examine individually just a few exporters and 
then assign an adverse facts availabl e based margin to everyone else. 
5.49 As regards the use of facts available, Article 6.8 clearly identifies the circumstances under which 
an investigating authority may resort to the “facts av ailable”.  In accordance with this Article, only if an 
interested party “refuses access to” necessary informa tion within a reasonable period, “otherwise does not 
provide” necessary information within a reasonable peri od, or “significantly impedes the investigation”, 
the investigating authority may make determin ations on the basis of the facts available. 
5.50 Thus, the investigating authorities shall avoid th e arbitrary implementation of “facts available” 
and for those companies who were not individually exam ined for reasons other than listed in Article 6.8 
and the authority shall not calculate a margin based on facts available.  
5.51 However, under certain circumstances the case may not be so straightforward.  Assume a case 
where the investigating authority has acted to the best of its ability in reaching all the interested parties, 
that is to say he sent questionnaires to all the know n exporters/producers, published a notice of initiation 
and notified the government of the exporting Me mber and requested assistance to reach unknown 
exporters/producers in the exporting Member.  Some may here still argue that the authority did not notify all interested parties individually and those parties should not receive facts available based margins.  
5.52 Assume that in the above scenario only one expor ter/producer cooperated with the authority and 
responded to the questionnaire while all the other exporter/producers avoided cooperation.  The only 
cooperating company received de minimis  dumping margin.  Here, would it be still rational to argue that 
those non-cooperating companies should receive the margin of the cooperating company or a neutral “all others rate” but not a dumping margin based on facts available?   
5.53 In Turkey’s view, application of facts availabl e should be considered on a case by case basis.  In 
any case the investigating authorities and interested parties should fulf il their respective requirements and 
bear the results of their relevant actions.  
5.54 As regards the treatment of “new shippers”, th e only Article that is relevant with potential 
exporters of the product concerned in the AD Agreement is  Article 9.5.  The purpose of this Article is to 
eliminate the unfairness of punishing the newcomers with  the residual duty of the original investigation 
for reasons beyond their control.  The Article clearly states that to request a review those exporters or WT/DS295/R 
Page 84   producers must show that they are not related to any of the exporters or producers in the exporting 
country who are subject to the anti-dumping duties on the product.  This provision clarifies that the original investigation has already finished and the duties are in place, thus it does not recognize that new 
shippers can request an individual treatment during th e investigation.  Then the same Article continues 
that the review for those companies should be initia ted and carried out on an accelerated basis and no anti-
dumping duties shall be levied on imports of such expor ters or producers while the review is being carried 
out.  That is to say, regardless of the duty placed on th e company they will not be subjected to that in the 
course of the investigation but may only be required to place guarantees or to withhold appraisement.  In 
this respect, investigating authorities are not required by the AD Agreement to carry out individual investigations for those companies who did not  export during the investigation period.   
5.55 The United States further alleges that Economía faile d to disclose to the exporters the export price 
information, which established the basis for the de termination of the adverse facts available dumping 
margin.  This information involved pedimento information obtained by the CMA from the Mexican Secretariat of Treasury.  According to the United St ates, Economía did not include this information and 
the relevant documents in the public file of the investigation.  Thus, the United States asserts that 
Economía, having acted as such, breached Article 6.2 and 6.4 of the AD Agreement. 
5.56 Article 6.2 of the AD Agreement states that all in terested parties shall have the right to defend 
their interests in the course of the investigation.  Article 6.4 requires the authorities to provide “timely 
opportunities for all interested parties to see all inform ation that is relevant to the presentation of their 
cases, that is not confidential (…), and that is used  by the authorities in an anti-dumping investigation, 
(…)”.  
5.57 In view of the above requirements, Turkey believe s that the authorities shall provide all interested 
parties access to non-confidential information that is re levant for the parties in making their cases so that 
the interested parties can use the opportunity to defe nd their rights, as stipulated under Article 6.2.  The 
authorities’ acting so will also render the investigati on process more transparent and benefit all interested 
parties. 
4. Consistency of domestic legislation 
5.58 The United States alleges that various provisions of Mexico’s Foreign Trade Act and its FCCP are 
inconsistent with Mexico’s WTO obligations.  The Unite d States contends that particularly the provisions 
regarding time limit for responding questionnaires, fact s available, reviews, new shipper reviews and 
application of fines are inconsistent with Articles 5.8, 6.1.1, 9.3, 9.5, 11.2, 12.1.1 and 18.1 of the 
AD Agreement and Articles 11.9, 19.3, 21.2 and 32.1 of the SCM Agreement.  
5.59 Turkey submits that the Members being signatory  to the Final Act of the Uruguay Round and the 
Agreement Establishing the WTO, commit themselves to  be abide by the rules and procedures of the 
WTO Agreements.  The presence of such commitmen t provides security and predictability to the 
multilateral trading system.  Members should avoid impairing or nullifying benefits accruing to other 
Members by taking measures not allowed under the WTO Agreements. 
5.60 In this respect, domestic Legislations of the Members designed to implement the 
WTO Agreements shall be compatible with the require ments of the relevant Agreements.  Otherwise, the 
WTO Agreements and the multilateral system would prove unnecessary since Members might adopt Legislations with completely different obligati ons.  This would inevitably result in chaos and 
unpredictability of the international environment.      
5.61 As a matter of fact, Members are not precluded of having domestic Legislations.  On the contrary, 
the WTO Agreements put forward gene ral principles of application and they do not generally describe the 
procedures to be followed to act consistently with those principles.  Thus, domestic Legislations are 
especially important in those instances where they he lp to describe procedures and rules that should be  WT/DS295/R 
 
  followed in order to be compatible with the Agr eements.  However, the balance should be set.  The 
provisions of the domestic legislations should not create unnecessary burden for the respondents and they 
should not contradict or annul the provisions of the WTO Agreements. 
5. Conclusion 
5.62 Turkey has serious concerns in WTO Members’  interpretation of the fulfilment of their 
obligations under the AD Agreement. 
5.63 To this end, Turkey believes that among others , it is very essential for sake of transparency, 
fairness and appropriate functioning of this Agreement that the interested parties should not be deprived 
of their rights as specified in detail in the Agreement,  the authorities should abide by the provisions of the 
Agreements in conducting an anti-dumping investiga tion in an unbiased and objective manner.  Lastly, 
Turkey believes that the domestic Legislation of Me mbers should be in compliance with the relevant 
WTO Agreements to preserve the implementation sta ndards of measures in such areas as the area of  
anti-dumping and subsidies. 
D. T
HIRD PARTY ORAL STATEMENT OF CHINA  
5.64 China, in its oral statement, made the following arguments: 
1. Issue 1:  The closeness of the Period of In vestigation to the Date of Initiation 
5.65 In the alleged anti-dumping investigation, Mexico ’s investigating author ities established a period 
of investigation (“POI”) the ending of which was fifteen months earlier than the initiation of the 
investigation. 
5.66 Although the AD Agreement itself does not establis h any specific guidelines for determining an 
appropriate POI, the Anti-Dumping Committee has i ssued a recommendation to the effect that, as a 
general rule, POI shall be “ending as close to the da te of initiation as is practicable”.  China does not 
consider that the time lag of fifteen months between  the ending of POI and the date of initiation is in 
compliance with the spirit and substance of th e recommendation of the Anti-Dumping Committee. 
5.67 China believes that the evaluation of the closeness of the POI to the date of initiation should be 
considered in the context of its purpose and function under the AD Agreement. 
5.68 The closeness of the POI is important for the inv estigation and the determination of the existence 
of injury and dumping margin.  The data collected in a remote, non-proximate POI cannot prove that the 
dumped imports continue to exist at the present time,  and that the level of such dumped imports “causes 
or threatens to cause material injury” to a domestic i ndustry in the importing country .  In order to ensure a 
fair and equitable investigation, the data collect ed within the POI shall meet the requirement of 
“objectivity” and “positive evidence”, as such terms ar e defined in Article 3.1 of the AD Agreement.  
China agrees with the United States’ assertion that the di scretion of the investigating authorities to set the 
POI “is not boundless”.  As a general rule, the investigating authorities shall select the POI that is as close to the date of initiation of the investigation as practicable. 
2. Issue 2:  The seasonality of the Period of Investigation 
5.69 The United States alleges that Mexico’s inves tigating authorities examined only the March to 
August time period in each year of the POI for injury analysis.  Such six-month period reflected the main 
import activity of the product under investigation when domestic production is at a seasonal low.  
Mexico’s investigating authorities did not investigate the data in the September to February time period 
when domestic production is at a seasonal high and the import of the product under investigation is, 
conversely, relatively low.  For the purpose of injury  analysis, Mexico’s investigating authorities did not WT/DS295/R 
Page 86   compare the data of the seasonal high period with those of the seasonal low period.  Instead, it only compared the data of the same season, on a year-to-year basis. 
5.70 China takes no position as to whether or not the me thodology adopted by Mexico in this dispute, 
which is to examine only an annual portion/season of  the POI, as being inconsistent with its WTO 
obligations.  Instead, China deems it a ppropriate to highlight the issue of the seasonal characteristic that is 
implicit in the POI stipulated for this investigation. 
5.71 China believes that the investigating authorities ha ve the discretion to consider seasonality when 
establishing the POI of a specific investigation.  The Anti-Dumping Committee in its recommendation did 
recognize the discretion of investigating authorities to  “take account of the particular circumstances of a 
given investigation, to ensure that periods of data collection are appropriate in each case”.  Moreover, the Anti-Dumping Committee further recommended that “in establishing the specific periods of data collection in a particular investigation, investig ating authorities may, if possible, consider the 
characteristics of the product in question, including seasonality and cyclicality
” (emphasis added). 
5.72 China also believes that the examination of a domestic industry by the investigating authorities 
from a seasonal perspective shall be conducted in an “objective” manner as required by Article 3.1 of the 
AD Agreement.  The requirements of objectivity mean s that, where investigating authorities undertake an 
examination of a domestic industry in one season, they should, in principle, examine, in like manner, the 
same industry in all other seasons, as well as examine the industry for the whole year.  Or, in the 
alternative, the investigating authorities should provi de a satisfactory explanation as to why it is not 
necessary to examine certain seasons that have been excluded from examination. 
3. Issue 3:  Investigating authorities’ obligations as to evidence collection 
5.73 The United States alleged in the first written submissi on, that Mexico’s “failure to investigate or 
attempt to gather data from readily available sources” breached Articles 3.1 and 3.2 of the AD Agreement because Mexico failed to “identify exporters and importe rs other than the handful of those mentioned in 
the petition”;  failed to “send its anti-dumping questionnair e to exporters and importers other than the few 
designated as such in the petition, or to purchasers”;  failed to “consult the customs declarations”;  and 
failed to “seek to obtain accurate import volume information from importers”. 
5.74 The United States interpreted that the requirements of “objectivity” and “positive evidence” make 
it obligatory for the investigating authorities to “actively seek out information pertinent to” the 
investigation, and to “investigate or attempt to ga ther data from readily available sources”.  In other 
words, the United States asserts that the investigati ng authorities are obligated to  actively collect evidence 
in order to fulfil the requirements of “objectivity” and “positive evidence”.  China offers a different 
interpretation than that of the United States with regard  to the approach in order to meet the standard of 
“objectivity” and “positive evidence” as set forth in  Articles 3.1 and 3.2 of the AD Agreement. 
5.75 China believes that the obligations of the inv estigating authorities with regard to evidence 
collection are to give notice of information require d to all interested parties and to provide ample 
opportunity to present in writing all evidence, rather than to actively collect evidence as asserted by the 
United States.  Article 6.1 of the AD Agreement clear ly described the obligations of the investigating 
authorities as the following: “[a]ll interested parties in  an anti-dumping investigation shall be given notice 
of the information which the authorities require a nd ample opportunity to present in writing all evidence 
which they consider relevant in resp ect of the investigation in question.” 
5.76 The scope of the obligations of the investigati ng authorities as to the verification of the accuracy 
of the information provided by interested parties as defined in Article 6.6. of the AD Agreement is to 
“satisfy themselves as to the accuracy of the in formation … upon which their findings are based.”  WT/DS295/R 
 
  5.77 The requirement that the investigating authoriti es shall “satisfy themselves as to the accuracy of 
the information provided by interested par ties” was clearly described by the panel in US – DRAMS.  The 
panel here stated that if the investigating aut horities are obligated to ac tively seek evidence from all 
sources available, it is also likely that “anti-dumping investigations would, as a consequence, become 
totally unmanageable”.  China concurs with the panel’s findings. 
5.78 Only when the investigating authorities have to operate under “best information available” as 
described in Paragraph 7 of Annex II of the AD Agreem ent that the obligations to verify the accuracy of 
the information through independent sources arise “where practicable”. 
5.79 In sum, China does not find in the AD Agreemen t a solid legal basis to support the assertion of 
the United States that investigating authorities are obligated to actively seek evidence through 
independent sources except under very specific circumstances. 
4. Issue 4:  Known exporters 
5.80 The United States alleged in this dispute, that Mexico’s investigating authorities “improperly sent 
its anti-dumping questionnaire to only two companies that  were listed in the petition” and “made no effort 
to identify exporters and importers other than the handful of those mentioned in the petition”.  The 
allegation raises the issue of the obligations of inve stigating authorities with re spect to “known” exporters 
for the United States has asserted that Articles 5 and 6 of the AD Agreement “require an investigating 
authority to actively determine the universe of potential respondents
” and to “actively seek to identify 
individual exporters and producers ”.  China does not agree with such assertion and interpretation. 
5.81 China believes that Article 5.2 of the AD Ag reement expressly places the burden of identifying 
“known” exporters on the petitioners by stating that a petition shall include “the identity of each known 
exporter or foreign producer” of the product in question.  In Article 6.1.3, the use of the definite article 
“the” before “known exporters” shows that the phrase “known exporters” has been used in the previous 
text of the AD Agreement.  Given that both Article 5.2 and Article 6.1.3 use the same wording “known exporter”, the “known exporters” unde r Article 6.1.3 refer to “each know n exporter” under Article 5.2. 
Therefore, the AD Agreement suggests that investig ating authorities shall rely on the petitioners to 
identify “known” exporters in their petition(s). 
5.82 China would submit that at the outset of the inves tigation, the investigating authorities shall rely 
on the information in the petition to identify “known” exporters.  The authorities are obligated to check 
the “accuracy and adequacy” of such information and if  the authorities believe that such information is 
not accurate or adequate, it shall give reasonable time to the petitioners to provide further information or 
satisfactory explanation.  There is no legal basis in the AD Agreement for th e interpretation that the 
investigating authorities are obligated to actively seek  to identify “known” exporters by themselves from 
available sources. 
5. Issue 5:  Exporters that had no export during the POI 
5.83 The United States alleged that Mexico’ inves tigating authorities improperly calculated dumping 
margin on the basis of adverse facts available for a exporter that had made no export sale during the POI 
but that had fully cooperated with the investigating authorities in the investigation.  The United States 
asserts that a neutral “all other rate” shall be applie d to such exporter because its full cooperation left no 
warrant to apply adverse facts available that are stri ctly confined in Article 6.8 of the AD Agreement.  
Furthermore, the United States stated that such expor ter shall be entitled to the “new shipper” review as 
provided in Article 9.5 of the AD Agreement.  China be lieves that the United States’ interpretation that an 
exporter that made no export sales during the POI s hould have certain dumping margin applied to it 
(whether this is the neutral “all other rate”, or the dumping margin based upon facts available) is in error. WT/DS295/R 
Page 88   5.84 China would base its position on the following:  firstly
, an exporter that made no export sales 
during the POI shall not be considered as having been dumping the products under investigation because 
no dumping margin can be calculated for such exporter due to the non-existence of an applicable export 
price.  Article 2.1 of the AD Agreement provides that  “a product is to be considered as being dumped, if 
the export price  of the product exported from one country to anot her is less than the comparable price, in 
the ordinary course of trade, for the like product when  destined for consumption in the exporting country” 
(emphasis added).  An exporter that made no export sales during the POI had no export price that can be 
used to compare with the normal value to calcu late dumping margin, therefore, the product under 
investigation of such exporter cannot  “be considered as being dumped”. 
5.85 Secondly , Article 9.5 of the AD Agreement expressl y requires that “no anti-dumping duties shall 
be levied on imports from such exporters or pr oducers” “who have not exported the product to the 
importing Member during the period of investigation”. 
5.86 China believes that it is erroneous to impose any dumping margin on an exporter that made no 
export sales during the POI, whether this be the neutra l “all other rate” or that based upon facts available. 
E. THIRD PARTY ORAL STATEMENT OF THE EUROPEAN COMMUNITIES  
5.87 EC, in its oral statement, made the following arguments: 
1. Introduction 
5.88 The European Communities makes this third pa rty oral submission because of its systemic 
interest in the correct interp retation of the AD Agreement. 
5.89 In this oral submission the European Communiti es, reacting to certain statements made by 
Mexico in its first written submission and by the othe r third parties, will comment on the following points: 
(a) the use by Mexico of a stale period of inves tigation, ending more than 15 months before 
initiation of the investigation; 
(b) the use by Mexico of three select segmented six month periods for its injury 
determination; 
(c) the application of an “all others” rate ba sed on the facts available to unknown and known 
exporters or producers;  and 
(d) Article 93V of the Mexican Foreign Trade Act. 
2. Stale period of investigation 
5.90 The European Communities would respectfully draw  the Panel’s attention to what is essentially 
consensus among the United States and all of the third pa rties:  China;  the European Communities;  and 
Turkey.  All agree that the AD Agreement is silent on the period of time that may elapse between the end 
of the investigation period and the initiation of the pr oceeding.  There is no express rule in the text.  
Despite this, all agree, remarkably, that it is not a permissible interpretation of the AD Agreement to 
conclude that there is no limit to the period of time that may elapse.  That proposition is based on context 
and purpose, rather than text.  
5.91 It is a proposition derived from the fact that numerous provisions of GATT 1994, Article VI and 
the AD Agreement are in the present tense, or express a requirement of temporal proximity between the 
regulated behaviour (dumping causing injury) and its consequences (the measures that may be adopted  WT/DS295/R 
 
  under the AD Agreement);  and from the numerous pr ovisions of the AD Agreement that require an 
investigating authority to proceed in an objective manner, based on positive evidence.  
5.92 The European Communities welcomes such an appro ach, it being one that validates in a balanced 
manner all the relevant rules of interpretation, giving fair weight to the overall logic of the Agreement, 
and the role of WTO dispute settlement. EC invites the Panel to embrace it. 
3. Use of March to August 1997, 1998 and 1999 for injury analysis 
5.93 On the question of the periods analysed for the purposes of the injury investigation, the 
European Communities also draws the attention of the Panel to the substantial degree of consensus 
between the United States and the third parties, both as to interpretative technique, and the conclusion to 
be drawn on this point. 
5.94 The European Communities considers that the Pane l need not consider whether or not there may 
be an issue of seasonality in this case, because that  issue was not raised by or relied on by the 
investigating authority. 
5.95 Rather, the European Communities considers that  the Panel may and should make findings based 
on the general obligation of an investig ating authority to adhere in its dete rminations to a coherent internal 
logic.  This also results from the various provisions  of the AD Agreement which require an investigating 
authority to proceed in an objective manner and b ase its findings on positive evidence.  A determination 
that is internally contradictory cannot be, in all respects, objective and based on positive evidence.  Some 
part of it must be non-objective and/or not based on positive evidence.  The Appellate Body recently 
reiterated this basic requirement in the EC–Bed Linen  case.  It applies to an injury determination with just 
as much force as it applies to a dumping determination. 
5.96 In this case, the Panel need do no more than find th at Mexico determined it to be appropriate to 
assess injury over the three year period 1997, 1998 and 1999;  that in principle Me xico was thus bound by 
its own logic to make its injury determinations on a consistent and objective basis in relation to that 
period; and that Mexico departed from the logic it had itself established by ignoring certain events 
relevant to injury assessment that took place during that three year period, without any explanation.  Mexico thus acted inconsistently with the AD Agreement. 
5.97 On the question of seasonality, the European Comm unities would not rule out the possibility that 
it may have a role to play when fixing the paramete rs of a single homogenous inju ry investigation period; 
 or even that it should be taken into consideration w ithin a period of injury investigation that extends over 
more than one season.  That would not mean, however, that an investigating authority would be free to 
simply ignore certain events during the relevant period, without explanation. 
5.98 For example, in determining whether or not the margin of dumping would be de minimis  or the 
volume of imports negligible for the purposes of Article 3.3 of the AD Agreement, it is highly doubtful that an investigating authority could entirely ignore low season imports. 
5.99 The same is true of the factors listed in Artic le 3.4 of the AD Agreement in relation to the 
examination of the impact of the dumped imports on the domestic industry, many of which by definition 
have a temporal aspect, and the measurement of which could therefore be severely distorted if arbitrarily restricted to certain sub-periods within the injury investigation period. 
5.100  The same observation may be made in relation to the factors listed in Article 3.5 of the 
AD Agreement, those being factors causing injury othe r than dumped imports.  Events relevant to the 
assessment of these factors cannot be simply ignored  just because they happen to fall outside the 
particular sub-period or sub-periods arbitrar ily selected by the investigating authority. WT/DS295/R 
Page 90   5.101  These observations are confirmed if it is recalled that seasonality may affect all Members to a 
greater or lesser extent.  There may even be cases in which, in one season of the calendar year, Member A 
exports to Member B, whilst in another season of the calendar year, Member B exports the same product 
to Member A.  In such a case, to look at only half the picture, could well result in a particularly distorted view of the situation.  
4. All others rate, facts available 
5.102  The European Communities recalls that there is no dispute between the parties as to whether a 
residual duty can be imposed on imports from unknow n exporters or known non-exporting producers.  
Both parties agree that a residual duty can be imposed  in both circumstances.  Thus, contrary to what 
China suggests in its third party submission
40, the Panel is not asked to make any findings on this 
particular point. The parties disagree only on the ques tion of how the residual dut y should be established, 
that is, on whether or not such a duty can be based on f acts available.  This is therefore the specific issue 
on which the Panel is called upon to make findings in  this case.  The European Communities has pointed 
out that nothing in the AD Agreement precludes the resi dual duty from being based on facts available.  In 
particular, Article 9.4 of the AD Agreement is irrele vant to this question, being limited to the specific 
circumstances in which sampling is used. 
5. Fines imposed pursuant to Article 93V of the Foreign Trade Act 
5.103  In so far as Article 93V of the Mexican Forei gn Trade Act effectively requires the imposition of 
fines for dumped or subsidised imports from WTO Members, the European Communities would support the United States' claim that this is an impermissi ble specific action against dumping or subsidisation in 
violation of Article 18.1 of the AD Agreement and Article 32.1 of the SCM Agreement.  The European Communities would also take this opportunity  to recall that the United States has yet has to 
bring its own legislation into conformity with th ese specific obligations of the AD Agreement and the 
SCM Agreement by complying with the rulings in the US–1916 Act  case and the US–Offset Act 
(Byrd Amendment)  case. 
F. T
HIRD PARTY ORAL STATEMENT OF TURKEY  
5.104  Turkey, in its oral statement, made the following arguments: 
5.105  Turkey has not made submissions with respect to a ll matters raised before this Panel.  However, 
Turkey would like to remind that this should not be understood to imply that Turkey either agrees with or objects to such interpretations of the Agr eement by the parties to the dispute.  
5.106  Turkey presents the four issues that it had raised in its written submission: 
(a) Selection of an investigation period that ended more than fifteen months prior to the date 
of initiation of the investigation; 
(b) Limitation of inquiry to only certain months where imports were at their highest and 
domestic production was lowest; 
(c) Application of “adverse facts available” to certain companies; 
(d) Consistency of domestic Legi slations with provisions of the AD Agreement and the 
Agreement on Subsidies and Countervailing Measures and obligations of Members.  
                                                     
 
40  Third party written submission of China, paras. 32 to 35.  WT/DS295/R 
 
  5.107  As for the first issue, that is, Economía’s selecti on of an investigation period that ended more than 
fifteen months prior to the date of initiation of  the investigation, Turkey acknowledges that the 
AD Agreement does not establish any specific period of i nvestigation.  However, in Turkey's view, the 
wording of both the Agreement and Article VI of  GATT 1994 leads the authorities to investigate the 
presence of dumping, injury and causation in the most r ecent time period.  It is Turkey's opinion that the 
period of data collection for dumping investigations should end as close to the date of initiation as is 
practicable to display fair results.  This is also impor tant for purposes of predictability and transparency of 
the investigations and credibility of the authority’s actions. 
5.108  As for the second issue on the limitation of inquiry to only certain months where imports were at 
their highest and domestic production was lowest, Tu rkey would like to refer to Article 17 of the 
Agreement.  In accordance with the said Article, the panels are entitled to determine whether the 
authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased 
and objective.  In this respect, the Panel may consider here if selection of those particular periods resulted 
in a solution different from what it would be if the wh ole one-year period were taken, in other words what 
an objective and unbiased authority would do in any given investigation.  In addition, Turkey thinks that 
seasonality is an important aspect of this investiga tion.  The Panel may also focus on the seasonality of 
the subject product and its conformity with the practice of limiting the inquiry to certain parts of the year. 
5.109  Turkey would also like to emphasize that in case the authority is deviating from its normal 
practice, it should provide the reasons for such devi ation for purposes of transparency and predictability 
and invite the interested parties to submit rebutta l arguments if they would consider such practice 
inappropriate. 
5.110  The third issue that Turkey would like to bring up is the application by Mexico of “adverse facts 
available” to certain US producer/exporters.  As regard s the use of facts available, Article 6.8 clearly 
identifies the circumstances under which an investigating authority may resort to the “facts available”.  In accordance with this Article, only if an interested party “refuses access to” necessary information within a 
reasonable period, or “otherwise does not provide” n ecessary information within a reasonable period, or 
“significantly impedes the investigation”, the inves tigating authority may make determinations on the 
basis of the facts available. 
5.111  However, under certain circumstances the case may not be so straightforward.  Assume a case 
where the investigating authority has acted to the best of its ability in reaching all the interested parties, 
that is to say it sent questionnaires to all the know n exporters/producers, published a notice of initiation 
and notified the government of the exporting Me mber and requested assistance to reach unknown 
exporters/producers in the exporting Member.  
5.112  Assume that in the above scenario only one expor ter/producer cooperated with the authority and 
responded to the questionnaire while all the other exporter/producers avoided cooperation.  The only 
cooperating company received de minimis  dumping margin.  Here, Turkey does not think that those  
non-cooperating companies shoul d receive the margin of the cooperati ng company or a neutral “all others 
rate”.  In such case, calculation of the dumping margin for the non-c ooperating parties s hould be based on 
facts available. 
5.113  In Turkey's view, application of facts availabl e should be considered on a case by case basis.  In 
any case the investigating authorities and interested parties should fulf il their respective requirements and 
bear the results of their relevant actions. 
5.114  As regards the treatment of “new shippers”, th e only Article that is relevant with potential 
exporters of the product concerned in the Agreement is  Article 9.5.  The purpose of this Article is to 
eliminate the unfairness of punishing the newcomers with  the residual duty of the original investigation 
for reasons beyond their control.  The Article clearly states that to request a review those exporters or 
producers must show that they are not related to any of the exporters or producers in the exporting WT/DS295/R 
Page 92   country which are subject to the anti-dumping duties on the product.  This provision clarifies that the original investigation has already finished and the duties are in place, thus it does not recognize that new 
shippers can request an individual treatment during th e investigation.  Then the same Article continues 
that the review for those companies should be initia ted and carried out on an accelerated basis and no anti-
dumping duties shall be levied on imports of such expor ters or producers while the review is being carried 
out.  That is to say, regardless of the duty placed on th e company they will not be subjected to that in the 
course of the investigation but may only be required to place guarantees or to withhold appraisement.  In 
this respect, investigating authorities are not required by the Agreement to carry out individual investigations for those companies who did not export during the investigation period.  
5.115  The last issue Turkey would like to raise is th e consistency of domestic Legislations with the 
WTO Agreements and the WTO obligations of the Members.  Turkey would like to remind that its written submission on this issue had been made before Turkey had the opportunity to examine Mexico’s 
submission.  Therefore, concerning this last issue, Turkey's submission did not include the views and approach that it would like to present after having examined Mexico’s submission as well.  
5.116  In this case, the United States refers to some pr ovisions of the Mexican Foreign Trade Act that it 
considers to be inconsistent with the AD Agreement and the SCM Agreement.  However, Mexico stated 
in its submission that the challenged Legislation entere d into force several months after the termination of 
the investigation on imports of long-grain white rice orig inating in the United States.  In other words, the 
reformed legislation subject to challenge by the Un ited States was not in force during the time when the 
investigation was ongoing.  Thus, Turkey believes that, even though the Mexican Foreign Trade Act 
involves some provisions allegedly inconsistent with the aforementioned Agreements, these were 
introduced after the termination of the subject inv estigation and should therefore be excluded from the 
scope of this panel and examined independently from this proceeding. 
VI. INTERIM REVIEW 
6.1 On 11 March 2005, the Panel issued its Interim Report to the parties.  On 29 March 2005, the 
United States and Mexico requested the Panel to review precise aspects of the Interim Report, in 
accordance with Article 15.2 of the DSU.  Mexico also  requested the Panel to hol d a further meeting with 
the parties pursuant to Article 15 of the DSU and pa ragraph 8 of the Panel's Working Procedures.  The 
meeting was held on 25 April 2005. 
6.2 We have briefly outlined our treatment of the par ties' requests below.  Wh ere necessary, we have 
also made certain technical revisions to our Report. 
A. C
OMMENTS BY THE UNITED STATES  
6.3 In its comments on the Interim Report, the United States requests the Panel to make a number of 
technical and typographical corrections.  Where appropr iate, we made such corrections to our Report.  
6.4 The United States requests the Panel to amend paragraph 7.62 of the Report relating to the 
Recommendation of the Committee on Anti-Dumping Practices in order to reflect that this Recommendation supports the interpretation of the Pane l rather than providing "useful context" for the 
correct interpretation of the obligations.  Accordi ng to the United States, the Recommendation cannot be 
considered as "context" in the very particular sen se in which that word has meaning under the Vienna 
Convention on the Law of Treaties, and this term shoul d, therefore, be avoided.  In its comment on the 
request of the United States, Mexico stated that the Recommendation is not binding and does not create new obligations for WTO Members.  We note that the Un ited States pointed out that this is also the reason 
why it would prefer to avoid the use of the term "cont ext" in this paragraph.  In order to avoid any 
misunderstanding, we amended our Report to state that this Recommendation provides "useful support" 
for our interpretation.      WT/DS295/R 
 
  6.5 With respect to paragraph 7.223 of our Report, the United States requests the Panel to amend the 
Report to make sure that it is clear that the Panel findings address the consistency of Article 53 of the Act 
with both Article 6.1.1 of the AD Agreement and Ar ticle 12.1.1 of the SCM Agreement. We accept the 
request of the United States and have amended our Report accordingly.  
6.6 The United States requests the Panel to reconsider  its position set out in paragraph 7.299 that the 
United States failed to provide sufficient evidence that  Article 97 of the Act deals with the expedited 
reviews that are provided for in Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement. 
According to the United States, under Article 97 of the Act, only determinations issued at the end of a 
judicial proceeding can be considered "final".  Sin ce Article 89D of the Act only permits an exporter to 
request a review if the good in question is subject to a final duty, Article 97 of the Act, when read together with Article 89D of the Act does preclude expedite d reviews and is, therefore, inconsistent with 
Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement.  
6.7 We consider that we sufficiently explain our positi on with regard to Article 97 of the Act in our 
Report.  As the United States acknowledges, Article 89D  of the Act is the relevant provision of the Act 
addressing expedited reviews. Article 97 of the Act does not, as such, deal with expedited reviews.  
Article 97 of the Act only becomes relevant due to the particular language used in Article 89D of the Act 
referring to a "final duty".  In our view, the United States thus failed to adduce sufficient evidence that 
Article 97 of the Act, as such, is inconsistent with the obligations concerning expedited reviews set forth 
in Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement.  We do not consider that the US comments are of such nature as to require us to reconsider our position and to  amend our report.  We, 
therefore, reject the request of the United States in this respect.  
6.8 The United States requests the Panel to amend footnote 202 of the Report dealing with Mexico's 
argument that the United States should have adduced  evidence of the application of the challenged 
provisions of the Act.  The United States requests the Panel to restate its rejection of this argument by 
Mexico.  According to the United States, the questi on of Mexican law does not implicate WTO or general 
public international legal issues, but is a question of fact from the standpoint of WTO proceedings.  In its 
comment on the request of the United States, Mexico stat es that it does not consider this to be a matter of 
fact and repeats its argument that the United States failed to make a prima facie  case.   
6.9 While we agree with the United States that the question of the meaning a WTO Member's law is a 
question of fact, we note that in this footnote we are responding to an argument made by Mexico that 
WTO jurisprudence required the complaining party to a dduce particular evidence to prove this fact.  As 
we explain in footnote 202, we do not ag ree with Mexico that this fact is necessarily to be demonstrated in 
a particular way.  Neither has Mexico demonstrated that rules of general public international law provide 
for such a particular evidentiary requirement.  In li ght of the comments received, and in order to clarify 
our position, we have slightly reworded this footnote. 
B. C
OMMENTS BY MEXICO  
1. Observations concerning the section on the anti -dumping measure imposed on imports of 
long-grain white rice from the United States 
6.10 Mexico requests the Panel to amend paragraph 7. 52 and footnote 66 of the Report to reflect more 
fully Mexico's arguments as set forth in paragraphs 44 and 45 of Mexico's First Written Submission.  We 
consider that for the purposes of our findings, para graph 7.52 already accurately reflected Mexico's 
position.  However, in order to avoid any misunders tanding, we changed the grammar of the paragraph's 
sentence relating to Mexico's view of the purpose of an anti-dumping measure so as to track Mexico's own 
wording as much as possible.   
6.11 Mexico requests the Panel to clarify and comple te the last part of paragraph 7.52 as Mexico 
considers that the last sentence of this paragraph is  not clear and overlooks what was said in paragraph 67 WT/DS295/R 
Page 94   of Mexico's First Written Submission.  The United St ates considers that the Panel accurately reflected 
Mexico's statement in this respect and refers to foot note 71 of our Report.  We note that the last part of 
paragraph 7.52 is taken almost ve rbatim from paragraph 35 of Mexico 's Second Written Submission.  In 
addition, we consider that the relevant part of th e paragraph of Mexico's First Written Submission that 
Mexico wants the Panel to incorporate in the Final Report is already reflected in the penultimate sentence of paragraph 7.52 of our Report.  We, therefore,  reject Mexico's request to amend our Report. 
6.12 Mexico requests the Panel to include a numbe r of paragraphs of Mexico's Second Written 
Submission into paragraph 7.57 of the Report, which it considers to be incomplete and inaccurate.  In 
addition, according to Mexico, what the Panel refers to as a position held by Mexico is not a submission 
of Mexico's but a comment on what was said by the United States in its Opening Statement at the first 
substantive meeting.  We note that paragraph 7.57 is part of our analysis of the arguments of the parties 
which, as such, have been set forth in more detail in our Report, in "Section IV:  Arguments of the 
Parties" and in the relevant part of "Section VII: Fi ndings" dealing with the arguments of the parties.  In 
paragraph 7.57, we highlight a pa rticularly relevant statement by Mexico.  We do not consider it 
necessary to include in this paragraph of our analysis a more elaborate explanation of Mexico's arguments 
which are fully reflected elsewhere in the Report.  We , therefore, reject Mexico's request to amend our 
Report. 
6.13 Mexico requests the Panel to amend paragraph 7.82 of the Report to reflect that it did not argue 
that taking a six month period was the only way of avoiding distortions.  Mexico also requests the Panel to 
further amend paragraph 7.82 of the Report to reflect th at Mexico did not state or give any indication that 
by "distortions" it was referring to "certain developments which occur in the remaining six months which perhaps undo part of the effect of the imports that entered the country during the six months that were 
examined", as Mexico considers is suggested in the Report.  The Unite d States considers that the Panel 
never claimed that Mexico made such a statement, but that the Panel was rather providing its own assessment of the facts in question.   
6.14 We accept Mexico's comment that it did not say that applying a six month period was the only 
way of avoiding distortions, and we have amended our Report accordingly.   We do not consider that we 
need to make the additional amendment to paragra ph 7.82 of our Report as requested by Mexico.  We 
note that paragraph 7.82 contains our analysis of Mexico's arguments in defence of the time period 
chosen, which has to be read in light of the fact that Mexico itself clearly indicated that seasonality was 
not an issue in adopting this six month period of inves tigation.  This statement is thus our reflection of 
Mexico's explanations and not a summary of Mexico's  argument, as Mexico seems to be suggesting.  We 
consider that we sufficiently explained in our Repor t our position with respect to the failure to examine 
six months of each of the years of the period of inves tigation.  We therefore reject Mexico's request to 
amend our Report.   
6.15 Mexico requests the Panel to include the necessary details in footnote 78 of the Report to show 
that Mexico did not submit that "... its practise ... shows delays of sometimes six months, on other 
occasions 20 months between the end of the period of  investigation and the date of initiation of the 
investigation, depending on the period of investigation the applicant is proposing".  Mexico refers to a 
more complete description of its arguments in para graphs 43 and 44 of its Second Written Submission.  
We acknowledge that, answering a question from the Pane l, it was the United States, rather than Mexico, 
which presented an overview of the rele vant practice of Mexico with respect to the choice of the period of 
investigations.
41  Mexico, in its Second Written Submission, however, did not contest the accuracy of 
these data, but rather confirmed that its practice reveals that on average there are about 10 months between the end of the period of investigation and the in itiation of the investigation.  In light of Mexico's 
request, we have slightly amended footnote 78 of  our Report in order to clarify this point.  
                                                     
 
41 US First Answers to Questions, para. 5 (question 2) .  This was confirmed by the United States in its 
comments on the Mexican request for interim review.   WT/DS295/R 
 
  6.16 Mexico requests the Panel to amend paragraph 7.95 of the Report to more accurately reflect 
Mexico's position that it considers that an investigati ng authority is not required to send questionnaires to 
all the foreign producers and exporters.  We accept Mexico's request and have amended our Report 
accordingly.  
6.17 Mexico comments that on four occasions in the Report, the Panel refers to a "reasonable" 
investigating authority.  Mexico requests the Panel to  include an explanation of the term "reasonable".  
While we consider that a reasonable investigating authority is in the first place an authority which 
conducts an objective evaluation of the matter before it,  in the sense given to the term "objective" by the 
Appellate Body in inter alia  the case of US – Hot-Rolled Steel,
42 we decided that such a reference to a 
"reasonable" investigating authority in the paragr aphs identified by Mexico was not necessary and we 
have amended our Report accordingly.  
6.18 Mexico considers that paragraph 7.134 of the Re port regarding Mexico's argument that it suffices 
for one exporter to be found to  have been dumping above the de minimis  level for all exporters to be 
included in the application of the measure, does not fu lly reflect Mexico's position.  Mexico requests the 
Panel to include a reference to Mexico's argument set forth in its First Written Submission that if 
exporters do not engage in dumping, a review will not lead to the application of any measure - in the 
sense of the imposition of a duty - and such exporters will be able to continue enjoying their right to 
export without a dumping margin.  The United States c onsiders that the argument referred to by Mexico 
has nothing to do with the point the Panel is making in paragraph 7.134 of the Report.  We are of the view 
that, in any case, such a reference as requested by Mexico is already contained in footnote 138 of our 
Report.  We therefore reject Mexico's request to further amend our Report. 
6.19 Mexico requests the Panel to clarify footnote 142 which provides that Mexico did not argue that 
an investigation has to be terminated if  the country-wide dumping margin is below de minimis .  Mexico 
fails to understand in what way the fact that Mexico did not make this argument may affect the analysis 
contained in the Panel's findings, given that it is not  an issue in dispute.  We note that footnote 142 
implicitly refers to an argument made by the European Communities as a Third Party that the 
investigation is only to be terminated if  the country-wide dumping margin is below de minimis.   We 
consider it relevant, in light of this argument made by one of the Third Parties concerning the 
interpretation of Article 5.8 of the AD Agreement, to indicate that this possible argument was not one 
made by Mexico before us.  While this fact does not  alter our analysis, it completes our discussion of the 
arguments of the parties concerning the correct interp retation of Article 5.8 of the AD Agreement.  We, 
therefore, reject Mexico's request to amend our Report.  
6.20 Mexico considers that paragraph 7.143 of the Report which states that Mexico argues that 
termination of the investigation is only required when  all of the margins of dumping for all exporters or 
producers are below de minimis , does not accurately reflect its position.  Mexico requests the Panel to 
reflect the fact that Mexico asserted in its Answer s to Questions from the Panel relating to the first 
                                                      
42 Appellate Body report, US - Hot-Rolled Steel , para. 193:  
"193. The term "objective examination" aims at a different aspect of the investigating 
authorities' determination.  While the term "positive evidence" focuses on the facts underpinning and justifying the injury determination, the term  "objective examination" is concerned with the 
investigative process itself.  The word "examination"  relates, in our view, to the way in which the 
evidence is gathered, inquired into and, subsequen tly, evaluated;  that is, it relates to the conduct 
of the investigation generally.  The word "obj ective", which qualifies the word "examination", 
indicates essentially that the "examination" pro cess must conform to the dictates of the basic 
principles of good faith and fundamental fairness.  In short, an "objective examination" requires 
that the domestic industry, and the effects of dumped imports, be investigated in an unbiased 
manner, without favouring the interests of any intere sted party, or group of interested parties, in 
the investigation.  The duty of the investigati ng authorities to conduct an "objective examination" 
recognizes that the determination will be influenced by the objectivity, or any lack thereof, of the investigative process."
  WT/DS295/R 
Page 96   substantive meeting that any exporter for which the authority finds a more than zero and below 
de minimis  margin of dumping would receive a zero per cent duty.  In addition, Mexico asserts that in its 
Second Written Submission it argued that the investigati on is to be terminated where the investigating 
authority concludes that the margin of dumping is de minimis  – a determination that must be made for 
each country as a whole and not on a firm-specific basis.  
6.21 We note that paragraph 7.143 of the Report contains  our analysis of the various arguments of the 
parties which are set forth in more detail elsewhere in  the Report.  We consider that the above statement 
that Mexico wants us to amend or delete is b ased on Mexico's argument, which it repeated in its 
comments on the Interim Report, that "it does suffice for one exporter to have been found to be dumping 
above the de minimis  level for all exporters to be include d in the application of the measure".
43  We, 
therefore, do not agree with Mexico that its position is not accurately reflected in paragraph 7.143 of the 
Report.  We explain in this paragr aph, and other relevant paragraphs, our interpreta tion of Article 5.8 of 
the AD Agreement.  We conclude that Article 5. 8 of the AD Agreement refers to exporter-specific 
margins of dumping.  We wish to add that in pa ragraph 7.144 we address and reject Mexico's argument 
that the application of a zero per cent duty to an expor ter does not constitute the application of a measure. 
 We therefore see no reason to amend our Report as sugg ested by Mexico and reject Mexico's request in 
this respect. 
6.22 Mexico considers that its position is not properl y reflected in footnote 144 of the Report dealing 
with the alleged practical problem of an interpretation of Article 5.8 of the AD Agreement that could lead to parallel investigations against the same products fro m the same country.  Mexico requests that part of 
the footnote referring to Mexico's position be deleted. In light of the fact that the argument of practicality was mainly one made by the European Communities in its Third Party Submission, we accept Mexico's 
request and have amended footnote 144 accordingly. 
6.23 Mexico considers incorrect the statement of th e Panel in paragraph 7.197 of the Report that 
"throughout the application the name of a third US e xporter, the 'Rice Corporation' is referred to".  
Mexico points out that the only reference to that  exporter in the application for initiation of an 
investigation is to be found in Annex H of the application. Mexico requests the Panel to amend the Report accordingly.  In commenting on the Mexican request, th e United States argues that the Panel is correct in 
stating that the name of this US exporter appeared  throughout the application.  We note that, as rightly 
pointed out by the United States, pages 23, 24 and 44 of the application and page 42 of part II of the 
application clearly refer to this US exporter.  We ther efore reject Mexico's request to amend our Report.   
6.24 Mexico is of the view that paragraph 7.199 of th e Report does not adequately reflect its position.  
According to Mexico, it did not acknow ledge that it would have been possible to identify all US exporters 
by examining the so-called pedimentos.  Mexico stat es that, while the pedimentos contain information on 
the names of the exporters, this does not necessarily m ean that all the exporters of long-grain white rice 
can be identified.  Mexico argues that the pediment os would allow identification only of exporters of 
white rice, without any indication as to whether they exported short-grain, pre-cooked, etc. white rice, 
because the product description in the pedimentos serves only to ensure that the imported product 
corresponds to the tariff heading description, which cove rs many types of white rice.  Mexico therefore 
requests the Panel to amend this paragraph to more  accurately reflect its position.  The United States 
considers that the Panel made a correct statement of  fact concerning the information contained in the 
pedimentos.  
6.25 We note that Mexico clearly stated that the pedimentos contain information not only on the 
volume and value of the imports, but also on the identity of the exporters.
44  We acknowledge Mexico's 
point that the pedimentos do not always distinguish betw een exporters of various types of white rice.  This 
does not alter our view, which we have further clarif ied by adding a sentence to footnote 193.  Mexico's 
                                                      
43 Mexico First Answers to Questions, question 20. 
44 Mexico First Answers to Questions, question 15.   WT/DS295/R 
 
  statement that the pedimentos included imports of all white rice, which is clearly inclusive of the subject 
long grain  white rice, only confirms our view.  We therefore reject to make the amendment requested by 
Mexico.   
2. Observations concerning the section concern ing the Foreign Trade Act ("the Act") 
6.26 Mexico considers that footnote 202 of the Report does not accurately reflect Mexico's position.  
Mexico notes that the Panel concludes in this footnot e that there is no basis for a requirement to adduce 
evidence in each of a party's "as such " claims of the application of the law, while Mexico had pointed to 
an Appellate Body report which came to the opposite conclusion.  We note that Mexico's comments do 
not concern the presentation of Mexico's position, but rather that Mexico is commenting on the fact that we did not follow it in its argumentation.  As becom es clear from the conclusion in this footnote, we do 
not consider that the Appellate Body report in US – Carbon Steel  that Mexico has referred to actually 
supports Mexico's argument.  The Appellate Body stat ed that such evidence of inconsistent legislation 
will typically be produced in the form of the text of  the relevant legislation or legal instruments, " which 
may be supported, as appropriate , by evidence of consistent application of such laws, the 
pronouncements of domestic courts on the meaning of such laws, the opinions of legal experts and the 
writings of recognized scholars" (emphasis added).  In  our view, the Appellate Body was thus clearly not 
requiring that for an "as such" claim to be successful, ev idence is to be adduced of the application of the 
law by the executive authorities and the domestic cour ts, in each case.  We consider that our Report 
sufficiently explains the basis for our findings of incons istency of several parts of the Act.  We therefore 
reject Mexico's request to amend our Report. 
6.27 Mexico considers that footnote 204 of the Report concerning the impact of the direct effect of 
WTO Agreements in Mexican law does not accurately reflect its position.  In particular Mexico considers 
that reference should be made to its argument expr essed in paragraph 206 of its First Written Submission 
that the Act has to be implemented as established in Article 2 of the Act in a manner congruent with the 
provisions of the Marrakesh Agreement and the Agr eements it encompasses.  Mexico requests the Panel 
to modify its findings so that they faithfully reflect the position held by Mexico in this dispute.  We note 
that in footnote 204, which Mexico is referring to, as well as in paragraphs 7.224 and 7.225, we explain in 
detail why we do not follow Mexico's argument with rega rd to the impact for our review of Mexican law 
of the direct effect of the WTO Agreements in Me xican law.  We consider that Mexico's position is 
accurately reflected both in paragra ph 7.215 as well as in the above men tioned paragraphs.  We, therefore, 
reject Mexico's request to amend our Report. 
6.28 Mexico considers that its argument that the AD Agreement does not require the questionnaires to 
be sent to all exporters and foreign producers is not properly reflected in paragraph 7.232 of the Report as 
this paragraph refers to all interested parties .  Mexico requests the Panel to amend its Report to reflect 
that Mexico's statement was not about all interested  parties, but only about all exporters and foreign 
producers.  We accept Mexico's request a nd have amended our Report accordingly. 
6.29 Mexico requests the Panel to clarify the meaning of  the term "to obtain" an administrative review 
in paragraph 7.253 of the Report.  As became clear during the interim review meeting, Mexico's comment 
seems to be that the Panel should make a distinction between the right to obtain the initiation of a review 
and the right to have the duties reviewed.  We consid er that in paragraph 7.253 of our Report we explain 
that we do not consider this to be a meaningful distin ction and we reject Mexico's argument in clear terms. 
We are of the view that our Report is sufficiently  clear on what is meant by the terms "to obtain a review". We, therefore, reject Mexico's request to amend our Report.   
6.30 Mexico requests the Panel to amend paragraph 7.262 of the Report which discusses the scope of 
Article 89D of the Act, and refers to a recent case in which a new-shipper review was initiated for a 
trading house, "rather than a producer".  Mexico consid ers that this last part of paragraph 7.262 gives the 
impression that the firm in question was involved bot h in exporting and in produc ing, and that exporting WT/DS295/R 
Page 98   was its main activity, which is not the case.  Mexico requests the Panel to dele te from paragraph 7.262 the 
phrase "rather than a producer".  We accept Mexico' s request and have amended our Report accordingly.  
6.31 Mexico further considers that paragraphs 7.262 and 7.263 of the Report should reflect the fact 
that Mexico argued in its Second Written Submission th at Article 47 of the Act's Regulations provides for 
new-shipper reviews for non-producing enterprises, i.e.  enterprises devoted solely to exportation.  We 
note that in these two paragraphs we describe Mexico's  argument.  Since it is correct that Mexico made 
this argument based on Article 47 of the Act's Regul ations, we accept Mexico's request and have amended 
our Report accordingly.  We note that in light of our findings on another aspect of Article 89D of the Act, 
we do not rule on the aspects of the claim that Mexico's comments relate to.   
6.32 Mexico requests the Panel to specify in paragr aph 7.67 of the Report that the argument of the 
United States which is reflected in that paragraph is  based on data for paddy rice rather than long-grain 
white rice.  We note that in paragraph 7.83 of th e Report we explicitly state that these data concern 
imports of paddy rice and explain the importance we attach to these data.  We therefore see no need to 
amend this paragraph 7.67 dealing with the arguments  of the United States in respect of its claim.  
6.33 Finally, Mexico requests the Panel to make certain  clerical changes to the English and Spanish 
texts of the Report.  We accept Mexico's requ est and have amended our Report accordingly.  
VII. FINDINGS 
7.1 This case concerns two sets of claims made by the United States regarding, on the one hand, the 
definitive anti-dumping measures imposed on imports of long-grain white rice from the United States, and on the other hand, a number of provisions of Mexico’s  Foreign Trade Act and its Federal Code of Civil 
Procedure.  A. G
ENERAL ISSUES  
1. Standard of Review 
7.2 In light of the claims and arguments made by the parties in the course of these Panel proceedings, 
we recall, at the outset of our examination, the standa rd of review we must apply to the matter before us. 
7.3 Article 11 of the Understanding on Rules and Pr ocedures Governing the Settlement of Disputes 
("the DSU")45, in isolation, sets forth the appropriate sta ndard of review for pa nels for all covered 
agreements except the Anti-Dumpi ng Agreement ("AD Agreement").  Article 11 imposes upon panels a 
comprehensive obligation to make an "objective asse ssment of the matter", an obligation which embraces 
all aspects of a panel's examination of the "matter", both factual and legal. 
7.4 Article 17.6 of the AD Agreement sets forth the sp ecial standard of review applicable to anti-
dumping disputes.  It provides:  
“(i) in its assessment of the facts of the ma tter, 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 evalua tion shall not be overturned;”  
                                                     
 
45 Article 11 of the DSU states:  "The function of panels is to assist the DSB in discharging its 
responsibilities under this Understanding and the covered agreements.  Accordingly, 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 ag reements, and make such other findings as will assist the 
DSB in making the recommendations or in giving the rulings provided for in the covered agreements…"  WT/DS295/R 
 
  
“(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 permissible interpretation, the panel shall find the authoriti es’ measure to be in conformity with the 
Agreement if it rests upon one of those permissible interpretations.”  
7.5 Thus, together, Article 11 of the DSU and Article 17.6 of the AD Agreement set out the standard 
of review we must apply with respect to both the factual and legal aspects of our examination of the 
claims and arguments raised by the parties.
46 
7.6 In light of this standard of review, in examin ing the claims under the AD Agreement in the matter 
referred to us, we must evaluate whether Mexico's  measures at issue are consistent with relevant 
provisions of the AD Agreement.  If we find that the Mexican investigating authorities have properly established the facts and evaluated them in an unbiased and objective manner, and  that the determinations 
rest upon a permissible interpretation of the relevant  provisions, we will consider this measure to be 
consistent with the relevant provisions of the AD Agreement.  Our task is not to perform a de novo  review 
of the information and evidence on the record, nor to  substitute our judgment for that of the Mexican 
authorities, even though we might have arrived at a different determination were we examining the record ourselves. 
2. Burden of Proof 
7.7 We recall that the general principles applicable  to burden of proof in WTO dispute settlement 
require that a party claiming a violation of a provision of the WTO Agreement by another Member must assert and prove its claim.
47  In these Panel proceedings, the Un ited States, which has challenged the 
consistency of the Mexican anti-dumping measure and of  certain provisions of Mexico's law, thus bears 
the burden of demonstrating an incons istency with the relevant provisions of the Agreement. We also note 
that it is generally for each party asserting a fact to provide proof thereof.48  We also recall that a 
prima facie  case is one which, in the absence of effective re futation by the other party, requires a panel, as 
a matter of law, to rule in favour of the party presenting the prima facie  case. 
B. MEXICO 'S REQUEST FOR PRELIMINARY RULINGS  
7.8 In its first submission to the Panel of 26 April 2004, Mexico requested the Panel to issue a 
preliminary ruling that a number of claims made by the United States were outside the Panel's terms of 
reference.  At the request of the Panel, the Unite d States submitted its comments on Mexico's request on 
7 May 2004. 
7.9 We first summarize the arguments of the parties before making our findings with respect to Mexico's 
request for a preliminary ruling. 
1. Arguments of the Parties 
(a) Mexico 
7.10 Mexico requests the Panel to issue a preliminar y ruling concerning alleged deficiencies in the 
United States' request for establishment of a panel49 (the "US request for establishment") and to abstain from 
entertaining those claims that are not consistent with Article 6.2 of the DSU or were not subject to prior 
                                                      
46 Appellate Body Report, US – Hot-Rolled Steel , paras. 54-62. 
47 Appellate Body Report, US – Wool Shirts and Blouses , p. 337. 
48 Ibid. 
49 WT/DS295/2 WT/DS295/R 
Page 100   consultations.  In addition, Mexico considers that th e US request for establishment is inconsistent with 
Article 17.5 (i) of the AD Agreement.  
7.11 First, Mexico submits that the US request for esta blishment fails to comply with Article 6.2 of the 
DSU as it fails to provide a brief summary of the le gal basis of the complaint sufficient to present the 
problem clearly.  In addition, Mexico argues that one of the measures challenged by the United States was 
not properly identified in the request for establishment.  
7.12 In particular, Mexico argues that the following clai ms set forth in the request for establishment are 
overly vague and unclear: 
• the claim of violation of Article VI of the GATT 1994 which fails to specify which of the 
paragraphs of Article VI of the GATT 1994 are alleged to have been violated; 
 
• the claim relating to Article 4.1 of the AD Agreement concerning the definition of the domestic 
industry as the United States merely refers to vi olations of Article 3 of the AD Agreement and 
fails to explain why it considers that Article 4.1 of the AD Agreement would have been violated;  
 
• the claim relating to the use of facts available to a non-shipping exporter set forth in section 1(f) 
of the request for establishment, which refers to a large number of provisions of the AD Agreement which concern the acceptance and pro cessing of information, and are unrelated to 
whether or not an exporter has effected any exports during a specific period and the legal 
consequences thereof;  
 
• the claim relating to the use of facts available to  non-appearing exporters set forth in section 1 (g) 
of the request for establishment as the United States again refers to a number of provisions of the 
AD Agreement which are unrelated to the situation of such exporters as well as the United States' 
failure to explain why it considers that certain d ecisions of the Mexican Authority in this regard 
were taken in an "improper manner". 
 7.13 In addition, in Mexico's view, the US request fo r establishment fails to identify Article 366 of the 
Federal Code of Civil Procedure ("FCCP") as one of the challenged measures.  According to Mexico, the US request for establishment does not refer to Article 366 of the Code of Civil Procedure itself, but rather only to 
statements of Mexican officials concerning Artic le 366 of the FCCP and Articles 68 and 97 of the 
Foreign Trade Act ("the Act").  According to Mexico, th e statements of certain o fficials, which are included 
in the request for establishment, are clearly not "measures" that may be challenged before the WTO. 
7.14 Furthermore, Mexico asserts that the request for establishment contains a number of claims which 
were not part of the consultations in violation of Artic le 4.5 and 4.7 of the DSU.  Mexico argues that these 
provisions as well as Article 17.4 of the AD Agreement re quire that the consultations form the basis for the 
request for establishment of a panel.  Therefore, Me xico submits, those provisions  on which no consultations 
were held should be di scarded by the Panel.
50  
7.15 In addition, Mexico argues that the claim concer ning the alleged failure to examine all relevant 
factors in the injury analysis was only discussed in  the consultations concerning the anti-dumping measures 
imposed on imports of beef, and was not discussed in  the consultations relating to the imposition of anti-
dumping duties on rice, the subject of the current dis pute settlement proceedings. As no consultations were 
held on this claim, Mexico requests the Panel to discard it.    
7.16 Finally, according to Mexico, as a consequence of the previously identified inconsistencies of the 
request for establishment with the DSU, the United Stat es also failed to comply with the requirement of 
                                                      
50 Mexico lists these provisions in para. 34 of its First Submission.  WT/DS295/R 
 
  Article 17.5 of the AD Agreement to indicate how a benefit accruing to it has been nullified or impaired.  The request for establishment is therefore in Mexico's  view, also inconsistent with Article 17.5 of the 
AD Agreement.  
7.17 Mexico claims that the prejudice it suffered from the lack of clarity in the US request for 
establishment was exacerbated by the fact that, as th e US submission was made in English, additional time 
for the preparation of Mexico's defence was lost due to translation of the submission.    
(b) United States 
7.18 The United States considers that the US request fo r establishment of the Panel is fully consistent 
with the relevant provisions of the DSU and the AD Ag reement, and submits that Mexico's request should 
therefore be rejected.  
7.19 First, the United States argues that there is no requi rement in Article 6.2 of the DSU that the request 
for establishment provide a summary of the specifi c legal arguments which will be developed in the 
submissions.  Article 6.2 of the DSU requires that the claims must be included in the panel request, but not 
the arguments in support of these claims.  The United States submits that its request lists the specific 
provision of the AD Agreement and the GATT 1994 alleged to  be violated and provides, in addition, a brief 
textual explanation of the basis of the complaint. In particular,  
• with regard to Article VI of the GATT 1994, the United States is of the view that the narrative 
description which accompanies the allegation leav es no doubt as to which of the paragraphs of 
Article VI of the GATT 1994 it considers to have been violated, as it focuses on the only two paragraphs that are relevant to this dispute, paragraphs 2 and 6(a); 
 
• with regard to Article 4.1 of the AD Agreement, th e United States is of the view that Mexico does 
not argue that the claim should be more specific,  but that it is unable to understand which of the 
statements in the narrative description result in  a breach of the Article invoked.  The United 
States is of the view that Mexico's request shoul d be rejected because Article 6.2 of the DSU does 
not require that the request contains the arguments to support the claim; 
 
• with regard to the sections 1 (f) and (g) of the request, the United States considers that Mexico 
concedes that the United States request challenged the application of facts available to the non-
shipping exporter, Producers Rice (subsection 1(f)) and to all other exporters that were not 
individually examined (subsection 1(g)), but that Mexico is of the view that the United States has not adequately explained how Mexico's use of facts available violated these provisions.  The 
United States argues that Article 6.2 of the DSU re quires that the claims must be made in the 
request for establishment, but that there is no sim ilar requirement that the request set forth all the 
arguments in support of the claims. 
 7.20 In any case, the United States submits, Mexico faile d to demonstrate that it was somehow prejudiced 
by this alleged failure to satisfy the requirements of Ar ticle 6.2 of the DSU.  The United States submits that 
Mexico's assertion of prejudice is contradicted by the facts since Mexico's first written submission contains a 
lengthy response to each of the challenged US claims.  
7.21 In addition, the United States argues that its re quest for establishment clearly indicates that 
Article 366 of the FCCP is the measure challenged, a nd not the statements of Mexican officials concerning 
the application of this provision.  This, the United States submits, is clear from the second sentence of section 
3 of the US request for establishment.  There is, therefore, no basis for the Mexican argument that the 
United States failed to identify Article 366 of th e FCCP as the "specific measure at issue". WT/DS295/R 
Page 102   7.22 Furthermore, the United States considers that Mexico's arguments pertaining to the alleged 
inadequacy of the consultations lack merit.  The United States argues that there is no requirement in the DSU that a Member cannot include a claim in its request  for establishment unless the particular claim was 
discussed during consultations.  The United States is of the view that consultations are not "dress rehearsals" for the panel process requiring Members to have worked  out all of their claims and positions in advance 
and presenting them in consultations for the ot her side to practice its prepared responses. 
7.23 The United States further asserts that consultations we re held in respect of the US claims concerning 
the examination of the injury factors by the inves tigating authority also in respect of the anti-dumping 
measures imposed on imports of rice, and not just in re spect of the beef investigation.  More importantly, 
however, the United States considers that the DSU does not  contain a requirement as to the adequacy of the 
consultations.  The United States notes that the United States and Mexico spent two days consulting at length on each of the specific measures at issue in this disput e, and there is therefore, no basis for Mexico's assertion 
that the United States acted inconsistently with Article s 4.5 and 4.7 of the DSU with respect to consultations 
over the disputed measures.  The United States also rej ects Mexico's argument of violation of Article 17.4 of 
the AD Agreement which in the United States' view  only requires that the Member requesting the 
establishment of a panel "consider" that  the consultations have failed to ach ieve a mutually agreed solution.  
Such was the case in this dispute, and the United States submits that Mexico's Article 17.4 of the 
AD Agreement claim is thus groundless.    
7.24 Finally, the United States rejects Mexico's ar guments of violation of Article 17.5 of the 
AD Agreement, as the United States is of the view that Article 17.5 of the AD Agreement does not impose 
an additional obligation on the complaining party.  
2. Analysis 
7.25 We consider that Mexico's request for a prelim inary ruling raises three main issues concerning 
(i) Article 6.2 of the DSU and the extent of the obliga tion to provide a "brief summary of the legal basis of 
the complaint" in the request for establishment of a pane l and to identify "the specific measure at issue";  (ii) 
the relationship between the request for establishment a nd the scope of the consultations;  and (iii) the need 
to demonstrate nullification or impairment of interest s in the request for establishment under Article 17.5 of 
the AD Agreement.  We will address each  of these issues in this order. 
(a) Conformity of the Request for Establishment with Article 6.2 of the DSU 
7.26 Article 6.2 of the DSU concerning the request fo r establishment of a panel provides as follows: 
"The request for the establishment of a panel shall be made in writing.  It shall indicate 
whether consultations were held, identify th e specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In case the applicant requests the est ablishment of a panel with other than 
standard terms of reference, the written request  shall include the proposed text of special 
terms of reference". 
7.27 According to Article 6.2 of the DSU, therefor e, the request for establishment must identify the 
specific measures at issue and must provide a brief summa ry of the legal basis of the complaint sufficient to 
present the problem clearly .  Mexico's request concerning Article 6.2 of the DSU relates to the absence of a 
sufficient summary of the legal basis of the complaint with  regard to alleged violations of Article VI of the 
GATT 1994, Article 4.1 of the AD Agreement and the use of facts available in the case of non-shipping exporters and exporters not individually investigated.  In addition, Mexico argues that the request for 
establishment relating to Article 366 of the FCCP failed to properly identify the specific measure at issue.  
7.28 The first question before us is thus whether th e US request for establishment provided a brief 
summary of the claim sufficient to present the problem clearly.  In other words, the question is whether the  WT/DS295/R 
 
  "brief summary" was such that Mexico knew what case it had to answer, enabling it to begin preparing its 
defence.
51   This in our view does not mean that the complainant is required, in its request for 
establishment, to set out the arguments in support of th is claim.  We consider that there is a significant 
difference between the claims identified in the requ est for the establishment of a panel, which establish 
the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, 
which are set out and progressively clarified in the first written submissions, the rebuttal submissions and 
the first and second panel meetings with the parties.52  We recall that the purpose of the terms of 
reference, apart from defining the scope of the disput e, is to serve the due process objective of notifying 
the parties of the nature of the complainant's case.53   
7.29 First, with respect to Mexico's arguments concer ning the lack of specificity of the request with 
regard to the alleged violation of Article VI of  the GATT 1994, we recall that the US request for 
establishment provides in relevant part as follows: 
"(1) On 5 June 2002, Mexico published in the Diario Oficial  its definitive  
anti-dumping measure on long-grain white rice. This measure appears to be inconsistent with the following provisions of the AD Agreement and the GATT 1994: 
(a) Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4, 3.5, 
and 4.1 of the AD Agreement becau se Mexico based its injury and 
causation analyses on only six months of data for each of the years examined; failed to collect or examine recent data; failed to properly evaluate the relevant economic factor s; failed to base its determination 
on a demonstration that the dumped imports are, through the effects of dumping, causing injury within the meaning of the AD Agreement; and failed to base its injury determinations on positive evidence or to conduct objective examinations of the volume of dumped imports, the effect of those imports on prices in the domestic market of like products, and the impact of the imports on domestic producers of those products;" (footnote omitted). 
7.30 Mexico considers that it is not sufficiently clear from the request which of the many subparagraphs 
of Article VI of the GATT 1994 the United States is alle ging to have been violated.  We recall that, while it 
is so that sometimes even a mere listing of the provisi ons allegedly violated may suffice to comply with the 
requirement of Article 6.2 of the DSU to provide a brief summary of the legal basis of the complaint,
54 this is 
not always the case, and especially in case the provisi on alleged to have been vi olated, consist of various 
paragraphs and subparagr aphs, further specification may be required to inform the parties of the scope of the 
claims in a sufficiently clear manner.  In the end, what matters is whether the request provided a brief 
summary of the legal basis of the complaint sufficient to present the problem clearly. In case a complainant 
chooses to comply with this requirement by merely  listing treaty provisions without any further narrative 
explanation of the problem, it is of course all importa nt to know which of the pa ragraphs or subparagraphs 
the complainant is referring to in case the treaty provision consist of several of such paragraphs each dealing 
                                                      
51 For a recent application of this approach, see Panel Report, Canada – Wheat Exports and Grain Imports , 
para. 6.10 (para. 30 of the Panel's preliminary ruling). 
52 We note that this was also the view held by the Appellate Body in the EC – Bananas  case. See 
Appellate Body Report, EC – Bananas , para. 141. 
53 Appellate Body Report,  United States – Carbon Steel , para. 126. 
54 Appellate Body Report, Korea – Dairy , para. 124:  
"There may be situations where the simple listing of the articles of the agreement or agreements involved 
may, in the light of attendant circumstances, suffice to meet the standard of clarity in the statement of the legal basis 
of the complaint.  However, there may also be situations in which the circumstances are such that the mere listing of 
treaty articles would not satisfy the standard of Article 6.2.   This may be the case, for instance, where the articles 
listed establish not one single, distinct obligation, but rather multiple obligations.  In such a situation, the listing of 
articles of an agreement, in and of itself, ma y fall short of the standard of Article 6.2.". WT/DS295/R 
Page 104   with slightly different issues.  A general referen ce to such a multilayered treaty provision may in such 
circumstances not be enough to present the problem clearly .  The facts before us are somewhat different, as 
the US request for establishment does more than simply  listing the treaty provisions alleged to have been 
violated.  The United States also provides a narra tive in which it briefly explains the problem the 
United States has with the challenged measure.  In our  view, the question before us is thus whether, the 
reference to the provisions of the Agreement, together with the narrative  which accompanied the listing of 
these provisions, were sufficient to present the problem clearly so that the defendant was able to understand 
the case against it.  
7.31 While we consider that the US request for esta blishment could have been clearer in identifying 
precisely which of the paragraphs of Article VI of  the GATT 1994 the United States claims to have been 
violated, we do not agree with Mexico that the request  for establishment in this respect did not provide a 
brief summary of the legal basis of the claim sufficient to  present the problem clearly.  We consider that it is 
important when examining the consistency of part of the request for establishment with Article 6.2 of the 
DSU, not to examine parts of this request in isolation.  Rather, in our view, the request must be considered as 
a whole, and the different claims in the request for establishment must be read in their context.
55  In our view, 
the accompanying narrative and the provisions of the AD Agreement also alleged to have been violated 
make it clear that the US claims in this respect concern the determination of injury caused by dumped 
imports.  We agree with the United States that only a ve ry limited number of paragraphs of Article VI of the 
GATT 1994, such as paragraphs 2 and 6 (a) are in fact rele vant to this matter.  We therefore reject Mexico's 
request in respect of Article VI of the GATT 1994. 
7.32 Second, with respect to Mexico's arguments concerning Article 4.1 of the AD Agreement in 
section 1 (a) of the request for establishment, we note that Mexico stated that in  its view the United States 
focuses its arguments on violations of various provisions  of Article 3 of the AD Agreement and that Mexico 
is thus unable to determine specifically which of thes e facts may be considered a violation of any of the 
obligations provided for in Article 4.1 of the AD Agr eement.  We are of the view that the request for 
establishment clearly specifies the pa rticular provision allegedly violated and explains in sufficient detail the 
legal basis of its claim.  While Mexico may disa gree with the United States and may well argue that 
Article 4.1 of the AD Agreement which sets forth a definition of the domestic industry is not applicable or is irrelevant in this case, this, we find, is a matter of  substance and one which is to be addressed in the 
submissions to the Panel.  We consider that the re quest for establishment provides a brief summary of the 
legal basis of the claim sufficient to present the problem clearly by, in addition to listing the legal basis of its 
claim, providing a narrative setting forth the US allegati ons concerning the failure to properly identify injury 
to the domestic industry.  In our view, Mexico is r eally arguing that the United States should have provided 
more ample argument as to why it considered that the Mexican investigating authority acted inconsistently 
with Article 4.1 of the AD Agreement.  As we stated earlier, the request for establishment is to set forth a 
brief summary of the legal basis of the claim, not to se t out the arguments in support of this claim.  We wish 
to emphasise that our views concerning the consistency of the request for establishment with Article 6.2 of 
the DSU in no way prejudge our findings as to the merits of the US claims, nor to the relevance or lack thereof of certain of the provisions invoked by the complainant.    
7.33 Third, with regard to Mexico's arguments concerning sections 1 (f) and (g) of the US request and the 
use of facts available to a non-shipping exporter, and th e exporters which were not individually investigated, 
we note that the US request for establishment provides as follows:  
"(f) Articles 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreement, and paragraphs 1, 
3, 5, 6, and 7 of Annex II of the AD Agreement, by applying the facts available to a US 
                                                     
 
55 We find support for this view in statement of the Appellate Body in the US – Carbon Steel  case: 
"Moreover, compliance with the requirements of Ar ticle 6.2 must be determined on the merits of 
each case, having considered the panel request as a whole, and in the light of attendant 
circumstances." Appellate Body Report, US – Carbon Steel , para. 127.    WT/DS295/R 
 
  
respondent rice exporter that was investigated and found to have no shipments during the 
period of investigation; 
(g) Articles 1, 6.1, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreement, 
and paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement, by applying the facts 
available in establishing the anti-dumping margins that it assigned to US exporters that were not individually investigated, a nd by doing so in an improper manner;" 
7.34 Mexico argues that it fails to see how such provi sions relating to the acceptance and processing of 
information are relevant to the situation of these two categories of exporters.  In our view, the United States 
request of establishment provides a sufficient summary of the legal basis of the US claims that facts available 
were applied to determine a margin of dumping for certa in categories of exporters in a manner inconsistent 
with those provisions of the AD Agreement dealing with the use of best information available.  Again, we 
consider that the United States is not required in its request for establishment to set forth the arguments in 
support of this claim.  Whether the provisions alleged to have been violated are relevant and applicable is a 
question we do not need to decide when reviewing th e consistency of the request for establishment with 
Article 6.2 of the DSU.     7.35 Finally, Mexico considers that section 3 of the re quest for establishment fails to identify Article 366 
of the FCCP as the measure at issue.  This secti on of the request for establishment reads as follows: 
 
"3. Mexican officials have asserted that Artic le 366 of Mexico's Federal Code of Civil 
Procedure and Articles 68 and 97 of the Act prevent Mexico from conducting reviews of 
anti-dumping or countervailing duty orders while  a judicial review of the order is 
ongoing, including a "binational panel" review pursuant to Chapter Nineteen of the 
North American Free Trade Agreement .  These provisions appear to be inconsistent  
with Articles 9.3, 9.5, and 11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement." (emphasis added) 
7.36 In our view, the request for establishment clearly re fers to Article 366 of the FCCP rather than to 
the statements of Mexican officials concerning its app lication, as the challenged measure in question.  We 
consider the statements to have been referred to me rely in support of the claim of inconsistency.  We 
therefore find that section 3 of the request for establishment specifies cl early the specific measure at issue, 
and these measures are Article 366 of the FCCP and Article 68 and 97 of the Act.   7.37 In sum, we find that the request for establishmen t provides a summary of the legal basis of the 
complaint sufficient to present the problem clearly as re quired by Article 6.2 of the DSU with regard to 
the claims set forth in sections 1 (f) and (g) of the request, as well as with regard to the claim concerning 
Article VI of the GATT 1994 and Article 4.1 of the AD Agreement set forth in section 1 (a) of the request.  Finally, we find that the request for establis hment specifies clearly that Article 366 of the FCCP 
and Articles 68 and 97 of the Act are the specific measures at issue, and we thus reject Mexico's request in 
this respect.   
(b) Lack of Identity between the Request for Co nsultations and the Request for Establishment 
7.38 Mexico asserts that the request for establishment contains a number of violations of Agreement 
provisions which were not mentioned in the requ est for consultations and on which, it argues, no 
consultations were held.  This aspect of Mexico's re quest for a preliminary ruling concerns the extent to 
which Articles 4.5 and 4.7 of the DSU as well as Article 17.4 of the AD Agreement provide that the permissible scope of the request for establishment is lim ited by the scope of the request for consultations.  
 WT/DS295/R 
Page 106   7.39 Articles 4.5 and 4.7 of the DSU provide as follows: 
 
Article 4 
Consultations 
5. In the course of consultations in acco rdance with the provisions of a covered 
agreement, before resorting to further ac tion under this Understanding, Members should 
attempt to obtain satisfactory adjustment of the matter. 
[...] 
7. If the consultations fail to settle a disput e within 60 days after the date of receipt 
of the request for consultations, the complain ing party may request the establishment of a 
panel.  The complaining party may request a panel during the  60-day period if the consulting parties jointly consider that consulta tions have failed to 
settle the dispute.   
7.40 Article 17.4 of the AD Agreement provides: 
 
17.4 If the Member that requested consulta tions considers that the consultations 
pursuant to paragraph 3 have failed to achieve  a mutually agreed solution, and if final 
action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body ("DSB").  When a provisional  measure has a significant impact and the Member that requested cons ultations considers that the measure was 
taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer 
such matter to the DSB. 
7.41 In our view, these provisions do not in any way re quire a complete identity between the scope of 
the request for consultations and the request for estab lishment, nor do they, in our view, limit the scope of 
the request for establishment to the exact scope of the request for consultations.  While we read these 
provisions to require that Members should attempt to find a mutually agreed solution on the "matter" in 
dispute through consultations, this, in our view, only re quires that request for consultations relate to the 
same subject matter as the request for establishment of a panel.
56  In sum, and provided the request for 
establishment concerns a dispute on which consultations  have been requested, there is no need for the 
matter (i.e. the specific measures at issue and the legal basis of the complaint) as identified in the request 
for establishment to be identical to the ma tter on which consultations were requested.  
 7.42 Mexico argues that for certain of the measures challenged no consultations were held on a number 
of the provisions alleged to have been violated by these measures.  In particular, Mexico argued that the 
                                                     
 
56 We note that, in the past, both panels and the Appellate Body reached a similar conclusion that the scope 
of the request for establishment need not be identical to  the scope of the request for consultations.  See e.g. 
Panel Report, Japan – Agricultural Products  II, para. 8.4 (i);  Panel report, Brazil – Aircraft , para. 7.9. 
Appellate Body Report, Brazil – Aircraft , para. 132 :  
"132. We do not believe, however, that Articles 4 and 6 of the DSU, or paragraphs 1 to 4 of 
Article 4 of the  SCM Agreement, require a  precise and exact identity  between the specific 
measures that were the subject of consultations and the specific measures identified in the request for the establishment of a panel.  As stated by the Panel, "[o]ne purpose of consultations, as set 
forth in Article 4.3 of the SCM Agreement, is to 'clarify the facts of the situation', and it can be 
expected that information obtained during the course of consultations may enable the complainant to focus the scope of the matter with respect to  which it seeks establishment of a panel.[...]" 
(footnote omitted).  WT/DS295/R 
 
  following provisions were not covered by the cons ultations but were included in the request for 
establishment:  
Provision invoked Paragraph in the request for 
establishment of a Panel 
AD Article 1 Paragraphs 1(a), 1(g) 
AD Article 4.1 Paragraph 1(a) 
AD Article 11.2 Paragraph 2(c) 
AD Article 18.1 Paragraph 2(e) 
Paragraph 1 of Anne x II Paragraph 2(b) 
Paragraph 3 of Anne x II Paragraph 2(b) 
Paragraph 5 of Anne x II Paragraph 2(b) 
Paragraph 6 of Anne x II Paragraph 2(b) 
Paragraph 7 of Anne x II Paragraph 2(b) 
SCM Article 12.5 Paragraph 2(b) 
SCM Article 21.2 Paragraph 2(c) 
SCM Article 32.1 Paragraph 2(e) 
Article VI:2 of the GATT 1994 Paragraph 1(i) 
 
7.43 In light of our finding that there is no need for a complete identity between the request for 
establishment and the request for consultations, we do not  consider that we would not be able to rule on 
the alleged violations of the provisions mentioned by Mexico in the above table simply because they were 
not mentioned in the request for consultations.  In our view, the fact that certain provisions were added to 
the list of alleged violations in the request for establis hment compared to the request for consultations is a 
consequence of the consultation process which serves th e purpose of clarifying the facts of the situation 
enabling the complainant to focus th e scope of the matter with respect to which it seeks the establishment 
of a panel.  It does not mean that no consultations were held on the matter, as the only difference between 
the request for consultations and the request for establishment consists of the fact that a number of closely related legal provisions alleged to have been violated were added.  The measures remained the same and 
so did the legal basis for the complaint, as is ev ident from the narrative provided in the request for 
establishment.  In our view, consultations were t hus held on the matter on which the establishment of a 
Panel was requested.  We therefore reject  Mexico's request in this respect.  
 7.44 Mexico also argues that one claim concerning the fa ilure to examine all relevant factors affecting 
the domestic industry was part of the consultations concerning the investigation on imported beef, but was 
not part of the consultations that took place relating to  the measures imposed on imports of rice, the matter 
before the panel in this case.   7.45 As a factual matter, Mexico is correct that the request for consultations limits the claim 
concerning the failure to evaluate all relevant f actors of Article 3.4 to the beef investigation.
57  However, 
in our view, and for the same reasons as mentioned above, as long as the request for establishment concerns a matter on which consulta tions were requested, there is no requirement that all the specific 
                                                     
 
57 The Request for Consultations (DS 295/1) reads in pertinent part as follows: 
"In particular, the United States believes that  the anti-dumping measures on beef and rice are 
inconsistent with at least the following provisions: Article 3 of the AD Agreement, because Mexico, inter alia , based its injury (or threat) and 
causation analyses on only six months of data for each  of the years examined;  failed to collect or 
examine recent data;  failed in the beef investigation to evaluate all relevant economic factors 
and indices having a bearing on the state of the industry ;  and failed to base its injury 
determinations on positive evidence or to conduct objective examinations of the volume of dumped imports, the effect of those imports on prices in the domestic market of like products, and the impact of the imports on domestic produ cers of those products;" (emphasis added). WT/DS295/R 
Page 108   provisions alleged to have been violated in the request for establishment were also part of the 
consultations.  Since consultations took place in resp ect of the alleged inconsistency of the injury 
determination in the rice investigation with Article 3 of the AD Agreement, it seems that the United States 
was entitled to formulate its request for establishment on the basis of any combination or subset of the 
legal provisions and claims relevant to the rice inves tigation on which consultations were held.  Moreover, 
we note that the request for establis hment refers to the "failure to properly evaluate the relevant economic 
factors" which is slightly different from the "failure to evaluate all relevant economic factors" mentioned 
in the request for consultations for the beef investig ation.  The failure to properly evaluate all factors 
effectively relates to the failure "to base its inju ry determinations on positive evidence or to conduct 
objective examinations of [.... ] the impact of the imports on domestic producers of those products" which 
was explicitly part of the request for consultation both with regard to the rice and the beef investigation. 
We therefore reject Mexico's request in this respect.    
(c) Nullification or Impairment of Benefits under Article 17.5 of the AD Agreement 
7.46 Mexico argues that the US request for establishmen t was inconsistent with Article 17.5 (i) of the 
AD Agreement as it failed to indicate in which way the US interests were nullified or impaired by the 
alleged violations.  7.47 Article 17.5 (i) of the AD Agreement provides as follows: 
 
"17.5 The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon:  
(i) a written statement of the Member making the request indicating how a benefit 
accruing to it, directly or indirectly, under th is Agreement has been nullified or impaired, 
or that the achieving of the objectives of the Agreement is being impeded, and ..." 
7.48 We consider that the US request for establishm ent contains allegations of violation of the 
AD Agreement which, if demonstrated, will constitute a prima facie  case of nullification or impairment 
under Article 3.8 of the DSU.  In our view, since the US request for establis hment describes the factual 
and legal circumstances alleged to constitute the asser ted violations of the cited provisions of the 
AD Agreement in some detail, such statements suffice to "indicate how" benefits accruing to the 
United States under the AD Agreement have been nullifie d or impaired, as required by Article 17.5(i) of 
the AD Agreement.
58  In any case, we understand Mexico to be arguing that, as a consequence of  the 
alleged inconsistencies of the US request for establis hment with Article 6.2 of the DSU and Articles 4.5 
and 4.7 of the DSU, the request for establishment is  also inconsistent with Article 17.5 (i) of the 
AD Agreement.  In light of our findi ngs rejecting Mexico's a llegations of inconsiste ncy, we also reject 
Mexico's consequential claim of violation of Article 17.5 (i) of the AD Agreement.   
3. Conclusion 
7.49 For the reasons set forth above, we reject Mexico 's request for a preliminary ruling that the US 
request for establishment was inconsistent with Article  6.2 of the DSU, Articles 4.5 and 4.7 of the DSU, 
and Articles 17.4 and 17.5 of the AD Agreement.   
                                                     
 
58 We find support for our view in the report of the Panel in the Mexico – Corn Syrup  case:  "In our view, a 
request for establishment that alleges violations of the AD Agreement which, if demonstrated, will constitute a prima 
facie case of nullification or impairment under Article 3.8 of  the DSU, contains a sufficient allegation of nullification 
or impairment for purposes of Article 17.5(i).  In additi on, as noted above, the request must indicate how benefits 
accruing to the complaining Member are being nullified or impaired."   Panel Report, Mexico – Corn Syrup , para. 7.28.  WT/DS295/R 
 
  C. C
LAIMS RELATING TO THE ANTI-DUMPING MEASURE ON RICE 
1. Claims relating to the Injury determination  
(a) Claim 1:  Economía59’s use of a period of investigation that ended more than fifteen months 
prior to the initiation of the anti-dumping in vestigation and nearly three years prior to the 
final determination is inconsistent with Mexico’s obligations under Article VI:2 of 
GATT 1994 and Articles 1, 3.1, 3.2, 3.4, and 3.5 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.50 The United States submits that the Mexican inves tigating authority failed to satisfy the legal 
requirements for imposing an anti-dumping measure as the period of investigation used was so remote in 
time that the information collected by the investigating authority (Economía) was incapable of providing a basis for an objective finding based on positive eviden ce of injury and the causal link between dumped 
imports and the injury to the domestic industry.  In particular, the United States claims that the more than fifteen-month gap between the end of the period of i nvestigation and the initiation of the investigation 
implied that the investigating authority's examination of volume and price effects, its examination of all 
relevant economic factors having a bearing on the state of the industry and Economía's determination that the dumped imports were causing injury to the dom estic industry was not objective nor based on positive 
evidence as required by Articles 3.1, 3.2, 3. 4 and 3.5 of the AD Agreement respectively.
60 By imposing 
AD duties in violation of the provisions of the AD Agreement, the United States submits that Economía 
has also violated Article 1 of the AD Agreement.  
7.51 According to the United States, the purpose of an  anti-dumping measure is to offset or prevent 
dumping that is presently causing or threatening to cause material injury to a domestic industry.61  
Therefore, the United States argues, an investigating authority is to base its determinations of dumping 
and injury on a period that includes the most recent av ailable information.  The United States argues that 
Article VI of the GATT 1994, as well as the AD Agreem ent require that the period of investigation should 
end as closely as possible to the initiation of the inv estigation if it is to meaningfully inform the 
investigating authority of dumping currently causing injury.  The United States is of the view that the use of the present tense in a number of provisions of the AD Agreement, such as Articles 2, 3.4, 3.5, 3.7, and 
5.8 of the AD Agreement, as well as in Articles VI.1 and VI.6 (a) of the GATT 1994 support its claim that 
an investigating authority must examine a period of  time that is as close to the date of initiation as 
practicable.
62  Therefore, the United States is of the view that a period of investigation which ends more 
than 15 months prior to the initiation of the investig ation does not allow the investigating authority to 
make an objective determination based on positiv e evidence of dumping which is causing injury.63  The 
United States asserts that the Mexican investigating authority did not provide any justification based on record evidence as to the choice of the particular peri od of investigation apart from the fact that this was 
the period of investigation suggested by the applican ts, nor did it explain why it was not possible to use 
more recent data or to update the injury data during the course of the investigation.
64  The United States 
                                                      
59 Economía is the Mexican investigating authority. 
60 US First Submission, para. 61. 
61 US First Submission, para. 57. US Second Submission, para. 9. 
62 US First Submission, para. 56. The United States considers there is support for this view in the 
Recommendation Concerning the Periods of Data Collecti on for Anti-Dumping Investigations, G/ADP/6, adopted  
5 May 2000 of the WTO Committee on Anti-Dumping Practices. 
63 The period of investigation ended in August 1999, wh ile the investigation was initiated only in December 
of the following year, 11 December 2000. The application had been filed in June 2000. 
64 US Answers to Questions from the Panel following the First Substantive Meeting w ith the Parties, ("First 
Answers to Questions"), paras. 3 and 7. The United States c onsiders that the necessity for an investigating authority WT/DS295/R 
Page 110   therefore requests the Panel to find that Economía's use of a stale period of investigation in its anti-
dumping investigation of US long-grain white rice breached Articles 1, 3.1, 3.2, 3.4, 3.5 of the AD Agreement and Articles VI.2 and VI.6 (a) of the GATT 1994.
65  
Mexico 7.52 Mexico asserts that Economía complied with all the requirements of Articles 3.1, 3.2, 3.4, 3.5 of 
the AD Agreement and made an objective determin ation based on positive evidence of the volume and 
price effects of dumped imports, their overall impact on the domestic industry, and the causal relationship 
between the dumped imports and the injury to the domestic industry.  Mexico considers that the 
AD Agreement does not impose any guidelines on the pe riod of data collection to be used for the 
determination of dumping and injury.  Mexico is of the view that the aim of an anti-dumping measure is 
to offset or prevent dumping  - which does not necessar ily have to occur in the present – that causes or 
threatens to cause injury to the domestic industry.
66  Mexico considers that the AD Agreement does not 
impose any limits on the remoteness of the period of investigation.67  It is of the view that is desirable but 
not mandatory for the period of investigation to be as close as practicable to the date of initiation of an 
anti-dumping investigation.68  According to Mexico, only the ci rcumstances of the case can determine 
what period is appropriate for the investigation and in this particular instance, Mexico considers that the 
period used was suitable since it yielded objective da ta on dumping, injury and the causal link between 
the two.69  Mexico emphasises that the period of investig ation was not "selected" by the investigating 
authority, but rather that it was a period suggested by the applicant which complied with a number of 
criteria,70 and that no one demonstrated that it would be in correct to maintain this period. In Mexico’s 
view, it was therefore not for the investigating authority to raise any such objections either.71  
(ii) Analysis 
7.53 We start our analysis by recalling the undisputed facts on the record.  The Mexican investigating 
authority examined data for a period of investig ation covering March to A ugust 1999 for purposes of its 
dumping determination, and March to August 1997, 1998, and 1999 for purposes of its injury analysis.  
The investigation was initiated on 11 December 2000,  15 months after the end of the period of 
investigation.  Final anti-dumping measures were im posed on 5 June 2002, a little less than three years 
after the end of the period of investigation.  Th e United States claims that the use of a period of 
investigation by the Mexican investigating authority in  this case ending 15 months prior to initiation is not 
consistent with the AD Agreement.  The United States argues that such a "stale" period of investigation 
did not provide the investigating authority with positive evidence and did not allow the authority to make an objective determination of injury, as required by Ar ticles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement, as 
such outdated data are uninformative of the current state of the domestic industry.  According to the 
United States, Mexico therefore also acted in a manne r inconsistent with Article 1 of the AD Agreement 
and Article VI of the GATT 1994.  
                                                                                                                                                                    
 
to consider events that happened in the past does not give an authority free rein to choose which past to consider. US 
First Answers to Questions, para. 4. 
65 US Second Submission, para. 18. 
66 Mexico First Submission, para. 44. Mexico's Answers to Questions from the Panel following the Second 
Substantive Meeting with the Parties ("Sec ond Answers to Questions"), question 4.   
67 Mexico First Answers to Questions, question 2. 
68 Mexico Second Submission, para. 23. 
69 Mexico Second Submission, para. 22. 
70 In its Second Answers to Questions, Mexico clarifie d that the investigating authority examines whether 
the period suggested by the applicant a) covers at least 6 months; b) is accompanied by information and proof; c) is 
the same as the period for which information with rega rd to normal value and export price is provided by the 
applicant. Mexico Second Answers to Questions, Question 1. 
71 Mexico Second Submission, para. 35.  WT/DS295/R 
 
  7.54 We start our analysis with Article 3.1 of the AD Agreement which sets forth the general 
requirement for making an injury determination.  It provides as follows: 
3.1 A determination of injury for purpo ses of Article VI of GATT 1994 shall be 
based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the conse quent impact of these imports on domestic 
producers of such products. 
7.55 Articles 3.1 of the AD Agreement thus requires th at the injury determination be based on positive 
evidence and that it involve an objective examination.  In our view, positive evidence is in the first place 
evidence which is material to the case at  hand, in other words it is to be relevant and pertinent with respect 
to the issue to be decided. It is positive which ma ke it "evidence" as opposed to unrelated facts.  In 
addition, it must have the characteristics of  being inherently reliable and creditworthy.
72  An objective 
examination, in turn, requires in our view that the investigative process establishing the facts be objective 
and unbiased.  We agree with what the Appella te Body stated in this respect in the US – Hot-Rolled Steel  
case: 
"The term "objective examination" aims at a different aspect of the investigating 
authorities' determination.  While the te rm "positive evidence" focuses on the facts 
underpinning and justifying the injury determination, the term "objective examination" is concerned with the investigative process itself.   The word "examination" relates, in our 
view, to the way in which the evidence is gathered, inquired into and, subsequently, 
evaluated;  that is, it relates to the conduc t of the investigation generally.  The word 
"objective", which qualifies the word "e xamination", indicates essentially that the 
"examination" process must conform to the dictates of the basic principles of good faith and fundamental fairness."
73 
7.56 The choice of the period of investigation is obvi ously crucial in this investigative process as it 
determines the data that will form the basis fo r the assessment of dumping, injury and the causal 
relationship between dumped imports and the injury to the domestic industry.  
7.57 It is clear that the AD Agreement does not cont ain any specific and express rules concerning the 
period to be used for data collection in an anti-dum ping investigation.  As acknowledged by Mexico, this 
does not mean that the authorities' discretion in using a certain period of investigation is boundless.  Mexico considers that it would be  preposterous to suggest that measures may be imposed after an 
investigation which was based on data  relating to a period of investiga tion which ended ten years ago, and 
accepts that it would be desirable that the period of i nvestigation end as closely as practicable to the date 
of initiation of the investigation.  While we do not n eed to decide in the abstract whether the period of 
investigation always has to end as close as practicable to  the date of initiation of the investigation, we are 
of the view that there is necessarily an inherent r eal-time link between the investigation leading to the 
imposition of measures and the data on which the inv estigation is based.  We find strong textual support 
for this view in Article VI of the GATT 1994, as well as a number of provisions of the AD Agreement: 
                                                     
 
72 We note that in the US – Hot-Rolled Steel  case, the Appellate Body stated that: 
"The word 'positive' means, to us, that the evidence must be of an affirmative , objective  and 
verifiable  character, and that it must be credible ." Appellate Body Report, US – Hot-rolled Steel , 
para.192. (emphasis added). 
73 Appellate Body Report, US – Hot-Rolled Steel , para. 193. WT/DS295/R 
Page 112   Article VI.2 of the GATT 1994 provides that: 
"In order to offset or prevent dumping, a contracting party may levy on any dumped 
product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product". 
Article 11 of the AD Agreement similarly provides that: 
"An anti-dumping duty shall remain in force only as long as and to the extent necessary 
to counteract dumping which is causing injury". 
In addition, Article 3.5 of the AD Agreement states that: 
"It must be demonstrated that the dumped imports are, through the effects of dumping, as 
set forth in paragraphs 2 and 4, causing injury  within the meaning of this Agreement. 
[...]". (emphasis added) 
7.58 We are of the view that these provisions are clear  textual evidence that measures may be imposed 
to offset dumping presently causing injury.  The terms "offset" and "counteract" connote the concept of a current reaction against a prevailing (i.e. existing a nd present) force. Thus, if an anti-dumping duty may 
be imposed only to "offset" dumping, and only for "as long as necessary" to "counteract" dumping, it is clear that this is an entitlement to act that is itself strictly conditioned on the active presence of its 
reciprocal -- in this case, injurious dumping that is taki ng place at that time.  There is therefore an inherent 
real-time link between the imposition of the measure and the conditions for application of the measure, 
dumping causing injury.  The use of the present ten se in Article 3.5 of the AD Agreement is clear 
evidence of this temporal connection between what is investigated and what needs to be demonstrated in 
order to allow the imposition of measures, i.e. that dumped imports are causing  injury.  Of course, it is 
well established that the data on the basis of which th is determination is made may be based on a past 
period, known as the period of investigation.  Neverthel ess, because this "historical" data is being used to 
draw conclusions about the current situation, it follows that the more recent data is likely to be inherently 
more relevant and thus especially important to the inv estigation.  This, as a consequence, implies that the 
data considered concerning dumping, injury and the cau sal link should include, to the extent possible, the 
most recent information, taking into account the inevita ble delay caused by the need  for an investigation, 
as well as any practical problems of data collection in any particular case.   
7.59 We find contextual support for this proposition in other provisions of the AD Agreement, such as 
Article 14 dealing with anti-dumpi ng actions on behalf of a third country.  Article 14.2 of the 
AD Agreement provides as follows: 
"14.2 Such an application [for an anti-dumpi ng action on behalf of a third country] shall 
be supported by price information to show that the imports are being dumped and by 
detailed information to show  that the alleged dumping is causing injury  to the domestic 
industry concerned in the third country.  The government of the third country shall afford 
all assistance to the authorities of the importi ng country to obtain any further information 
which the latter may require." (emphasis added) 
7.60 In other words, Article 14.2 of the AD Agreement provides that the evidence in an application to 
start an anti-dumping action on behalf of a third country is offered to show that dumping is presently 
causing injury  to the domestic industry of the requesting country.  If such is the case in respect of 
applications for third country anti-dumping actions , it seems reasonable to conclude that a similar  WT/DS295/R 
 
  temporal requirement exists when the anti-dumping proceedings relate to injury being caused to a 
Member's own domestic industry.
74   
7.61 The AD Agreement allows Members to re-balance the injurious situation that is created by 
dumping.  This implies that on the one side of the ba lance, there is injurious dumping, which is counter-
balanced by the anti-dumping duty.  It is therefore necessary to base a determination of dumping causing injury on data that is pertinent or relevant with re gard to the current situation, taking into account the 
inevitable delay caused by the practical need to c onduct an investigation.  To impose anti-dumping duties 
without objectively examining relevant evidence on th e dumping causing injury which is on one side of 
the balance would thus clearly run counter to the AD Agreement. 
7.62 Finally, we note that the Committee on Anti-Dumping Practices adopted a Recommendation 
concerning the Periods of Data Collection for Anti-Dumping Investigations (G/ADP/6, adopted 
5 May 2000) which sets forth guidelines for determining what period or periods of data collection may be appropriate for the examination of dumping and of injury.  The Recommendation stipulates inter alia  that 
the period of data collection should end as close to the initiation of the investigation as possible.
75  While 
we note that this Recommendation is a non-binding guide to the common understanding of Members on 
appropriate implementation of the AD Agreement, a nd does not add new obligations, nor detract from the 
existing obligations of Members under the Agreement76, we do consider that this Recommendation 
                                                      
74 We consider that further contextual support can be found in the Agreement on Safeguards, and Article 2.1 of 
the Agreement on Safeguards in particular.  This provision allo ws for the imposition of safeguard measures if it has been 
determined that a product is being imported into the country 's territory in such increased quantities and under such 
conditions as to cause or threaten to cause serious injury to  the domestic industry.  As the Appellate Body noted in the 
Argentina – Footwear (EC)  case (para. 130):  
"[...] In our view, the use of the present tense of the verb phrase "is being imported" in both 
Article 2.1 of the  Agreement on Safeguards  and Article XIX:1(a) of the GATT 1994 indicates 
that it is necessary for the competent authorities to examine recent imports, and not simply trends in imports during the past five years – or, for that matter, during any other period of several 
years.
130  In our view, the phrase "is being imported"  implies that the increase in imports must 
have been sudden and recent.  
–––––––––––––––––––––––––– 
130 The Panel, in footnote 530 to para. 8.166 of the Panel Report, recognizes that the present tense 
is being used, which it states "would seem to i ndicate that, whatever the starting-point of an 
investigation period, it has to  end no later than the very recent past." (emphasis added)  Here, we 
disagree with the Panel.  We believe that the relevant investigation period should not only  end  in the very recent past, the investigation period should  be  the recent past." We are of the view that while there are clear differe nces in the conditions for imposing measures under the 
AD Agreement and the Agreement on Safeguards, both an ti-dumping and safeguard measures are based on an 
investigation  which is to determine the existence of the cond itions for application by using a certain period of 
investigation for which data will be collected. In our view , where Article 2.1 of the Safeguards Agreement explicitly 
provides that no measure may be imposed unless it has been demonstrated that a product is being imported in such 
quantities, Article VI:2 of the GATT 1994, read in conj unction with Article 2.1 and 3.5 of the AD Agreement 
similarly provides that no measure may be imposed unless it has been demonstrated that a product is being dumped  
and that these dumped imports  are causing injury  to the domestic industry. 
75 The Recommendation Concerning the Periods of Da ta Collection for Anti-Dumping Investigations 
(G/ADP/6, adopted 5 May 2000) provides in relevant part that: 
" the Committee recommends that with respect to original investigations to determine the existence of dumping and consequent injury -  1. As a general rule: (a) the period of data collection for dumping investigations normally should be twelve months, and in 
any case no less than six months, ending as close to the date of initiation as is practicable;" (footnote omitted). 
76 G/ADP/M/7 at para 40, G/ADP/AHG/R/7, para. 2 WT/DS295/R 
Page 114   provides useful support for the correct interpretati on of the obligations found in the text of the 
AD Agreement.
77          
7.63 In sum, data of ten years old may well be reliable and creditworthy as to past dumping then 
causing injury but such data obviously are of much less relevance to the question whether that dumping is presently causing injury.  Certainly, more recent data are more relevant to this question.  As we discussed 
earlier, the AD Agreement requires that the conditi ons for imposing anti-dumping measures, that dumped 
imports are causing injury, have to be present at th e time of imposition of the measure, to the extent 
practically possible.  The requirement of a time-consuming and sometimes complicated investigation to demonstrate the existence of dumping and the ensuing injury poses a practical impediment to a complete 
identity in time between the imposition of the measu re and the conditions for such imposition, i.e. 
dumping causing injury.  Although this practical problem may lead to the situation in which any determination of dumping causing injury has by the time of the imposition of the measure become more of a proxy than a real time assessment of the current situ ation, it would, in our view, not be correct to be 
led by the practical necessity to examine the past  to assess the present to accept that an investigating 
authority could justifiably base itself on old data to th e exclusion of more recent data which was available 
and usable.  To the contrary, the fact that an inves tigation of up to 12 months ma y have to be conducted to 
determine dumping, injury and the causal link magni fies the importance of having a period of data 
collection which ends as closely as possible to the date of initiation, as by the time of the possible 
imposition of the measure another 12 months may ha ve passed. We established above the textual and 
contextual support in the GATT 1994 and the AD Agreement for this basic proposition. 
7.64 In the investigation concerning imports of long-grain white rice from the United States, the period 
of investigation used by Mexico ended in August 1999.  The application suggesting this particular period 
of investigation March – Augus t 1999 was submitted by the domestic  industry on 2 June 2000.  The 
investigation was initiated only six months later,  on 11 December 2000.  The investigating authority 
accepted the period of investigation suggested by the applicants, even though at the time of initiation that 
period had ended more than 15 months earlier.  Duri ng the investigation, no attempt was made to update 
any of the information obtained from the interested pa rties to reflect what had occurred in the 15 months 
between the end of the period of investigation in  August 1999 and the start of the investigation in 
December 2000.  Definitive anti-dumping measures were imposed on 5 June 2002, almost three years after the end of the period of investigation.  We not e that Mexico has not argued that practical problems 
necessitated this particular period of investigation, nor  has Mexico ever argued that it was not possible for 
practical or other reasons to update the information to  cover the 15 months or part thereof from the end of 
the period of investigation to the date of initiation of the investigation.   As Mexico clearly stated, the 
applicants proposed this particular period of investig ation, and it is Mexico's general practice to accept the 
proposed period of investigation.
78  Neither the investigating authority at the time of the investigation, nor 
Mexico in its arguments before us provided any other reason why more recent information was not 
sought. This fifteen month gap between the end of th e period of investigation and the initiation of the 
investigation amounts to a relatively lengthy hiatus. A great deal could have happened – or changed – 
over a fifteen month period, and there is simply no evid ence on record in respect of it. A hiatus of such a 
duration is, in our view, sufficiently long as to impugn the reliability of the period of investigation to 
deliver, for the purposes of a determination, evidence that has the requisite pertinence or relevance (see 
para. 7.55 supra ). In other words, given the passage of time and the uncertainty about the factual situation 
                                                      
77 We note that panels in the past have also referre d to this Recommendation in their reasoning. See e.g. 
Panel report, Guatemala – Cement  II, para. 8.266; Panel report, US – Hot-Rolled Steel , footnote 152;  Panel report,  
Argentina – Poultry  Anti-Dumping Duties , para. 7.287. 
78 In response to the submission of data by the United St ates concerning Mexico's practice in this regard,  
Mexico explains that its practice shows delays of some times 6 months, on other occasions 20 months between the 
end of the period of investigation and the date of in itiation of the investigation, depending on the period of 
investigation the applicant is proposing. The data subm itted by the United States, which were not contested by  
Mexico, show that, on average, the period of investigation ends 10 months before the date of initiation, which is also 8 months less than was the case in the rice investigation.  WT/DS295/R 
 
  in that relevant interim,  the information lacks credibility and reliability, thereby failing to meet the 
criterion of "positive evidence" pursuant to Ar ticle 3.1 of the AD Agreement.      
 7.65 In light of all these considerations, we find that by  choosing to base its de termination of injury on 
a period of investigation which ended more than fifteen  months before the initiation of the investigation, 
Mexico failed to comply with the obligation set fo rth in Article 3.1 of the AD Agreement to make a 
determination of injury which is based on positive evidence and which involves an objective examination 
of the volume and price effects of the alleged dumpe d imports or of the consequent impact of these 
imports on domestic producers of the like product at the time measures were imposed.  We therefore find that Mexico acted in a manner which is inconsiste nt with Article 3.1 of the AD Agreement. As a 
consequence, and in light of our finding of violati on of Article 3.1 of the AD Agreement which is an 
overarching provision that sets forth a Member's fundamental obligation with respect to injury determinations,
79 we find that Mexico acted in breach of Articles 3.2, 3.4 and 3.5 of the AD Agreement 
when considering the volume and price effects of th e dumped imports, all relevant factors affecting the 
state of the industry and the causal relationship betw een dumped imports and the alleged injury to the 
domestic industry, respectively. In light of these findings, we do not consider it necessary in order to 
resolve this aspect of the dispute to  examine the US claims of violation of Article 1of the AD Agreement 
and Article VI of the GATT 1994.  
(b) Claim 2:  Economía’s limitation of its injury analysis to only six months of 1997, 1998, and 
1999 is inconsistent with Mexico’s obligations under Articles 1, 3.1, 3.5, and 6.2 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.66 The United States argues that the selective use of data from only part of the year covering the 
peak period of import activity does not allow an investigating authority to make an objective 
determination based on positive evidence of injury cau sed by dumped imports, as required by Article 3.1 
of the AD Agreement.  According to the United States, if an authority only considers the evidence for half 
of the period of investigation for the injury analysis, there is simply no way for the authority to determine 
the true state of the domestic industry over the course of the entire period of i nvestigation, and thus no 
way to conclude that the authority's examination is  consistent with Article 3.1 of the AD Agreement.
80  
7.67 The United States submits that the information on which the determination is based which ignores 
half of each of the three years of the period of i nvestigation does not constitute positive evidence.  In 
addition, the United States submits, by ignoring the period September – February of each year, Economía 
disregarded the portion of the year when domestic production of milled rice was at its seasonal high, and 
import penetration at its seasonal low.81  The United States submits that Economía agreed with the 
applicants that imports we re concentrated during the period March to August and consequently limited its 
injury analysis to the data for March – August of  each of the years at issue in the investigation.82  In any 
case, and even if imports had not been concentrated in the March to August time period, the United States 
                                                      
79 See Appellate Body Report, Thailand – H-Beams , para. 106. 
80 US First Answers to Questions, para. 20. 
81 The United States asserts that Economía's findings with  respect to at least two economic factors, market 
share and capacity utilization, serve to illustrate the in evitable and obvious distortions that resulted from this 
focussed approach. US First Submission, para. 71 – 72. The Un ited States points to various paragraphs in Economía's 
published determinations in which the authority confirms that imports were concentrated in the March – August 
period. US First Answers to Questions, para. 15.   
82 US First Submission, para. 67. According to the United States, this narrowed focus is evident throughout 
the preliminary and the final determinati ons. See US First Submission, footnote 68. WT/DS295/R 
Page 116   is of the view that by limiting its injury analysis to  only half of the period of investigation, Economía's 
injury analysis is inconsistent with WTO rules.
83  
7.68 According to the United States, the determina tion cannot be objective because the period chosen 
covers only a very specific period of the year during wh ich imports are at a high, and thus ignores the fact 
that the industry might fare better during the other period of the year.  The United States argues that the requirement of making an "objective analysis" impli es that "investigating authorities are not entitled to 
conduct their investigation in such a way that it becom es more likely that, as a result of the fact-finding or 
evaluation process, they will determine that the industry is injured".
84  According to the United States, to 
examine only those parts of the year when import levels are high may overlook positive developments in other parts of the year, and thus give a misleading impression of the data relating to the condition of the 
industry as a whole, in breach of Article 3.1 of the AD Agreement.
85  The United States is of the view that 
the period of investigation for injury should include all months of the year in which there is domestic 
production, assuming the data is reasonably available.86    
7.69 The United States further argues that Economía's disregard of six months worth of data for each 
of the three years of the period of investigation is in consistent with the requirement of Article 3.5 of the 
AD Agreement to make a determination of causati on based on "all relevant evidence" before the 
authorities.  The United States submits that in the absence of an objective examination of all relevant 
evidence, and not just of a part of the evidence rela ting to the March - August period, the analysis of the 
causal link between the dumped imports and inju ry to the industry is inevitably flawed.  
7.70 The United States further submits that Economía's dismissal of the concerns of exporters and 
importers that participated in the investigation con cerning the flawed period of investigation, prevented 
them from pointing to evidence from the missing months that might have supported their views.  This, the 
United States argues, is inconsistent with Article 6.2 of the AD Agreement.  Finally, the United States 
argues that as a consequence of the breaches of Articl es 3.1 and 3.5, Article 1 of the AD Agreement is 
also violated. 
Mexico 7.71 Mexico argues that the AD Agreement does not provide for any rules on how the period of 
investigation for the injury analysis should be inte grated in the anti-dumping investigation.  Mexico 
asserts that Economía gathered all the information available over a period of three years ("the period 
analysed"), including the year covered by the "per iod of investigation" for dumping purposes, March – 
August 1999.  It then limited its comparison to stric tly comparable periods, i.e. the periods in the 
preceding two years that covered exactly the same m onths as those of the "period of investigation", 
                                                     
 
83 The United States thus emphasises that it is objecting per se  to Economía's decision to limit the injury 
analysis to only half of the period of investigation, and not  only to the fact that Economía limited its analysis to the 
period when imports were concentrated. US First Answer s to Questions, para. 16 and US Oral Statement at the 
Second Substantive meeting of the Panel with the parties (the "Second Oral Statement"), para. 15. 
84 US First Submission, para 76 quoting from Appellate Body Report, US – Hot-Rolled Steel , para. 196. The 
United States points to the analysis of capacity utilization and performance of the industry in terms of sales revenue 
as two examples of a flawed analysis. In the United Stat es' view, the period not examined would likely have led to 
higher sales revenue, since the September – February pe riod was the time in which import volumes were low and 
domestic sales volumes at their seasonal high. By ignoring these data, Economía was not able to consider whether 
any recovery of sales revenue from October through Decem ber offset or overcompensated any decline in sales 
revenue relating to June- July production and reflected in the March – August data. US First Submission, para. 80.     
85 The United States finds support for its argument in the Appellate Body Report in the US – Hot-Rolled 
Steel  case in which the Appellate Body found that "an exam ination of only parts of a domestic industry does not 
ensure a proper evaluation of the state of the domestic i ndustry as a whole, and does not, therefore, satisfy the 
requirements of 'objective[ity]' in Article 3.1 of the Anti-Dumping Agreement". Appellate Body Report,  
US – Hot-Rolled Steel , para. 206, quoted in US First Submission, para. 82. 
86 US First Answers to Questions, para. 13.  WT/DS295/R 
 
  thereby eliminating any possible distortions in the market under analysis.
87  In any case, Mexico argues 
that the AD Agreement does not stipulate anything on the choice of the period of investigation for injury, leaving the investigating authority with unfettered di scretion to determine itself the appropriate period of 
investigation for the injury analysis.
88  
7.72 Mexico rejects the United States' assertion that the period March – August is  the period of highest 
import penetration.  According to Mexico, the producti on of long-grain white rice is more or less constant 
throughout the year, as it is independent of the production cycles of paddy rice.  This is so because the long-
grain white rice producers will simply import the paddy ri ce during certain parts of the year, but this does not 
affect their production levels.89  The US argument that production is much higher, and imports much lower, 
during the second part of the year which was not exam ined by Economía is, therefore, in Mexico's view, 
baseless.90  
7.73 In addition, in Mexico’s view, since the period of investigation was not inconsistent with any 
provision of the AD Agreement, there is no basis for th e US argument that the injury analysis failed to 
examine all relevant evidence as required by Article 3. 5 of the AD Agreement or that the interested parties 
were not given an opportunity to defend their interests.  Mexico points out that the interested parties were 
given an opportunity to meet with parties with an opposing interest91 and they were all given every 
opportunity to present their views, in accordance with Ar ticle 6.2 of the AD Agreement.  In the absence of a 
violation of any provision of the AD Agreement, there is  also no basis for the US claim of a consequential 
violation of Article 1 of the AD Agreement. 
(ii) Analysis 
7.74 The claim of the United States concerns the choice of the period of investigation for the injury 
analysis and the data used by the investigating authority when examining injury.  The United States 
argues that by ignoring part of these data, Mexico failed to base its injury analysis on positive evidence 
and did not conduct an objective examination of the st ate of the domestic industry, as required by Article 
3.1 of the AD Agreement.  Moreover, the United Stat es submits, Mexico violated Article 3.5 of the AD 
Agreement, as its determination of the existence of a causal link between the dumped imports and the 
alleged injury to the domestic industry was not based  on all relevant evidence as half of the relevant 
information was ignored.  Mexico on the other hand submits that the AD Agreement does not contain any obligations with regard to the period of investigation for the determinati on of injury and asserts that it was 
necessary to examine these particular six months of every year instead of the full year in order to ensure 
that the period of the injury analysis paralleled the six month period chosen for the analysis of dumping, 
so as to avoid any distortions. 
7.75 We note that in its Preliminary Determination the Mexican investigating authority stated that "the 
investigated period is March – August 1999 and, theref ore, the period for injury analysis is the one 
between March 1997 and August 1999".
92  In response to a question from the Panel, Mexico confirmed 
that "the investigating authority gathered all the information available over a period of three years, 
including the year covered by the 'period of investig ation';  however, it limited its comparison to strictly 
                                                      
87 Mexico, First Answers to Questions, answer to questi on 3.  Mexico First Submission, para. 55.  In its 
First Submission, Mexico argued that these differences could arise from the seasonal character of the product.  In its First Answers to Questions, and its Second Submission, it cl arified that seasonality was not an issue in the decision 
to base the determination on the March – August period of each  of the three years of the injury analysis only. See 
Mexico First Answers to Questions, question 3;  Mexico Second Submission, para. 39. 
88 Mexico First Submission, para. 57. 
89 Mexico includes a table which demonstrates that  throughout each of the years examined the domestic 
production levels remained stable. Mexico First Submission, para. 60.   
90 Mexico adds that none of the participating expor ters presented convincing reasons why the period of 
investigation was to be changed. 
91 Mexico asserts that a hearing took place on 18 January 2002. 
92 Preliminary Determination, para . 69. Exhibits US-14 and US-15. WT/DS295/R 
Page 118   comparable periods, i.e. the periods in the precedi ng two years that covered exactly the same months as 
those of the 'period of investigation¨' [for dumping]."
93  In other words, for injury purposes, the 
investigating authority analysed data for the months  of March – August of three consecutive years, 1997, 
1998 and 1999, and data from the period September – February of each of these years were disregarded. 
7.76 The United States asserts that by doing so, Mexico breached its obligations under Article 3.1 of 
the AD Agreement and 3.5 of the AD Ag reement, which provide as follows: 
3.1 A determination of injury for purpo ses of Article VI of GATT 1994 shall be 
based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the conse quent impact of these imports on domestic 
producers of such products. 
3.5 It must be demonstrated that the dumped imports are, through the effects of 
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.  The demonstration of a causal relationship between the dumped imports and 
the injury to the domestic industry shall be  based on an examination of all relevant 
evidence before the authorities.  The aut horities shall also examine any known factors 
other than the dumped imports which at the same time are injuring the domestic industry, 
and the injuries caused by these other factors must not be attributed to the dumped imports.  Factors which may be relevant in this respect include,  inter alia , the volume 
and prices of imports not sold at dumping pri ces, contraction in demand or changes in the 
patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry. 
7.77 We note, as we have done with regard to the pr evious claim, that the AD Agreement does not set 
forth any express requirement regarding the choice of  the period of investigation for the purpose of 
conducting an injury analysis.  We are of the view, however, that the requirement to base a determination of injury on positive evidence and pursuant to an objective examination nevertheless imposed certain 
obligations on the Mexican investigating authorities with  regard to the completeness of the data used as 
the basis for its determination.  In this respect, we  recall that in any case under the Panel's standard of 
review set forth in Article 17.6 of the AD Agr eement, we are to assess whether the authority's 
establishment of the facts was proper, and its evaluation unbiased and objective.
94  The question before us 
is thus whether it was proper of the Mexican investig ating authority in this particular case to base its 
injury determination on data coveri ng only half of the three-year pe riod (for which, as it happens, data 
were actually gathered), and whether such a limited da ta set enabled the authority to make an objective 
examination of injury.  
                                                      
93 Mexico, First Answers to Questions, question 3.   
94 We note that the Appellate Body in the EC – Bed Linen (Article 21.5 – India)  case also linked the objective 
examination requirement with the panel's standard of revi ew that requires it to examine whether the authority's 
establishment of the facts was proper.  The Appellate Body explained in a footnote: 
"These requirements of paragraphs 1 and 2 of  Article 3, as well as the requirements of 
Article 17.6(i), that investigating author ities establish the facts of the matter  properly   and 
evaluate those facts in an  unbiased and objective   manner, are mutually supportive and 
reinforcing.  In  US – Hot-Rolled Steel ,  we explained in respect of Article 17.6(i) that: 
… panels must assess if the establishment of the facts by the investigating authorities was  proper   
and if the evaluation of those facts by those authorities was  unbiased   and  objective . (original 
italics)"  Appellate Body report, EC – Bed Linen (Article 21.5 – India) , footnote 141  WT/DS295/R 
 
  7.78 We consider that an objective examination of the facts starts with an objective and unbiased 
investigative process.  We agree with the follo wing statement of the Appellate Body in the  
US - Hot-Rolled Steel  case summing up the requirement to conduct an "objective examination": 
"In short, an "objective examination" requires that the domestic industry, and the effects 
of dumped imports, be investigated in an unbiased  manner, without favouring the 
interests of any interested party, or group of in terested parties, in the investigation.  The 
duty of the investigating authorities to conduct an "objective examination" recognizes that the determination will be influenced by the objectivity, or any lack thereof, of the 
investigative process". (footnote omitted).
95 
7.79 As we stated earlier, the choice of the period of  investigation is crucial in this process as it 
determines the data that will form the basis for the assessment of the impact of dumping.  An examination 
or investigation can only be "objective" if it is based on data which provide an accurate and unbiased 
picture of what it is that one is examining.  
7.80 In our view, an objective examination of the effects of dumping on the state of the domestic 
industry which enables the authority to conclude that dumped imports caused injury to the domestic 
industry involves an analysis of trends over time of the volume and price of imports and of the state of the domestic industry.  It is only such an analysis wh ich will enable the authority to objectively gauge the 
effects of the dumped imports on the domestic industr y as required by Article 3.1 of the AD Agreement, 
and to assess whether the injury found to exist is caused  by the dumped imports as required by Article 3.5 
of the AD Agreement.      
7.81 For the purposes of examining the injury to th e domestic industry, the Mexican investigating 
authority collected data for three years, 1997, 1998, and 1999.  There does not appear to have been any 
problems in obtaining such data for this continuous period of three years.  However, in its examination of that data, it decided not to use half of the information gathered.  Th e authority thus based its determination 
on data relating to six months of each of the three y ears of the period of investigation, the months of 
March to August.  In our view, and absent any prope r justification for doing so, such an examination on 
the basis of an incomplete set of data cannot be objec tive, nor does the selective use of certain data for the 
injury analysis constitute a proper establishment of the facts on which to base the determination.
96   
7.82 We wish to note in this respect that our ruling should not be read as to imply that there could 
never be any convincing and valid reasons for examin ing only parts of years.  Mexico has not however 
presented any convincing arguments to this effect, whethe r in its investigation or in its arguments before 
us. Mexico's only argument is that it was necessary to examine only data relating to the six months from 
March to August because this was also the six month pe riod chosen for the analysis of the existence of 
dumping.97  We see no a priori  reason why a period of investigation on the injury analysis should be 
chosen to fit the period of investigation for the dum ping analysis in case the latter period of investigation 
covers a period of less than 12 months.  In our view, there is nothing in the AD Agreement that would require such an approach, quite to the contrary.  Mexi co submits that in order to avoid distortions due to 
the differences in volume of imports, sales or production during the other six months, it used for its injury analysis  a similar six month period.  We do not find this to constitute a proper justification for ignoring 
half of the data concerning the domestic industry.  In fact, it seems that what Mexico refers to as distortions are certain developments which occur in the remaining six months which perhaps undo part of 
                                                     
 
95 Appellate Body Report, US – Hot-Rolled Steel , para. 193. 
96 Our finding in this respect is made independent of th e question as to the biased nature of the choice for 
these specific six months chosen. 
97 In its First Submission, Mexico suggested that its  choice of period of investigation was justified for 
reasons relating to the seasonality of the product concer ned. Mexico has not, however further developed this 
argument and has subsequently clarified that seasonality was not an issue in this case. See Mexico First Answers to 
Questions, question 3; Mexico Second Submission, para. 39. WT/DS295/R 
Page 120   the effect of the imports that entered the country dur ing the six months that were examined.  This is 
precisely the kind of information we consider it is n ecessary to examine in order for the determination to 
be that of an objective and unbiased investigating authority.   
7.83 In fact, we recall that the applicants suggested  this particular six month period of March – 
August 1999 as it reflected the period of highest import penetration.
98  The Mexican investigating 
authority itself confirms this in the Preliminary Determination, stating that, in accordance with the 
information provided by the applicant, "imports tend to be concentrated during the period from March to 
August every year, which corresponds to the i nvestigated period propos ed by the petitioner".99  While we 
acknowledge that the authority was in  this quote discussing the imports of paddy rice, the raw material for 
the production of the subject long-grain white rice,  it clearly accepted the link made between production 
of paddy rice and the imports of the final product which the applicant points out is mainly imported in the period March – August.  As the applicant claimed, dur ing this period paddy rice is not harvested and for 
that reason this period adequately reflects the import activity.
100    
7.84 In our view, there are some similarities between th e failure to examine part of the year for which 
data were collected, and the situation discussed by the Appellate Body in the US – Hot-Rolled Steel  case 
involving an analysis of only a segment of the domestic industry, rather than the domestic industry as a whole.  The Appellate Body found that an examina tion of only certain parts of a domestic industry does 
not ensure a proper evaluation of the state of the domestic industry as a whole, and does not, therefore, satisfy the requirements of "objectiv[ity]" in Article 3.1 of the Anti-Dumping Agreement.
101  We consider 
that the following reasoning of the Appellate Body leadi ng to this conclusion is equally applicable to the 
situation before us in which an important part of  the year in which the domestic industry was fully 
operational was disregarded in the injury analysis:    
"204. We have already stated that it may be highly pertinent for investigating 
authorities to examine a domestic industry by part, sector or segment.  However, as with all other aspects of the evaluation of the domestic industry, Article 3.1 of the Anti-
Dumping Agreement  requires that such a sectoral examination be conducted in an 
"objective" manner.  In our view, this requirement means that, where investigating authorities undertake an examination of one part of a domestic industry, they should, in principle, examine, in like manner, all of the other parts that make up the industry, as 
well as examine the industry as a whole.  Or , in the alternative, the investigating 
authorities should provide a satisfactory explanation as to why it is not necessary to examine directly or specifically the other parts of the domestic industry.  Different parts of an industry may exhibit quite differe nt economic performance during any given 
period.  Some parts may be performing well,  while others are performing poorly.  To 
examine only the poorly performing parts of an industry, even if coupled with an examination of the whole indus try, may give a misleading impression of the data relating 
to the industry as a whole, and may overlook pos itive developments in other parts of the 
industry.  Such an examination may result in  highlighting the negative data in the poorly 
performing part, without drawing attention to  the positive data in other parts of the 
industry.  We note that the reverse may also be true – to examine only the parts of an industry which are performing well may lead to overlooking the significance of deteriorating performance in other parts of the industry."
102 
                                                      
98 Application for initiation of an anti-dumping inves tigation regarding imports of long-grain white rice 
from the United States, page 34. Exhibit US–8. 
99 Preliminary Determination, para. 65. Exhibits US -14 and US-15 
100 Preliminary Determination, para . 64. Exhibits US-14 and US-15. 
101 Appellate Body Report, US – Hot-Rolled Steel , para. 206. 
102 Appellate Body Report,  US – Hot-Rolled Steel , para. 204.  WT/DS295/R 
 
  7.85 We find that the acceptance of a period of inv estigation proposed by the applicants because it 
allegedly represented the period of highest import penetration and would thus show the most negative side 
of the state of the domestic industry is not what can be expected of an objective and unbiased investigating authority.  The question whether production was in fact lower during these months or not and whether the situation of the domestic industry was, in fact, worse during these six months or not is, in our view, irrelevant in this respect. 
7.86 In sum, we find that the injury analysis of the Mexican investigating authority in the rice 
investigation which was based on data covering only si x months of each of the three years examined, is 
inconsistent with Article 3.1 of the AD Agreemen t as it is not based on positive evidence and does not 
allow for an objective examination, as it necessarily, and without any proper justification, provides only a 
part of the picture of the situation. In addition, we  find that the particular choice of the limited period of 
investigation in this case was not that  of an unbiased and objective inves tigating authority as the authority 
was aware of, and accepted, the fact that the period c hosen reflected the highest import penetration, thus 
ignoring data from a period in which it can be expect ed that the domestic industry was faring better.  
7.87 As a consequence, we also find that Mexico acted inconsistently with Article 3.5 of the 
AD Agreement as it failed to base its determination of the existence of a causal relationship between the 
dumped imports and the alleged in jury to the domestic industry on all relevant evidence  before the 
authorities, as required by Article 3.5 of the AD Agreement.  
7.88 In light of our findings on Article 3.1 and 3.5 of  the AD Agreement, we do not find it necessary to 
address in this context the US claim under Article 1 of the AD Agreement and Article 6.2 of the AD Agreement.  That is, having determined that the measure at issue is inconsistent with the cited 
Articles, and exercising the discretion implicit in the principle of judicial economy, we do not deem it necessary to examine whether the inves tigation which led to the inconsistent measure was consistent with 
the procedural rules on providing for all interested parties a full opportunity for the defence of their 
interests set forth in Article 6.2 of the AD Agreement.  We do not consider that this would add anything to 
our findings or would be useful in the implementation of our ruling.  
(c) Claim 3:  Economía’s failure to collect the evidence on price effects and volumes that it 
needed to conduct its injury analysis in an ob jective manner is inconsistent with Mexico’s 
obligations under Articles 3.1, 3.2, 6.8 and Annex II of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.89 The United States submits that the injury determ ination in as far as it concerned the volume and 
price effects of the dumped imports on the domestic industry was not conducted in an objective manner, 
nor based on positive evidence, as required by Articles 3. 1 and 3.2 of the AD Agreement.  With regard to 
the volume of dumped imports, the United States argues th at Economía failed to collect the data it needed 
to examine in an objective manne r whether there had been a significant increase in dumped imports, as 
required by Article 3.2 of the AD Agreement.  In particular, Economía did not use the customs declarations (the "pedimentos") or seek to obtain accurate import volume information from importers.  In 
addition, Economía rejected information from th e only company found to have been dumping (the 
Rice Company)
103, and drew inferences about volumes and prices of dumped imports from the data 
provided by another company for non-dumped imports.104  Its determination of the volume of dumped 
                                                      
103 According to the United States, the reasons given by Economía for rejecting the information was that 
such information covered only the year 1999 and not also 1997 and 1998.  The United States points out that Economía did accept however less accurate estimates preferre d by the applicants even though those estimates also 
pertained only to the 1999 period of analysis. US First Submission, para. 98. 
104 US First Submission, para. 97. WT/DS295/R 
Page 122   imports was therefore not objective nor based on positive evidence, in violation of Article 3.1 and 3.2 of 
the AD Agreement. 
7.90 With regard to the examination of the price e ffects of the alleged dumped imports on the domestic 
industry, the United States submits that Economía failed to even attempt to collect information it needed 
to conduct a proper price analysis as required by Article 3.2 of the AD Agreement.  The United States argues that the analysis under Article 3.2 of the AD Agreement of the price effects of the dumped imports entails a comparison of data concerning prices fo r the dumped imports on the one hand, and data 
concerning prices for the domestic like product on the other hand.  While the AD Agreement does not require any particular methodology for making price co mparisons and evaluating price effects, the United 
States submits that Article 3.1 of the AD Agreement re quires that this analysis consist of an objective 
examination based on positive evidence.  According to the United States, Economía chose to rely instead 
on biased information sources that the applicants ha d selected, and thus compared the actual sales values 
reported by the domestic producers to fictitious unit values for the dumped imports that it derived using a methodology proposed by the applicant.
105   
7.91 Finally, the United States submits that Economía used facts available to determine volume and 
price effects of the dumped imports and relied on secondary source information, without first having 
made an effort to obtain the data from the interested pa rties.  In addition, it used such data without first 
seeking to corroborate them against independent sources,  in breach of Article 6.8 and paragraphs 1 and 7 
Annex II of the AD Agreement.  
Mexico 7.92 Mexico submits that Economía made an objectiv e determination based on positive evidence of the 
volume of dumped imports and the effect of the dum ped imports on prices, in accordance with Articles 
3.1 and 3.2 of the AD Agreement.  Mexico fails to  see on what basis the United States is arguing that 
because Economía based its analysis partly on informa tion provided by the applicant, Economía violated 
the Agreement.   
7.93 According to Mexico, the AD Agreement does not impose a particular methodology for 
conducting a volume or price analysis, nor does it impose an obligation on Economía to obtain more information than such as provided by the parties, as long as it makes an objective determination based on 
positive evidence.
106  Mexico rejects the United States' sugg estion that Economía should have take the 
initiative to obtain and examine the pedimentos in which it could have found more ample information on 
prices and sales volumes.  In any case, Mexico asser ts that such pedimentos are kept by the 
Customs Office, and were therefore not at the dis posal of Economía.  As such documents were not 
provided by the applicant either, Economía could not  rely on these documents for any price and volume 
information.  Moreover, such pedimentos would not  have enabled Economía to  distinguish the subject 
imports from other imports coming in under the same tariff heading. 
7.94 Mexico is of the view that the mere fact that Economía accepted the methodology proposed by 
the applicant for estimating import volumes is not inc onsistent with Article 3.2 of the AD Agreement, 
especially since the exporters concerned failed to provide the information or did not respond at all.107  
                                                      
105 According to the United States, Economía did not re quest data from a broad range of importers of the 
products, did not request sales information on the prices at which the importers made sales to their customers, nor did it seek information from purchasers to compare the prices paid for the dumped product with the prices paid for the domestic product. By not doing so, the United States assert s that Economía did not have accurate unit value data on 
the dumped imports. 
106 Mexico First Submission, para. 97. 
107 Mexico takes issue with the United States' suggestion that Economía accepted from the applicant 
information it rejected from the exporter. Mexico argue s that Economía used the applicant information and 
methodology as the starting point but conducted further research.  WT/DS295/R 
 
  Mexico submits that the information provided by the Rice Company was not accepted for reasons of procedural equality as it only related to one of the thr ee years of the period of investigation, while others 
did provide information for all three years and similar information was requested from the Rice Company without success.  Mexico thus asserts that the determ ination of the volume of dumped imports and their 
price effect was not inconsistent with Articles 3.1 and 3.2 of the AD Agreement. 
7.95 With regard to the United States' assertion that Economía was not allowed to apply facts available 
as it did not send questionnaires to all exporters and di d not consult the pedimentos, Mexico submits that 
it was not required to do so by the AD Agreement.  Mexico argues that there is no provision in the 
AD Agreement which requires an investigating author ity to actively go out and seek information as part 
of an anti-dumping investigation.  Mexico argu es that under Article 6.1 of the AD Agreement the 
investigating authority can, but is not obliged to  send questionnaires to all the foreign producers and 
exporters.  Mexico complied with its obligations unde r Article 6.1.3 of the AD Agreement by sending the 
notice of initiation and the forms for producers and exporters to the known exporters and to the US 
authorities, and published the notice of initiation.  Mexico argues that the only customs document that the investigating authority had in its possession were the excerpts of the customs d eclarations, also known as 
the "listados".  As these listados did not contain th e names of exporters, no other exporters than those 
mentioned in the application were known to Economía .  The forms sent to the known exporters and the 
US authorities clearly indicated that facts available could be used in case the required information was not provided.  In Mexico's view, Economía thus co mplied with Article 6.8 of the AD Agreement. 
(ii) Analysis 
7.96 The United States claims that Mexico failed to base the part of its injury determination relating to 
the trends in the volume of dumped imports and the price effects of the dumped imports on positive 
evidence as it failed to collect the information required to make an objective examination of injury based 
on positive evidence, as required by Articles 3.1 and 3.2 of the AD Agreement.  In addition the United States argues that the use of secondary source information without having sought to obtain the information from the interested par ties is inconsistent with Article 6.8 of the AD Agreement and Annex II 
thereto.  
7.97 Articles 3.1 and 3.2 of the AD Agreement provide as follows: 
3.1 A determination of injury for purpo ses of Article VI of GATT 1994 shall be 
based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic 
market for like products, and (b) the conse quent impact of these imports on domestic 
producers of such products. 
3.2 With regard to the volume of the dumped imports, the investigating authorities 
shall consider whether there has been a si gnificant increase in dumped imports, either in 
absolute terms or relative to production or consumption in the importing Member.  With 
regard to the effect of the dumped  imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree  or prevent price increases, which otherwise would have occurred, to a significant degree.  No one or several of these factors can necessarily give decisive guidance. 
7.98 Article 3.1 of the AD Agreement thus requires in rele vant part that an injury determination is to 
be based on positive evidence and involve an objective examination of the volume of the dumped imports 
and the effect of the dumped imports on prices in the domestic market for like products.  Article 3.2 of the 
AD Agreement elaborates on these requirements by requiri ng the authority to consider whether there has 
been a significant increase in dumped imports and whet her there has been a significant price undercutting WT/DS295/R 
Page 124   by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect has been to depress prices or prevent price increases.  It is clear from reading these two 
provisions in combination that the basis for any ev aluation as to the volume of dumped imports or the 
price effects of such imports has to be positive evid ence.  We concur with the views expressed by the 
Appellate Body in the US – Hot-Rolled Steel  case, that the word "positive" means that the evidence must 
be of an affirmative, objective and verifiable character, and that it must be credible.
108  We wish to 
emphasise that our task is not to perform a de novo  review of the information and evidence on the record, 
nor to substitute our judgment for that of the Mexican  authorities. Rather we examine what the evidence 
was on which the authorities based its examination and whether the determination made was the result of 
an objective examination based on positiv e evidence.  In this respect, we consider it important to recall 
our standard of review under the AD Agreement as set forth in Article 17.6 (i) of the AD Agreement:   
“(i) in its assessment of the facts of the ma tter, 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 evalua tion shall not be overturned;”  
7.99 In other words, if we find that the Mexican inve stigating authorities have properly established the 
facts and evaluated them in an unbiased and objective manner, and  that the determinations rest upon a 
permissible interpretation of the relevant provisions, we  will consider this measure to be consistent with 
the relevant provisions of the AD Agreement.   
7.100  The authority explains how it established the vol ume of dumped imports of the subject product 
into Mexico in its final determination.
109  The final determination shows that the authorities were 
confronted with the problem of distinguishing first the subject rice imports (i.e. "long-grain white rice") 
from imports of all types of rice, and second the impor ts of the subject product that were dumped into 
Mexico from those imports that entered Mexico at  undumped prices.  The first problem arose from the 
fact that the tariff line under which subject imports of long-grain white rice were imported, 1006.30.01, at 
the time of the investigation also covered other types of rice such as medium and short grain rice, as well as glazed or parboiled rice which were not part of the investigation.
110  
7.101  The investigating authority examined various me thods of extracting from the total imports that 
entered the country under this tariff line, those impor ts relating to the subject product, long-grain white 
rice.  The authority first examined the "method using th e exporters' verifiable information".  The authority 
had requested information about long-grain white rice exports from each of the four companies that participated in the investigation.  One firm rep lied that it had not exported and it did not provide any 
information.  Two other companies, the Rice Comp any and Riceland were found to have submitted proper 
information for the period of investigation for the dum ping analysis (1999).  However, for the rest of the 
period of investigation (years 1997 – 1998) the authority  found that only information on exports to other 
countries were submitted (the case of the Rice Company) , or only a copy of a worksheet in which the 
exports of the investigated product were not clearly  itemized was submitted (the case of Riceland).  In 
sum, the authority considered that the only company to provide correct information for the whole period 
                                                     
 
108 Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
109 Final Determination, (Exhibits US -6 and US-7) paragraphs 206 – 261. 
110 As becomes clear from, for example, para. 7 of the Notice of Initiation (Exhibit US-2): 
"The petitioner also indicated that other types of white rice enter the country under tariff code 
1006.30.01 of the Schedule in the General Import Ta x Law and that these types have different 
characteristics from those of the product under inve stigation and are classified commercially in 
two groups: short grain rice and medium grain ri ce. However, the tariff description in the 
Schedule under the General Import Tax law is gene ral and makes no reference to this type of 
classification. Thus, the customs declarations do not  differentiate the type of rice that is entering 
the United Mexican States."     WT/DS295/R 
 
  of investigation was Farmers Rice, whose expor ts increased by 303.7 per cent in the 1998 March – 
August period compared to the previous corr esponding period and by 12.3 per cent during the 
investigated period in 1999 in relation to the previous comparable period.
111  The authority considered 
that two of the three participating companies di d not provide accurate information for the whole 
investigated period, and decided for that reason not to use the information submitted by these two 
companies.  Instead, it established that the vari ation observed in the case of Farmers Rice was an 
acceptable indicator of the behaviour of the exports by the two other participating firms, Riceland and the Rice Company.  
7.102  We consider it important to note at this junctu re that the authority found no dumping margin for 
Farmers Rice, allegedly the only company that provide d full information and of which the imports were 
used as an indicator of the volume of dumped impor ts.  No dumping margin was found with respect to 
imports from Riceland either, a company whose expor ts the authority states represented an important 
proportion of imports from the United States into Mexico under tariff line 1006.30.01.
112  
7.103  For determining the volume of imports from companies other than the four participating firms, the 
authority decided to use the methodology proposed by the applicant:    
"229. ... [T]he Ministry found that the petitioner submitted a method that intends to 
differentiate some products from others for the purpose of calculating the dumping 
margin. This method is based on the confidence interval analysis.  For this, the behavior 
of long grain rice prices on the one hand and of the prices of short grain and medium grain rice on the other were observed in the United States of America during the investigated period.  Thus, the medium gr ain and short grain rice group had a minimum 
price of $0.458 U.S. dollars per kilogram and a maximum price of $0.509 dollars per kilogram.  Finally, the CMA indicated that, based on the above, presumably any importation made at a price above 0.458 dollars  per kilogram would be of rices different 
from the investigated one, while those imports  made at prices below such amount would 
correspond to long grain rice. 
230. With this information as a starting point, and as was established at paragraph 221 of 
the preliminary determination, unquestioned by an y of the interested parties, the Ministry 
calculated the volume of imports that would correspond to these price levels, and it subtracted the result from the total volume of imports from the United States of America that entered into the Mexican territory under tariff section 1006.30.01 of what was then the Tarifa de la Ley del Impue sto General de Importación  during the investigated period. 
The above was carried out taking the listado de pedimentos de importación  of the SIC-
M, from which they eliminated those transactions with a price above $0.458 US dollars per kilogram. In this way, the Ministry considered that the rest of the imports could correspond to long grain white rice, which was not disproved during the investigation."
113 
7.104  In sum, the methodology proposed by the applican t was that rice imported below a certain price 
level was to be treated as the subject product, long-gr ain white rice, while rice imported above that price 
was not.  The authority explained that it decided to use this methodology, even though it presented the important shortcoming that it failed to provide accurate  information on the periods prior to the period of 
investigation used for dumping purposes, i.e. for the years 1997-1998.
114  While in the case of the 
                                                      
111 Final Determination (Exhibits US -6 and US-7), paras. 226 – 227. 
112 Final Determination (Exhibits US-6 and US-7), para. 228. 
113 Final Determination (Exhibits US -6 and US-7), paras. 229 – 230. 
114 The authority made the following statement in para. 232 of the Final Determination: 
"We have to point out that, when analyzing the information from which the above concepts are inferred, the Ministry found that the price of th e long grain rice in the United States of America WT/DS295/R 
Page 126   exporting firms that participated in the investigation,  this failure to provide accurate information for the 
years 1997-1998 implied that they were assumed to all have behaved in the same manner as the one 
exporter that provided full and accurate data (Farme rs Rice), in applying the applicant’s method the 
authority overcame this problem of lack of accurate data for the years 1997 – 1998 by simply assuming that the level of imports of the subject product in the total imports of all types of rice during the years of 1997 and 1998 was the same as in the year 1999:   
"239. [T]he Ministry decided that the best methodology in order to make this estimate 
[on the volume of imports from the United States] was the one presented by the CMA [the petitioner]; however, such methodology , as noted in paragraph 232 of this 
determination, could only identify long gr ain white rice imports corresponding to the 
investigated period [of 1999] and cannot be ex trapolated to previous similar periods. 
Therefore, the Ministry decided it was appropr iate to consider that the investigated 
imports, as they were estimated in paragraph 230 of this determination, maintained the 
same participation in the total imports coming from the United States of America .[…]." 
(emphasis added) 
7.105  On this basis the authority established that the investigated imports increased 8.6 per cent in the 
period March-August 1998 in relation to the same period in the previous year, and increased 3.4 per cent 
during the dumping investigation period in relation to the previous comparable period.  We recall that 
with regard to the level of imports from the examin ed exporters, the authority found, on the basis of the 
assumption that all exporters behaved in a manner sim ilar to Farmers Rice, that the exports to Mexico 
from the companies that appeared in the investigation increased 303.7 per cent and 12.3 per cent in the 
analyzed periods.115  
7.106  The authority then addressed the second problem of separating the volume of dumped subject 
imports from non-dumped subject imports, and found as follows: 
"243. Article 3.2 of the Anti-dumping Agreement states that it shall be considered 
whether there has been a signi ficant increase in dumped imports. In order to comply with 
this article the Ministry made two groups of imports: 
a) The imports that will be subject to a residual dumping margin, that is the group 
obtained from subtracting, from the investig ated imports, which correspond solely to 
long grain white rice, the volume of exports made by the exporting companies that participated in the investigation, and 
b) The exports made by The Rice Corporation, for which a dumping margin of 
3.93 per cent was established. The sum of these two data groups corresponds to the 
dumped imports.  
244. Based on what is set forth in the above paragraph, the Ministry observed that these 
imports decreased 3.2 per cent in the pe riod March-August 1998 in relation to the 
previous comparable period and increased 1. 2 per cent in the investigated period in 
relation to the same period of the previous y ear. Thus, the Ministry concluded that the 
dumped imports increased in the investigated period, in terms of articles 64(I) of the 
                                                                                                                                                                    
 
was not always below the price of the other types of rice, as is stated in paragraph 224 of the 
preliminary determination.  Therefore the Ministry  considers that this estimation method cannot be 
used consistently during the periods previous to the investigated one". Final Determination 
(Exhibits US-6 and US-7), para. 232. 
115 Final Determination (Exhibits US-6 and US-7) para. 241.  WT/DS295/R 
 
  
Regulations of the Foreign Trade Act, and 3.2 of the Anti-dumping Agreement." 
116 
(emphasis added) 
7.107  In other words, the authority took the total volume of imports of the subject product and 
subtracted from that amount the imports from the exporte rs that participated in the investigation and for 
which no dumping margin was found.  
7.108  With regard to the analysis of the evolution of prices of the subject imports and their effects on 
domestic prices, the investigating authority first concluded that the prices of dumped imports were 
decreasing in the following manner: 
"[A]s the price of all kinds of rice decreased  during the investigated period and as the 
export price of Farmers Rice Milling also decreased, it is reasonable to conclude that the prices of the remaining imports, including the dumped imports, decreased. This argument was not refuted by any of the parties during the proceeding."
117 
7.109  In examining the effects on domestic prices, the authority reasoned as follows: 
"285. The Ministry found that during the investigated period, dumped imports were 
17.8 per cent below the domestic price of the previous comparable period, and 24.2 per cent below that which exis ted in the period March-August 1997. 
[...] 294. Based on the aforementioned, the Ministry observed a decline in the prices of the 
domestic products that coincided with a d ecrease in the prices of the imports from the 
United States of America, dumped or not – although the prices of the dumped imports were 6.5 per cent below the price of non-dumped imports -, as well as with the presence of the product from Argentina. 
295. Consequently, the Ministry observed th at the information that was available 
during the final stage of the investigation s hows that the imports of the investigated 
product were priced below the domestic product, except for the exports from Riceland Foods, Inc., which did not have a dumping margin. 
296. Therefore, the Ministry determined that, during the investigated period, the 
dumped products were priced below the domestic  product.  It was also observed that the 
price of the dumped imports was lower than the prices of the domestic products in periods previous to the investigated period.  Du e to this, the Ministry determined that this 
situation provoked the decline in the prices of the domestic producers.  Also, the Ministry considers that the entry during the investigated period of imports at reduced prices from Argentina and the decline, in the same period, of the price of non-dumped imports from the United States of America cont ributed to the decline in prices of the 
merchandise produced domestically.  Thus, the Ministry determined that the dumped imports from the United States of America contributed to pressure the domestic producers to lower their prices in the investigated period."
118  
7.110  The question before us is thus whether the i nvestigating authority based its determination on 
information which is affirmative, objective, verifiable and credible.119  We are of the view that the way in 
                                                      
116 Paras. 243 and 244 of the Final Determ ination (Exhibits US-6 and US-7). 
117 Final Determination (Exhibits US-6 and US-7), para. 270. 
118 Final Determination (Exhibits US-6  and US-7), paras. 285 and 294 - 296. 
119 Appellate Body Report, US – Hot-Rolled Steel , para. 192: WT/DS295/R 
Page 128   which the investigating authority established the fact s on the basis of which it was going to consider the 
trends in volume of dumped imports was not a proper establishment of the facts, for the following reasons.  
7.111  As is clear from the authority's final determinati on, the volume analysis is not based on facts, but 
on assumption after assumption.  The methodology of the applicant which the authority decided to use is 
based on the unsubstantiated assumption that rice sold below a certain price level must be long-grain 
white rice.  Although the authority itself c oncludes that this was a flawed assumption
120, it decided to use 
this methodology.  However, because the assumption appa rently held true only for the investigated period 
of the year 1999, the authority had to make anothe r unsubstantiated assumption, which was that in fact 
during the previous years the subject imports kept the same share in the total amount of imports of all types of rice from the United States.  We recall that these assumptions were used in order to establish the 
trends in the volume of the imports of the subject product, long-grain white rice from the United States, without any distinction between th e dumped and the non-dumped imports. 
7.112  In parallel with the applicant's methodology for th e determination of the volume trends of subject 
imports, the authority determined the trends in the volume of imports from the examined exporters.  The 
authority first rejected the information provided by two of the three exporters examined, among which the 
Rice Company, the only company of these three for wh ich a positive margin of dumping was established, 
and again based its conclusion as to their volume of subject imports on an unsubstantiated assumption, i.e. 
the assumption that all examined firms' export volumes showed a similar trend to that of the exporter 
which provided full three year volume information, Farmers Rice.  We note that no margin of dumping was established with regard of exports from this co mpany, Farmers Rice.  On the basis of all these 
assumptions, the authority then determined the volum e of dumped imports by subtracting all imports from 
the three examined exporters from the total amount of assumed subject imports, and adding the imports 
from the one examined company for which a margin for dumping was found, the Rice Company.  It is 
clear that the authority did not base itself on positive evidence, but on, in our view unjustified, assumptions, and the authority has therefore failed to properly establish the facts.  We do not wish to 
imply by this that an authority is never allowed to complete its analysis by drawing certain inferences, 
provided it offers a well reasoned explanation.  Howe ver, we are of the view that the investigating 
authority did not do this in this case.  Actually, it a ppears that in making its assumptions, the investigating 
authority consistently chose to make assumptions whic h negatively affected the exporters' interests.  In 
our view, the authority could just as readily have concluded the exact opposite from the facts on which it 
based its assumptions.  For that reason as well, we c onsider that the Mexican authority failed to conduct 
an objective examination of the volume of the dumped imports.  
7.113  With regard to the basis for the authority’s finding on the price decrease of the dumped imports, 
we come to much the same conclusions.  We consid er that an investigating authority conducting an 
objective and unbiased investigation c ould not have reached the conclusi on that prices of dumped imports 
were decreasing on the basis of the flawed analysis  based on unsubstantiated assumptions made by the 
Mexican investigating authority.  In the stat ement on price decreases quoted above, the authority 
compares three types of prices:  (a) export price of all types of rice (both subject rice and non-subject rice), (b) export price of Farmers Rice, and (c) the export price of the "remaining imports, including the dumped imports".  We recall that Farmers Rice is "the  only exporter to present information related to the 
entire investigated period, although this co mpany did not have a margin of dumping"
121.  Thus, the logic 
of Economía is that because the price of a broader category of rice – i.e. category (a) -- declined, and 
because the prices of one participating exporter of th e subject product, who was not found to have been 
                                                                                                                                                                     
"The term 'positive evidence' relates, in our view, to the  quality  of the evidence that authorities 
may rely upon in making a determination.  The word "positive" means, to us, that the evidence must be of an affirmative, objective  and  verifiable  character, and that it must be credible ."
  
(emphasis added) 
120 Final Determination (Exhibits US-6 and US-7), para. 232. 
121 Final Determination (Exhibits US-6 and US-7) para. 268.  WT/DS295/R 
 
  dumping, decreased, the third category of rice – (c) or "dumped imports" -- is a sub-set of the first category of rice, and this third category of rice must have declined also.
122  We do not consider this to be a 
warranted assumption on the basis of the evidence in th is case.  Let us assume, for arguments sake, that 
import of category (a) (or "all kinds of rice") represente d 100 tons, and its price declined by 7 per cent.  
Let us also assume that of that 100 tons, 10 tons re presented "dumped imports".  If the price of the latter 
increased 2 per cent while the price of the rest (i.e. 90 tons) decreased by 8 per cent, the price of "all kinds 
of rice" would still decrease by 7 per cent.123  In our view, such flawed assumptions are clearly not 
"positive evidence" on which an examination of the price effects of dumped imports is to be based. 
7.114  We are not convinced either that an objective and unbiased investigating authority had no choice 
but to base itself on the above unsubstantiated assump tions for lack of better information.  The 
determination of dumping and injury are the result of an investigation to be c onducted in an objective and 
unbiased manner.  In our view, the Mexican investigating authority failed to comply with its obligation to determine the volume of dumped imports on the basis of positive evidence and to make an objective examination by failing to conduct a proper investigation.   We consider that to conduct an "investigation" 
requires a proper degree of activity on the part of the competent authorities because authorities charged 
with conducting an inquiry or a study – to use the treaty language, an "investigation" – must actively seek out pertinent information.
124  As we will discuss later in respect  of the use of facts available to 
unexamined exporters, we are of the view that the investigating authority failed to ensure that all 
interested parties were informed of the informati on required of them, as the authority sent questionnaires 
only to those exporters listed in the application and t hose that appeared subsequent to the initiation of the 
investigation.  It is clear that had the authorities properly informed all interested parties the authority 
could reasonably be considered to have knowledge of and if it had sen t questionnaires to a larger number 
of exporters, more, and more accurate information could have been gathered on the volume of the subject imports. 
7.115  Moreover, it appears that very useful and valuab le information which could have provided a more 
accurate basis for any assessment of the volume of th e subject imports existed in the form of the 
pedimentos which contained all information on volume and value of the imports, the exporting enterprise, 
the importing enterprise, the duties and other taxes paid , the date of the transaction, the customs point of 
entry of the goods, the tariff line under which the transaction was conducted and so forth.
125  Even though 
it appears the field for entering the product descripti on does not necessarily contain all the details of the 
product covered by the pedimento, and even accepting that  even if all the pedimentos had been available 
it might not have been possible to determine with certainty the total amount of imports of the subject product, such data would in any case have constitute d a more objective basis of evidence for making a 
reasonable estimate of the amount of dumped imports.  In any case, from Mexico's answers to our questions with regard to the pedimentos, we conc lude that in cases where the pedimento would have 
simply referred to white rice without distinguishing whether the product imported was long-grain or other 
white rice, it would still be possible to find the precise product description by referring to additional 
documents such as the invoices issued by the exporte r, bills of lading, and so forth.  While we 
acknowledge that this would have required some additi onal work for the investigating authority we are of 
the view that the authority cannot have its cake and eat it at the same time.  If an authority does not send 
out questionnaires to all exporters it could reasonably be expected to  have knowledge of, and does not 
ensure that as many exporters as possible are otherw ise informed of the information required by, for 
example, requesting the assistance of the authorities of the exporting country or known industry 
                                                     
 
122 It goes without saying that one cannot assume  that the price of dumped imports are cheaper  than non-
dumped imports (e.g. price of Farmers Rice).  Thus, we fail to see, from the explanation given in the Final 
Determination (Exhibits US-6 and US-7), how the price of Farmers Rice (i.e .category (b)) fit into Economía's logic 
here.  
123 10x(0.02)+90x(-0.08) = 100x(-0.07) 
124 We thus concur with the view expressed by the Appellate Body in the US – Wheat Gluten  case. 
Appellate Body Report, US – Wheat Gluten , para. 53. 
125 Mexico First Answers to Questions, question 15. WT/DS295/R 
Page 130   associations in the exporting country, then it cannot comp lain about the fact that it will have to become 
more active itself in gathering sufficient positive evid ence on which to base its injury determination.  
7.116  In sum, we find that the investigating authority's  injury analysis with regard to the volume and 
price effects of dumped imports was inconsistent w ith the requirements of Articles 3.1 and 3.2 of the 
AD Agreement to conduct an objective examination based on positive evidence of the volume and price 
effects of the dumped imports.  
7.117  In light of our findings on Articles 3.1 and 3.2 of the AD Agreement, we do not consider it 
necessary to continue our analysis of the US claim with regard to Article 6.8 and Annex II of the 
AD Agreement alleged to have been violated by the Mexican investigating authority’s failure to base its 
determination of the volume and price effects of  dumped imports on positive evidence, and make no 
findings in this respect.   
(d) Claim 4:  Economía’s failure to ob jectively consider whether there was a significant  
increase in the volume of  dumped  imports or whether the dumped imports had a significant 
effect on prices is inconsistent with Mexico’s obligations under Articles 3.1 and 3.2 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.118  According to the United States, while Economía's injury analysis included a lot of discussion of 
the volume of imports, much of the discussion did not  address the relevant dumped imports.  Moreover, 
the United States submits, the data that reflect the calculated volumes of dumped imports show that those 
imports actually declined, both in absolute and re lative terms during the selected three year period.
126  The 
United States submits that an objective and unbiased investigating authority would not, in light of these facts have found that there was a significant increase in dumped imports, and Econom ía's findings in this 
case thus breached Article 3.2 of the AD Agreement. 
7.119  The United States further argues that Economía evaluated the effect of imports on prices, but 
failed to consider whether their effect was "significan t" as required by Article 3.2 of the AD Agreement.  
For that reason as well, the United States submits, Economía  's determination is in consistent with Article 
3.2 of the AD Agreement. 
7.120  For these reasons, according to the United States , Economía's determination was not objective nor 
based on positive evidence and thus also inconsiste nt with Article 3.1 of the AD Agreement.  
Mexico 7.121  Mexico rejects the United States' assertion that Economía failed to make an objective 
determination of a significant increase in the volume of imports and of the price effects of the dumped 
                                                     
 
126 US First Submission, para. 104. The United States refers to paras. 244, 248,  254, and 259 of the Final 
Determination (Exhibits US-6 and US-7) which deal with  dumped imports. According to the United States, these 
data show that the volume of dumped imports declined (para. 244), as did their share of apparent domestic 
consumption (para. 248) and internal consumption (par a. 254).  The volume of dumped imports in relation to 
domestic production remained flat (10.2–10.7–10.1) (para.  259).  See US First Submission, paras. 105 – 109.  WT/DS295/R 
 
  imports. Mexico argues that the significance of th e increase is addressed in paragraphs 209-261 of the 
Final Determination, albeit in an implicit manner.
127 
                                                      
127 Mexico First Submission, para. 116.  By way of ex ample, Mexico refers to para. 212 in which it was 
determined that total imports rose and para. 217 that showed  that imports from the United States increased during the 
period. WT/DS295/R 
Page 132   (ii) Analysis 
7.122  In the light of our earlier findings in respect of the authority’s injury determination which we find 
not to have been based on positive evidence and not to  have involved an objective examination, we do not 
find it necessary to address the US claim described a bove concerning the specific conclusions of the 
authority based on such flawed premis es.  That is, having determined that the authority’s determination in 
respect of injury is inconsistent with the cited provision, and exercising the discretion implicit in the 
principle of judicial economy, we do not deem it necessary to examine whether certain of the conclusions of the authority gave rise to further inconsis tencies in respect of that determination. 
(e) Claim 5:  Economía’s failure to conduct an objective analysis of the relevant economic 
factors is inconsistent with Mexico’s obligations under Articles 3.1 and 3.4 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.123  The United States submits that Economía failed to examine "all" relevant economic factors 
affecting the industry, as required by Article 3.4 of  the AD Agreement.  The United States refers in 
particular to the failure to examine the "factors a ffecting domestic prices", such as the quality differences 
or other factors affecting domestic prices such as brand reputation. 
7.124  In addition, the United States submits that Economía 's conclusions concerning some of the injury 
factors examined did not correspond with the facts on the record.  In particular, Economía's conclusion 
that inventories increased, and market  share declined are not supported by  the facts on the record as found 
in the final determination.  The United States s ubmits that Economía's determination is therefore 
inconsistent with Article 3.4 of the AD Agreement,  as well as Article 3.1, as it was neither objective nor 
based on positive evidence.  
Mexico 7.125  Mexico submits that all relevant factors ha ving a bearing on the industry were objectively 
examined in accordance with Articles 3.1 and 3.4 of  the AD Agreement. Mexico  emphasises that not one 
factor is determinative.  With regard to the factor raised by the United States, inventories, Mexico submits 
that the Final Determination shows that there was a 7.3 per cent increase, even if this was preceded by a 
decrease.
128  
(ii) Analysis 
7.126  In the light of our earlier findings in respect of the authority’s injury determination which we find 
not to have been based on positive evidence and not to  have involved an objective examination, we do not 
find it necessary to address the US claim described above  concerning the specific aspects of this injury 
determination based on such flawed premises.  Th at is, having determined that the authority’s 
determination in respect of injury is inconsistent with the cited provision, and exercising the discretion 
implicit in the principle of judicial economy, we  do not deem it necessary to examine whether certain 
aspects of the determination gave rise to further in consistencies in respect of that determination. 
                                                      
128 Final determination (Exhibits US-6 and US-7), para. 318.  Similarly, Mexico asserts, market 
participation was discussed in paras. 313 – 315 of the Final De termination, and the effects of imports on prices of the 
like product in paras. 271 -296. Mexico First Submission, para. 121.  WT/DS295/R 
 
  
(f) Claim 6:  Economía’s inclusion of non-dumped imports in its evaluation of volume, price 
effects, and the impact of the dumped imports on the domestic industry is inconsistent with Mexico’s obligations under Articles 3.1, 3.2, and 3.5 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.127  The United States argues that Economía's injury and causation analysis examined the effects of all 
imports from the United States, both those that Ec onomía acknowledged were not dumped and those that 
it alleged were dumped.  The United States submits th at Articles 3.1, 3.2 and 3.5 of the AD Agreement 
which govern the analysis of injury to the domes tic industry caused by dumped imports, require an 
objective examination of the volume and effect of impor ts that are dumped to the exclusion of the volume 
and effect of imports that are not dumped.
129  Although Economía noted the data computed for the 
dumped imports alone, the United States argues that its examination and the final affirmative determination show that in reaching the determinati on, Economía considered the volume and price effects 
of all imports from the United St ates of long-grain white rice.
130  Therefore, the United States submits that 
Economía's failure to conduct an objective examinati on of the effect of the dumped imports alone is 
inconsistent with Articles 3.1, 3.2 and 3.5 of the AD Agreement.  
Mexico 7.128  With regard to the United States' assertion that non-dumped imports were included in the 
assessment of the volume and price effects of imports, Mexico argues that a separate analysis is present 
throughout the determination of imports from the Un ited States in general and dumped imports from the 
United States in particular.
131  Mexico recalls that Economía reached the conclusion that almost 
75 per cent of all imports from the United States were dumped and that this was the percentage of imports 
that was causing injury.132 
(ii) Analysis 
7.129  In the light of our earlier findings in respect of the authority’s injury determination which we find 
not to have been based on positive evidence and not to  have involved an objective examination, we do not 
find it necessary to address the US claim described above  concerning the specific aspects of this injury 
determination based on such flawed premises.  Th at is, having determined that the authority’s 
determination in respect of injury is inconsistent with the cited provision, and exercising the discretion 
implicit in the principle of judicial economy, we  do not deem it necessary to examine whether certain 
aspects of the determination gave rise to further in consistencies in respect of that determination. 
                                                      
129 The United States finds support for its  argument in Appellate Body Report, EC – Bed Linen  
(Article 21.5 – India) , para. 111 – 112. 
130 The United States considers that Economía's focus on all investigated imports, and not just the dumped 
imports, is most apparent in its discussion of the pr ice effects. See US First Submission, para .120-123. 
131 Mexico refers to paragraphs 206 – 221 of the Final Determination (Exhibits US-6 and US-7). 
132 Mexico First Submission, para. 124. WT/DS295/R 
Page 134   
(g) Claim 7:  Economía’s failure to provide in sufficient detail the findings and conclusions 
reached on all issues of fact and law with respect to its determination of injury is 
inconsistent with Mexico’s obligations under Article 12.2 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.130  The United States submits that several findings in Economía's final injury determination belie an 
objective examination of volume, price effects, and impact, and are not adequately explained as 
Article 12.2 of the AD Agreement requires.
133  
Mexico 7.131  Mexico argues that the Final Determination sets fo rth in a detailed manner all considerations and 
findings on fact and law concerning dumping, injury and the causal link, in accordance with Article 12.2 
of the AD Agreement. 
(ii) Analysis 
7.132  In light of our earlier findings pursuant to Article 3 of the AD Agreement, we do not find it 
necessary to address in this context the US claim unde r Article 12.2 of the AD Agreement.  That is, 
having determined that the measure at issue is inc onsistent with the cited Article, and exercising the 
discretion implicit in the principle of judicial ec onomy, we do not deem it necessary to examine whether 
the investigation which led to the inconsistent m easure was consistent with the procedural rules 
concerning notification in Article 12.2 of the AD Agr eement.  We do not consider that this would add 
anything to our findings or would be useful in the implementation of our ruling.  
2. Claims relating to the margin of dumping and the application of the measure  
(a) Claim 8:  Economía’s failure to exclude firms with anti-dumping margins of zero per cent 
from the anti-dumping measure is inconsistent  with Mexico’s obligations under Article 5.8 
of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.133  The United States submits that Article 5.8 of th e AD Agreement requires the termination of the 
investigation in case of a margin of dumping which is below de minimis .  According to the United States, 
the term "margin" refers to the individual margin of dumping determined for each of the investigated 
exporters or producers.
134  The United States therefore argues th at Article 5.8 of the AD Agreement 
requires that an investigation against an exporter is to be terminated in case the conclusion is that the 
exporter in question was not dumping.  Economía f ound that two exporters, Farmers Rice and Riceland, 
had not been dumping during the period of inves tigation, but still included them in the anti-
dumping measure.  While a zero per cent anti-dumping dut y was imposed with regard to these exporters, 
the United States emphasises that both exporters remain subject to subsequent reviews, and the possible 
application of duties in the future.  The United States submits that the failure of  Economía to terminate its 
                                                      
133 The United States mentions four examples to illustrate its point. It refers by way of example inter alia  to 
the failure to explain the effects of low-priced impor ts from Argentina which increased significantly during the 
period of investigation. US First Submission, para. 125. 
134 The United States finds support for this definition in the Appellate Body report, US – Hot –Rolled Steel , 
para 118.  WT/DS295/R 
 
  investigation with respect to Farmers Rice and Ricel and which it found not to have been dumping violates 
Article 5.8 of the AD Agreement.
135  
Mexico 7.134  Mexico is of the view that Article 5.8 of the AD Agreement has not been violated as the 
investigation demonstrated that imports from the United States had been dumped into Mexico above 
de minimis  levels, and that injury was caused by such dum ping.  According to Mexico, Article 5.8 of the 
AD Agreement does not refer to the individual inves tigation of each exporter but to the investigation 
against imports from a particular country in general.  Mexico considers that it suffices for one exporter to 
be found to have been dumping above de minimis  level for all exporters to be  included in the application 
of the measure, and each enterprise  will be assigned the anti-dumping duty corresponding to its individual 
margin provided that the total volume of imports from a particular country is a bove the negligible level.
136 
According to Mexico, Article 3.3 of the AD Agreemen t specifies that the basis for calculating margins of 
dumping in accordance with Article 5.8 applies to each country as a whole, and that Article 5.8 thus does 
not in any way establish that firms with de minimis  margins of dumping should be excluded from the 
measure.137  Moreover, Mexico is of the view that a zero per cent duty level does not de facto  constitute 
an anti-dumping duty, as it cannot cause any disadvantage to the exporter concerned.  Further, Mexico 
argues that there is nothing in the AD Agreement which prohibits that exporters be submitted to a review 
even if the exporters did not dump duri ng the original period of investigation.138  If the drafters had 
wanted to prohibit such reviews, they would have done so explicitly.  Mexico therefore asserts that to 
include Riceland and Farmers Rice in the anti-dumping measure in respect of long-grain white rice from the United States was not inconsistent with Article 5.8 of the AD Agreement.  
(ii) Analysis 
7.135  The United States claims that by not excluding from the definitive anti-dumping measure two US 
exporters which were found to have  exported at undumped prices, Mexico violated Article 5.8 of the 
AD Agreement, which provides as follows: 
5.8 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 in jury 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 cen t, 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 less 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 importing Member collectively account for more than 7 per cent of imports of the like product in the importing Member.
 139 
                                                      
135 The United States further notes that the investigating authority took no steps to examine whether the 
weighted average margin of all exporters was greater than de minimis  when it decided to impose the anti-dumping 
measure. US First Answers to Questions, para. 62. 
136 Mexico First Answers to Questions, question 20. 
137 Mexico Second Submission, para. 138. 
138 Mexico asserts that in case a review demonstrates that there is no dumping, the exporter will continue to 
enjoy a 0 per cent duty level. 
139 In French, Article 5.8 provides in relevant part as follows : WT/DS295/R 
Page 136   7.136  The first sentence of Article 5.8 of the AD Ag reement requires an authority to reject an 
application and terminate an investig ation promptly as soon as the authorities are satisfied that there is not 
sufficient evidence of either dumping or injury.  The second sentence requires the immediate termination 
(of the investigation) in cases where the author ities 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 third sentence then 
continues by explaining that the margin of dumping is de minimis  if it is less than 2 per cent, expressed as 
a percentage of the export price.  The fourth sen tence provides that the volume of dumped imports is 
negligible if the volume of dumped imports from a pa rticular country is found to account for less than 
3 per cent of imports of the like product in the importing Member. 
7.137  In our view, in the AD Agreement the term "margin of dumping" refers to the individual margin 
of dumping of an exporter or producer rather than to a country-wide margin of dumping.  This is 
evidenced by Article 6.10 of the AD Agreement whic h provides that "the authorities shall, as a rule, 
determine an individual margin of dumping for each known exporter or producer concerned of the 
product under investigation".
140  As the text of Article 6.10 of the AD Agreement makes clear, this 
provision provides for the general rule of calcula ting an individual margin of dumping for each known 
exporter or producer.  The exception to this rule is the case in which there are too many foreign producers 
or exporters so that an individual margin of dum ping will only be calculated for a representative sample, 
while for the other non-sampled producers or exporters , Article 9.4 of the AD Agreement determines what 
the maximum amount of the duty is that can be applie d to them.  In sum, both the general rule and the 
exception to the rule provide for the calculation of  individual margins of dumping, and do not envisage 
the calculation of a country-wide margin. 
7.138  We examined the rest of the AD Agreement to see whether there is anything in the Agreement 
that contradicts this conclusion that the term margin of dumping in the AD Agreement is company-
specific rather than country-wide.  Article 8.1 of  the AD Agreement concerning price undertakings as an 
alternative to the imposition of an anti-dumping duty provides that proceedings may be suspended or 
terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices, and stipulates that the price increases under such undertakings shall not be higher than  necessary to eliminate the margin of dumping. 
 It is clear that in this provision as well, the term margin of dumping referred to  is exporter-specific, and 
does not refer to the average margin of dumping fo r all exports from all producers or exporters of a 
country.  
7.139  Article 9.3 of the AD Agreement provides that the amount of the anti-dumping duty shall not 
exceed the margin of dumping as established under Artic le 2. Article 2 of the AD Agreement provides a 
definition of dumping and sets forth the manner in wh ich a margin of dumping is to be established under 
the AD Agreement.  A number of references to the "e xporter or producer under investigation" in Article 2, 
for example in Article 2.2.1.1, 2.2.2, and 2.3 of the AD Agreement, make explicit the generally accepted 
                                                                                                                                                                    
 
"Une demande présentée au titre du paragraphe 1 se ra rejetée et une enquête sera close dans les 
moindres délais dès que les autorités concernées seront convaincues que les éléments de preuve 
relatifs soit au dumping soit au dommage ne sont pas suffisants pour justifier la poursuite de la 
procédure.  La clôture de l'enquête sera immédi ate dans les cas où les autorités détermineront que 
la marge de dumping est de minimis  ou que le volume des importations, effectives ou potentielles, 
faisant l'objet d'un dumping, ou le dommage, est négligeable.[...]" 
In Spanish, Article 5.8 reads in relevant part:   
"La autoridad competente rechazará la solicitud pr esentada con arreglo al  párrafo 1 y pondrá fin a 
la investigación sin demora en cuanto se haya cerciorado de que no existen pruebas suficientes del dumping o del daño que justifiquen la continuación del procedimiento relativo al caso.  Cuando la autoridad determine que el margen de dumping es de minimis , o que el volumen de las 
importaciones reales o potenciales objeto de dumping o el daño son insignificantes, se pondrá 
inmediatamente fin a la investigación. [... ]."  
140 If an individual margin cannot be determined for each known exporter for practical reasons, the 
Agreement allows the authorities to sample and calculate  an individual margin for the sampled exporters.     WT/DS295/R 
 
  understanding that Article 2 of the AD Agreement prescribes the manner in which an individual margin of dumping for an exporter or producer under investigation is to be determined.
141 
7.140  Article 9.5 of the AD Agreement requires the aut horities to promptly carry out a review for the 
purpose of determining individual margins of dumpi ng for any exporters or producers in the exporting 
country who have not exported the product to the impor ting Member during the period of investigation.  
This Article as well clearly refers to individual margins of dumping. Article 12.2.1 of the AD Agreement requires that the public notice of a preliminary or final determination include, inter alia , the "margins of 
dumping established and a full explanation of the reas ons for the methodology used in the establishment 
and comparison of the export price and the normal va lue under Article 2”.  The term margins of dumping 
is in this context clearly used to refer to the ma rgins of dumping calculated for each individual exporter, 
as required by Article 6.10 of the AD Agreement.  In other words, whenever the Agreement refers to the 
determination of a margin of dumping, it refers to the margin of dumping determined for the individual 
exporter.  In fact we note that Mexico does not a ppear to disagree with our understanding as it calculates 
individual margins of dumping for all exporters partic ipating in the investigation, including even those 
that did not export during the period of investigation.  Therefore, we are of the view that the investigation which is to be immediately terminated under the sec ond sentence of Article 5.8 of the AD Agreement is 
the investigation in respect of the individual exporter for which a zero or de minimis  margin was 
established. 
7.141  We also consider relevant in this respect the fact the second sentence requires the immediate 
termination of the investigation in case the margin of dumping is de minimis  or the volume of dumped 
imports is negligible.   According to Article 5.8 of the AD Agreem ent, negligibility is to be determined in 
respect of the volume of dumped imports " from a particular country" .  In short, in Article 5.8 of the 
AD Agreement, the margin of dumping is juxtaposed to the volume of dumped imports.  While it is expressly stipulated that the latter is to be examined  on a country-wide basis, no such stipulation is made 
with regard to the margin of dumping.  This further c onfirms our view that the reference to the margin of 
dumping in Article 5.8 of the AD Agreement is, as is the case in the other provisions of the AD Agreement referred to above, a reference to the indivi dual margin of dumping which is to be determined 
on an exporter-specific basis.
142  
7.142  We further find support for our reading that Artic le 5.8 of the AD Agreement in relevant part 
requires the termination of the investigation in respect  of an individual exporter in the Panel report in the 
US – DRAMs  case which also reached the conclusion that the de minimis  rule in Article 5.8 of the 
AD Agreement concerns the question whether an indi vidual exporter will be subject to an anti-dumping 
order. The panel in that case concluded that the de minimis  rule of Article 5.8 did not apply in the context 
of the duty assessment procedure of Article 9.3 as had been argued by Korea in that case, and found that: 
"6.90 [...]As explained above, we consider that the text of Article 5.8, when read in its 
context, does not require that a Member apply the Article 5.8 de minimis  test in an 
Article 9.3 duty assessment procedure.  In any event, there are possible logical 
explanations for applying different de minimis  standards in investigations and Article 9.3 
duty assessment procedures.  Article 5.8 requires the termination of investigations in cases where the margin of dumping is de minimis .  Thus, in the context of Article 5.8, the 
function of the de minimis  test is to determine whether or not an exporter is subject to an 
anti-dumping order.  In the context of Article 9.3 duty assessment procedures, however, 
the function of any de minimis  test applied by Members is to determine whether or not an 
exporter should pay a duty.  A de minimis  test in the context of an Article 9.3 duty 
                                                      
141 We note that it is indeed the general practice am ong WTO Members, including Mexico, to calculate an 
individual margin of dumping, rather than country-wide margins of dumping.   
142 We note that in any case Mexico did not argue that an investigation has to be terminated if the country-
wide dumping margin is below de minimis , but rather that such an investigation does not need to be terminated as 
soon as there is one exporter or producer found to have been dumping. WT/DS295/R 
Page 138   
assessment procedure will not remove an exporter from the scope of the order.  Thus, the implications of the de minimis  test required by Article 5.8, and any de minimis  test that 
Members choose to apply in Article 9.3 dut y assessment procedures, differ significantly. 
 Accordingly, we are not convinced that Korea's policy argument requires us to abandon 
our conclusion that the text of Article 5.8, wh en read in its context, does not require that 
a Member apply the Article 5.8 de minimis  test in an Article 9.3 duty assessment 
procedure." (underlining added)
143 
7.143  Mexico argues that termination of the investiga tion is only required when all of the margins of 
dumping for all exporters or producers are below de minimis .  We do not find this argument convincing.  
If this had been the intention of the drafters of the Agreement, they would certainly have used the plural 
and would have required the immediate termination of the investigation in cases where the authorities 
determine that the margins of dumping are de minimis .  They did not do so.  It is clear, however, that if all 
of the margins of dumping are below de minimis , the overall investigation would have to be terminated 
and no measures could be imposed at all.  But we do not consider it justified to deduce from that the 
conclusion that as long as there is one exporter found to have been dumping above de minimis  levels, the 
investigation can continue against all exporters or producers concerned.  
7.144  Mexico submits that, even if the panel were to  agree with the United States on the interpretation 
of Article 5.8, Mexico's application of the AD orde r to the two exporters found not to have been dumping 
at a zero per cent duty rates, did not really constitute the application of a measure and was fully consistent with Article 9.3 of the AD Agreement.  We understand Mexico to argue that as long as Economía respects 
the requirement of Article 9.3 that no duty in excess of the margin of dumping be imposed, there is nothing in the Agreement which prohibits the incl usion of non-dumping exporters in the Anti-dumping 
measure.  We do not find these arguments convincing. Article 5 of the AD Agreement is entitled “Initiation and subsequent investiga tion” and concerns the investigati on to determine whether or not an 
exporter or producer of the subject product may be subj ect to an anti-dumping order.  We are of the view 
that in this context Article 5.8 of the AD Agreement re quires the termination of the investigation, and thus 
the exclusion from the anti-dumping order of  any exporter or producer with a below de minimis  margin of 
dumping.  This, in our opinion, is the essential diffe rence between Article 5.8 of the AD Agreement and 
Article 9.3 of the AD Agreement which deals with th e amount of the duty to be imposed and collected, 
after it has been established that a duty may be applie d to the exporter or producer in question.  To accept 
Mexico's argument that the application of a zero pe r cent duty does not really constitute the imposition of 
a measure as it complies with Article 9.3 of the AD Agreement would moreover render Article 5.8 of the AD Agreement meaningless.  Indeed, it would not be a violation of Article 9.3 of the AD Agreement to 
impose a duty at 0.5 per cent if that was the margin of dumping for the exporter concerned, but doing so would clearly be inconsistent with the requirement of Article 5.8 of the AD Agreement to terminate the 
investigation in case of a de minimis  dumping margin.  As convincingly explained by the Panel in the  
US – DRAMs  case, both provisions serve a different purpose and compliance with Article 9.3 of the 
AD Agreement does not equal compliance w ith Article 5.8 of the AD Agreement.
144  
                                                      
143 Panel Report, US – DRAMs , para. 6.90. 
144 The EC, as a third party, argued that requiring an au thority to terminate an investigation against those 
exporters found not to be dumping above de minimis  levels and excluding them from the measure could lead to the 
need to have a parallel investigation against the same product from the same country soon after the application of the measure, as the excluded exporters could use the imposition of the duty to start dumping into the market if the investigating country. This w ould be so because no administrative or changed circumstances reviews would apply to 
such exporters, once they had been excluded from the application of the measure.   We do not find this scenario to be very likely.  If the exporters were able to compete in th e market during the period of investigation without dumping, 
and this while others were engaging in dumping practices, we  do not consider that it would be necessarily so that 
such exporters would start dumping their products, once an anti-dumping duty is in place, as this anti-dumping duty has indirectly also increased their competitive position.  It thus seems that it could be argued that there is actually 
even less reason for them to engage in dumping than before the duty was in place.  Be all that as it may, scoping out 
concerns about practical consequences – whether plausible or otherwise – does not in any event constitute a basis to  WT/DS295/R 
 
  7.145  In sum, we find that by not terminating the i nvestigation against two US exporters which the 
authority found to have exported at undumped prices and by not excluding these two exporters from the 
application of the definitive anti-dumping measure, Mexi co acted in a manner which is inconsistent with 
Article 5.8 of the AD Agreement.  
(b) Claim 9:  Economía’s application of an ad verse facts available-based  dumping margin to 
the non-shipping exporter Producers Rice is in consistent with Mexico’s obligations under 
Articles 6.2, 6.4, 6.8, 9.4, and 9.5 of the AD Agreement and Paragraphs 3, 5, 6, and 7 of Annex II 
(i) Arguments of the Parties 
United States 
7.146  According to the United States, Economía 's decisi on to apply an adverse facts available margin 
to the US firm Producers Rice is inconsistent with  Article 6.8 and Annex II of the AD Agreement since 
Economía acknowledged that this US firm, which did not export the subject product to Mexico during the period of investigation, fully cooperated with th e authorities. As Producers Rice did not refuse access to, 
and did not otherwise fail to provide necessary informa tion, nor significantly impeded the investigation, 
the application of a facts available margin was incons istent with Article 6.8 of the AD Agreement.  In 
addition, the United States considers that Economía fa iled to comply with a number of the requirements 
laid down in Annex II of the AD Agreement.  In par ticular, the United States submits that, in breach of 
paragraph 3 of Annex II, Economía failed to take into account when  making its determination that 
Producers Rice was a fully cooperative respondent.  Mo reover, the United States argues, it is clear from 
Annex II of the AD Agreement that Economía has to play  an active role in informing the parties of the 
kind of information required, as well as of the conse quences of not providing the information or of not 
cooperating.  In the United States' view, Economía fa iled to inform Producers Rice of the fact that its 
questionnaire response or the explanations and evid ence provided therein were in any way unacceptable, 
nor did Economía solicit any further explanations or evidence from this firm.  In the absence of 
compliance by Economía with this duty to inform, th e determination of a dumping margin based on facts 
available is inconsistent with Artic le 6.8 and paragraph 6 of  Annex II.  In addition, there was no evidence 
that this producer failed to act to the best of its ability  and the application of facts available was thus also 
in violation of paragraph 5 of Anne x II.  Finally, and in the absence of any basis to conclude that the 
exporter in question failed to coope rate with Economía, the use of adverse facts available was clearly 
inconsistent with pa ragraph 7 of Annex II.
145  In addition, the United States claims that Economía 
breached paragraph 7 of Annex II also for another reason.  According to the United States, because 
Economía failed to check the presumptions embodied in the application against independent data 
available during the investigation, much less to exerci se "special circumspection" in its application of the 
information and presumptions therein, the Mexican investigating authority breached paragraph 7 of 
Annex II.146   
7.147  In addition, the United States argues that by imposing a residual duty rate on this cooperative 
exporter which was completely based on adverse fact s available, Economía acted in a manner which is 
                                                                                                                                                                     
go against the plain meaning of the text.  An exporter whose dumping margin is found to be de minimis is, under the 
Agreement, effectively returned to precisely the same position as an exporter which is not dumping.  The Agreement – otherwise drafted – could have provided for some differe ntiation of treatment as between these cases.  But it does 
not in fact do so.  It is not our place to read into the text pr ovisions which invent distinctions that are not in fact there. 
145 The United States argues that the margin of 10.18 per cent was adverse as it was almost triple the highest 
margin found for the three exporters examined and each component of the margin was based on flawed data and unsupported assumptions that served to increase the dumping margin. US First Submission, para. 159-164. 
146 According to the United States, Mexico conceded  in its First Answers to Questions, answers to 
question 25, that it did not observe the requirements of paragraph 7 of Annex II, when it applied the facts available to Producers Rice, claiming that it was under no obliga tion to do so. US Second Submission, para. 83. WT/DS295/R 
Page 140   inconsistent with Article 9.4 of the AD Agreement wh ich requires that the neutral residual duty rate for 
non-investigated exporters be determined on the basi s of the weighted average of the dumping margins 
found to exist but with the exclusion, inter alia , of margins based on facts available.  In light of the fact 
that the residual duty rate applied to Producers Ri ce was on the contrary exclusively based on adverse 
facts available, the United States is of the view th at Economía acted in a manner which is inconsistent 
with Article 9.4 of the AD Agreement. 
7.148  Furthermore, the United States submits that the application of an anti-dumping duty based on 
adverse facts available to an exporter which did not export during the period of investigation is 
inconsistent with Article 9.5 of the AD Agreemen t which requires Economía to conduct an expedited 
review in order to determine an individual margin  of dumping for exporters which did not export during 
the period of investigation, and which would otherw ise be covered by the neutral residual duty that 
applied to the product.  The United States argues that  the firms seeking review under Article 9.5 of the 
AD Agreement when entering the export market would ha ve previously been subject to an all-others 
dumping margin calculated under Article 9.4, and not  as a "facts available" margin calculated under 
Article 6.8 of the AD Agreement.
147  The United States considers that the placement of Article 9.5 of the 
AD Agreement immediately after Article 9.4 of th e AD Agreement as well as the textual link between 
Article 9.5 of the AD Agreement and the requirement  of determining an individual margin of dumping 
provided for in Article 6.10 of the AD Agreement confirm its view.  Moreover, the United States submits that by considering Producers Rice to have been inv estigated, assigning it a fact s available-based margin, 
and considering it thus as an exporter subject to  AD duties, Economía has precluded this firm from 
receiving a review under Article 9.5 of the AD Agreement, and thus breached that provision.  
7.149  Finally, the United States submits that Econom ía breached Article 6.2 and 6.4 of the 
AD Agreement by failing to disclose to this exporter,  Producers Rice, the export price information that 
was used in the calculation of the adverse facts ava ilable margin.  According to the United States, under 
Article 6.4 of the AD Agreement, Economía should have made the abstract of the customs declaration ("listado"), on which the export price was based, ava ilable to Producers Rice.  The United States submits 
that this was information which was obviously relevant to the presentation of this firm's case, was used by 
the authorities, and was not confidential.  Economía's  failure to provide the exporter an opportunity to 
prepare presentations on the basis of this informati on breached Article 6.4 of the AD Agreement and as a 
consequence Economía also acted in a manner incons istent with Article 6.2 of the AD Agreement.  
Mexico 7.150  With regard to the application of facts availabl e to Producers Rice, Mexico submits that Article 
6.8 of the AD Agreement clearly provides that in  case information necessary for the calculation of the 
margin is not provided, the determination may be b ased on the facts available.  According to Mexico, 
Producers Rice did not provide export price information which is necessary for the calculation of a dumping margin, and the authority was thus entitled unde r Article 6.8 of the AD Agreement to resort to 
the facts available for the calculation of the margin  of dumping.  Since Producers Rice failed to provide 
necessary information, its general cooperation in the i nvestigation becomes irrelevant for the purpose of 
applying Article 6.8 of the AD Agreement.  
7.151  Mexico further considers that paragraph 3 of A nnex II of the AD Agreement dealing with the use 
of best information available was not violated eith er as no verifiable information on the export price, 
which under paragraph 3 is to be  taken into account, was provided by Producers Rice.  Economía's 
application of facts available was not inconsistent  with paragraph 5 of Annex II of the AD Agreement 
either, as no information was provided.  With regard to the obligation of paragraph 6 of Annex II of the 
AD Agreement to inform the party concerned that its  information was not accepted, Mexico submits that 
no violation occurred as Economía did accept all the in formation, but the information submitted simply 
                                                     
 
147 US First Submission, para. 172.  WT/DS295/R 
 
  did not allow for the calculation of a margin.
148  Neither does Mexico consider Economía's use of facts 
available to have been inconsistent  with paragraph 7 of Annex II as all it did was to calculate a duty based 
on the facts available including those contained in the application for initiation, in accordance with 
paragraph 1 of Annex II of the AD Agreement.  
7.152  In addition, Mexico argues that there is no requireme nt to apply the neutral rate of Article 9.4 of 
the AD Agreement to the non-shipping exporter as Artic le 9.4 of the AD Agreement only applies in case 
the authorities have limited their investigation and ha ve sampled certain exporte rs.  That was not the case 
in the rice investigation.  According to Mexi co, the AD Agreement does not regulate how the anti-
dumping duty should be calculated for exporters th at have no exports during the period of the 
investigation.149  Mexico rejects the US argument that a genera l obligation exists to calculate a neutral all 
others rate to the non-shipping e xporters which could be deduced from Article 9.5 of the AD Agreement 
relating to new shipper reviews.  The fact that Ar ticle 9.5 of the AD Agreement comes immediately after 
Article 9.4 of the AD Agreement cannot be read to im ply that before a new shipper review under Article 
9.5 of the AD Agreement is undertaken, the margin to be applied is to be calculated in accordance with 
the methodology set forth in Article 9.4 of the AD Agreement.  
7.153  With regard to the US claims under Article 6.2 and 6.4 of the AD Agreement, Mexico argues that 
the information from the "listado" docum ents referred to by the United Stat es was part of the investigation 
file and thus available to the parties.150    
(ii) Analysis 
7.154  The United States claims that the investigating authority's calculation of a margin of dumping 
based on the facts available for a US firm which did not export the subject product during the period of investigation was inconsistent with the AD Agreemen t, as this firm responded to the questionnaire and 
fully cooperated with the authority.  According to the United States a "neutral" all others rate under 
Article 9.4 of the AD Agreement should have been calculated for this non-shipping exporter.  Mexico 
submits that Article 9.4 of the AD Agreement is simp ly not relevant to this situation which did not 
involve the use of a sample by the investigating aut hority.  Mexico argues that in case the authorities are 
not provided with the necessary information to calculate a dumping margin, facts available under Article 6.8 of the AD Agreement may be used.  In the Fi nal Determination itself, the Mexican authorities 
explicitly relied on Article 6.8 of the AD Agreement, and cited to this provision as the basis for their 
determination of a margin for Producers Rice.   
7.155  We first deal with the United States claim that  the residual duty for Producers Rice should have 
been determined on the basis of the methodology d escribed in Article 9.4 of the AD Agreement.  
7.156  Article 9.4 of the AD Agreement provides that: 
9.4 When the authorities have limited th eir examination in accordance with the 
second sentence of paragraph 10 of Article 6,  any anti-dumping duty applied to imports 
from exporters or producers not included in the examination shall not exceed: 
(i) the weighted average margin of dumping established with 
respect to the selected exporters or producers or, 
                                                     
 
148 Mexico considers that Economía took account of the company's assertion that it had no exports of the 
subject product during the investigation, and thus did not reject any information from this company. According to 
Mexico, paragraph 6 of Annex II of the AD Agreement app lies only in case the information provided is rejected by 
the authority, which was not the case in the rice investiga tion, as no information was provided in the first place. 
149 Mexico First Answers to Questions, question 24. 
150 Mexico, Second Submission, para. 165. WT/DS295/R 
Page 142   
(ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or 
producers and the export prices of exporters or producers not individually examined, 
provided that the authorities shall disregard for the purpose of this paragraph any zero 
and de minimis  margins and margins established under the circumstances referred to in 
paragraph 8 of Article 6.  The authorities shall apply individual duties or normal values 
to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation, as provided for in subparagraph 10.2 of Article 6. 
7.157  We consider that Article 9.4 of the AD Agreem ent deals with the very specific and defined 
situation of the use of a sample by the investigating authority.  As the first sentence sets forth, the limits 
imposed by the methodology provided for by Article 9.4 (i) and (ii) of the AD Agreement apply in case the authorities have limited their examination in acco rdance with the second sentence of paragraph 10 of 
Article 6.
151  The second sentence of Article 6.10 provides that: 
"[I]n cases where the number of exporters, producers, importers or types of products 
involved is so large as to make such a de termination impracticable, the authorities may 
limit their examination either to a reasonable number of interested pa rties or products by 
using samples which are statistically valid on the basis of information available to the 
authorities at the time of the selection, or to the largest percentage of the volume of the 
exports from the country in question wh ich can reasonably be investigated". 
7.158  For this particular situation, Article 9.4 of the AD Agreement provides a specific methodology 
with regard to the calculation of the duty for those inter ested parties that did not form part of the sample.  
We see no requirement to apply that methodology in a case which does not involve sampling.  In our view, Article 9.4 of the AD Agreement simply does not apply to any other situation. 
7.159  The US argument that the placement of this provision immediately preceding Article 9.5 of the 
AD Agreement dealing with new shipper reviews im plies that its rules also apply to non-shipping 
exporters is not convincing, as we do not find that anything can be deduced in and of itself from the 
sequence of provisions in the Agreement, particular ly when the provision in question relates to an 
exceptional situation, while the subsequent provisi on does not.  The United States also argues that the 
                                                     
 
151 Article 6.10 of the AD Agreement reads as follows:  
6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation.  In cases where the number of 
exporters, producers, importers or types of produc ts involved is so large as to make such a 
determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis 
of information available to the authorities at the tim e of the selection, or to the largest percentage 
of the volume of the exports from the country in question which can reasonably be investigated. 
6.10.1 Any selection of exporters, producers, im porters or types of products made under this 
paragraph shall preferably be chosen in consulta tion with and with the consent of the exporters, 
producers or importers concerned. 
6.10.2 In cases where the authorities have limited their examination, as provided for in this 
paragraph, they shall nevertheless determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the inves tigation, except where the number of exporters or 
producers is so large that individual examinati ons would be unduly burdensome to the authorities 
and prevent the timely completion of the inves tigation.  Voluntary responses shall not be 
discouraged.  WT/DS295/R 
 
  non-sampled interested parties and the new shippers d ealt with by Article 9.5 are in a similar position and 
that by analogy the same Article 9.4 methodology for the calculation of a residual duty rate should apply.
152  We are not convinced that the text of the Agr eement supports this view.  In this respect, we find 
particularly relevant, the absence of any cross-refe rencing in Article 9.5 of the AD Agreement dealing 
with new shippers to the calculation methodology of Article 9.4 of the AD Agreement.  This absence of 
cross-referencing is particularly conspicuous if one were to accept, arguendo , the analogous situation of 
non-sampled and non-shipping exporters.  Indeed, especia lly in such a situation, one would expect the 
drafters to have explicitly referre d to Article 9.4 of the AD Agreement.  As on other occasions, where the 
drafters intended to see obligations apply in simila r circumstances, they explicitly provided for such 
cross-referencing.153  We recall in this respect that the Appella te Body also found that the absence of such 
cross-referencing to obligations c ontained in other provisions is revealing of the absence of such an 
obligation.154  We find that Article 9.4 of the AD Agreement does not refer to non-shipping exporters 
outside a sampling situation, and that there was th erefore no obligation for the Mexican authorities to 
calculate a residual duty margin for Producers Rice based on the "neutral" methodology set forth in 
Article 9.4 of the AD Agreement.  We theref ore reject the US claim in this respect.  
7.160  The United States further claims that the Mexican  investigating authority acted in breach of 
Article 6.8 of the AD Agreement when resorting to the use of facts available to calculate a duty rate for 
the non-shipping exporter, Producers Rice.  The United States points in particular to the full co-operation offered by Producers Rice in responding to the questi onnaire.  Mexico asserts that the authority was 
entitled to base the calculation of a dumping margin fo r Producers Rice on the facts available provided by 
the applicant and that it complied with all the require ments concerning the use of the facts available under 
Article 6.8 of the AD Agreement when calculating a margin of dumping for Producers Rice.
155 
7.161  The Final Determination explains the treatme nt accorded to Producers Rice in the following 
manner: 
"Producers Rice Mill Inc. stated that it did not make any exports of the investigated 
product during the investigated period, due to which the Ministry qualified it according 
to the facts of which it had knowledge, which are described in paragraphs 138 to 157 of 
this determination"156  
7.162  The Final Determination further provides the fo llowing explanation for the particular method 
used for the calculation of the dumping margin: 
"For the company Producers Rice Mill, Inc., in accordance with paragraph 62 of this 
determination, and the other companies th at did not appear in this phase of the 
investigation, in accordance with articles 6.8 of the Anti-dumping Agreement and 54 of 
the Foreign Trade Statute, the ministry calcu lated the dumping margin applicable to long 
grain white rice based on the information s ubmitted by the petitioner, and in accordance 
                                                      
152 The United States argues that both are in a simila r position because the non-shipping exporter is in a way 
in the same situation as the non-sampled producers in the se nse that it could not provide the information necessary to 
calculate a dumping margin, not because it was never asked to submit such information, as is the case with non-
sampled exporters, but because it did not export. Such  non-shipping exporters should thus similarly not be 
"punished" for the fact that it was not possible for the aut hority to establish an individual margin. Therefore, and 
rather than applying a facts available rate, a neutral resi dual rate should apply to them, one which as Article 9.4 
requires, excludes all margins established on the basis of facts available. 
153 Examples of such cross-referencing of obligations  in the AD Agreement can be found in Article 7.5 on 
provisional measures stating that the relevant provisions of  Article 9 shall be followed;  Article 11.4 dealing with 
reviews and cross-referencing to the provisions of Article 6 regarding evidence and procedure.    
154 See Appellate Body Report,  US – Carbon Steel , para. 69.   
155 We note that both parties agree that Producers Rice is an interested party in the investigation even if it 
has not exported during the period of investigation. 
156 Final Determination, para. 62. Exhibits US -6 and US-7. WT/DS295/R 
Page 144   
with the methodology that is described in the following paragraphs, and that corresponds 
to paragraphs 36 to 54 of the Initial dete rmination of the anti-dumping investigation 
published in the Federation Offici al Gazette dated December 11 2000."
157 
7.163  It is clear therefore that the investigating aut hority considered that it was entitled under Article 6.8 
of the AD Agreement to calculate a margin of dumping for Producers Rice on the basis of the facts 
available.  We will therefore examine whether the i nvestigating authority complied with the obligations 
set forth in Article 6.8 of the AD Agreement in this case.158 
7.164  Article 6.8 of the AD Agreement provides as follows: 
6.8 In cases in which any interested pa rty refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determina tions, affirmative or negative, may be made 
on the basis of the facts available.  The provisions of Annex II shall be observed in the application of this paragraph. 
7.165  Paragraph 7 of Annex II provides as follows: 
ANNEX II 
BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 8 OF 
ARTICLE 6 
7. If the authorities have to base their findings, including those with respect to 
normal value, on information from a secondary source, including the information supplied in the application for the initiation of  the investigation, they should do so with 
special circumspection.  In such cases, the authorities should, where practicable, check 
the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investig ation.  It is clear, however, that if an 
interested party does not cooperate and thus relevant information is being withheld from 
the authorities, this situation could lead to a result which is less favourable to the party 
than if the party did cooperate. 
7.166  Article 6.8 of the AD Agreement thus allows for de terminations to be made on the basis of facts 
available, but only in case an interested part y "refuses access" to necessary information within a 
reasonable period, or "otherwise does not provide" such  information within a reasonable period, or when 
it "significantly impedes" the investigation.  Article 6.8 of the AD Agreement further stipulates that when resorting to the use of facts available, the provisi ons of Annex II shall be ob served.  Annex II, entitled 
"Best Information Available in Terms of Paragraph 8 of Article 6" contains a number of obligations the 
investigating authority has to comply with in order fo r the use of facts available in a given case to be in 
accordance with Article 6.8 of the AD Agreement.
159  The use of the term " best information" means that 
                                                      
157 Final determination, para. 138. Exhibits US-6 and US-7. 
158 We are mindful of the fact that the AD Agreement does not expressly provide specific guidelines as to 
the way in which to deal with the calculation of the rate fo r new shippers, and that it could be argued that Article 6.8 
of the AD Agreement actually does not govern the situati on of the non-exporting party.  However, in light of 
Mexico's position both at the time of the investigation, and in the proceedings before us that Article 6.8 of the 
AD Agreement does apply, and that the authority was co mplying with Article 6.8 of the AD Agreement when 
determining a margin of dumping for Producers Rice, we will examine the United States' claim on the assumption that Article 6.8 of the AD Agreement applies to this situation. 
159 Article 6.8 of the AD Agreement requires that th e provisions of Annex II of the AD Agreement be 
observed in the use of facts available, and the use of fact s available in a manner which is inconsistent with Annex II 
is thus also inconsistent with Article 6.8 of the AD Agreement.  WT/DS295/R 
 
  information has to be not simply correct or useful per se , but the most fitting or "most appropriate"
160 
information available in the case at ha nd.  Determining that something is "best" inevitably requires, in our 
view, an evaluative, comparativ e assessment as the term "best" can only be properly applied where an 
unambiguously superlative status obtains.  It mean s that, for the conditions of Article 6.8 of the 
AD Agreement and Annex II to be complied with, there can be no better information available to be used 
in the particular circumstances.  Clearly, an investig ating authority can only be in a position to make that 
judgement correctly if it has made an  inherently comp arative evaluation of the "evidence available".  This 
is reinforced, in our view, by the requirement in pa ragraph 3 of Annex II that all information which is 
verifiable, which is appropriately submitted and supplied in a timely fash ion is to be taken into account 
when determinations are made.  In similar vein, pa ragraph 5 of Annex II does not allow an authority to 
disregard information, even though that information is  not ideal in all respects, provided the interested 
party has acted to the best of its ability.  Finally, and perhaps most importantly, such a conclusion is 
evident from the requirement set forth in paragraph 7 of Annex II that, in case the authorities have to base 
their findings on information from a secondary source th ey should do so with special circumspection, and 
check, where practicable, the information from othe r independent sources at their disposal, such as 
published price lists, official import statistics and customs returns and from the information obtained from other interested parties during the investigation. 
7.167  We recall that the non-shipping exporter, Produ cers Rice was identified by the applicant as a 
"known exporter" in the application.  The investig ating authority sent a questionnaire to Producers Rice 
requesting it to provide necessary information on norma l value and export price which would enable the 
authority to calculate a margin of dumping for this company.  Producers Rice responded to the 
questionnaire, stating that during the period of inv estigation it had not exported the subject product to 
Mexico.  Producers Rice did provide comments on the question of injury to the domestic industry.  The investigating authority determined that a margin b ased on the facts available was to be calculated for 
Producers Rice due to the fact that it did not make any exports during the investigated period.
161  
Assuming, arguendo , that an authority would be entitled to appl y the facts available in the calculation of a 
margin of dumping in such a situation as this, we c onsider that the manner in which the facts available 
were used in this investigation with regard to Producers Rice was not in accordance with Article 6.8 and 
Annex II of the AD Agreement.  The Final Determina tion demonstrates that the facts available margin 
was arrived at on the basis of the information containe d in the application.  In effect, the explanation 
provided for in the Final Determination as to the u se of the applicant's info rmation as the basis for 
calculating the 10.18 per cent facts available margin is  exactly the same as that given in the Notice of 
Initiation.162163  We note that this margin is much higher th an any margin calculated for the exporters that 
were individually examined.164  In examining the record, we find no basis to consider that the authority 
made any attempt to check the app licant's information against informa tion obtained from other interested 
parties or undertook the evaluative, comparative assessm ent that would have enabled the authority to 
assess whether the information provided by the applicant was indeed the best information available.  Nor 
for that matter can it be said that it used the appli cant's information with "special circumspection" as 
required by paragraph 7 of Annex II.  From the reco rd we conclude that the authority relied on data 
provided by the applicant in the application concerni ng normal value and export price, and that the record 
shows no attempt to examine the applicant’s informa tion to assess whether this information was the most 
fitting or appropriate for making dete rminations with regard to Producers Rice.  In sum, it is clear from 
the record that the authority did not check the info rmation obtained from other interested parties during 
                                                      
160  New Shorter Oxford Dictionary, p. 218. 
161 Final Determination, para. 62. Exhibits US-6 and US-7. 
162 Compare paragraphs 139 – 157 of the Final Determin ation (Exhibits US-6 and US-7) with paragraphs 
36-54 of the Notice of Initiation (Exhibits US-1 and US-2 ). Paragraph 157 of the Fina l Determination explicitly 
acknowledges as much, by referring back to the above quoted paragraph 138 of the Final Determination. 
163 The authority discusses how it reached the facts available margin of 10.18 % in paras. 138-156 of the 
Final Determination (Exhibits US-6 and US-7). 
164 We note that for two exporters no dumping margin was found, while for a third exporter a margin of 
3.93 per cent was calculated.   WT/DS295/R 
Page 146   the investigation, or used the information provide d by the applicant with special circumspection, as 
required by paragraph 7 of Annex II.  
7.168  For all these reasons, we find that the Mexican i nvestigating authority calculated a margin of 
dumping on the basis of the facts available for Producer s Rice in a manner which is not consistent with 
Article 6.8 of the AD Agreement, read in light of paragraph 7 of Annex II of the AD Agreement.  In light of this finding we do not consider it necessary to consid er the US claims under paragraphs 3, 5, and 6 of 
Annex II, and Article 9.5 of the AD Agreement.  No r do we consider it necessary for the resolution of the 
dispute to examine the US claims concerning Articles 6.2 and 6.4 of the AD Agreement.  That is, having 
determined that the measure at issue is inconsistent  with the cited provision, and exercising the discretion 
implicit in the principle of judicial economy, we do not deem it necessary to examine whether the 
investigation which led to the inconsistent measure w as consistent with the procedural rules of Articles 
6.2 and 6.4 of the AD Agreement.  
(c) Claim 10:  Economía’s application of an ad verse facts available-based  dumping margin to 
the US producers and exporters that it did not investigate is inconsistent with Mexico’s 
obligations under Articles 6.1, 6.6, 6.8, 6.10, 9.4, 9.5, and 12.1 of the AD Agreement and paragraphs 1 and 7 of Annex II 
(i) Arguments of the Parties 
United States 
7.169  The United States considers that Mexico breached numerous provisions of the AD Agreement by 
individually examining only three exporters and applyi ng an adverse facts available margin to all other 
non-investigated exporters.  In particular, the United States argues that (a) Mexico failed to individually 
examine all known exporters and to determine an indi vidual duty rate for all or to apply a neutral all-
others rate in case it wished to limit the number of exporters examined;  and (b) Mexico wrongly applied 
adverse facts available to non-examined American producers and exporters. 
7.170  According to the United States, Article 6.10 of the AD Agreement requires "as a rule" that an 
investigating authority establish an individual marg in of dumping for each known producer or exporter, 
unless the number of exporters or producers is so larg e that the determination of individual margins for 
each producer or exporter would be impracticable.  In such a case, an investigating authority may limit its examination, and, under Article 9.4, apply a "neutral" all others rate to producers or exporters that were 
not individually examined.  According to the United States, Economía never even made an effort to 
calculate an individual margin for each exporter or  producer of the subject merchandise as required by 
Article 6.10 of the AD Agreement.  Economía si mply sent a questionnaire to only two exporters 
mentioned in the application and examined tho se two as well as two other exporters who voluntarily 
appeared, assuming a lack of co-operation from all othe r exporters.  This, the United States submits, is a 
violation of Article 6.10 of the AD Agreement, as no objective and unbiased investigating authority would have concluded that there were only two exporters or producers of long-grain white rice in the 
United States.  The United States submits that Article 6.10 of the AD Agreement does not permit 
investigating authorities to take a passive approach to their investigations, but must either take affirmative 
steps to investigate every producer or exporter or else take affirmative steps to limit their investigation by selecting a subset of such producers or exporters.
165  
7.171  Moreover, the United States considers that Economía  failed to comply with Article 6.6 of the 
AD Agreement which requires Economía to satisfy itself as to the accuracy of the information supplied by 
the interested party upon which the determination is based.  In the United States' view, Economía simply 
accepted at face value the information in the appli cation which indicated that there were only two 
exporters of the product to Mexico, even though the a pplication itself mentioned data relating to a third 
                                                      
165 US First Submission, para. 140 – 141.  WT/DS295/R 
 
  exporter.  According to the United States, it would have sufficed for Economía to consult the customs 
declarations ("pedimentos") that the Mexican cust oms authorities collects from importers to have been 
able to identify every exporter from the United States.  
7.172  In any case, the United States argues, where an inv estigating authority limits its investigation in 
accordance with Article 6.10 of the AD Agreement, th e rate applicable to the producers and exporters 
which were not individually examined should be calculated in accordance with Article 9.4 of the 
AD Agreement, which does not allow the use of marg ins based on facts available.  The United States 
considers that de facto  the Mexican investigating authority limited its investigation by not sending 
questionnaires to an exporter mentioned in an annex to  the application, not consulting the pedimentos and 
not using public data to identify a ll US exporters.  As Economía applied a margin entirely based on facts 
available to the non-examined producers and exporters , it breached Article 9.4 of the AD Agreement.  
Finally, according to the United States, the assumption applied by Economía that all producers and exporters are considered to have been investigated im plies that no exporter or producer will be eligible for 
an expedited review under Article 9.5 as this applies only to non-investigated producers and exporters.  
The United States submits that by acting in this manner, Economía has breached Article 9.5 of the 
AD Agreement by rendering it a nullity.  
7.173  In addition, the United States submits that by applying facts available to the unexamined firms 
when it never sent them a copy of the anti-dumping qu estionnaire or took any other steps to ensure that 
they had received the notice that the AD Agreement re quires, Economía breached Articles 6.1, 6.2 and 6.8 
of the AD Agreement and paragraph 1 of Annex II.  The United States asserts that Mexico failed to 
provide the exporters and producers notice of the in formation which Economía required, as required by 
Article 6.1 of the AD Agreement.  According to the United States, Article 6.1 of the AD Agreement 
establishes that an investigating authority that has d ecided to include a particular exporter or producer in 
the anti-dumping investigation cannot simply announce th at it has initiated the investigation and place the 
burden on the producer or exporter to come forward and appear.
166  The United States further argues that 
Economía did not give all exporters and producers a "full opportunity" to defend their interests as required 
by Article 6.2 of the AD Agreement.  Moreover, Mexi co's application of facts available without having 
specified the information which was required and without providing proper notice to the interested parties 
of the rights of Economía to use facts available is a breach of Article 6.8 and pa ragraph 1 of Annex II of 
the AD Agreement.167 
7.174  Furthermore, the United States considers that the use of adverse facts available for the 
unexamined firms in the absence of any evidence of unc ooperative behaviour by any of such firms, is a 
breach of Article 6.8 and paragra ph 7 of Annex II of the AD Agreement.  Moreover, Economía failed to 
apply the information contained in the application with  "special circumspection" as required by paragraph 
7 Annex II. 
7.175  Finally, the United States argues that Economía faile d to ensure that all interested parties known 
to have an interest in the investigation were notif ied as required by Article 12.1 of the AD Agreement.  
The United States submits that the Mexican investig ating authority failed to notify a third exporter 
mentioned in an Annex to the application, and did not notify other US exporters or producers which could 
have been identified by the authority on the basis of the customs record.  
Mexico 
                                                      
166 US First Submission, para. 145. 
167 The United States argues that Articles 1, 5, 6.5 and 6.6 of the AD Agreement provide further context for 
confirming that Articles 6.1, 6.8, 6.10, 9.4 and paragraph 1 Annex II require an investigating authority to (1) actively 
determine the universe of potential respondents; (2) activel y send questionnaires to those producers or exporters from 
which it is seeking information; and (3) either take active steps to investigate every known producer and exporter, or else examine a representative sample and assign a "neutral" all other margin that is not based on the facts available to everyone else.  US First Submission, para. 151. WT/DS295/R 
Page 148   7.176  Mexico argues that there is no obligation under Article 6.10 of the AD Agreement to calculate an 
individual margin for all exporters or producers, but only for those that are known to the authorities.  According to Mexico, the known exporters are tho se that are made known to the authorities in the 
application, or that appear subsequent  to the initiation of the investigation.
168  Mexico complied with this 
obligation.  Mexico argues that it did not limit its examination to a reasonable number of exporters, but 
assigned individual margins to all the exporters and pr oducers that participated in the investigation and 
that therefore the methodology for the calculation of a neutral all others rate under Article 9.4 of the 
AD Agreement is not applicable.  It emphasises in this respect that it never refused to accept the 
participation of any US exporter that want ed to participate in the investigation.169  Mexico submits that 
inasmuch as it complied with the obligation to send que stionnaires to the known exporters and to calculate 
an individual dumping margin for all the exporters  that submitted the necessary information to the 
investigating authority, it was entitled to make final determinations for the remaining exporters on the 
basis of the facts available, in accordance with Article 6.8 a nd Annex II of the AD Agreement.170  Mexico 
argues that it applied paragraph 1 of Annex II which establishes clearly that if a party does not provide the information requested, the latter will be free to make th e determinations on the basis of the facts available, 
including those contained in the application for initiation.
171  
7.177  Mexico argues that it complied with all its oblig ations under Article 6 of the AD Agreement by 
providing the United States authorities in Mexico172 and the two known exporters, Producers Rice173 and 
Riceland174, with the public notice of initiation of the inv estigation, the text of the application for 
initiation and the annexes thereto and the form for exporters and foreign producers.  In addition, it 
convened hearings for all natural or legal persons interested in the investigation through the publication of 
the official notice of initiation published in the Official Journal (DOF) on 11 December 2000.175  Mexico 
does not consider Article 6.6 of the AD Agreement to be  applicable to the situation in which the margin 
was based on facts available.  Neither does it consider  that Article 5.3 of the AD Agreement required it to 
verify whether the names of the exporters mentioned in the application included all existing US exporters 
but simply whether the application mentions the names of the exporters known to the applicant and 
whether the firms mentioned were exporters of the subject product.176  
7.178  With regard to the United States' assertion that  it would have sufficed for the investigating 
authority to consult the customs declarations (pedim entos) in order to have found the names of every 
exporter, Mexico argues that such pedimentos were not in the hands of the investigating authority but 
rather of the Ministry of Finance and Public Credit and that to request and receive such documents would have seriously delayed the proceed ings (by approximately 40 days).
177  More importantly, Mexico 
considers that the AD Agreement does not require the au thority to obtain such pedimentos and identify all 
exporters and the authority therefore did not attempt to obtain them.178   
                                                      
168 Mexico First Answers to Questions, question 16. 
169 Mexico Second Oral Statement, para. 70. 
170 Mexico First Submission, para. 159. 
171 Mexico asserts that the third paragraph of the intr oduction to the questionnaires clearly stated that such 
would be the case, thus complying with paragraph 1 of Annex II. 
172 Official communication UPCI.310.00.3082 of 8 November 2000 (Exhibit MEX-8). and official 
communication UPCI.310.00.3089 of 11 December 2000 (Exhibit MEX-9). 
173 Official communication UPCI.310.00. 3296 of 11 December 2000 (Exhibit MEX-6). 
174 Official communication UPCI.310.00. 3297 of 11 December 2000 (Exhibit MEX-7). 
175 Resolution accepting the interested party's application and initiating the anti-dumping investigation on 
imports of long-grain white rice, a product classified  under heading 1006.30.01 of the Tariff established by the 
General Import and Export Duties Law, originating in the Un ited States of America, regardless of the country of 
provenance, published in the Official Jour nal (DOF) of 11 December 2000 (Exhibit MEX-10). 
176 Mexico Second Oral Statement, para. 68-69. 
177 Mexico First Answers to Questions, question 17.  Mexico Second Answers to Questions, questions 5 and 
10. 
178 Mexico First Answers to Questions, question 17.  WT/DS295/R 
 
  (ii) Analysis 
7.179  We recall that the application filed by th e Mexican domestic industry mentioned two US 
exporters, Producers Rice and Riceland.  The Mexican investigating authority initiated the investigation 
and sent a notice of initiation as well as a questionnaire to the two exporters listed in the application as the 
exporters known to the applicant, and to the US emb assy in Mexico City.  The Notice of Initiation stated 
that a period of 30 days was given to any interested pa rty to appear before the investigating authority to 
submit the official investigation form which could be  obtained at the clerk's office of the International 
Trade Practices Unit in Mexico City.
179  Two US exporters, the Rice Company and Farmers Rice, as well 
as an industry association, the USA Rice Federation, came forward out of their own initiative, and received questionnaires.  Individual margins of dumpi ng were assigned to all four US exporters that 
"participated" in the investigation.  For all other US exporters which did not come forward themselves, 
and did not provide information, a residual margin of dumping was calculated based on the facts available.  
7.180  The United States claims that the investigating authority failed to abide by its obligation under 
Article 6.10 of the AD Agreement to determine an individual margin of dumping for each known exporter 
or producer as no efforts were undertaken by the aut hority to obtain knowledge of US exporters other than 
those two named in the application, and the two th at came forward of their own initiative.  The US 
submits that the authority failed to actively identify a nd inform interested parties of the investigation as 
required by Articles 6.1 and 12.1 of the AD Agreement.   As a consequence, the US submits that the 
application of facts available to calculate a margin  of dumping for these uninvestigated firms is therefore 
also inconsistent with Article 6.8 of the AD Agreem ent. Mexico on the other hand is of the view that 
Article 6.10 of the AD Agreement requires the calculation of an individual margin of dumping only with regard to the exporters that were known to the inv estigating authority.  As the authority provided the 
required notification to, and calculated an individual margin of dumping for, the exporters made known to 
the authority by the applicants, as well as for t hose exporters that made themselves known to the 
authority, Mexico considers that it fully complied w ith Articles 6.1, 12.1 and 6.10 of the AD Agreement, 
and its use of facts available for the non-appearing firms is thus justified under Article 6.8 of the AD 
Agreement.  
7.181  Article 6.10 of the AD Agreement provides as follows: 
6.10 The authorities shall, as a rule, determine an individual margin of dumping for 
each known exporter or producer concerned of the product under investigation.  In cases 
where the number of exporters, producers, impor ters or types of products involved is so 
large as to make such a determination im practicable, the authorities may limit their 
examination either to a reasonable number of  interested parties or products by using 
samples which are statistically valid on the basis of information available to the 
authorities at the time of the selection, or to the largest percentage of the volume of the 
exports from the country in question wh ich can reasonably be investigated. 
6.10.1  Any selection of exporters, producers, im porters or types of products made under 
this paragraph shall preferably be chosen in consultation with and with the consent of the 
exporters, producers or importers concerned. 
6.10.2 In cases where the authorities have limited their examination, as provided for in 
this paragraph, they shall nevertheless de termine an individual margin of dumping for 
any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except 
where the number of exporters or producers is so large that individual examinations 
                                                     
 
179 Notice of initiation, paras. 152 – 153. Exhibits US-1 and US-2. WT/DS295/R 
Page 150   
would be unduly burdensome to the authorities and prevent the timely completion of the investigation.  Voluntary responses shall not be discouraged. 
7.182  Article 6.10 of the AD Agreement thus set fort h the general rule that the authorities shall 
determine an individual margin of dumping for each known exporter or producer concerned of the 
product under investigation.  The disagreement betw een the parties centres around the extent of active 
involvement required from the authorities in identifyi ng the foreign exporters and producers for which it 
is to calculate an individual margin of dumping.  In line with general rules of interpretation of customary 
international law, we will examine the terms of Ar ticle 6.10 of the AD Agreement in their ordinary 
meaning and in light of their context and taking into account the object and purpose of the Agreement. 
7.183  The ordinary meaning of the term "known" is "learned, apprehended mentally;  familiar, esp. 
familiar to all, generally known or recognized. Also, identified as such"
180.  In other words, "known" 
exporters or producers are those which the investiga ting authority has learned about or has knowledge of. 
 As such, the ordinary meaning of the term does not tell us whether the authority is required to take any 
active steps to become aware of any foreign exporter or producer or whether, on the other hand, it suffices 
for an authority to rely on the applicant to identify the exporters and to expect the interested foreign 
exporters and producers to make themselves known to the authority.  In order to answer this question we 
examine the obligations set forth in the AD Agreement which provide the necessary context in light of 
which the requirement to calculate an indivi dual margin of dumping for each known exporter and 
producer has to be read.    
7.184  This context is formed by th e overarching obligation to conduct an investigation  and by the 
specific obligations on the authority to ensure that a ll interested parties are informed of the information 
required of them and are given the opportunity to present all evidence to support their case. 
7.185  The first important obligation is the requirement expressed in Article 1 of the AD Agreement that 
an anti-dumping measure shall only be applied pursuant to investigations  initiated and conducted in 
accordance with the provisions of the AD Agreement.   Among others, Article 5 of the AD Agreement 
entitled "Initiation and Subsequent Investigation" and Article 6 of the AD Agreement further elaborate on the specific requirements that an investigating au thority has to comply with when conducting this 
investigation.  The term "to investigate" means "to s earch or inquire into;  examine a matter systematically 
or in detail;  make an (official) inquiry into"
181 and an "investigator" is not surprisingly defined as "a 
researcher"182.  In our view, an investigati ng authority required to conduct an  investigation in an objective 
and unbiased manner has to play an active role in th e search of the information it requires in order to 
make its determination. We thus concur with the view expressed by the Appellate Body, albeit in a 
different context, in the US - Wheat Gluten  case that:  
"[T]he ordinary meaning of the word "i nvestigation" suggests that the competent 
authorities should carry out a "systematic inquiry" or a "careful study" into the matter before them. The word, therefore, suggests a proper degree of activity on the part of the 
competent authorities because authorities charge d with conducting an inquiry or a study 
– to use the treaty language, an "investiga tion" – must actively seek out pertinent 
information".
183    
7.186  While it is clear that the interested parties, incl uding the applicants, play a very important role in 
the fact gathering process, the obligation of conduc ting an investigation and making a determination 
remains that of the investigating authority, and not that  of the interested parties.  This is evidenced, for 
example, by the requirement of Article 6.6 of the AD Agreement that the investigating authorities "during 
                                                      
180 New Shorter Oxford Dictionary, p. 1504. 
181 New Shorter Oxford Dictionary, p. 1410. 
182 New Shorter Oxford Dictionary, p. 1410. 
183 Appellate Body Report, US – Wheat Gluten , para. 53.  WT/DS295/R 
 
  the course of an investigation satisfy themselves as to the accuracy of the information supplied by 
interested parties upon which its findings are based".
184 
7.187  In sum, we are of the view that the term "known exporter or producer" in Article 6.10 of the 
AD Agreement refers to the exporters or producers that an unbiased and objective investigating authority properly establishing the facts would be reasonably exp ected to have become conversant with.  Article 
6.10 of the AD Agreement is a general requirement that the authority has to comply with, at the latest, at 
the end of the investigation when making the determin ations.  This implies that the exporters that are 
known to the authorities at that point are those th at an objective and unbiased investigating authority 
properly establishing the facts and conducting an ac tive investigation could have and should have 
reasonably been considered  to have knowledge of.
185 
7.188  Clearly, the exporters that would be "known" to an investigating authority which makes little or 
no effort to inform itself will be far less than tho se "known" to an authority that has been reasonably 
active. Interpreted in its context, the term "known" cannot be construed in such  an artificially contrived 
and solipsistic manner as to become a warrant for a passi ve investigative approach.  To do so would be to 
effectively read out of the AD Agreement an importa nt aspect of the obligation of an investigating 
authority regarding the conduct of an investigation.   
7.189  We wish to emphasise that this does not imply th at we are of the view that an investigating 
authority is required to go to the other extreme a nd actively identify each and every foreign exporter or 
producer of the subject product. In our view, such a reading would read the term "known" out of the Agreement's requirement to calculate  an individual margin only for each "known" exporter or producer of 
the subject product.
186  What is reasonable to expect of the investigating authority as far as the 
identification of foreign exporters or producers goes will depend on the circumstances of each case and 
the information provided by the interested parties that could assist the authority in identifying such 
foreign exporters or producers.187 
                                                      
184 Paragraph 7 of Annex II similarly requires in case sec ondary source information is to be used that such 
be done with "special circumspection" and that "In such  cases, the authorities should, where practicable, check the 
information from other independent sources at their disposal , such as published price lists, official import statistics 
and customs returns, and from the information obtained from other interested parties during the investigation".    
185 In this respect, there is an important difference w ith the context in which the term "known exporters" is 
used in Article 5.2 of the AD Agreement.  In Article 5.2 ( ii) of the AD Agreement, it is provided that the application 
shall contain such information as is reasonably available to the applicant on inter alia  "the identity of each known 
exporter or foreign producer". This provision deals with th e content requirements of an application and the "known" 
exporters are clearly those that according to the information reasonably available to the applicant  are those 
exporters that are known to the applicant . In our view, as is the case for all the other information that under 
Article 5.2 of the AD Agreement the applicants should inform  the authorities of, such as prices at which the product 
in question is sold or the volume of the allegedly dum ped imports and the effects on prices, the investigating 
authority cannot simply accept this information as a basi s for making its determinations, but is required through 
conducting an unbiased and objective investigation to establis h and evaluate the facts. This is the whole purpose of 
the investigation, which as becomes clear from a number of  provisions in the Agreement is the responsibility of the 
investigating authority. Especially in light of the importa nt consequences that flow from the determination of the 
known exporters, it would render the requirement to conduc t an "investigation" meaningless to leave this 
identification in the hands of one of th e interested parties, the applicants.  
186 We recall that it is a generally accepted rule of treat y interpretation that an interpreter is to give full 
meaning to all the terms of the Agreement and not to adopt such an interpretation that reads certain terms out of the 
Agreement.  See, e.g, Appellate Body Report, US – Gasoline , p. 23: 
"...One of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention  is that 
interpretation must give meaning and effect to all th e terms of the treaty.  An interpreter is not free 
to adopt a reading that would result in reduci ng whole clauses or paragraphs of a treaty to 
redundancy or inutility."   
187 We note that the Panel in the Argentina – Poultry  Anti-Dumping Duties  case also rejected a similarly 
restrictive reading of the Agreement's requirement to notify all interested parties known to have an interest in the WT/DS295/R 
Page 152   7.190  In addition, the AD Agreement contains a numbe r of express obligations on the investigating 
authorities to inform all interested parties of the initia tion of the investigation and of the information that 
is required of them. Article 6.1 of the AD Agreement provides as follows:   
6.1 All interested parties in an anti-dumpi ng investigation shall be given notice of 
the information which the aut horities require and ample opportunity to present in writing 
all evidence which they consider relevant in respect of the investigation in question.   
6.1.1 Exporters or foreign producer s receiving questionnaires used in 
an anti-dumping  investigation shall be given at least 30 days for reply.  Due consideration should be  given to  any request for an extension of 
the 30-day period and, upon cause shown,  such an extension should be 
granted whenever practicable. 
6.1.2 Subject to the requirement to protect confidential information, 
evidence presented in  writing by one interested party shall be made available promptly to other interested parties participating in the investigation. 
6.1.3 As soon as an investigation has been initiated, the authorities 
shall provide the full text of the written application received under paragraph 1 of Article 5 to the know n exporters and to the authorities of 
the exporting Member and shall make it available, upon request, to other interested parties involved.  Due regard shall be paid to the requirement for the protection of confidential information, as provided for in paragraph 5. (footnotes omitted) 
7.191  Article 6.1 of the AD Agreement thus requires that  all interested parties be given notice of the 
information required, which under Article 6.1.3 AD Agr eement includes at least that the full text of the 
application is to be provided to  the known exporters. Article 12.1 AD Agreement similarly provides for a 
notification requirement with regard to  all interested parties known to have an interest in the investigation: 
                                                                                                                                                                    
 
investigation under Article 12.1 of the AD Ag reement.  The slightly different yet similar situation before the panel in 
that case concerned certain exporters which were mentioned in an annex to the petition but without an address. The 
Argentine authorities were arguing that the address was not known to them and that they had asked the authorities of the country of export for assistance which was all that wa s required of them under the notification requirement of 
Article 12.1 of the AD Agreement.  The Panel rejected this  restrictive reading of the obligations incumbent on the 
investigating authorities to notify all known interested parties: 
"7.132 [...] We accept that there may be circumst ances in which an investigating authority may 
not have sufficient information to allow it to notify all interested parties known to have an interest in an investigation.  In this sense, the fact that  an exporter is 'known' by the investigating authority 
to have an interest in an investigation does not necessarily mean that sufficient details concerning the exporter are 'known' to the investigating authority such that it may make the Article 12.1 notification.  In other words, knowledge of an exporter's interest in an investigation does not 
necessarily imply knowledge of contact details rega rding that exporter.  In such circumstances, 
however, we consider that the nature of the Artic le 12.1 notification obligation is such that  the 
investigating authority should make all reasonable efforts to obtain the requisite contact details.  
Sending a letter with only a very general request for assistance, without specifying the exporters 
for which contact details are required, does not sa tisfy the need to make all reasonable efforts" 
Panel report, Argentina – Poultry  Anti-Dumping Duties , para.7.132.  The panel in that case also found that 
there was prima facie  evidence that exporters mentioned in an annex to the petition are "known" to the authorities 
and should thus be notified. See Panel report, Argentina – Poultry Anti-Dumping Duties , para. 7.131. 
  WT/DS295/R 
 
  
12.1 When the authorities are satisfied that there is sufficient ev idence to justify the 
initiation of an anti-dumping investigation pursuant to Article 5, the Member or Members the products of which are subject to such investigation and other interested 
parties known to the investigating authorities to have an interest therein  shall be notified 
and a public notice shall be given. 
7.192  Thus, the AD Agreement makes clear that the inv estigation concerns not just the exporters and 
producers made known to the authorities by the applican t, or that make themselves known, but relates to 
all interested parties.  In our view, in order to comply with inter alia  the requirement to ensure that all 
interested parties be given notice of the informati on required of them, the investigating authority when 
conducting an investigation cannot remain entirely passive in the identification of the interested parties.  
We consider highly relevant the fact that Article  6.1.3 of the AD Agreement and Article 12.1 of the 
AD Agreement require the authorities to provide the fu ll text of the application to all known exporters as 
well as notify all interested parties known to have an in terest in the investigation of the initiation of the 
investigation.  In our view, an investigating author ity complies with these obliga tions by informing those 
interested parties it can reasonably obtain knowledge of.  It clearly does not suffice for the authority to inform only those exporters identified by the app licant, as the notification requirement applies to 
interested parties known to the authority, and not simply those known to the applicant, as in Article 5.2 of the AD Agreement.  Nor would the authority in our vi ew be complying with this crucial obligation by 
expecting the interested parties to make themselv es known to the authorities.  It seems that the latter 
approach is inherently problematic since it leaves unanswered the question how such exporters become 
aware of the investigation such that they woul d come forward and make themselves known to the 
authority and participate in the investigation if the authority does not first contact the interested parties 
and does not first inform all interested parties known to have an interest in the investigation of the 
initiation of the investigation.  
7.193  We are of the view that the requirement of Article 6.1 of the AD Agreement is more than a matter 
of mere procedural rectitude, but is fundamental to a correct application of inter alia  Article 6.8 of the 
AD Agreement which provides as follows: 
6.8 In cases in which any interested pa rty refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determina tions, affirmative or negative, may be made 
on the basis of the facts available.  The provisions of Annex II shall be observed in the application of this paragraph. 
7.194  We consider that in case an interested party h as not been properly notified and informed of the 
information it is required to submit under Article 6.1 of the AD Agreement, it cannot be argued to have 
refused access to or to otherwise have withheld n ecessary information or to have significantly impeded 
the investigation.  This is evidenced also by th e requirement in paragraph 1 of Annex II of the AD 
Agreement which provides that:  
1. As soon as possible after the initiation of the investigation, the investigating 
authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in 
its response.  The authorities should also ensure that the party is aware that if information 
is not supplied within a reasonable time, the authorities will be free to make determinations on the basis of the facts av ailable, including those contained in the 
application for the initiation of the i nvestigation by the domestic industry. WT/DS295/R 
Page 154   7.195  We note that Article 6.8 of the AD Agreement makes clear that the provisions of Annex II such as 
the above quoted paragraph 1 have to  be observed by the authority when applying facts available to make 
its determinations.
188  
7.196  We will therefore now turn to the facts of this  case in order to determine whether the Mexican 
investigating authority complied with the requireme nts of Articles 6.1, 6.8, 6.10 and 12.1 of the 
AD Agreement.  
7.197  We recall that the application referred to two US exporters, Producers Rice, and Riceland.  The 
Mexican authorities, upon initiation of the investigation, sent a copy of the application, together with the 
notice of initiation, to these two exporters as well as to  the US authorities in Mexico City.  Questionnaires 
were sent to the two US exporters mentioned in the a pplication.  The notice to the US authorities included 
a form by which interested parties could make themselves known.  We note that throughout the application the name of a third US exporter, the "Rice Corporation"
189, is referred to as one of the largest 
US exporters. In spite of the fact that this important  exporter's name appeared from time to time, no effort 
was made by the authorities to obtain more informati on on this exporter either from the applicants or from 
the US authorities.190  However, this exporter, as well as fourth exporter not mentioned in the application, 
the Farmers Rice, came forward itself and an individual margin of dumping was calculated for these two exporters, as well as for the two exporters explicitly listed in the application.  
7.198  The absence of these two exporters that came forward themselves, one of which actually appeared 
on several places in the application, re vealed to the authority that the lis t of foreign exporters or producers 
was incomplete.
191  The incomplete listing in the applicati on of the foreign exporters or producers was 
also evidenced by the fact that th e application stated that the subject product is produced in six states of 
the United States,192 while both exporters explicitly listed as e xporters known to the applicants, come from 
one and the same state, Arkansas. 
7.199  In addition, Annex M to the application refers to, and includes contact details for, two industry 
associations in the United States, the USA Rice Council and the Rice Millers Association, stating that the 
latter's members represent 97 per cent of all US milled pr oduction.  As it is explicitly stated in Annex M, 
while these organizations are not themselves producers of rice, they can provide general and specific 
information about the rice industry in the United Stat es.  Mexico further acknowledges that it would have 
been possible to identify all US exporters by examining the so-called pedimentos,193 but considers that it 
was under no obligation to consult these pedimentos whic h were being held by the Ministry of Finance 
and Public Credit.  Mexico does not argue that it was impossible to obtain the pedimentos, but rather that requesting the pedimentos would have  caused a delay of about 40 days.
194  Information on US exporters 
seems to have been available from a number of public  sources as well such as a US magazine for the rice 
industry, the Rice Journal, a source men tioned in Annex S to the application.195  This Rice Journal 
                                                      
188 Apart from setting forth independent obligations, we  consider that the above quoted provisions also 
provide further context in which to read the requirement of Article 6.10 of the AD Agreement to calculate an individual margin of dumping for "each known e xporter or producer" of the subject product. 
189 The Final Determination (Exhibits US-6 and US -7) refers to the Rice Company by this name. 
190 For example, Annex H to the Petition concerned information on "The Rice Company" – Exhibit US -8, 
p. 44. 
191 This does not necessarily mean that the informati on contained in the application was not sufficient to 
justify the initiation of the investigation, a ques tion we are in any case not asked to rule on. 
192 These six States are Arkansas, Ca lifornia, Louisiana, Mi ssissippi, Missouri, and Texas.  See Petition, 
page 10 (Exhibit US-8);  Annex M to petition, Exhibit US-17. 
193 This is clear from Mexico's statement that the pedimentos included imports of all white rice which is 
clearly inclusive of the subject merchandise, long grain wh ite rice. For an example of a pedimento and the kind of 
information contained therein, see Exhibit US-12. 
194 Mexico First Answers to Questions, question 17. 
195 Annex S to petition, Rice Outlook 1999, p. 6, Exhibit US-9.  WT/DS295/R 
 
  contains all the names and contact details of US producers.
196  While the investigating authority notified 
the US authorities of the initiation of the investigation as required by Article 6.1.3 and 12.1 of the AD Agreement, it did not request the assi stance of the authorities in identifying US exporters or producers.  
We do not consider that an investigating authority is complying with its investigatory task by assuming 
that the authorities of the exporting country will in form the foreign producers and exporters of the 
initiation such that they can come forward and pr esent their data.  The government of the exporting 
Member is to be notified because, according to Article 6.11 (ii) of the AD Agreement, it is an interested 
party in its own right, not because that government s hould do the work for the investigating authority.  
For all of these reasons we consider that an objec tive and unbiased investigating authority conducting an 
investigation in a reasonable manner should have made more of an effo rt to obtain knowledge of other US 
exporters.  The authority knew that the listing in the application was far from complete, and it had 
sufficient information before it that would have enab led the authority to identify other US producers and 
exporters.  It is, in our view, the task of the inves tigating authority and not of the interested parties to 
inform all interested parties of the information that is required and to conduct a proper investigation.  We 
are of the view that the investigating authority is not allowed to rely on the initiative of the interested 
parties for the fulfilment of obligations which are really its own. 
7.200  For the reason set out above, we find that the i nvestigating authority failed to comply with 
Articles 6.1 and 12.1 of the AD Agreement as it failed to  notify all interested parties known to have an 
interest in the investigation of the initiation of the i nvestigation and of the information required of them.  
We are of the view that these violations are not to be viewed as some kind of minor or inconsequential 
procedural infringement as they have important implica tion(s) with regard to the use of facts available 
under Article 6.8 of the AD Agreement.  As we st ated earlier, in case the authorities do not properly 
notify and inform the interested parties, it is not  permitted to apply the facts available to make 
determinations with regard to these interested parti es.  We thus conclude that by applying the facts 
available in the calculation of a margin of dumping fo r the US exporters or producers that were known or 
could reasonably have been known to the authority, Mexi co acted in a manner which is inconsistent with 
Article 6.8 and paragraph 1 of Annex II of the AD Agreement. In light of this finding, we do not find it 
necessary to examine the US argument concerning th e inconsistency of the Mexican measure with 
paragraph 7 of Annex II, and do not make any ruling with regard to this aspect of the US claim.  
7.201  In addition, we find that Mexico acted in breach of Article 6.10 of the AD Agreement by 
remaining entirely passive in the identification of expor ters or producers interested in the investigation, 
and by not calculating an individual margin for dum ping for each exporter or pr oducer that was known or 
should reasonably have been known to  the investigating authority.  
7.202  In light of our findings under Ar ticles 6.1, 6.8, 6.10 and 12.1 of the AD Agreement, we do not 
consider it necessary for the resolution of the dis pute to also examine the US claims concerning 
Articles 6.6, 9.4, and 9.5 of the AD Agreement, and do not make any findings in this respect.  
                                                     
 
196 Exhibit US -18. WT/DS295/R 
Page 156   
(d) Claim 11:  Economía’s failure to provide sufficient information on the findings and 
conclusions of fact and law and the reasons th at led to the imposition of the adverse facts 
available-based margin on Producers Rice and the unexamined US exporters and producers is inconsistent with Mexico’s obligations under Article 12.2 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.203  The United States submits that Economía provide d only the most summary rationale for its 
decision to base the margin of Producers Rice and the unexamined exporters and producers on adverse 
facts available.  Economía thus failed to provide suffi ciently detailed information on all issues of fact and 
law as required by Article 12.2 of the AD Agreement. 
Mexico 7.204  Mexico submits that the Final Determination sets fo rth the findings on all issues of fact and law in 
a sufficiently detailed manner. 
(ii) Analysis 
7.205  In light of our findings on Articles 6.1, 6.8, 6.10 and 12.1 of the AD Agreement, we do not find it 
necessary to address in this context the US claim unde r Article 12.2 of the AD Agreement.  That is, 
having determined that the measure at issue is inc onsistent with the cited Articles, and exercising the 
discretion implicit in the principle of judicial ec onomy, we do not deem it necessary to examine whether 
the investigation which led to the inconsistent m easure was consistent with the procedural rules 
concerning notification in Article 12.2 of the AD Agr eement.  We do not consider that this would add 
anything to our findings or would be useful in the implementation of our ruling. 
(e) Claim 12:  Economía’s application of an adv erse facts available-based margin to Producers 
Rice and the unexamined US exporters and pr oducers is inconsistent with Mexico’s 
obligations under Articles 1 and 9.3 of the AD Agreement 
(i) Arguments of the Parties 
United States 
7.206  The United States states that by failing to calculate the residual margin of dumping for the non-
examined exporters and Producers Rice on the basis of the neutral formula set forth in Article 9.4, the 
amount of the margin assigned to t hose producers inevitabl e exceeded the margin of dumping established 
under Article 2, and thus breached Article 9.3 which provides that the amount of the duty shall not exceed 
the margin of dumping as established under Article 2.  
7.207  In addition, by imposing duties in a manner incons istent with the provisions of the Agreement, 
the United States argues, Economía also violated Artic le 1 which requires that measures be applied only 
after an investigation conducted in accordan ce with the provisions of the Agreement. 
Mexico 7.208  Mexico argues that Article 9.4 of the AD Agreement is not applicable and that Article 9.3 of the 
AD Agreement has therefore not been violated either.   WT/DS295/R 
 
  (ii) Analysis 
 7.209  In light of the finding made above concerning the inconsistency with Articles 6.1, 6.8, 6.10 and 
12.1 of the AD Agreement, we do not find it necessary fo r the resolution of the dispute to address the US 
claims concerning the inconsistency of the use of  facts available with Articles 9.3 and 1 of the 
AD Agreement.  We therefore do not make any rulings in this respect.  
(f) Claim 13:  Economía’s levying of an anti-dumping duty greater than the margin of 
dumping is inconsistent with Mexico’s obligations under Article VI:2 of GATT 1994 
(i) Arguments of the Parties 
United States 
7.210  The United States submits that, because the duti es that Mexico levied on the "all others" 
companies was greater in amount than the appropria te margin of dumping, Mexico also violated 
Article VI:2 of the GATT 1994 which provides that a duty may be imposed which is not greater in amount than the margin of dumping in respect of such product.  
Mexico 7.211  In Mexico's view, since the measures taken are c onsistent with the AD Agreement, there can be 
no consequent violation of Ar ticle VI: 2 of the GATT 1994. 
(ii) Analysis 
7.212  In light of the finding made above concerni ng the inconsistency of the dumping margin 
calculation with Articles 6.1, 6.8, 6.10 and 12.1 of the AD Agreement, we do not find it necessary for the resolution of the dispute to address this US claim c oncerning the inconsistency with Article VI:2 of the 
GATT 1994.  We therefore do not make any rulings in this respect.  
D. C
LAIMS CONCERNING MEXICO 'S FOREIGN TRADE ACT AND SECTION 366 OF MEXICO 'S FCCP  AS 
SUCH  
1. Claim 14:  Article 53 of Mexico’s Foreign Trade Act is inconsistent "as such" with 
Article 6.1.1 of the AD Agreement and Article 12.1.1 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.213  The United States asserts that Article 53 of th e Act requires interested parties to present 
arguments, information, and evidence to Economía within 28 days after publication of the initiation 
notice.  The United States submits that Article 6.1.1 of the AD Agreement, and its SCM counterpart, Article 12.1.1 of the SCM Agreement, provide that inte rested parties are to be given at least 30 days to 
reply to questionnaires counting from the date of recei pt of the questionnaire, and not counting from the 
date of publication of the notice of initiation.  In a ddition, these provisions state that an authority should, 
after due consideration, grant extensions of this time period, upon cause shown, "whenever practicable".  
The United States asserts that Mexico only sends ques tionnaires to the producers or exporters named in 
the application, and listed in the notice of initiation.  This implies, in the United States' view, that Article 
53 of the Act will preclude Economía from providing ot her exporters or foreign producers which come 
forward following the initiation to ask for copies of the questionnaires 30 days to respond, since the time 
has started counting from the date of publication of the initiation notice and not from the time the 
questionnaires were sent to these interested parties that  appeared after initiation.  In addition, the United WT/DS295/R 
Page 158   States submits that Article 53 of the Act prevents Economía from giving due cons ideration to extension 
requests, let alone granting such requests.  The United St ates is thus of the view that Article 53 of the Act 
is inconsistent as such with Articles 6.1.1 of the AD Agreement and 12.1.1 of the SCM Agreement. 
(ii) Mexico 
7.214  Mexico submits that Article 6.1.1 of the AD Agreement and Article 12.1.1 of the 
SCM Agreement do not oblige Economía to provide for 30 days to respond to questionnaires with respect 
to exporters that were not sent a questionnaire.  Mexi co is of the view that if the 30-day period were 
granted to any interested party that presented itself after the initiation of the investigation, the ensuing 
delay would entail failure to observe the time-limits la id down in, and hence a violation of, Article 5.10 of 
the AD Agreement and 11.11 of the SCM Agreement.  S econd, Mexico asserts that according to Article 3 
of the Act
197, the term 28 "days" in Article 53 of the Act has to be read as "working days".  Given the fact 
that it is common practice in Mexico to send out the questionnaires the day following publication of the 
initiation, Mexico argues that Article 53 of the Act thus actually provides for at least 38 calendar days, 
which is more than Article 6.1.1 of the AD Ag reement and Article 12.1.1 of the SCM Agreement 
require.198  Finally, Mexico submits that nothing in Article 53 of the Act prohibits Economía from 
authorizing extensions of the deadline, and sev eral exporters have successfully requested such 
extensions.199  In any case, and in the event the panel shoul d consider that the United States has provided 
evidence of such an alleged prohibition based on the text  of the Act, Mexico argues that Article 6.1.1 of 
the AD Agreement and 12.1.1 of the SCM Agreement apply congruently to Mexican anti-dumping and countervailing duty investigations, a nd the investigating authority may grant extensions on the basis of 
these Articles. 
7.215  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements.  According to Mexico, th e Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.216  The United States claim concerns Article 53 of the Act which provides as follows: 
The interested parties shall submit thei r arguments, information and evidence in 
conformity with the applicable legislati on, within a period of 28 days from the day 
following the publication of the initiating resolution. 
7.217  According to the United States, by not starting to  count the 28 days for replies to questionnaires 
from the date of receipt of such questionnaires but rath er from the date of initiation, Article 53 of the Act 
fails to provide all interested parties an equal ri ght to have 30 days to respond to questionnaires, as 
required by Article 6.1.1 of the AD Agreement, a nd its SCM counterpart, Article 12.1.1 of the SCM 
Agreement. Article 6.1.1 of the AD Agreement provides that
200: 
                                                      
197 Article 3 of the Act provides as follows:  "...where th is Act refers to time-limits  in days these shall be 
understood to mean working days and where it refers to m onths or years these shall be understood to mean calendar 
months or years". 
198 Mexico First Submission, para. 227. 
199 Mexico First Submission, para. 229. Me xico does not provide specific examples. 
200 Article 12.1.1 of the SCM Agreement similarly provides that: 
12.1.1 Exporters, foreign producers or interested  Members receiving questionnaires used in a 
countervailing duty investigation shall be  given at least 30 days for reply.40  Due consideration 
should be given to any request for an extension of the 30-day period and, upon cause shown, such 
an extension should be granted whenever practicable.  WT/DS295/R 
 
  
6.1.1 Exporters or foreign producers receiving questionnaires used in an anti-dumping  investigation shall be given at least 30 days for reply.
15  Due consideration should be 
given to any request for an extension of the 30-day period and, upon cause shown, such 
an extension should be granted whenever practicable.  
15As a general rule, the time-limit for exporters sha ll be counted from the date of receipt of the 
questionnaire, which for this purpose shall be d eemed to have been received one week from the 
date on which it was sent to the respondent or  transmitted to the appropriate diplomatic 
representative of the exporting Member or, in the case of a separate customs territory Member of 
the WTO, an official representative of the exporting territory . 
7.218  We are of the view that the wording of Article 6.1.1 of the AD Agreement makes it very clear that 
any exporter or foreign producer which receives a questionna ire is to be given at least 30 days for reply.  
As footnote 15 adds, this time limit shall as a general rule be counted from the date of receipt of the 
questionnaire, which shall be deemed to have been received one week from the date on which it was sent. 
 We do not understand the United States to consider in consistent the fact that Article 53 of the Act 
provides for 28 days only, instead of the 30 days required by Article 6.1.1 of the AD Agreement as it seems to acknowledge that, by virtue of Article 3 of the Act, the days referred to in the Act refer to 
working days.
201  As Mexico's administrative practice is to send the questionnaires out the day following 
the publication of the initiation, the parties seem to be in agreement that exporters listed in the application 
and to which questionnaires are sent at the time of initia tion would in fact have at least 30 calendar days 
to respond, as required by Article 6.1.1 of the AD Agreement.  
7.219  The United States does challenge, however, the c onsistency of Article 53 of the Act with 
Article 6.1.1 of the AD Agreement with regard to e xporters or foreign producers which were not listed in 
the application as being known to the applicant and wh ich for that reason were not sent a questionnaire at 
initiation.  Mexico is of the view that the 30-day period of Article 6.1.1 of the AD Agreement only applies to exporters or foreign producers to which a questionna ire was sent at initiation and not to those exporters 
or producers that appear later in the course of the inv estigation.  According to Mexico Article 6.1.1 of the 
AD Agreement does not oblige Economía to provide for 30 days to respond to ques tionnaires with respect 
to exporters which received questionnaires only after such exporters had come forward and requested 
such questionnaires.  
7.220  We consider that Article 6.1.1 of the AD Agreem ent clearly provides that any exporter or foreign 
producer receiving a questionnaire shall be given 30 days  for reply.  This 30-day rule does not make a 
distinction between those exporters that received a questionnaire at the time of initiation because they 
happened to be known to the applican t and were thus informed of the initiation, and those that make 
themselves known or the existence of which b ecomes known to the authorities and to which 
questionnaires are sent following initiation.  In our view , by using the date of publication of the initiation 
notice as the starting point for the time period for questionnaire responses, Article 53 of the Act effectively prevents Mexico from giving each expor ter or foreign producer receiving a questionnaire 30 
days to respond.  For that reason we consider Article 53 of the Act to be inconsistent with the unequivocal requirement in Article 6.1.1 of the AD Agreement to provide for 30 days to respond to questionnaires.
202   
                                                                                                                                                                     
40 As a general rule, the time-limit for exporters sh all be counted from the date of receipt of the 
questionnaire, which for this purpose shall be d eemed to have been received one week from the 
date on which it was sent to the respondent or  transmitted to the appropriate diplomatic 
representatives of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory. 
201 Article 3 of the Mexican Foreign Trade Act (LCE ) speaks of "días habiles".  See Mexico's First 
Submission, para. 225. 
202 We note that Mexico has argued that the United St ates should have adduced evidence, in each of its 
claims concerning the law as such, of the application of  the law by the executive authorities and its interpretation by 
the domestic courts. We find no basis for such a requirement  in this case. These sources may become important in WT/DS295/R 
Page 160   7.221  The United States also argues that Article 53 of the Act is inconsistent with the second sentence 
of Article 6.1.1 of the AD Agreement because it pr events Economía from giving due consideration to 
extension requests, let alone granting such requests.  Mexico submits that Article 53 of the Act does not 
have this effect.  
7.222  Even assuming arguendo  that we were to agree with Mexico  that nothing in Article 53 of the Act 
prevents the authorities from granting extensions, when requested, this, in our view would not be able to 
cure the original failure to provide for 30 days to  respond to questionnaires for all exporters or foreign 
producers.  The first sentence of Article 6.1.1 of the AD Agreement is categorical in requiring that 30 
days be given to respond to questionnaires.  The second sentence of Article 6.1.1 of the AD Agreement 
dealing with extension requests, thus refers to re quests to obtain more than the 30 days required.  
Exporters or foreign producers receiving questionnaires should not be forced to use the possibility of 
requesting extensions to obtain the time period of 30 days they are entitled to, without any showing of 
good cause.  Article 6.1.1 of the AD Agreement requires Members, with regard to extension requests, to 
give "due consideration" to such request, and to gr ant them, "whenever practicab le".  The language of the 
first sentence of Article 6.1.1 of the AD Agreement relating to the 30 days rule does not contain such 
caveats and does not allow for any exceptions, and exporte rs or foreign producers should not be forced to 
hope to obtain by requesting extensions a time peri od for responding to questionnaires they are in any 
case entitled to. 
7.223  In sum, we find that Article 53 of the Act is as such inconsistent with Article 6.1.1 of the 
AD Agreement. In addition, we consider that th e requirement contained in Article 6.1.1 of the 
AD Agreement to provide for 30 days to respond to ques tionnaires is identical to that of Article 12.1.1 of 
the SCM Agreement. For the same reasons as set forth above, we therefore find that Article 53 of the Act 
is as such also inconsistent with Article 12.1.1 of the SCM Agreement.  
7.224  We finally note that Mexico argues that in Mexi can law, international agreements such as the 
WTO agreements are "self-executing" and automatically  applicable in Mexico, and that any domestic law 
has to be applied in a manner which is compa tible with Mexico's international obligations.
203  While we 
understand the important role given to Mexico's international commitments by providing for the direct 
effect of international agreements such as the WTO Ag reements in Mexican law, we do not consider that 
for this reason, Mexico's laws would be shielded fro m any review of the consistency of these laws with 
the WTO Agreements or that such laws can never be found to be inconsistent with the WTO Agreements. 
 The fact that provision is made for the direct eff ect of the WTO Agreements does not automatically and 
inevitably ensure a correct interpretation of the WTO Agreements, at least not in a situation where there is 
also a distinct domestic legal provision which manifestly  conflicts with the terms of the Agreements.  In 
our view, the direct effect of the WTO Agreemen ts in Mexican law may prove important in case the 
domestic law leaves the authority with discretion to  apply the law in a WTO consistent manner.  
However, in case the domestic law which implements Me xico's international commitments with regard to 
for example the AD Agreement and SCM Agreement, as does the Act, is clear and manifestly conflicts 
with and effectively impairs the enjoyment of th e rights which the affected party is unconditionally 
                                                                                                                                                                     
WTO jurisprudence or general public international law as the adjudicator may in certain circumstances need to 
consider the interpretation of the law by domestic courts and the application by the executive authority in order to 
determine the real scope and meaning of the text of the dom estic law. In this case, where the United States as the 
complainant has made a prima facie  case that the language of the domestic la w in question is on its face manifestly 
WTO inconsistent, we do not consider that – absent a nything more substantive and concrete than the counter-
assertion by Mexico of its consistency – we would have to  wait until a domestic law is applied and interpreted by the 
domestic courts before this law could be dealt with by a WTO panel.    
203 Mexico First Submission, paras. 202 - 206. Mexico asse rts that this is set forth in Article 2 of the Act 
which provides as follows: "The provisions of this Ac t are public policy provisions that apply throughout the 
Republic, without prejudice to the provisions of the internati onal treaties or agreements to which Mexico is party".  WT/DS295/R 
 
  entitled to under the WTO Agreement, as is the case here, then the direct effect of the WTO Agreements 
cannot shield the domestic law from such scrutiny by WTO panels.
204   
7.225  This is especially so in case the challenged provi sions do not leave any room for interpretation but 
are clearly inconsistent with the WTO Agreement.  Absent any contrary indication that the law does not 
mean what the text of the law indicates it means, the challenged provision of the la w is inconsistent with 
the Agreement.  In this case, Mexico has not provide d any such evidence, quite  to the contrary, it has 
vigorously defended its law as being consistent as such with the WTO Agreement, and has argued that the 
law does not provide for 30 days to respond to qu estionnaires in case such questionnaires are sent to 
exporters that appear after the initiation because this is not required by the AD Agreement.  Since we find that the AD Agreement does provide for such a right to have 30 days to respond to questionnaires for all 
exporters receiving such questionnaires, we find this pr ovision of the Act to be inconsistent as such with 
Articles 6.1.1 of the AD Agreement and 12.1.1 of the SCM Agreement.  
2. Claim 15:  Article 64 of Mexico’s Foreign Trade Act is inconsistent "as such" with 
Articles 6.8, 9.3, 9.4, and 9.5 of the AD Agreement, paragraphs 1, 3, 5, and 7 of Annex II of the AD Agreement, and Articles 12.7 and 19.3 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.226  The United States submits that Article 64 of the Act breaches Article 9.4 of the AD Agreement as 
it does not provide for the application of a neutra l "all others " rate for unexamined exporters and 
producers.  According to the United States, Article 64 of the Act requires the application of the highest 
margin obtained from the facts available to, inter alia , (a) firms which "failed to appear" at the 
investigation because they were not properly informed  and never received a questionnaire;  and (b) firms 
which cooperate but demonstrate that they did not e xport during the period of investigation.  Therefore, 
the United States argues, at least with regard to th ese two categories of firms Article 64 of the Act is 
inconsistent as such with Article 9.4 of the AD Agreement. 
7.227  In addition, the United States argues, Article 64 of the Act violates Articles 6.8 of the 
AD Agreement, and paras. 1, 3, 5 and 7 of Annex II of the AD Agreement, which limit the applicability of 
facts available to situations where information that  was requested from individually examined firms was 
not provided within a reasonable period of time or in case of significant impediment of the investigation.  
Under Article 64 of the Act, the investigating authority  is required to blindly apply the highest margin to 
firms even if such firms were never informed of the information that was required of them in violation of 
para. 1 of Annex II.  Article 64 of the Act also appli es in cases in which the firms act ed to the best of their 
abilities as is the case for cooperative producers who did not export during the period of investigation, 
thereby violating paras. 3, 5 and 7 of Annex II.  Fi nally by requiring the imposition of the highest margin, 
the Act precludes the investigating authority from us ing the secondary source information "with special 
circumspection" as required by paragra ph 7 of Annex II, and this with rega rd to all categories of situations 
to which Article 64 of the Act applies.  
                                                     
 
204 While Mexico is right in saying that a Member's law is assumed to be a good faith implementation of its 
commitments until proven otherwise, it is therefore also co rrect to assume that by drafting the law the way it did, 
Mexico assumingly considered it was implementing its commitm ents in a WTO consistent manner, and it can thus be 
assumed that the executive authority will simply execute what the law requires it do without questioning the legal validity of such obligations in light of the WTO Agreem ent. In fact to find otherwise, and taking the Mexican 
argument to its logical conclusion, would imply that it does not matter at all what the law says since the WTO Agreements have direct effect and they prevail. Such a reading which renders the domestic legal provisions 
completely irrelevant cannot be correct. WT/DS295/R 
Page 162   7.228  For the same reasons, and because it deprives the i nvestigating authority of all discretion to 
evaluate the appropriateness of using facts ava ilable for parties which were cooperative or not 
individually examined, the United States submits that Article 64 also violates Article 12.7 of the SCM Agreement.  The United States submits that  the Act also violates Article 19.3 of the 
SCM Agreement requiring that duties be levied "in appropriate amounts" in each case, as nothing in the SCM Agreement justifies a determination that the appropriate amounts of duties for parties that did not export or were not even sent a questionnaire is necessarily  the highest margin suggested by the applicant.  
7.229  Finally, the United States submits that Article 64 of the Act breaches the Articles 19.3 of the 
SCM Agreement and 9.5 of the AD Agreement concer ning expedited reviews.  Article 19.3 of the 
SCM Agreement provides for expedited reviews for e xporters who were not actually investigated for 
reasons other than a refusal to cooperate.  As uninformed producers and producers who simply did not 
export during the period of investigation are deemed to  have been investigated, no producer will ever be 
able to claim the benefits of an expedited review a nd Article 64 of the Act thus renders Article 19.3 of the 
SCM Agreement a nullity.  Similarly, Article 9.5 of the AD Agreement provides for expedited reviews if 
the producers which did not export during the period of investigation are not related to exporters subject 
to the duties on the product.  The United States asserts that since under Article 64 of the Act, firms that 
did not export are deemed to have been investigated, such firms will never be able to request the benefit 
of an expedited review under Article 9.5 of the AD Ag reement, as they are not just related to exporters 
subject to the duties, they are themselves subject to the duties.  Article 64 of the Act thus breaches Article 9.5 of the AD Agreement as well.  
7.230  Finally, the United States argues that, in light of the fact that Article 64 of the Act requires the 
application of the highest margin rather than the ne utral all others rate, the Act also inevitably violates 
Article 9.3 of the AD Agreement as it will lead to the imposition of duties in excess of the margin of 
dumping established under Article 2 of the AD Agreement.  
(ii) Mexico 
7.231  Mexico asserts that Article 64 of the Act which stipulates that the margin of dumping or 
subsidization is to be calculated on the basis of the f acts available for interested parties that do not appear 
in the investigation or have no exports during the pe riod of investigation and have therefore not provided 
the necessary information is consistent with th e provisions of the AD Agreement and the SCM 
Agreement. Mexico is of the view that Articles 6. 8 of the AD Agreement and 12.7 of the SCM Agreement 
provide for the application of facts available in  case information necessary for the determination of a 
margin is not provided.  This is the case when expor ters do not appear in the investigation or do not 
export during the period of investigation, as this im plies that the exporters will not provide the normal 
value or export price information necessary for the calculation of a margin of dumping or subsidization.  
7.232  In Mexico's view, Article 64 of the Act does not violate paragraphs 3 a nd 5 of Annex II of the 
AD Agreement either as these provisions contain obliga tions in case information was provided, while in 
the cases covered by Article 64 of the Act no informa tion whatsoever has been received on one or more 
essential elements of a margin determination.  In a ddition, Mexico is of the view that there is no 
obligation on the investigating authority to send ques tionnaires to all exporters  and foreign producers and 
it is therefore justified to base a determination with  regard to non-participati ng or non-exporting interested 
parties that do not provide the necessary information on the facts available, including the information 
contained in the application.  For this reason, Article 64 of the Act is thus also consistent with paragraphs 
1 and 7 of Annex II of the AD Agreement.  
7.233  According to Mexico, Article 9.4 of the AD Agreement is only applicable in case the 
investigating authority has limited the number of expor ters investigated to a sample and there does not 
exist any obligation in the AD Agreem ent to calculate a neutral all ot hers rate for non-appearing or non-
shipping exporters.  Article 64 of the Act is thus not  inconsistent with Article 9.4 of the AD Agreement 
either.   WT/DS295/R 
 
  7.234  Furthermore, Mexico submits that Article 64 of  the Act on no grounds prevents foreign producers 
or exporters that have made no shipments during th e period of investigation from seeking a new shipper 
review, if they comply with the requirements of Article 9.5 of the AD Agreement and 19.3 of the SCM Agreement.  Mexico refers to a request for a ne w shipper review granted by the authority after the 
revision of the Act had taken effect in support of its  argument that Article 64 of the Act does not prohibit 
such reviews.
205   
7.235  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements.  According to Mexico, th e Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.236  The US claim concerns Article 64 of the Ac t which reads in pertinent part as follows: 
“. . . . The Ministry shall determine a countervailing duty on the basis of the highest 
margin of price discrimination or subsidization obtained from the facts available, in the following cases: 
I. When the producers fail to appear at the investigation; or II. When the producers fail to provide the information in a proper and timely 
fashion, significantly impede the investigation, or supply information or evidence that is incomplete, incorrect or does not derive from their accounts, thus preventing the determination of an individual margin of price discrimination or subsidization; or 
III. When the producers have not exporte d the product subject to investigation 
during the investigation period. 
The facts available shall be understood to mean those substantiated by evidence and data 
provided by the interested parties or additiona l parties in a proper and timely fashion, and 
by the information gathered by the investigating authority.”
206 
7.237  We first examine the US claim concerning the inconsistency of Article 64 of the Act with 
Article 6.8 and Annex II of the AD Agreement, and Ar ticle 12.7 of the SCM Agreement.  We recall that 
Article 6.8 of the AD Agreement provides as follows: 
6.8 In cases in which any interested pa rty refuses access to, or otherwise does not 
provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determina tions, affirmative or negative, may be made 
on the basis of the facts available.  The provisions of Annex II shall be observed in the application of this paragraph.
207 
                                                      
205 Mexico's Second Submission, para  213, footnote 12 –Exhibit MEX -12. 
206 We note that the term "countervailing duty" referred to throughout the Act is used to refer to both anti-
dumping duties and countervailing duties. 
207 Article 12.7 of the SCM Agreement similarly provides as follows: 
"In cases in which any interested Member or in terested party refuses access to, or otherwise does 
not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinati ons, affirmative or negative, may be made on the 
basis of the facts available
." WT/DS295/R 
Page 164   Article 6.8 of the AD Agreement thus allows for the us e of facts available in case an interested party 
(i) refuses access to, or (ii) otherwise does not provide , necessary information within a reasonable period or 
(iii) significantly impedes the investigation.  Article 64 of the Act on the other hand provides for the use of 
the highest margin based on the facts available with regard  to producers that (i) fail to appear (Article 64.I of 
the Act);  or (ii) fail to provide the information in a proper and timely fashion;  or (iii) significantly impede 
the investigation; or (iv) supply information or evidence that is incomplete, incorrect or does not derive from their accounts (Article 64.II of the Act);  or (v) that  did not export the subject product during the period of 
investigation (Article 64.III of the Act).  It is clear th at the first and fifth category of situations covered by 
Article 64 of the Act are not expressly provided for in  Article 6.8 of the AD Agreement which disciplines 
and restricts the use of facts available.  We will ther efore first consider the US arguments concerning Article 
64.II of the Act and the use of the highest facts ava ilable margin to producers which fail to provide the 
information in a proper and timely fashion, significantly impede the investigation, or supply information or 
evidence that is incomplete, incorrect or does not  derive from their accounts, thus preventing the 
determination of an individual margin of price discrimination or subsidization.   
7.238  We recall that Article 6.8 of the AD Agreement provides that in certain situations in which access to 
necessary information is refused, such information is  otherwise not provided within a reasonable period, or 
the investigation is significantly impeded, the authoritie s may make their determinations on the basis of the 
facts available.  The fact gathering and evidentiary  context in which Article 6.8 of the AD Agreement 
provides for this possibility clearly shows that Article 6.8 of the AD Agreement is there to allow authorities 
to continue with the investigation and make a determ ination, positive or negative, on the basis of the facts 
that are available.  The Agreement expresses a clear preference for first-hand information, but does not allow any party to hold the authority hostage by not providi ng the necessary information, and thus provides that 
second-best information from secondary sources may be used  in certain well-defined circumstances.  The use 
of facts available under Article 6.8 of the AD Agreemen t is not however intended to operate as a punishment 
for those parties that do not provide such information.  In  fact, as paragraphs 1, 3,  5 and 7 of Annex II of the 
AD Agreement entitled "Best Information Available in Term s of Paragraph 8 of Article 6" clearly show, all 
the information provided by the parties, even if not ideal in all respects, should to the extent possible be used by the authorities, and in case secondary source informa tion is to be used, the authorities should do so with 
special circumspection.
208  The final sentence of paragraph 7 of Annex II, in our view, only states the 
                                                                                                                                                                     
In light of the almost identical wording of Artic le 12.7 of the SCM Agreement, our analysis under 
Article 6.8 of the AD Agreement applies to Article 12.7 SCM of the Agreement as well. 
208 These paragraphs 1,3, 5 and 7 of Annex II provide as follows: 
1. As soon as possible after the initiation of th e investigation, the investigating authorities 
should specify in detail the information required from any interested party, and the manner in 
which that information should be structured by the interested party in its response.  The authorities 
should also ensure that the party is aware that if information is not supplied within a reasonable 
time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic 
industry. 3. All information which is verifiable, which is appropriately submitted so that it can be 
used in the investigation without undue difficulties,  which is supplied in a timely fashion, and, 
where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made.  If a party does not 
respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred 
medium or computer language should not be considered to significantly impede the investigation. 5. Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability. 7. If the authorities have to base their findings, including those with respect to normal value, on  information from a secondary sour ce, including the information supplied in the 
application for the initiation of the investigation, they should do so with special circumspection.  
In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and  WT/DS295/R 
 
  obvious that in case of non-co -operation, the result of such use of secondary source information could be less 
favourable to the party than if the party did cooperate.  By making it a requirement to always use the highest 
margin based on the facts available Article 64 of the Ac t prohibits the authority from taking into account the 
specific circumstances of each individual case of non-provision of information.  This effectively prevents the 
authority from being able to undertake the inherently co mparative evaluation of this evidence available in a 
case at hand that is needed to meet the requirement that the facts available to  be used are the "best" 
information that is available.
209  This, in our view, requires the author ity to use those data which are most 
appropriate and best suited to replace the missing data.  Since Article 64 of the Act effectively prevents the 
authorities from using the best information to replace th e missing data, we find that Article 64 of the Act is 
inconsistent with Article 6.8 and paragraphs 1, 3, 5 and 7 of Annex II of the AD Agreement.210  
7.239  We will now address the US claim with regard to Article 64.I of the Act concerning the use of the 
highest facts available margin for producers which fail to  appear. In similar vein, we consider that the use 
of facts available to make determinations with regard to exporters or producers that fail to appear could as 
such be permitted by Article 6.8 of the AD Agreement.  We wish to emphasise that this will at least be the 
case if the investigating authority has first made a reasona ble effort to ensure that all interested parties are 
informed of the information required, and if a copy  of the application and a notice of the initiation has 
been sent to all exporters that an objective investiga ting authority can reasonably be considered to have 
knowledge of, as required by Article 6.1.3 and 12.1 of the AD Agreement.211  Indeed, in case a party is 
informed of the initiation, is requested to provide information or is sent a questionnaire, but does not 
respond and does not take part in the investigation, we consider that Article 6.8 of the AD Agreement 
would clearly allow the authority to use the facts av ailable.  However, and for the same reasons as set 
forth above, we are of the view that a rule which pr ovides for the use of the hi ghest margin based on the 
facts available in each case of a failure to appear is not  consistent with the requirement that the facts used 
to replace the missing data should be the best and most appropriate information available.  To 
indiscriminately require the use of the highest margin even if completely unrelated to the exporter which 
failed to appear, does, in our view, not comply with th is requirement.  We thus find that Article 64.I of the 
Act is inconsistent with Article 6. 8 and paragraphs 1, 3, 5 and 7 of Annex II of the AD Agreement.    
                                                                                                                                                                     
customs returns, and from the information obtained from other interested parties during the 
investigation.  It is clear, however, that if an in terested party does not cooperate and thus relevant 
information is being withheld from the authorities, this situation could lead to a result which is 
less favourable to the party than if the party did cooperate. 
209  See para. 7.166 above.  
210  This is not, in our view, inconsistent with any view  that it is conceivable that in a particular case, the 
"best information available" leads to use of the highest marg in.  What is however inconceivable is that this can be 
predetermined to be always  the "best information available".    
211 We note that, in Mexico, the situation covered by the "failure to appear" in Article 64.I of the Act would 
seem to cover also that of any interested party which, even  when not requested to provide information, fails to make 
itself known to the investigating authority so that it can be examined individually. We are mindful of the fact that Article 64 of the Act was revised following the conclusion of  the rice investigation and that this investigation can 
thus not be considered as evidence of the application of Article 64 of the Act. Nevertheless, Mexico does not contest 
that the category of "producers that fail to appear" in Artic le 64.I of the Act is to be understood to cover all foreign 
producers or exporters that do not provide information, irre spective of the fact that no effort was undertaken by the 
authority to contact such exporters and to inform them of  the information required for the determination. According 
to Mexico, the investigating authority is not required to take an active approach, and complies with all the 
obligations under the AD Agreement by providing questionnaires  to the exporters or foreign producers listed in the 
application and to those that come forward out of their own initiative because they have learned about the initiation. As we stated earlier, we are of the view, that an investigating authority which fails to ensure that all interested parties are given notice of the information that is required of them and ample opportunity to present all evidence they 
consider relevant to their case, is not entitled to make determinations on the basis of the facts available. In our view, 
such exporters cannot be considered to have failed to provi de necessary information, since they were never properly 
informed of the information they were requested to provide. WT/DS295/R 
Page 166   7.240  Finally, Article 64.III of the Act requires the appli cation of the highest margin based on the facts 
available to producers which did not export during the period of investigation.   
7.241  Once again, and assuming arguendo  that a margin of dumping for non-shipping exporters is 
governed by the terms of Article 6.8 of the AD Agreement 
212we are of the view that the problem with 
Article 64.III of the Act consists of the indiscriminat e requirement to use the hi ghest margin based on the 
facts available rather than the margin  that results from the use of the best  information available.  In effect, 
Article 64 of the Act does not simply provide for the u se of facts available in order to calculate a margin 
of dumping for the non-shipping exporter.  It rather requires that for all non-shipping exporters, regardless 
of the circumstances of the case, the highest margin found on the basis of the facts available is to be 
applied to such non-shipping exporters.  For the reasons  set forth above, we are of the view that such a 
rule that requires the authority to always apply the highest margin is inconsis tent with Article 6.8 and 
paragraphs 1, 3, 5 and 7 of Annex II of the AD Agreement.  
7.242  In sum, and for the reasons set forth above, we find that Article 64 of the Act which requires the 
authority to determine "a countervailing duty on the basis of the highest margin of price discrimination or subsidization" obtained from the facts available in the th ree situations described in Article 64 of the Act to 
be inconsistent with Article 6.8 of the AD Agreemen t and paragraphs 1, 3, 5 and 7 of Annex II of the 
AD Agreement, and Article 12.7 of the SCM Agreement.
213  In light of our findings, we do not consider it 
necessary for the resolution of this dispute to make any rulings on the US claims with regard to violations 
of Article 9.3, 9.4, 9.5 of the AD Agreement, and Article 19.3 of the SCM Agreement.  
3. Claim 16:  Article 68 of Mexico’s Foreign Trade Act is inconsistent "as such" with 
Articles 5.8, 9.3, and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.243  The United States argues that Article 68 of the Ac t requires the investigating authority to conduct 
reviews of final anti-dumping and c ountervailing measures with respect to companies that were found not 
to have been dumping or not to have received count ervailable subsidies during the original period of 
investigation.  The United States submits that this is clearly inconsistent with the explicit requirement of 
Article 5.8 of the AD Agreement and 11.9 of the SCM Agreement to terminate the investigation 
immediately in case no margin of dumping or c ountervailable subsidy was found to exist.  
7.244  In addition, the United States argues that Article 68 of the Act is inconsistent with the AD and 
SCM Agreement as it requires exporters or producers requesting a review to demonstrate that the sales during the review period were "representative", wh ile no such additional requirement for obtaining a 
review exists in Articles 9.3 and 11.2 of the AD Agreement and 21.2 of the SCM Agreement.  In the view of the United States, these provisions do not permit the introduction of such an additional requirement.  The United States therefore submits that by requiring the authority to deny a review unless a party demonstrates that its exports were "representative", Artic le 68 of the Act is inconsistent as such with the 
AD Agreement and the SCM Agreement.    
(ii) Mexico 
7.245  Mexico rejects the US allegations of inconsistenc y of Article 68 of the Act with Articles 5.8, 9.3 
and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement.  First, Mexico argues 
                                                     
 
212 See footnote 158. 
213 For the reasons given in paras. 7. 224 and 7.225, we reject the Mexican defence on the basis of the direct 
effect of international agreements in Mexican law.  WT/DS295/R 
 
  that Article 5.8 of the AD Agreement and 11.9 of the SCM Agreement do not apply to reviews but only to original investigations.  Mexico therefore consider s that the US argument that Article 68 of the Act 
violates Articles 5.8 of the AD Agreement and 11.9 of the SCM Agreement in subjecting to administrative reviews exporters for whom no margin  of dumping or subsidization was determined is 
without merit since the allegedly infringed Articles do not even apply in the case of reviews.  Furthermore, Mexico is of the view that Article 5.8 of the AD Agreement and Article 11.9 of the SCM 
Agreement do not require the exclusion of an exporter from the measure and therefore from being subjected to reviews simply because no margin of dumpi ng was established in the original investigation.  
According to Mexico, Article 3.3 of the AD Agreem ent and 15.3 of the SCM Agreement clearly show 
that an investigation is only to be terminated in  case the margin of dumping calculated on a country-wide 
basis rather than a firm -specific basis is below de minimis .  In any case, Mexico is of the view that a 
review does not imply the imposition of a duty and thus does not negatively affect the exporters 
concerned.  Such reviews are thus similar to t hose provided in Article 9.3.1 of the AD Agreement 
concerning the determination of final liab ility for payment of anti-dumping duties.   
7.246  Mexico further submits that Article 68 of the Act does not impose a "representativeness" 
requirement as a condition for the investigating authority  to conduct reviews such as those provided for in 
Article 21.2 of the SCM Agreement and Articles 9.3 and 11.2 of the AD Agreement.  According to Mexico, there are no clear provisions in the AD Agr eement or SCM Agreement as to the procedures for 
conducting administrative reviews and new exporter review s, and the "representativeness" requirement of 
Article 68 of the Act is merely a means of ascertaining that the export volumes reported in administrative review or new shipper reviews reflect normal volumes that are representative of the sales policies of exporters seeking such reviews.  Mexico asserts that an exporter is not required to show "representative 
volume of sales" in order to obtain the initiation of a review, but that an interested party will need to 
demonstrate such representativeness in order to be able to determine a margin of dumping for that 
party.
214 In any case, according to Mexico, the United States fails to demonstrate that such a requirement 
is a sine qua non requirement for the initiation of such reviews.215  
7.247  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements. According to Mexico, the Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.248  The United States makes two claims concerning Article 68 of the Act. First, the United States 
argues that by subjecting exporters for which the orig inal investigation showed a margin of dumping or 
subsidization below de minimis  to administrative reviews, Article 68 of the Act is inconsistent with 
Article 5.8 of the AD Agreement and 11.9 of the SCM Agreement. Second, the United States submits that 
by requiring exporters requesting a review to show that their volume of sales during the review period 
was representative, Article 68 of the Act is in breach  of Articles 9.3 and 11.2 of the AD Agreement and 
Article 21.2 of the SCM Agreement.  
                                                      
214 Mexico First Answers to Questions, question 31. 
215 Mexico asserts that this is clear from a recent review on imports of dessert apples from the United States 
(Exhibit MEX-13). WT/DS295/R 
Page 168   7.249  We will first examine the US claim of violation of Article 5.8 of the AD Agreement and 
Article 11.9 of the SCM Agreement.  Article  5.8 of the AD Agreement provides as follows
216:  
5.8 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 in jury 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 cen t, 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 less 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 importing Member collectively account for more than 7 per cent of imports of the like product in the importing Member. 
7.250  In turn, Article 68 of the Act in pertinent part provides as follows: 
Final countervailing duties shall be reviewed  annually at the request of a party or 
ex officio by the Ministry at any time, as shall imports from producers for whom no positive margin of price discrimination or subsidization was determined in the investigation. . . 
7.251  Article 68 of the Act thus requires the review of producers for which during the original 
investigation it was determined that they had not been engaged in dumping practices or had not received 
any subsidies.  In our view, and for the reasons set forth above when discussing the US claims concerning 
the inclusion in the Anti-dumping measures on rice of the two exporters found not to have been dumping 
during the period of investigation, we find that Artic le 5.8 of the AD Agreement requires the termination 
of the investigation with regard to such exporters found not to ha ve been dumping above de minimis  
levels, and requires that such expor ters be excluded from the measures imposed.  The logical consequence 
of such an exclusion of producers found not to have been dumping is that they can not subsequently be 
subjected to administrative or changed circumstances reviews.  While we agree with Mexico that the 
specific requirements concerning de minimis  do not apply in the case of reviews of the duties imposed, 
this does not imply that Article 68 of the Act dealing with reviews cannot be inconsistent with Article 5.8 
of the AD Agreement insofar as it impos es the review of measures with regard to producers to which such 
measures should not have been applied in the first place.  The possibility of reviewing the zero per cent 
duty margin imposed on such non-dumping exporters also reveals the important meaning of the imposition of such a zero per cent duty which, in spite of its appearance, does not equal the termination of 
the investigation as required by Article 5.8 of the AD Agreement.  We therefore find that Article 68 of the Act is as such inconsistent with Article 5. 8 of the AD Agreement.  For the same reasons, mutatis 
mutandis , Article 68 of the Act is in breach of Article 11.9 of the SCM Agreement. 
7.252  The second claim of the United States with rega rd to Article 68 of the Act concerns the 
consistency with Article 9.3 and 11.2 of the AD Agreement and 21.2 of the SCM Agreement of the 
                                                     
 
216 Article 11.9 of the SCM Agreement provides as follows: 
11.9 An application under paragraph 1 shall be  rejected and an investigation shall be 
terminated promptly as soon as the authorities con cerned are satisfied that there is not sufficient 
evidence of either subsidization or of injury to justify proceeding with the case.  There shall be 
immediate termination  in cases where the amount of a subsidy is de minimis , or where the volume 
of subsidized imports, actual or potential, or the injury, is negligible.  For the purpose of this 
paragraph, the amount of the subsidy shall be considered to be de minimis  if the subsidy is less 
than 1 per cent ad valorem.   WT/DS295/R 
 
  "representativeness" requirement which, according to th e United States, is imposed by Article 68 of the 
Act. Article 68 of the Act in pertinent part reads as follows: 
The party requesting a review shall satisfy the Ministry that the volume of exports to 
Mexico during the review period is representative.
217 
7.253  We consider that Article 68 of the Act clearly imposes as a requirement to obtain an 
administrative, i.e. duty assessment review, or a changed circumstances review a showing by the party requesting such reviews that its volume of exports to  Mexico during the review period was representative. 
 Article 68 of the Act, by using such mandatory wo rding that the party requesting such reviews "shall 
satisfy" the Ministry leaves little to be desired in terms of clarity of what is required of a party requesting 
reviews.  In fact, Mexico confirmed as much in its an swer to a question from the panel, when it stated that 
an exporter is not required to show a representative volume of sales in order to obtain the initiation of a 
review, but that "in the course of a review, an interested party will need to demonstrate such 
representativeness in order to be able to dete rmine a margin of dumping for that party".
218  In other words, 
we understand Mexico to confirm that while a review may be initiated without a showing of 
representativeness, the duties will not be reviewed for any party that fails to satisfy the authority that the 
volume of exports during the review period was repr esentative.  We do not consider meaningful the 
distinction drawn by Mexico between the right to obtai n the initiation of a review and the right to have the 
duties reviewed, as an initiation of review without chance of success because of a failure to demonstrate 
representative volume of exports is meaningless.  
7.254  The question before us is thus whether such a requirement to show representative volume of 
exports is consistent with Article  9.3 and 11.2 of the AD Agreement and 21.2 of the SCM Agreement.  
7.255  Article 9.3 of the AD Agreement provides as follows: 
9.3 The amount of the anti-dumping duty sha ll not exceed the margin of dumping as 
established under Article 2. 
9.3.1 When the amount of the anti-dumping duty is assessed on a retrospective basis, 
the determination of the final liability fo r payment of anti-dumping duties shall take 
place as soon as possible, normally within 12 months, and in no case more than 18 months, after the date on which a request for a final assessment of the amount of the anti-dumping duty has been made.
20  Any refund shall be made promptly and normally in 
not more  than 90 days following the determ ination of final liability made pursuant to 
this sub-paragraph.  In any case, where a refund is not made within 90 days, the 
authorities shall provide an explanation if so requested. 
9.3.2 When the amount of the anti-dumping duty is assessed on a prospective basis, 
provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than  18 months, after the date on which a request  for a refund, duly supported by evidence, 
has been made by an importer of the product subject to the anti-dumping duty.  The refund authorized should normally be made w ithin 90 days of the above-noted decision. 
9.3.3 In determining whether and to what  extent a reimbursement should be made 
when the export price is constructed in accordance with paragraph 3 of Article 2, 
                                                     
 
217 See Mexico’s 2003 WTO Notification  (G/ADP/N/1/MEX/1/Suppl.2), at page 9.  The equivalent Spanish 
text reads: “La solicitante de una revisión deberá demostra r ante la Secretaría que el volumen de las exportaciones 
realizadas a México durante el perí odo de revisión es representativo.”  Id. (Spanish) at page 10. 
218 Mexico First Answers to Questions, question 31. WT/DS295/R 
Page 170   
authorities should take account of any change  in normal value, any change in costs 
incurred between importation and resale, and any movement in the resale price which is duly reflected in subsequent selling prices, and should calculate the export price with no 
deduction for the amount of anti-dumping duties paid when conclusive evidence of the 
above is provided. 
20It is understood that the observance of the time- limits mentioned in this subparagraph and in 
subparagraph 3.2 may not be possible where the produc t in question is subject to judicial review 
proceedings. 
7.256  Article 11.2 of the AD Agreement provides that: 
11.2 The authorities shall review the need for the continued imposition of the duty, 
where warranted, on their own initiative or, pr ovided that a reasonable period of time has 
elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive in formation substantiating the need for a 
review.
21  Interested parties shall have the ri ght to request the authorities to examine 
whether the continued imposition of the duty is  necessary to offset dumping, whether the 
injury would be likely to continue or recur if  the duty were removed or varied, or both.  
If, as a result of the review under this para graph, the authorities determine that the 
anti-dumping duty is no longer warranted, it shall be terminated immediately.219 
21A determination of final liability for paymen t of anti-dumping duties, as provided for in 
paragraph 3 of Article 9, does not by itself constitute  a review within the meaning of this Article. 
7.257  It is clear that these provisions do not as such require a showing of representativeness of sales 
volumes in order for a duty to be reviewed.  With  regard to duty assessment or administrative reviews 
Article 9.3 of the AD Agreement clearly states that  the amount of the anti-dumping duty shall not exceed 
the margin of dumping as established under Article 2.  Therefore, Article 9.3.2 states that provision shall 
be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  The only condition imposed by Article 9.3.2 is that a requ est for refund shall be duly supported by evidence.  
In our view, the "evidence" referred to in this cont ext of determining final liability for the product relates 
to the information required to determine a margin of  dumping in line with Article 2 of the AD Agreement, 
i.e. normal value and export price information.  Artic le 9.3 thus does not require  the exporters concerned 
to first demonstrate that the sales made during the re view period were "representative" in order for the 
authority to be obliged to review the duties and ref und the duties paid in excess of the margin of dumping. 
Neither does Article 2 of the AD Agreement provide th at the number of export sales of an exporter has to 
be "representative" for the authority to be able to determine a margin of dumping for this exporter.  It 
would in our view be inconsistent with the Agreemen t to refuse to refund the duties paid in excess of the 
margin of dumping, because only a small number of such export sales were made.  Article 9.3.2 of the AD Agreement requires that any duty paid in excess of the margin of dumping is to be refunded, and the 
number of export sales is thus completely irrelevant in  this respect.  We therefore conclude that no such 
                                                     
 
219 Article 21.2 of the SCM Agreement similarly provides as follows: 
21.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that  a reasonable period of time has elapsed since 
the imposition of the definitive countervailing dut y, upon request by any interested party which 
submits positive information substantiating the need fo r a review.  Interested parties shall have the 
right to request the authorities to examine whether the continued imposition of the duty is necessary to offset subsidization, whether the inju ry would be likely to continue or recur if the 
duty were removed or varied, or both.  If, as a result of the review under this paragraph, the 
authorities determine that the countervailing duty is no longer warranted, it shall be terminated 
immediately.   WT/DS295/R 
 
  requirement can be imposed on the exporter when it is requesting the refund of the duties paid in excess of 
the margin of dumping through an administrative review.  
7.258  With regard to changed circumstances review, Article 9.3 and 11.2 of the AD Agreement 
similarly does not include a requirement of "representa tiveness" in order for the exporter to be entitled to 
request a changed circumstances review.  The only requirements imposed by Article 11.2 of the AD Agreement on the request by an exporter for such a review are that a reasonable period of time has 
lapsed, and that the interested party requesting the review submits positive information substantiating the 
need for a review.  As the second sentence of Ar ticle 11.2 of the AD Agreement makes clear, such 
positive information relates to whether the conti nued imposition of the duty is necessary to offset 
dumping, whether the injury would be likely to continue  or recur if the duty were removed or varied, or 
both.  If those conditions are met, Article 11.2 of the AD Agreement stipulates that the authorities shall 
review the need for the continued imposition of the duty. In our view, Article 11.2 of the AD Agreement 
thus requires an authority to review the need fo r the continued imposition of the duty in case these two 
requirements are met. 
7.259  Article 68 of the Act requires as a rule  that each time  an interested party is unable to show that 
volume of exports during the review period was representativ e, such a review is to be denied.  This in our 
view is inconsistent with the Agreement.  Under a changed circumstances review of Article 11.2 of the 
AD Agreement, the authority examin es whether there is continued need  for the measure and whether the 
duty is to be varied or removed.  A situati on could be envisaged where the positive information 
substantiating the need for a review that the interested  party is to adduce in support of its request relates 
only to its domestic sales and the normal value side of the dumping margin.  A possible example could be a case where an exporter requests a review based on an important and dramatic drop in the normal value for the product due to a change in the cost structur e of the company for example.  This will have an 
obvious effect on the dumping margin and may thus warrant a review that leads to the duty being 
removed or varied.  The change in circumstances is unrel ated to export side of the equation.  An interested 
party is entitled to a changed circumstances review under Article 11.2 of the AD Agreement and 21.2 of 
the SCM Agreement, if it submits positive information substantiating the need for a review.  What such 
positive information relates to will depend from case to  case, and such positive information does not, in 
our view, necessarily include that a representative number of exports sales were made.  We consider that 
by requiring the authority to reject a review each time the volume of export sales was not representative, even in cases where the change in ci rcumstances is unrelated to the export price, Article 68 of the Act 
requires the authority to reject reviews in a manne r which is inconsistent with Article 11.2 of the 
AD Agreement.
220  
7.260  We therefore find that by imposing this additional requirement that interested parties requesting a 
review are required to always satisfy the authority that the volume of the export sales was representative, 
Article 68 of the Act is as such inconsistent w ith Articles 9.3 and 11.2 of the AD Agreement and, 
mutatis mutandis , Article 21.2 of the SCM Agreement.221   
                                                      
220 We acknowledge that the representativeness of the e xport sales can in certain situations be a relevant 
factor in determining whether it is appropriate to remove or vary the duty.  A showing of such representativeness 
may thus be requested as part of the "positive informati on substantiating the need for a review" which is to be 
submitted by the interested party requesting the review.  Wh ether that is so will depend on the circumstances of each 
case. In our view, the rule of Article 68 of the Act fails  to take these specific circumstances into account.    
221 For the reasons set forth in paras.  7.224 and 7.225, we reject Mexico's defence based on the direct effect 
of international treaties in Mexican law. WT/DS295/R 
Page 172   
4. Claim 17:  Article 89D of Mexico’s Foreign Trade Act is inconsistent "as such" with 
Article 9.5 of the AD Agreement and Article 19.3 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.261  The United States asserts that Article 89 D of the Ac t restricts the ability of interested parties to 
obtain expedited reviews in a manner which is incons istent with Article 9.5 of the AD Agreement and 
Article 19.3 of the SCM Agreement.  According to the United States, Article 89D of the Act requires a 
producer to demonstrate that the volume of exports during the review period was "representative", while 
no such requirement exists in Articles 9.5 of the AD Agreement and 19.3 of the SCM Agreement.  In 
addition, under the Act such expedited reviews are available to producers only, while the AD Agreement 
and the SCM Agreement provide for such revi ews for both producing a nd non-producing exporters. 
(ii) Mexico 
7.262  Mexico argues that Article 89D of the Act is  not inconsistent with Article 9.5 of the 
AD Agreement or Article 19.3 of the SCM Agreement.  First, Mexico is of the view that even if 
Articles 9.5 of the AD Agreement and 19.3 of the SCM Agreement do not do so expressly, it is in light of 
the context and purpose of these provisions only logical that the authorities require that the review be based on a representative amount of exports, as only this will enable the authorities to conduct an 
adequate price comparison.  Second, Mexico asserts that although Article 89D of the Act mentions only 
"producers", the text of Article 89D of the Act has to  be read in combination with the WTO Agreements 
themselves.  Mexico asserts that Article 89D of th e Act confers a right to a new shipper review under 
certain circumstances to both producers and exporters as is evidenced by the re solution initiating the new 
shipper procedure concerning imports of apples from the United States, paragraphs 3 and 32 of which 
show that the new shipper review was initiated at th e request of an exporting firm which was a trading 
enterprise.
222 Moreover, Mexico argues, Article 47 of the Act's Regulations also allows new shipper 
reviews for non-producing enterprises, i.e. ente rprises devoted solely to exportation.   
7.263  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements.  According to Mexico, th e Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.264  The US claim concerns Article 89D of the Act which provides as follows: 
Article 89D – Producers of goods subject to a final countervailing duty who exported no 
such goods during the period under investigati on in the proceedings that gave rise to 
such duty may request the Ministry to initiate  a procedure for new exporters with a view 
to assessing individual margins of price discrimination, provided that: 
I. Their exports to the national territo ry of the goods subject to countervailing 
duties were subsequent to the period under investigation in the proceedings that gave rise 
to the countervailing duty.  The requesting party shall satisfy the Ministry that the 
volume of exports during the period of review is representative ;  and 
                                                      
222 Mexico Second Submission, para. 230. Exhibit MEX – 12.  WT/DS295/R 
 
  
II. They show that they are not related in any way to the producers or exporters in the exporting country determined to be subject to a specific countervailing duty. (emphasis added) 
7.265  According to the United States Article 89D of the Act provides for a requirement of 
"representativeness" that is not provided for by Article 9.5 of the AD Agreement or 19.3 of the 
SCM Agreement. Article 9.5 of the AD Agreement provides as follows: 
If a product is subject to anti-dumping duties in an importing Member, the authorities 
shall promptly carry out a review for the purpose of determining individual margins of dumping for any exporters or producers in th e exporting country in question who have 
not exported the product to the importing Memb er during the period of investigation, 
provided that these exporters or producers can s how that they are not related to any of 
the exporters or producers in the exporting country who are subject to the anti-dumping 
duties on the product.  Such a review shall be initiated and carried out on an accelerated basis, compared to normal duty assessment and review proceedings in the importing Member.  No anti-dumping duties shall be le vied on imports from such exporters or 
producers while the review is being carried out.  The authorities may, however, withhold 
appraisement and/or request guarantees to ensu re that, should such a review result in a 
determination of dumping in respect of su ch producers or exporters, anti-dumping duties 
can be levied retroactively to the date of the initiation of the review. 
7.266  In our view, this provision clearly does not subject the right to an expedited new shipper review to 
a showing of a "representative" volume of export sales as does Article 89D of the Act.  Article 9.5 of the 
AD Agreement provides that the author ities shall promptly carry out a review, provided that the exporters 
or producers who have not exported the product subject  to a duty during the period of investigation can 
show that they are not related to any of the e xporters or producers in the exporting country who are 
subject to the anti-dumping duties on the product.  In su m, in case a producer or exporter which (i) has not 
exported the product to the country concerned during the period of investigation and (ii) is not related to 
an exporter or producer already subject to the duty re quests a new shipper review, the authority is required 
to promptly carry out such a review. Article 89 D of  the Act on the other hand provides that an exporter 
may request an expedited review in case it (i) has not exported during the period of investigation, (ii) is 
not related to an exporter or producer that is already subject to a duty, and (iii) can demonstrate that the 
volume of exports during the review period is representativ e.  We consider that to the extent that Article 
89 D of the Act subjects the entitlement to a prompt review to a showing of representative volumes of export sales, it is inconsistent with Article 9.5 of the AD Agreement, which does not allow an authority to deny a request for reasons other than the two mentione d above and explicitly set forth in Article 9.5 of the 
AD Agreement.  
7.267  Article 19.3 of the SCM Agreement provides as follows: 
19.3 When a countervailing duty is imposed in respect of any product, such 
countervailing duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except as to  imports from those sources which have 
renounced any subsidies in question or from which undertakings under the terms of this 
Agreement have been accepted.  Any exporter whose exports are subject to a definitive 
countervailing duty but who was not actually inve stigated for reasons other than a refusal 
to cooperate, shall be entitled to an expedite d review in order that the investigating 
authorities promptly establish an individual countervailing duty rate for that exporter. 
7.268  Article 19.3 of the SCM Agreement thus similarly pr ovides for the right to an expedited review of 
an exporter whose exports are subject to a defin itive duty but who was not actually investigated for 
reasons other than a refusal to cooperate.  Article 19.3 of the SCM Agreement does not subject this right WT/DS295/R 
Page 174   to any other conditions than the fact that the exporte r's product is subject to a definitive duty and that he 
was not actually investigated for reasons other than a refusal to cooperate.  For reasons, similar to those 
expressed earlier, we consider that Article 89 D of th e Act is inconsistent with Article 19.3 of the SCM 
Agreement as it imposes an additional requirement not provided for in Article 19.3 of the SCM Agreement for the exporters to be entitled to an expe dited review.  The mandatory language of Article 89 
D of the Act inevitably implies that an authority w ill reject a request for an expedited review by an 
exporter whose product is subject to a countervailing duty but who was not actually investigated for a 
reason other than a refusal to cooperate in case no re presentative volume of export sales were made during 
the period of review which is inconsistent with the clear obligation in Article 19.3 of the SCM Agreement 
to provide for such reviews in such circumstances.  
7.269  We therefore find that Article 89D of the Act is  as such inconsistent with Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement.
223  In light of our findings, we do not consider it 
necessary for the resolution of this dispute to consider  the US arguments based on the fact that Article 89 
D of the Act only talks about producers, while Article 9.5 of the AD Agreement entitles both exporters and producers to an expedited review.  In any case, we not e that Mexico clarified that  it is of the view that 
the use of the term producers does not imply that e xporters are not similarly entitled to such reviews.
224 225  
5. Claim 18:  Article 93V of Mexico’s Foreign Trade Act is inconsistent "as such" with 
Article 18.1 of the AD Agreement and Article 32.1 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.270  The United States argues that Article 93V of th e Act provides for the imposition of fines for 
importers which enter products subject to anti-dumpi ng or countervailing duty investigations while such 
investigations are underway.  This, according to the United States, is a specific action against dumping or 
against subsidies which is not provided for by the AD or SCM Agreement and is therefore inconsistent 
with Articles 18.1 of the AD Agreement and 32.1 of the SCM Agreement.  The United States submits that there is a "clear, direct and unavoidable connecti on" between the determination that the constituent 
elements of dumping or subsidization exist and the im position of a fine under Article 93V of the Act.  In 
the view of the United States, it is therefore a "sp ecific action" relating to dumping or subsidization, 
which is "against" dumping/subsidization since it has an adverse bearing on dumpi ng or subsidization and 
creates an incentive to terminate su ch practices.  As the fines envisaged under Article 93 V of the Act 
constitute a "specific action against dumping/subsidi zation" which is not contemplated in the AD and 
SCM Agreement, as it does not take the form of a definitive anti-dumping duty, a provisional measure or price undertaking, Article 93V of the Act is incons istent with Article 18.1 of the AD Agreement and 
Article 32.1 of the SCM Agreement.
226  
                                                      
223 For the reasons set forth in paras.  7.224 and 7.225, we reject Mexico's defence based on the direct effect 
of international treaties in Mexican law.   
224 In support of its statement, Mexico submitted a resolution initiating the new shipper procedure 
concerning imports of apples from the United States, paragr aph 3 and 32 of which show that the new shipper review 
was initiated at the request of an exporting firm which was a trading enterprise rather than a producer of the subject 
product. Mexico Second Submission, para. 230. Exhibit MEX – 12. 
225 Mexico First Answers to Questions, question 33. 
226 The United States refers to a detailed discussion of the meaning of a "specific action against 
dumping/subsidization" in the report of the Appellate Body in the US – Offset Act (Byrd Amendment)  case, paras. 
224 -269.     WT/DS295/R 
 
  (ii) Mexico 
7.271  Mexico submits that the United States failed to establish any violation with the AD Agreement or 
the SCM Agreement of this provision of the Mexican law which has to be read in light of Mexico's 
international obligations under the WTO Agreements.  In addition, the United States failed to adduce 
evidence of the interpretation of this provision by the domestic courts and the doctr ine, or its application 
by the authorities.  In the absence of such proof, the la w has to be assumed to be consistent with Mexico’s 
obligations under the WTO Agreements.  In addition, Mexico asserts that Article 93V of the Act does not 
oblige Economía to impose fines but merely authorises it to do so.  Article 93V of the Act is therefore not 
as such inconsistent with Articles 18.1 of the AD Agreement and 32.1 of the SCM Agreement.   
7.272  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements.  According to Mexico, th e Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.273  The US claim concerns the consistency of Artic le 93 V of the Act with Articles 18.1 of the 
AD Agreement and 32.1 of the SCM Agreement.  Article 93V of the Act  provides in pertinent part that: 
It shall be the responsibility of the Ministry to punish the following infringements: (V) Importation, once the investigation is under way, of identical or like goods in 
significant quantities, as compared to total imports and domestic production, within a relatively short period, when in the light of the timing and the volume of the imports and other circumstances such imports are consider ed likely to undermine the remedial effect 
of the countervailing duty:  by a fine equivalent to the amount resulting from the application of the final countervailing duty to the imports entered for up to five months 
following the date of initiation of the investig ation.  This penalty shall only be applied 
once the Ministry has issued the resolution determining the final countervailing duties . . 
.  
7.274  Article 18.1 of the AD Agreement in turn provides that: 
18.1 No specific action against dumping of  exports from another Member can be 
taken except in accordance with the provisi ons of GATT 1994, as interpreted by this 
Agreement.
24 
24This is not intended to preclude action under other relevant provisions of GATT 1994, as 
appropriate. 
7.275  Article 32.1 of the SCM Agreement similarly provides as follows:  
32.1 No specific action against a subsidy of another Member can be taken except in 
accordance with the provisions of GATT 1994, as interpreted by this Agreement.56 
56This paragraph is not intended to preclude acti on under other relevant provisions of GATT 1994, 
where appropriate. 
7.276  In our view, the only specific action against dumpi ng that is in accordance with the provisions of 
the GATT 1994 as interpreted by the AD Agreement are those set forth in the AD Agreement and consist WT/DS295/R 
Page 176   of definitive anti-dumping duties, provisional measures and price undertakings.
227  The same holds true 
for specific action against a subsidy, for which the SCM Agreement provides as the only remedies the 
imposition of definitive countervailing duties, provisional measures or an undertaking.  It is clear therefore that the imposition of a fine is not permitted in case it can be demonstrated that it is imposed as a specific action against dumping or subsidization.  
7.277  The important question for us to answer remain s whether Article 93V of the Act is a specific 
action against dumping or subsidization such that th e imposition of fines would be inconsistent with 
Article 18.1 of the AD Agreement and 32.1 of the SCM Agreement.  We concur with the following view 
expressed by the Appellate Body in the US – CDSOA 2000  case: 
"Accordingly, a measure that may be take n only when the constituent elements of 
dumping or a subsidy are present, is a "specific action" in response to dumping within the meaning of Article 18.1 of the  Anti-Dumping Agreement   or a "specific action" in 
response to subsidization within the meaning of Article 32.1 of the  SCM Agreement .  In 
other words, the measure must be inextricably linked to, or have a strong correlation with, the constituent elements of dumping or of a subsidy.  Such link or correlation may, as in the 1916 Act, be derived from the text of the measure itself."
228 
7.278  In our view, the imposition of fines under Article 93V of the Act is inextricably linked to, and 
strongly correlated with, a determination of dumping, as defined in Article VI:1 of the GATT 1994 and in 
the Anti-Dumping Agreement, or a determination of  a subsidy, as defined in the SCM Agreement.  
Article 93V of the Act provides for the possibility to impose fines in case (i) a product identical or similar 
to the subject product is being imported;  (ii) after th e investigation has been initiated;  (iii) in significant 
quantities within a relatively short period of time;  and (iv) such imports are likely to undermine the 
remedial effect of the countervailing duty.  The level of  the fine is determined by the amount of the final 
duty.  Such fines may only be imposed following a fina l determination and may be applied to imports that 
entered the country for up to five months following the da te of initiation of the investigation.  As the text 
of Article 93V of the Act clearly shows, impor ters may be fined only once anti-dumping duties or 
countervailing duties have been imposed, and the fi nes may be collected only  pursuant to an anti-
dumping duty order or countervailing duty order.  In  addition, and as an anti-dumping duty order or a 
countervailing duty order can be imposed only followi ng a determination of dumping or subsidization 
respectively, we consider that there is a cl ear, direct and unavoidable connection between the 
determination of dumping and subsidi zation and the imposition of fines under Article 93 V of the Act.  In 
sum, we consider that Article 93V of the Act fin es may be imposed only following a determination that 
the constituent elements of dumping or subsidization are present, and such fines therefore constitute a 
"specific action" related to dumping or a subsidy within the meaning of Article 18.1 of the AD Agreement 
                                                      
227 We find support for this view in the Appellate Body Report in the US – 1916 Act  case in which the 
Appellate Body found that Article VI of the GATT 1994, in pa rticular Article VI:2, read in conjunction with the  
AD Agreement,  limits the permissible responses to dumpi ng to definitive anti-dumping duties, provisional measures 
and price undertakings: 
"137. As we have concluded above, Article  VI of the GATT 1994 and the  Anti-Dumping 
Agreement  apply to "specific action against dumping".  Article VI, and, in particular, 
Article VI:2, read in conjunction with the  Anti-Dumping Agreement, limit the permissible responses to dumping to definitive anti-dumpi ng duties, provisional measures and price 
undertakings.  Therefore, the 1916 Act is inconsis tent with Article VI:2 and the Anti-Dumping 
Agreement  to the extent that it provides for "specific action against dumping" in the form of civil and criminal proceedings and penalties. 138. With the caveat that Article VI:2 must be read together with the relevant provisions of the Anti-Dumping Agreement, we, therefore, ag ree with the conclusion of the Panel that: 
… by providing for the imposition of fines or imprisonment or for the recovery of treble damages, the 1916 Act violates Article VI:2 of the GATT 1994. " Appellate Body Report, US – 1916 Act , paras. 137 – 138, footnote omitted. 
228 Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 239.  WT/DS295/R 
 
  and of Article 32.1 of the SCM Agreement.  In addition, we find that by threatening to impose fines on anyone importing the product subject to an anti-dumpi ng investigation, Article 93V of the Act clearly 
provides for a specific action against dumping or subs idization which is not provided for in the AD or 
SCM Agreement. 
7.279  In fact we note that Mexico does not appear to ar gue the contrary but submits that Article 93V of 
the Act does not require the authority to impose such  fines but merely authorises it do so.  We do not 
consider this argument to be convincing.  When  a law like the Act provides that it "shall be the 
responsibility of the Ministry to punish the following infringements",
229 it does more than just dividing 
competences among the government, but rather stipul ates that fines are to be imposed in case the 
conditions of Article 93V of the Act are met and that it is up to the Ministry of Economy responsible also 
for the conduct of anti-dumping and countervailing duty investigations to impose such fines. 
7.280  For the reasons set forth above, we conclude that  Article 93V of the Act is inconsistent with 
Article 18.1 of the AD Agreement and 32.1 of the SCM Agreement.230 231  
6. Claim 19:  Articles 68 and 97 of Mexico’s Foreign Trade Act, and Section 366 of Mexico’s 
FCCP, are inconsistent "as such" with Articles 9.3, 9.5, and 11.2 of the AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement 
(a) Arguments of the Parties 
(i) United States 
7.281  The United States submits that Articles 68 and 97 of  the Act, and Section 366 of Mexico’s FCCP 
preclude the authorities from conducting a review of anti-dumping or countervailing duties while a 
judicial review, either national or bi-national befo re a NAFTA panel is ongoing.  This, the United States 
submits, is in clear violation of the entitlement to such  reviews of the duties as set forth in Articles 9.3 of 
the AD Agreement on administrative reviews, 9.5 of  the AD Agreement and 19.3 of the SCM Agreement 
on expedited reviews and 11.2 of the AD Agreem ent and 21.2 of the SCM Agreement on changed 
circumstances reviews.
232  
                                                      
229 The Spanish original of the law reads: " Corresponde a la Secretaría  sancionar las siguientes 
infracciones: ...". 
230 For the reasons set forth in paras.  7.224 and 7.225, we reject Mexico's defence based on the direct effect 
of international treaties in Mexican law.   
231 In fact we note that Article 93 V of the Act appears to be aiming to remedy a situation of injury which is 
difficult to repair caused by massive imports entering the country in a relatively short period of time following the 
initiation of the investigation but prior to the imposition of any measures. A very similar situation is addressed in 
Article 10.6 of the AD Agreement and Article 20.6 of the SCM Agreement which allow, under certain strict 
conditions, for the retroactive application of duties even pr ior to the application of provisional measures in such 
cases as an exception to the general rule of non-retroactive effect of duties. The retroactive application of duties is 
clearly a specific action against dumping as explicitly pr ovided for in the AD Agreement and the SCM Agreement. 
In light of the fact that the fines of Article 93V of the Act operate in the same manner and its amount is limited to the 
amount of the duty, such fines are obviously also a speci fic action against dumping or subsidization, but one not 
provided for in the AD Agreement or the SCM Agreement, and therefore inconsistent with Article 18.1 of the 
AD Agreement and Article 32.1 of the SCM Agreement. In any case, and even assuming arguendo  that there really 
is no practical difference between the retroactive app lication of anti-dumping or countervailing duties and the 
imposition of fines in an equal amount, it is clear that Artic le 93 V of the Act allows for the imposition of such fines 
without imposing the same requirements and conditions as are set forth in Article 10.6 of the AD Agreement and 
Article 20.6 of the SCM Agreement. However, as no claims we re made before us with regard to Article 10.6 of the 
AD Agreement and Article 20.6 of the SCM Agreement, we  do not need to make any rulings in this respect. 
232 The United States submits as evidence of the operation of the challenged provisions of the Act a letter of 
the investigating authority to a US Beef exporter in which th e authority rejects this exporter's request for a review of WT/DS295/R 
Page 178   7.282  The United States asserts that the harm is being exacerbated by the fact that Article 64 of the Act 
requires Economía to impose the highest facts availabl e margin on all exporters that did not receive an 
individual margin of dumping.  This implies that expor ters which requested that an individual margin of 
dumping be determined through an e xpedited review will not only have to wait until any possible judicial 
review has been finalized, but will in the meantime be  confronted with duties determined on the basis of 
the highest facts available margin of dumping.  
(ii) Mexico 
7.283  Mexico considers that the United States failed to  discharge its burden of proof by not adducing 
evidence on the alleged applicability of Section 366 of the FCCP to reviews of anti-dumping or countervailing duties.
233  Furthermore, Mexico considers that Articles 68 and 97 of the Act which provide 
that the duties only become definitive if no review is ongoing seek to ensure legal certainty.  The rule that 
no reviews will be undertaken until all legal challeng es are over thus provides a guarantee for exporters 
which are not obliged to pay any definitive duties until after such challenges are finalized, but may 
provide a guarantee of payment until su ch time as the duty becomes definitive.234  With regard to the 
alleged inconsistency with Article  9.3.2 of the AD Agreement, Mexico asserts that the authority will 
refund any duties paid in excess once the relevant proceedings have been completed and the duties 
imposed in the investigation are regarded as being definitive, and nothing in the challenged provisions 
states otherwise.  
7.284  As far as new shippers are concerned, Mexico is of the view that the challenged provisions do not 
preclude or expressly prohibit such new shipper reviews.   In addition, Mexico considers that there is no 
obligation under the AD/SCM Agreement that prohibits  a Member from not initiating such a procedure 
while challenge proceedings are under way.  Accordi ng to Mexico there is no obligation to immediately 
initiate such a procedure once an a pplication has been made, but rather only to carry out such review 
promptly (in the AD Agreement) or expeditiously (in the SCM Agreement), once initiated.  Therefore the provision that no review for new shippers will be in itiated until after a legal ch allenge is over, is not 
inconsistent with the AD Agreement or the SCM Agreement.  
7.285  Finally, Mexico submits that, in any case, by virt ue of Article 133 of its Constitution, treaties such 
as the WTO Agreements are self-executi ng and automatically applicable in  Mexican law, and as Article 2 
of the Act makes clear, the Act will be implemented in a manner which is congruent with the provisions 
of the WTO Agreements.  According to Mexico, th e Act thus does not mandate any WTO inconsistent 
action.  
(b) Analysis 
7.286  The US claim concerns a challenge of Article 366 of the FCCP and Articles 68 and 97 of the Act. 
Article 366 of the FCCP provide as follows: 
The process will be suspended, when a deci sion cannot be reached until a resolution in 
another matter is made, and in any other special case determined by the Law. 
7.287  We recall that Article 68 of the Act reads in pertinent part: 
                                                                                                                                                                    
 
the duties on the basis of the fact that such duties were not considered definitive as the duties had been challenged 
before a bi-national NAFTA panel. Exhibit US-20.   
233 Mexico considers relevant the fact that the evid ence introduced by the United States in support of its 
interpretation of the operation of the challenged provisions (Exhibit US-20) does not even mention Article 366 of the 
FCCP. 
234 Mexico First Submission, para. 302.  WT/DS295/R 
 
  
Final countervailing duties shall be reviewed annually at the request of a party . . . as 
shall imports from producers for whom no positive margin of price discrimination or subsidization was determined in the investigation. . . . 
7.288  Article 97 of the Act reads: 
Any interested party may, in respect of the resolutions and actions referred to in 
Article 94, paragraph (V), choose to reso rt to the alternative dispute settlement 
mechanisms . . . .  If such mechanisms are chosen: 
II. Only the resolution issued by the Mini stry as a result of the decision emanating 
from the alternative mechanisms shall be considered final; 
7.289  The United States argues that, in case a judicial re view of the measure is requested, before a 
domestic or bi-national body, the challenged provi sions require the authority to suspend all 
administrative, expedited and changed circumstances reviews.  In essence Mexico confirms that the 
provisions operate in this manner, but argues that this does not constitute a violation of any of the 
provisions alleged to have been violated.  Mexico mainly argues that as long as judicial review proceedings are ongoing, the duty has not become "definitive" and hence no reviews have to be 
undertaken, as such reviews all relate to products subject to "definitive" anti-dumping or countervailing 
duties.  The fact that this is th e way the Mexican system works is fu rther evidenced by the letter of the 
investigating authority to a US exporter of beef wh ich was requesting a review of the anti-dumping duties, 
in which the authority rejected such  request and stated the following: 
"in conformity with Articles 68 of the FTA  and 99, 100 and 101 of the Regulation, in 
order to be able to request a review it is required that the determination subject of the 
review be definitive, ... 
In this particular case, the final determ ination on bovine meat and edible offals, 
published in the Official Journal of 28 April 2000, is not of a definitive nature, as will be 
considered as final only the determination of the Secretaria which results from the 
decision taken by the mechanisms of alterna tive dispute resolution, in conformity with 
Article 97 II of the FTA".
235 
7.290  The question before us is thus whether a Memb er is permitted to reject request for reviews 
because of the fact that judicial review proceed ings have been initiated and for as long as such 
proceedings have not been finalized.  Article 68 of  the Act deals with administrative as well as changed 
circumstances reviews.  The obligations for Members with regard to such reviews are set forth in 
Articles 9.3 and 11.2 of the AD Agreement and Article 21.2 of the SCM Agreement.   
7.291  Article 9.3 of the AD Agreement r eads in pertinent part as follows: 
9.3 The amount of anti-dumping duty shall not exceed the margin of dumping as 
established under Article 2. 
9.3.2 When the amount of the anti-dumping duty is assessed on a 
prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product 
                                                     
 
235 We note that this translation is ours.  Exhibit US-20. WT/DS295/R 
Page 180   
subject to the anti-dumping duty.  The refund authorized should normally be made within 90 days of the above-noted decision. 
7.292  Article 11.2 of the AD Agreement reads as follows: 
The authorities shall review the need for the continued imposition of the duty, where 
warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review.  Interested parties shall have the right to request the authorities to  examine whether the 
continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the dut y were removed or varied, or both.  If, as a 
result, of the review under this paragraph, the authorities determine that the anti-dumping 
duty is no longer warranted, it shall be terminated immediately. 
7.293  Article 21.2 of the SCM Agreement provides that: 
The authorities shall review the need for the continued imposition of the duty, where 
warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive countervailing duty, upon request by any interested party which submits positive information substantiating the need for a review.  Interested parties shall have the right to request the authorities to  examine whether the 
continued imposition of the duty is necessary to offset subsidization, whether the injury would be likely to continue or recur if the dut y were removed or varied, or both.  If, as a 
result, of the review under this paragraph, the authorities determine that the countervailing duty is no longer warranted, it shall be terminated immediately. 
7.294  In sum, these provisions all require the authorities, in case a product is subject to a duty, to review 
the amount of and/or need for continued imposition of  such duties.  Article 9.3.2 of the AD Agreement 
states that provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping, and that a refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has b een made by an importer of the product subject to 
the anti-dumping duty.  Article 11.2 of the AD Agreement in turn states in equally unequivocal terms that the authorities shall review the need for the conti nued imposition of the duty, where warranted, on their 
own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any inte rested party which submits positive information 
substantiating the need for a review.  If, as a result,  of the review under this paragraph, the authorities 
determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately. 
7.295  We are of the view that a product is subject to a duty as soon as an investigation has been 
concluded and a final determination has been ma de deciding to impose anti-dumping or countervailing 
duties.  The term "duty" in the context of Articles 9.3 and 11.2 of the AD Agreement and 21.2 of the SCM Agreement is a clear reference to the duty that Members may impose at the end of an investigation 
which has led to an affirmative determination of dum ping /subsidization, injury and a causal link between 
the two.  Article 9 of the AD Agreement, and Article 19 of the SCM Agreement make a clear distinction between the imposition of the duty on the one hand and collection of the duty on the other.  As Article 9.1 of the AD Agreement states, the decision whether to  impose anti-dumping duties and the decision whether 
the amount of the duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member.  Article 9.2 of the AD Agreement then deals with the next 
step following imposition of the duty, as it concerns the collection of the duty.  Article 9.2 of the AD Agreement provides that when an anti-dumping duty is imposed in respect of any product, such anti-
dumping duties shall be collected in the appropr iate amounts in each case.  Article 9.3 of the 
AD Agreement then follows up on what Article 9.2 of the AD Agreement had said about collection of the  WT/DS295/R 
 
  duty in the appropriate amounts, by stating that the amount of the anti-dumping duty shall not exceed the margin of dumping.  Articles 9.3.1 and 9.3.2 then furt her specify how this requirement is to be met in a 
retrospective and a prospective system respectively.  Su ch provisions thus deal with collection of the duty. 
We thus conclude that a product is subject to  a duty once the decision under Article 9.1 of the 
AD Agreement to impose such a duty has been taken.  Once this deci sion has been taken, the duty is 
necessarily a definitive duty in the sense of the AD Agreement.  A similar analysis applies, 
mutatis mutandis , to Article 19 of the SCM Agreement.  
7.296  We recall in this respect that the AD and SC M Agreement only provide for three permissible 
specific actions against dumping or subsidization, price undertakings, provisional measures, which may 
take the form of a provisional duty and which are taken for a limited period of time following a 
preliminary affirmative determination, and defin itive duties.  The duties imposed by an authority 
following an investigation which resulted in an affirm ative final determination are final or definitive anti-
dumping or countervailing duties, even if the authoritie s decides to collect such duties only provisionally, 
and conditional upon the results of the judicial revi ew proceedings.  We therefore do not agree with 
Mexico that as long as a judicial review is ongoing w ith regard to the final determination, the duties 
imposed are not really definitive duties but only guarantees and the product is thus not subject to a duty during this often lengthy judicial review period.  It is not because the definitive duties are only provisionally collected that they are no longer definitive duties. 
236 
7.297  We find that Articles 9.3.2 and 11.2 of the AD Agr eement leave little to be desired for in terms of 
clarity and require the review of duties and their ref und or the application of such duties in an amended 
amount when requested to do so, and in case certain  well-defined conditions are met.  In case the 
conditions are met, the authority is not allowed to rej ect such requests for reason that the judicial review 
of the measures in question is still ongoing. We theref ore find that Article 68 of the Act in combination 
with Article 97 of the Act are inconsistent as such with Articles 9.3.2 and 11.2 of the AD Agreement and 
21.2 of the SCM Agreement by requiring the authority  to reject requests for reviews until after the 
conclusion of the judicial review proceedings.237  
7.298  With regard to Article 366 of the FCCP, the pr ovision of the Mexican Federal Code of Civil 
Procedure also challenged by the United States, we cons ider that the United States has failed to establish a 
prima facie  case concerning the meaning and role of th e provision in anti-dumping and countervailing duty 
investigations.  We find that the United States has not sufficiently explained which "proceedings" this 
provision refers to and failed to provide sufficient ar guments concerning the context of this provision the 
meaning and scope of which is not immediately clear to us.  In our view, it does not suffice for a party to discharge itself of the burden of proof by simply st ating that a provision of another Member's law has a 
certain effect without providing the proper context in wh ich to read and understand this provision.  While the 
United States may consider it telling that Mexico ha s made no effort to explain why Article 366 does not 
apply, directly or indirectly, to the Act
238, we consider that the United States , as the complaining party, is the 
first to have failed to provide sufficient evidence of th e applicability to and role played by this provision in 
AD and CVD proceedings and reviews in Mexico. 
                                                      
236 In fact, no duties would then ever be definitive as  Article 9.3 of the AD Agreement provides for refunds 
in case duties have been paid in excess of the margin of dumping, which implies that the collection of the duty due is not definitive until after such a duty assessment review period.  In the case of a retrospective system final liability is 
only determined through a duty assessment review covering a period following the date of the final determination 
and the imposition of the duty. Although the final liability remains open during that period of time, the duties are 
definitive from the date of imposition, and the product is s ubject to a duty as of the final determination of the 
authority and its decision to impose duties. 
237 For the reasons set forth in paras.  7.224 and 7.225, we reject Mexico's defence based on the direct effect 
of international treaties in Mexican law. 
238 US Second Oral Statement, para. 58. WT/DS295/R 
Page 182   7.299  We note that the United States has also challenge d the consistency of these provisions of the Act 
with the requirement to perform expedited reviews set  forth in Article 9.5 of the AD Agreement and 19.3 
of the SCM Agreement.  In our view, however, the United States has provided insufficient evidence that 
Article 68 of the Act,
239 or Articles 97 of the Act or 366 of the FCCP deal with such reviews.  We 
therefore find that the United States has failed to establish a prima facie  case of violation by these 
challenged provisions of the obligations  with regard to expedited review s set forth in Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement. 
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
8.1 In the light of our findings above concerning th e determination of injury by Economía in the 
investigation on imports of long-grain white  rice from the United States, we conclude: 
(a) that Mexico acted inconsistently with Article s 3.1, 3.2, 3.4 and 3.5 of the AD Agreement 
by choosing to base its injury determinati on on a period of investigation which ended 
more than fifteen months before the initiation of the investigation.  We apply judicial economy and do not make any findings on the US claim of violation of Article VI:2 of 
GATT 1994 and Article 1 of the AD Agreement; 
(b) that Mexico acted inconsistently with Ar ticles 3.1 and 3.5 of the AD Agreement by 
limiting its injury analysis to only six months of the years 1997, 1998, and 1999.  We apply judicial economy and do not make any fi ndings on the US claims of violation of 
Articles 1 and 6.2 of the AD Agreement; 
(c) that Mexico acted inconsistently with Artic le 3.1 and 3.2 of the AD Agreement by failing 
to conduct an objective examination based on positive evidence of the price effects and 
volume of dumped imports as part of its injury  analysis.  We apply judicial economy and 
do not make any findings on the US claims of  violation of Article  6.8 and Annex II of 
the AD Agreement. 
8.2 Having reached the conclusions set forth above that the injury determination is inconsistent with 
Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement, we apply judicial economy and do not rule on the US claims that: 
(a) Economía’s failure to objectively consider wh ether there was a significant increase in the 
volume of dumped imports or whether the dumped imports had a significant effect on 
prices is inconsistent with Mexico’s ob ligations under Articles 3.1 and 3.2 of the 
AD Agreement; 
(b) Economía’s failure to conduct an objective anal ysis of the relevant economic factors is 
inconsistent with Mexico’s obligations under Articles 3.1 and 3.4 of the AD Agreement; 
(c) Economía’s inclusion of non-dumpe d imports in its evaluation of volume, price effects, 
and the impact of the dumped imports on th e domestic industry is inconsistent with 
Mexico’s obligations under Articles 3.1, 3.2, and 3.5 of the AD Agreement; 
(d) Economía’s failure to provide in sufficient detail the findings and conclusions reached on 
all issues of fact and law with respect to its determination of injury is inconsistent with 
Mexico’s obligations under Article 12.2 of the AD Agreement. 
                                                     
 
239 We note that from the discussions concerning other clai ms in this case, it seems that it is Article 89D of 
the Act that actually deals with such expedited reviews.  WT/DS295/R 
 
  8.3 In the light of the above findings concerning th e dumping margin determination by Economía in 
the investigation on imports of long-grain white  rice from the United States, we conclude:   
(a) that Mexico acted inconsistently with Article 5.8 of the AD Agreement by not 
terminating the investigation on two US e xporters which the authority found to have 
exported at undumped prices and by not excluding these two exporters from the 
application of the definitive anti-dumping measure; 
(b) that Mexico acted inconsistently with Artic le 6.8 and paragraph 7 of Annex II of the 
AD Agreement in its application of a fact s available-based dumping margin to the non-
shipping exporter Producers Rice. We appl y judicial economy and do not make any 
findings on the US claims of violation of Artic les 6.2, 6.4, and 9.5 of the AD Agreement, 
and paragraphs 3, 5 and 6 of Annex II; 
(c) that Mexico acted inconsistently with Artic les 6.1, 6.8, paragraph 1 of Annex II, and 
Articles 6.10 and 12.1 of the AD Agreement in its application of a facts available-based dumping margin to the US producers and exporters that it did not investigate.  We apply judicial economy and do not make any findings on the US claims of violation of Articles 6.6, 9.4, 9.5 and paragraph 7 of Annex II of the AD Agreement. 
8.4 Having reached the conclusions set forth above that Economía's dumping margin determination is 
inconsistent with Articles 5.8, 6.1, 6.8, 6.10 and 12.1 of the AD Agreement, we apply judicial economy 
and do not rule on the US claims that: 
(a) Economía’s failure to provide sufficient info rmation on the findings and conclusions of 
fact and law and the reasons that led to the imposition of the adverse facts available-based margin on Producers Rice and the une xamined US exporters and producers is 
inconsistent with Mexico’s obligations  under Article 12.2 of the AD Agreement; 
(b) Economía’s application of an adverse facts available-based margin to Producers Rice and 
the unexamined US exporters a nd producers is inconsistent with Mexico’s obligations 
under Articles 1 and 9.3 of the AD Agreement; 
(c) Economía’s levying of an anti-dumping duty greater than the margin of dumping is 
inconsistent with Mexico’s obliga tions under Article VI:2 of GATT 1994. 
8.5 In light of our findings above on the US challeng es against Mexico's law as such, we conclude:  
(a) that Article 53 of Mexico’s Foreign Trade Act is inconsistent as such with Article 6.1.1 
of the AD Agreement and Article 12.1.1 of the SCM Agreement; 
(b) that Article 64 of Mexico’s Foreign Trade Ac t is inconsistent as such with Articles 6.8 
and paragraphs 1, 3, 5 a nd 7 of Annex II of the AD Agreement, and 12.7 of the 
SCM Agreement.  We apply judicial economy and do not make any findings on the US claims of violation of Articles 9.3, 9.4, and 9.5 of the AD Agreement, and Article 19.3 of the SCM Agreement; 
(c) that Article 68 of Mexico’s Foreign Trade Act is inconsistent as such with Articles 5.8, 
9.3, and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement; 
(d) that Article 89D of Mexico’s Foreign Trade Ac t is inconsistent as such with Article 9.5 
of the AD Agreement and Article 19.3 of the SCM Agreement; WT/DS295/R 
Page 184   
(e) that Article 93V of Mexico’s Foreign Trade Ac t is inconsistent as such with Article 18.1 
of the AD Agreement and Article 32.1 of the SCM Agreement;  and 
(f) that Articles 68 and 97 of Mexico’s Foreign Trade Act are inconsistent as such with 
Articles 9.3, and 11.2 of the AD Agreement, and Article 21.2 of the SCM Agreement, but that the United States failed to make a prima facie  case that Article 366 of the FCCP 
is inconsistent with Articles 9.3, 9.5 and 11.2 of the AD Agreement and 19.3 and 21.2 of 
the SCM Agreement, and also that the United States failed to make a prima facie  case of 
violation by the challenged provisions of the Act of Articles 9.5 of the AD Agreement and 19.3 of the SCM Agreement.  
8.6 Under Article 3.8 of the DSU, in cases where th ere is infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie  to constitute a case of nullification or 
impairment of benefits under that agreement.  Accord ingly, we conclude that to the extent Mexico has 
acted inconsistently with the provisions of the AD Agreement and the SCM Agreement, it has nullified or 
impaired benefits accruing to the United States under those Agreements.  
8.7 We therefore recommend that the Dispute Settlement  Body request Mexico to bring its measures 
into conformity with its obligations unde r the AD Agreement and the SCM Agreement. 
 
 
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