WORLD TRADE  
ORGANIZATION  WT/DS350/AB/R 
4 February 2009 
 (09-0471) 
 Original:   English 
  
 
     
 
    
 
 
UNITED STATES – CONTINUED EXISTEN CE AND APPLICATION OF ZEROING 
METHODOLOGY 
 
  
AB-2008-11 
      
 
    
 
 
Report of the Appellate Body 
  WT/DS350/AB/R 
 Page i 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants and the Third Participants ..........................................................7  
A. Claims of Error by the European Communities – Appellant .........................................7  
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties................................................................................................7  
2. The Panel's Terms of Reference – F our Preliminary Determinations ............13  
3. Article 11 of the DSU – Seven Periodic Reviews ..........................................14  
4. Article 19.1 of the DSU ..................................................................................20  
5. Conditional Appeals .......................................................................................21  
B. Arguments of the United States – Appellee ..................................................................21  
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties..............................................................................................21  
2. The Panel's Terms of Reference – F our Preliminary Determinations ............26  
3. Article 11 of the DSU – Seven Periodic Reviews ..........................................27  
4. Article 19.1 of the DSU ..................................................................................31  
5. Conditional Appeals .......................................................................................32  
C. Claims of Error by the United States – Other Appellant .............................................33  
1. The Panel's Terms of Reference – 14 Additional Measures ...........................33  
2. Simple Zeroing as Applied in 29 Periodic Reviews .......................................34  
3. Article 11 of the DSU – Eight Sunset Reviews ..............................................40  
D. Arguments of the European Communities – Appellee .................................................41  
1. The Panel's Terms of Reference – 14 Additional Measures ...........................41  
2. Simple Zeroing as Applied in 29 Periodic Reviews .......................................42  
3. Article 11 of the DSU – Eight Sunset Reviews ..............................................46  
E. Arguments of the Third Participants ............................................................................47  
1. Brazil...............................................................................................................47  
2. China...............................................................................................................53  
3. Egypt...............................................................................................................53  
4. India ................................................................................................................53  
5. Japan ...............................................................................................................53  
6. Korea...............................................................................................................55  
7. Mexico ............................................................................................................57  
8. Norway ...........................................................................................................57  
9. Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu ............58  
10. Thailand ..........................................................................................................58  
III. Issues Raised in This Appeal ................................................................................................... .58 
IV. The Panel's Terms of Reference ...............................................................................................60  
A. The Continued Application of the 18 Anti-Dumping Duties ........................................61  
1. The Panel's Findings.......................................................................................61  
2. Claims and Arguments on Appeal ..................................................................62  
3. The Specificity of the Panel Request..............................................................65  WT/DS350/AB/R 
Page ii  
 
4.
 Whether the Measures Identified by  the European Communities are 
Susceptible to Challenge in WTO Dispute Settlement ...................................70  
5. Whether the Appellate Body May Complete the Analysis.............................75  
B. Preliminary Determinations in F our Specific Anti-Dumping Proceedings .................81  
C. Certain Measures Allegedly Not Included in the Request for Consultations ...............86  
1. The Panel's Findings.......................................................................................87  
2. Claims and Arguments on Appeal ..................................................................88  
3. Whether the 14 Additional Measures Fell within the Panel's Terms of 
Reference ........................................................................................................90  
4. Whether the Continued Application of the 18 Anti-Dumping Duties 
was Included in the Request for Consultations...............................................96  
V. Simple Zeroing as Applied in Periodic Reviews ......................................................................98  
A. The Panel's Findings ...................................................................................................98  
B. Arguments of the Participants and the Third Participants ........................................103  
C. Simple Zeroing in Periodic Reviews ..........................................................................105  
1. Article 17.6 of the Anti-Dumping Agreement ...............................................105  
2. The Concept of "Dumping" and "Margins of Dumping" in the Anti-
Dumping Agreement .....................................................................................110  
3. Periodic Reviews and Importer-Specific Duty Assessment .........................114  
4. Prospective Normal Value Systems..............................................................115  
5. The "Mathematical Equivalence" Argument ................................................116  
6. Historical Background ..................................................................................117  
D. Concurring Opinion ...................................................................................................119  
E. Conclusion on the European Communities' Claim under Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 ..........................................121  
VI. The Seven Periodic Reviews ..................................................................................................122  
A. Proceedings Before the Panel and the Panel's Findings ...........................................122  
B. Article 11 of the DSU .................................................................................................126  
C. Conclusion .................................................................................................................134  
D. Completion of the Analysis ........................................................................................135  
VII. The European Communities' Conditional Appeals.................................................................139  
A. The Relevance of Prior Appellate Body Reports .......................................................140  
B. The European Communities' Conditional Appeal regarding the Consistency of 
Simple Zeroing in Periodic Reviews ..........................................................................142  
VIII. The Eight Sunset Reviews ......................................................................................................1 43  WT/DS350/AB/R 
 Page iii 
 
 
IX. The European Communities' Requ est for a "Suggestion" under Article 19.1 of the DSU .....148  
X. Findings and Conclusions....................................................................................................... 151 
 
ANNEX I Notification of an Appeal by the European Communities, WT/DS350/11  
ANNEX II Notification of an Other Appeal by the United States, WT/DS350/12 
 ANNEX III Procedural Ruling by the Appellate Body of 28 November 2008 to allow public  
  observation of the oral hearing  WT/DS350/AB/R 
Page iv  
 
CASES CITED IN THIS REPORT 
 
Short Title Full case title and citation 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Argentina – Textiles and 
Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 
22 April 1998, DSR 1998:III, 1003 
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 Appellate Body Report WT/DS46/AB/R, DSR 1999:III, 1221 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affe cting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Canada – Aircraft  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 
Canada – Autos  Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, 
DSR 2000:VI, 2985 
Canada – Continued 
Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R, adopted 14 November 2008 
Canada – Dairy  
(Article 21.5 – New Zealand 
and US)  Appellate Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Recourse to Article 21.5 of the DSU 
by New Zealand and the United States , WT/DS103/AB/RW, 
WT/DS113/AB/RW, adopted 18 December 2001, DSR 2001:XIII, 6829 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473) 
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, 3243 
EC – Audio Cassettes  GATT Panel Report, EC – Anti-Dumping Duties on Audio Tapes in Cassettes 
Originating in Japan , ADP/136, 28 April 1995, unadopted 
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 – Bananas III   
(Article 21.5 – Ecuador II) / 
EC – Bananas III   
(Article 21.5 – US)  Appellate Body Reports, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 
/ European Communities – Regime for th e Importation, Sal e and Distribution 
of Bananas – Recourse to Article 21.5 of the DSU by the United States , 
WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008 
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 I ndia – Recourse to Article 21.5 of the 
DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965   WT/DS350/AB/R 
 Page v 
 
 
Short Title Full case title and citation 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, 
adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, 2031 
EC – Sardines  Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791 
EEC – Cotton Yarn  GATT Panel Report, European Economic Community – Imposition of Anti-
Dumping Duties on Imports of Cotton Yarn from Brazil , ADP/137, adopted 
30 October 1995, BISD 42S/17 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 
India – Additional Import Duties Appellate Body Report, India – Additional and Extra-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 
2008 
Japan – Agricultural 
Products II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 
1996, DSR 1996:I, 97  
Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391 
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R and Corr.1, adopted 
17 December 2007 
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 
Korea – Various Measures on 
Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 
2001, DSR 2001:I, 5 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005, DSR 2005:XXII, 10853 
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States , WT/DS132/R, adopted 24 February 
2000, and Corr.1, DSR 2000:III, 1345 WT/DS350/AB/R 
Page vi  
 
Short Title Full case title and citation 
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-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
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 Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – Certain EC Products  Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, 373 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 
2008 
US – Corrosion-Resistant Steel 
Sunset Review  Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3  
US – Countervailing Duty 
Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005 
US – Customs Bond Directive Appellate Body Report, United States - Customs Bond Directive for 
Merchandise Subject to Anti-Dumping/Countervailing Duties , 
WT/DS345/AB/R, adopted 1 August 2008 
US – FSC  
(Article 21.5 – EC II)  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
4721 
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 – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Shrimp  (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
 and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481 
US – Shrimp (Ecuador) Panel Report, United States – Anti-Dumping Measure on Shrimp from 
Ecuador , WT/DS335/R, adopted on 20 February 2007 
US – Shrimp (Thailand) / 
US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond Directive for Merchandise Subject 
to Anti-Dumping/Countervailing Duties , WT/DS343/AB/R, 
WT/DS345/AB/R, adopted 1 August 2008  WT/DS350/AB/R 
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Short Title Full case title and citation 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 
20 December 2005, DSR 2005:XXIII, 11357 
US – Softwood Lumber V  Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004, 
DSR 2004:V, 1875 
US – Softwood Lumber V  Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/R, adopted 31 August 2004, as modified by 
Appellate Body Report WT/DS264/AB/R, DSR 2004:V, 1937 
US – Softwood Lumber V  
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by 
Canada , WT/DS264/AB/RW, adopted 1 September 2006 
US – Softwood Lumber V  
(Article 21.5 – Canada) Panel Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , 
WT/DS264/RW, adopted 1 September 2006, as reversed by Appellate Body 
Report WT/DS264/AB/RW 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 30 April 2008  
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless 
Steel from Mexico , WT/DS344/R, adopted 30 April 2008, as modified by the 
Appellate Body Report WT/DS344/AB/R  
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
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, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, 323  
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R and Corr.1, 
adopted 9 May 2006 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 9 May 
2006, as modified by Appellate Body Report WT/DS294/AB/R 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by Appellate 
Body Report WT/DS322/AB/R 
 WT/DS350/AB/R 
Page viii  
 
ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Anti-Dumping Agreement Agreement on Implementati on of Article VI of the General Agreement 
on Tariffs and Trade 1994 
DSB Dispute Sett lement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
GATT 1947 General Agreement on Tariffs and Trade 1947 
GATT 1994 General Agreement on Tariffs and Trade 1994  
Panel Report Panel Report, United States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/R 
panel request Request for the Establis hment of a Panel by the European 
Communities, WT/DS350/6, attached to the Panel Report as 
Annex F-1 
SCM Agreement Agreement on Subsidies and Countervailing Measures  
Tariff Act United States Tariff Act of 1930, Public Law No. 1202-1527, 46 Stat. 
741, codified in United States Code , Title 19, Chapter 4, as amended 
Tokyo Round Anti-Dumping 
Code Tokyo Round  Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade , BISD 26S/171, entered into 
force 1 January 1980 
T-T transaction-to-transaction  
USDOC United States Department of Commerce 
USDOC December 2006 
Notice "Antidumping Proceedings: Calcula tion of the Weighted-Average 
Dumping Margin During an Antidumping Investigation; Final 
Modification", United States Federal Register , Vol. 71, No. 248 
(27 December 2006) 77722-77725 (Panel Exhibit EC-90) 
USITC United States International Trade Commission 
Vienna Convention  Vienna Convention on the Law of Treaties , done at Vienna, 
23 May 1969, 1155 UNTS 331;  8 In ternational Legal Materials 679 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 
2005 
W-T weighted average-to-transaction 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Establishi ng the World Trade Organization   
W-W Weighted average-to-weighted average  
  
   WT/DS350/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
United States – Continued Existence and 
Application of Zero ing Methodology   
 
European Communities, Appellant  / Appellee 
United States, Other Appellant  / Appellee 
 
Brazil, Third Participant 
China, Third Participant 
Egypt, Third Participant 
India, Third Participant 
Japan, Third Participant 
Korea, Third Participant 
Mexico, Third Participant 
Norway, Third Participant 
Separate Customs Territory of Taiwan, Penghu,  Kinmen and Matsu, Third Participant 
Thailand, Third Participant  AB-2008-11 
 
 Present:   Zhang, Presiding Member  Baptista, Member 
 Unterhalter, Member 
 
  
I. Introduction 
1. The European Communities and the United States each appeals certain issues of law and legal 
interpretations develope d in the Panel Report, United States – Continued Existence and Application of 
Zeroing Methodology (the "Panel Report").
1  The Panel was established to consider a complaint by the 
European Communities concerning the continued application by the United States of anti-dumping 
duties resulting from anti-dumping duty orders enumerated in 18 cases2, as calculated or maintained 
in place pursuant to the most recent proceedings3 at a level in excess of the margin of dumping that, in 
the European Communities' view, would have result ed from the correct application of the relevant 
provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and
                                                      
1WT/DS350/R, 1 October 2008. 
2Panel Report, para. 2.1.  In the annex to its Reque st for the Establishment of a Panel, WT/DS350/6, 
the European Communities identified 18 anti-dumping orde rs for which, it alleges, duties were set and/or 
maintained on the basis of the zeroing methodology applied by the United States Department of Commerce (the "USDOC").  The European Communities identified these 18 cases by reference to the country and the product 
involved (enumerated as Cases I to XVIII), as we ll as 52 specific anti-dumping proceedings (original 
investigations, periodic reviews, and sunset reviews) that pertain to these 18 cases (Nos. 1 to 52). (See Panel 
Report, para. 7.48)  For ease of reference, we will use the same numbering system in this Report to facilitate 
identification of the 18 cases and the va rious proceedings at issue, as listed in the panel request attached to the 
Panel Report as Annex F-1, pp. F-6 to F-15.  The relevant exhibits relating to these 18 cases are Panel Exhibits 
EC-26, EC-28 to EC-31, and EC-33 through EC-79. 
3On page 3 of its panel request, the European Communities specified that its claim related to duties as 
"calculated or maintained in place pu rsuant to the most recent administra tive review or, as the case may be, 
original proceeding or changed circumstances or sunset review proceeding". (WT/DS350/6, Panel Report, 
Annex F-1, p. F-4) WT/DS350/AB/R 
Page 2  
 
Trade 1994 (the " Anti-Dumping Agreement ").  The European Communities also challenged the 
specific instances of applicati on of the zeroing methodology in four original anti-dumping 
investigations, 37 periodic reviews, and 11 s unset reviews pertaining to the same 18 cases.
4  
2. Before the Panel, the Europ ean Communities claimed that:  
 (a)  the United States had acted inconsiste ntly with Articles VI:1 and VI:2 of the General 
Agreement on Tariffs and Trade 1994 (the "GATT 1994"), Articles 2.4, 2.4.2, 9.3, 
11.1, and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the Marrakesh 
Agreement Establishing the World Trade Organization  (the " WTO Agreement "), 
because it continues to apply duties that  were calculated using the zeroing 
methodology in the 18 anti-dumping measures listed in the annex to the European Communities' request for the establishment of a panel
5;   
 (b) the United States had acted inconsistent ly with Articles VI:1 and VI:2 of the 
GATT 1994 and Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement  when 
applying "model zeroing"6 in the four original investigations at issue in this dispute7; 
                                                      
4Panel Report, para. 2.1. 
5European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59, 
para. 264;  Panel Report, para. 3.1. 
6Before the Panel, the European Communities used the term "model zeroing" to describe a 
methodology whereby an investigating authority compares  the weighted average normal value and the weighted 
average export price for each model of  the product under investigation and treats as zero the results of model-
specific comparisons where the weight ed average export price exceeds th e weighted average normal value, 
when aggregating comparison results in order to calculate a margin of dumping for the product under investigation.  (See Panel Report, para. 7.7;  and Eur opean Communities' first written submission to the Panel, 
Panel Report, Annex A-1, p. A-9, paras. 10 and 11) 
7European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59, 
para. 264;  Panel Report, para. 3.1(b).  The four original investigations are identified at paragraph 7.103 of the 
Panel Report, and the relevant exhibits relating to these investigations are Panel Exhibits EC-26, EC-28, EC-29, 
and EC-30.   WT/DS350/AB/R 
 Page 3 
 
 
 (c)  the United States had acted inconsiste ntly with Articles VI:1 and VI:2 of the 
GATT 1994 and Articles 2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement  
when applying "simple zeroing"8 in the 37 periodic reviews9 at issue in this dispute10;  
and 
 (d) the United States had acted inconsistently with Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3 
of the Anti-Dumping Agreement  in the 11 sunset reviews11 at issue in this dispute12 
when relying on margins of dumping calcula ted in prior investigations using the 
zeroing methodology.13 
3. The European Communities also requested the Pa nel to suggest, pursuant to Article 19 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (the "DSU"), that the 
United States cease to use the zeroing methodolo gy when calculating dumping margins in any anti-
dumping proceeding in connection with the 18 ca ses identified in the annex to the European 
Communities' panel request.14 
                                                      
8Before the Panel, the European Communities used the term "simple zeroing" to describe a 
methodology whereby an investigating authority compares the prices of individual ex port transactions against 
monthly weighted average normal values and treats as ze ro the results of comparisons where the export price 
exceeds the monthly weighted average normal value when aggr egating comparison results.  (See Panel Report, 
paras. 7.7 and 7.160;  and European Communities' firs t written submission to the Panel, Panel Report, Annex 
A-1, p. A-12, paras. 25 and 26)  
9We use the term "periodic review" to describe the periodic review of the amount of anti-dumping duty 
as required by Section 751(a) of the United States Tari ff Act of 1930 (Public Law No. 1202-1527, 46 Stat. 741, 
codified in United States Code , Title 19, Chapter 4, as amended) (the "T ariff Act").  That provision requires the 
USDOC to review and determine the amount of any an ti-dumping duty, at least once during each 12-month 
period beginning on the anniversary of the date of publication of an anti-dumping duty order, if a request for 
such a review has been received.  In the case of th e first assessment proceeding fo llowing the issuance of the 
Notice of Antidumping Duty Order, the period of time may extend to a period of up to 18 months in order to cover all entries that may have been subject to provisional measures. (See also European Communities' first 
written submission to the Panel, Panel Report, Annex A-1, pp. A-10 and A-11, paras. 15-19) 
10European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59, 
para. 264;  Panel Report, para. 3.1(c).  The 37 periodic reviews are identified at paragraph 7.145 of the Panel 
Report, and the relevant exhibits relating to these periodic reviews are Panel Exhibits EC-31 and EC-33 through 
EC-68. 
11We use the term "sunset review" to describe the revi ew of an anti-dumping duty order five years after 
its publication, as required by Section 751(c) of the Tari ff Act.  That provision requires the USDOC to conduct a 
review to determine whether revocation of the anti-dumping duty order would likely lead to continuation or 
recurrence of dumping and of material injury five years after the date of publication of an anti-dumping duty 
order.  (See also European Communities' first writte n submission to the Panel, Panel Report, Annex A-1, 
p. A-13, paras. 30 and 31) 
12The 11 sunset reviews are identified at paragraph 7.190 of the Panel Report, and the relevant exhibits 
relating to these sunset reviews are Panel Exhibits EC-69 through EC-79. 
13European Communities' first written submission to the Panel, Panel Report, Annex A-1, p. A-59, 
para. 264;  Panel Report, para. 3.1(d). 
14Panel Report, para. 3.2. WT/DS350/AB/R 
Page 4  
 
4. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO") 
on 1 October 2008, the Panel found that: 
(a)  the 14 anti-dumping proceedings identif ied in the European Communities' panel 
request, but not in its request for consulta tions, were within the Panel's terms of 
reference
15;  
 
(b)  the European Communities'  claims in connection with the continued application of 
the 18 anti-dumping duties were not with in the Panel's terms of reference16; 
 (c)  the European Communities' claims rega rding the four preliminary determinations 
identified in its panel request were not within the Panel's terms of reference
17; 
 
(d)  the United States had acted inconsistently  with its obligations under Article 2.4.2 
of the Anti-Dumping Agreement  by using model zeroing in the four original 
investigations challenged by the Eu ropean Communities in this dispute18; 
 
(e)  the United States had acted inconsistently  with its obligations under Article VI:2 
of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement  by applying 
simple zeroing in 29 periodic reviews ch allenged by the European Communities in 
this dispute19;  and 
 (f)  the United States had acted inconsistently with  its obligations under Article 11.3 of 
the Anti-Dumping Agreement  by using, in eight sunset reviews challenged by the 
European Communities in this dispute, dumping margins obtained through the use 
of model zeroing in prior investigations.
20  
 
5. The Panel recommended that the Dispute Settleme nt Body (the "DSB") request the United 
States to bring its measures found to be inconsistent with the GATT 1994 and the Anti-Dumping 
                                                      
15Panel Report, paras. 7.28 and 8.1(a). 
16Panel Report, paras. 7.61 and 8.1(b). 
17Panel Report, paras. 7.77 and 8.1(c). 
18Panel Report, paras. 7.111 and 8.1(d). 
19Panel Report, paras. 7.183 and 8.1(e).  One of the 37 periodic reviews challenged by the European 
Communities was a preliminary determination that the Panel found not to be within its terms of reference, and 
the Panel found that the European Communities had not shown that simple zeroing was used in the other seven 
periodic reviews. ( Ibid., para. 7.158) 
20Panel Report, paras. 7.202 and 8.1(f).  The Panel noted that three of the 11 sunset reviews challenged 
by the European Communities concerned preliminary determinations that the Panel found not to be within its 
terms of reference.  ( Ibid., para. 7.191)  WT/DS350/AB/R 
 Page 5 
 
 
Agreement  into conformity with its WTO obligations21, but declined to make a suggestion as to how 
the DSB recommendations and rulings could be implemented by the United States.22 
6. On 6 November 2008, the European Communiti es notified the DSB, pursuant to Articles 16.4 
and 17 of the DSU, of its intention to appeal cer tain issues of law covered in the Panel Report and 
certain legal interpretations developed by  the Panel and filed a Notice of Appeal23 pursuant to Rule 20 
of the Working Procedures for Appellate Review24 (the " Working Procedures ").  
On 13 November 2008, the European Communities filed an appellant's submission.25  
On 18 November 2008, the United States notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of  law covered in the Pane l Report and certain legal 
interpretations developed by the Pane l and filed a Notice of Other Appeal
26 pursuant to Rule 23(1) 
and (2) of the Working Procedures .  On 21 November 2008, the United States filed an other 
appellant's submission.27  On 1 December 2008, the European  Communities and the United States 
each filed an appellee's submission.28  On the same day, Brazil, Japan, and Korea each filed a third 
participant's submission29, and China, India, Mexico, Norway, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu,  and Thailand each notified its in tention to appear at the oral 
hearing as a third participant.30  On 2 December 2008, Egypt notified its intention to attend the oral 
hearing as a third participant.31 
7. The European Communities and the Un ited States requested, by letters 
dated 14 and 17 November 2008, respectively, that th e Appellate Body Division hearing this appeal 
authorize public observation of the oral hearing.32  The European Communiti es and the United States 
submitted that public observation of the oral hearing was not precluded by the DSU, the Working 
Procedures , or the Rules of Conduct for the Understanding on Rules and Procedures Governing the 
                                                      
21Panel Report, para. 8.3. 
22Panel Report, para. 8.7.  The Panel applied judicial economy with regard to the European 
Communities' claims under:  Article 2.4 of the Anti-Dumping Agreement  and Articles VI:1 and VI:2 of the 
GATT 1994 regarding the use of model zeroing in the four original investigations at issue;  Articles 2.1, 2.4, 2.4.2, and 11.2 of the Anti-Dumping Agreement  regarding the use of simple zeroing in 29 periodic reviews;  and 
Articles 2.1, 2.4, 2.4.2, and 11.1 of  the Agreement regarding the use of ma rgins obtained in prior proceedings 
through the zeroing methodology in eight sunset reviews at issue.  (Panel Report, para. 8.2) 
23WT/DS350/11 (attached as Annex I to this Report). 
24WT/AB/WP/5, 4 January 2005. 
25Pursuant to Rule 21 of the Working Procedures .  
26WT/DS350/12 (attached as Annex II to this Report). 
27Pursuant to Rule 23(3) of the Working Procedures .  
28Pursuant to Rules 22 and 23(4) of the Working Procedures .   
29Pursuant to Rule 24(1) of the Working Procedures .  
30Pursuant to Rule 24(2) of the Working Procedures .   
31Pursuant to Rule 24(4) of the Working Procedures . 
32Similar requests were made in the appeals in US – Continued Suspension  and Canada – Continued 
Suspension and EC – Bananas III (Article 21.5 – Ecuador II) and EC – Bananas III (Article 21.5 – US) . WT/DS350/AB/R 
Page 6  
 
Settlement of Disputes .
33  The participants proposed public observation by means of a simultaneous 
closed-circuit television broadcast to a separate ro om, with the transmission being interrupted when 
any third participant wishing to maintain the c onfidentiality of its statements took the floor. 
8. On 18 November 2008, the Division invited the th ird participants to comment in writing on 
the participants' requests to open the hearing to public observation.  The Division asked the third 
participants to provide their views on, in partic ular, the permissibility of opening the hearing for 
public observation under the DSU and the Working Procedures , and, if they so wished, the specific 
logistical arrangements proposed by the participan ts.  Comments were received from all of the third 
participants on 24 November 2008.  Japan, Norway, and the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu expressed their support for th e requests of the participants.  Korea did not 
object to the opening of the oral hearing to th e public in these proceedings, but requested the 
Appellate Body to treat its written and oral statemen ts as confidential.  Brazil, China, Egypt, India, 
Mexico, and Thailand expressed the view that the provisions of the DSU do not allow public 
observation of oral hearings at the appellate stage.   According to these third participants, the oral 
hearing forms part of the proceedings of the A ppellate Body and is, therefore, subject to the 
requirement of Article 17.10 of the DSU that "[t] he proceedings of the Appellate Body shall be 
confidential". 
9. On 28 November 2008, the Division issued a Procedural Ruling in which it authorized the 
public observation of the oral hearing for the particip ants and the third participants who so requested, 
and adopted additional procedures for that pur pose in accordance with Rule 16(1) of the Working 
Procedures .34  Oral statements and responses to questions by third participants wishing to maintain 
the confidentiality of their submissions were not subject to public observation. 
10. The oral hearing in this appeal was held on 11 and 12 December 2008.  The participants and 
the third participants were given the opportunity to present oral arguments and respond to questions 
posed by the Division hearing the appeal.35 
                                                      
33The Rules of Conduct , as adopted by the DSB on 3 Dece mber 1996 (see WT/DSB/RC/1), are 
incorporated into the Working Procedures as Annex II thereto (see WT/DSB/RC/2, WT/AB/WP/W/2). 
34The Procedural Ruling is attached as Annex III to this Report. 
35Public observation took place via simultaneous closed-circuit television broadcast to a separate room.  
Pursuant to the additional procedures adopted by the Division, China, Egypt, India, Korea, Mexico, and 
Thailand each requested that its oral statements and responses to questions remain confidential and not be 
subject to public observation.  Brazil agreed to public ob servation of its participation in the oral hearing without 
prejudice to its position on the permissibility of public observation of the oral hearing before the Appellate 
Body.  WT/DS350/AB/R 
 Page 7 
 
 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the European Communities – Appellant  
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties  
11. The European Communities claims that the Panel erred in finding that the European 
Communities failed to identify in its request fo r the establishment of a panel, as required by 
Article 6.2 of the DSU, the specific measures at i ssue with respect to the application and continued 
application of 18 anti-dumping duties.  The Eur opean Communities requests the Appellate Body to 
modify or reverse the Panel's finding and complete the analysis by finding that the panel request did 
identify the specific measures at issue, and that "each of the 18 measures is inconsistent with 
Articles VI:1 and VI:2 of the GATT 1994 , Articles 2.4, 2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping 
Agreement , and Article XVI:4 of the WTO Agreement ."36 
12. Before elaborating on its specific grounds of a ppeal, the European Co mmunities clarifies the 
"correct legal analysis"37 of Articles 3.3 and 6.2 of the DSU.  The European Communities observes 
that Articles 3.3 and 6.2 relate to different matters.  The European Communities distinguishes 
between whether "something brought before a panel by a complaining Member  constitutes a 'measure' 
within the meaning of Article 3.3 of the DSU " and whether "a panel request satisfies the requirement 
in Article 6.2 of the DSU  that it ' identify  the specific measures at issue'".38  According to the European 
Communities, the former is a substantive issue, while  the latter is a procedural one.  The European 
Communities maintains that the United States made no reference to Article 3.3 in its request for a 
preliminary ruling by the Panel, and did not assert that the European Communities "had not 
demonstrated the existence or precise content  of the measures at issue".39 
13. The European Communities further submits that the United States' request for a preliminary 
ruling was based on the assumption that the Eur opean Communities' panel request referred to 
measures " that might or might not be adopted in the future , and therefore referred to an 
'indeterminate ' number of measures".40  The European Communities maintains that it was not 
referring to the "type of 'measure' falling within the same category as the 52 measures 
(i.e, the 18 measures [were] not just a simple aggregation of the 52 measures)", but that it was 
                                                      
36European Communities' appellant's submission, para. 75.   
37European Communities' appellant's submission, para. 17. 
38European Communities' appellant's submission, para. 18. (original emphasis) 
39European Communities' appellant's submission, para. 21. (original emphasis) 
40European Communities' appellant's submission, pa ra. 23 (original emphasis) (referring to United 
States' first written submission to the Panel, Panel Report, Annex A-2, pp. A-88 and A-89, paras. 66-71). WT/DS350/AB/R 
Page 8  
 
referring to "the duty as the measure".
41  The European Communities further submits that it had 
demonstrated the existence and precise content of  what were measures within the meaning of 
Article 3.3 of the DSU, and that the existence a nd precise content of the 18 duties was not in dispute 
between the parties.42 
14. In the European Communities' view, the Appellate Body has found that " any act  or omission 
attributable to a WTO Member can be a measure of that Member for the purposes of dispute 
settlement proceedings, including acts setting forth rules or norms that are intended to have general  
and prospective  application."43  The European Communities furt her endorses the Appellate Body's 
view that the term "measure" encompasses "the entire body  of generally applicable rules, norms and 
standards adopted by Members"44 and that there is no basis for finding that only certain types of 
measure  can be challenged in dispute settlement pro ceedings.  The European Communities adds that 
the Appellate Body has also affirmed that, as l ong as the complaining Member adduces evidence to 
demonstrate the existence and precise content of a m easure, the fact that it is  not expressed in writing 
is not determinative.45 
15. The European Communities argues that the lega l issue it raises on appeal concerns the 
manner in which the complaining Member is entitled to  frame its claims, and particularly the terms in 
which it is entitled to refer to the measures at issu e.  The European Communities explains that, with 
respect to its claims before the Panel concerning th e 52 measures, it had referred to each final order 
and the result of each periodic review or sunset re view as a separate "measure" within the meaning of 
Article 3.3 of the DSU.  In a separate set of claims, it had referred to each of the 18 anti-dumping 
duties as a "measure" within the meaning of Artic le 3.3 of the DSU.  The European Communities 
acknowledges that there is some overlap between th e two sets of claims, but states that the claims 
with respect to the 18 anti-dumping duties were "mor e extensive and of more value to the European 
Communities"46 than the claims concerning the 52 measures. 
16. The European Communities further explains that  its approach of challenging the 18 duties as 
"measures" allows it "to apprehend the root of the WTO inconsistency as it relates to a particular anti-
dumping duty".47  For the European Communities, once ther e is a finding that a particular anti-
                                                      
41European Communities' appellant's submission, para. 24. (original emphasis) 
42European Communities' appellant's submission, para. 25. 
43European Communities' appellant's submission, para. 27 (original emphasis; footnote omitted) 
(referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 81 and 82).  
44European Communities' appellant's submission, para . 27 (original emphasis) (quoting Appellate Body 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 87). 
45European Communities' appellant's submission, para. 28 (referring to Appellate Body Report, US – 
Zeroing (EC) , para. 198). 
46European Communities' appellant's submission, para. 31. (footnote omitted) 
47European Communities' appellant's submission, para. 33. (original emphasis)  WT/DS350/AB/R 
 Page 9 
 
 
dumping duty is WTO-inconsistent, it may take "t he entirely reasonable view that as long as the 
particular anti-dumping duty based on zeroing rema ins in place the United States will not have 
complied."48  The European Communities argues that the United States' interpretation—that there are 
a series of different measures, each with a di stinctive temporal scope—means that, even if the 
European Communities obtains a finding of inco nsistency against a measure, "such finding is 
worthless ".49  This is so because, when the European  Communities initiates compliance proceedings, 
the United States asserts that the "original" me asure has "expired", and that, if the European 
Communities wishes to challenge the new measure, it  "must start all over again" with a new panel.50 
17. According to the European Communities, the Pa nel suggests that a complaining Member is 
"actually precluded , from the outset , and as a matter of principle , from referring to the duty as the 
measure"51 and that this contradicts the text of the DSU, the GATT 1994, and the Anti-Dumping 
Agreement .  In the European Communities' view, th is line of reasoning is erroneous, because it 
"focuses only on that part of the measure that mi ght change (as a function of the updated data-set) 
with each administrative review, namely the rate of duty (or the cash deposit rate)."52  Rather, the 
European Communities' complaint is directed at the unchanging part of the measure, "namely the 
zeroing methodology as used in the final order and pr ogrammed to continue to be used until such time 
as the United States eliminates zeroing from the pa rticular anti-dumping duty under consideration."53 
18. The European Communities submits that relevant provisions of the GATT 1994 and the Anti-
Dumping Agreement  provide contextual support for the pr oposition that the term "measure" in 
Article 3.3 of the DSU includes an anti-dumping duty.  Given that Article 17.4 of the Anti-Dumping 
Agreement  refers expressly to "anti-dumping duties ", and the Appellate Body has referred to anti-
dumping duties when describing the three types of permissible responses to dumping under Article 17.4, "[i]t necessarily follows that the out comes of the various types of review (newcomer, 
changed circumstances, sunset and assessment proc eedings) fall within the ambit of Article 17.4 by 
virtue of the fact that they amend the underlying measure."
54  In such cases, there is one single 
measure (the duty) manifested in a series of documen ts that may be adopted over time.  The European 
Communities asserts that, "[a]s long as there is an asp ect of the measure that does not change (in this 
case, the zeroing methodology), then that aspect of th e measure can be addressed in its own right, in 
such a way that any findings will have prospec tive value, until such time as the measure is 
                                                      
48European Communities' appellant's submission, para. 33.  
49European Communities' appellant's submission, para. 34. (original emphasis) 
50European Communities' appellant's submission, para. 34.  
51European Communities' appellant's submission, para. 35. (original emphasis) 
52European Communities' appellant's submission, para. 36. 
53European Communities' appellant's submission, para. 36. 
54European Communities' appellant's submission, para. 38 (referring to Appellate Body Report, 
Guatemala – Cement I , para. 79). WT/DS350/AB/R 
Page 10  
 
corrected."
55  In addition, the European Communities refers to Articles II, VI, and XXIII of the 
GATT 1994 and Articles 7.2, 8.6, 9.1-9.3, 11.1-11.3, 12.2.2, 15, and 18.3.2 of the Anti-Dumping 
Agreement  and the general object and purpose of the c overed agreements in support of its assertion 
that Article 3.3 of the DSU "allows Members to challenge duties as a measure".56 
19. The European Communities considers that all  prior panels and the Appellate Body dealing 
with zeroing have found that the zeroing met hodology is a "measure" within the meaning of 
Article 3.3 of the DSU, and that its precise cont ent has been demonstrated.  As the present case 
addresses precisely the same thing but is more specifically limited to particular anti-dumping duties on particular products exported from the European  Communities to the United States, the European 
Communities fails to understand how additional criter ia (specifying particular  products, particular 
country of export, particular duties), which in eff ect narrow the scope of the measure, could have the 
effect of taking the measure outside  the scope of Article 3.3 of the  DSU. 
20. The European Communities asserts that, given th at the existence of the zeroing methodology 
has been repeatedly demonstrated, the Panel' s finding that the European Communities had not 
demonstrated the existence of each of the 18 me asures was unfounded.  The European Communities 
maintains that the existence of  a specific anti-dumping duty on a specific product exported from the 
European Communities to the United States "not onl y was never contested by the United States, but 
could never be seriously contested by the United Stat es, given the fact that it is a simple matter of 
public record".
57 
21. The European Communities rejects the view of the Panel that the European Communities was 
referring to an "indeterminate number of measures"58 and was seeking a remedy as regards "'future 
measures' that 'do not exist as of the date of the panel's establishment'."59  The European Communities 
argues that its approach sufficiently distinguishes between the 18 measures and the 52 measures, and 
that nothing precludes a WTO Member from bri nging dispute settlement proceedings against 
measures that overlap.  Further, in the European Communities' view, it is clear that the Panel could 
exercise judicial economy with respect to the 52 measures if the Panel made findings regarding the 18 measures.  The European Communities contends  that it did not "equate" the 18 measures with 
the "zeroing methodology" measure;  rather, it explaine d to the Panel that "the relevant part of the 
                                                     
 
55European Communities' appellant's submission, para. 38. 
56European Communities' appellant's submission, para. 41. 
57European Communities' appellant's submission, para. 48. 
58European Communities' appellant's submission, para . 43 (referring to Pane l Report, para. 7.42). 
59European Communities' appellant's submission, para. 44 (quoting Panel Report, para. 7.59).  WT/DS350/AB/R 
 Page 11 
 
 
'precise content ' of the 18 measures (that is, the zeroing methodology) was the same as the precise 
content of the zeroing methodology measure."60 
22. The European Communities explains what it cons iders to be the correct legal analysis under 
Article 6.2 of the DSU.  Once it is accepted that an  anti-dumping duty is a measure, "it is immediately 
apparent that it would have been impossible  for the [European Communities'] Panel Request to be any 
more specific , identifying as it did the document origina ting each of the 18 measures (in each case, the 
final order), that is, the specific duties applying to the specific products exported from the European 
Communities to the United States."61  According to the European Communities, the Panel should have 
found that the United States had not raised the issu e of whether or not the 18 measures constituted 
measures within the meaning of Article 3.3 of the DS U.  In any event, the European Communities had  
made out a " prima facie case on the existence and precise content of the 18 measures"62, which the 
United States did not address or rebut.  Referring to  the objective of Article 6.2 to protect a 
defendant's due process rights, the European Co mmunities argues that there was no basis for the 
United States to assert that it did not understand the allegations being made against it, and contends 
that the United States was thus " unilaterally reformulating  the case and requesting a preliminary 
ruling with respect to that re-formulated case".63 
23. In addition, the European Communities submits that the Panel erred by confounding its 
analysis of Articles 3.3 and 6.2 of the DSU when it "erroneously equate[d] th e substantive question of 
the demonstration  of the existence and precise content of a measure with the procedural requirement 
that a panel request identify  the specific measure at issue."64  The issue of specificity under Article 6.2 
is not, as the Panel asserted, a "burden of proof" issue, because a complainant "does not have to 
discharge its burden of proof, nor make a prima facie  case, in its panel request".65  R a t h e r ,  " [ t ] h e  
procedural issue under Article 6.2 of the DSU  is not 'how' the measures have been identified in the 
panel request, but simply whether or not the [European Communities'] Panel Request identifies  the 
specific measure at issue".66  The European Communities adds that the Panel engaged in a "covert 
substantive analysis"67 in which the "Article 3.3 of the DSU  issue [ was] decisive of its analysis of the 
Article 6.2 of the DSU  issue".68  The European Communities then fa ults the Panel for finding that the 
                                                      
60European Communities' appellant's submission, para. 47 (original emphasis) (referring to European 
Communities' response to Panel Question 1 following the first meeting). 
61European Communities' appellant's submission, para. 50. (original emphasis) 
62European Communities' appellant's submission, para. 51. 
63European Communities' appellant's submission, para. 52. (original emphasis)  
64European Communities' appellant's submission, para. 54 (original emphasis) (referring to Panel 
Report, para. 7.41). 
65European Communities' appellant's submission, para . 55 (referring to Pane l Report, para. 7.41). 
66European Communities' appellant's submission, para. 57. (original emphasis) 
67European Communities' appellant's submission, para. 58.  
68European Communities' appellant's submission, para. 57. (original emphasis) WT/DS350/AB/R 
Page 12  
 
description of the 18 measures was "ambiguous" b ecause the panel request did not "sufficiently 
distinguish" between the 52 measures and the 18 measures.
69  According to the European 
Communities, this is "irrelevant to the qu estion of whether or not the panel request identifie [d] the 
specific measures at issue".70 
24. The European Communities also argues that the Panel's analysis was inconsistent with:  
Articles 7.1 and 12.1 of the DSU, and the Working Procedures for panels in Appendix 3 thereto;  the 
"rule" that the complaining Member has the burden of raising an issue under Article 3.3 of the  DSU;  
and the "rule" that panels must not make the case for the defending Member.71  Additionally, the 
European Communities contends that the Panel Report  is inconsistent with Article 7.2 of the DSU 
insofar as the Panel did not address rele vant provisions of the GATT 1994 and the Anti-Dumping 
Agreement  that were cited by the European Communities in this dispute. 
25. The European Communities posits that a complaining Member may make the necessary 
factual assertions and adduce th e necessary evidence, and that this may be sufficient—and was 
certainly sufficient in this case—to constitute a prima facie  case.  The European Communities also 
contends that defending Members cannot "claim at a late stage of the proceedings ... that the 
complaining Member has not made a prima facie  case because it has not provided argument  regarding 
Article 3.3 of the DSU ";  nor was the Panel permitted to "autonomously raise" the Article 3.3 issue 
and "make a case for the defending Member".72  It is for the defending Member to " at least raise that 
issue  in a timely manner"73 so that the complaining Member may make further factual assertions or 
adduce additional evidence. 
26. The European Communities further submits th at the Panel acted inconsistently with 
Article 11 of the DSU in its assessment of the f acts when concluding that the 18 anti-dumping duties 
in question did not exist or that their precise c ontent had not been demonstrated.  The European 
Communities maintains that the Panel erroneously relie d on the "as such" or "as applied" distinction, 
and erred in finding that the European Commun ities equated the 18 measures with the zeroing 
methodology.  The European Communities considers these Panel findings were based on a "deliberate 
refusal"74 to make an objective assessment  of the facts, and not on a misunderstanding on the part of 
the Panel. 
                                                      
69European Communities' appellant's submission, para. 58 (quoting Panel Report, para. 7.49). 
70European Communities' appellant's submission, para. 58. (original emphasis) 
71European Communities' appellant's submission, para. 62. 
72European Communities' appellant's submission, para. 64. (original emphasis) 
73European Communities' appellant's submission, para. 64. (original emphasis) 
74European Communities' appellant's submission, para. 72.   WT/DS350/AB/R 
 Page 13 
 
 
27. Finally, the European Communities contends th at the Panel Report is inconsistent with 
Article 12.7 of the DSU because "the Panel did not set out the basic rationale behind its findings and 
recommendations."75  The European Communities claims th at the Panel offered no explanation 
supporting its conclusions that an anti-dumping dut y constitutes a measure within the meaning of 
Article 3.3 of the DSU, or that the European Co mmunities' panel request did not identify the specific 
measures at issue as required by Article 6.2 of the DSU. 
28. On this basis, the European Communities request s the Appellate Body to modify or reverse 
the Panel's findings.76  In addition, the European Commun ities requests the Appellate Body to 
complete the analysis and find that the European Communities' panel request did identify the specific 
measures at issue as required by Article 6.2 of the DSU.  To the extent the Appellate Body reaches the issue, it should find that the European Commun ities had demonstrated th e existence and precise 
content of the measures within the meaning of Ar ticle 3.3 of the DSU.  The European Communities 
further requests the Appellate Body to complete the analysis and find that, "because of the use of 
zeroing, each of the 18 measures is inconsistent with Articles VI:1 and VI:2 of the GATT 1994 , 
Articles 2.4, 2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement ."
77 
2. The Panel's Terms of Reference – Four Preliminary Determinations  
29. The European Communities submits that the Pane l erred when it excluded four preliminary 
determinations from its terms of reference.  The European Communities observes that the Panel 
rejected the claims "on the assumption  that the European Communities had argued that the four 
preliminary determinations were 'provisional measures'"78 within the meaning of Article 17.4 of the 
Anti-Dumping Agreement .  The European Communities emphasizes that it was not challenging the 
four preliminary determinations as "p rovisional measures" but, rather, "the continued application of 
zeroing  in connection with the [18] definitive anti-dumping duties "79 identified in its panel request.  
Accordingly, the European Communities argues that  its claim concerning the continued application 
of 18 specific anti-dumping duties "effectively caught any subsequent 'measure' (that is, the type of 
measure falling into the category of the 52 meas ures) adopted by the United States, including 
                                                      
75European Communities' appellant's submission, para. 73. 
76European Communities' appellant's submissi on, para. 74 (referring to Panel Report, 
paras. 7.40-7.67—in particular, 7.56, final sentence, and 7.61—and 8.1(b)). 
77European Communities' appellant's submission, para. 75.  The European Communities also outlines 
its objection to the designation of the document circ ulated by the United States  as WT/DS344/11.  The 
European Communities requests the Appellate Body to confirm that such documents do not fall into the same 
category as other WT/DS documents relating to the same  dispute or, alternatively, to consider how such 
documents should be designated.  (See European Communities' appellant's submission, paras. 77-80) 
78European Communities' appellant's submission, para. 85. (original emphasis) 
79European Communities' appellant's submission, para. 87. (original emphasis) WT/DS350/AB/R 
Page 14  
 
preliminary determinations setti ng out the duty levels (wrongly calculated  by applying zeroing) and 
insofar as those duties are still in place ."
80  Therefore, any act or decision taken by the United States 
with respect to the duties in place, even if it w as not final, was covered by the Panel's terms of 
reference. 
30. The European Communities submits that Ar ticle 17.4 allows Members to challenge 
preliminary determinations that are part of the matter as identified in the dispute.81  The European 
Communities refers to the Appellate Body's obser vation that, "once one of the three types of 
measure[s] listed in Article 17.4 has been identified  in the request for establishment of a panel, a 
Member may challenge the consistency of any action ta ken by an investigating authority in the course 
of an anti-dumping investigation."82  The European Communities maintains that it "precisely 
identified the definitive anti-dumping duties " as well as "the claims  as to why those definitive duties 
were WTO-inconsistent".83 
31. On this basis, the European Communities requests the Appellate Body to reverse the Panel's 
finding that the four preliminary determinations we re outside its terms of reference.  Instead, the 
Appellate Body should complete the analysis and c onclude that the four pr eliminary determinations 
fall under the scope of these proceedings and are inconsistent with those provisions of the 
GATT 1994 and the Anti-Dumping Agreement  cited by the European Communities in the Panel 
proceedings.84   
3. Article 11 of the DSU – Seven Periodic Reviews  
32. The European Communities claims th at the Panel made factual and legal errors in violation of 
Article 11 of the DSU when it concluded that the European Communities had not shown that "simple 
zeroing" was used in respect of seven of the 37 challenged periodic reviews.85  The European 
Communities requests the Appellate Body to "modify " the finding made by the Panel and conclude 
                                                      
80European Communities' appellant's submission, para. 87. (original emphasis)  
81See European Communities' appellant's submission, paras. 89 and 90 (referring to Appellate Body 
Report, Guatemala – Cement I , para. 79;  and Panel Report, Mexico – Corn Syrup , paras. 7.52 and 7.53). 
82European Communities' appellant's submission, para. 91 (original emphasis) (referring to Appellate 
Body Report, US – 1916  Act, paras. 73 and 74 and footnote 39 thereto).  
83European Communities' appellant's submission, para. 92. (original emphasis) 
84The European Communities further maintains that, if the Appellate Body accepts the claim with 
respect to the 18 anti-dumping duties, the Appellate Body could declare the Panel's findings regarding the four 
preliminary determinations "moot and of no legal eff ect".  (European Communities' appellant's submission, 
para. 95 (emphasis omitted))  
85The seven periodic reviews at issue are:  Steel Concrete Reinforcing Bars from Latvia  (Case I – 
No. 3) (Panel Exhibit EC-35);  Stainless Steel Bar from France  (Case V – No. 20) (Panel Exhibit EC-47);  
Stainless Steel Bar from France  (Case V – No. 21) (Panel Exhibit EC-48);  Stainless Steel Bar from Germany  
(Case IX – No. 33) (Panel Exhibit EC-57);  Stainless Steel Bar from Germany  (Case IX – No. 34) (Panel Exhibit 
EC-58);  Stainless Steel Bar from Italy  (Case XI – No. 39) (Pan el Exhibit EC-62);  and Certain Pasta from Italy  
(Case XIII – No. 43) (Panel Exhibit EC-65).  See also Panel Report, para. 7.145.   WT/DS350/AB/R 
 Page 15 
 
 
that the European Communities showed that zeroing was used in the seven periodic reviews.  The 
European Communities further requests the Appellate Body to complete the analysis and extend the 
finding of breach of Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement  
to all 37 periodic reviews at issue in this dispute. 
33. The European Communities asserts that the Pane l failed to carry out an objective assessment 
of the facts as required by Article 11 of the DSU when it concluded that the European Communities 
had not made out a prima facie case that the simple zeroing methodology "was part of the measure 
and indeed was actually used in the sev en administrative reviews concerned".86  The European 
Communities maintains that there was sufficient evid ence in the record and that there was no other 
relevant documentation that  it could have produced.  
34. The European Communities submits that Artic le 17.6 of the DSU does not preclude the 
Appellate Body from considering the legal question of  whether a panel complied with its obligations 
under Article 11.  Although a panel' s examination and weighing of evidence generally falls within the 
scope of its discretion as the trier of facts, the A ppellate Body may review a panel's exercise of that 
discretion to ensure that the panel rendered an objec tive assessment of the matter before it and did not 
exceed the bounds of its discretion in its apprecia tion of the evidence.  The European Communities 
posits that, when a panel exceeds its discretion "by misunderstanding, disregarding, ignoring, 
distorting, refusing to consider or mi srepresenting the ev idence, such an egregious error  can be 
subject to review by the Appellate Body as a matter of law  under the panel's obligations pursuant to 
Article 11 of the DSU ."87  Likewise, the failure of a panel to dr aw certain inferences from the facts in 
the record is also subject to Appellate Body review " as a matter of law  since it implies that a panel 
improperly exercised its discretion under Article 11 of the DSU ".88 
35. The European Communities claims that th e Panel committed an "egregious error"89 in 
concluding that the European Communities had not shown that the zeroing methodology was actually 
used in the seven periodic reviews at issue.  Rath er, having examined the evidence in the record, the 
Panel should have concluded that zeroing was used in those periodic reviews. 
36. The European Communities provides a descripti on of the evidence submitted to the Panel 
that, in its view, showed that the United States Department of Commerce (the "USDOC") had used 
simple zeroing in the challenged periodic reviews.   This evidence consisted of the USDOC's final 
                                                      
86European Communities' appellant's submission, para. 100. 
87European Communities' appellant's submission, para . 110 (original emphasis) (referring to Appellate 
Body Report, US – Wheat Gluten , paras. 173, 185, and 195;  Appellate Body Report, US – Countervailing Duty 
Investigation on DRAMS , paras. 176 and 179;  and Appellate Body Report, Japan – DRAMs (Korea) , para. 139). 
88European Communities' appellant's submission, para. 110. (original emphasis) 
89European Communities' appellant's submission, para. 111.  WT/DS350/AB/R 
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results of the periodic reviews at issue, the US DOC's Standard Margin Program, certain computer 
Program Logs, and lists of transactions and tabl es containing the dumping calculations with and 
without zeroing in those reviews.
90   
37. In addition to these "specific documents show ing concrete details of each administrative 
review", the European Communities points to othe r evidence in the record  "from which it can be 
inferred that the United States actually used zeroing in those reviews".91  The European Communities 
claims that this evidence consists of:  a Notice published in the United States Federal Register  
on 27 December 200692 (the "USDOC December 2006 Notice") indicating that there would be no 
policy change to the practice of zeroing in periodi c reviews;  the Issues and Decision Memoranda in 
the 37 periodic reviews at issue containing the USDOC 's repeated statements regarding its continued 
practice of using simple zeroing in periodic reviews93;  and the significant amount of WTO litigation 
against the use of zeroing by the United States.94  The European Communities submits that it "also 
brought to the Panel's attention the fact that the Un ited States remained silent as to whether it had used 
zeroing in the administrative reviews at issue and did not provide any evidence showing the contrary."
95 
38. The European Communities explains the specifi c evidence it submitted with respect to each 
of the seven periodic reviews.  Regarding Steel Concrete Reinforcing Bars from Latvia (Case I – 
No. 3), the European Communities disagrees with th e Panel's conclusion that the evidence did not 
"necessarily show"96 that simple zeroing was used.  Th e European Communities notes that it had 
explained that both the USDOC's Standard Margin  Program and the Program Log disclosed by the 
USDOC to the parties contained the zeroing line and that "[t]his alone indicates that the zeroing methodology was part of the measure".
97  The European Communities points to the additional 
evidence it produced to support its case, and alleg es that the Panel ignored the fact that "the 
application of the USDOC's Standard [Mar gin] Program[] containing the zeroing line ( i.e., WHERE 
EMARGIN GT 0) shows that only a limited number of transactions ( i.e., referred to as 'observations' 
in the programme log) were taken into account  for the purpose of the dumping calculation ( i.e., those 
                                                      
90See European Communities' appellant's submission, paras. 113-123.   
91European Communities' appellant's submission, para. 124.   
92European Communities' appellant's submission, pa ra. 125 (referring to "Antidumping Proceedings: 
Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final 
Modification", United States Federal Register , Vol. 71, No. 248 (27 Decem ber 2006), 7772 2-77725 (Panel 
Exhibit EC-90)).  See also ibid., paras. 167-169.   
93European Communities' appellant's submission, para . 126 (referring to Panel Exhibits EC-32 through 
EC-68).  See also ibid., paras. 170-172. 
94European Communities' appellant's submission, para. 127.  See also ibid., paras. 173 and 174. 
95European Communities' appellant's submission, para. 128.  See also ibid., paras. 175-177. 
96European Communities' appellant's submission, para. 133 (quoting Panel Report, para. 7.151). 
97European Communities' appellant's submission, para. 133 (referring to the summary provided in 
Panel Exhibit EC-35).  WT/DS350/AB/R 
 Page 17 
 
 
where the EMARGIN was greater than zero)".98  The European Communities also alleges that the 
Panel ignored the relevant tables containing calcula tions showing that zeroing was being used, as well 
as the fact that, when the Program Log is consid ered together with the tables, "the evidence 
overwhelmingly corroborates the fact that the zeroing methodology was part of the measure and 
indeed was actually used."99  The European Communities concl udes that "the specific documents 
contained in the record 'necessarily  show' that simple zeroing was 'act ually used'", and that the Panel's 
assertion that certain of the documents were not issu ed by the USDOC at the time of the review is 
"both incorrect and irrelevant ".100 
39. The European Communities presents similar arguments regarding the question whether 
zeroing was used in four additional periodic reviews.101  The European Communities explains that, 
with respect to each of these four reviews, the evidence it submitted—namely, printouts of certain 
computer programs used by the USDOC, as well as cal culation tables prepared on the basis of data 
supplied by the USDOC—demonstrates that zeroing was used.  Because the Panel "ignored" the 
evidence in the record, it "commi tted an egregious error" in concluding that the European 
Communities failed to demonstrate that the zeroing methodology was used by the USDOC in each of 
these four reviews.102  
40. Regarding the periodic reviews in Stainless Steel Bar from France (Case V – Nos. 20 and 21), 
the European Communities asserts that the Panel' s description of the evidence was incomplete, and 
that the Panel ignored other evidence in the record  "from which it could be inferred that the USDOC 
actually used zeroing in this administrative review".103  The European Communities then refers to 
prior zeroing decisions against the United States, st atements of the USDOC regarding the practice of 
zeroing, and the United States' silence in this disput e regarding the practice of zeroing, and concludes 
that, based on "the totality of the facts  in the record ... the Panel should have concluded that the 
zeroing methodology was part of the measure and was actually used".104 
41. The European Communities submits, as a separat e claim, that the Panel failed to apply a 
reasonable burden of proof because it "required the European Communities to provide evidence 
'necessarily showing' ... that zeroing was 'actually  used' in the seven ad ministrative reviews at 
                                                      
98European Communities' appellant's submission, para. 134. 
99European Communities' appellant's submission, para. 136. 
100European Communities' appellant's submission, para. 137. (original emphasis) 
 101These four additional periodic reviews are:  Stainless Steel Bar from Germany  (Case IX – No. 33);  
Stainless Steel Bar from Germany  (Case IX – No. 34);  Stainless Steel Bar from Italy  (Case XI – No. 39);  and 
Certain Pasta from Italy  (Case XIII – No. 43). 
102See European Communities' appellant's submission, paras. 149, 144, 155, and 162, respectively. 
103European Communities' appellant's submission, paras. 165 (footnote omitted) and 181. 
104European Communities' appellant's submission, paras. 178 (original emphasis) and 181. WT/DS350/AB/R 
Page 18  
 
issue".
105  The European Communities co nsiders that it has "made a prima facie  case that the zeroing 
methodology was part of the measure", and that it at  least "provided sufficient evidence for the Panel 
to establish the presumption  that the USDOC applied zeroing in the administrative reviews at 
issue".106  As a result, the Panel should have shifted the burden of proof so that the United States 
could rebut such a presumption.  The European Communities maintains that, "if a Member provides 
sufficient evidence that a fact has occurred, then a panel should conclude from that evidence that there 
is [a] presumption  that 'what is claimed is true, the burden then shift[ing] to the other party'."107  
42. The European Communities mainta ins that, when a dispute essentially refers to the same 
measure (that is, a periodic review carried out by  the USDOC) where the same provisions have been 
applied (that is, the United States laws and regulations dealing with periodic reviews), the application 
of the same burden of proof criteria and requireme nts to establish the same presumption by panels and 
the Appellate Body should be expected.  The Eu ropean Communities also notes instances in which 
panels and the Appellate Body were able to r each findings regarding the application of simple 
zeroing.108  The European Communities maintains that, in  those cases, the panels and the Appellate 
Body found that the complaining Member had made out a prima facie  case, establishing a 
presumption that the zeroing methodology was part of the measure, and that the USDOC had used 
zeroing in the periodic reviews concerned in those disputes, based on similar documents to the ones 
provided by the European Communities in the pr esent case.  The European Communities contends 
that "the same presumption  should be concluded, at least , from the same type and amount of 
evidence ", and that panels cannot increase the burden of  proof "in cases where previous panels and the 
Appellate Body have decided that a particular set of facts (or inferences) is enough to make a 
presumption  that what is claimed is true."109 
43. The European Communities argues that, wher e a complaining Member cannot show a 
particular fact because it is impossible to provide  further evidence of that particular fact, such 
evidence should suffice to raise a presumption that th e Member has proven the f act it claims to be 
true.  The European Communities maintains that , in requiring proof in each case that not all
                                                      
105European Communities' appellant's submission, para. 185 (referring to Panel Report, 
paras. 7.151-7.158). 
106European Communities' appellant's submission, para. 186. (original emphasis)   
107European Communities' appellant's submission, para. 188 (original emphasis) (quoting Appellate 
Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335). 
108European Communities' appellant's submission, paras. 191-193 (referring to Panel Report, US – 
Zeroing (EC) , para. 7.144;  Appellate Body Report, US – Zeroing (EC) , para. 135;  Panel Report, US – Stainless 
Steel (Mexico) , para. 7.149;  Appellate Body Report, US – Stainless Steel (Mexico) , para. 139;  Panel Report, 
US – Zeroing (Japan) , paras 4.250 and 7.226;  Appellate Body Report, US – Zeroing (Japan) , para. 175;  Panel 
Report, US – Shrimp (Ecuador) , para. 7.29;  and Panel Report, US – Softwood Lumber V , footnote 341 to 
para. 7.186). 
109European Communities' appellant's submission, para. 195. (original emphasis)  WT/DS350/AB/R 
 Page 19 
 
 
transactions were "dumped", the Panel disregarded the fact that the European Communities could not 
provide more evidence, because the United States did not produce any othe r additional documents 
showing that zeroing was used in a particular pe riodic review.  The European Communities recalls 
that, as it explained to the Panel, the USDOC does not produce a complete transaction-by-transaction 
calculation of the dumping margins from which the a pplication of zeroing can be ascertained.  Thus, 
the documents provided to the Panel in this case we re sufficient to establish the presumption that the 
zeroing methodology was part of the measure and th at the USDOC used zeroing in the seven periodic 
reviews at issue.  The European Communities clarifi es that it is not arguing that the United States 
should have provided evidence that zeroing was not used because the United States had access to the 
complete record of each periodic review.  Rather , the European Communities maintains that it was 
impossible (rather than more difficult) for th e European Communities to produce the additional 
documents the Panel sought.  Consequently, the Eu ropean Communities request s the Appellate Body 
to find that the Panel applied an unreasonable standard  of burden of proof, and to conclude that the 
European Communities supplied sufficient evid ence to raise a presumption that the zeroing 
methodology was used in the seven periodic reviews at issue.  
44. Furthermore, the European Communities submits th at the Panel erred in its interpretation of 
Article 13 of the DSU when it concluded that the European Communities did not ask the Panel to seek 
information from the United States regarding detail ed margin calculations for the seven periodic 
reviews, and that the request of the European Co mmunities "[did] not suffice as a request to the Panel 
to seek specific factual information from the USDOC  pursuant to its authority under Article 13".110  
The European Communities submits th at the language it used in articulating its request was precise 
and contained the specific factual information that  the Panel could, if it considered it necessary, 
request of the United States.  Furthermore, in th e view of the European Communities, nothing in the 
DSU (or more specifically in Article 13) requires a Member to identify expressly under which 
mechanism a panel should seek further informati on from the parties.  The European Communities 
submits that it was up to the Panel to channel such  a request through the most appropriate means.  
Consequently, the fact that the European Commun ities did not expressly refer to Article 13 in its 
request was not sufficient for the Panel to disr egard that request.  The European Communities 
accordingly requests the Appellate Body to find, pursu ant to Articles 17.6 and 17.13 of the DSU, that 
the Panel erred in concluding that the European Communities' statement did not amount to a request 
under Article 13 of the DSU. 
45. Additionally, the European Communities questions  the legal interpretation developed by the
                                                      
110European Communities' appellant's submission, para. 203 (quoting Panel Report, footnote 20 to 
para. 6.20).  WT/DS350/AB/R 
Page 20  
 
Panel in concluding that "it would be inappropriate  for a panel to exercise its authority to seek 
information based on its own judgement as to what information is necessary for a party to prove its 
case, as opposed to seeking information in order to elucidate its understanding of the facts and issues 
in the dispute before it."
111  In the European Communities' view, it is appropriate for a panel to seek 
information "in cases like the present one where the in formation 'necessarily showing' that a particular 
fact 'actually' is true ... is only in the possession of the respondent Member."112  In support of its 
position, the European Communities notes that the Appella te Body has clarified that a panel's right to 
seek information pursuant to Article 13 is discretiona ry, and a panel's authority to ask questions is not 
conditional upon the making out of a prima facie  case by the other party.113  Consequently, the 
European Communities requests the Appellate Body to find that it would have been "appropriate"114 
for the Panel to seek further information corrobora ting the fact that the zeroing methodology was used 
in the seven periodic reviews at issue. 
4. Article 19.1 of the DSU  
46. The European Communities submits that the Pa nel erred when it disregarded the European 
Communities' request for two suggestions pursuant to Article 19.1 of the DSU concerning steps 
necessary for the United States to br ing its measures into conformity with its obligations under the 
covered agreements.  First, the European Comm unities had asked the Panel to suggest "that the 
United States cease using zeroing when calculating dumping margins in any anti-dumping proceeding 
with respect to the 18 measures".115  The European Communities maintains that this suggestion would 
be appropriate to help promote the resolution of th e dispute, because it would provide guidance to the 
United States as to what it must do in order to comply.  Secondly, the European Communities had 
also requested the Panel to suggest "that the Unite d States should take all necessary steps of a general 
or particular nature to ensure that any further specific action against dumping by the United States in 
relation to the same products from the European Co mmunities as referenced in the present dispute be 
WTO consistent".116  In the European Communities' view, th is suggestion would reduce the need for 
"protracted and unnecessary discussions"117 regarding the scope of a compliance panel proceeding.  
The European Communities argues that, while there is a presumption of good faith compliance with 
DSB recommendations and rulings, suggestions would assist in the achievement of the objective of a 
                                                      
111European Communities' appellant's submission, para. 207 (original emphasis) (quoting Panel Report, 
footnote 20 to para. 6.20). 
112European Communities' appellant's submission, para. 208. (original emphasis) 
113European Communities' appellant's submission, pa ra. 209 (referring to Appellate Body Report, EC – 
Bed Linen , para. 166;  Appellate Body Report, EC – Sardines , para. 302;  and Appellate Body Report, Canada – 
Aircraft , paras. 185 and 192).  
114European Communities' appellant's submission, para. 211. (emphasis omitted) 
115European Communities' appellant's submission, para. 215.  
116European Communities' appellant's submission, para. 216. 
117European Communities' appellant's submission, para. 216.   WT/DS350/AB/R 
 Page 21 
 
 
prompt and satisfactory settlement of the dispute, a nd would help clarify the interpretations made by 
the panel and the Appellate Body.118  Thus, the European Communiti es requests the Appellate Body 
to make suggestions pursuant to Article 19.1, and invites the Appellate Body to take into account 
those already made by the European Communities.  
5. Conditional Appeals  
47. The European Communities makes two conditi onal appeals.  First, the European 
Communities recalls the Appellate Body's statements in US – Stainless Steel (Mexico)  and the 
conclusions it made in paragraphs 160 to 162 of that  report.  Should the Appe llate Body construe the 
Panel Report in this dispute "as inconsistent w ith these prior statements by the Appellate Body"119, 
then the European Communities appeals those findings  "for all the reasons set out by the Appellate 
Body in its report in US – Stainless Steel (Mexico) ".120 
48. Secondly, if the United States appeals the Panel' s findings regarding what the Panel referred 
to as "the role of jurisprudence", and if the Appe llate Body  modifies or reverses those findings in 
whole or in part, then the European Communities appeals "what might be construed as substantive 
findings or the exercise of false judicial economy in the Panel Report on the substantive issue of zeroing in administrative reviews".
121  The European Communities further refers to its reasoning 
before the Panel and requests the Appellate Body to  complete the analysis on the basis of that 
reasoning.   
B. Arguments of the United States – Appellee  
1. The Panel's Terms of Reference – Continued Application of 18 Anti-
Dumping Duties  
49. The United States requests the Appellate Body to  reject the European Communities' appeal 
and affirm the Panel's preliminary ruling that th e continued application of 18 anti-dumping duties 
were outside its terms of reference.  Recalling that Article 6.2 of the DSU states that a panel request 
must identify the specific measure at issue, the United States argues that the European Communities' 
panel request was "unclear in numerous respects".122  The United States notes that, in particular, at the 
time of the European Communities' first written s ubmission, it was uncertain what the European 
Communities meant by the "most recent"123 anti-dumping proceeding.  The United States considered 
                                                      
118See European Communities' appellant's submission, paras. 219-221. 
119European Communities' appellant's submission, para. 229. (footnote omitted) 
120European Communities' appellant's submission, para. 229.  
121European Communities' appellant's submission, para. 230. (footnote omitted) 
122United States' appellee's submission, para. 58.  
123United States' appellee's submission, para. 59. WT/DS350/AB/R 
Page 22  
 
that the reference in the panel request to the a pplication or continued application of anti-dumping 
duties in 18 cases "included an indefinite number of  measures resulting from current, past, and future 
antidumping determinations" and that these "alleged  18 'duties' were therefore not specifically 
identified, as required by Article 6.2 of the DSU".
124  
50. The United States alleges that the European Communities admitted the "broad, indeterminate 
nature" of the 18 duties when, in response to the Un ited States' request for a preliminary ruling, the 
European Communities noted that its panel request pertained to all "subsequent measures" adopted by 
the United States with respect to the 18 duties, and to any "subsequent modification" of the measures 
concerning the level of duty.125  The United States noted before th e Panel that, under the DSU, such 
subsequent measures, proceedings, and modificati ons "could not be subject to dispute settlement"126 
since they were not in existence at the time of the Panel's establishment.  According to the United 
States, the European Communities was "improperly trying to include the application or continued 
application of duties resulting from determinations th at have not yet been made";  the United States, 
however, "could not determine when these determina tions were or will be made, what calculations 
they did or will include, what duty rates they have  established or will establish, and what individual 
companies they did or will cover".127  
51. The United States submits that the European Co mmunities' concept of "duty as a measure" is 
"some type of free-standing measure that had a life of its own beyond the 52 pa rticular determinations 
identified in its panel request".128  In the view of the United States,  the characterization of the measure 
ignores that, "for any given importation, the antidumping duty imposed or assessed depends on a 
particular administrative determination"129, and that the continued existence of an anti-dumping duty 
order depends on a sunset review.  Consequently, the United States submits that the panel request 
could not fulfil the requirements of Article 6.2 unless  it identified the specific determination related to 
the particular anti-dumping duty.  Because these measu res could not have existed at the time of its 
request for consultations, or at the time of the est ablishment of the Panel, they cannot be within its 
terms of reference.  The United States claims that, by requesting a preliminary ruling, it was not trying to "unilaterally reformulat[e]"
130 the case of the European Commun ities, but rather understood that 
"the application or continued application of antidumping duties had to result from an underlying 
                                                      
124United States' appellee's submission, para. 59. (footnote omitted) 
125United States' appellee's submissi on, para. 60 (referring to European Communities' response to 
United States' preliminary objections, paras. 47 and 48). 
126United States' appellee's submission, para. 61.  
127United States' appellee's submission, para. 61. (footnote omitted) 
128United States' appellee's submission, para. 62. (footnote omitted) 
129United States' appellee's submission, para. 62. 
130United States' appellee's submission, para. 64 (emphasis omitted) (quoting European Communities' 
appellant's submission, para. 52).   WT/DS350/AB/R 
 Page 23 
 
 
antidumping determination".131  By not identifying the determination giving rise to the particular duty 
in the 18 cases, the European Co mmunities "failed to identify the specific  measure at issue".132     
52. The United States maintains that it "has not accepted"133 that anti-dumping duties related to 
the 18 cases will be applied in all future instances, nor  that zeroing will be used in the determinations 
potentially giving rise to such duties.  As the United States explains, it is "entirely possible"134 that 
subsequent determinations will yield a zero or de minimis  duty, that future sunset reviews could lead 
to revocation of an anti-dumping order, or that a particular period will result in no negative margins 
that would require zeroing.  For the United States,  it was unfounded for the European Communities to 
state that a "part of the measure ... does not change over time, namely the zeroing methodology as used in the final order and programmed to continue  to be used until such time as the United States 
eliminates zeroing from the particular  anti-dumping duty under consideration."
135  The United States 
also submits that the European Communities' approa ch would have a detrimental effect on the dispute 
settlement system because it disregards the rights of other Members who may rely on the description 
of the measures identified in the panel request when  deciding whether to participate as third parties. 
53. The United States argues that the Panel's analysis of the lack of specificity in the European 
Communities' panel request was not flawed.  Regard ing the European Communities' argument that it 
"would have been impossible  for the [European Communities'] Panel Request to be any more 
specific "136, the United States contends that it would have  been impossible to be more specific given 
that the measures were not yet in existence.  In any event, the fact that  the European Communities 
could not have been more specific does not mean  that the panel request identified the specific 
measures at issue in accordance with Article 6.2 of the DSU.   
54. The United States also argues that the Panel pr operly considered jurisdictional issues arising 
from the United States' request for a preliminary ruling.  The United States submits that, although it 
raised its objection as a preliminary matter, this does not mean that it has the burden of proof, because 
the complaining party has a duty to comply with Article 6.2.137  The United States responds next to 
the European Communities' arguments that the Unite d States had the burden of raising an issue under 
Article 3.3 of the DSU, and that the Panel must not make the case for the defending Member.  First, 
                                                      
131United States' appellee's submission, para. 65. 
132United States' appellee's submission, para. 65. (original emphasis) 
133United States' appellee's submission, para. 67.  
134United States' appellee's submission, para. 67. 
135United States' appellee's submission, para. 67 (quoting European Communities' appellant's 
submission, para. 36). 
136United States' appellee's submission, para. 71 (quoting European Communities' appellant's 
submission para. 50 (original emphasis)).  
137United States' appellee's submission, para. 75 (referring to Appellate Body Report, EC – 
Bananas III , para. 144). WT/DS350/AB/R 
Page 24  
 
the United States alleges that the European Co mmunities "ignores the actual rules governing the 
Panel's authority to address issues pertaining to its terms of reference, as well as the rules related to 
the burden of proof in this dispute".
138  The United States argues that, ev en if it had not raised the 
preliminary objection, the Panel was entitle d to examine the issue of its own accord.139  The United 
States submits that the issue of whether a specific measure is identified in a complaining Member's 
panel request goes to the "root" of a panel's jurisd iction and that the Panel "was not required to wait 
for the United States to raise the issue".140 
55. The United States also disagrees with the Eur opean Communities' characterization of the 
rules concerning burden of proof in WTO dispute settlement.  The United States endorses the Panel's observation that the European Communiti es was under an obligation to make a prima facie  case and 
provide proof thereof, and also refers to a panel's obligations under Article 11 of the DSU.  According 
to the United States, the European Communities faults the Panel "for making the very inquiry that it 
was required to make as part of its objective assessment of the matter".
141  Further, the United States 
maintains that the European Communities did not articulate how the Panel's findings violate 
Article 12.1 of the DSU, or the Working Pr ocedures for panels in Appendix 3 thereto.142  
56. The United States submits that the Panel properl y examined the alleged measures and issues 
and found that they fell outside its terms of refere nce under Article 6.2.  The United States argues that, 
because Article 3.3 of the DSU does not define a measure, or relate to the identification of a measure in a panel request or in a panel's terms of referen ce, it fails to see how Article 3.3 provides a basis for 
the European Communities' appeal.  According to the United States,  the Panel "properly understood 
that an inquiry under Article 6.2 is related to the issue of whether the thing being challenged is 
classifiable as a 'measure', as that term is u sed in Article 6.2 and throughout the DSU."
143  I n  t h e  
United States' view, "if something is not even a 'me asure', then it is not, and cannot be, 'specifically 
identified' for the purposes of DSU Article 6.2".144  Thus, there is no dichotomy between a so-called 
"substantive" issue under Article 3.3 of the DSU an d a so-called "procedural" issue under Article 6.2 
of the DSU.  The issue as to what a Member may in clude in a panel request "is an issue presented by 
the text of Article 6.2 of the DSU and thus properly considered by the Panel".145  The United States 
considers that the European Communities' pos ition is "disingenuous" because the European 
                                                      
138United States' appellee's submission, para. 76. 
139United States' appellee's submission, para. 77 (referring to Appellate Body Report, Mexico – Corn 
Syrup (Article 21.5 – US) , para. 36). 
140United States' appellee's submission, para. 77. 
141United States' appellee's submission, para. 81. (footnote omitted) 
142United States' appellee's submission, para. 82. 
143United States' appellee's submission, para. 86. (footnote omitted) 
144United States' appellee's submission, para. 86.  
145United States' appellee's submission, para. 87.  WT/DS350/AB/R 
 Page 25 
 
 
Communities "itself asked the Panel to consider th e issue of whether the application or continued 
application of antidumping duties in 18 'cases' we re measures when ruling on the [United States'] 
preliminary objection under Article 6.2 of the DSU."146 
57. The United States agrees with the Panel's c onclusion that the duties challenged by the 
European Communities were "in isolation from a ny proceeding in which su ch duties have been 
calculated, allegedly through zeroing ", and that it therefore "did not consider this [description] to 
represent a measure in and of itself".147  The United States also expresses support for the Panel's 
observation that "the application or  continued application of antidumping duties in the 18 'cases' could 
not exist as a 'measure' separate and apart from the underlying determinations which would give rise 
to each instance of such application or continued application."148  As the United States asserts, 
divorcing the underlying determination from the appli cation or continued application of anti-dumping 
duties is exactly what the Eur opean Communities intended by merely referring to application or 
continued application "in a general and detached way".149  The United States can see why the Panel 
was "at a loss to understand how the 18 'duties' c ould contain the same precise content as the so-called 
zeroing methodology which had been challenged 'as such' in other disputes, when the [European 
Communities] stated that it was not challenging that methodology 'as such' in this dispute."150 
58. Finally, the United States argues that the Eur opean Communities' reliance on the need for the 
prompt and effective settlement of the dispute, and the need to ensure proper compliance by the 
United States in the light of prior disputes, is "unfounded".151  In any event, these arguments do not 
justify a departure from the requirements of the DSU related to the identifica tion of specific measures 
by the complaining party.  The United States agrees w ith the Panel that events in other disputes do not 
have a bearing on the Panel's analysis of the comp liance of the European Communities' panel request 
with Article 6.2 of the DSU. 
59. With regard to the European Communities' clai m that the Panel Report is inconsistent with 
Article 7.2 of the DSU, the United States submits  that the European Communities "fundamentally 
misinterprets"152 that provision.  The United States notes th at the Appellate Body has recognized that 
"a panel is not ... required to examine all legal claims made before it" but may "exercise judicial 
                                                      
146United States' appellee's submission, para. 88. 
147United States' appellee's submission, para. 90 (quoting Panel Report, para. 7.56).  
148United States' appellee's submission, para. 93. 
149United States' appellee's submission, para. 93. 
150United States' appellee's submission, para. 95. 
151United States' appellee's submission, para. 96.  
152United States' appellee's submission, para. 100.  WT/DS350/AB/R 
Page 26  
 
economy".
153  Thus, the Panel was not required to addr ess explicitly each and every argument made 
by the European Communities.  Moreover, Article 7. 2 applies to a panel's discharge of the matters 
within its terms of reference.  Thus, where a meas ure is not within a panel's terms of reference, 
Article 7.2 "does not operate to expand the term s of reference and require a panel to discuss 
provisions of the covered agreements with respect to such measures".154  In addition, the United States 
submits that, in connection with its claim under Ar ticle 11 of the DSU, th e European Communities 
failed "to argue how the Panel allegedly fa iled to undertake an objective assessment"155 of the United 
States' preliminary objection. 
60. The United States further asserts that the Eur opean Communities' claim under Article 12.7 is 
unfounded and should be rejected.  The United St ates maintains that the Panel provided a detailed 
legal and factual analysis of the United States' prel iminary objection and "laid out the rationale behind 
its findings".156  Moreover, the United States asserts th at the European Communities "devoted 
considerable space" in its appellant's submission "to criticizing the very rationale and analysis that the 
[European Communities] now says does not exist".157 
61. On this basis, the United States requests the A ppellate Body to uphold the Panel's conclusions 
that the 18 duties were not within its terms of re ference, and to reject the European Communities' 
request to complete the analysis.  If the Panel's conclusions are reversed, the United States asks the 
Appellate Body to exercise judicial economy and not complete the analysis.  Should the Appellate Body decide to complete the analysis, the United States asks the Appellate Body to find that the 
application or continued application of the 18 an ti-dumping duties is not inconsistent with the Anti-
Dumping Agreement , the GATT 1994, and the WTO Agreement .
158 
2. The Panel's Terms of Reference – Four Preliminary Determinations  
62. The United States asks the Appellate Body to re ject the European Communities' appeal of the 
Panel's finding that the three preliminary sunset re view determinations and one periodic review were 
outside the Panel's terms of reference.  The Un ited States submits that none of these proceedings 
constituted "final action" within the meaning of Article 17.4 of the Anti-Dumping Agreement .  
According to the United States, at the time of the pa nel request, it had not yet made a decision to levy 
                                                      
153United States' appellee's submission, para. 101 (quoting Appellate Body Report, Canada – Autos , 
para. 114 (original emphasis)). 
154United States' appellee's submission, para. 102. (footnote omitted) 
155United States' appellee's submission, para. 103. 
156United States' appellee's submission, para. 105.  
157United States' appellee's submission, para. 105. (footnote omitted) 
158The United States also argues that the Appellate Body should reject the European Communities' 
appeal concerning the designation of certain United States communications as a "WT/DS" document.  (United 
States' appellee's submission, para. 108)  WT/DS350/AB/R 
 Page 27 
 
 
definitive duties, and it was "entirely possible"159 that no definitive anti-dumping duties would be 
levied, or would continue to be levied.  The Unite d States also maintains that the Panel "properly 
concluded" that the European Communities' challenge  did not fit within the exception to the finality 
requirement in Article 17.4 reserved for "provisional measures".160   
63. The United States contends that the matter before the Panel involved duties " calculated or 
maintained in place pursuant to the most recent [anti-dumping proceedings]".161  The United States 
submits that the European Communities cannot avoi d the finality requirement of Article 17.4 by 
relying on the notion that the preliminar y measures were "subsequent measures"162 that were part of 
the European Communities' panel request.  The Unite d States maintains that this argument ignores the 
plain text of Article 17.4, which requires that  the investigating authority has taken final  action by the 
time of the panel request.  Therefore, neither ongoing periodic reviews (which "do[] not affect the 
cash deposit rate or the assessment rate"), nor ongoi ng sunset reviews (which "only result in the 
continuation of an order, and th e imposition of duties ... once a final determination has been made"), 
can be classified as final action to levy definitive anti-dumping duties.163  The United States also 
rejects reliance by the European Communities on Appellate Body rulings that, it asserts, do not 
address the issue of whether a preliminary dete rmination can be challenged in WTO dispute 
settlement.164  Finally, with regard to the argument that  the four preliminary determinations were 
within the Panel's terms of reference, and the re quest of the European Co mmunities that the Panel 
consider the "special circumstances"165 of this dispute, the United States maintains that the Panel 
properly found that both of these arguments lack a legal basis in the Anti-Dumping Agreement , and 
could not justify a departure from the finality requirement of Article 17.4. 
64. On this basis, the United States asks the Appella te Body to reject the European Communities' 
appeal and affirm the Panel's finding that the f our preliminary determinations in the European 
Communities' panel request were outside  the Panel's terms of reference. 
3. Article 11 of the DSU – Seven Periodic Reviews  
65. The United States asserts that the European  Communities failed to meet its burden of
                                                      
159United States' appellee's submission, para. 112. 
160United States' appellee's submission, para. 113.  
161United States' appellee's submission, para. 114 (quoting European Communities' appellant's 
submission, para. 87 (original emphasis)).  
162United States' appellee's submission, para. 115. 
163United States' appellee's submission, para. 116.  
164United States' appellee's submission, paras. 117-119 (referring to Appellate Body Report, 
Guatemala – Cement I , para. 79;  and Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , 
paras. 7.44 and 7.45).  
165United States' appellee's submission, para. 121 (quoting Panel Report, para. 7.76). WT/DS350/AB/R 
Page 28  
 
demonstrating that zeroing was employed in the sev en periodic reviews at issue, and that the Panel 
"properly excluded those reviews from its terms of reference".
166  The United States recalls that it had 
explained to the Panel that it was able to c onfirm the accuracy of only the USDOC-generated 
documents, and that, apart from published Federal Register  Notices and Issues and Decision 
Memoranda, "the origin of the re maining documents ... was unclear."167  The United States notes that 
it further explained to the Panel that it could not confirm the accuracy of documents, program logs, 
printouts, or margins produced by the European Communities' legal advisors, which the European 
Communities claims are the result of the USDOC's St andard Margin Program without the application 
of the zeroing methodology.  The United States subm its that at no point during the Panel proceedings 
did the European Communities "identify whether its submitted documentation was [USDOC]-generated, or otherwise inform  the Panel as to its source".
168 
66. The United States submits that the Panel's fact ual determinations in this case as to whether 
zeroing was employed in the challenged periodic revi ews, as distinguished from legal interpretations 
or legal conclusions by a panel, are, in principle,  not subject to review by the Appellate Body.  The 
United States refers to the Appellate Body's statemen t that it will interfere with a panel's factual 
finding only if it is satisfied that the panel has exceeded the bounds of its discretion as the trier of 
facts, and that it will not interfere lightly with the exercise of that discretion.169  In the view of the 
United States, the assertions by the European Comm unities that the Panel "ignored", "misinterpreted", 
or "misunderstood" the totality of the evidence before it "is based solely on the [European 
Communities'] disagreement with the Panel' s conclusion as to the submitted evidence".170  This, the 
United States contends, is not an appropriate or co rrect standard of review by the Appellate Body.  
The United States asserts that the Panel fully disch arged its duty under Article 11 by considering the 
full range of evidence that was put before it as to thes e seven reviews.  The United States adds that the 
reasoning set forth by the Panel "reveals that its conclusion was based on its full and careful 
consideration of all the evidence before it".171 
67. The United States submits that the Europ ean Communities' evidence and argument " never 
established that the submitted documents  were generated by [the USDOC]".172  As a result, the United 
States contends that the factual component of its claim that the USDOC had employed the zeroing 
                                                      
166United States' appellee's submission, para. 123 (referring to Panel Report, paras. 7.151-7.158).  
167United States' appellee's submission, para. 125 (referring to United States' response to Panel 
Question 7(b) following the second meeting, paras. 6 and 7).  
168United States' appellee's submission, para. 127. 
169United States' appellee's submission, para. 138 (referring to Appellate Body Report, US – Wheat 
Gluten , para. 151). 
170United States' appellee's submission, para. 138.  
171United States' appellee's submission, para. 139 (referring to Panel Report, paras. 6.7-6.20 
and 7.145-7.158).  
172United States' appellee's submission, para. 140. (original emphasis)  WT/DS350/AB/R 
 Page 29 
 
 
methodology was never established for the seven peri odic reviews.  The United States argues that the 
burden rested with the European Communities, as th e complaining party, to prove all components of 
its "as applied" claims.  The United States furthe r submits that, "[a]t a minimum, the [European 
Communities] was required to supply the Panel with documentation showing that 'zeroing' was in fact 
employed by [the USDOC] in the administrative reviews challenged."173  The European Communities, 
however, made " no attempt"174, despite several questions from the Panel concerning the evidence, to 
authenticate the documentation.  Accordingly, the Panel "properly and correctly concluded"175 that it 
could not be established that the European Comm unities' evidence was generated by the USDOC.   
68. The United States argues that the European Commun ities is trying to establish the origin of its 
documentation for the first time on appeal, and that, because such explanations were never before the 
Panel, the European Communities' arguments relati ng to the Panel's breach of Article 11 in this 
respect must fail.  As the United States contends, "[n]ewly formed explanations of evidence and much 
belated attempts to authenticate its evidence before the Appellate Body have no place in the context of 
review by the Appellate Body given the prescribed limits of Article 17.6 of the DSU."176  In addition, 
the United States argues that th e European Communities is placing the Appellate Body in the 
"untenable position"177 of weighing evidence never before considered by the Panel, something the 
Appellate Body has declined to entertain in prior instances.  
69. The United States argues that, in any event, the European Communities' new attempt at 
authenticating evidence also fails to establish th at the evidence was generated by the USDOC, and 
thus does not demonstrate that zeroing was used in these seven periodic reviews.  The United States 
claims that the European Communities' assertions rega rding the use of an alleged "standard computer 
program", which requires negative margins to be treated as zero, must fail since the USDOC "does 
not have a 'standard program' that it applies in all cases, nor does it have a program that 'mandates' the 
zeroing of negative margins in all cases."178  Instead, as it purportedly explained to the Panel at the 
interim review stage, the United States submits that "the computer program that performs the 
calculations starts as a basic template, and the template is then tailored to a particular 
exporter/producer for every case in which an antidumping calculation is performed."179  The United 
States further submits that, because the Europ ean Communities did not provide the Panel with 
evidence demonstrating the contents of the a lleged "Standard Margin Program", nor evidence 
                                                      
173United States' appellee's submission, para. 141.  
174United States' appellee's submission, para. 143. (original emphasis) 
175United States' appellee's submission, para. 143.  
176United States' appellee's submission, para. 145.   
177United States' appellee's submission, para. 145 (referring to Appellate Body Report, Canada – 
Aircraft , para. 211).   
178United States' appellee's submission, para. 146. 
179United States' appellee's submission, para. 14 6. (original emphasis; footnote omitted)  WT/DS350/AB/R 
Page 30  
 
demonstrating that such a program could not be a ltered in particular cases, the European Communities 
cannot point to a "Standard Margin Program" to s upport its argument that zeroing was applied in any 
particular periodic review.  Moreover, the United States asserts that the European Communities did 
not authenticate the Standard Margin Program s or the Program Logs as USDOC-generated 
documents.  The United States also contends that no review-specific documentation was submitted in 
support of the European Communities' challenges to the two periodic reviews in Stainless Steel Bar 
from France (Case V – Nos. 20 and 21). 
70. The United States also submits that, contrary to  the European Communities' claim, the Panel 
applied the correct standard of the burden of pr oof.  The United States argues that the European 
Communities cannot summarily discharge its burden by  "simply claiming that such information is 
available from the defending Member, while maki ng only cursory efforts on its own behalf to 
establish the basis for its complaint".
180  Moreover, the United States submits that there is nothing in 
the Panel Report to suggest that it required a partic ular type of document, such as the full transaction 
listing generated by the USDOC.  Rather, in the United States' view, "the Panel desired any document 
generated by [the USDOC]"181 that demonstrated the use of zeroing.  The United States also contests 
the European Communities' argument that it was "i mpossible" to have obtai ned documents generated 
by the USDOC with respect to th e challenged reviews, arguing that the European Communities never 
indicated that it had "attempted, but was unable,  to obtain the requisite documentation from [the 
USDOC's] records office".182 
71. The United States also disagrees with the Eur opean Communities' claim that the Panel erred 
in its interpretation of Article 13 of the DSU.  The United States argues that the Panel was under no 
obligation to seek further information pursuant to Article 13 of the DSU, and that the European 
Communities' claim appears to be no more than an improper attempt to  shift its rightful burden back 
to the Panel.  Recalling prior Appellate Body ju risprudence concerning Article 13 of the DSU, the 
United States submits that the Panel's right to seek information is discretionary and that the Panel's 
"comprehension of the evidence was not lacking,  such that it needed to request further 
clarification"183, and, moreover, the Panel did not find th e United States to have withheld requested 
information.  The United States further argues that  the Panel had no reason to treat the European 
Communities' "blanket suggestion"184 that the documentation at issue should be obtained from the 
United States as a formal request to seek informa tion pursuant to Article 13.  Finally, recalling the 
                                                      
180United States' appellee's submission, para. 151. 
181United States' appellee's submission, para. 152. (original emphasis) 
182United States' appellee's submission, para. 152. 
183United States' appellee's submission, para. 156.  See also ibid., para. 155 (referring to Appellate 
Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 166 and 167). 
184United States' appellee's submission, para. 157.  WT/DS350/AB/R 
 Page 31 
 
 
Appellate Body's statement that a violation of the requirement in Article 11 of the DSU to make an 
objective assessment "c annot result from the due exercise of the discretion permitted by another 
provision of the DSU"185, the United States submits that the Eu ropean Communities' allegations of a 
violation pursuant to Article 13 cannot suppor t a claim of violation of Article 11. 
4. Article 19.1 of the DSU  
72. The United States submits that it is "entirely with in a panel's discretion to make a suggestion" 
pursuant to Article 19.1 of the DSU, and that panels  "should not, and do not" exercise their authority 
to make such suggestions lightly.186  The United States further argues that the Panel was not required 
to give a reason as to why it chose to reject the European Communities' request to make a suggestion 
for implementation.  The United States also submit s that there is no textual basis for reliance on 
Article 19.2 to address the European Communities' pu rported concerns regardi ng compliance.  As the 
United States maintains, Article 19.1 "says nothing about making suggestions to deal with potential 
future disputes concerning the scope of complia nce proceedings under Article 21.5 of the DSU".187  
The United States further argues that the Panel was "charged with resolving the dispute within its 
terms of reference, and had no duty, obligation, or responsibility of predicting whether or what 
compliance issues would arise under Article 21.5,  and crafting suggestions to address such 
hypothetical scenarios".188 
73. In addition, the United States submits that th e European Communities'  suggestion also goes 
beyond the limits of the second sentence of Article 19. 1 because it appears to address future "specific 
action against dumping"189, even though such future actions may bear no relationship to any specific 
recommendations in the present dispute.  Further, even if the proposed suggestion is read more 
narrowly, "it appears that the [European Communities]  was trying to have the Panel treat any and all 
subsequent determinations rela ted to the 18 duties as falling within the scope of the panel 
proceeding"190 which were not in existence at the time of  the Panel's establishment.  Accordingly, the 
United States contends, such measures fell outside th e Panel's terms of refere nce and the Panel could 
therefore not make any suggestions concerning th em.  For these reasons, the United States asks the 
Appellate Body to reject the appeal of the Eur opean Communities regarding the Panel's refusal to 
make a suggestion. 
                                                      
185United States' appellee's submission, para. 158 (emphasis added) (quoting Appellate Body Report, 
EC – Bed Linen (Article 21.5 – India) , para. 166, in turn quoting Appellate Body Report, EC – Sardines , 
para. 302).  
186United States' appellee's submission, para. 160. 
187United States' appellee's submission, para. 163.  
188United States' appellee's submission, para. 163. 
189United States' appellee's submission, para. 164 (quoting European Communities' closing statement at 
the second meeting). 
190United States' appellee's submission, para. 164. WT/DS350/AB/R 
Page 32  
 
5. Conditional Appeals
 
74. In the United States' view, the European Co mmunities' conditional appeal regarding the 
relevance of prior Appellate B ody findings, including those in US – Stainless Steel (Mexico) , should 
be rejected.  First, the United States argues that  the European Communitie s fails to identify an 
erroneous finding of law or legal interpretati on and, instead, seeks "to shift the burden to the 
Appellate Body to develop the argum entation and explanation in the first instance of whether there is 
a legal error".191  Secondly, the United States submits that , because the only conceivable basis for a 
claim of error would seem to be under Article 11 of the DSU, and the European Communities asserts 
no such error, the European Communities' clai m should be rejected on this basis as well. 
75. The United States argues that the European Co mmunities is essentially asking the Appellate 
Body to assess the consistency of the Panel Report with the Appellate Body's dicta in US – Stainless 
Steel (Mexico) .  The United States maintains, however, that the Panel was bound by neither the 
findings, nor the dicta, of the Appellate Body in a prior, unrelated dispute.  Moreover, the United 
States contends that the Ministerial Conference a nd the General Council have the exclusive authority 
to adopt binding interpretations of the c overed agreements under Article IX:2 of the WTO Agreement .  
In the view of the United States, treating prior re ports as binding outside the scope of the original 
dispute would add to the obligations of the Unite d States and other Members, inconsistent with 
Articles 3.2 and 19.1 of the DSU.  Consequently , the European Communities cannot treat Appellate 
Body statements from a prior report as authorita tive and then ask the Appellate Body under 
Article 17.6 of the DSU to assess whether the Panel acted consistently with that report. 
76. The United States submits that the Europ ean Communities' second conditional appeal 
regarding the Panel's exercise of judicial economy should be rejected as it "does not explain why the 
Panel's exercise of judicial economy was false, or legally erroneous".192  As a result, the European 
Communities "has failed to provide a basis for the A ppellate Body to rule on that claim on appeal".193  
Furthermore, the United States submits that, becau se the Panel made no legal interpretations other 
than in relation to Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement , if 
the Appellate Body reverses the Panel's findings, it should not complete the analysis by making "legal 
interpretations for the first time as  to issues the Panel never reached".194  Finally, the United States 
submits that it has fully demonstrated in its wr itten submissions and at the Panel's substantive 
meetings with the parties that the provisions of the WTO agreements invoked by the European 
Communities do not require "offsets" for negative marg ins in periodic reviews.  Accordingly, if the 
                                                      
191United States' appellee's submission, para. 167. 
192United States' appellee's submission, para. 172.  
193United States' appellee's submission, para. 172.  
194United States' appellee's submission, para. 172.  WT/DS350/AB/R 
 Page 33 
 
 
Appellate Body decides to complete the analysis , the United States requests the Appellate Body to 
reject the European Communities' claims regardi ng the challenged periodic reviews, and to find 
instead that the United States did not act incons istently with the relevant provisions of the 
GATT 1994 and the Anti-Dumping Agreement . 
C. Claims of Error by the United States – Other Appellant  
1. The Panel's Terms of Reference – 14 Additional Measures  
77. The United States requests the Appellate Body to  reverse the Panel's finding that the 14 
periodic and sunset reviews195 that were identified in the Eur opean Communities' panel request, but 
not in its request for consultations, were within th e Panel's terms of reference.  In support of its 
request, the United States submits that Articles 4 and 6 of the DSU, together with Articles 17.3, 17.4, 
and 17.5 of the Anti-Dumping Agreement , set forth the "fundamental jurisdictional requirement"196 for 
a complainant to request consultations on a matter before referring the matter to the DSB for the 
establishment of a panel.  The United States conte nds that "under the special and additional rules 
contained in the [ Anti-Dumping Agreement ] as well as under the DSU, a measure that is outside the 
request for consultations cannot be included in a pa nel request or in a panel's terms of reference."197 
78. In the view of the United States, the Panel "misconstrued"198 the meaning of, and the 
relationship between, the relevant provisions of the DSU concerning requests for consultations and 
panel requests, and thereby "incorrectly rejected the [United States'] preliminary objection on the 
grounds that the panel request referred to the 'same dispute' or 'same subject matter' as the 
consultation request".199  For the United States, the "critical question" under the DSU is whether the 
additional measures included in the panel request are "in essence the same measures " as those 
identified in the request for consultations.200  The United States purports to find support for its 
position in the Appellate Body's finding in US – Certain EC Products , where the Appellate Body 
clarified that "the scope of measures subject to estab lishment of a panel is defined by the consultations 
request, and that a separate and 'legally distinct ' measure may not be added in the panel request."201  
79. The United States contends that the Europ ean Communities' request for consultations 
identified separate anti-dumping measures that are "lega lly distinct" under United States law, and that 
                                                      
195See infra , footnote 497. 
196United States' other appellant's submission, para. 29. 
197United States' other appellant's submission, para. 28. 
198United States' other appellant's submission, para. 30.  
199United States' other appellant's submission, para. 33 (referring to Panel Report, paras. 7.23 and 7.28). 
200United States' other appellant's submission, para. 33. (original emphasis) 
201United States' other appellant's submission, para. 34 (referring to Appellate Body Report, US – 
Certain EC Products , paras. 59, 60 and 82). WT/DS350/AB/R 
Page 34  
 
the European Communities subsequently added 14 "legally distinct" anti-dumping measures to its 
panel request.
202  The 14 additional measures, even if they pertained to the same subject merchandise 
as the measures listed in the request for consultati ons, resulted from different proceedings.  Given that  
the measures "each involved different time fram es and different calculations using different 
information and data"203, they were "substantively and procedurally"204 different from the measures in 
the consultations request.  The United States argues th at the Panel wrongly found that the 14 measures 
were within its terms of refere nce based on "striking similarities"205 between those measures and other 
measures that had been identified in the Europ ean Communities' request for consultations.  The 
United States further argues that the Panel' s reliance on the Appellate Body's finding in Brazil – 
Aircraft is misplaced because, in that case, "the Appella te Body recognized that the consultations and 
panel request contained essentially the sam e measures, unlike the situation here."206 
80. The United States also notes that the Panel f ound that the European Communities' challenge 
to the continued application of the 18 anti-dumpi ng duties at issue did not meet the specificity 
requirement of Article 6.2 of th e DSU, and these alleged 18 measures were therefore outside the 
Panel's terms of reference.  Shoul d the Appellate Body reverse the Panel's finding on specificity, the 
United States requests the Appellate Body to find that the alleged 18 measures were "outside the 
Panel's terms of reference on the grounds that they were identified in the [European Communities'] 
panel request, but not in its consultations request".207 
2. Simple Zeroing as Applied in 29 Periodic Reviews  
81. The United States requests the Appellate Body to  reverse the Panel's finding that zeroing, as 
applied by the USDOC in 29 periodic reviews, is inconsistent with Article VI:2 of the GATT 1994 
and Article 9.3 of the Anti-Dumping Agreement . 
82. The United States argues that the Panel misapplied the standard of review set out in 
Article 17.6(ii) of the Anti-Dumping Agreement .  According to the United States, the Panel viewed the 
Anti-Dumping Agreement  "as admitting of more than one permissible interpretation" and that the use 
of zeroing in periodic reviews rests "on one of those interpretations".208  On this basis, the Panel 
should have found that the application of simple zeroing in the 29 reviews was permissible under the
                                                      
202United States' other appellant's submission, para. 35. 
203United States' other appellant's submission, para. 35. 
204United States' other appellant's submission, para. 37. 
205United States' other appellant's submission, para. 36 (referring to Panel Report, para. 7.27). 
206United States' other appellant's submission, para. 38 (referring to Appellate Body Report, Brazil – 
Aircraft , paras. 127-129 and 132). 
207United States' other appellant's submission, footnote 6 to para. 26.  
208United States' other appellant's submission, para. 51.  WT/DS350/AB/R 
 Page 35 
 
 
Anti-Dumping Agreement .  The United States suggests that the Panel's departure from the 
requirements of Article 17.6(ii) appears to rely on Articles 3.2 and 3.3 of the DSU.  However, 
Article 1.2 of the DSU specifies that the provisio ns of the DSU are "'subject to' the special or 
additional rules listed in Appendix 2 to the DSU"209, which includes Article 17.6(ii) of the Anti-
Dumping Agreement .  The United States adds that Article 17.6(ii) was negotiated as a recognition that 
some provisions of the Anti-Dumping Agreement would be susceptible to multiple permissible 
interpretations.  According to the United States, "the Panel erred by setting aside that carefully 
negotiated standard of review"210, and instead finding that the Unite d States acted inconsistently with 
its obligations under the Anti-Dumping Agreement . 
83. Turning to Article 2.1 of the Article VI of the GATT 1994 and the Anti-Dumping Agreement , 
the United States argues that these provisions "do not define 'dumping' and 'mar gins of dumping' so as 
to require that export transactions be examined at an aggregate level".211  Instead, the definition of 
dumping in these provisions "describes the real-world commercial conduct by which a product is imported into a country, i.e., transaction by transaction"
212, whereas the European Communities 
wrongly considers that those terms apply to the product under investigation "as a whole".213  T h e  
United States argues that the European Communities'  interpretation relies on the term "product" as 
being synonymous with "the concept that dumping may only be determined on an exporter-specific 
basis".214  However, the United States maintains that the term "product" as used throughout the Anti-
Dumping Agreement  and the GATT 1994 "can have either a collective meaning or an individual 
meaning".215  The United States argues, for ex ample, that Article 2.6 of the Anti-Dumping Agreement 
uses the term "product" in a coll ective sense;  by contrast, Article VII:3 of the GATT 1994—which 
refers to "[t]he value for customs purposes of an y imported product"—uses the term "in the individual 
sense of the object of a particular transaction".216  The United States contends that the ordinary 
meaning of the terms "product" and "products" do not compel a reading of those terms as excluding 
individual transactions.  
84. The United States further submits that there is no reason why a Member may not "establish 
the 'margin of dumping' on the basis of the total amount by which transaction-specific export prices 
                                                      
209United States' other appellant's submission, para. 52. 
210United States' other appellant's submission, para. 53. 
211United States' other appellant's submission, para. 60 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 140). 
212United States' other appellant's submission, para. 60 (referring to Panel Report, US – Zeroing (EC) , 
para. 7.285). 
213United States' other appellant's submission, para . 62 (referring to European Communities' first 
written submission to the Panel, Panel Re port, Annex A-1, p. A-45, para. 194). 
214United States' other appellant's submission, para. 62. 
215United States' other appellant's submission, para. 63. 
216United States' other appellant's submission, para. 63. WT/DS350/AB/R 
Page 36  
 
are less than the transaction-specific normal values".
217  According to the United States, the term 
"margin of dumping", as used elsewhere in the GATT 1994 and the Anti-Dumping Agreement , "does 
not refer exclusively to the aggregated results of comparisons for the 'product as a whole'".218  For 
example, "[a]s used in the Note Ad Article VI :1, which provides for an importer-specific price 
comparison, the term 'margin of dum ping' cannot relate to aggregated  results of all comparisons for 
the 'product as a whole' because an exporter or fo reign producer may make export transactions using 
multiple importers."219  
85. The United States disagrees with the Appellate  Body's finding that a "determination of 
dumping with respect to an exporter is properl y made not at the level of individual export 
transactions, but on the basis of the totality of an exporter's transactions of the subject merchandise 
over the period of investigation."220  The United States argues that this reasoning does not provide any 
textual references that direct the calculation of a ma rgin of dumping to be done only "at the level of 
multiple transactions"221, or that would preclude the calculation of a margin of dumping on a 
transaction-specific level.  The United States contends  that the Appellate Body failed to take into 
account the possibility that the definitions of "dum ping" and "margin of dumping" could incorporate 
the same level of "flexibility of meaning"222 as that of the term "product", which has both a collective 
and transaction-specific meaning.  Additionally, because the Appellate Body's decision seems to 
imply that there is no "temporal limit to the extent of the obligation to continue aggregating comparison results ... [a]ny attempt to set an end da te to the obligated aggregation would appear to 
arbitrarily subdivide the 'product as a whole' such  that subsequent non-dum ped transactions may be 
'zeroed' due to the fact they would be preclude d from offsetting current antidumping duty liability."
223  
86. The United States also refers to a Group of E xperts that was convened in 1960 to consider 
numerous issues with respect to the application of Article VI of the General Agreement on Tariffs and 
Trade 1947  (the "GATT 1947").  In its report224 (the "1960 Group of Experts Report"), the Group of 
Experts concluded that the "ideal method" fo r applying anti-dumping duties "was to make a 
determination of both dumping and material injury in  respect of each single importation of the product 
                                                      
217United States' other appellant's submission, para. 67 (referring to Panel Report, US – Softwood 
Lumber V (Article 21.5 – Canada) , para. 5.28). 
218United States' other appellant's submission, para. 68. 
219United States' other appellant's submission, para. 68. 
220United States' other appellant's submission, para. 71 (quoting Appellate Body Report, US – Stainless 
Steel (Mexico) , para. 98). 
221United States' other appellant's submission, para. 72. 
222United States' other appellant's submission, para. 73. 
223United States' other appellant's submission, para. 74. 
224GATT Second Report of the Group of Experts,  Anti-Dumping and Countervailing Duties, GATT 
Document L/1141, adopted 27 May 1960, BISD 9S/194.  WT/DS350/AB/R 
 Page 37 
 
 
concerned".225  The United States maintains, therefore, th at the concept of dumping has historically 
been understood to be applicable at the level of individual transactions.226  According to the United 
States, the Appellate Body has previously mi sapprehended the relevance of the 1960 Group of 
Experts Report for the purposes of interpreting Article VI of the GATT 1947.227  In particular, the 
United States argues that the Appellate Body has fa iled to "explain why the fact that a particular 
system for determining injury is administratively im practicable leads to the conclusion that Members, 
when negotiating the Tokyo Round [Anti-Dumping] Code or the Uruguay Round [ Anti-Dumping 
Agreement ], necessarily agreed to a completely diffe rent concept of calculating a margin of 
dumping".228  The United States further points out that the Uruguay Round negotiators discussed the 
issue of whether zeroing should be restricted in the light of two GATT panels' decisions that had 
found "[t]he methodology of not offsetting dumping based on comparisons where the export price was 
greater than normal value"229 to be consistent with the Tokyo Round Anti-Dumping Code .230  
According to the United States, it can be inferred, fro m the fact that the text of Article VI of the 
GATT 1947 was unaltered after the negotiations, that th e drafters "intended no change in meaning".231 
87. The United States further submits that the use of  the term "margin of dumping" in Article 9.3 
of the Anti-Dumping Agreement  is consistent with a transaction-specific meaning.  In the view of the 
United States, the Panel "properly recognized"232 that the United States' position rested on a 
permissible interpretation of Article 9.3.  The Unite d States contends that the European Communities' 
claim of inconsistency with Article 9.3 necessar ily depends upon whether the European Communities' 
preferred interpretation of "margin of dumping" , which precludes any possibility of transaction-
specific margins of dumping, is the only permissible in terpretation of this term as used in Article 9.3 
of the Anti-Dumping Agreement .  However, there is no textual basi s for this proposition in the text of 
Articles 2.1 and 9.3 of the Anti-Dumping Agreement .  The United States also observes that previous 
                                                      
225United States' other appellant's submission, para. 76 (referring to 1960 Group of Experts Report, 
para. 7). 
226United States' other appellant's submission, para. 76 (referring to Panel Report, US – Zeroing 
(Japan) , para. 7.107). 
227United States' other appellant's submission, para. 78 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , para. 96, in turn referring to Appellate Body Report, US – Zeroing (Japan) , para. 114). 
228United States' other appellant's submission, para. 78. 
229United States' other appellant's submission, para. 79 (referring to GATT Panel Report, EC – Audio 
Cassettes , ADP/136, 28 April 1995, unadopted, para. 360;  and GATT Panel Report, EEC – Cotton Yarn , 
ADP/137, adopted 30 October 1995, BISD 42S/17, para. 502). 
230Tokyo Round Agreement on Implementation of Article VI of the General Agreement on Tariffs and 
Trade , BISD 26S/171, entered into force 1 January 1980. 
231United States' other appellant's submission, para. 79. (footnote omitted)  
232United States' other appellant's submission, para. 80. WT/DS350/AB/R 
Page 38  
 
panels have found that a transaction-specific meani ng of the term "margin of dumping" is consistent 
with Article 9.3 of the Anti-Dumping Agreement .
233 
88. Moreover, the United States asserts that the prospective normal value assessment system 
referred to in Article 9.4(ii) of the Anti-Dumping Agreement  confirms that the term "margin of 
dumping" may have a transaction-specific meaning.  According to the United States, if "individual export transactions at prices less than normal valu e can attract liability for payment of antidumping 
duties ... there is no reason why liability for paym ent of antidumping duties may not be similarly 
assessed"
234 in the United States.  The United States reject s an interpretation of Article 9 as requiring 
offsets between importers in a retrospective assess ment system while capping the importer's liability 
based on individual transactions in a prospectiv e system.  The United States further argues that 
accepting the interpretation that a Member must aggregate the results of all  comparisons on an 
exporter-specific basis would require that retrospect ive reviews be conducted, even in a prospective 
normal value system, to take into account all of the exporters' transactions.  For the United States, this 
would, in effect, render prospective normal value systems retrospective. 
89. The United States submits that a prohibition of zeroing in periodic reviews "would favor 
importers with high margins vis-à-vis importers with low margins".235  According to the United States, 
if "the amount of the antidumping duty must be reduced to account for the amount by which some other transaction was sold at above normal value"
236, the anti-dumping duty would be insufficient to 
prevent dumping from having further injurious effect.  For the United States, under such an 
interpretation of Article 9.3 of the Anti-Dumping Agreement , anti-dumping duties "would be 
prevented from fulfilling their intended purpose un der Article VI:2 of the GATT 1994, because 
importers that contribute the most to injurious dumping would be favored over other importers (and 
domestic competitors) that price fairly."237  This is so, the United States maintains, because "if a 
Member is unable to calculate and assess the dutie s on a transaction-specific basis, importers of the 
merchandise for which the export price is less than  normal value to the greatest extent will actually 
have an advantage over their competitors who impor t at fair value prices because they will enjoy the 
benefit of offsets that result from th eir competitors' fairly priced imports."238   
                                                      
233United States' other appellant's submission, paras. 83-86 (referring to Panel Report, US – Zeroing 
(EC) , paras. 7.201, 7.204-7.207, and 7.220-7.223;  and Panel Report, US – Zeroing (Japan) , paras. 7.196, 7.198 
and 7.199). 
234United States' other appellant's submission, para. 89 (referring to Panel Report, US – Zeroing 
(Japan) , para. 7.208). 
235United States' other appellant's submission, para. 92 (quoting Panel Report, para. 7.164). 
236United States' other appellant's submission, para. 93. 
237United States' other appellant's submission, para. 95 (referring to Panel Report, US – Stainless Steel 
(Mexico) , para. 7.146). 
238United States' other appellant's submission, para. 95.   WT/DS350/AB/R 
 Page 39 
 
 
90. The United States contends that any general prohibition of zeroing that applies beyond the 
context of weighted average-to-weighted average ("W-W") comparisons in original investigations 
would render the remaining text of Article 2.4.2 re dundant.  In particular, it would reduce the second 
sentence of Article 2.4.2 to "inutility" because th e targeted dumping methodology would "yield the 
same result as [a W-W] comparison if, in both cases,  non-dumped comparisons are required to offset 
dumped comparisons".239  The United States finds support for its position in the findings in prior 
panel reports addressing zeroing.240  
91. The United States takes issue with the Appellate Body's finding that "mathematical 
equivalence" occurs only in "certain situations" and is a "non-tested hypothesis".241  First, the United 
States argues that all of the situations under which it has been argued that mathematical equivalence 
would not occur have been addressed by pane ls and found to be inconsistent with the Anti-Dumping 
Agreement .242  Secondly, the United States argues that "m athematical equivalence is not a 'non-tested 
hypothesis'"243 because, according to the United States, the complaining party in this case actively 
uses this methodology.  The United States also reject s the Appellate Body's conclusion that the second 
sentence of Article 2.4.2 is an "exception" and therefore "cannot determine the interpretation of 
methodologies contained in the first sentence of Article 2.4.2".244  According to the United States, this 
reading of Article 2.4.2 would be contrary to the principle of effective treaty interpretation.  The 
United States also questions the Appellate Body's conclusion "that it may be permissible to apply the 
targeted dumping methodology to a subset of export transactions."245  The United States argues that 
nothing in the language of Article 2.4.2 provid es for selecting a subset of transactions when 
conducting a targeted dumping analysis.  The United States submits that the word "pattern" in the 
second sentence of Article 2.4.2 "incorporates export prices that differ significantly" and does not suggest "that one part of the identified pattern ma y be treated in one way (i.e., used in [weighted] 
average-to-transaction ["W-T"] comparisons) while another part of the identified pattern may be 
treated differently (i.e., ignored or used in [W-W] comparisons)."
246  Further, selecting a subset of 
                                                      
239United States' other appellant's submission, para. 101. (footnote omitted) 
240United States' other appellant's submission, para. 102 (referring to Panel Report, US – Zeroing (EC) , 
para. 7.266;  Panel Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 5.52;  Panel Report, US – 
Zeroing (Japan) , para. 7.127;  and Panel Report, US – Stainless Steel (Mexico) , paras. 7.130-7.133). 
241United States' other appellant's submission, para. 103 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 133;  and Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , 
para. 97). 
242United States' other appellant's submission, para. 103 (referring to Panel Report, US – Zeroing 
(Japan) , paras. 7.127-7.137;  Panel Report, US – Zeroing (EC) , para. 7.266;  and Panel Report, US – Softwood 
Lumber V (Article 21.5 – Canada) , paras. 5.33-5.52). 
243United States' other appellant's submission, para. 103. 
244United States' other appellant's submission, para. 104. 
245United States' other appellant's submission, para. 105 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 135). 
246United States' other appellant's submission, para. 107.  WT/DS350/AB/R 
Page 40  
 
export transactions would, in the United States' view, be contrary to the Appellate Body's conclusion 
that "all"
247 export transactions should be considered wh en performing W-W and W-T comparisons.  
According to the United States, "if the Appellate Bo dy's statements are understood to mean that the 
use of [W-T] comparisons with a subset of the export  transactions is to be done in conjunction with 
the use of the [W-W] comparison for the remaining export transactions", then "such comparisons will 
be mathematically equivalent to the results  obtained through the use of [W-W] comparisons."248  
92. Finally, the United States submits that th e European Communities, "when addressing this 
issue before domestic tribunals, agrees with the Unit ed States and the panel reports cited above, that a 
general prohibition of zeroing applied equall y to both assessment proceedings and original 
investigations, would render the [W-T] comparison inutile ."249 
3. Article 11 of the DSU – Eight Sunset Reviews  
93. The United States claims that the Panel failed to  comply with its duties under Article 11 of the 
DSU by finding that the United States acted inconsis tently with its obligations under Article 11.3 of 
the Anti-Dumping Agreement  in eight of the sunset reviews at issue in this dispute.250  In particular, 
the United States argues that "the Panel's finding th at model zeroing was used in the [original] 
investigations underlying the eight sunset reviews 'l ack[s] a basis in the evidence contained in the 
panel record'."251  In support of its claim, the United States points out that it is the complaining 
Member that bears the burden of making a prima facie case.  In order to succeed with its claim in this 
case, the European Communities was required to provide evidence from the underlying original 
investigations in which the dumping margins at is sue were calculated in order to show that model 
zeroing was employed in those calculations.  Howeve r, according to the United States, the European 
Communities failed to provide this evidence, and the "sole basis" for the Panel's decision with respect 
to the eight sunset review determinations was "language from a Federal Register notice in which [the 
USDOC] announced that it would no longer use model zeroing in [W-W] comparisons in [original] investigations."
252  The United States underscores that such  a general statement "does not provide 
                                                      
247United States' other appellant's submission, para. 108. 
248United States' other appellant's submission, para. 109. (footnote omitted). 
249United States' other appellant's submission, para. 112 (original emphasis) (referring to 
Case T-274/02, Ritek Corp. v. Council of the European Union , 24 October 2006 (Panel Exhibit US-3), para. 94;  
and to Panel Report, supra , footnote 242).  See also Appellate Body Report, US – Softwood Lumber V 
(Article 21.5 – Canada) , para. 49. 
250United States' other appellant's submission, para. 115 (referring to Panel Report, paras. 7.192-7.202 
and 8.1(f)). 
251United States' other appellant's submission, para . 121 (emphasis omitted) (quoting Appellate Body 
Report, US – Carbon Steel , para. 142). 
252United States' other appellant's submission, para. 119 (referring to Panel Report, paras. 6.9 
and 7.200).  WT/DS350/AB/R 
 Page 41 
 
 
evidence as to whether zeroing was in fact employ ed in [calculating] the specific margins relied upon 
in each of the challenged sunset reviews".253 
D. Arguments of the European Communities – Appellee 
1. The Panel's Terms of Reference – 14 Additional Measures  
94. The European Communities requests the Appellate  Body to dismiss the United States' claim 
that the 14 additional measures that were not iden tified in the European Communities' consultations 
request fell outside the Panel's terms of reference.  The European Communities also considers that the 
Appellate Body should reject the United States' requ est for a finding that the 18 duties were outside 
the Panel's terms of reference on the grounds that  they were not identified in the European 
Communities' consultations request. 
95. With respect to the 14 additional measures, the European Communities argues that Articles 4 
and 6 of the DSU do not require that the measures that were the subject of  consultations and the 
measures identified in the request for the establis hment of a panel "be identical, as long as they 
involve essentially the same matter ".254  The European Communities finds support for this proposition 
in Article 4 of the DSU and Article 17 of the Anti-Dumping Agreement , which "refer to the 'dispute' 
and the 'matter', rather than to 'specific measures'"255, as well as in Articles 3.3 through 3.7 of the 
DSU. 
96. The European Communities also agrees with the Panel that the Appellate Body's reasoning in 
US – Certain EC Products  is inapplicable to the present case since the facts of the cases are different.  
According to the European Commun ities, unlike the additional measure identified for the first time in 
the panel request in US – Certain EC Products , the 14 additional measures identified in the panel 
request in the present case are not legally distinct  as compared to the measures identified in the 
European Communities' request for consultations.  In particular, the European Communities points 
out that the 14 additional measures in the present case relate to the same products from the same 
countries as those identified in th e request for consultations.  More over, the same government agency 
issued the measures;  the legal claims made by the European Communities were identical to those 
made in the request for consultations;  a nd the 14 measures have a direct relationship  to the measures 
mentioned in the annexes to the request for consu ltations since they imply extensions, modifications, 
or implementation of the anti-dumping duties upon which the parties consulted.  The European 
                                                      
253United States' other appellant's submission, para. 119. 
254European Communities' appellee's submission, para. 11 (original emphasis) (referring to Appellate 
Body Report, Brazil – Aircraft , para. 132;  Appellate Body Report, US – Shrimp (Thailand)  / US – Customs 
Bond Directive , para. 119;  and Appellate Body Report, US – Upland Cotton , para. 285).  
255European Communities' appellee's submission, para. 12. (footnote omitted) WT/DS350/AB/R 
Page 42  
 
Communities further argues that the Appellate Body's reasoning in Brazil – Aircraft —that "the 
additional measures included in the panel request did not change the essence  of the subsidy scheme 
challenged by Canada in its cons ultations request"—applies to the present case since the 14 additional 
measures "refer to the same matter  raised during consultations, i.e., the use of zeroing when 
calculating the dumping margins in the specific anti- dumping proceedings with respect to the same 
products originating from the specific countries listed therein."
256   
97. The European Communities also considers that the Appellate Body should reject the United 
States' request for a finding that 18 anti-dumping duti es were outside the Panel's terms of reference on 
the grounds that they were not identified in the Eu ropean Communities' request for consultations.  In 
the European Communities' view, there is "a certain  analogy" between the measures challenged in the 
present case and a subsidy programme at issue in Brazil – Aircraft  because, "[l]ike the measure 
referenced in the present dispute, a subsidy progra mme is distinct from both legislation implementing 
the SCM Agreement , and from instances of the application of such programme."257 
98. Moreover, the European Communities argues that  the United States did not include in its 
Notice of Other Appeal the claim that the 18 duti es were outside the Panel's terms of reference.  
Therefore, pursuant to Rule 20(2)(d) of the Working Procedures , the Appellate Body should reject the 
United States' claim.  In the ev ent that the Appellate Body deci des to examine the United States' 
appeal on this point, the European Communities argues that there is "no need for identity between the 
specific measures that were the subject of the request  for consultations and those which are the subject 
of the Panel request as long as they involve essentially the same matter  (in this case, the use of 
zeroing in specific anti-dumping measures)."258  The European Communities further argues that, 
because the reference to the zeroing methodology in its consultations request "was simply narrowed" 
in its panel request to the methodology "as embedded in the 18 measures"259, the scope of the 
consultations was in fact wider than  the scope of the panel request.  
2. Simple Zeroing as Applied in 29 Periodic Reviews  
99. The European Communities requests the Appellate Body to reject the United States' appeal 
that the Panel erred in concluding that zeroing as applied by the USDOC in 29 periodic reviews is 
inconsistent with Article VI:2 of  the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement . 
                                                      
256European Communities' appellee's submission, para. 15 (original emphasis) (referring to Appellate 
Body Report, Brazil – Aircraft , para. 130). 
257European Communities' appellee's submission, para. 15. 
258European Communities' appellee's submission, para. 17. (original emphasis) 
259European Communities' appellee's submission, para. 17.   WT/DS350/AB/R 
 Page 43 
 
 
100. The European Communities contends that th e United States' interpretation cannot be 
"permissible" within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement  "[i]f all of the 
interpretative elements in the Vienna Convention  support the position of the European Communities, 
and disprove the position of the United States".260  According to the European Communities, past  
panel and Appellate Body reports  have confirmed the correct le gal interpretation of the GATT 1994 
and the Anti-Dumping Agreement . 
101. The European Communities submits that it is clear from Articles VI:1 and VI:2 of the 
GATT 1994 and various provisions of the Anti-Dumping Agreement  that:  (a) "dumping" and "margin 
of dumping" are exporter-specific concepts;  "dumping"  is also product-related, in the sense that an 
anti-dumping duty is a levy in respect of the pr oduct that is investigated and found to be 
dumped;  (b) "dumping" and "margin of dumpi ng" have the same meaning throughout the Anti-
Dumping Agreement ;  (c) an individual margin of dumping is to be established for each investigated 
exporter, and the amount of anti-dumping duty levied in respect of an export er shall not exceed its 
margin of dumping;  and (d) the purpose of an an ti-dumping duty is to counteract "injurious dumping" 
and not "dumping" per se .261  In the view of the European Communities, the notion that "dumping" 
and "margin of dumping" can exist at the level of an individual transaction is contrary to "the 
requirement to make the determination on the basis of  all an exporter's transactions over a period of 
time, and cannot be reconciled with a proper interpretation and applica tion of several provisions of the 
Anti-Dumping Agreement ."262   
102. The European Communities argues that the term  zeroing describes only part of the problem, 
that is, the downward adjustment of the relativel y high-priced export transactions.  For the European 
Communities, the heart of the matter is the selecti on of the relatively low-priced export transactions 
per se , as a sub-category, as the only or preponderant basis for the dumping margin calculation. 
103. Based on its examination of the overall design and architecture of Article 2.4.2, the European 
Communities concludes that "there are only three sub-categories of clustered low priced export 
transactions that it is permissible to respond to : those clustered by purchaser, region or time."263  
Therefore, it is clear from the term "all" in the fi rst sentence of Article 2.4.2, and the definition of 
"dumping" in Article 2.1 of the Anti-Dumping Agreement  and Article VI:1 of the GATT 1994 "read 
together with the absence in the targeted dumping provisions of any reference to a sub-category by 
model", that it is neither permissible, nor fair, "t o pick up low priced export transactions clustered by 
                                                      
260European Communities' appellee's submission, para. 43. (original emphasis) 
261European Communities' appellee's submission, para. 20 (original emphasis) (referring to Appellate 
Body Report, US – Stainless Steel (Mexico) , paras. 83-96). 
262European Communities' appellee's s ubmission, para. 21.  See also ibid., para. 44. 
263European Communities' appellee's submission, para. 31. (emphasis and footnote omitted) WT/DS350/AB/R 
Page 44  
 
model".
264  Nor is it possible, according to the European  Communities, to select low-priced export 
transactions per se  as a sub-category. 
104. The European Communities asserts  that the United States wrongly assumes that Article 2.4.2 
does not apply to the re-calculation of dumping ma rgins in assessment proceedings.  According to the 
European Communities, such an  interpretation would negate the compromise enshrined in 
Article 2.4.2, because "the results of the first retrospective assessment proceeding are applied with 
effect from the date on which duties were first imposed".265   
105. The European Communities believes that the ordina ry meaning of the term "investigation" is 
simply a systematic examination or careful study of a particular subject.  Thus, the European 
Communities argues that there are five types of  proceedings (original, newcomer, changed 
circumstances, sunset, and periodic reviews) because they all involve an investigation into something, 
and that the United States is wrong to assert that ther e is only one type of proceeding with five phases.  
Further, the European Communities disagrees with the proposition that the term "existence" is unique 
to original investigations, arguing that "thi s term simply relates to any dumping margin 
calculation."266 
106. The European Communities then submits that all the arguments advanced by the United 
States have been repeatedly considered and re jected by the Appellate  Body.  The European 
Communities argues that the interpretation advanced by  the United States is not a permissible one.  If, 
however, the Appellate Body decides to overturn the finding of the Panel, then the European 
Communities refers to its conditional appeal wherein it asks the Appellate Body to reverse that part of 
the Panel Report which agrees with the United States with respect to the use of simple zeroing in periodic reviews.  The European Communities urg es the Appellate Body to consider the present 
matter in the light of findings in US – Stainless Steel  (Mexico)  on the question of precedent.  In the 
European Communities' view, the Appellate Body can  reverse its previous decision only for new and 
cogent reasons, which do not exist in this case.  Further, the European Communities disagrees with 
the proposition that Article 17.6(ii) of the Anti-Dumping Agreement  "override[s]" or "replace[s]" the 
provisions of the DSU.  Instead, for the Europ ean Communities, Article 17.6 supplements the 
provisions of the DSU.
267  The European Communities adds th at the Panel in this case followed 
previous Appellate Body findings and thus complied w ith its obligations under Article 11 of the DSU.  
                                                      
264European Communities' appellee's submi ssion, para. 32. (emphasis omitted) 
265European Communities' appellee's submission, para. 34. 
266European Communities' appellee's submission, para. 41. (footnote omitted) 
267European Communities' appellee's submission, paras. 64 and 65 (referring to Appellate Body Report, 
US – Hot-Rolled Steel , para. 62).  WT/DS350/AB/R 
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In the European Communities' view, "it is for the A ppellate Body to change its own mind;  not for a 
panel to do it on the Appellate Body's behalf."268 
107. The European Communities also asserts that is not necessary to consider preparatory work or 
other historical materials.  In any event, the European Communities argues that there is a "strong 
indication of consensus that the interests of bot h sides in the asymmetry and zeroing debate was 
accommodated in the targeted dumping provisions that eventually became the second sentence of 
Article 2.4.2."269  The European Communities further argues that the United States' arguments relating 
to the 1960 Group of Experts Report have already b een carefully considered and rejected by the 
Appellate Body in previous cases. 
108. The European Communities submits that past ca ses have rejected the United States' assertion 
that a prohibition on zeroing would favour "prospectiv e" systems at the expe nse of "retrospective" 
systems.270  According to the European Communities, th e retrospective and prospective systems are 
"very nearly the same".271  Both systems impose duties on a prospective basis, and provide for review 
or refund on a retrospective basis.  For th e European Communities,  the "key difference"272 is that 
under the retrospective system anyone can request  a review, whereas in a prospective system only 
importers can request a review.  Finally, the European Communities disagrees with the proposition 
that the amounts collected under the variable dut y system, which the United States likens to amounts 
collected based on a transaction-to-transaction ("T-T") assessment and zeroing, are final.  The 
European Communities argues in this regard that the variable duty re ferenced in Article 9.4(ii) is 
subject always to the review and refund proce dures provided for in Articles 9.3.1 or 9.3.2. 
109. Moreover, the European Communities argues that the Appellate Body has repeatedly rejected 
the proposition "that a prohibition on zeroing will  favour importers selling at lower prices over 
importers selling at higher prices".273  First, the European Communiti es argues that, "if the relatively 
low and high priced transactions are distributed more  or less equally amongst importers, no such issue 
arises."274  Secondly, if the relatively low-priced transac tions are clustered with one importer, then the 
investigating authority could use the targeted dumping  methodology.  Thirdly, "it is a matter of simple 
accounting to collect the appropriate and equi table amounts from different importers, whilst 
respecting the ceiling provided for in Article 9.3 of the Anti-Dumping Agreement  to the effect that the 
                                                      
268European Communities' appellee's submission, para. 66. 
269European Communities' appellee's submission, para. 26. 
270European Communities' appellee's submission, para. 46  (referring to United States' other appellant's 
submission, heading III.B.2.d;  and Panel Report, para. 7.166). 
271European Communities' appellee's submission, para. 47. 
272European Communities' appellee's submission, para. 47. 
273European Communities' appellee's submission, para. 52. 
274European Communities' appellee's submission, para. 53. WT/DS350/AB/R 
Page 46  
 
amount of [duty] must not exceed the exporter's  dumping margin."
275  Fourthly, the European 
Communities contends that it is incorrect to say th at "an 'offset' is provided for the so-called non-
dumped transactions;  it is rather a question of properly calculating a margin of dumping for each 
exporter  by taking all transactions fully into account, re gardless of whether they are above or below 
normal value."276      
110. Finally, the European Communities points out that  the argument that "a general prohibition on 
zeroing would render the targeted  dumping provisions redundant"277 has been carefully considered 
and rejected in past cases.  The European Comm unities adds that the mathematical equivalence 
argument "depends upon a specific set of assumptions, which may not hold true".278  In any event, an 
"exception cannot determine the interpretation of th e normal rule: something that is unfair absent 
targeted dumping might be a fair response to targeted dumping."279  Moreover, the European 
Communities argues that "permitting zeroing under the first sentence of Article 2.4.2 would enable 
investigating authorities to select as the only or  preponderant basis for calculating a margin of 
dumping relatively low priced export transactions per se  ... thus rendering the third method 
redundant."280 
3. Article 11 of the DSU – Eight Sunset Reviews  
111. The European Communities argues that the Panel did not fail to make an objective 
assessment, as required by Article 11 of the DSU,  when finding that the European Communities had 
made out a prima facie case that, in eight sunset reviews, th e margins in the underlying original 
investigations were obtained through model zeroi ng.  The European Communities submits that the 
Panel was entitled to draw inferences from the fact s available in the record.  According to the 
European Communities, "the fact that there was a concrete policy change so declared by the United 
States to depart from its practice of using model zero ing in original investigations together with the 
fact that the underlying original investigations con cerned took place before that policy change, imply 
that the European Communities made out a prima facie case that what was claimed ... was true."281  
The European Communities contends that the Unit ed States' investigating authority had all the 
evidence necessary to rebut the prima facie  case made by the European Communities, and could have 
agreed that model zeroing had not actually been used  in the underlying investigations.  Finally, the 
European Communities argues that the United States failed to meet its burden of proof because it has 
                                                      
275European Communities' appellee's submission, para. 55. (original emphasis) 
276European Communities' appellee's submission, para. 23. (original emphasis)  See also ibid., para. 56. 
277European Communities' appellee's submission, para. 58. (footnote omitted) 
278European Communities' appellee's submission, para. 58. 
279European Communities' appellee's submission, para. 58. 
280European Communities' appellee's submission, para. 58. 
281European Communities' appellee's submission, para . 76. (original emphasis; footnote omitted)  WT/DS350/AB/R 
 Page 47 
 
 
failed to show that the margins of dumping in the un derlying original investigations were not based on 
model zeroing. 
E. Arguments of the Third Participants 
1. Brazil  
112. Brazil submits that the Appellate Body should a ffirm the Panel's finding that the 14 additional 
measures included in the Eur opean Communities' panel request , but not in its request for 
consultations, were properly within the Panel's terms of reference.  According to Brazil, the United 
States' view that Articles 4 and 6 of the DSU require  strict identity between the measures listed in the 
consultations request and the panel request creates "an endless cycle"282 of litigation aimed at 
resolving the same dispute (that is,  the application of the zeroing methodology in successive anti-
dumping proceedings that involve the same United States anti-dumping order) regarding the same 
products from the same countries.  Brazil argues that Articles 4 and 6 of the DSU are properly 
interpreted as conferring jurisd iction "over all measures manifesting the same basic 'problem'".283  
Brazil submits that the Appellate Body and previous  panels, when determini ng the scope of a panel's 
jurisdiction, have focused on a " substantive connection ", such that, "[a]s long as the various measures 
are substantively the same with respect to the disputed issue , even those measures not formally 
identified in the consultations and/or panel request s are properly within the scope of the dispute."284  
Brazil contends that, in accordance with Articles 3. 4 and 3.7 of the DSU, this approach aims at 
achieving a "satisfactory settlement of the matter" an d secures a "positive solution" to the substance of 
the dispute. 
113. Brazil finds further support for the Panel's findi ng in the Appellate Body's consideration of 
the jurisdiction of Article 21.5 compliance panels.  Brazil contends that the Appellate Body has called 
upon Article 21.5 panels to "apply a 'nexus-based test' to determine whether contested measures share 
sufficiently close 'relationships' w ith indisputably covered measures, to enable their inclusion within 
the compliance panel's jurisdiction."285  Brazil contends that, despite the United States' assertions that 
the two sets of measures are "legally distinct",  USDOC regulations support the position that the 
measures are formally linked because "all periodic an d sunset reviews that occur under a single order 
are mere ' segments ' of a single ' proceeding ' that continues until revocation."286  In Brazil's 
                                                      
282Brazil's third participant' s submission, para. 14.  
283Brazil's third participant' s submission, para. 15.  
284Brazil's third participant's submissi on, para. 21. (original emphasis) 
285Brazil's third participant's submission, para . 23 (referring to Appellate Body Report, US – Softwood 
Lumber IV (Article 21.5 – Canada) , para. 79). 
286Brazil's third participant's submission, pa ra. 26 (original emphasis) (referring to United States Code 
of Federal Regulations , Title 19, Chapter 3, Sec tion 351.102 (Definitions)).  WT/DS350/AB/R 
Page 48  
 
consideration, it is crucial that the original 38 measures and the additional 14 measures "all concern 
the application of the  same zeroing methodology  to the same products  from the same countries , under 
the same anti-dumping orders , and they provide succeeding bases for the continued application and 
imposition  of anti-dumping duties under that order."
287 
114. Brazil asserts that the Panel corr ectly held that the United States acted inconsistently with the 
provisions of the Anti-Dumping Agreement  and the GATT 1994 by applying simple zeroing in 
periodic reviews.  Brazil contends that the Unite d States' position that "dumping" and "margin of 
dumping" may be established for individual expo rt transactions is not supported by a proper 
interpretative analysis.  In Brazil's view, the Unite d States' position that the term "dumping" can refer 
to "anything from one transaction to all tran sactions ... seeks to replace a uniform multilateral 
definition with an empty vessel that each Member's au thority can unilaterally fill as it wishes, with the 
meaning possibly changing from one proceeding to another."288  Brazil also disagrees with the support 
the United States draws from the fact that Artic le VI:1 of the GATT 1994 and Article 2.1 of the Anti-
Dumping Agreement  both use the word "price" in the singular.  According to Brazil, "[t]he immediate 
context in Article 2.1 shows that the two singular prices mentioned—home market price (or normal 
value) and export price—are collective prices for the 'product' as a whole."289  Brazil also maintains 
that the term "like product" is used in the Anti-Dumping Agreement  in the collective sense, and that 
the three methodologies in Article 2.4.2, each of which requires a comparison with "export prices" in multiple transactions, show that the single price is  obtained by aggregating prices of multiple export 
transactions.   
115. Brazil argues that the United States' view that dumping can be determined for an individual 
export transaction cannot be reconciled with the contex t provided by Articles 5.8, 6.10, 8.1, 9.1, 9.3, 
and 9.5 of the Anti-Dumping Agreement .  According to Brazil, Article 6.10 requires a single margin of 
dumping to be determined with respect to each exporte r.  As a consequence, the decision to terminate 
or pursue an investigation under Article 5.8 is b ased on a single dumping determination made for all 
transactions relating to the product;  for the purpose of injury determination unde r Article 3, all entries 
of the product are treated as dumped;  and reme dial action to counter injurious dumping under 
Articles 8 and 9 is "fixed by reference to a single margin of dumping, and that remedy applies to all 
future imports of the 'product'."
290  Brazil submits that defining "dumping" in relation to the product as 
a whole "ensures parallelism between the scope of  a dumping determination and the scope of the 
regulatory consequences the determination entails".291  In addition, Brazil recalls, Article 2.1 sets forth 
                                                      
287Brazil's third participant's submissi on, para. 31. (original emphasis) 
288Brazil's third participant's submission, para. 44.   
289Brazil's third participant' s submission, para. 47. 
290Brazil's third participant's submissi on, para. 57. (original emphasis) 
291Brazil's third participant' s submission, para. 58.  WT/DS350/AB/R 
 Page 49 
 
 
the definition of "dumping" that applies to the en tire Agreement.  Allowing the meaning to change 
from one type of proceeding to another "would lead to arbitrary and unpredictable results:  for a given 
set of export transactions, at identical prices, for an identical product and exporter, there could be 
'dumping' in one type of anti-dumpi ng proceeding but not in another."292 
116. Brazil challenges certain of the United States ' contextual arguments.  Brazil argues that, 
although the word "product" is used in Articles VI:1 and VII:3 of the GATT 1994, this does not mean 
that the word carries the same mean ing in each of those provisions.  According to Brazil, the different 
contexts for these provisions shows that the word has different meanings with respect to each 
provision.  Brazil also rejects the United States' argument that paragraph 1 of Ad Article VI of the 
GATT 1994 "provides for importer specific comparisons".293  Brazil argues that paragraph 1 of Ad 
Article VI, like Article 2.3 of the Anti-Dumping Agreement , "simply permits an authority to use the 
importer's resale price to an independent buyer as the starting-point for its determination of export 
price, in circumstances where the im porter is related to the exporter."294  Brazil also rejects arguments 
of the United States regarding Article 2.2 of the Anti-Dumping Agreement , noting that, "whether or 
not normal value is constructed for some or a ll models under Article 2.2, the results of the 
intermediate comparisons must all be aggregated to determine 'dumping' on a product-wide basis to 
meet the definition of Article 2.1."295  Regarding the application of Article 9.4(ii) to a prospective 
normal value system under the Anti-Dumping Agreement , Brazil argues that reliance on a specific 
definition of "dumping" is misplaced because this argument "conflates"296 two distinct concepts:  the 
"amount of anti-dumping duty" under Article 9.4 and the "margin of dumping" determined under 
Article 2.  According to Brazil, "the amount of du ties imposed on importers with respect to individual 
imports of a product is not a 'margin of dumping' determined for that entry."297  Brazil disagrees with 
the United States that, in a review under Article 9.3. 2, it is not possible to determine an exporter's 
margin, because the importer has to make the re quest for the review, and the importer does not 
possess all the information regarding the exporter.  For Brazil, this argument overlooks examples of 
similar situations in the Anti-Dumping Agreement , such as Articles 5, 11.2, and 11.3, in which, "like 
Article 9.3.2, the party making a duly substantiated request is not the exporter, yet a determination is 
made regarding the exporter."298  Finally, Brazil disagrees with the proposition that a general 
prohibition of zeroing would render the second sentence of Article 2.4.2 inutile .  In Brazil's view, this
                                                      
292Brazil's third participant' s submission, para. 62. 
293Brazil's third participant's submission, para. 70  (referring to United States' other appellant's 
submission, para. 68). 
294Brazil's third participant' s submission, para. 71. 
295Brazil's third participant' s submission, para. 72. 
296Brazil's third participant' s submission, para. 73.  
297Brazil's third participant's submissi on, para. 74. (original emphasis) 
298Brazil's third participant's submissi on, para. 78. (original emphasis) WT/DS350/AB/R 
Page 50  
 
dispute does not concern zeroing under Article 2.4. 2, but "whether zeroing is permitted in a [W-T] 
comparison in a periodic review under Article 9.3".
299  Accordingly, in the circumstances of this 
dispute, "any exceptional right that sentence might  afford for zeroing is simply irrelevant to the 
periodic reviews at issue."300   
117. Brazil takes issue with the United States' argume nt that defining "dumping" in relation to the 
product as a whole leads to "perver se incentives and absurd results".301  For Brazil, this argument is 
based on the proposition that "'dumping' should  be defined on a transaction-specific basis to allow the 
importing Member to maximize  the amount of duties collected, without the 'dumping' found in one 
transaction being offset by the prices of other transactions."302  Brazil argues that this policy position 
is not reflected in the text of the treaty, and believes that Members agreed to a single "dumping" 
determination for each exporter because this approa ch "strikes an appropriate balance between the 
interests of an importing Member in protecting its domestic industries against the unfair pricing of a 
'product', and those of exporting Members in enjo ying the market access concessions it secured in the 
Uruguay Round."303   
118. Brazil agrees with the Panel that the European Communities made out a prima facie case 
regarding the application of zeroing in the eight sun set reviews, and submits that there is no "valid 
basis"304 for the United States to challenge the Panel' s factual findings.  Brazil notes that, in so 
concluding, the Panel relied on the USDOC Decembe r 2006 Notice that announced the decision to no 
longer apply zeroing to W-W comparisons in original investigations, together with the United States' 
silence in the face of this evidence.  Brazil contends  that, if a party offers "affirmative evidence" with 
respect to a matter, a panel is entitled to attach "evidentiary significance" to the silence of the 
opposing party.305  Thus, "[i]n light of the evidence the European Communities had produced, the 
Panel was entitled to interpret the United States' silence"306 as evidence to be taken into account. 
119. Brazil supports the claim of the European Communities that the Panel did not conduct an 
objective assessment of the facts and law with respec t to the seven periodic reviews at issue.  Brazil 
argues that the Panel failed to conduct an objective assessment of the facts as required under 
Article 11 of the DSU because it "disregarded and ot herwise failed to address the highly relevant 
                                                      
299Brazil's third participant' s submission, para. 81. 
300Brazil's third participant's submissi on, para. 84. (original emphasis) 
301Brazil's third participant's submission, para. 89  (referring to United States' other appellant's 
submission, heading III.B.2.c). 
302Brazil's third participant's submissi on, para. 90. (original emphasis) 
303Brazil's third participant' s submission, para. 91. 
304Brazil's third participant' s submission, para. 94. 
305Brazil's third participant' s submission, para. 98. 
306Brazil's third participant' s submission, para. 99.  WT/DS350/AB/R 
 Page 51 
 
 
evidence of factual findings in recently a dopted panel and Appellate Body reports".307  According to 
Brazil, these adopted reports contain findings that establish that the USDOC has always used zeroing 
procedures in periodic reviews during the period cove red by the investigations of the seven periodic 
reviews at issue.  Moreover, Br azil maintains that factual finding s in adopted panel and Appellate 
Body reports create "legitimate expectations concer ning the existence and application of particular 
measures", particularly where "an adopted report may include findings regarding the existence  and the 
nature of an identical measure of the same defending party during the same time period at issue in a 
later dispute."308  Brazil finds support for its position in WTO jurisprudence regarding Article 21.5 
compliance proceedings.  According to Brazil, "t he notion that later disputes involving measures 
subject to factual findings in adopted reports form part of a 'continuum of events' of which the panel 
in the later dispute must take account, and failin g some relevant change, from which it may not 
depart, should not be limited to co mpliance disputes under Article 21.5."309  In this case, the Panel 
was dealing with a "consistent continuum" of findi ngs regarding zeroing in periodic reviews, and if 
the Panel wished to depart from factual findings in adopted reports, it should have provided a 
"reasoned and adequate explanation setting out  a relevant change of circumstances".310  Brazil also 
contends that it would have b een appropriate for the Panel sua sponte  to have taken notice of the 
relevant findings of fact in prior adopted reports. 
120. Brazil argues that the Panel also breached Article 11 of the DSU by failing to seek 
information from the United States as to whether it had applied simple zeroing in the seven periodic 
reviews.  Brazil asserts that the Panel "refused" to request of the United States "detailed data and other 
information about its margin calculations" desp ite its relevance, the European Communities' 
contingent request, the Panel's own conclusion that  such information was relevant to its final 
determination, and the "undoubted fact" that onl y the United States had access to this information.311  
Brazil rejects as "legally incorrect"312 the Panel's view that, "unless and until a complaining party has 
made its prima facie  case during the course of the proceedings, there is no obligation by a defending 
party to provide any information, even if such information w ould be highly relevant to the claims or 
defenses at issue in the dispute."313  According to Brazil, "[a]n objective examination of the facts 
presupposes that the 'facts' examined are as co mplete as possible in view of the evidence available —
whether because it has been submitted by a party, or  because it is of significance to the panel's inquiry
                                                      
307Brazil's third participant' s submission, para. 107. 
308Brazil's third participant's submission, para. 116. (original emphasis) 
309Brazil's third participant' s submission, para. 121. 
310Brazil's third participant' s submission, para. 122. 
311Brazil's third participant' s submission, para. 125. 
312Brazil's third participant's submission, para. 131.  
313Brazil's third participant's submission, para. 130 (original emphasis) (referring to Panel Report,  
para. 6.20). WT/DS350/AB/R 
Page 52  
 
but not in the public domain.  Assessment of the facts without the benefit of the best available 
information runs the risk of non-objectivity, or decisions made on the basis of an incomplete 
record."
314  Further, Brazil argues that parties to a WT O dispute are bound by a "duty to cooperate and 
to produce information ... regardless of which party bore the ultimate burden of  proof to establish a 
prima facie case."315   
121. Brazil contends that Article 13.1 of the DSU do es not require a panel to wait for a request by 
one party in order to request information from the ot her party.  In addition, a panel does not "make the 
case" for one party by seeking information from the other because "every request by a panel under 
Article 13.1 necessarily relates to some element of a claim or defense."316  Thus, Brazil submits that 
the failure of the Panel to seek information from the United States to examin e the authenticity and 
accuracy of the European Communities' documen tation for each periodic review in question 
constitutes a failure by the Panel to conduct an obj ective assessment of the facts.  In addition, the 
Panel's failure to agree to the European Commun ities' request to seek information resulted in the 
Panel assessing facts that were "significantly incomplete".317  While Brazil "appreciates" the 
Appellate Body's reluctance to second-guess a panel' s exercise of discretion "regarding the quantum 
or completeness of evidence in the record", Brazil adds  that "[t]here are limits to a [p]anel's discretion 
not to act and not to collect sufficient facts to ensure that its  decision is based on the best information 
available."318 
122. Finally, Brazil argues that the Panel failed to  conduct an objective assessment of the facts 
because it "did not properly evaluate and explain th e absence of any denial by the United States that it 
had applied the zeroing procedures in the seven periodic reviews".319  Brazil disagrees with the Panel's 
conclusion that the United States should not be exp ected "to rebut a factual assertion unsupported by 
relevant evidence from the party making the assertion".320  Despite the rationale provide by the Panel, 
Brazil questions why the United States did not "simply refute the [European Communities'] 
allegations with a documented assertion that it did not apply the zeroing procedures in the seven 
periodic reviews".321  Brazil contends that, unlike previous pa nels, the Panel in the present case failed 
to ask the United States if it could provide any example in which the USDOC had not applied zeroing 
                                                      
314Brazil's third participant's submission, para. 134. (original emphasis) 
315Brazil's third participant's submission, para. 136 (referring to Appellate Body Report, India – 
Additional Import Duties , para. 213 and footnote 409 thereto). 
316Brazil's third participant' s submission, para. 139. 
317Brazil's third participant' s submission, para. 145. 
318Brazil's third participant's submission, para. 146. (original emphasis) 
319Brazil's third participant's submission, para. 147.  
320Brazil's third participant's submission, para . 147 (quoting Panel Report, para. 6.20). 
321Brazil's third participant's submission, para. 147. (original emphasis)  WT/DS350/AB/R 
 Page 53 
 
 
procedures in a periodic review.  Brazil further poi nts out that the United States never denied using 
zeroing in the seven periodic reviews at issue. 
2. China  
123. Pursuant to Rule 24(2) of the Working Procedures , China chose not to submit a third 
participant's submission, but notified its inte ntion to appear at the oral hearing.   
3. Egypt  
124. Pursuant to Rule 24(2) of the Working Procedures , Egypt chose not to submit a third 
participant's submission, but notified its inte ntion to appear at the oral hearing.   
4. India  
125. Pursuant to Rule 24(2) of the Working Procedures , India chose not to submit a third 
participant's submission, but notified its intention to a ppear at the oral hearing.  At the oral hearing, 
India expressed views relating to the European Communities' claim regarding the continued 
application of 18 anti-dumping duties, the interpretation of the Anti-Dumping Agreement  in respect of 
four preliminary determinations, and the alleged inconsistency of the use of the zeroing methodology 
in original investigations and periodic reviews. 
5. Japan  
126. Japan submits that the Panel erred in finding th at the European Communities failed to identify 
the specific measures at issue in connection with its claims regarding the continued application of the 
18 anti-dumping duties, and that such claims did not fa ll within the Panel's terms of reference.  Japan 
submits that the measure challenged by th e European Communities was "specific enough"322 under 
Article 6.2 of the DSU, because the scope of the meas ure at issue is limited to the anti-dumping orders 
in specific cases.  Japan also ag rees with the European Communities that the complaining Member 
does not have to discharge its burden of proof or make out a prima facie  case in its panel request.  
Japan further submits that, because the applica tion of specific anti-dumping duties is an act 
attributable to the United States, these measures can be subject to dispute settlement proceedings so long as they are identified pursuant to Article 6.2 of the DSU.  
127. Japan argues that a panel should decide whether measures should be identified under 
Article 6.2 based on the "language o[f] th e panel request and its related documents".
323  Japan also 
                                                      
322Japan's third participant's submission, para. 15. 
323Japan's third participant's submission, para. 22. WT/DS350/AB/R 
Page 54  
 
submits that the due process requirement of Article 6.2, as well as the "specific circumstances in the 
specific dispute"
324, should be taken into account when d eciding whether the measure is properly 
identified in the panel request.  Specific circumstan ces in this dispute include the previous zeroing 
disputes brought before WTO pane ls and the Appellate Body that, according to Japan, demonstrate 
that the United States continues to use the zeroi ng methodology.  Japan further points to the USDOC 
December 2006 Notice demonstrating that the zeroing methodology underlying the measures at issue 
"continues to exist".325 
128. Japan submits that the Panel erred when it conc luded that the European  Communities' claims 
regarding the four preliminary dete rminations at issue were outside the Panel's terms of reference.  
Japan argues that the Panel's reasoning was pr emised on the understanding that these were 
"provisional measures" under Article 17.4, and th us subject to the conditions under Articles 7.1 
and 17.4 of the Anti-Dumping Agreement .  Japan agrees with the Eu ropean Communities that the 
preliminary determinations are not necessarily "pro visional measures", and that Article 17.4 is not 
necessarily limited to a "final action", an "accep tance of a price undertaking", or a "provisional 
measure" under Article 17.4.326  Japan contends that it was therefore reasonable for the European 
Communities to argue that any act or decision taken by the United States, even if not final, was 
covered by the Panel's terms of reference.  
129. Japan asserts that the Panel was correct to find that the 14 periodic and sunset reviews that 
were identified in the European Communities' panel request, but not in the request for consultations, 
were within the Panel's terms of reference.  Japan  argues that, because these 14 determinations were 
"part of the same 'dispute' with respect  to which consultations were requested"327, they fell within the 
Panel's jurisdiction.  
130. Japan submits that the Panel erred in its fi nding that the European Communities failed to 
demonstrate that simple zeroing was used by the USDOC in the seven periodic reviews at issue.  
Japan further maintains that the Panel failed to car ry out an objective assessment of the facts as 
required by Article 11 of the DSU.  In partic ular, Japan submits that the Panel committed an 
"egregious error"328 when assessing the evidence be fore it because it failed to give consideration to the 
totality of the evidence.  Japan argues that the Pa nel should have considered the Appellate Body's 
findings in US – Zeroing (Japan) —that simple zeroing in periodic re views is "as such" inconsistent 
                                                      
324Japan's third participant's submission, para. 29. 
325Japan's third participant's submission, para. 31.  
326Japan's third participant's submission, para. 39. 
327Japan's third participant's submission, para. 49. 
328Japan's third participant's submission, para. 61.   WT/DS350/AB/R 
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with the Anti-Dumping Agreement —and that the United States "openly stated its reluctance to 
abandon simple zeroing in administrative reviews".329  
131. Japan takes issue with the burden of proof  that the Panel imposed on the European 
Communities.  Japan argues that, if the United States did not rebut the facts claimed by the European 
Communities, there was no need for the Panel "to deny the facts claimed because of the 
incompleteness of the evidence in troduced to prove the facts".330  Compared to other zeroing disputes, 
Japan argues, the European Comm unities was subject to a "higher demand regarding the evidence".331  
Japan submits the Appellate Body should "consider th e balance with respect to the standard of proof 
among the disputes which are dealing with the same issue".332  Japan also contends that the Panel 
erred when it disregarded the European Communitie s' request for the Panel to ask for further 
information pursuant to Article 13.1 of the DSU.  Japan argues that the Panel should have requested a 
copy of the detailed calculations from the United States, and that, by not doing so, it placed "an 
unbalanced burden to collect information [on] the other party".333 
132. Japan reiterates that simple zeroing in periodic reviews is inconsistent with the requirements 
of Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement .  Japan explains 
that it expects the Appellate Body to maintain cons istency in its findings regarding simple zeroing in 
periodic reviews "lest it should diminish the rights and obligations of the Members".334   
133. Finally, Japan supports the Panel's finding that the United States acted inconsistently with its 
obligations under Article 11.3 of the Anti-Dumping Agreement  by using, in eight sunset reviews, 
dumping margins obtained through model zeroing in prior investigations.  Because the United States 
did not submit evidence to rebut the prima facie  showing of the European  Communities reflected in 
the USDOC December 2006 Notice, it was "reasonable"335 for the Panel to have arrived at the 
conclusion it reached. 
6. Korea  
134. Regarding the European Communities' challe nge to the continued application of 18 
anti-dumping duties, Korea argues that the Pane l failed to recognize the difference between 
Article 3.3 and Article 6.2 of the DSU.  Korea subm its that these 18 duties are "measures" within the 
                                                      
329Japan's third participant's submission, para. 63 (referring to USDOC December 2006 Notice, supra , 
footnote 92).  
330Japan's third participant's submission, para. 66.  
331Japan's third participant's submission, para. 67.  
332Japan's third participant's submission, para. 68. 
333Japan's third participant's submission, para. 70. 
334Japan's third participant's submission, para. 80. 
335Japan's third participant's submission, para. 88.  WT/DS350/AB/R 
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meaning of Article 3.3 of the DS U "as long as and to the extent"
336 the Panel found that the 
underlying zeroing methodology constitutes a measure under that provision.  Korea adds that these 18 
duties not only contain the same "precise content", but they are also "more specific and narrower" in 
their scope than the zeroing methodology, whic h itself constitutes a measure under Article 3.3.337  
Further, Korea argues that previous Appellate Body  decisions stand for the proposition "that a panel 
must look at the panel request in its entirety and collectively."338  Korea submits that a panel should 
"respect the discretion given to a complaining party as to how to formulate its own claims as long as it 
identifies a discernible measure in its Panel Request".339 
135. Korea submits that it is now settled that, with  the exception of "some unclear situations" 
regarding targeted dumping, the zeroing methodology in  all respects violates relevant provisions of 
the Anti-Dumping Agreement , and that zeroing must be prohibited in all anti-dumping proceedings.340  
In Korea's view, the European Communities' claim is  simply confirmation of settled jurisprudence in 
a particular context and that, after all the prev ious litigation regarding zer oing, it is "disingenuous"341 
for a Member to argue that it is unclear what the European Communities is claiming. 
136. Korea also submits that the decision by the Eu ropean Communities to "group" the 18 duties 
was "apparently caused by the continued attempt by the United States to avoid the good faith 
implementation of the rulings and recommendations of the DSB in the previous zeroing disputes".342 
Consequently, Korea does not see why a Member should be precluded from presenting a new claim, in the way the European Communities does, "to a ddress its existing concern arising from the absence 
or lack of implementation of another Memb er with respect to previous disputes".
343  In Korea's view, 
the Panel's finding has "effectively authorized the United States to continue to ignore previous rulings 
and recommendations of the DSB" and does not settle the dispute in a prompt manner, "which could 
be inconsistent with Article 3.3 of the DSU".344  Korea thus submits that the Panel ignored the "proper 
context" of the panel request and "improperly confined its terms of reference to reach an erroneous 
conclusion" concerning the European Communities' fulfilment of its obligation under Article 6.2 of 
the DSU.345 
                                                      
336Korea's third participant' s submission, para. 14.  
337Korea's third participant' s submission, para. 14. 
338Korea's third participant's submission, para. 16 (referring to Appellate Body Report, US – FSC 
(Article 21.5 – EC II) , paras. 66-68;  and Appellate Body Report, US – Carbon Steel , para. 127). 
339Korea's third participant' s submission, para. 17. 
340Korea's third participant' s submission, para. 18.  
341Korea's third participant' s submission, para. 18.  
342Korea's third participant' s submission, para. 19. 
343Korea's third participant' s submission, para. 19. 
344Korea's third participant' s submission, para. 20. 
345Korea's third participant' s submission, para. 21.  WT/DS350/AB/R 
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137. Finally, Korea submits that the Panel erred in  finding that the European Communities failed 
to make out a prima facie  case regarding the use of simple zero ing in the seven periodic reviews at 
issue because it "failed to observe  what is obvious on the record".346  Korea maintains that there was a 
"great deal of evidence"347 other than the Issues and Decision Memoranda showing that simple 
zeroing was used in the seven periodic reviews, and notes that the United States does not assert that 
zeroing was not used in these reviews.  Korea submit s that the Panel's conclusion, based on the mere 
absence of an explicit reference to zeroing in th e Issues and Decision Memoranda alone, is "clearly 
erroneous and misplaced"348 and constitutes a violation of Article 11.   
138. For the foregoing reasons, Korea submits the Appellate Body should "modify or reverse the 
legal findings and conclusions of the Pa nel and complete the necessary analysis".349  K o r e a  a l s o  
submits that the Appellate Body should en sure that the relevant provisions of the Anti-Dumping 
Agreement  and the DSU "are construed in their proper c ontext and in accordance with the applicable 
Appellate Body precedents".350 
7. Mexico  
139. Pursuant to Rule 24(2) of the Working Procedures , Mexico chose not to submit a third 
participant's submission, but notified its intention to a ppear at the oral hearing.  At the oral hearing, 
Mexico expressed views relating to the consequences  that follow the decision of a respondent not to 
submit evidence in response to assertions of a comp lainant, and concerning the relationship between 
different determinations in an anti-dumping proceeding. 
8. Norway  
140. Pursuant to Rule 24(2) of the Working Procedures , Norway chose not to submit a third 
participant's submission, but notified its intention to a ppear at the oral hearing.  At the oral hearing, 
Norway argued that it follows from the Appellate Body's findings in prior disputes involving zeroing 
that the use of simple zeroing in periodic review s is inconsistent with WTO law.  Norway also 
disagreed with the United States' analysis of Article 17.6(ii) of the Anti-Dumping Agreement .  For 
Norway, a panel must first apply customary rules of  interpretation of public international law to the 
language of the contested provisions.  The purpose of th is exercise is to assist the treaty interpreter in 
arriving at one single interpretation, except in th e rarest of cases.  The second sentence would apply 
only as a last resort to settle an interpretative ques tion in favour of the investigating authority.  
                                                      
346Korea's third participant' s submission, para. 24. 
347Korea's third participant' s submission, para. 23.  
348Korea's third participant' s submission, para. 24. 
349Korea's third participant' s submission, para. 26. 
350Korea's third participant' s submission, para. 27.  WT/DS350/AB/R 
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According to Norway, the Appellate Body has repeat edly confirmed that the relevant Articles of the 
GATT 1994 and the Anti-Dumping Agreement  do not admit of another interpretation in respect of 
zeroing. 
9. Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
 
141. Pursuant to Rule 24(2) of the Working Procedures , the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu chose not to subm it a third participant's submission, but notified 
its intention to appear at the oral hearing.  At the oral hearing, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu argued that Ar ticle 6.2 of the DSU serves two purposes:  to 
define the scope of the dispute and, thus, the ju risdiction of the panel;  and to guarantee the due 
process rights of the parties to the dispute.  In the view of the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu, the European Communitie s' panel request was sufficiently specific for 
the Panel to decide what measures would fall with in its jurisdiction, and specific enough for the 
defendant to understand what measur es it would be required to defend. 
10. Thailand  
142. Pursuant to Rule 24(2) of the Working Procedures , Thailand chose not to submit a third 
participant's submission, but notified its intention to a ppear at the oral hearing.  At the oral hearing, 
Thailand expressed views relating to the WTO-incons istency of the use of the zeroing methodology, 
the role of prior rulings of the Appella te Body, and the interpretation of the Anti-Dumping Agreement  
in respect of the four preliminary measures at issue. 
III. Issues Raised in This Appeal 
143. Regarding the Panel's terms of reference, the following issues are raised on appeal by the 
European Communities: 
(a) Whether the Panel erred in finding that th e European Communities ' claims regarding 
the continued application of 18 anti-dumpi ng duties did not fall within the Panel's 
terms of reference and, more specifically: 
(i) whether the Panel erred in finding that the European Communities failed to 
identify the specific measure at issue wi th regard to these claims, as required 
by Article 6.2 of the DSU;  and  
(ii) whether the Panel acted inconsistently w ith Articles 7.1, 7.2, 11 and 12.7 of 
the DSU in reaching its finding.  WT/DS350/AB/R 
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(b) If the Appellate Body reverses the Panel's finding that the European Communities 
failed to comply with the requirements of Article 6.2 of the DSU, then whether the 
Appellate Body should complete the analysis and find that: 
(i) the continued application of the 18 anti-dumping duties fell within the Panel's 
terms of reference;  and 
(ii) the continued application of the 18 anti -dumping duties is inconsistent with 
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1 
and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement . 
(c) Whether the Panel erred in finding th at the European Communities' claims 
concerning four preliminary measures were outside the Panel's terms of reference. 
(d) If the Appellate Body reverses the Panel's finding that the European Communities' 
claims concerning the four preliminary measures were outside the Panel's terms of reference, then whether the Appellate Body should complete the analysis and find that: 
(i) the four preliminary determinations are within the scope of these 
proceedings;   
(ii) the preliminary result of the periodic revi ew is inconsistent with Articles 2.1, 
2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement  and Articles VI:1 
and VI:2 of the GATT 1994;  and 
(iii) the preliminary results of the sunset reviews are inconsistent with 
Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3 of the Anti-Dumping Agreement . 
144. Regarding the Panel's terms of re ference, the following issue is raised on appeal by the United 
States: 
- Whether the Panel erred in finding that 14 periodic review and sunset review 
determinations that were identified in th e European Communities' panel request, but 
not in the European Communities' consulta tions request, were within the Panel's 
terms of reference;  and 
- Whether the continued application of the 18 duties were not included in the 
consultations request and, consequently, fe ll outside the Panel's terms of reference. WT/DS350/AB/R 
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145. Regarding zeroing in periodic reviews, the fo llowing issue is raised on appeal by the United 
States:  
- Whether the Panel erred in finding that th e United States acted inconsistently with 
Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 by 
using simple zeroing in 29 periodic reviews. 
146. Regarding zeroing in periodic reviews, the fo llowing issues are raised on appeal by the 
European Communities: 
(a) Whether the Panel acted inconsistently with  its duties under Article 11 of the DSU in 
finding that the European Communities had failed to demonstrate that the United 
States Department of Commerce (the "USDOC") used simple zeroing in seven of the periodic reviews at issue;  and 
(b) If the Appellate Body reverses the Panel's finding that the European Communities had 
not shown that simple zeroing was used in seven periodic reviews, then whether the 
Appellate Body should complete the analys is and conclude that the United States 
acted inconsistently with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 
of the GATT 1994 in respect of these reviews. 
147. Regarding zeroing in sunset reviews, the followi ng issue is raised on appeal by the United 
States:  
- Whether the Panel acted inconsistently with  its duties under Article 11 of the DSU in 
finding that the United States failed to comp ly with its obligations under Article 11.3 
of the Anti-Dumping Agreement  in the eight sunset review determinations at issue in 
this dispute. 
148. Regarding the Panel's recommendations, the fo llowing issue is raised on appeal by the 
European Communities:  
- Whether the Panel erred in rejecting th e European Communities' request for a 
suggestion pursuant to Article 19.1 of the DSU. 
IV. The Panel's Terms of Reference 
149. We begin with the participants' appeals relating to  the Panel's terms of reference.  First, we 
review the Panel's finding that the European Comm unities failed to identify the specific measures at 
issue, as required by Article 6.2 of the DSU, in relation to its claims regarding the "continued  WT/DS350/AB/R 
 Page 61 
 
 
application of the 18 anti-dumping duties"351 by the United States.  Next, we examine whether the 
Panel erred in finding that the European Comm unities' claims regarding four preliminary 
determinations did not fall within th e Panel's terms of reference.  Furthermore, we address the issue of 
whether the Panel erred in finding that the Europ ean Communities' claims concerning 14 periodic and 
sunset review proceedings were within the Panel' s terms of reference despite the fact that these 
proceedings were not identified in the Eu ropean Communities' consultations request.352  Finally, we 
review the United States' conditional request353 that the Appellate Body find that the continued 
application of the 18 anti-dumping duties fell outside  the Panel's terms of reference on the grounds 
that they were not identified in the Eu ropean Communities' consultations request. 
A. The Continued Application of the 18 Anti-Dumping Duties 
150. The European Communities alleges that the Pa nel erred in concluding that the claims 
concerning the continued application of the 18 an ti-dumping duties fell outside the Panel's terms of 
reference because the European Communities' panel request did not identify the specific measures at 
issue in relation to these claims, as required by Ar ticle 6.2 of the DSU.  The European Communities 
requests the Appellate Body to reverse the Panel's co nclusions and to complete the analysis by finding 
that the continued application of the 18 anti-dum ping duties is inconsistent with Articles VI:1 
and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement , 
and Article XVI:4 of the WTO Agreement .354 
1. The Panel's Findings  
151. The United States requested the Panel to make a preliminary ruling that, in relation to the 
European Communities' claims regarding the "cont inued application of, or the application of"355 18 
anti-dumping duties, the panel request failed to identif y the specific measures at issue, "[i]nsofar as" 
the alleged measure is "deemed indeterminate".356  At the outset, the Panel noted the European 
Communities' explanation that it was not pursuing a claim against zeroing "as such" and found that 
                                                      
351Panel Report, para. 7.61.  The European  Communities' panel request refers to, inter alia , the 
"continued application of, or the application of the specific anti-dumping duties resulting from the anti-dumping 
orders enumerated from I to XVIII in the Annex to the present request".  (WT/DS350/6, Panel Report, Annex F-1, p. F-4)  For ease of reference, the Panel referred to "the continued application of the 18 duties" to 
describe the subject of the European Communities' challenge.  (See, for example, Panel Report, footnote 4 to 
para. 2.1.  See also ibid., paras. 7.49-7.61)  In this Report, we use the term "the continued application of 
the 18 anti-dumping duties" in the same manner. 
352Panel Report, para. 7.28. 
353The United States makes this request in the event that the Appellate Body reverses the Panel's 
finding that the European Communities' panel request does not identify the specific measures at issue, as 
required under Article 6.2 of the DSU.  (United States' other appellant's submission, footnote 6 to para. 26) 
354European Communities' appellant's submission, paras. 74 and 75. 
355WT/DS350/6, Panel Report, Annex F-1, p. F-4. 
356United States' first written submission to the Panel, Panel Report, Annex A-2, p. A-83, para. 45.   WT/DS350/AB/R 
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the European Communities' claims "are to be considered as challenging particular instances of 
application of the zeroing methodology".
357  For the Panel, the description in the panel request was 
"ambiguous, particularly because the panel request [did] not sufficiently distinguish between the 
continued application of the 18 duties and the use of zeroing in the 52 specific proceedings"358 that 
were also listed in the annex to the panel requ est.  The Panel reasoned that, "if the European 
Communities wishes to raise claims in connection with the contin ued application of the 18 duties at 
issue, it has to, in the first place,  identify that measure independently from other measures with regard 
to which it raises other claims."359 
152. The Panel further considered that the Eu ropean Communities did not "demonstrate the 
existence and the precise content of the purported me asure" and that "the continued application of 
the 18 duties", in isolation from any proceeding in which such duties had been calculated, did not 
"represent a measure in and of itself".360  The Panel added that the re medy sought by the European 
Communities would "affect the determinations that the USDOC might make in anti-dumping 
proceedings that may be conducted in the future".361  The Panel reasoned that "[t]here may be 
exceptional cases where panels may consider to ma ke findings on measures not identified in the 
complaining party's panel request".362  For that to happen, however, the new measure would "have to 
constitute 'a measure' within the meaning of Article  6.2 of the DSU" and would "have to come into 
existence during the panel proceedings".363   
153. Based on this analysis, the Panel concluded th at the European Communities had "failed to 
identify the specific measure at issue in connection w ith its claims regarding the continued application 
of the 18 anti-dumping duties".364  As a consequence, the Panel concl uded that such claims did not fall 
within its terms of reference.365   
2. Claims and Arguments on Appeal  
154. The European Communities submits that the Pane l erroneously interpreted Article 6.2 of the 
DSU in finding that the European Communities failed  to identify in its panel request the specific 
                                                      
357Panel Report, para. 7.42. 
358Panel Report, para. 7.49. 
359Panel Report, para. 7.58. 
360Panel Report, para. 7.56.  
361Panel Report, para. 7.59.  
362Panel Report, para. 7.59. 
363Panel Report, para. 7.59.  
364Panel Report, para. 7.61.  
365Panel Report, para. 7.61.  In so finding, the Pane l rejected the European Communities' assertion that, 
in order to prevail in its preliminary objection, the Un ited States was required to demonstrate that the alleged 
flaw in the European Communities' panel request had prejudiced the United States' due process rights in these 
proceedings.  ( Ibid., para. 7.62)  WT/DS350/AB/R 
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measures at issue with respect to the con tinued application of the 18 anti-dumping duties.366  T h e  
European Communities maintains that "it would have been impossible " for its panel request "to be any 
more specific , identifying as it did the document origina ting each of the 18 measures (in each case, the 
final order), that is, the specific duties applying to the specific products exported from the European 
Communities to the United States."367  The European Communities argu es that the Panel confused the 
"procedural legal analysis" under Article 6.2 of th e DSU with the "substantive legal analysis" under 
Article 3.3 of the DSU.368  As a consequence, the Panel erroneously addressed the issue of what is "a 
measure for purposes of WTO dispute settlement"369 and whether the European Communities had 
demonstrated the "existence and precise content of such measure".370  According to the European 
Communities, both questions concern substantive issues that should be analyzed properly under 
Article 3.3 of the DSU, which had not been raised by the United States.  C onsequently, the European 
Communities maintains, the Panel acted inconsiste ntly with Articles 7.1 and 12.1 of the DSU by 
making findings on matters that were not raised by the United States.  The European Communities 
adds that, in any event, a correct analysis under Article 3.3 shows that the European Communities 
demonstrated the existence and precise content of th e measure in relation to the continued application 
of the 18 anti-dumping duties.371  The European Communities also alleges the following 
errors:  (i) the Panel acted inconsistently with Artic le 7.2 of the DSU by failing to address the relevant 
provisions of the covered agreements cited by the European Communities;  (ii) the Panel failed to 
make an objective assessment of the matter before  it, as required under Article 11 of the DSU;  
and (iii) the Panel failed to set out the basic rati onale behind its findings,  inconsistently with 
Article 12.7 of the DSU.372 
155. On this basis, the European  Communities requests the Appellate Body to "modify or 
reverse"373 the Panel's findings that, in relation to th e continued application of the 18 anti-dumping 
duties, the European Communities' panel request fail ed to identify the specifi c measures at issue, as 
required by Article 6.2 of the DSU.  The European Communities also requests the Appellate Body to 
find that the European Communities identified th e specific measures at issue.  The European 
Communities additionally requests the Appellate Body  to complete the analysis by ruling that, 
because of the use of zeroing, each of  the 18 measures is inconsistent with Articles VI:1 and VI:2 of 
                                                      
366European Communities' appellant's submission, paras. 66-68. 
367European Communities' appellant's submission, para. 50. (original emphasis) 
368European Communities' appellant's submission, paras. 2 and 15.  See also ibid., paras. 54-61. 
369European Communities' appellant's submission, para. 56 (quoting Panel Report, para. 7.46). 
370European Communities' appellant's submission, para. 59 (emphasis omitted) (quoting Panel Report, 
para. 7.50). 
371European Communities' appellant's submission, paras. 27-49. 
372European Communities' appellant's submission, paras. 69-73. 
373European Communities' appellant's submission, para. 74. WT/DS350/AB/R 
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the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping Agreement , and 
Article XVI:4 of the WTO Agreement .
374 
156. By contrast, the United States contends that the Panel correctly found that the European 
Communities' panel request failed to identify the speci fic measures at issue.  For the United States, the 
panel request did not fulfil the requirement under Article 6.2 because it did not identify the specific 
determination leading to a particular anti-dumping du ty, and merely referred to the application of the 
duty in a general and detached way.375  In the United States' view, the Panel did not confound the 
legal analyses under Articles 6.2 and 3.3 of the DSU.   Rather, the Panel properly understood that an 
inquiry under Article 6.2 is related to the issue of whether "the thing being challenged is classifiable 
as a 'measure', as that term is used in Article 6.2 and throughout the DSU."376  The United States adds 
that the Panel's analysis as to the existence and pr ecise content of the 18 duties is not flawed, because 
the Panel correctly found that the European Comm unities' challenge with respect to these duties 
"seemed directed at free-floating, indefinite 'measu res', disconnected from any specific determinations 
giving rise to a duty rate".377  The United States further argues that, by claiming that the Panel 
improperly addressed issues not raised by the Unite d States, the European Communities "faults the 
Panel for making the very inquiry that it was required to make as part of its objective assessment of 
the matter"378, that is, whether the European Communities made a prima facie  case with respect to the 
alleged measures.  Finally, the United States mainta ins that the European Communities' allegations 
that the Panel acted inconsistently  with Articles 7.2, 11, and 12.7 of  the DSU lack merit and should be 
rejected.379 
157. On this basis, the United States requests th e Appellate Body to reject the European 
Communities' claim that the Panel erred in finding that the panel request did not identify the specific 
measures at issue with respect to the European Co mmunities' challenge of the continued application 
of the 18 anti-dumping duties.  The United States furt her requests the Appellate Body to reject the 
European Communities' request to complete the an alysis and, if the Appellate Body decides to 
complete the analysis, to find that the continue d application of the 18 anti-dumping duties is not 
inconsistent with th e covered agreements.380 
                                                      
374European Communities' appellant's submission, para. 75. 
375United States' appellee's submission, para. 72. 
376United States' appellee's submission, para. 86. (footnote omitted) 
377United States' appellee's submission, para. 92. 
378United States' appellee's submission, para. 81 (r eferring to European Communities' appellant's 
submission, paras. 64 and 65). 
379United States' appellee's submission, para. 99. 
380United States' appellee's submission, para. 106.  WT/DS350/AB/R 
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158. In considering the participants' arguments on a ppeal, we examine, first, the issue of whether 
the European Communities' panel request identifie s the specific measures at issue, as required by 
Article 6.2 of the DSU. 
3. The Specificity of the Panel Request  
159. Article 6.2 of the DSU provides, in relevant part: 
The request for the establishment of a panel shall be made in writing.  
It shall indicate whether consultati ons were held, identify the specific 
measures at issue and provide a brief summary of the legal basis of 
the complaint sufficient to present the problem clearly. 
160. There are two main requirements under Article 6.2 of the DSU, namely, the identification of 
the specific measures at issue, and the provision of a brief summary of the legal basis of the 
complaint.381  Together, these elements comprise the "ma tter referred to the DSB", which forms the 
basis for a panel's terms of reference under Article 7.1 of the DSU.382  These requirements are 
intended to ensure that the complainant "present[s]  the problem clearly" in the panel request.  This 
appeal concerns the first of the two requirements under Article 6.2, namely, the identification of the 
specific measures at issue.383 
161. The Appellate Body has observed previously th at the requirements in Article 6.2 serve two 
distinct purposes.384  First, as a panel's terms of reference are established by the claims raised in panel 
requests, the conditions of Article 6.2 serve to define  the jurisdiction of a panel.  Secondly, the terms 
of reference, and the request for the establishment of a panel on which they are based, serve the due 
process objective of notifying responde nts and potential third parties of the nature of the dispute and 
of the parameters of the case to which they must begin preparing a response.  To ensure that such 
purposes are fulfilled, a panel must examine the request  for the establishment of a panel "to ensure its 
compliance with both the letter and the spirit of Article 6.2 of the DSU".385  Such compliance must be 
                                                      
381The Appellate Body has stated that: 
When parsed into its constituent parts, Article 6.2 may be seen to impose the 
following requirements. The request must: (i) be in writing; (ii) indicate 
whether consultations were held; (iii) identify the specific measures at issue; and (iv) provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly. 
(Appellate Body Report, Korea – Dairy , para. 120)  
382See, for example, Appellate Body Report, Guatemala – Cement I , para. 72. 
383The Panel noted that there was "no disagreement be tween the parties regarding the inclusion in the 
[European Communities'] panel request of a brief summary of the legal basis of the complaint". (Panel Report, 
para. 7.40) 
384See, for example, Appellate Body Report, US – Carbon Steel , para. 126;  and Appellate Body 
Report, Brazil – Desiccated Coconut , p. 22, DSR 1997:I, 167, at 186.  See also Appellate Body Report, EC – 
Chicken Cuts , para. 155;  and Appellate Body Report, EC – Selected Customs Matters , para. 130. 
385Appellate Body Report, EC – Bananas III , para. 142. WT/DS350/AB/R 
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"demonstrated on the face" of the panel request
386, read "as a whole".387  With these principles in 
mind, we turn to review the Panel's examination of the European Communities' panel request.     
162. The chapeau of the panel request states that  "[t]he European Communities hereby requests 
that a panel be established by DSB action ... with rega rd to an 'as such' measure or measures providing 
for the practice or methodologies for calculating dumping margins involving the use of zeroing, and the application of zeroing in certain specified  anti-dumping measures maintained by the United 
States".  Subsequently, in section 1 of the pane l request, the European Communities claims that 
"[s]ince the WTO inconsistency of this practice or methodology is already established (notably in 
[US – Stainless Steel (Mexico) ]) the European Communities does not ask the Panel to rule on the 
WTO inconsistency of this practice."
388     
163. With respect to the measures at  issue, the European Commun ities' panel request reads as 
follows: 
The measures at issue and the legal basis of the complaint include, 
but are not limited to, the following: 
The continued application of, or the application of the specific anti-
dumping duties resulting from the anti-dumping orders enumerated 
from I to XVIII in the Annex to th e present request as calculated or 
maintained in place pursuant to the most recent administrative review 
or, as the case may be, original proceeding or changed circumstances or sunset review proceeding at a level in excess of the anti-dumping 
margin which would result from the correct application of the Anti-
Dumping Agreement (whether duties or cash deposit rates or other form of measure).  
In addition to these measures, the administrative reviews, or, as the 
case may be, original proceedings or changed circumstances or sunset review proceedings listed in the Annex (numbered 1 to 52) 
with the specific anti-dumping orders and are also considered by the 
[European Communities] to be m easures subject to the current 
request for establishment of the panel in addition to the anti-dumping orders. 
This includes the determinations in relation to all companies and 
includes any assessment instructions, whether automatic or 
otherwise, issued at any time pursuant to any of the measures listed in the Annex.  The anti-dumping duties maintained (in whatever form) pursuant to these orders, and the administrative reviews, or, as 
                                                     
 
386Appellate Body Report, US – Carbon Steel , para. 127. 
387Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 169 (quoting 
Appellate Body Report, US – Carbon Steel , para. 127). 
388WT/DS350/6, Panel Report, Annex F-1, p. F-3.  At the oral hearing, the European Communities 
confirmed that it is not challenging the inconsistency of the zeroing methodology, as such, with the covered 
agreements.   WT/DS350/AB/R 
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the case may be, original proceedings and changed circumstances or sunset review proceedings listed in  the Annex are inconsistent with 
[Articles 1, 2.1, 2.4, 2.4.2, 5.8, 9.1, 9.3, 9.5, 11, and 18.4 of the Anti-
Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement .]
389 (footnote omitted) 
164. The European Communities thus challenges two distinct sets of "measures".  First, the 
European Communities challenges the continue d application of the duties resulting from 
the 18 anti-dumping duty orders listed in the annex to its  panel request, as calculated or maintained in 
the most recent proceeding pertaining to such  duties.  Secondly, the European Communities 
challenges the use of the zeroing methodology in 52 specific anti-dumping proceedings (four original 
investigations, 37 periodic reviews, and 11 sunset reviews) that pertain to the duties resulting from 
these 18 anti-dumping duty orders. 
165. It is with respect to the first set of measures that the issue of specificity under Article 6.2 
arises in this appeal.  The panel request makes e xplicit reference to the definitive anti-dumping duties 
resulting from 18 anti-dumping duty orders, each imposed on a specific product exported to the 
United States from a specific country.  The orders imposing these definitive duties are also listed in 
the annex to the European Communities' panel request.  For each of these 18 anti-dumping duty 
orders, a citation is provided.  The panel request further indicates that the European Communities is 
challenging the "continued application of, or the application of" these anti-dumping duties "as 
calculated or maintained in place pursuant to the mo st recent administrative review or ... original 
proceeding or changed circumstanc es or sunset review proceeding".390  The European Communities 
further alleges in its panel request that the duties maintained pursuant to such "most recent" reviews 
are calculated at levels "in excess of the anti-dumping margin which would result from the correct application of the Anti-Dumping Agreement".
391  Read in its context, it is clear that this sentence 
refers to the continued application of anti-dum ping duties calculated with the use of the zeroing 
methodology.  More specifically, the European Communities maintains in section 1 of its panel 
request that the USDOC "systematically" uses th e zeroing methodology in all types of reviews 
pertaining to anti-dumping duties and relies on margins calculated with the zeroing methodology in sunset reviews.  The European Communities further submits in its panel request that it "has identified 
in the annex to this request a number of anti-dumpi ng orders where duties are set and/or maintained 
on the basis of the above-mentioned zeroing practice or methodology with the result that duties are 
                                                     
 
389WT/DS350/6, Panel Report, Annex F-1, p. F-4. 
390WT/DS350/6, Panel Report, Annex F-1, p. F-4. 
391WT/DS350/6, Panel Report, Annex F-1, p. F-4. WT/DS350/AB/R 
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paid by importers ... in excess of the dumping marg in which would have been calculated using a 
WTO consistent methodology".
392 
166. Thus, the panel request links the following three elements in seeking to identify the measures 
at issue:  (i) duties resulting from the anti-dumping duty orders in the 18 cases listed in the annex;  (ii) the most recent periodic or sunset review proceedings pertaining to these duties;  and (iii) the use of the zeroing methodology in calculating the level of these duties in such 
proceedings.  Taken together, the United States coul d reasonably have been e xpected to understand 
that the European Communities was challenging th e use of the zeroing methodology in successive 
proceedings, in each of the 18 cases, by whic h the anti-dumping duties are maintained.   
167. The Panel found that the panel request does not meet the specificity requirement under 
Article 6.2 because the European Communities failed  to "demonstrate the existence and the precise 
content of the purported measure" and that "the continued application of the 18 duties" does not 
"represent a measure in and of itself".
393  The Panel reasoned that, "in order to successfully raise 
claims against a measure, the complaining Member must in the first place demonstrate the existence and the precise content of such measure, consisten tly with the requirements of Article 6.2 of the 
DSU."
394  In support of the Panel's findings, the Unite d States maintains that the Panel "properly 
understood that an inquiry under Article 6.2 is related to the issue of whether the thing being 
challenged is classifiable as a 'measure', as that te rm is used in Article 6.2 and throughout the 
DSU."395   
168. As noted above, the specificity requirement under Article 6.2 is intended to ensure the 
sufficiency of a panel request in "present[ing] the pr oblem clearly".  The identification of the measure, 
together with a brief summary of the legal basis of  the complaint, serves to demarcate the scope of a 
panel's jurisdiction and allows pa rties to engage in the subseque nt panel proceedings.  Thus, the 
specificity requirement means that the measures at issue must be identified with sufficient precision 
so that what is referred to adjudication by a pa nel may be discerned from the panel request.  The 
Panel, however, appeared to attribute a more s ubstantive meaning to the specificity requirement, 
whereby the existence and precise content of a meas ure must be demonstrated for a panel request to 
fulfil this requirement.    
169. Yet, the identification of the specific measures at  issue, pursuant to Article 6.2, is different 
from a demonstration of the existence of such measures.  For the latter, a complainant would be 
                                                      
392WT/DS350/6, Panel Report, Annex F-1, p. F-4.   
393Panel Report, para. 7.56. 
394Panel Report, para. 7.50. 
395United States' appellee's submission, para. 86. (footnote omitted)  WT/DS350/AB/R 
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expected to present relevant arguments and ev idence during the panel proceedings showing the 
existence of the measures, for example, in th e case of challenges brought against unwritten norms.396  
Moreover, although a measure cannot be identified without some indication of its contents, the 
identification of a measure within the meaning of Article 6.2 need be framed only with sufficient 
particularity so as to indicate the nature of the measu re and the gist of what is at issue.  Thus, an 
examination regarding the specificity of a panel re quest does not entail substa ntive consideration as to 
what types of measures are susceptible to challenge in WTO dispute settlement.  Such consideration 
may have to be explored by a panel and the parties during the panel proceedings, but is not 
prerequisite for the establishment of a panel.  To im pose such prerequisite would be inconsistent with 
the function of a panel request in commencing panel proceedings and setting the jurisdictional 
boundaries of such proceedings.  Therefore, we re ject the proposition that an examination of the 
specificity requirement under Article 6.2 of the DS U must involve a substantive inquiry as to the 
existence and precise content of the measure.   
170. Furthermore, in the Panel's view, the Eur opean Communities' panel request did "not 
sufficiently distinguish between the continued app lication of the 18 duties and the use of zeroing in 
the 52 specific proceedings at issue."397  The Panel reasoned that, "if the European Communities 
wishes to raise claims in connection with the contin ued application of the 18 duties at issue, it has to, 
in the first place, identify that measure independent ly from other measures with regard to which it 
raises other claims."398  We have some sympathy for the view that the panel request could have been 
formulated with greater precision and clarity.  Nonetheless, so long as each measure is discernable in 
the panel request, the complaining party is not require d to identify in its panel request each challenged 
measure independently from other measures in order to comply with the specificity requirement in 
Article 6.2 of the DSU. 
171. For the Panel, "another flaw" in the European Communities' arguments was that "the remedy 
sought by the European Communities will affect the determinations that the USDOC might make in 
anti-dumping proceedings that may be conducted in the future."399  The Panel reasoned that 
"Article 6.2 of the DSU, in principle, does not a llow a panel to make findings regarding measures that 
do not exist as of the date of the panel's establishm ent" unless they "come into existence during the 
panel proceedings".400  The Panel appeared to consider that, because the remedy sought by the 
European Communities was prospectiv e in nature, the "measures" with  respect to which such remedy 
was sought could not be regarded as specifically id entified in the panel request.  In our view, the 
                                                      
396See Appellate Body Report, US – Zeroing (EC) , para. 198. 
397Panel Report, para. 7.49. 
398Panel Report, para. 7.58. 
399Panel Report, para. 7.59. 
400Panel Report, para. 7.59. WT/DS350/AB/R 
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remedy sought by the complainant may provide fu rther confirmation as to the measure that is the 
subject of the complaint.  As discussed, we are of the view that it can be discerned from the panel 
request, read as a whole, that the measures at issue consist of an ongoing conduct, that is, the use of 
the zeroing methodology in successive proceedings  in each of the 18 cases whereby anti-dumping 
duties are maintained.  The prospective nature of the remedy sought by the European Communities is 
congruent with the fact that the measures at is sue are alleged to be ongoing, with prospective 
application and a life potentially stretching into the future.  Moreover, it is not uncommon for 
remedies sought in WTO dispute settle ment to have prospective effect, such as a finding against laws 
or regulations, as such, or a subsidy prog ramme with regularly recurring payments. 
172. In the light of the above, we reverse
 the Panel's finding that th e European Communities failed 
to comply with Article 6.2 of the DSU, and find , instead, that the panel re quest identifies the specific 
measures at issue with regard to the European  Communities' claims concerning the continued 
application of the 18 anti-dumping duties calculated with the use of the zeroing methodology. 
173. The European Communities further argues th at, by confounding the legal issues under 
Articles 6.2 and 3.3 in its analysis regarding the specificity of the panel request, the Panel made 
findings on matters that were not raised by the Un ited States, in violation of Articles 7.1 and 12.1 of 
the DSU.401  Furthermore, the European Communities alleg es that the Panel acted inconsistently with 
Articles 7.2, 11, and 12.7 of the DSU in finding th at the European Communities' claims relating to the 
continued application of the 18 anti-dumping duti es did not fall within the Panel's terms of 
reference.402   
174. Having reversed the Panel's finding that the Eu ropean Communities' panel request failed to 
comply with the requirements of Article 6.2 of the DSU, we do not consider it necessary to make additional findings on these claims  by the European Communities. 
4. Whether the Measures Identified by  the European Communities are 
Susceptible to Challenge in WTO Dispute Settlement  
175. The European Communities requests the Appellate  Body, in the event it reverses the Panel's 
finding under Article 6.2, to complete the an alysis and find that the European Communities 
demonstrated the existence and precise content of the measures at issue.  The European Communities 
submits that, in this dispute, it "has referred to as 'm easures' within the meaning of Article 3.3 of the 
DSU  each of the 18 anti-dumping duties calcu lated using zeroing on a specific product".403  According
                                                      
401European Communities' appellant's submission, paras. 62-65. 
402European Communities' appellant's submission, paras. 69-73. 
403European Communities' appellant's submission, para. 31. (emphasis omitted)  WT/DS350/AB/R 
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to the European Communities, each of the 18 measur es is "manifested in a series of documents that 
may be adopted over time, beginning with the fina l order and continuing with the outcomes of the 
various subsequent proceedings."404   
176. We begin our consideration of this issue by examining the concept of "measure" as it appears 
in the DSU.  The DSU, in Article 3.3, provides that the WTO dispute settlement system exists to 
address "situations in which a Member considers that any benefits accruing to it directly or indirectly 
under the covered agreements are being impaired by measures taken by another Member".  In 
previous cases, the Appellate Body has addressed, in the context of the Anti-Dumping Agreement , the 
scope of "measures" that may be the subject of WTO dispute settlement.  In US – Corrosion-Resistant 
Steel Sunset Review , the Appellate Body observed that: 
[i]n principle, any act or omission attributable to a WTO Member can 
be a measure of that Member for purposes of dispute settlement proceedings.  The acts or omissions that are so attributable are, in the usual case, the acts or omissions of the organs of the state, including those of the executive branch.
405 (footnotes omitted)  
177. Articles 17.3 and 17.4 of the Anti-Dumping Agreement  are also relevant to the question of the 
types of measures that can be submitted to dispute settlement under the Anti-Dumping Agreement .  
Closely resembling Article 3.3 of the DSU, Article 17.3 provides that, "[i]f any Member considers that any benefit accruing to it, directly or indirectly, under [the Anti-Dumping Agreement ] is being 
nullified or impaired ... by another Member or Memb ers, it may, with a view to reaching a mutually 
satisfactory resolution of the matter, request in wr iting consultations with the Member or Members in 
question."
406  Article 17.4 of the Anti-Dumping Agreement  further specifies that a Member may refer a 
matter to the DSB if it considers that the consulta tions have failed to achieve a mutually agreed 
solution "and if final action has been taken by th e administering authorities of the importing Member 
to", inter alia , "levy definitive anti-dumping duties". 
178. As noted by the Panel, measures examined by  WTO panels and the Appellate Body include 
"not only measures consisting of acts that apply to pa rticular situations, but also those consisting of 
acts setting forth rules or norms that have  general and prospective application."407  The Panel further 
stated that "[c]laims taking issue with measures of  general and prospective application are generally 
called 'as such' claims, whereas those targeting ac ts that apply to specific situations are called 
                                                      
404European Communities' appellant's submission, para. 38. 
405Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 81. 
406We address provisional measures within the meaning of Article 17.4 of the Anti-Dumping Agreement  
below in paragraph 205 ff.  
407Panel Report, para. 7.45 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , footnote 80 to para. 82). WT/DS350/AB/R 
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'as applied' claims."
408  The Panel cautioned that "the distinc tion between 'as such' and 'as applied' 
claims does not govern the definition of a me asure for purposes of WTO dispute settlement".409  In 
subsequent analyses, however, the Panel attribut ed some significance to this distinction when 
rejecting the European Communities' explanation as to  the precise content of the measures at issue.  
More specifically, the Panel found that the Europ ean Communities "equates the continued application 
of the 18 duties at issue with the zeroing methodology 'as such'".410  In the Panel's view, because the 
European Communities stated that  it was not challenging the zeroing methodology "as such" in this 
dispute, its explanation regarding the precise cont ent of the measures was "internally inconsistent".411  
The European Communities takes issu e with this reasoning, contending that it did not equate the 
measures at issue with the zeroing methodology "as such".412  Rather, as it "careful[ly]"413 explained 
to the Panel, it was "seeking review of each of the 18 anti-dumping duties insofar as part of each duty 
is the zeroing methodology as it relates to that specific product and country."414    
179. We share the Panel's view that the distincti on between "as such" and "as applied" claims 
does not govern the definition of a measure for purpo ses of WTO dispute settlement.  This distinction 
has been developed in the jurisprudence as an anal ytical tool to facilitate the understanding of the 
nature of a measure at issue.  This heuristic devi ce, however useful, does not define exhaustively the 
types of measures that may be subject to challe nge in WTO dispute settlement.  In order to be 
susceptible to challenge, a measure need not fit squa rely within one of these two categories, that is, 
either as a rule or norm of general and prospective application, or as an individual instance of the 
application of a rule or norm. 
180. In this dispute, the measures at issue consist of the use of the zeroing methodology in 
successive proceedings, in each of the 18 cases, by  which the anti-dumping duties are maintained.  
                                                      
408Panel Report, para. 7.45. 
409Panel Report, para. 7.46. 
410Panel Report, para. 7.55.  In this paragraph, the Panel referred to the European Communities' 
explanation that: 
[i]n US – Zeroing (EC)  and in US – Zeroing (Japan) , the Appellate Body has accepted 
that both the [European Communities] and Japan have described the "precise content" in 
the context of the methodology itself.  It n ecessarily follows that what the [European 
Communities] has described in each of th e 18 measures—which is the same—also 
meets the "precise co ntent" requirement. 
(Ibid. (emphasis omitted) (quoting European Communities' response to Panel Question No. 1(a) following the 
first meeting)) 
411Panel Report, para. 7.55. 
412European Communities' appellant's submission, para. 47. 
413European Communities' appellant's submission, para. 47. 
414European Communities' responses to questioning at the oral hearing.  See also European 
Communities' appellant's submission, para. 38.  WT/DS350/AB/R 
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The European Communities' claim regarding these measures is not an "as such" claim415, in that its 
scope is narrower than a challenge to the zeroi ng methodology as a rule or norm of general and 
prospective application with regard to all imports into the United States from all countries.416  At the 
same time, the measures at issue are broader than specific instances in which the zeroing methodology 
was applied, such as a periodic review or sunset re view determination.  In other words, the measures 
at issue consist of the use of the zeroing met hodology in a string of connected and sequential 
determinations, in each of the 18 cases, by whic h the duties are maintained.  As the European 
Communities explains, its complaint is directed at "the zeroing methodology as used in the final order 
and programmed to continue to be used until such  time as the United States eliminates zeroing from 
the particular anti-dumping duty under consideration."417   
181. Thus, the measures at issue consist of neither  the zeroing methodology as a rule or norm of 
general and prospective application, nor discret e applications of the zeroing methodology in  
particular determinations;  rather, they are the use of the zeroing methodology in successive proceedings, in each of the 18 cases, by which duties ar e maintained over a period of time.  We see no 
reason to exclude ongoing conduct that  consists of the use of the ze roing methodology from challenge 
in WTO dispute settlement.  The successive determ inations by which duties are maintained are 
connected stages in each of the 18 cases involving imposition, assessment, and collection of duties 
under the same anti-dumping duty order.
418  The use of the zeroing methodology in a string of these 
stages is the allegedly unchanged component of each of the 18 measures at issue.419  It is with respect 
to this ongoing conduct that the European Comm unities brought its challenge, seeking its cessation.
                                                      
415As noted earlier, the European Communities claims  that "[s]ince the WTO inconsistency of this 
practice or methodology is already established (notably in [ US – Stainless Steel (Mexico) ]) the European 
Communities does not ask the Panel to rule on the WTO inconsistency of this practice."  (WT/DS350/6, Panel 
Report, Annex F-1, p. F-3) 
416We note that, as of February 2007, the USDOC has ceased to apply zeroing in weighted average-to-
weighted average ("W-W") comparisons in original investigations.  (Panel Report, para. 7.198) 
417European Communities' appellant's submission, para. 36.  See also European Communities' first 
written submission to the Panel, Panel Report, Annex A-1, p. A-30, para. 118. 
418More specifically, the USDOC issues  an anti-dumping duty order at the conclusion of an original 
anti-dumping investigation if the USDOC finds that dumping existed during the period of investigation, and the 
USITC finds that domestic industry was materially injured, or threated with material injury, by reason of 
dumped imports.  Generally, this order imposes an esti mated anti-dumping duty depo sit rate for each exporter 
individually examined.  Subsequently, if a request for a periodic review is  made, the USDOC will determine the 
final amount of anti-dumping duties owed on sales made by the foreign exporter during the previous period.  In 
addition, the USDOC will calculate a going -forward cash deposit rate that will apply to all future entries of the 
subject merchandise from that exporter.  In a sunset review of an order, the authorities determine whether 
revocation of the anti-dumping duty order would likely lead to continuation or recurrence of dumping and injury.  As we understand it,  an affirmative sunset review determinati on, while providing a distinct legal basis 
for the continued imposition of the relevant anti-dumping duties, nonetheless derives from the same underlying 
anti-dumping order under which duties ha ve been imposed over the preceding five years.  In this respect, we 
further note that, under Article 11.3 of the Anti-Dumping Agreement , the termination of the anti-dumping duty at 
the end of five years is the "rule" and its continuation beyond that period is the "exception".   
419See European Communities' appellant's submission, para. 36. WT/DS350/AB/R 
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At the oral hearing, the Europ ean Communities confirmed that it is not seeking the revocation of 
the 18 anti-dumping orders but, rather, the cessation of the use of the zeroing methodology by which 
the duties are calculated and maintained in these 18 cases.
420  In our view, the European Communities, 
in seeking an effective resolution of its dispute with  the United States, is entitled to frame the subject 
of its challenge in such a way as to bring the ongoing conduct, regarding the use of the zeroing methodology in these 18 cases, under the scrutiny of WTO dispute settlement.  
182. The European Communities takes issue with the Panel's finding that "the continued 
application of 18 duties" was "in isolation from any proceeding in which such duties have been 
calculated".
421  The European Communities submits that it " carefully explained the genesis of each of 
the 18 measures"422 and that the existence of these duties on specific products from the European 
Communities could not "be seriously contested by the United States".423  In response, the United 
States maintains that, in making the above finding, the Panel correctly "grasped" that the European 
Communities' challenge regarding the continued a pplication of the 18 anti-dumping duties "seemed 
directed at free-floating, indefinite 'measures,' disconnected from any specific determinations giving 
rise to a duty rate".424   
183. As we see it, the European Communities is not challenging duties "in isolation" from any 
proceeding.  Rather, as indicated in its panel re quest, the European Communities is challenging the 
anti-dumping duties resulting from 18 specific anti-dumpi ng duty orders "as calculated or maintained 
in place", with the use of the zeroing methodology, in  the "most recent" proceeding in the 18 cases.  
As explained above, we consider that the measures at  issue consist of the continued use of the zeroing 
methodology in successive proceedings by which duti es in each of the 18 cases are maintained.  Thus, 
we disagree with the proposition that the Euro pean Communities' challenge concerns "free-
floating"425 duties in isolation from the underlying determinations giving rise to them. 
184. The continued use of the zeroing methodology in a string of determinations can be illustrated 
by the following example.  With respect to one  of the 18 cases listed in the panel request— Ball 
Bearings and Parts Thereof from Italy (Case II – Nos. 5-9)—the Panel found that simple zeroing was 
used in the four periodic reviews (Nos. 5-8)426 conducted for the four consecutive years 
                                                      
420European Communities' responses to questioning at the oral hearing. 
421European Communities' appellant's submission, para . 49 (referring to Pane l Report, para. 7.56). 
422European Communities' appellant's submission, para. 49. 
423European Communities' appellant's submission, para. 48. 
424United States' appellee's submission, para. 92.   
425United States' appellee's submission, para. 92.   
426Panel Exhibits EC-31, EC-36, EC-37, and EC-38.  WT/DS350/AB/R 
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between 1 May 2001 and 30 April 2005.427  The Panel further found that, in the sunset review 
pertaining to this order (of which the li kelihood-of-dumping determination was issued 
on 5 October 2005), the USDOC relied on the margin from the original investigation, which was 
calculated with the zeroing methodology.428  The Panel record further i ndicates that the sunset review 
(No. 9)429 resulted in continuation of the original anti-dumping duty order.  Thus, the Panel's factual 
findings show that the USDOC used the zeroing met hodology in all of the above periodic reviews.  
Moreover, the USDOC relied on margins calculated with  zeroing in the sunset review that led to the 
continuation of the anti-dumping duty order.  This string of determinations demonstrates the 
continued use of the zeroing methodology in successive proceedings, whereby duties resulting from the anti-dumping duty order on Ball Bearings and Parts Thereof from Italy  are maintained.
430  In the 
following subsection, we discuss whet her there are sufficient factual findings and undisputed facts in 
the record that establish the exis tence of the measures at issue in respect of each of the 18 cases. 
185. In the light of the above, we find that the continued use of the zeroing methodology in 
successive proceedings in which duties resu lting from the 18 anti-dumping duty orders are 
maintained, constitute "measures" that ca n be challenged in WTO dispute settlement. 
5. Whether the Appellate Body May Complete the Analysis  
186. This brings us to the question of whether we can complete the analysis, as requested by the 
European Communities, and rule that the continued application of the zeroing methodology in 
successive proceedings, by which the duties in th e 18 cases are maintained, is inconsistent with 
Articles VI:1 and VI:2 of the GATT 1994, Articl es 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping 
Agreement , and Article XVI:4 of the WTO Agreement .431  
187. In previous disputes, the Appellate Body h as completed the analysis with a view to 
facilitating the prompt settlement of the dispute.432  However, the Appellate Body has held that it can 
                                                      
427Panel Report, para. 7.145.  The United States did not contest that simple zeroing was used in these 
proceedings.  ( Ibid.) 
428Panel Report, paras. 7.190 and 7.200.  This finding is upheld on appeal.  See supra , section VIII. 
429Panel Exhibit EC-71. 
430See also the graph provided by the European Communities in its first written submission to the Panel 
regarding duties on Ball Bearings and Parts Thereof from Italy  (Case II). (Panel Report, Annex A-1, p. A-30) 
431European Communities' appellant's submission, para. 75.   
432See, for example, Appellate Body Report,  Australia – Salmon , paras. 117-118;  Appellate Body 
Report,  US – Wheat Gluten , paras. 80-92;  and Appellate Body Report, Canada – Aircraft (Article 21.5 – 
Brazil) , paras. 43-52. WT/DS350/AB/R 
Page 76  
 
do so only if the factual findings of the panel and the undisputed facts in the panel record provides it 
with a sufficient basis for its own analysis.
433  
188. In this dispute, the Panel made no findings on the above claims of the European 
Communities, having excluded such claims from its te rms of reference pursuant to Article 6.2 of the 
DSU.  Nonetheless, according to the European Commun ities, there is a sufficient factual basis in the 
record to allow for the comple tion of the analysis.  The Eur opean Communities contends that 
the 52 proceedings pertaining to the 18 cases listed in the annex to the panel request serve as evidence 
for its claims against the continued application of the zeroing methodology, whereby the duties are maintained.
434   
189. We have found that the measures at issue subj ect to the European Communities' claims are 
the continued use of the zeroing methodology in successive proceedings, in each of the 18 cases, by 
which the duties are maintained.  This, however, does not establish whether the use of the zeroing 
methodology, as an ongoing conduct, exists with respect to duties resulting from each of the 18 anti-
dumping duty orders subject to the European Communiti es' claims.  In order to complete the analysis 
in this respect, we must ascerta in whether the factual findings made by the Panel and undisputed facts 
in the record show that the zeroing methodology h as been used repeatedly in successive proceedings, 
in each of the 18 cases, by which the duties are maintained. 
190. As an initial matter, we note the European Communities' reference to adopted panel and 
Appellate Body reports in which the existen ce of the United States' zeroing methodology, as an 
unwritten norm of general and prospective application, was fou nd to exist in the context of both 
original investigations and periodic reviews.435  Factual findings made in prior disputes do not 
determine facts in another dispute.  Evidence a dduced in one proceeding, and admissions made in 
respect of the same factual question about the operation of an aspect of municipal law, may be submitted as evidence in another proceeding.  The finders  of fact are of course obliged to make their 
own determination afresh and on the basis of all the evidence before them.  But if the critical evidence 
is the same and the factual question about the operati on of domestic law is the same, it is likely that 
the finder of facts would reach similar findings in the two proceedings.  Nonetheless, the factual 
                                                     
 
433See Appellate Body Report, Australia – Salmon , paras. 209, 241 and 255;  Appellate Body Report, 
Korea – Dairy , paras. 91 and 102;  Appellate Body Report, Canada – Autos , paras. 133 and 144;  and Appellate 
Body Report, Korea – Various Measures on Beef , para. 128. 
434European Communities' responses to questioning at the oral hearing. 
435These include the Appellate Body Reports in EC – Bed Linen , US – Softwood Lumber V , US – 
Softwood Lumber V (Article 21.5 – Canada) , US – Zeroing (EC) , and US – Zeroing (Japan) .  (European 
Communities' appellant's submission, para. 99 (referring  to European Communities' first written submission to 
the Panel, Panel Report, Annex A-1, pp. A-26 and A-27, paras. 101-106))  We note that, as of February 2007, 
the USDOC has ceased to apply zeroing in W-W comparis ons in original investigations.  (Panel Report, 
para. 7.198)  WT/DS350/AB/R 
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findings adopted by the DSB in prior cases regardi ng the existence of the zeroing methodology, as a 
rule or norm, are not binding in another dispute.  In themselves, they do not establish that zeroing was 
used in all the successive pro ceedings in each of the 18 cases lis ted in the European Communities' 
panel request. 
191. With this in mind, we turn to examine relevant  factual findings made by the Panel.  As noted 
in the previous subsection, in Ball Bearings and Parts Thereof from Italy (Case II), the Panel made 
findings confirming the use of zeroing in the stri ng of determinations pertaining to the same anti-
dumping duty order.  More specifically, the Panel found that simple zeroing was used in the four 
periodic reviews (Nos. 5-8) and that, in the sunset review determination resulting in the continuation 
of the duty order (No. 9), the USDOC relied on the ma rgin from the original investigation, which was 
calculated with the zeroing methodology.436  The Panel made the same findings regarding the four 
periodic reviews and the sunset review with respect to each of the following437:  Ball Bearings and 
Parts Thereof from Germany (Case III – Nos. 10-14)438;  Ball Bearings and Parts Thereof from 
France (Case IV – Nos. 15-19)439;  and Stainless Steel Sheet and Strip in Coils from Germany 
(Case VI – Nos. 22-26).440  The Panel's factual findings regardi ng the use of zeroing in these periodic 
reviews are not subject to appeal, and its factual findings regarding the sunset reviews are upheld on 
appeal.441  The Panel record further indicates that th e sunset reviews in all four cases resulted in 
continuation of the original anti-dumping duty orders.442  Thus, in each of the above four cases, the 
Panel's findings indicate that the zeroing methodology was repeatedly used in a string of 
determinations, made sequentially in periodic reviews and sunset re views over an extended period of 
time.  The density of factual findings in these cas es, regarding the continued use of the zeroing 
methodology in a string of successive proceedings pertaining to the same anti-dumping duty order, 
provides a sufficient basis for us to conclude th at the zeroing methodology would likely continue to 
be applied in successive proceedings whereb y the duties in these four cases are maintained. 
192. The United States contends that the European  Communities "cannot say with any certainty 
that the United States will use so-called zeroing in each  and every future determination giving rise to 
                                                      
436Panel Report, paras. 7.145, 7.190 and 7.200. 
437Panel Report, paras. 7.145, 7.190 and 7.200. 
438Panel Exhibits EC-39 to EC-42 and EC-72. 
439Panel Exhibits EC-43 to EC-46 and EC-73. 
440Panel Exhibits EC-49 to EC-52 and EC-74. 
441See infra , section VIII. 
442The continuation orders in these four cases are:  Ball Bearings and Parts Thereof from Italy  
(Case II – No. 9) (Panel Exhibit EC-71, Appendix I);  Ball Bearings and Parts Thereof from Germany  
(Case III – No. 14) (Panel Exhibit EC-72, Appendix II);  Ball Bearings and Parts Thereof from France  
(Case IV – No. 19) (Panel Exhibit EC-73, Appendix II);  and Stainless Steel Sheet and Strip in Coils from 
Germany  (Case VI – No. 26) (Panel Exhibit EC-74, Appendix II). WT/DS350/AB/R 
Page 78  
 
the application or continued appli cation of duties in the 18 'cases'".
443  Specifically, the United States 
maintains that "[i]t is not even certain that in so me periods there will be sales above normal value, so 
there would not even be the possibility of applying so-called zeroing."444  According to this argument, 
in a particular case where all export prices happen to  be below the normal value, zeroing would not be 
applied.  However, the use of zeroing is relevant only when there are transact ions with export prices 
above normal value, whereby the negative compar ison results between the export prices and the 
normal value would be treated as zero.  Thus, even if zeroing may not manifest itself as a result of the 
particular factual circumstances of a case in which all export prices are below the normal value, this 
does not negate the fact that the repeated action by  the USDOC in a string of determinations relating 
to these four cases confirms the use of th e zeroing methodology as an ongoing conduct. 
193. In contrast, the existing factual findings of the Panel and undisputed facts in the Panel record 
in relation to 6 of the 18 cases concern only one proceeding in each case whereby duties were applied 
with the use of zeroing.  More specifically, the Panel found that the zeroing methodology was used in the original investigations in four cases.
445  No other determinations in those cases were in the Panel 
record.  In one other case, the Panel found that, in the sunset review, the USDOC relied on the 
original margin calculated with zeroing.446  However, no other determ ination concerning successive 
stages in this case was in the Panel record.  In yet another case, the only specific evidence submitted 
by the European Communities concerns one periodic review.447  In this case, the Panel found that 
there was insufficient evidence show ing that simple zeroing was used.448  In our view, the Panel' 
factual findings and undisputed facts concerning these six cases do not appear sufficient for us to 
complete the analysis and determ ine the existence of the ongoing use of the zeroing methodology in a 
string of determinations emanating from successive  proceedings, in each of these cases, by which 
duties are maintained.   
194. With respect to the remaining eight cases, the Panel's factual findings are only partial with 
respect to the use of the zeroing methodology in  successive proceedings by which the duties are 
maintained.  More specifically, in three cases, the Panel found that, in each case, simple zeroing was 
used in two periodic reviews and that margins calculated with zeroing were relied upon by the 
                                                      
443United States' appellee's submission, para. 67. 
444United States' appellee's submission, para. 67. 
445Panel Report, para. 7.104.  These four cases are:  Purified Carboxymethylcellulose from Sweden  
(Case XV) (Panel Exhibit EC-28);  Purified Carboxymethylcellulose from the Netherlands  (Case XVI) (Panel 
Exhibit EC-26);  Purified Carboxymethylcellulose from Finland  (Case XVII) (Panel Exhibit EC-29);  and 
Chlorinated Isocyanurates from Spain  (Case XVIII) (Panel Exhibit EC-30). 
446Panel Report, paras. 7.190, and 7.200.  This is Brass Sheet and Strip from Germany  (Case XIV – 
No. 48) (Panel Exhibit EC-79).  This finding is upheld on appeal.  See infra , section VIII. 
447Stainless Steel Bar from Italy (Case XI – No. 39) (Panel Exhibit EC-62). 
448Panel Report, para. 7.156.  The European Communities appeals this finding.  See  infra , section VI.  WT/DS350/AB/R 
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USDOC in the sunset review449;  however, no evidence regarding any other proceedings was 
submitted to the Panel.  In two of the remaining five cases, the Panel's findings450 confirm the use of 
zeroing in two periodic reviews of one case and in three periodic reviews of the other case.451  
However, for both cases, the Panel found a lack of evidence showing that zeroing was used in one periodic review listed in the panel request.
452  Moreover, for both cases, the sunset review 
determination was excluded from the Panel's terms of reference, he nce no substantive findings were 
made.453  As for two of the remaining cases, the only evidence in the record concerns two periodic 
reviews in each case.  In this respect, the Pane l found that none of the evidence in these two cases 
established that simple zeroing was used in the periodic reviews.454  Thus, unlike the situation 
described in paragraph 191 above, the Panel ma de no finding confirming the use of the zeroing 
methodology in successive stages over an extended peri od of time whereby the duties are maintained.  
Given the absence of the Panel's factual findings an d the fragmented nature of the evidence, we are 
unable to complete the analysis on whether the use of the zeroing methodology exists as an ongoing conduct in successive proceedings by whic h the duties are maintained in these cases. 
195. We recognize the important limitation on our abil ity to complete the analysis.  We have 
accordingly adopted, for the purpose of this dispute,  a cautious approach.  Thus, only where the Panel 
has made clear findings of fact concerning the u se of the zeroing methodology, without interruption, 
in different types of proceedings over an extended period of time, have we considered these findings 
sufficient for us to complete the analysis and to make findings regarding the continued application of 
zeroing in these cases.
455  By contrast, we have not completed the analysis where the factual findings 
are absent in respect of the use of the zeroi ng methodology in each of the successive proceedings 
whereby the duties are maintained, or where there are insufficient factual findings to indicate that 
zeroing has been repeatedly applied.456  In such circumstances, an examination of the facts, as well as 
                                                      
449Panel Report, paras. 7.145, 7.190 and 7.200.  The Panel's findings regarding the sunset reviews are 
upheld on appeal.  See infra , section VIII.  These three cases are:  Stainless Steel Plate in Coils from Belgium  
(Case VII) (Panel Exhibits EC-53, EC-54, and EC-75);  Ball Bearings and Parts Thereof from the United 
Kingdom  (Case VIII) (Panel Exhibits EC-55, EC-56, and EC-76);  and Stainless Steel Sheet and Strip Coils from 
Italy (Case XII) (Panel Exhibits EC-63, EC-64, and EC-69). 
450Panel Report, para. 7.145.   
451The two cases are, respectively:  Steel Concrete Reinforcing Bars from Latvia  (Case I) (Panel 
Exhibits EC-33 to EC-35 and EC-70);  and Certain Pasta from Italy  (Case XIII) (Panel Exhibits EC-65 to 
EC-68 and EC-78). 
452Panel Report, paras. 7.151 and 7.157.  The European Communities appeals these findings.  See  infra , 
section VI. 
453Panel Report, paras. 7.70-7.77.  On appeal, we reverse the Panel's finding regarding the terms of 
reference, but do not complete the analysis concerning th e consistency of these sunset reviews with the covered 
agreements.  See  infra , section IV.B. 
454Panel Report, paras. 7.152-7.155.  The European Communities appeals these findings.  See  infra , 
section VI.  These two cases are:  Stainless Steel Bar from France  (Case V) (Panel Exhibits EC-47 and EC-48); 
and Stainless Steel Bar from Germany  (Case IX) (Panel Exhibits EC-57 and EC-58). 
455See supra , para. 191. 
456See supra , paras. 193 and 194. WT/DS350/AB/R 
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a determination as to what conclusions may be drawn from the remaining evidence in the record, 
would be more appropriately c onducted by a panel, with the assistance of the parties.   
196. Finally, for the one remaining case
457, the Panel found that simple zeroing was used in two of 
the periodic reviews.  Nonetheless, the Panel made no findings on one periodic review and the sunset 
review in that case, having excluded them from its terms of reference.458  As the Panel also noted, this 
anti-dumping duty was revoked during the course of the Panel proceedings.459  Given that the duty in 
this case has already been terminated, we do not cons ider it appropriate to ma ke any finding in this 
respect. 
197. In sum, we find  that relevant factual findings by the Panel and undisputed facts in the record 
establish that, with respect to the anti-dumping duties in four of the cases listed in the panel request, 
the zeroing methodology has been u sed in successive periodic reviews and in the sunset review, in 
each of these cases, whereby these duties are maintained. 
198. We recall that the European Communities requests us to find that the continued application of 
the zeroing methodology in the 18 cases, as identifie d in its panel request, is inconsistent with 
Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, and 11.3 of the Anti-Dumping 
Agreement , and Article XVI:4 of the WTO Agreement .460  In section V of this Report, we find that the 
zeroing methodology, as applied in periodic reviews, is inconsistent with Article VI:2 of the 
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement .  In addition, the Panel, referring to 
relevant jurisprudence of the Appellate Body, conclu ded that, to the extent an administering authority 
relies on dumping margins calculated with zeroing in  its likelihood determination in sunset reviews, 
the resulting sunset review determination is  inconsistent with Article 11.3 of the Anti-Dumping 
Agreement .461  On this basis, the Panel found that the United States acted inconsistently with its 
obligations under Article 11.3 of the Agreement by relying, in eight sunset reviews at issue, on 
margins obtained through model zeroing in prior inv estigations.  In section VIII of this Report, we 
uphold this finding of the Panel. 
199. In the light of the above, we conclude that th e application and continued application of anti-
                                                      
457Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands  (Case X) (Panel Exhibits 
EC-59 to EC-61 and EC-77). 
458Panel Report, paras. 7.70-7.77.  On appeal, we reverse the Panel's finding regarding the terms of 
reference, but do not complete the analysis concerning the consistency of the sunset review with the covered 
agreements.   See  infra , section IV.B. 
459Panel Report, footnote 152 to para. 7.191.  The revocation order, is published in United States 
Federal Register , Vol. 72, No. 123 (27 June 2007) 35220 (Panel Exhibit EC-77, Appendix II). 
460European Communities' appellant's submission, para. 75. 
461Panel Report, paras. 7.195 and 7.196 (referring to Appellate Body Report, US – Zeroing (Japan) , 
para. 185).  WT/DS350/AB/R 
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dumping duties is inconsistent with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of 
the GATT 1994 to the extent that the duties are mainta ined at a level calculated through the use of the 
zeroing methodology in the periodic reviews in the following four cases:  Ball Bearings and Parts 
Thereof from Italy (Case II), Ball Bearings and Parts Thereof from Germany (Case III);  Ball 
Bearings and Parts Thereof from France (Case IV);  and Stainless Steel Sheet and Strip in Coils from 
Germany (Case VI).  In addition, we conclude  that the application and continued application of anti-
dumping duties in these four cases is inconsistent with Article 11.3 of the Anti-Dumping Agreement  to 
the extent that reliance is placed upon a margin of dumping calculated through the use of the zeroing 
methodology in the sunset review determinations.  Having reached these findings, we do not consider 
it necessary to make additional findings unde r Articles 2.4, 2.4.2, and 11.1 of the Anti-Dumping 
Agreement , Article VI:1 of the GATT 1994, and Article XVI:4 of the WTO Agreement  for purposes of 
resolving this dispute. 
B. Preliminary Determinations in Four  Specific Anti-Dumping Proceedings 
200. In this section, we examine the European Comm unities' appeal against the Panel's finding that 
the European Communities' claims regarding four pr eliminary determinations were outside the scope 
of the Panel's terms of reference.462 
201. Before the Panel, the United States argued th at four of the measures identified in the 
European Communities' panel request were "prelimina ry results of periodic or sunset reviews" made 
by the USDOC.463  The United States observed that Article 17.4 of the Anti-Dumping Agreement  
"allows the initiation of dispute settlement proceedings  with regard to provisional measures if certain 
criteria are met"464, but asserted that the European Communities had not shown that those criteria 
were met in this case.  The United States therefor e requested that the Panel find that these four 
preliminary determinations did not fall within its terms of reference.   
202. As an initial matter, the Panel noted that it was factually uncontested that "four of 
the 52 measures identified in the [European Co mmunities'] panel request were preliminary 
determinations."465  The Panel observed that, pursuant to Article 17.4 of the Anti-Dumping 
Agreement , "a Member may challenge definitive m easures imposed by other Members", although 
"exceptionally a provisional anti-dumping measure ma y be challenged if it has a significant impact 
and if the complaining Member shows that the provi sional measure was taken inconsistently with the 
                                                      
462Panel Report, para. 7.77. 
463Panel Report, para. 7.68.  
464Panel Report, para. 7.68.  
465Panel Report, para. 7.70.  WT/DS350/AB/R 
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provisions of Article 7.1".
466  Noting that Article 7.1 lays down three conditions for the imposition of 
a provisional anti-dumping measure, the Panel stated that the European Communities' claim regarding 
the four preliminary measures "may be accepted onl y if the European Communities proves that the 
conditions set out under Article 7.1 ... have not been met with regard to such measures."467  The Panel 
further noted that the European Communities ha d not raised a claim under Article 7.1 of the Anti-
Dumping Agreement .  Therefore, the Panel concluded that the European Communities' claims 
regarding the four preliminary determinations we re not within the Panel's terms of reference.468 
203. On appeal, the European Communities maintain s that the Panel rejected the European 
Communities' claims on the "assumption" that the European Communities had argued that the four 
preliminary determinations were "provisional measures".469  The European Co mmunities argues that, 
as it explained to the Panel and the Panel admitted470, it was not challenging the four preliminary 
determinations as "provisional measures" within the meaning of Articles 7.1 and 17.4 of the Anti-
Dumping Agreement .  Rather, it was challenging "the conti nued application of zeroing in connection 
with the definitive anti-dumping duties identified in [its] Panel Request (i.e., the 18 measures)."471  
Thus, these 18 measures "effectively caught any sub sequent 'measure'" falling into the category of 
the 52 specific proceedings, including th ese four preliminary determinations.472  According to the 
European Communities, these four preliminary de terminations "are contrary to the covered 
agreements because the United States carried out its dumping calculations based on zeroing (in the 
administrative review concerned) or relied on dum ping margins calculated in prior investigations 
using the zeroing methodology (in the case of the sunset reviews)".473  On this basis, the European 
Communities requests the Appellate Body to reverse th e Panel's finding and to complete the analysis 
by finding that:  (i) the four preliminary determinati ons are within the scope of this dispute;  (ii) the 
preliminary result of the periodic review is inconsiste nt with Articles 2.1, 2.4, 2.4.2, 9.3, and 11.2 of 
the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the 
WTO Agreement ;  and (iii) the preliminary results of th e sunset reviews are inconsistent with 
                                                      
466Panel Report, para. 7.73.  
467Panel Report, para. 7.73.  
468Panel Report, para. 7.77.  
469European Communities' appellant's submission, para. 85. 
470European Communities' appellant's submission, para . 86 (referring to Pane l Report, para. 7.75). 
471European Communities' appellant's submission, para. 87. (emphasis omitted) 
472European Communities' appellant's submission, para. 87. 
473European Communities' appellant's submission, para. 92.  WT/DS350/AB/R 
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Articles 2.1, 2.4, 2.4.2, 11.1, and 11.3 of the Anti-Dumping Agreement and Article XVI:4 of the WTO 
Agreement .474  
204. The United States submits that the Panel properly excluded the four preliminary 
determinations from its terms of reference.475  The United States submits that, pursuant to Article 17.4 
of the Anti-Dumping Agreement , a matter may only be referred to a panel if "final action has been 
taken by the administering authorities of the importing Member to levy definitive anti-dumping 
duties."476  Yet, the four preliminary determinations  challenged by the European Communities were 
not "final action" because, at the time of the pa nel request, the United States had not yet made a 
decision to levy definitive duties.477  The United States further contends that the only exception to 
Article 17.4 of the Anti-Dumping Agreement  is that a provisional measure may be challenged if the 
conditions set out in Article 7.1 are met.  T hus, the United States asserts, the Panel properly 
understood that the only way a non-fina l action could be challenged under the Anti-Dumping 
Agreement  would be if it were a provisional measure,  and properly concluded that the European 
Communities' challenge against these four preliminar y determinations did not fulfil the conditions set 
forth in Article 7.1.478  Furthermore, the United States notes the European Communities' argument 
that its challenge against the continued applica tion of the 18 duties includes "any subsequent 
'measure'"479, such as the preliminary determinations.  Th e United States maintains that this argument 
ignores the plain text of Article 17.4, because "[n]either on-going administrative reviews, nor on-going sunset reviews, can be classified as fina l action to levy definitive anti-dumping duties."
480 
205. Article 17.4 of the Anti-Dumping Agreement  provides:   
If the Member that requested consultations considers that the 
consultations pursuant to paragr aph 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 
                                                      
474European Communities' appellant's submission, paras. 6 and 94;  Panel Report, para. 3.1(c) and (d).  
The European Communities adds that, if the Appellate Body reverses the Panel's finding that the continued 
application of the 18 duties were outside its terms of reference and completes the analysis, as requested by the European Communities, then the Appellate Body could d eal with its appeal concerning the four preliminary 
determinations by "declaring the Panel's findings moot and of no legal effect ". (European Communities' 
appellant's submission, para. 95 (original emphasis)) 
475United States' appellee's submission, para. 111. 
476United States' appellee's submission, para. 112 (quoting Article 17.4 of the Anti-Dumping 
Agreement ). 
477United States' appellee's submission, para. 112. 
478United States' appellee's submission, para. 113. 
479United States' appellee's submission, para. 114 (quoting European Communities' appellant's 
submission, para. 87). 
480United States' appellee's submission, para. 116. WT/DS350/AB/R 
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consultations considers that the me asure was taken contrary to the 
provisions of paragr aph 1 of Article 7 , that Member may also refer 
such matter to the DSB. (emphasis added) 
206. Article 17.4 of the Anti-Dumping Agreement  stipulates, therefore, that a Member may refer 
the matter to the DSB if two conditions are met:  (i ) consultations "have failed to achieve a mutually 
agreed solution";  and (ii) final action  has been taken by the administering authorities of the importing 
Member to levy definitive anti-dumping duties or to accept price undertakings.  In addition, under the 
second sentence of Article 17.4, a Member may request  the establishment of a panel in the case of a  
provisional measure  if:  (i) that measure has a "significant impact";  and (ii) the Member that 
requested consultations considers that the measu re was taken contrary to the provisions of 
Article 7.1.
481  
207. Before the Panel, the Europ ean Communities expressly stated that it was "not challenging 
provisional measures within the meaning of Article 17.4 of the Anti-Dumping Agreement ."482  T h e  
Panel, however, excluded these four measures from its  terms of reference for the reason that the 
European Communities "does not raise any claims under Article 7.1 [of the Anti-Dumping Agreement ] 
in these proceedings" and had not "prove[d] that the conditions set out under Ar ticle 7.1 ... have not 
been met" with regard to provisional measures.483  We note, however, that in this dispute, the 
European Communities was not challenging provisi onal measures within the meaning of Article 7.1 
of the Anti-Dumping Agreement .  Instead, the European Commu nities listed among the 52 specific 
proceedings three preliminary results in sunset reviews and one preliminary result in a periodic 
review.484  These reviews were conducted by the USDOC , subsequent to the imposition of duties 
pursuant to the original anti-dumping investiga tions, to assess the duty lia bilities and cash deposit 
rates (in the case of periodic review), and to de termine whether a duty shoul d be revoked or continued 
(in the case of sunset reviews).  In contrast, a provi sional measure, within the meaning of Article 7 of 
the Anti-Dumping Agreement , is an interim measure taken by an investigating authority in the context 
of an original investigation to prevent further in jury to the domestic industry, pending the final 
outcome of the original investigation.  Therefor e, we fail to see the Panel's rationale in excluding 
                                                      
481Article 7.1 of the Anti-Dumping Agreement  provides: 
Provisional measures may be applied only if: (i) an investigation has been initiated in accordance with th e provisions of 
Article 5, a public notice has been given to that effect and interested parties 
have been given adequate opportunities to submit information and make 
comments; 
(ii) a preliminary affirmative determination has been made of dumping and consequent injury to a domestic industry;  and 
(iii) the authorities concerned judge su ch measures necessary to prevent 
injury being caused during the investigation. 
482Panel Report, para. 7.75. 
483Panel Report, para. 7.73. 
484Panel Report, para. 7.70.  WT/DS350/AB/R 
 Page 85 
 
 
these measures from its terms of reference on the grounds that the European Communities did not 
bring any claims under Article 7.1 concerning the co nditions for imposing provisional measures.  As a 
result, the Panel's finding that the four preliminary de terminations were outside its terms of reference, 
which was made on the basis of the European Commun ities' failure to bring claims under Article 7.1, 
cannot stand. 
208. This brings us to the question of whether we can complete the analysis as requested by the 
European Communities, by finding that the four prel iminary determinations identified in its panel 
request were within the panel's terms of reference an d were inconsistent with "the provisions of the 
GATT 1994 and the Anti-Dumping Agreement  cited in the Panel proceedings".485 
209. We note that two of the four determinations  challenged by the European Communities are 
"preliminary results" issued by the USDOC in, re spectively, the periodic review (for the period 
between 1 November 2004 and 31 October 2005) (No. 35)  and the sunset review (No. 38) concerning 
the anti-dumping duty on Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands 
(Case X), with the final outcome pending in each proceeding.486  In the "Preliminary Results of the 
Sunset Review of Antidumping Duty Order in Certain Hot-Rolled Carbon Steel Flat Products from 
the Netherlands ", for example, the USDOC stated that it " preliminarily  determines that revocation of 
the antidumping duty order on [the reviewed product] is  likely to lead to continuation or recurrence of 
dumping" at specified margins.487  In addition, the USDOC invited interested parties to submit 
comments on the preliminary results within certain  deadlines, and explained that it would issue the 
final results subsequent to the deadlines.  More over, we note that the evidence submitted by the 
European Communities shows that the anti-dumping duty on Certain Hot-Rolled Carbon Steel Flat 
Products from the Netherlands  was revoked shortly after the establishment of the Panel, because the 
USDOC, in the final results of the sunset review , could not determine that revocation of the duty 
would likely lead to continuation or recurrence of dumping.488   
210. Under these circumstances, we consider the Eu ropean Communities' challenge in relation to 
these two preliminary results to be premature.  Sp ecifically, given that these preliminary results could 
be modified by the final results, we fail to see how the European Communities could establish that
                                                      
485European Communities' appellant's submission, para. 94.  The provisions cited in the Panel 
proceedings include Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, 11.2, and 11.3 of 
the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement .  (Panel Report, para. 3) 
486Panel Report, para. 7.70. 
487United States Federal Register , Vol. 72, No. 32 (16 February 2007) 7604 (Panel Exhibit EC-77, 
Appendix I), at 7605. (emphasis added)  
488"Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands ; Final Results and Revocation 
Order", United States Federal Register , Vol. 72, No. 123 (27 June 2007) 35220 (Case X) (Panel Exhibit EC-77, 
Appendix II). WT/DS350/AB/R 
Page 86  
 
final anti -dumping duty were assessed in excess of the ma rgin of dumping or that the USDOC would 
have relied on the margin calculated with zeroing in deciding to continue the duty.   
211. With respect to the remaining two determinati ons, the documents referred to by the European 
Communities are final likelihood-of-dumping determin ations issued by the USDOC in the sunset 
reviews in Steel Concrete Reinforcing Bars from Latvia (Case I – No. 4)
489 and in Certain Pasta from 
Italy (Case XIII – No. 47).490  With respect to the former, th e European Communities submitted the 
Issues and Decision Memorandum accompanying the final results, which indicates that the USDOC 
relied on the margin calculated in the original investigation for its likelihood determination.491  The 
original investigation in that case was conducte d prior to the date on which the USDOC announced 
that it would no longer apply model ze roing in original investigations.492  Nonetheless, we note that 
both sunset review proceedings were still pending before the USITC at the time the Panel was 
established.  Thus, the USITC had not yet determined, for either case, whether expiry of the anti-
dumping duty order would be likely to lead to  the continuation or recurrence of injury.493  Under these 
circumstances, we do not consider that completi on of the analysis as to whether these measures are 
inconsistent with the covered agre ements would be appropriate.   
212. On this basis, we decline  the European Communities' request for completion of the analysis 
and for a finding that the four preliminary determinat ions are inconsistent with "the provisions of the 
GATT 1994 and the Anti-Dumping Agreement  cited in the Panel proceedings".494 
C. Certain Measures Allegedly Not Included in the Request for Consultations 
213. We turn now to consider the United States' allegation that the Panel erred in finding 
that 14 periodic and sunset reviews identified in  the European Communities' panel request were 
within the Panel's terms of reference even though they were not listed in the European Communities' 
request for consultations.495  We also consider the United States' request for a finding that the 
                                                      
489Panel Exhibit EC-70, Appendix I.  
490Panel Exhibit EC-78, Appendix I. 
491"Issues and Decision Memorandum for the Sunset Review of the Anti-Dumping Duty Order on Steel 
Concrete Reinforcing Bars from Latvia;  Final Result" (Panel Exhibit EC-70, Appendix II),  p. 6. 
492See USDOC December  2006 Notice, supra , footnote 92. 
493United States' appellee's submission, footnote 111.   
494European Communities' appellant's submission, para. 94.  The provisions cited in the Panel 
proceedings include Articles VI:1 and VI:2 of the GATT 1994, Articles 2.4, 2.4.2, 9.3, 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement .  (Panel Report, para. 3.1(c) and (d)) 
495For ease of reference, we refer to these periodic reviews and sunset reviews jointly as the 
"14 additional measures".  WT/DS350/AB/R 
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continued application of the 18 anti-dumping duties were outside the Panel' s terms of reference 
because they were not included in the Eur opean Communities' consultations request.496 
1. The Panel's Findings  
214. Before the Panel, the United States requested a preliminary ruling that the following measures 
were outside the Panel's terms of reference beca use they were not identified in the request for 
consultations:  (i) 14 of the 52 anti-dumping procee dings listed in the annex to the panel request;  
and (ii) the continued application of the 18 anti-dumping duties.497   
215. The Panel noted that Article 6.2 of the DSU "r equires that a panel request mention whether 
consultations were held, but it does not stipulate that  the scope of the consultations request limits the 
scope of the claims that may subse quently be raised before a panel."498  The Panel further noted that, 
pursuant to Article 4.7 of the DSU and Article 17.4 of the Anti-Dumping Agreement , "as long as the 
consultations request and the panel request concern the same matter, or dispute, claims raised in 
connection with measures identified in the ... pane l request would fall within a panel's terms of 
reference even if those precise measures were not identified in the consultations request."499  T h e  
Panel found that the 52 anti-dumping measures, incl uding the 14 additional measures not identified in 
the consultations request, all concerned "different  determinations pertaini ng to the same products 
originating in the same countries".500  Moreover, they entailed the alleged use of the same
                                                      
496United States' other appellant's submission, footnote 6 to para. 26. 
 497Panel Report, para. 7.16.  The 14 additional measures consist of 10 sunset review determinations and 
four periodic review determinations, listed in the panel request, attached as Annex F-1 to the Panel Report, as set out below. 
 Seven sunset review determinations:  Ball Bearings and Parts Thereof from Italy  (Case II – No. 9) 
(Panel Exhibit EC-71);  Ball Bearings and Parts Thereof from Germany  (Case III – No. 14) (Panel Exhibit 
EC-72);  Ball Bearings and Parts Thereof from France  (Case IV – No. 19) (P anel Exhibit EC-73);  Stainless 
Steel Sheet and Strip in Coils from Germany  (Case VI – No. 26) (Panel Exhibit EC-74);  Stainless Steel Plate in 
Coils From Belgium  (Case VII – No. 29) (Panel Exhibit EC-75);  Ball Bearings and Parts Thereof from the 
United Kingdom  (Case VIII – No. 32) (Panel Exhibit EC-76);  and Stainless Steel Sheet and Strip in Coils from 
Italy (Case XII – No. 42) (Panel Exhibit EC-69). 
 Three sunset reviews (on-going at the time of the panel request):  Steel Concrete Reinforcing Bars from 
Latvia  (Case I – No. 4) (the USITC had not yet determined injury at the time of the panel request) (Panel 
Exhibit EC-70);  Certain Hot-Rolled Carbon Steel Flat  Products from the Netherlands  (Case X – No. 38 
(preliminary results)) (Panel Exhibit EC-77);  and Certain Pasta from Italy  (Case XIII – No. 47) (the USITC 
had not yet determined injury at the time of the panel request) (Panel Exhibit EC-78) .  See also United States' 
other appellant's submission, footnote 3 to para. 26.   
Four final periodic review determinations:  Steel Concrete Reinforcing Bars from Latvia  (Case I – 
No. 1) (identified as preliminary results in the consultations request) (Panel Exhibit EC-33);  Stainless Steel 
Sheet and Strip in Coils from Germany  (Case VI – No. 22) (identified as preliminary results in the consultations 
request) (Panel Exhibit EC-49);  Certain Pasta from Italy  (Case XIII – No. 43) (Panel Exhibit EC-65);  and 
Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands  (Case X – No. 35 (preliminary results)) 
(Panel Exhibit EC-59).  See also United States' other appellant's submission, footnote 4 to para. 26.
 
498Panel Report, para. 7.22.  
499Panel Report, para. 7.22.  
500Panel Report, para. 7.25.  WT/DS350/AB/R 
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methodology, zeroing, which, in the Panel's word s, was the "gist of the [European Communities'] 
claims" before the Panel.
501  For the Panel, this "substantive si milarity" between the measures at issue 
and the fact that they concerned the same country  and the same product "outweighed" the fact that 
they represent independent determ inations under United States law.502  On this basis, the Panel found 
that the European Communities' consultations request  and panel request referr ed to the "same subject 
matter" and the "same dispute" and therefore rejected the United States' claim that 14 of the 52 anti-
dumping determinations were outside the Panel's term s of reference because they were not included in 
the European Communities' consultations request.503 
216. With respect to the continued application of the 18 anti-dumping duties, the Panel referred to 
its finding that these measures fell outside its terms of reference because their identification in the 
panel request failed to meet the specificity requirement  in Article 6.2 of the DSU.  On this basis, the 
Panel declined to address the United States' asserti on that these measures fell outside the Panel's terms 
of reference on the grounds that they were not id entified in the European Communities' consultations 
request.504 
2. Claims and Arguments on Appeal  
217. On appeal, the United States argues that  the Panel "fundamentally misconstrued"505 the 
requirements of the DSU regarding panels' terms of reference in reaching its findings.  According to 
the United States, Articles 4 and 6 of the DSU, along with Articles 17.3, 17.4, and 17.5 of the Anti-
Dumping Agreement , "set forth a fundamental jurisdictional requirement for a complaining Member 
to request consultations on a matter before th at matter may be referred to the DSB for the 
establishment of a panel."506  The United States argues that the Pa nel incorrectly rejected the United 
States' preliminary objection on the grounds that the panel request referred to the "same dispute" or 
"same subject matter" as the consultations request.507  In the United States' view, these 14 additional 
measures were "legally distinct measures"508 from those included in the consultations request because 
they "resulted from completely different proceedin gs" involving "different time frames and different 
calculations using different  information and data".509  The United States further argued that the Panel 
                                                      
501Panel Report, para. 7.25.  
502Panel Report, para. 7.25. 
503Panel Report, para. 7.28.  
504Panel Report, para. 7.29. 
505United States' other appellant's submission, para. 26. 
506United States' other appellant's submission, para. 29. 
507United States' other appellant's submission, para. 33 (referring to Panel Report, paras. 7.23, 7.27 
and 7.28). 
508United States' other appellant's submission, para. 33. 
509United States' other appellant's submission, para. 35.  WT/DS350/AB/R 
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identified certain "supposed commonalities"510 between the measures listed in the consultations 
request and the 14 additional measures not listed ther ein on the basis of the erroneous reasoning that 
the European Communities' legal claims regardi ng these measures were the same.  For the United 
States, just because a complaining party may wish to  raise the same legal claim with respect to two 
measures does not mean that those measures are not legally distinct.511  In addition, the United States 
requests that the Appellate Body find that the continued application of the 18 anti-dumping duties 
were also outside the Panel's terms of reference because they were not identified in the European 
Communities' consultations request.512  The United States makes this request on the condition that the 
Appellate Body reverses the Panel's finding that these 18 measures were not specifically identified in the European Communities' panel request, as required by Article 6.2 of the DSU.
513 
218. The European Communities requests the Appellate  Body to dismiss the United States' claim 
that the Panel erred in finding that the 14 additiona l measures identified in the panel request but not 
included in the European Communities' consultati ons request were within the Panel's terms of 
reference.514  According to the European Communities,  the measures that were the subject of 
consultations need not be identical with those iden tified in the panel request, "as long as they involve 
essentially the same matter ".515  The European Communities agrees with the Panel that the Appellate 
Body's reasoning in US – Certain EC Products  is inapplicable to the present case because516, unlike 
the additional measure identified for the first time in the panel request in US – Certain EC Products , 
the 14 additional measures identified in th e panel request in the present case are not " legally distinct 
measure[s] " from those identified in the consultations request.517 
219. The European Communities furthe r request the Appellate Body to reject the United States' 
request for a finding that the continued applicati on of the 18 anti-dumping duties were outside the 
Panel's terms of reference.  The European Comm unities contends that, because the United States did
                                                      
510United States' other appellant's submission, para. 36. 
511United States' other appellant's submission, para. 36. 
512United States' other appellant's submission, footnote 6 to para. 26.  In this regard, the United States 
referred to its arguments made before the Panel, which we re similar to those submitted by the United States on 
appeal in relation to the 14 additional measures. (United States' first written submission to the Panel, Panel 
Report, Annex A-2, pp. A-87 and A-88, paras. 61-65;  United States' second written submission to the Panel, 
Panel Report, Annex C-2, p. C-63, paras. 11 and 13) 
513United States' other appellant's submission, footnote 6 to para. 26. 
514European Communities' appellee's submission, para. 11. 
515European Communities' appellee's submission, para. 11.   
516European Communities' appellee's submission, para. 14 (referring to Panel Report, para. 7.26).  
517European Communities' appellee's submission, pa ra. 14. (original emphasis)  The European 
Communities argues that the 14 additional measures in the present case relate to the same products from the 
same countries as those mentioned in its consultations request, the same government agency issued the measures, and the legal claims made by the European Communities were identical to those made in the request 
for consultations, and have a direct relationship to the measures mentioned in the annexes of the European 
Communities request for consultations.  ( Ibid.) WT/DS350/AB/R 
Page 90  
 
not make such a request in its Notice of Other Appeal, the Appellate Body should reject this 
request.
518  In any event, the European Communities ar gues, the European Communities' consultations 
request "did refer to the zeroing methodology, and this was simply narrowed in the Panel Request to 
refer to the zeroing methodology as embedded in the 18 measures."519 
3. Whether the 14 Additional Measures Fe ll within the Panel's Terms of 
Reference  
220. In considering the United States' arguments on appe al, we begin with the text of the relevant 
provisions of the DSU.  Article 4 of the DSU provides, in relevant part, that: 
Consultations   
1. Members affirm their resolve to strengthen and improve the 
effectiveness of the consultation  procedures employed by Members. 
... 
4. ... Any request for consultati ons shall be submitted in writing 
and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint. 
221. Article 6.2 of the DSU provides, in relevant part: 
The request for establishment of the panel ... shall indicate whether 
consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient 
to present the problem clearly.   
222. The Appellate Body has found that Articles 4 a nd 6 of the DSU "set forth a process by which 
a complaining party must request consultations, and consultations must be held, before a matter may 
be referred to the DSB for th e establishment of a panel."
520  Moreover, the Appellate Body has held 
that "consultations provide the parties an opportuni ty to define and delimit the scope of the dispute 
between them".521  At the same time, the Appellate Body has also explained that Articles 4 and 6 do 
not "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."522  
Rather, "[a]s long as the complaining party does no t expand the scope of the dispute," the Appellate 
Body has said it would "hesitate to impose too rigi d a standard for the 'pr ecise and exact identity' 
                                                      
518European Communities' appellee's submission, para. 16. 
519European Communities' appellee's submission, para. 17. 
520Appellate Body Report, Brazil – Aircraft , para. 131. 
521Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 54. 
522Appellate Body, Brazil – Aircraft , para. 132. (original emphasis)   WT/DS350/AB/R 
 Page 91 
 
 
between the scope of consultations and the request  for the establishment of a panel, as this would 
substitute the request for consu ltations for the panel request."523 
223. In the present case, there is no dispute between the parties that 14 anti-dumping duty review 
determinations (including 10 sun set reviews and 4 periodic reviews) were not specifically identified 
by name or case number in the European Communities' consultations request.524  The United States 
emphasizes this fact and argues that these measures were therefore not within the Panel's terms of 
reference pursuant to Articles 4 and 6 of th e DSU and the parallel provisions (that is, 
Articles 17.3, 17.4, and 17.5) of the Anti-Dumping  Agreement .525     
224. Yet, as noted above, Articles 4 and 6 do not require an "exact identity"526 between the scope 
of the consultations request and the panel request.  Thus, the fact that the 14 additional measures were 
added to the panel request, in itself, does not necessar ily mean that they fell outside the Panel's terms 
of reference.  As previously explained by the A ppellate Body, the relevant question, in determining 
whether, in this case, the 14 additional measures fell within the Panel's terms of reference, is whether 
the "scope of the dispute" was expanded as a result of their addition.527  Therefore, we turn to review 
the European Communities' consultations request and panel request in order to determine whether the 
scope of the dispute has been broadened as a result of the inclusion of the 14 additional measures in 
the panel request. 
225. The European Communities requested consultati ons regarding the "Un ited States regulations, 
zeroing methodology, practice, administrative proce dures and measures for determining the dumping 
margin in reviews mentioned under point 1(a)"528 of the consultations request.  Point 1(a) in turn 
refers to "all types of review", including annual pe riodic reviews, new shipper reviews, and changed 
circumstances reviews, in which the United Stat es "systematically uses" the zeroing methodology.529  
In addition, the European Communities also request ed consultations regardi ng the following matters:  
(b) The specific anti-dumping administrative reviews listed in 
Annex I to the present request, and any assessment instructions issued pursuant to them in wh ich the United States applied the 
regulations, zeroing methodology, practice, administrative procedures and measures described under point 1(a) above. As a 
consequence, the European Communities consider that the outcome 
of the administrative reviews  as detailed in Annex I is inconsistent 
with Articles 1, 2.1 2.4, 2.4.2, 9.1, 9.3, 11.2 and 18.4 of the 
                                                     
 
523Appellate Body Report, US – Upland Cotton , para. 293. 
524Panel Report, para. 7.17. 
525United States' other appellant's submission, paras. 27-29. 
526Appellate Body, Brazil – Aircraft , para. 132. (emphasis omitted)  
527Appellate Body Report, US – Upland Cotton , para. 293. 
528WT/DS350/1, p. 3. 
529WT/DS350/1, p. 1. WT/DS350/AB/R 
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AD Agreement , Articles VI:1 and VI:2 of the GATT 1994 and 
Article XVI:4 of the Marrakesh Agreement establishing the World 
Trade Organization for the reasons set out above under point (a).  
(c) The specific dumping determination in the original 
investigations listed in Annex III to the present request, and any 
automatic assessment instructions issued pursuant to them, in which 
the United States applied the zeroing methodology described under point 1(b) above. As a consequence, the European Communities consider that the imposition of definitive duties  in the original 
investigations detailed in A nnex III is inconsistent with 
[Articles 1, 2.1, 2.4, 2.4.2, 5.8, 9.1, and 9.3 of the Anti-Dumping 
Agreement , Articles VI:1 and VI:2 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement ]. 
(d) The specific sunset review determination in the case listed in 
Annex II to the present request. The United States relied in its 
determination on dumping margins th at were calculated in the 
original investigation and in administrative reviews using the 
methodology described under point 1(a) above. As a consequence, the European Communities consider that the continuation of the anti-
dumping [duty]  in this case is inconsistent with [Articles 1, 2.1, 2.4, 
2.4.2, 9.1, 9.3, 11.1, 11.3, 18.3, and 18.4 of the Anti-Dumping 
Agreement , Articles VI:1 and VI:2 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement ].
530 (emphasis added) 
226. The consultations request thus makes clear th at, in addition to the zeroing methodology, the 
European Communities challenges the " outcome  of the administrative reviews", the "imposition of 
definitive duties ", and "the continuation of the anti-dumping [ duty]" resulting from the proceedings 
listed in the annexes.  Under United States anti- dumping laws and practice, the outcome of an 
administrative review (referred to as a "periodic review" in this Report531) involves the collection of 
duties pursuant to an assessment of an importer's act ual duty liabilities for the review period, as well 
as the imposition of an updated cash deposit rate on that importer for future entries.532  In other words, 
the measures referred to in the European Comm unities' consultations request include the duties 
imposed, or continued to be applied, as a result of  the specific anti-dumping proceedings listed in the 
annexes.  The consultations request further indicat es that the European Communities considers that 
these duties are inconsistent with the covered ag reements because the zeroing methodology was used 
in their assessment in periodic reviews and in their calculation in original determinations, and because 
the United States relied upon margins calculated on the basis of the zeroing methodology in the sunset 
reviews.  Therefore, the measures subject to the European Communities' challenge encompass the 
anti-dumping duties resulting from the proceedings iden tified in the consultations request, in which 
the zeroing methodology was allegedly used. 
                                                      
530WT/DS350/1, pp. 3-5. 
531See supra , footnote 9. 
532United States' other appellant's submission, para. 57.  WT/DS350/AB/R 
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227. With respect to the specific anti-dumping pr oceedings, the European Communities requested 
consultations regarding, inter alia , 33 periodic reviews and one sunset review in which the zeroing 
methodology was allegedly applied.  In the pane l request, the European Communities challenges the 
application of the zeroing methodology in 52 specific anti-dumping proceedings.  Among them, four periodic reviews and 10 sunset reviews were not  expressly listed in the consultations request. 
228. We recall that the Appellate Body has cautioned ag ainst a standard that is too "rigid" in terms 
of requiring the "precise and exact identity" between the scope of the request for consultations and the 
panel request, as long as the complaining party does not "expand the scope of the dispute".
533  Here, 
the 14 additional measures identified in the panel requ est pertain to the same anti-dumping duties that 
are included in the consultations request. Among th e 14 additional measures are the sunset review 
proceedings concerning the continuation of 10 anti-dumping duties, in relation to which the 
successive periodic reviews are identi fied in the consultations request.534  The remaining four 
additional measures are more recent periodic reviews to the ones listed in the consultations request, 
including two final results issued subsequent to the preliminary results that were listed in the 
consultations request.535  The proceedings listed in the consulta tions request and the panel request are 
therefore successive stages subsequent to the i ssuance of the same anti-dumping duty orders.  More 
specifically, as regards the periodic reviews, the subsequent measures assessed actual duty liabilities 
and updated cash deposit rates that were imposed on  the same products from the same countries as 
those listed in the consultations request.  With respect  to the sunset reviews, the subsequent measures 
related to the continued application of duties on the same products from the same countries as those 
listed in the consultations request.  Moreover, in both its consultations request and panel request, the 
European Communities made clear that it was cha llenging the specific administrative review and 
sunset review proceedings because of the use of the zeroing methodology.  Specifically, both the consultations request and the panel request  allege that the USDOC "systematically"
536 applies the 
zeroing methodology in all types of review proceed ings, which, the European Communities contends, 
is a methodology found to be inconsis tent with the covered agreements.537  In sum, these 14 additional 
measures relate to the same duties id entified in the consultations re quest, and the legal basis of the 
claims raised is the same. 
229. The United States contends that the 14 additiona l measures are "legally distinct" from those 
listed in the consultations request and therefore c ould not properly fall within the Panel's terms of 
reference.  As support, the United States re fers to the Appellate Body's finding in US – Certain EC 
                                                      
533Appellate Body Report, US – Upland Cotton , para. 293. 
534WT/DS350/1, pp. 6-8.  United States' other appellant's submission, footnote 3 to para. 26. 
535WT/DS350/1, pp. 6-8.  United States' other appellant's submission, footnote 4 to para. 26. 
536WT/DS350/1, point 1(a), p. 1;  WT/DS350/6, Panel Report, Annex F-1, p. F-2. 
537WT/DS350/1, point 1(b), p. 2;  WT/DS350/6, Panel Report, Annex F-1, p. F-3. WT/DS350/AB/R 
Page 94  
 
Products  that, although a measure was listed in the panel request, it nevertheless fell outside the 
panel's terms of re ference because it was "legally distinct" from the measure included in the 
consultations request.
538 
230. We note that, in reaching its finding in US – Certain EC Products , the Appellate Body took 
into account several particular factors arising in that  dispute.  For example, the Appellate Body noted 
that the contents of these two measures were di fferent:  while one provided for increased bonding 
requirements, the other provided for the imposition of  100 per cent customs duties.  It also noted that 
these two measures were taken by two separate agen cies pursuant to two distinctly separate legal 
authorities.  Furthermore, the earlier measure was not a prerequisite for the imposition of the later 
measure, and there was no perceptible correlati on between the amount of bonding requirements and 
the customs duties.539  In other words, the two measures in that  dispute were entirely different and, as 
a consequence, the matters covered by the consulta tions request and the panel request were distinct 
from one another. 
231. The situation is rather different in this dis pute.  As noted, the 14 additional measures and 
those explicitly listed in the consu ltations request relate to the same  duties on the same products from 
the same countries imposed pursuant to the same au thorities (that is, the relevant anti-dumping rules 
and regulations of the United States).  In relation to each of the duties, the proceedings identified in 
both the consultations request and the panel request derive from the same underlying legal basis, that 
is, the anti-dumping duty orders issued pursuant to  the original investigations in which dumping, 
material injury, and the causal li nk between the two were determined.  The United States argued that 
the periodic reviews were conducted by the USDOC al one and the sunset reviews required decisions 
by both the USDOC and the USITC.  Yet, the fact that one or two agencies were involved does not 
change the fact that each of the duties subject to both types of reviews derived from the same anti-
dumping duty order.  As the Appellate Body explained in US – Certain EC Products , "[i]t is perfectly 
possible for more than one governmental agency to be involved in taking a single measure."540  Thus, 
we consider that the United States' re liance on the Appellate Body's findings in US – Certain EC 
Products  is misplaced. 
232. The United States further asserts that, in rejecting the relevance of US – Certain EC Products , 
the Panel erroneously applied a "str iking similarities" test with respect to the 14 additional measures 
and those included in the consultations request.541  We agree that similarities between the measures, 
                                                      
538United States' other appellant's submission, para. 34 (referring to Appellate Body Report, US – 
Certain EC Products , para. 82). 
539Appellate Body Report, US – Certain EC Products , paras. 74-77. 
540Appellate Body Report, US – Certain EC Products , para. 75. 
541United States' other appellant's submission, para. 36 (referring to Panel Report, para. 7.27).  WT/DS350/AB/R 
 Page 95 
 
 
alone, does not lead to the conclu sion that the 14 additional me asures necessarily fell within the 
Panel's terms of reference.  Howeve r, we do not consider that the Panel made such a finding.  Rather, 
the Panel was distinguishing the current dispute from that in US – Certain EC Products , in which the 
measure listed in the panel request and that menti oned in the consultations request were different.542 
233. Moreover, the Panel's analysis did not stop at recognizing the similarities of the measures.  
Rather, the Panel went on to find that, "[m]ore importantly, the legal nature of the European 
Communities' claims regarding the additional 14 me asures does not in any way differ from that of 
the 38 measures identified in the ... consultations request."543  Hence, the Panel found, "it is clear that 
the European Communities' consultations request a nd its panel request refer to the same subject 
matter, the same dispute."544  The United States contends that the Panel's approach confused two 
aspects of the "matter", namely, claims and measures .  The United States submits that, "[j]ust because 
a complaining party may wish to raise the same legal claim with respect to two measures does not 
mean that those measures are not legally distinct."545  We disagree.  In our view, the Panel properly 
examined both components of the matter before it in order to determine whether the scope of the 
dispute had changed.   
234. In addition, the United States contends that th e Panel's reliance on relevant findings by the 
panel and the Appellate Body in Brazil – Aircraft  was "misplaced"546 because in that dispute "the 
consultations and panel request contained essentially  the same measures, unlike the situation here."547  
235. In Brazil – Aircraft , the measures at issue were the Brazilian export subsidies for regional 
aircraft under "PROEX".548  The panel and the Appellate Body fo und that consultations were held on 
these subsidies, and that the regulatory instrument s that came into effect subsequent to the 
consultations "involve essentially the same practice,  [that is,] the payment of export subsidies under 
PROEX."549  Therefore, the consultations request and the panel request "relate to what is 
fundamentally the same 'dispute'"550 and, as a result, the regulatory in struments that came into effect 
after the consultations were  properly before the panel.551  In the present dispute, the periodic reviews
                                                      
542Panel Report, paras. 7.26 and 7.27. 
543Panel Report, para. 7.28. 
544Panel Report, para. 7.28. 
545United States' other appellant's submission, para. 36. 
546United States' other appellant's submission, para. 38 (referring to Panel Report, para. 7.23). 
547United States' other appellant's submission, para. 38. 
548Appellate Body Report, Brazil – Aircraft , para. 132. 
549Panel Report, Brazil – Aircraft , para. 7.11.  See also Appellate Body Report, Brazil – Aircraft , 
para. 132.   
550Panel Report, Brazil – Aircraft , para. 7.11.  
551Appellate Body Report, Brazil – Aircraft , para. 133.  See also Panel Report, Brazil – Aircraft , 
para. 7.11. WT/DS350/AB/R 
Page 96  
 
listed in the consultations request also involve essentially the same practice as the successive periodic 
reviews identified in the panel request, that is, the assessment of duty liabilities and cash deposit rates.  
Moreover, the European Communities' claims ag ainst the periodic and sunset reviews listed, 
respectively, in the consultations request and the pa nel request relate to essentially the same dispute, 
that is, the application of the zeroing methodology in the imposition or continuation of specific anti-
dumping duties.  Thus, in our view, the Panel properly relied on the relevant findings in Brazil – 
Aircraft  to confirm its finding that a precise identity is not required between the specific measures 
identified in the consultations request and those identified in the panel request, provided that the 
complainant does not expand the scope of the dispute.
552   
236. In the light of the above, we uphold  the Panel's finding that the 14 additional measures were 
within the Panel's terms of reference.553   
4. Whether the Continued Application of the 18 Anti-Dumping Duties was 
Included in the Request for Consultations  
237. Should the Appellate Body reverse the Panel's finding that the European Communities failed 
to identify in the panel request the specific measures at issue with regard to its claims concerning the 
continued application of the 18 anti-dumping duties,  the United States requests the Appellate Body to 
find "the alleged 18 measures" to be outside the Panel's terms of reference because they were not 
identified in the consultations request.554  
238. In section IV.A.3 of this Report, we reversed the Panel's finding that the European 
Communities failed to identify the specific measures at issue in relation to its claims concerning the 
continued application of the 18 duties.  The cond ition upon which the United States' request rests is 
therefore fulfilled, and we turn to examine the issue of whether the continued application of 
the 18 anti-dumping duties fell outside the Panel's term s of reference because they were not identified 
in the consultations request. 
239. As noted above, the European Communities' consultations request makes clear that, in
                                                      
552Panel Report, para. 7.23 (referring to Panel Report, Brazil – Aircraft , para. 7.10;  and Appellate 
Body Report, Brazil – Aircraft , para. 132).  Furthermore, as noted by Brazil in this case, "in assessing the scope 
of a panel's jurisdiction, panels and the Appellate Body have focused on the substantive connection  ... between a 
group of measures" and on the issue of whether these m easures are substantively the same with respect to the 
disputed issue.  (Brazil's third participant's submission,  para. 21)  Brazil refers to, for example, the Appellate 
Body's finding in Chile – Price Band System  that an amendment to a measure subsequent to the panel's 
establishment did not change the e ssence of the original measure, a nd therefore the amended measure was 
within the panel's jurisdiction.  ( Ibid., para. 18 (referring to Appellate Body Report, Chile – Price Band System , 
para. 139)) 
553Panel Report, para. 7.28. 
554United States' other appellant's submission, footnote 6 to para. 26.    WT/DS350/AB/R 
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addition to the zeroing methodology, the European Communities challenges the " outcome  of the 
administrative reviews", the "imposition of definitive duties ", and "the continuation of the anti-
dumping [ duty]" resulting from the proceedings listed in the annexes.  In other words, the measures 
subject to the European Communities' consultations  request include the duties imposed, or continued 
to be applied, as a result of the specific an ti-dumping proceedings liste d in the annex to the 
consultations request.  The consultations request  further indicates that the European Communities 
considers that these duties are inconsistent w ith the covered agreements because the zeroing 
methodology was used in their assessment in periodi c reviews and in their calculation in original 
determinations, and because the United States reli ed upon margins calculated previously on the basis 
of the zeroing methodology in the sunset review.  Therefore, the measures s ubject to the European 
Communities' challenge encompass the anti-dumping duties resulting from the proceedings identified 
in the consultations request, in which the zeroing methodology was allegedly used. 
240. A comparison between the consultations re quest and the panel request shows that 
the 38 proceedings listed in the cons ultations request pertain to all of the 18 cases identified in the 
panel request.  More specifically, in its panel request, the European Communities indicated that it 
challenges the continued application of 18 anti-dump ing duties, each identified in the annex to the 
panel request by reference to the original anti-dumpi ng order, together with the product and country to 
which the duty applies.  In addition, the Eur opean Communities challenges 52 specific proceedings 
pertaining to these 18 cases.  Among these 52 procee dings, 38 are listed in the consultations request, 
which pertain to all of the 18 cases.  Thus, the 18 anti-dumping duties challenged by the European 
Communities are the same duties as those resulting fro m the proceedings listed in the consultations 
request.  Although, in the consultations request, the exact term "18 duties" or "18 cases" was not used, 
these duties are nonetheless manifested  in the specific proceedings liste d therein that resulted in the 
imposition, collection, or assessment of duties.  Moreover, in its panel request, the European 
Communities indicates that it challenges the continued application of the 18 duties because of the use 
of the zeroing methodology in calculating or assessing the rates of these duties.  Therefore, in our 
view, with respect to these 18 duties, the consultati ons request and the panel request concern the same 
matter, that is, the inconsistency with the GATT 1994 and the Anti-Dumping Agreement  of 
the 18 anti-dumping duties due to the use of the zeroing methodology in the determination of the 
dumping margins or the cash deposit rates.      WT/DS350/AB/R 
Page 98  
 
241. On this basis, we dismiss
 the United States' request and conclude  that the continued 
application of the anti-dumping duties in each of the 18 cases was identified in the European 
Communities' consultations request.555 
V. Simple Zeroing as Applied in Periodic Reviews 
242. We turn next to examine the United States' othe r appeal of the Panel's finding that the United 
States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the 
GATT 1994 by using simple zeroing in 29 periodic reviews.   
243. In what follows, we summarize briefly the fi ndings of the Panel and the arguments of the 
participants before turning to th e issue before us in this case. 
A. The Panel's Findings 
244. The Panel found that zeroing, as applied by the USDOC in 29 periodic reviews, is 
inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.556 
245. In its analysis, the Panel first considered the issue of "whether dumping may be determined 
on the basis of an individual export transaction or whether it requires an aggregation of all export 
transactions made within the period of review."557  The Panel said it was "inclined to agree" with the 
proposition that "it is a permi ssible interpretation of the [ Anti-Dumping Agreement ] that dumping may 
be determined for individual export transactions"558, but also added that panel reports agreeing with 
that proposition have been consisten tly reversed by the Appellate Bo dy.  In this regard, the Panel 
noted the Appellate Body's explanation that, "if it we re permissible to determine a separate margin of 
dumping for each individual transaction, several margins of dumping would exist for each exporter 
and for the product under consideration."559  The Panel added that the Appellate Body has found that 
                                                      
555In any event, we note that the United States did not make this request in its Notice of Other Appeal, 
but only included this request subsequently in a footnote in its other appellant's submission. 
556Before the Panel, the European Communities argued that the United States applied simple zeroing in 
the 37 periodic reviews listed in the annex to the Eu ropean Communities' panel request.  (See Panel Report, 
para. 7.145)  The Panel found that the European Comm unities had failed to establish that simple zeroing was 
used in seven periodic reviews.  (See ibid., para. 7.158)  In addition, the Panel found that the preliminary results 
of one periodic review were not within its terms of reference.  (See ibid., para. 7.77)  Thus, the Panel's findings 
regarding the use of simple zeroing in periodic reviews applied only to 29 of the 37 reviews challenged by the 
European Communities. 
557Panel Report, para. 7.162. 
558Panel Report, para. 7.162.  
559Panel Report, para. 7.162 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 99).  WT/DS350/AB/R 
 Page 99 
 
 
this cannot be reconciled with the interpretati on and application of several provisions of the Anti-
Dumping Agreement , including a determination of injury under Article 3.560    
246. Secondly, the Panel examined the issue of "whether dumping is necessarily an exporter-
specific concept or whether it may also be determined for individual importers."561  The Panel said 
that it "tend[ed] toward the view that dumping is not necessarily and exclusively an exporter-specific 
concept".562  However, referring to the Appellate Body 's reasoning that "certain elements of the 
definitional provisions contained in Article 2.1 of  the Anti-Dumping Agreement and Article VI:1 of 
the GATT 1994 compel the notion that dumping reflects the exporter's behaviour"563, the Panel 
observed that the Appellate Body had reversed the findings of prior panels that had considered the 
determination of importer-specific margins permissibl e.  The Panel further noted that the Appellate 
Body "found contextual support for its interpretation in other provisions of the Agreement, including 
Articles 2.3, 5.2(ii), 6.1.1, 6.7, 5.8, 6.10 , 9.5, 8.1, 8.2, 8.5 and 9.4(i) and (ii)."564  In addition, the 
Appellate Body "restated the overarching requirement  of Article 9.3 that the level of anti-dumping 
duty cannot exceed the margin of dumping as estab lished under Article 2 of the Agreement [and] 
reasoned that dumping can only be determined for the exporter and in connection with the product 
under consideration as a whole, and considered that this definition of 'dumping' applies throughout the 
Agreement."565 
247. Thirdly, the Panel stated that it shared the United States' concern that "prohibiting simple 
zeroing in periodic reviews would favour importers with high margins vis-à-vis  importers with low 
margins."566  However, in this regard, the Panel recalle d the Appellate Body's explanation "that the 
prohibition of simple zeroing in periodic reviews does not preclude Members from carrying out an importer-specific inquiry in dete rmining liability for the collection of anti-dumping duties, as long as 
the duty collected does not exceed the exporter-specific margin of dumping established for the product under consideration as a whole."
567 
                                                      
560Panel Report, para. 7.162 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para. 99). 
561Panel Report, para. 7.163.  
562Panel Report, para. 7.163. 
563Panel Report, para. 7.163 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 83-96). 
564Panel Report, para. 7.163 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 83-96).   
565Panel Report, para. 7.163. 
566Panel Report, para. 7.164. 
567Panel Report, para. 7.164 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para. 113). WT/DS350/AB/R 
Page 100  
 
248. Fourthly, while expressing the view that an opinion presented in the 1960 Second Report by 
the Group of Experts on Anti-Dumping and Countervailing Duties
568 (the "1960 Group of Experts 
Report") "supports the conclusion that dumping c ould be determined for individual importers"569, the 
Panel recalled that the Appellate Body "rejected th is argument, finding that interpretation of the 
Agreement in this regard does not necessitate an an alysis of supplementary means of interpretation 
provided for under Article 32 of  the Vienna Convention."570  The Appellate Body further reasoned 
that the 1960 Group of Experts Report "does not clarif y whether simple zeroing in periodic reviews is 
allowed under the Anti-Dumping Agreement becau se it only reflects the views of some of the 
negotiating parties well before the Anti- Dumping Agreement came into force."571 
249. Fifthly, the Panel said it "tend[ed] to agree" with the proposition that recognition in the Anti-
Dumping Agreement  of a prospective normal value system "reinforces the argument that dumping 
may be determined on the basis of individual export transactions".572  The Panel noted, however, that 
the Appellate Body "highlighted the fact that th e duty collected at the time of importation under a 
prospective normal value system does not represent the margin of dumping within the meaning of 
Article 9.3 and noted that such duty is subject to review under Article 9.3.2."573 
250. Finally, the Panel said it "tend[ed] to agr ee" with the United States and the panel in US – 
Stainless Steel (Mexico)  that, if the Anti-Dumping Agreement  was read to prohibit zeroing generally, 
then Article 2.4.2 would yield the same mathemat ical result as the first methodology, rendering the 
second sentence of Article 2.4.2 inutile .574  However, the Appellate Body dismissed this concern, 
explaining that, "if the determination of weighted average normal values was based on different time 
periods , dumping margin calculations under these two methodologies would yield different 
mathematical results."575  The Appellate Body also reiterated its view that "[b]eing an exception, the 
comparison methodology in the second sentence of Ar ticle 2.4.2 (weighted average-to-transaction) 
alone cannot determine the interpretation of the two methodologies provided in the first sentence."576   
                                                      
568GATT Second Report of the Group of Experts,  Anti-Dumping and Countervailing Duties, GATT 
Document L/1141, adopted 27 May 1960, BISD 9S/194. 
569Panel Report, para. 7.165.  
570Panel Report, para. 7.165 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 128-132).  
571Panel Report, para. 7.165 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 128-132).   
572Panel Report, para. 7.166. 
573Panel Report, para. 7.166 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para. 120). 
574Panel Report, para. 7.167 (referring to Panel Report, US – Stainless Steel (Mexico) , 
paras. 7.130-7.133). 
575Panel Report, para. 7.167 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 126 
(original emphasis)). 
576Panel Report, para. 7.167 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 127).   WT/DS350/AB/R 
 Page 101 
 
 
251. Although it had "generally found the reasoni ng of earlier panels on these issues to be 
persuasive"577, the Panel noted that it was "faced with a situation where the Appellate Body reports, 
adopted by the DSB, have consistently reversed the findings in the mentioned panel reports that 
simple zeroing in periodic revi ews is not WTO-inconsistent."578  Thus, "before setting out any 
definitive findings", the Panel turned to consid er what it referred to as "an important systemic 
question".579 
252. Referring to the "consistent line of reasoning underlying the Appellate Body's conclusion 
regarding simple zeroing in periodic reviews"580, the Panel turned to consider the role of prior 
jurisprudence.  The Panel noted the Appellate B ody's finding that, although "Appellate Body reports 
are not binding, except with respect to resolvi ng the particular dispute between the parties"581, they are 
nevertheless "often cited by parties in support of legal arguments in dispute settlement proceedings, 
and are relied upon by panels and the A ppellate Body in subsequent disputes".582  The Panel recalled 
the Appellate Body's statements in US – Stainless Steel (Mexico)  that "the legal interpretation 
embodied in adopted panel and Appellate Body  reports becomes part and parcel of the acquis  of the 
WTO dispute settlement system" and that ensuring "security and predictability" in the dispute 
settlement system "requires the development of a co nsistent body of case law and applying it to the 
same legal questions, absent cogent reasons".583 
253. With regard to the hierarchical structure be tween panels and the Appellate Body, the Panel 
observed the Appellate Body's finding that any pane l report that fails to follow the case law developed 
through adopted panel and Appellate Body repor ts would undermine the important function of 
jurisprudence to develop a consistent body of case law.584  The Panel also noted the Appellate Body's 
view that "the legal interpretation contained in a dopted Appellate Body reports has implications that 
go beyond the specifics of the relevant dispute" and has to be taken into consideration in interpreting 
the rights and obligations of WTO Members.585 
254. The Panel then observed that its duty to make  an "objective assessment" under Article 11 of 
the DSU did not exist "in a vacuum", but was to be read in the context of Article 3.2 of the DSU, 
                                                      
577Panel Report, para. 7.169. (footnote omitted) 
578Panel Report, para. 7.169.  
579Panel Report, para. 7.169.  
580Panel Report, para. 7.170. 
581Panel Report, para. 7.173 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 158). 
582Panel Report, para. 7.173 (quoting Appellate Body Report, US – Stainless Steel (Mexico) , para. 160). 
583Panel Report, paras. 7.174 and 7.175 (referring to Appellate Body Report, US – Stainless Steel 
(Mexico) , para. 160). 
584Panel Report, para. 7.175 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para. 161). 
585Panel Report, para. 7.176 (referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para. 161). WT/DS350/AB/R 
Page 102  
 
which "establishes that the WTO dispute settlement  system is intended to provide security and 
predictability to the multilateral trading system".
586  The Panel agreed that such security and 
predictability may "be furthered by the development of  consistent jurisprudence and applying it to the 
same legal questions, absent cogent reasons to do otherwise".587  However, while concluding that "it is 
obviously incumbent upon any panel to consider pr ior adopted Appellate Body reports, as well as 
adopted panel reports, and adopt ed GATT panel reports, in undertaking the objective assessment 
required by Article 11"588, the Panel said it did not believe that "the development of binding 
jurisprudence is a contemplated element to enable  the dispute settlement system to provide security 
and predictability to the multilateral trading system."589 
255. The Panel reasoned as follows: 
Clearly, it is important for a panel to have cogent reasons for any 
decision it reaches, regardless of whether or not there are any relevant adopted reports, and whethe r or not the panel follows such 
reports.  ... In our view, however, a panel cannot simply follow the adopted report of another panel, or of the Appellate Body, without 
careful consideration of the facts and arguments made by the parties 
in the dispute before it.  To do so would be to abdicate its 
responsibilities under Article 11.  By the same token, however, neither should a panel make a finding different from that in an adopted earlier panel or Appellate Body report on similar facts and 
arguments without careful consider ation and explanation of why a 
different result is warranted, and assuring itself that its finding does 
not undermine the goals of the system.
590 (emphasis omitted) 
256. Consequently, while the Panel said it "share[d] a number of concerns" expressed by the panel 
in US – Stainless Steel (Mexico) , the Panel recognized that the Appellate Body had reversed the 
findings of that panel and that th e Appellate Body report had "gaine d legal effect through adoption by 
the DSB."591  The Panel also noted that "this continu es a series of consistent recommendations made 
by the DSB over the past several years following re ports that addressed the same issues based largely 
on the same arguments."592 
257. The Panel further observed that: 
In addition to the goal of providing  security and predictability to the 
multilateral trading system, ... Article 3.3 of the DSU provides that 
"[t]he prompt settlement of situa tions in which a Member considers 
                                                      
586Panel Report, para. 7.179. 
587Panel Report, para. 7.179. 
588Panel Report, para. 7.179. 
589Panel Report, para. 7.179. 
590Panel Report, para. 7.180. 
591Panel Report, para. 7.181.  
592Panel Report, para. 7.181.   WT/DS350/AB/R 
 Page 103 
 
 
that any benefits accruing to it directly or indirectly under the covered agreements are being impair ed by measures taken by another 
Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members".  Given the consistent adopted jurisprudence on the 
legal issues that are before us with respect to simple zeroing in 
periodic reviews, we consider that providing prompt resolution to this dispute in this manner will best serve the multiple goals of the DSU, and, on balance, is furthere d by following the Appellate Body's 
adopted findings in this case.
593 
258. Based on this analysis, the Panel concluded th at the United States had acted inconsistently 
with its obligations under Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping 
Agreement by applying simple zeroing in 29 periodic revi ews.  Having reached this conclusion, the 
Panel declined to rule on the European Communities' claims under Articles 2.1, 2.4, 2.4.2, and 11.2 of 
the Anti-Dumping Agreement  and Article VI:1 of the GATT 1994.594 
B. Arguments of the Participants and the Third Participants 
259. On appeal, the United States argues that the use of simple zeroing in periodic reviews rests on 
a permissible interpretation of the Anti-Dumping Agreement .  According to the United States, the 
Panel in this dispute reached the same conclusion.  Nevertheless, the Panel ultimately found that the 
United States had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994 by applying simple zero ing in 29 periodic reviews.  The United States 
contends that this finding was based on an imprope r application of the standard of review set out 
under Article 17.6(ii) of the Anti-Dumping Agreement  and should be reversed.   
260. The United States further argues that Article 2.1 of the Anti-Dumping Agreement and 
Article VI of the GATT 1994 "do not define 'dumping'  and 'margins of dumping' so as to require that 
export transactions be examined at an aggregate level".595  Instead, the definition of dumping in these 
provisions "describes the real-world commercial c onduct by which a product is imported into a 
country, i.e., transaction by transaction".596  Thus, there is no reason why a Member may not 
"establish the 'margin of dumping' on the basis of the total amount by which the transaction-specific 
export prices are less than the transaction-specific normal values".597 
                                                      
593Panel Report, para. 7.182. 
594Panel Report, para. 7.183.  
595United States' other appellant's submission, para. 60 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 140). 
596United States' other appellant's submission, para. 60 (referring to Panel Report, US – Zeroing (EC) , 
para. 7.285). 
597United States' other appellant's submission, para. 67 (quoting Panel Report, US – Softwood Lumber V 
(Article 21.5 – Canada) , para. 5.28). WT/DS350/AB/R 
Page 104  
 
261. The United States adds that "the term 'margin of dumping', as used elsewhere in the 
GATT 1994 and the [ Anti-Dumping Agreement ], does not refer exclusively to the aggregated results 
of comparisons for the 'product as a whole'."
598  The United States disagrees with the Appellate 
Body's finding that a "determination of dumping with  respect to an exporter is properly made not at 
the level of individual export transactions, but on th e basis of the totality of an exporter's transactions 
of the subject merchandise over the period of investigation."599  For the United States, there is nothing 
in the Anti-Dumping Agreement that directs the calculation of a margin of dumping to be done only 
"at the level of multiple transactions", nor any text that would preclude the calculation of a margin of 
dumping on a transaction-specific level.600   
262. By contrast, the European Communities argues that  it is clear from Articles VI:1 and VI:2 of 
the GATT 1994 and various provisions in the Anti-Dumping Agreement  that "dumping" and "margin 
of dumping" are "exporter-specific concepts", and th at dumping "is also product-related, in the sense 
that an anti-dumping duty is a levy in respect of the product that is investigated and found to be 
dumped".601  In the European Communities' view, the notion that dumping and a margin of dumping 
can exist at the level of an individual transac tion runs counter to the basic disciplines of the Anti-
Dumping Agreement , including the requirement that the determination of dumping be made on the 
basis of all of an exporter's transactions over a period of time.602  The European Communities argues, 
therefore, that the interpretation put forth by  the United States is not a permissible one.603  If, however, 
the Appellate Body decides to overturn the findin g of the Panel, then th e European Communities 
refers to its conditional appeal wherein it asks the A ppellate Body to reverse "that part of the Panel 
Report that agrees with the United States".604  The European Communities urges the Appellate Body 
to consider the present matter in the light of findings in US – Stainless Steel  (Mexico)  on the question 
of precedent, because the present case cannot be distinguished on facts.605  I n  t h e  E u r o p e a n  
Communities' view, the Appellate Body can rever se its previous decision only for new and cogent 
reasons, which do not exist in this case.  Furthe r, the European Communities disagrees with the 
United States' proposition that Article 17.6(ii) of the Anti-Dumping Agreement  "override[s]" or 
"replace[s]" the provisions of the DSU;  rather, the European Communities agrees with the Appellate 
                                                      
598United States' other appellant's submission, para. 68. 
599United States' other appellant's submission, para. 71 (quoting Appellate Body Report, US – Stainless 
Steel (Mexico) , para. 98). 
600United States' other appellant's submission, para. 72. 
601European Communities' appellee's submission, para. 20. 
602European Communities' appellee's submission, para. 21 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , paras. 97-99). 
603European Communities' appellee's submission, para. 61. 
604European Communities' appellee's submission, para. 62. 
605European Communities' appellee's submission, para. 63.  WT/DS350/AB/R 
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Body that Article 17.6 "supplements" the provisions of the DSU.606  The European Communities adds 
that the Panel followed the Appellate Body Report in US – Stainless Steel (Mexico)  and thus complied 
with its obligations under Article 11 of the DSU in this case. 
263. Brazil, India, Japan, Korea, Norway, and Th ailand generally agree with the European 
Communities.  Brazil and Japan further submit that  the Appellate Body should uphold the Panel's 
finding that zeroing, as applied by the USDOC in th e 29 periodic reviews at issue in this appeal, is 
inconsistent with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994.607  
In essence, they argue that these provisions establish a requirement that "dumping" and "margins of 
dumping" be established by reference to the product under consideration and to  individual exporters, 
and not in relation to specific models or subsets of low-priced transactions.  Brazil and Japan also 
argue that there must be consistent treatment of  dumping and margins of dumping for all purposes and 
stages of anti-dumping proceedings because these te rms have the same meaning throughout the Anti-
Dumping Agreement .  
C. Simple Zeroing in Periodic Reviews 
264. We begin our analysis by examining whether th e Panel misapplied the standard of review set 
out under Article 17.6(ii) of the Anti-Dumping Agreement .  Next, we consider the United States' 
arguments insofar as they relate to the interpre tation and operation of the terms "dumping" and 
"margin of dumping" as they appear in the Anti-Dumping Agreement  and Article VI of the 
GATT 1994.  In particular, we evaluate whether "d umping" and "margin of dumping" are exporter- or 
importer-related concepts and whether they can be  found to exist at the transaction- or importer-
specific levels for the purpose of Article 9.3 of the Anti-Dumping Agreement .   
1. Article 17.6 of the Anti-Dumping Agreement  
265. On appeal, the United States argues that the Pane l misapplied the standard of review set out 
under Article 17.6(ii) of the Anti-Dumping Agreement .  According to the United States, the Panel 
viewed the Anti-Dumping Agreement  "as admitting of more than one permissible interpretation" and 
considered that the use of zeroing in periodic reviews rests "on one of those interpretations".608  On 
this basis, the United States argues that the Panel should have found that the application of simple 
                                                      
606European Communities' appellee's submission, paras.  64 and 65 (referring to United States' other 
appellant's submission, para. 52;  and Appellate Body Report, US – Hot-Rolled Steel , para. 62). 
607Brazil's third participant's submission, paras. 39-93;  India's statement at the oral hearing;  Japan's 
third participant's submission, para. 82;  Korea's third pa rticipant's submission, para. 4;  Norway's statement at 
the oral hearing;  Thailand's statement at the oral hearing. 
608United States' other appellant's submission, para. 51.  See Panel Report, paras. 7.162-7.169, and 
footnote 131 to para. 7.169.  See also para. 9.4 of the separate opinion. WT/DS350/AB/R 
Page 106  
 
zeroing in the 29 periodic reviews at issue was permissible under the Anti-Dumping Agreement .
609  
The United States suggests that the Panel's depa rture from Article 17.6(ii) appears to rely on 
Articles 3.2 and 3.3 of the DSU, but notes that Article 1.2 specifies that the provisions of the DSU are 
"'subject to' the special or additional rules listed in Appendix 2 to the DSU"610, which includes 
Article 17.6(ii) of the Anti-Dumping Agreement .  The United States adds that Article 17.6(ii) was 
negotiated "as a recognition that some provisions of the [ Anti-Dumping Agreement ] would be 
susceptible to multiple permissible interpretations".611  As we see it, the United States' appeal in this 
regard is predicated on the existen ce of two permissible interpretations.612 
266. The European Communities contends that th e United States' interpretation cannot be 
"permissible" within the meaning of Article 17.6(ii) of the Anti-Dumping Agreement  "[i]f all of the 
interpretative elements in the Vienna Convention  support the position of the European Communities, 
and disprove the position of the United States."613  According to the European Communities, 15 past 
Appellate Body and panel reports have confirmed the correct lega l interpretations of the GATT 1994 
and the Anti-Dumping Agreement with respect to this matter.614  Further, the Eu ropean Communities 
disagrees with the United States' proposition that Article 17.6(ii) of the Anti-Dumping Agreement  
"overrides" or "replaces" the provisions of the DS U;  rather, the European Communities agrees with 
the Appellate Body that Article 17.6 "supplements" the provisions of the DSU.615  The European 
Communities adds that the Panel followed previous Appellate Body findings and thus complied with 
its obligations under Article 11 of th e DSU in this case.  In the European Communities' view, "it is for 
the Appellate Body to change its own mind;  not for a panel to do it on the Appellate Body's 
behalf."616 
267. Article 17.6(ii) consists of two sentences.  The first sentence clarifies that  panels are charged 
with the obligation to interpret the provisions of the Anti-Dumping Agreement   "in accordance with 
customary rules of interpretation of public inte rnational law".  The sa me language is found in 
                                                      
609United States' other appellant's submission, para. 51.  
610United States' other appellant's submission, para. 52. 
611United States' other appellant's submission, para. 53.   
612At the oral hearing, the United States was rep eatedly asked, in the light of its reliance on 
Article 17.6(ii) of the Anti-Dumping Agreement , whether it accepted that there were at least two permissible 
interpretations of the Anti-Dumping Agreement  and the GATT 1994 in respect of  zeroing:  that of the United 
States and that of the European Communities.  Ultimat ely, the United States accepted that the Panel had found 
that there were two permissible interpretations and suppor ted the Panel in this regard.  It would follow that the 
United States accepts, at least for the purposes of th is appeal, that there ar e indeed, two permissible 
interpretations that fall within the scope of the second se ntence of Article 17.6(ii):  that of the United States and 
that of the European Communities. 
613European Communities' appellee's submission, para. 43. (original emphasis) 
614European Communities' appellee's submission, para. 19. 
615European Communities' appellee's submission, paras.  64 and 65 (referring to United States' other 
appellant's submission, para. 52;  and Appellate Body Report, US – Hot-Rolled Steel , para. 62). 
616European Communities' appellee's submission, para. 66.  WT/DS350/AB/R 
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Article 3.2 of the DSU.617  Panels examining claims under the Anti-Dumping Agreement   are therefore 
required to apply the customary rules of treaty in terpretation codified in Articles 31 and 32 of the 
Vienna  Convention .  Article 31(1) of the Vienna Convention  provides that a "treaty shall be 
interpreted in good faith in accordance with the or dinary meaning to be given to the terms of the 
treaty in their context and in the light of its object and purpose."618 Article 32 further stipulates that 
"recourse may be had to supplementary means of interpretation, including the preparatory work of the 
treaty and the circumstances of its conclusion, in  order to confirm the meaning resulting from the 
application of [A]rticle 31 or to determine the meaning".  The latter app lies when interpretation 
according to Article 31 leaves the meaning ambiguous  or obscure, or leads to a result that is 
manifestly absurd or unreasonable.  The customary rul es of treaty interpretation apply to any treaty, in 
any field of public international law, and not just to the WTO agreements.  As the Appellate Body has 
said, they "impose certain common disciplines upon treat y interpreters, irrespective of the content of 
the treaty provision being examined and irrespectiv e of the field of international law concerned."619   
268. The principles of interpretation that are set out  in Articles 31 and 32 are to be followed in a 
holistic fashion. The interpretative exercise is e ngaged so as to yield an interpretation that is 
harmonious and coherent a nd fits comfortably in the treaty as a whole so as to render the treaty 
provision legally effective.  A word or term may have more than one meaning or shade of meaning, but the identification of such meanings in isola tion only commences the process of interpretation, it 
does not conclude it.  Nor do multiple meanings of a word or term automatically constitute 
"permissible" interpretations within the meaning of Article 17.6(ii).  Instead, a treaty interpreter is 
required to have recourse to context and object and purpose to elucidate the relevant meaning of the 
word or term.  This logical progression provides a framework for proper interpretative analysis.  At 
the same time, it should be kept in mind that treat y interpretation is an integrated operation, where 
interpretative rules or principles must be understood and applied as connected and mutually 
reinforcing components of a holistic exercise.   
269. The second sentence of Article 17.6(ii) imposes an  obligation on panels that is not found 
elsewhere in the covered agreements.  It stipulates that:  
                                                     
 
617Clearly, the first sentence of Article 17.6(ii) involves no "conflict" with the DSU but, rather, 
confirms that the usual rules of treaty interpretation under the DSU also apply to the Anti-Dumping Agreement.  
618Articles 31(2) of the Vienna Convention defines what constitutes "context" for the purpose of 
interpretation and Article 31(3) provides for elements that  an interpreter has to take into account together with 
the context. 
619Appellate Body Report, US – Hot-Rolled Steel , para. 60.  The parties to a particular treaty might 
agree upon rules of interpretation for that treaty which differ from the rules of interpretation in Articles 31 
and 32 of the Vienna Convention . (Ibid., footnote 40)  But this is not the case here. WT/DS350/AB/R 
Page 108  
 
Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. 
 
270. The Appellate Body has reasoned that the second sentence of Article 17.6(ii) presupposes 
"that application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention   
could give rise to, at least, two inte rpretations of some provisions of the Anti-Dumping Agreement ,  
which, under that Convention, would both be ' permissible  interpretations'."
620  Where that is the case, 
a measure is deemed to be in conformity with the  Anti-Dumping Agreement   "if it rests upon one of 
those permissible interpretations."  As the A ppellate Body has said, "[i]t follows that, under 
Article 17.6(ii) of the Anti-Dumping Agreement , panels are obliged to determine whether a measure 
rests upon an interpretation of th e relevant provisions of the Anti-Dumping Agreement  which is 
permissible under the rules of treaty interpretation  in Articles 31 and 32 of the Vienna 
Convention ."621   
271. The second sentence of Article 17.6(ii) must theref ore be read and applied in the light of the 
first sentence.  We wish to make a number of ge neral observations about the second sentence.  First, 
Article 17.6(ii) contemplates a sequential analysis.  The first step requires a panel to apply the 
customary rules of interpretation to the treaty to see what is yielded by a conscientious application of 
such rules including those codified in the Vienna Convention .  Only after  engaging this exercise will a 
panel be able to determine whether the second senten ce of Article 17.6(ii) applies.  The structure and 
logic of Article 17.6(ii) therefore do not permit a pane l to determine first whether an interpretation is 
permissible under the second sentence and then to seek validation of that permissibility by recourse to 
the first sentence. 
272. Secondly, the proper interpretation of the second sentence of Article 17.6(ii) must itself be 
consistent with the rules and principles set out in the  Vienna Convention .  This means that it cannot 
be interpreted in a way that w ould render it redundant, or that derogates from the customary rules of 
interpretation of public internationa l law.  However, the second senten ce allows for the possibility that 
the application of the rules of the Vienna Convention  may give rise to an interpretative range and, if it 
does, an interpretation falling within that range is permissible and must be given effect by holding the 
measure to be in conformity with the covered agre ement.  The function of the second sentence is thus 
                                                      
620Appellate Body Report, US – Hot-Rolled Steel , para. 59. (original emphasis) 
621Appellate Body Report, US – Hot-Rolled Steel , para. 60 (original emphasis) (referring to Appellate 
Body Report, EC – Bed Linen , footnote 36 to paras. 63-65;  and Appellate Body Report, Thailand – H-Beams , 
footnote 36 to para. 127).  WT/DS350/AB/R 
 Page 109 
 
 
to give effect to the interpretative range rather th an to require the interpreter to pursue further the 
interpretative exercise to the point where only one interpretation within that range may prevail. 
273. We further note that the rules and principles of the Vienna Convention cannot contemplate 
interpretations with mutually contradictory results.  Instead, the enterprise of interpretation is intended 
to ascertain the proper meaning of a provision;  one th at fits harmoniously with the terms, context, and 
object and purpose of the treaty.622  The purpose of such an exercise  is therefore to narrow the range 
of interpretations, not to generate conflicting, co mpeting interpretations.  Interpretative tools cannot 
be applied selectively or in isolation from one anothe r.  It would be a subvers ion of the interpretative 
disciplines of the Vienna Convention   if application of those disciplines yielded contradiction instead 
of coherence and harmony among, and effect to, all relevant treaty provisions.  Moreover, a 
permissible interpretation for purposes of the second sentence of Article 17.6(ii) is not the result of an 
inquiry that asks whether a provision of domestic law is "necessarily excluded" by the application of 
the Vienna Convention .  Such an approach subverts the hier archy between the treaty and municipal 
law.  It is the proper interpretation of a cove red agreement that is the enterprise with which 
Article 17.6(ii) is engaged, not whether the treaty can  be interpreted consistently with a particular 
Member's municipal law or with municipal laws of Members as they existed at the time of the 
conclusion of the relevant treaty.   
274. In the present case, the United Stat es argues that the Panel viewed the Anti-Dumping 
Agreement  "as admitting of more than one permissible in terpretation" and considered that the use of 
zeroing in periodic reviews rests "on one of those interpretations".623  By contrast, the European 
Communities and Brazil emphasize that, whilst the Panel may have made an intermediate statement to 
the effect that the United States' interpretation w as permissible, this was not the Panel's ultimate 
finding.624    
275. We are not required in this case to determine wh ether the Panel considered the use of zeroing 
in periodic reviews to rest on a permissible interpre tation of the relevant provisions of the covered 
agreements because, now that the matter is before  us on appeal, we must decide whether the Panel 
erred in finding that the United States acted  inconsistently with Article 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994.  In so doing, we must determine whether the second 
sentence of Article 17.6(ii) is of application.   It is to this issue that we now turn. 
                                                      
622Recourse to supplementary means may al so be had under Article 32 of the Vienna Convention .  
623United States' other appellant's submission, para. 51.  See Panel Report, paras. 7.162-7.169 and 
footnote 131 to para. 7.169.  See also ibid., para. 9.4, of the separate opinion. 
624European Communities' responses to questioning at the oral hearing;  Brazil's responses to 
questioning at the oral hearing. WT/DS350/AB/R 
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2. The Concept of "Dumping" and "Margins of Dumping" in the Anti-Dumping 
Agreement  
276. The Anti-Dumping Agreement  establishes disciplines relating to the use of anti-dumping 
measures;  it also aims to ensure Members' ability  to counter injurious dumping in accordance with 
such disciplines. 
277. As the United States points out, this dispute "is ultimately about the definitions of 'dumping' 
and 'margin of dumping'."625  In particular, the disagreement betw een the participants flows from their 
respective interpretations of the terms "dumping" and "margin of dumping" in Article 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994, and whether these terms apply at the level 
of the product under consideration or at the level of an individual export transaction.   
278. As we understand it, the United States' position th at simple zeroing is permitted in periodic 
reviews under Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT is premised 
on the argument that "dumping" and "margin of dum ping" can be found to exist at the level of 
individual transactions and for i ndividual importers when assessing th e anti-dumping duty liability for 
each importer.  Moreover, the United States argues that  "the definition of these terms, used in a wide 
variety of contexts throughout the provisions of GATT 1994 and the [ Anti-Dumping Agreement ], 
incorporate a flexibility of meaning that permits th ese terms to be understood based on the context in 
which they are used."626 
279. First, we recall that "dumping" is defined in Article VI:1 of the GATT 1994 as occurring 
when a "product" of one country is introduced into  the commerce of another country at less than the 
normal value of that product.627  Consistent with this definition, Ar ticle VI:1 states that dumping is to 
be "condemned" if it causes, or threatens to cause, ma terial injury to the domestic industry producing 
a like product.  In turn, Article VI:2 lays down th at, "[i]n order to offset or prevent dumping, a 
[Member] may levy on any dumped product an an ti-dumping duty not greater in amount than the 
margin of dumping in respect of such product." 
280. This definition of "dumping" is carried over into the  Anti-Dumping Agreement  by Article 2.1,  
which states that a product is to be considered  as being "dumped" if the "export price" of "the 
product" "exported" from one country to another is  less than the comparable price for the "like 
                                                      
625United States' other appellant's submission, para. 59. 
626United States' other appellant's submission, para. 73.  The United States further argues that the 
Appellate Body's findings in US – Stainless Steel (Mexico)  "resulted from imposing an inflexibly rigid definition 
upon the terms 'dumping' and 'margin of dumping' that ignored the ordinary meaning of the word 'product,' which can have either a transaction-specific or collective meaning, or both, depending on the context." ( Ibid.) 
627See Appellate Body Report, US – Stainless Steel (Mexico) , para. 83;  Appellate Body Report, US – 
Zeroing (Japan) , para. 108;  and Appellate Body Report, US – Zeroing (EC) , para. 125.  WT/DS350/AB/R 
 Page 111 
 
 
product" when destined for consumption in the "exp orting" country.  By virtue of the opening phrase 
of Article 2.1—"[f]or the purpose of this Ag reement"—this definition of "dumping" applies 
throughout the Anti-Dumping Agreement .628  In the interpretation of the concept of "dumping", the 
discipline imposed by the opening phrase of Article 2.1 of the  Anti-Dumping Agreement   is important 
because it requires that the definitional content of "dumping" must be capable of application throughout the Anti-Dumping Agreement  in a coherent fashion.  This definition cannot be of variable 
content or application.   
281. Turning to the concept of "margin of dumping", we note that Article VI:2 speaks of the 
difference between the normal value and the export  price and establishes the link between "dumping" 
and "margin of dumping".
629  Article VI:2 further clarifies that the "margin of dumping" is in respect 
of the dumped "product".  In our view, there must be clarity as to the definition of "dumping" because it becomes a fundamental part of the basic concepts that underlie the  Anti-Dumping Agreement , such 
as the "margin of dumping".    
282. Mere scrutiny of the particular terms—such as "product" and "export price"—in Article 2.1 
does not resolve the issue of whether the conc ept of dumping is concerned with individual 
transactions or whether it is necessarily an aggregativ e concept attributable to an exporter.  However, 
as we have indicated above, the interpreta tive exercise that is mandated under the Vienna Convention  
is a holistic and integrated one that cannot result in interpretations that are mutually contradictory.  
We thus turn to examine the context found in various other provisions of the Anti-Dumping 
Agreement  in order to better elucidate what the concept of "dumping" means.   
283. One aspect to be considered is that a number of provisions in the Anti-Dumping Agreement  
require a determination of dumping by reference to an exporter and to a product under consideration.  
More specifically, Article 5.8 requires that an an ti-dumping investigation be terminated if the 
investigating authority determines that the margin of dumping is de minimis , which is defined as less 
than two per cent, expressed as a percentage of th e export price.  A plain reading of Article 5.8 
indicates that the term "margin of dumping" as used  in that provision refers to a single margin.  
Moreover, the first sentence of Article 6.10 of the Anti-Dumping Agreement  stipulates that authorities 
"shall, as a rule, determine an individual marg in of dumping for each known exporter or producer 
concerned of the product under investigation".  Li kewise, Article 9.5, dealing with new shipper 
reviews, requires the authorities to determine an individual margin of dumping  for any exporter that 
                                                     
 
628See Appellate Body Report, US – Stainless Steel (Mexico) , para. 84;  and Appellate Body Report, 
US – Zeroing (Japan) , para. 109.  See also Appellate Body Report, US – Zeroing (EC) , para. 125;  and 
Appellate Body Report, US – Softwood Lumber V , para. 93. 
 629See Appellate Body Report, US – Zeroing (EC) , para. 125;  Appellate Body Report, US – Stainless 
Steel (Mexico) , para. 85;  and Appellate Body Report, US – Zeroing (Japan) , para. 110.   WT/DS350/AB/R 
Page 112  
 
had not exported the product during the period of inv estigation.  These provisions suggest that a single 
margin of dumping is to be established for each i ndividual exporter or producer investigated as they 
do not refer to multiple margins occurring at the level of individual transactions.
630   
284. We further note that the Anti-Dumping Agreement  deals with "injurious dumping", and the 
very purpose of an anti-dumping duty is to counteract the material injury caused, or threatened to be 
caused, by "dumped imports" to the domestic industry producing a "like product".631  Under the Anti-
Dumping Agreement , the concepts of "dumping", "injury", and "margin of dumping" are interlinked 
and should be considered and inte rpreted in a coherent and consis tent manner for all parts of the Anti-
Dumping Agreement .632 
285. We fail to see a textual or contextual basis in the GATT 1994 or the Anti-Dumping Agreement  
for treating transactions that occur above normal va lue as "dumped", for purposes of determining the 
existence and magnitude of dumping in the original  investigation, and as "non-dumped", for purposes 
of assessing the final liability for payment of anti- dumping duties in a periodic review.  If, as a 
consequence of zeroing, the results of certain comparisons are disregarded only for purposes of 
assessing final liability for payment of anti-dumping duti es in a periodic review, a mismatch is created 
between the product considered "dumped" in the or iginal investigation and the product for which anti-
dumping duties are collected.  This is not consonant with the need for consistent treatment of a
                                                      
630See Appellate Body Report, US – Zeroing (EC) , para. 128;  and Appellate Body Report, US – 
Stainless Steel (Mexico) , para. 89.  We recall that, in US – Softwood Lumber V (Article 21.5 – Canada) , the 
Appellate Body found that the use of zeroing in calculating the margins of  dumping under the T-T comparison 
methodology in the original investigation at issue in that dispute was inconsistent with the "fair comparison" 
requirement in Article 2.4 of the Anti-Dumping Agreement . (Appellate Body Report, US – Softwood Lumber V 
(Article 21.5 – Canada) , para. 146)  Moreover, in US – Zeroing (Japan) , the Appellate Body found that zeroing 
in periodic reviews is, as such, inco nsistent with Article 2.4 of the Anti-Dumping Agreement. (Appellate Body 
Report, US – Zeroing (Japan) , para. 169) 
631Appellate Body Report, US – Stainless Steel (Mexico) , para. 98.  Thus, Article 3.1 of the Anti-
Dumping Agreement stipulates that a determination of injury shall be based on an objective examination of both 
the volume of the dumped  imports and the effect of the dumped  imports on prices in the domestic market for 
like products, and of the consequent impact of the dumped  imports on domestic producers of such like products.  
Furthermore, Article 3.5 lays down that "[t]he authoritie s 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 dumped imports." 
632Appellate Body Report, US – Stainless Steel (Mexico) , para. 94.  See also Appellate Body Report, 
US – Zeroing (Japan) , para. 114.  WT/DS350/AB/R 
 Page 113 
 
 
product at the various stages of anti-dumping duty proceedings.633   
286. Article 9.3.1 of the Anti-Dumping Agreement  is subject to the overarching requirement in 
Article 9.3 that the amount of anti-dumping dut y "shall not exceed the margin of dumping as 
established under Article 2" of that Agreement.  Based on an examination of the context of 
Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement , the Appellate Body 
has found that the term "margin of dumping", as used in those provisions, relates to the "exporter" of 
the "product" under consideration.  Furthermore, the Appellate Body has clarified that the definitions 
of "dumping" and "margin of dumping" apply in the same manner throughout the Anti-Dumping 
Agreement  and do not vary under the various provisions of the Agreement.634  Thus, under 
Article VI:2 and Article 9.3, the margin of dum ping established for an exporter in accordance with 
Article 2 operates as a ceiling for the total amount of anti-dumping duties that can be levied on the 
entries of the subject merchandise from that exporter.635  The Appellate Body has seen no basis in 
Article VI:2 of the GATT 1994 or in Articles 2 and 9.3 of the Anti-Dumping Agreement  for 
disregarding the results of comparisons where th e export price exceeds the normal value.  As the 
Appellate Body has said, "other provisions of the Anti-Dumping Agreement  are explicit regarding the 
permissibility of disregarding certain matters."636 
287. For all these reasons, we are unable to agree with  the United States' view that "dumping" may 
be determined at the level of individual tran sactions, and that multiple comparison results are 
"margins of dumping" in themselves.  Ra ther, as the Appellate Body held in US – Stainless Steel 
(Mexico) , "[a] proper determination as to whether an e xporter is dumping or not can only be made on 
                                                      
 633See Appellate Body Report, US – Zeroing (Japan) , para. 128;  and Appellate Body Report, US – 
Softwood Lumber V , para. 99.  The Appellate Body has previously found that, "while investigating authorities 
may define the scope of a product for an anti-dumping investigation, that definition applies throughout the 
investigation." (Appellate Body Report, US – Stainless Steel (Mexico) , para. 106)  Moreover, the Appellate 
Body has explained that "'[d]umping', within the meaning of the Anti-Dumping Agreement , can 'be found to 
exist only for the product under investigation as a whole' , by fully taking into account all the transactions 
pertaining to that product." ( Ibid., referring to Appellate Body Report, US – Softwood Lumber V , para. 93;  
Appellate Body Report, US – Zeroing (Japan) , para. 115;  and Appellate Body Report, US – Zeroing (EC) , 
para. 127))   
634See Appellate Body Report, US – Zeroing (Japan) , para. 114;  and Appellate Body Report, US – 
Stainless Steel (Mexico) , paras. 95 and 96. 
635Appellate Body Report, US – Stainless Steel (Mexico) , para. 102. 
636Appellate Body Report, US – Stainless Steel (Mexico) , para. 103;  see also Appellate Body Report, 
US – Softwood Lumber V , para. 100.  For example, Article 9.4 of the Anti-Dumping Agreement  expressly directs 
investigating authorities to disregard "any zero and de minimis  margins" under certai n circumstances when 
calculating the weighted average margin of dumping to be applied to exporters that have not been individually 
investigated.  Similarly, Article 2.2.1, which deals with  the calculation of normal va lue, sets forth the only 
circumstances under which sales of the like product in the exporting country can be disregarded.  WT/DS350/AB/R 
Page 114  
 
the basis of an examination of the exporter's prici ng behaviour as reflected in all of its transactions 
over a period of time."
637   
3. Periodic Reviews and Importer-Specific Duty Assessment  
288. The United States expresses concern regarding the implications for importer-specific duty 
assessment in periodic reviews that flow from the Appe llate Body's interpretation of Article 9.3 of the 
Anti-Dumping Agreement  in previous disputes.   
289. The United States argues that, "if a Member is unable to calculate and assess the duties on a 
transaction-specific basis, importers of the mercha ndise for which the export price is less than normal 
value to the greatest extent will actually have an ad vantage over their competitors who import at fair 
value prices because they will enjoy the benefit of o ffsets that result from their competitors' fairly 
priced imports."638   
290. As the Appellate Body has previously noted, various provisions of the Anti-Dumping 
Agreement , including Articles 5.8, 6.10, 9.5, and 8.1, make clear that "dumping" and "margins of 
dumping" relate to the pricing behaviour of  the relevant "exporter or foreign producer".639  Thus, to 
the extent that anti-dumping measures are intende d to create incentives for a change in pricing 
behaviour as the United States argues, the party to be  "encouraged" is the exporter or producer, rather 
than the importer.  This is "not altered by the fact  that the export price may be the result of negotiation 
between the importer and the exporter."640 
291. The Appellate Body has not suggested that individual importers must be assessed anti-
dumping duties at the identical rate as that of all ot her importers and it has not held that "an importer's 
anti-dumping margin must be averaged out".641  Instead, the Appellate Body has recognized that, 
under Article 9.3, "anti-dumping duty liability can be  assessed in relation to a specific importer on the 
basis of its transactions from the relevant exporter."642  Furthermore, the Appellate Body has reasoned
                                                      
637Appellate Body Report, US – Stainless Steel (Mexico) , para. 98.  
638United States' other appellant's submission, para. 95.  
639Article 6.10 of the  Anti-Dumping Agreement  requires, "as a rule", th at investigating authorities 
determine a "margin of dumping for each known exporter or producer concerned of the product under 
investigation." (emphasis added)  (See also Appellate Body Report, US – Softwood Lumber V (Article 21.5 – 
Canada) , para. 94)  Similarly, Article 8.1 of the Anti-Dumping Agreement speaks of "voluntary undertaking 
from any exporter to revise its prices or to cease exp orts to the area in question at dumped prices ." (emphasis 
added)  (See also Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 208 and 217)  In 
Mexico – Anti-Dumping Measures on Rice , the Appellate Body confirmed that the term "margin of dumping" in 
the Anti-Dumping Agreement  in general refers to the individual margins of dumping for exporters or foreign 
producers. 
640Appellate Body Report, US – Stainless Steel (Mexico) , para. 95. (footnote omitted)  
641Appellate Body Report, US – Stainless Steel (Mexico) , para. 112. 
642Appellate Body Report, US – Stainless Steel (Mexico) , para. 112.   WT/DS350/AB/R 
 Page 115 
 
 
that the possibility that aggregation of multiple comp arisons results in a periodic review would yield a 
negative value for a particular importer "would not mean that the authorities would be required ... to 
compensate an importer for the amount of that ne gative value (that is, when export prices exceed 
normal value)."643 
4. Prospective Normal Value Systems  
292. We turn next to examine the United States' arguments relating to the calculation of the 
liability for payment of anti-dumping duties on the basis of a so-called "prospective normal value"644 
referred to in Article 9.4(ii) of the Anti-Dumping Agreement . 
293. The United States argues that Article 9.4(ii) of the Anti-Dumping Agreement  lends support to 
the proposition that "dumping" may be interpreted in  relation to individual export transactions.  For 
the United States, it would be "absurd to interpret Ar ticle 9 as requiring offset s between importers in a 
retrospective assessment system while capping the im porter's liability based on individual transactions 
in a prospective system."645  The United States further argues that  accepting the interpretation that a 
Member must aggregate the results of all  comparisons on an exporter-specific basis would require that 
retrospective reviews be conducted, even in a prosp ective normal value system, in order to take into 
account all of the exporters' transactions.  For the United States, this would, in effect, render 
prospective normal value systems retrospective. 
294. In addressing similar arguments by the United Stat es in previous appeals, the Appellate Body 
has emphasized that the anti-dumping duty collected at the time of importation, "under a prospective 
normal value system, does not represent the 'margin of dumping' under Article 9.3, which, as the Appellate Body has found, is the margin of dumping for an exporter for all of  its sales of the subject 
merchandise into the country concerned."
646  This is not changed by the f act that, in such a system, the 
liability  for payment of anti-dumping duties may be final at the time of importation.  Rather, 
Article 9.3.2 contemplates that the amount of dutie s collected on a prospective basis is subject to 
review pursuant to Article 9.3 of the Anti-Dumping Agreement , which provides that "[ t]he amount of 
the anti-dumping duty  shall not exceed the margin of dumping as established under Article 2."647 
                                                      
643Appellate Body Report, US – Zeroing (EC) , footnote 234 to para. 131;  Appellate Body Report, US – 
Zeroing (Japan) , para. 155. 
644In a prospective normal value system, duties are assessed on the basis of the difference between a 
"prospective normal value" and the prices of individual export transactions.     
645United States' other appellant's submission, para. 89 (referring to Panel Report, US – Stainless Steel 
(Mexico) , para. 7.133). 
646Appellate Body Report, US – Stainless Steel (Mexico) , para. 120. 
647Emphasis added. WT/DS350/AB/R 
Page 116  
 
295. Thus, Article 9.4(ii) does not mean that the basic disciplines governing the calculation of 
margins of dumping, contained in Article VI of the GATT 1994 and Article 2 of the Anti-Dumping 
Agreement , no longer apply.  The collection of anti-dumping duties on the basis of a prospective  
normal value is only an intermediate stage of collect ion, since it is subject to final assessment and "a 
prompt refund, upon request", under Article 9.3.2.  There is nothing in Article 9.4 that exempts 
prospective normal value systems from the obligations  under Article 9.3, including with respect to 
refund procedures in respect of duties assessed on a prospective basis.
648 
5. The "Mathematical Equivalence" Argument  
296. The United States argues, as it has in previous appeals, that a prohibition of zeroing that 
applies beyond the context of average-to-average comp arisons in investigations  would be inconsistent 
with the principle of effective treaty interpre tation, because it would render redundant the second 
sentence of Article 2.4.2 including the targeted dumping methodology.649  The United States also 
questions the Appellate Body's reasoning dismis sing "the redundancy caused by mathematical 
equivalence by concluding that it may be permissibl e to apply the targeted dumping methodology to a 
subset of export transactions."650  According to the United States, nothing in the language of 
Article 2.4.2 provides for selecting a subset of transactions when conducting a targeted dumping 
analysis.  Moreover, the United States argues that the use of a subset of export transactions when 
conducting a targeted dumping analysis  would be contrary to the A ppellate Body's conclusion that 
"all" export transactions should be considered when performing weighted average-to-weighted 
average ("W-W") and weighted averag e-to-transaction ("W-T") comparisons.651 
297. The W-T comparison methodology in the second sentence of Article 2.4.2 is an exception to 
the two comparison methodologies provided in the fi rst sentence, which shall "normally" be used to 
establish the "margins of dumping".652  As the Appellate Body has said, "[b]eing an exception, the 
                                                      
648It is true that in a prospective normal value syst em individual export transactions at prices less than 
normal value can attract liability for payment of anti-dumping duties, regardless of whether prices of other 
export transactions exceed normal value.   Similarly, under its retrospective system of duty collection, the United 
States is free to assess duty liability on a transaction-sp ecific basis, but the total amount of anti-dumping duties 
that are levied must not exceed the exporters' or foreign producers' margins of dumping. (See Appellate Body 
Report, US – Zeroing (Japan) , paras. 161 and 162) 
649United States' other appellant's submission, paras. 100-102. 
650United States' other appellant's submission, para. 105 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 135). 
651United States' other appellant's submission, para. 108. 
652The second sentence of Article 2.4.2 reads: 
A normal value established on a weig hted average basis may be compared 
to prices of individual export transactions if the authorities find a pattern of 
export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences 
cannot be taken into account appropriatel y by the use of a weighted average-
to-weighted average or transac tion-to-transaction comparison.  WT/DS350/AB/R 
 Page 117 
 
 
comparison methodology in the second sentence of Ar ticle 2.4.2 (weighted average-to-transaction) 
alone cannot determine the interpre tation of the two methodologies provided in the first sentence, that 
is, transaction-to-transaction and weig hted average-to-weighted average."653  Moreover, it could be 
argued, in reverse, that permitting zeroing under th e first sentence of Article 2.4.2 would enable 
investigating authorities to capture pricing patte rns constituting "targeted dumping", thus rendering 
the third comparison methodology inutile .654 
298. In any event, the fact that, under certain circumstances, the W-T comparison methodology 
could produce results that are equivalent to t hose obtained through the application of the W-W 
comparison methodology is insufficient to conclude  that the second sentence of Article 2.4.2 is 
thereby rendered ineffective.655  Therefore, mathematical equivale nce is inconclusive as to whether a 
transaction-specific or product-wide definition of dumping is required. 
6. Historical Background  
299.  The United States argues that the concept of dumping has been historically understood to 
apply to individual transactions.  In support of its  contention, the United States points to various 
materials, including the 1960 Group of Experts Re port.  The Group of Experts concluded that the 
"'ideal method' for applying anti-dumping duties 'was  to make a determination [...] of both dumping 
and material injury in respect of each si ngle importation of the product concerned.'"656  According to 
the United States, the Appellate Body has previo usly misapprehended the relevance of the 1960 
Group of Experts Report for purposes of interpreting Article VI of the GATT 1947.  In particular, the United States argues that the Appellate Body has "f ailed to explain why the fact that a particular 
system for determining injury is administratively im practicable leads to the conclusion that Members, 
when negotiating the Tokyo Round [Anti-Dumping] Code or the Uruguay Round [ Anti-Dumping 
Agreement ] necessarily agreed to a completely diffe rent concept of calculating a margin of 
dumping, i.e., one that has no meaning in relation to individual transactions."
657 
                                                      
653Appellate Body Report, US – Softwood Lumber V (Article  21.5 – Canada) , para. 97. 
654Appellate Body Report, US – Zeroing (Japan) , para. 133 (original emphasis) (quoting Appellate 
Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 100. 
655See Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 99.  
656United States' other appellant's submission, para. 76 (quoting 1960 Group of Experts Report, 
para. 8).  We note that the 1960 Group of Experts Report states that, although the ideal method to determine 
dumping and injury was in respect of each single importation of the product concerned, this "was clearly impracticable, particularly as regards injury". (1960 Group of Experts Report, para. 8)  As the Appellate Body 
said, in US – Softwood Lumber V (Article 21.5 – Canada) , the "fact that making a determination of dumping and 
injury for each importation was not considered practical could also be seen as implying that the Group of Experts did not, in fact, endorse transaction-specific determinations of dumping." (Appellate Body Report, US – 
Softwood Lumber V (Article 21.5 – Canada) , para. 119 and footnote 197 thereto)  
657United States' other appellant's submission, para. 78. WT/DS350/AB/R 
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300. In US – Stainless Steel (Mexico) , the Appellate Body did not reason in the way the United 
States suggests.  Rather, the Appellate Body said that the 1960 Group of Experts Report "did not 
resolve the issue of whether the negotiators of the Anti-Dumping Agreement intended to prohibit 
zeroing".
658  The Appellate Body added that, "even if  it were to assume that zeroing was permitted 
under Article VI of the GATT 1947, Article VI of  the GATT 1994 has to be interpreted now in 
conjunction with the relevant provisions of the Anti-Dumping Agreement , such as Articles 2.1, 2.4, 
2.4.2, and 9.3."659   
301.  The United States also refers to two GATT panel reports that dealt with the issue of 
zeroing660, and several proposals submitted during the Uruguay Round661, which allegedly 
demonstrate that the negotiators were not able to agree on a general prohibition of zeroing.662  The 
United States adds that the text of Article VI  of the GATT 1947 was not modified during the Uruguay 
Round.  According to the United States, it can be inferred, from the absence of a change in language 
"that the drafters intended no change in meaning."663 
302. The historical materials referred to by the United States were examined by the Appellate 
Body in the appeals in US – Softwood Lumber V (Article 21.5 – Canada) and US – Stainless Steel 
(Mexico) .  The Appellate Body observed in the latter case that: 
[t]he Panel Reports in EC – Audio Cassettes  (unadopted) and EEC – 
Cotton Yarn (adopted), referred to by the United States, examined the 
issue of zeroing under the provisions of the  Tokyo Round Anti-
Dumping Code .  The relevance of these panel reports is diminished 
by the fact that the plurilateral Tokyo Round Anti-Dumping Code was 
legally separate from the GATT 1947 and has, in any event, been terminated.  This Code was not in corporated into the WTO covered 
agreements and, furthermore, it c ontained provisions that were less 
detailed than those in the Anti-Dumping Agreement .  ...  Therefore, 
whatever the legal status of zeroing under the Tokyo Round Anti-
Dumping Code , it is of little relevance for the interpretation of 
differently phrased or new provisions of the Anti-Dumping 
Agreement .
664 
303. The Appellate Body further noted that the ne gotiating proposals referred to by the United 
States reflected the positions of only some, but not a ll, of the negotiating parties.  Thus, the Appellate
                                                      
658Appellate Body Report, US – Stainless Steel (Mexico) , para. 131. 
659Appellate Body Report, US – Stainless Steel (Mexico) , para. 131. 
660United States' other appellant's submission, para. 79 (referring to GATT Panel Report, EC – Audio 
Cassettes , ADP/136, 28 April 1995, unadopted;  and GATT Panel Report, EEC – Cotton Yarn , 
adopted 30 October 1995, BISD 42S/17). 
661See United States' other appellant's submission, footnote 87 to para. 79.  
662United States' other appellant's submission, para. 79. 
663United States' other appellant's submission, para. 79. 
664Appellate Body Report, US – Stainless Steel (Mexico) , para. 132.  WT/DS350/AB/R 
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Body was not persuaded that the historical ma terials referred to by the United States provided 
guidance as to whether simple zeroing is permissible under Article 9.3 of the Anti-Dumping 
Agreement .665  Nor are we. 
D. Concurring Opinion 
304. One Member of the Division wishes to make the following statement in relation to 
section V.C.2. 
305. Over a period of time, successive panels and the Appellate Body have engaged in a very 
considerable interpretative enterp rise to determine whether the Anti-Dumping Agreement  and 
Article VI of the GATT 1994 prohibit the use of zeroing.   At the heart of the debate is a contestation 
as to the correct interpretation of the concept of  dumping.  The Appellate Body has interpreted 
dumping to be an exporter-specific concept, requiri ng that a determination be made for the product 
under consideration.  By contrast, successive panels have found that dumping is permissibly 
determined at the level of individual export transacti ons.  To resolve this difference, the text, context, 
and object and purpose have been carefully scru tinized, as well as supplementary means of treaty 
interpretation.  Each interpretation has found support in different places.  These interpretative 
exercises have not lacked for hermeneutic ingenuity , and each has generated its own puzzles:  witness 
the question of mathematical equivalence and the consequential issue of textual redundancy.666 
306. This debate at once demonstrates the robustness of the WTO's system of dispute settlement, 
but also its limits.  The interpretation of the cove red agreements requires scrupulous adherence to the 
disciplines of the customary rules of interpretation of public international law.  Those disciplines are 
directed towards arriving at a coherent and harmoni ous interpretation to develop an answer to an 
interpretative problem and thereby provide certainty as to the rights and obligations of the parties.  
Variability, contradiction, and uncertainty stalk the interpretative enterprise, but they are the 
hallmarks of its failure, not its success.  Just as the in terpreter of a treaty strives for coherence, there is 
an inevitable recognition that a treaty bears the imprin t of many hands.  And what is left behind is a 
text, sometimes negotiated to a point where an ag reement to regulate a matter could only be reached 
on the basis of constructive ambiguity, carrying both the hopes and fears of the parties.  Interpretation 
is an endeavour to discern order, notwithstanding th ese infirmities, without adding to or diminishing 
the rights and obligations of the parties. 
307. Article 2.1 of the Anti-Dumping Agreement  illustrates this problem.  Nothing could be more
                                                      
665See Appellate Body Report, US – Stainless Steel (Mexico) , para. 130. 
666See supra , paras. 297 and 298. WT/DS350/AB/R 
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important than the definition of the concept of " dumping".  It is foundational and applies throughout 
the Agreement, as the clear wording of Article 2. 1 makes plain.  It cannot have variable or 
contradictory meanings, for that would infect the en tire Agreement.  Yet the definition is cast at a high 
level of generality.  The definition makes no attri bution of agency;  it does not say who introduces a 
product into the commerce of another country.  Artic le 2.1 might so easily have included the words 
"by an exporter", but it does not.  So too, the defi nition might have referred to the product as a whole, 
and not simply a product.  The definition is inchoate, and thus it must be interpreted. 
308. The Appellate Body has found contextual suppor t for its interpretation of "dumping" as a 
product-wide and exporter-specific concept by  reference to other provisions in the Anti-Dumping 
Agreement .  In particular, the Appellate Body has emph asized the significance of Articles 2.4, 2.4.2, 
5.8, 6.10, 9.5, and 3.1 and concluded that the cumulative contextual force of these provisions is 
dispositive of the meaning attaching to the concep t of "dumping", and excludes an interpretation of 
dumping that is transaction-specific. 
309. There can be little doubt that the Anti-Dumping Agreement  requires aggregation.  In 
Article 6.10, an individual margin of dumping must be determined for each known exporter.  
Article 3.1 requires an assessment of the volume of dumped imports and their effect.  Save for the 
most exceptional case where an importation consists only of a single transaction (for example, the importation of a large piece of capital equipment), this is an exercise that requires a determination by taking into account the entire volume of dum ped imports.  Under Article 5.8, a de minimis  assessment 
could not be made with respect to an individua l export transaction;  and Article 9.5 requires a 
determination of individual margins of dumping fo r any exporters who have  not exported the product 
during the period of investigation. 
310. While aggregation is an unavoidable requirement of the Anti-Dumping Agreement , these 
provisions are not clear as to what it is that mu st be aggregated.  Does aggregation require the 
aggregation of all comparison results, positive and ne gative, or does it suffice to aggregate only those 
comparison results that are positive, having consider ed all transactions and determined which are 
dumped and which are not.  The Appellate Body has f ound that aggregation must give equal weight to 
all comparison results if the exercise is to be fair and arrive at a determination for the product as a 
whole;  successive panels have found no such re quirement, save where the first methodology in 
Article 2.4.2 refers in express terms to all comparable export transactions. 
311. The interpretative endeavour has ranged far a nd wide.  The Appellate Body has emphasized 
that dumping is an exporter-specific concept.  Pa nels have pointed out that the liability for anti-
dumping duties rests upon importers.  The Appellate Bo dy views its interpretation as one that respects  WT/DS350/AB/R 
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the differences in the prospective and retrospec tive systems of duty assessment;  its critics think 
otherwise. 
312. There is little point in further rehearsing the fine  points of these interpretations.  In my view, 
there is every reason to survey this debate with humility.  There are arguments of substance made on 
both sides;  but one issue is unavoidable.  In matter s of adjudication, there must be an end to every 
great debate.  The Appellate Body exists to clarif y the meaning of the covered agreements.  On the 
question of zeroing it has spoken definitively. Its decisions have been adopted by the DSB.  The 
membership of the WTO is entitled to rely upon  these outcomes.  Whatever the difficulty of 
interpreting the meaning of "dumping", it cannot b ear a meaning that is both exporter-specific and 
transaction-specific.  We have sought to elucidat e the notion of permissibility in the second sentence 
of Article 17(6)(ii).  The range of meanings that  may constitute a permissible interpretation does not 
encompass meanings of such wide variability, and even contradiction, so as to accommodate the two 
rival interpretations.  One must prevail.  The Appe llate Body has decided the matter.  At a point in 
every debate, there comes a time when it is more im portant for the system of dispute resolution to 
have a definitive outcome, than further to pick ove r the entrails of battles past.  With respect to 
zeroing, that time has come. 
313. For these reasons, I concur in the decision r eached by the Division in section E that the 
United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 
of the GATT 1994 by using simple zeroing in periodic reviews.  
E. Conclusion on the European Communities' Claim under Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 
314. As noted above, Article 9.3.1 of the Anti-Dumping Agreement  is subject to the overarching 
requirement in Article 9.3 that the amount of anti-dumping duty "shall not exceed the margin of 
dumping as established under Article 2" of that Agre ement.  Also as noted above, under Article VI:2 
of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement , the margin of dumping 
established for an exporter in accordance with Article 2 operates as a ceiling for the total amount of 
anti-dumping duties that can be levied on the entries of the subject merchandise from that exporter.  We see no basis in Article VI:2 of the GATT 1994 or in Articles 2 and 9.3 of the Anti-Dumping 
Agreement  for disregarding the results of comparisons where the export price exceeds the normal 
value. 
315. When applying "simple zeroing" in periodic reviews, the USDOC compares the prices of 
individual export transactions against monthly wei ghted average normal values, and disregards the 
amounts by which the export prices exceed the m onthly weighted average normal values, when WT/DS350/AB/R 
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aggregating the results of the comparisons to cal culate the going-forward cash deposit rate for the 
exporter and the duty assessment rate for the importer concerned.  In this way, simple zeroing results 
in the levy of an amount of anti-dumping duty that exceeds an exporter's margin of dumping, which, 
under Article 9.3 of the Anti-Dumping Agreement , operates as the ceiling for the amount of anti-
dumping duty that can be levied in respect of the sales made by an exporter. 
316. In the light of the above, we uphold
 the Panel's finding that the United States acted 
inconsistently with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 by 
applying simple zeroing in 29 periodic reviews. 
317. In our analysis, we have been mindful of  the provisions of Article 17.6(ii) of the Anti-
Dumping Agreement .  The analysis offered above, applying th e customary rules of interpretation of 
public international law, does not allow for confli cting interpretations.  We have found, by the 
application of those rules, that zeroing is inconsistent  with Article 9.3.  A holding that zeroing is also 
consistent with Article 9.3 would be  flatly contradictory.  Such contradiction would be repugnant to 
the customary rules of treaty interpretation referre d to in the first sentence of Article 17.6(ii).  
Consequently, it is not a permissible interpretati on within the meaning of Article 17.6(ii), second 
sentence. 
VI. The Seven Periodic Reviews 
318. We now turn to consider the European Commun ities' claim that the Panel erred in finding 
that, with respect to seven of the periodic re views challenged by the European Communities, the 
European Communities had not shown that the simple zeroing methodology was used.667   
A. Proceedings Before the Panel and the Panel's Findings 
319. The European Communities submitted, together with  its first written submission to the Panel, 
a copy of the Issues and Decision Memorandum is sued by the USDOC in connection with 30 of 
the 37 periodic reviews that the European Commun ities challenged.  The United States agreed that 
these memoranda demonstrated that "simple zeroing" was used in the relevant 30 reviews.668  Asked 
                                                      
667Panel Report, para. 7.158.  The seven periodic reviews at issue are:  Steel Concrete Reinforcing Bars 
from Latvia  (Case I – No. 3) (Panel Exhibit EC-35);  Stainless Steel Bar from France  (Case V – No. 20) (Panel 
Exhibit EC-47);  Stainless Steel Bar from France  (Case V – No. 21) (Panel Exhibit EC-48);  Stainless Steel Bar 
from Germany  (Case IX – No. 33) (Panel Exhibit EC-57);  Stainless Steel Bar from Germany  (Case IX – 
No. 34) (Panel Exhibit EC-58);  Stainless Steel Bar from Italy  (Case XI – No. 39) (Pan el Exhibit EC-62);  and 
Certain Pasta from Italy  (Case XIII – No. 43) (Panel Exhibit EC-65). 
668Panel Report, para. 7.145.  One of these 30 periodic reviews was a preliminary determination that the 
Panel had found not to be within its terms of reference.  (Panel Report, para. 7.77)  Accordingly, the Panel's 
ultimate finding regarding the use of zeroing applied only with respect to 29 of the periodic reviews challenged 
by the European Communities. (Panel Report, para. 8.1(e))  WT/DS350/AB/R 
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by the Panel why such memoranda had not been su bmitted for the remaining seven periodic reviews, 
the European Communities responded that, unlike th e memoranda provided in connection with the 
other 30 periodic reviews, those pertaining to th e seven reviews "did not discuss the use of zeroing 
methodologies in the margin calculation".669  The European Communities also submitted, together 
with its first written submission to the Panel, the Federal Register  Notice for each review containing 
the USDOC's final periodic review results.  Like  the Issues and Decision Memorandum for each of 
these reviews, the Federal Register  Notice does not mention whether zeroing was applied in arriving 
at the final results.670  In addition, the European Commun ities supplied documentation in connection 
with five of the seven periodic reviews at issue,  consisting of printouts of the margin calculation 
program that the USDOC allegedly used in each re view, and certain tables purportedly showing what 
the results of the margin calculations w ould be with and without the use of zeroing.671 
320. The Panel assessed the evidence submitted by  the European Communities in separate 
paragraphs corresponding to each of the seven periodic reviews at issue.   
321. As regards the periodic review in Steel Concrete Reinforcing Bars from Latvia (Case I – 
No. 3), the Panel concluded that none of the doc uments submitted by the European Communities, 
other than the Federal Register  Notice and the Issues and Decision Memorandum, "were issued by the 
USDOC during the review at issue".672  The Panel also found that the "relevant parts of the 
programmes that were allegedly used in the revi ew at issue contain certain computer commands 
which do not necessarily show that the simple ze roing methodology was used by the USDOC", and 
did not consider "that tables that allegedly contai n results with and without zeroing necessarily show 
that simple zeroing was actually used  in the periodic review at issue".673 
322. With respect to the two reviews in Stainless Steel Bar from Germany (Case IX – Nos. 33 
and 34), the Panel also concluded that certain doc uments submitted by the European Communities, 
other than the Federal Register  Notice and the Issues and Decision Memorandum, "were not 
generated by the USDOC during the review at issue".674  For the periodic review covering the period 
from 1 March 2004 to 28 February 2005 (No. 33), the Panel found that it was not "readily 
discernable" from the margin calculation programs "t hat the simple zeroing methodology was used in 
this periodic review".675  For the periodic review covering the period from 2 August 2001 
                                                      
669European Communities' response to Panel Question 1(c) following the second meeting.  See also 
Panel Report, para. 7.146. 
670Panel Report, paras. 7.151-7.157. 
671Panel Report, paras. 7.151 and 7.154-7.157.  
672Panel Report, para. 7.151.   
673Panel Report, para. 7.151.  
674Panel Report, paras. 7.154 and 7.155.   
675Panel Report, para. 7.154.  WT/DS350/AB/R 
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to 28 February 2003 (No. 34), the Panel did not indicate whether the margin calculation program 
evidence was generated by the USDOC
676, or whether it was able to determine from that evidence 
whether simple zeroing was used. 
323. In the case of the two reviews in Stainless Steel Bar from Italy  (Case XI – No. 39) and 
Certain Pasta from Italy (Case XIII – No. 43), the Panel concluded that the calculation tables 
submitted by the European Communities were "not produced by the USDOC".677  With respect to 
Certain Pasta from Italy , the Panel also found that it was not "readily discernable from such tables 
that simple zeroing was used".678  The Panel did not indicate for either of these reviews whether the 
margin calculation program evidence was generated by the USDOC679, or whether it was able to 
determine from that evidence whether simple zeroing was used. 
324. As regards the two periodic reviews in Stainless Steel Bar from France (Case V – Nos. 20 
and 21), the European Communities submitted evidence for each review consisting of the applicable 
Federal Register  Notice and Issues and Decision Memorandum.  The Panel found that neither of these 
documents demonstrated that simple zeroing was used in these reviews.680 
325. During the interim review, the European Communities offered comments to the Panel 
pertaining to all seven periodic reviews, along w ith case-specific comments addressing the evidence it 
submitted in connection with five of the seven re views (that is, those other than the two reviews 
involving Stainless Steel Bar from France ).681  The European Communities argued that a Notice 
published in the Federal Register  in December 2006 (the "USDOC December 2006 Notice")682 
created a presumption that simple zeroing was used in the seven reviews at issue.   In that Notice, the 
USDOC announced that it would no longer make W- W comparisons of export price and normal value 
in original investigations without providing off sets for non-dumped comparison results, but that it was 
not modifying any other comparison methodology, or any other segment of an anti-dumping proceeding.
683  Because the periodic reviews at issue in th is dispute were conducted prior to issuance 
of the Notice, the European Communities asserts, the Panel should have drawn the conclusion that 
simple zeroing was used in these reviews.684  Noting that the USDOC December 2006 Notice "makes
                                                      
676Panel Report, para. 7.155 (finding only that the tables showing margin calculations with and without 
zeroing were not generated by the USDOC).  
677Panel Report, paras. 7.156 and 7.157.   
678Panel Report, para. 7.157. 
679Panel Report, paras. 7.156 and 7.157 (finding only that the tables showing margin calculations with 
and without zeroing were not generated by the USDOC).   
680Panel Report, paras. 7.152 and 7.153.   
681Panel Report, para. 6.5. 
682See supra , footnote 92.    
683Panel Report, para. 6.6.  
684Panel Report, paras. 6.7 and 6.8.  WT/DS350/AB/R 
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no specific reference to periodic reviews and the me thodologies that may be used in such reviews", 
the Panel found that the statement in the USDO C Notice was "too broad to support the [European 
Communities'] argument that the USDOC used simp le zeroing in all periodic reviews carried out 
before the effective date of the policy change at issue".685 
326. The European Communities also argued before th e Panel that, given the various WTO rulings 
against the United States' use of the zeroing meth odology, it should not be disputed that simple 
zeroing was used in the seven periodic reviews at issue.686  The Panel disagreed with the European 
Communities.  The Panel considered that the existe nce of prior adverse rulings regarding the use of 
zeroing did not discharge the European Communities' burden of proving that simple zeroing was used in the periodic reviews at issue, and that "every di spute stands on its own merits" even if it concerns 
"the same measure that is at issue in these proceedings".
687 
327. The European Communities also pointed to th e margin calculation programs and calculation 
tables that had been provided and argued that these do cuments, when read together, show that simple 
zeroing was used in each of the periodic reviews at issue.688  The United States maintained that, 
because the calculation tables were not generated by the USDOC, the United States could not confirm 
their accuracy, and they therefore do not show that zeroing was applied in the periodic reviews at 
issue.689  The United States also asserted that there is no such thing as a "standard computer 
programme" that requires zeroing in periodic reviews,  and therefore called upon the Panel to reject the 
European Communities' arguments.690  After considering the comments of the European 
Communities, the Panel found no reason to change  its conclusion "that the European Communities 
failed to show prima facie  that the USDOC used simple zeroing in such reviews".691 
328. The Panel also addressed arguments of the European Communities that it had no further 
documentation available to it, and that it was therefore for the United States to rebut the prima facie 
case made out by the European Communities.  Remarking that the European Communities must 
submit evidence of the underlying factual assertion th at the United States used  simple zeroing in the 
periodic reviews at issue, the Panel found that  the European Communities had not done so.692  
                                                      
685Panel Report, para. 6.9. 
686Panel Report, para. 6.11. 
687Panel Report, para. 6.11. 
688Panel Report, paras. 6.13-6.16.  
689Panel Report, para. 6.17. 
690Panel Report, para. 6.17.  
691Panel Report, para. 6.18. 
692Panel Report, para. 6.20. WT/DS350/AB/R 
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Accordingly, the Panel found that it "[could not] expect the United States to rebut a prima facie  case 
that has not been made by the European Communities".
693 
329. Finally, the Panel addressed the contention of the European Communities that the United 
States was withholding relevant information, and th at it was incumbent on the Panel to request such 
information of the United States.  The Panel found that the European Communities had not made a request under Article 13 of the DSU that the Panel seek such information from the United States.  The 
Panel made no representations as to whether such a re quest would have been granted, but stated that, 
in the absence of a request for information from the United States, the Panel saw "no reason why the 
United States should be expected to rebut a fact ual assertion unsupported by relevant evidence from 
the party making the assertion".
694  The Panel also remarked that it considered it "inappropriate for a 
panel to exercise its authority to seek information based on its own judgement as to what information 
is necessary for a party to prove its case, as opposed to seeking information in order to elucidate its 
understanding of the facts and issues in the dispute before it."695 
B. Article 11 of the DSU 
330. The European Communities claims that the Pane l committed certain factual and legal errors 
in concluding that the European Communities had not  shown that simple zeroi ng was used in seven of 
the periodic reviews at issue.696  The European Communities principally contends that the Panel acted 
inconsistently with its obliga tions under Article 11 of the DSU "by misunderstanding, ignoring or 
misinterpreting" the evidence produced by the Eu ropean Communities, and "by failing to draw the 
necessary inferences" from th e evidence in the record.697  The European Communities maintains that 
it established a prima facie  case and that the " totality of facts  contained in the record"698 demonstrate 
that the United States applied simple zeroing to these seven periodic reviews. 
331. Article 11 of the DSU requires a panel to make  "an objective assessment of the matter before 
it, including an objective assessment of the facts of the case".  The Appellate Body has explained that 
panels enjoy a certain margin of discretion under Article 11 of the DSU in assessing the credibility 
and weight to be ascribed to a given piece of evidence699, and that it will "not interfere lightly"700 with
                                                      
693Panel Report, para. 6.20.  
694Panel Report, para. 6.20. 
695Panel Report, footnote 20 to para. 6.20. 
696European Communities' appellant's submission, para. 7. 
697European Communities' appellant's submission, para. 182.   
698European Communities' appellant's submission, para. 182. (original emphasis) 
699Appellate Body Report, EC – Hormones , para. 132;  and Appellate Body Report, EC – Sardines , 
para. 299. 
700Appellate Body Report, US – Carbon Steel , para. 142 (quoting Appellate Body Report, US –  Wheat 
Gluten , para. 151).  WT/DS350/AB/R 
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that discretion.  At the same time, the Appellate Body has stated that Article 11 requires panels "to 
take account of the evidence put before them and forb ids them to wilfully disregard or distort such 
evidence."701  In carrying out its mandate under Article 11, "a panel has the duty to examine and 
consider all the evidence before it, not just the ev idence submitted by one or the other party, and to 
evaluate the relevance and proba tive force of each piece thereof."702  Article 11 requires a panel to 
consider evidence before it in its totality, whic h includes consideration of submitted evidence in 
relation to other evidence.  A particular piece of ev idence, even if not suffici ent by itself to establish 
an asserted fact or claim, may contribute to estab lishing that fact or claim when considered in 
conjunction with other pieces of evidence.  We also note, in relation to the qu estion of the totality of 
the evidence and the burden of proof, the requi rement that a complaining party establish a prima facie  
case in WTO dispute settlement.  As the Appellate Body has explained, "a prima facie  case is one 
which, in the absence of effective refutation by th e defending party, requires a panel, as a matter of 
law, to rule in favour of the complaining party presenting the prima facie  case."703 
332. We turn first to examine the Panel's approach to the evidence.  For each of the seven periodic 
reviews at issue, the Eur opean Communities supplied the Federal Register  Notice containing the 
USDOC's final periodic review results, and the Issues and Decision Memorandum issued by the 
USDOC and referred to in the Federal Register  Notice.  As the Panel notes, neither the Federal 
Register Notice, nor the referenced Issues and Decision Memorandum, mentions whether zeroing was 
applied in arriving at the final results.704  The European Communities does not argue on appeal that 
these documents mention the use of zeroing in peri odic reviews.  In connection with five of the 
periodic reviews at issue—that is, those other than the two reviews in Stainless Steel Bar from France 
(Case V – Nos. 20 and 21)—the European Communities also submitted two types of additional evidence specific to those reviews, consisting of pr intouts of the margin calculation program that the 
USDOC allegedly used in each review, and certain  tables purportedly showing margin calculation 
results that reflect zeroing, and what those results would have been without the use of zeroing.   
333. The European Communities also refers on appeal to facts in the record from which, it asserts, 
the Panel should have drawn inferences that si mple zeroing was used.  The European Communities 
points to "the extensive list of adopted DSB re ports ruling against simple zeroing" in periodic 
reviews, and argues that those rulings established the use of simple zeroing as a rule or norm of 
                                                     
 
701Appellate Body Report, US – Carbon Steel , para. 142.  See also Appellate Body Report, EC – 
Hormones , para. 133. 
702Appellate Body Report, Korea – Dairy , para. 137.   
703Appellate Body Report, EC – Hormones , para. 104. 
704Panel Report, paras. 7.151-7.157. WT/DS350/AB/R 
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general and prospective application.
705  The European Communities also  refers to USDOC statements 
in the Issues and Decision Memoranda in other periodic reviews acknowledging the use of simple 
zeroing in periodic reviews, and the USDOC December 2006 Notice announcing that, apart from 
eliminating zeroing in W-W comparisons in origin al investigations, the USDOC was not modifying 
any other comparison methodologies for dumping determinations or any other segment of an anti-dumping proceeding.  The European Communities ass erts that the Panel should have drawn the 
conclusion from these statements that simple zeroing was used in the periodic re views at issue in this 
dispute.
706  Finally, the European Communities argues that "the fact that the United States could  show 
that zeroing was not used in the specific administrative reviews ... but did not do so  should have 
allowed the Panel to infer that zeroing was actually used."707 
334. In its findings regarding the seven periodic revi ews, the Panel evaluated individual pieces of 
case-specific evidence submitted by th e European Communities.  In connection with its consideration 
of the periodic review in  Steel Concrete Reinforcing Bars from Latvia (Case I – No. 3), for example, 
we note that the Panel referred in two instances to  whether particular pieces of evidence "necessarily 
show" that simple zeroing was used.  The Panel stat ed that certain computer commands in the margin 
calculation programs that were purportedly used in th e review at issue "do not necessarily show that 
the simple zeroing methodology was used by the USDOC".708  The Panel also added that the 
calculation tables allegedly showing periodic revi ew results with and without zeroing do not 
"necessarily show that simple zeroing was actually  used in the periodic review at issue".709   
335. The European Communities argues that the Panel applied an "unreasonable burden of proof in 
this case"710 because it required "evidence 'necessarily showing' (i.e., without any trace of doubt) that 
zeroing was 'actually used' in the seven administrative reviews at issue".711  If evidence "necessarily 
showing" a particular fact were required, th is would suggest that the evidence must in no 
circumstance permit of a conclusion other than  the existence of that fact .  We agree that such a 
standard is more stringent than the assessment of whether the evidence meets the required burden of 
                                                      
705European Communities' appellant's submission, para. 167.  The European Communities observes 
that, with respect to the periodic reviews in  Stainless Steel Bar from France (Case V – Nos. 20 and 21), the final 
periodic review results preceded the issuance of the panel and Appellate Body reports in US – Zeroing (Japan) .  
(European Communities' appellant's submission, paras. 169 and 181) 
706European Communities' appellant's submission, paras. 171 and 174. 
707European Communities' appellant's submission, footnote 211 to para. 177. (original emphasis) 
708Panel Report, para. 7.151. 
709Panel Report, para. 7.151.  
710European Communities' appellant's submission, para. 184. 
711European Communities' appellant's submission, para. 197.  The European Communities refers to this 
argument on appeal as a "separate claim". ( Ibid., para. 184)  While we rec ognize a distinction between the 
standard of proof and the nature and scope of proof required to meet that standard, we consider the proper 
application of both to fall within a pane l's duties under Article 11 of the DSU.  WT/DS350/AB/R 
 Page 129 
 
 
proof.712  We note, however, that the Panel may not have required that evidence "necessarily show" 
the existence of simple zeroing for the other periodic re views;  in those reviews, the Panel stated that 
it was not "readily discernable"713 from particular documents that simple zeroing was used, or that 
certain evidence did not "demonstrate" or "show" that simple zeroing was used.714   
336. However, even if the Panel did not in all cases require that the European Communities 
provide evidence "necessarily showing" that simple zeroing was used, we remain concerned by the 
Panel's approach to the evidence, in which it ass essed whether specific pieces of evidence, taken 
alone, proved the use of simple zero ing, without considering that evidence in relation to other factual 
evidence.  As we noted above, a panel has a duty un der Article 11 of the DSU to evaluate evidence in 
its totality, by which we mean the duty to weigh colle ctively all of the evidence and in relation to each 
other, even if no piece of evidence is by itself dete rminative of an asserted fact or claim.  In the 
Panel's consideration of the periodic review in Steel Concrete Reinforcing Bars from Latvia (Case I – 
No. 3), we note that the Panel made the follow ing successive statements:  (1) the final results 
published in the Federal Register  "do not mention whether simple zeroing was used";  (2) the margin 
calculation programs "do not necessarily show that the simple zeroing methodology was 
used";  (3) the tables containing results with and w ithout zeroing do not "necessarily show that simple 
zeroing was actually used";  and (4) the Issues and Decision Memorandum "does not mention whether 
simple zeroing was applied".715  On the basis of these statements, the Panel concluded "that the 
European Communities has failed to demonstrate as a matter of fact that simple zeroing was used by 
the USDOC in this periodic review."716  The Panel applied a similar approach to the other periodic 
reviews at issue, referring to individual pieces of evidence that do not "demonstrate" or "show" that 
simple zeroing was used, and then concluding that  the European Communities had therefore failed to 
demonstrate that simple zeroing was used by the USDOC in that periodic review.717 
337. In our view, the Panel's reasoning reflects that it segregated and analyzed individual pieces of 
evidence in order to determine whether any of the pieces, by itself, proved the existence of simple 
zeroing.  Even if the Panel were correct in assessing the value of individual pieces of evidence, and in 
                                                      
712In US – Wool Shirts and Blouses , the Appellate Body explained that international tribunals "have 
generally and consistently accepted and applied the rule th at the party who asserts a fact, whether the claimant 
or the respondent, is responsible for providing proof thereof", and that the burden of proof "rests upon the party, 
whether complaining or defending, who asserts the affirmative of a particular claim or defence". (Appellate 
Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:1, 323, at 335)   
713Panel Report, para. 7.154 (concerning Stainless Steel Bar from Germany (Case IX – No. 33));  and 
Panel Report, para. 7.157 (concerning Certain Pasta from Italy (Case XIII – No. 43)). 
714Panel Report, paras. 7.152-7.153 (concerning Stainless Steel Bar from France (Case V – Nos. 20 
and 21));  and Panel Report, paras. 7.155 and 7.156 (concerning Stainless Steel Bar from Germany (Case IX – 
No. 34) and  Stainless Steel Bar from Italy (Case XI – No. 39)). 
715Panel Report, para. 7.151. 
716Panel Report, para. 7.151.  
717Panel Report, paras. 7.152-7.157. WT/DS350/AB/R 
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concluding that no single piece of evidence demonstrated an asserted fact at issue, it was not proper 
for it to have foreclosed the possi bility that the consideration of a ll of the evidence taken together 
might be sufficient proof of that fact.  We note, in particular, the argument of the European 
Communities that, when the margin cal culation programs are considered together with  the tables 
showing detailed calculations, "the necessary co nclusion is that the evidence overwhelmingly 
corroborates the fact that the zeroing methodology was part of the measure and indeed was actually 
used."
718  The Panel referenced this argument of the European Communities, but appears not to have 
engaged in a cumulative appreciation of the evid ence.  We therefore consider that the Panel 
disregarded the significance of the submitted evidence when it failed to give consideration to that 
evidence in its totality, including evidence that, in the Panel's view, did not by itself show that simple 
zeroing was applied in a particular periodic review. 
338. We are also troubled that the Panel did not explain, with respect to all of the periodic reviews 
at issue, its rationale regarding the probative va lue of the margin calculation programs and/or 
calculation tables.  We note, for instance, that fo r two of the periodic reviews at issue, the Panel 
referred to the margin calculation programs subm itted by the European Communities, but did not 
explain whether they were probative as to the use of simple zeroing.719  While we do not consider that 
a particular piece of evidence must by itself demonstrate an asserted fact or claim, we believe the Panel's omission is notable given that it treated the evidence with respect to each of the seven periodic 
reviews in separate paragraphs of  its report, and placed such signifi cance on this evidence in the other 
periodic reviews for which such ev idence was submitted.  In another of the periodic reviews, the 
Panel did not mention that the European Communities submitted a margin calculation program, nor did it explain its assessment of  the program's probative value.
720  We agree with the Panel that "[a]n 
essential part of a panel's task under Article 11 is to explain  its objective assessment of the matter 
before it".721  In the light of its view that this case-specific evidence was crucial in establishing the 
existence of simple zeroing in the seven periodic revi ews, we consider that the Panel's explanation of 
this evidence in relation to some periodic reviews, but not others, further indicates that it disregarded 
the significance of the evidence in its totality and, in particular, that it failed to assess the probative 
value of individual pieces of eviden ce in relation to other evidence. 
                                                      
718European Communities' appellant's s ubmission, para. 136 (referring to Steel Concrete Reinforcing 
Bars from Latvia (Case I – No. 3)).  See also Panel Report, paras. 6.13-6.16. 
719Panel Report, para. 7.155 (concerning Stainless Steel Bar from Germany (Case IX – No. 34);  and 
Panel Report, para. 7.156 (concerning Stainless Steel Bar from Italy (Case XI – No. 39)).   
720Panel Report, para. 7.157 (concerning Certain Pasta from Italy (Case XIII – No. 43)).  The Panel 
also did not explain its assessment of the probative value of the calculation tables in two of the other reviews.  (Panel Report, para. 7.155 (concerning Stainless Steel Bar from Germany (Case IX – No. 34);  and Panel 
Report, para. 7.156 (concerning Stainless Steel Bar from Italy (Case XI – No. 39)).     
721Panel Report, para. 7.180. (original underlining)  WT/DS350/AB/R 
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339. The European Communities also argues that the Panel erred by disregarding evidence that, 
the Panel asserted, was not "issued", "generated",  or "produced" by the USDOC during the periodic 
review at issue.  As the European Communities e xplains, following the USDOC's final determination 
in a periodic review, the USDOC discloses to in terested parties in the proceeding the margin 
calculation programs in paper and/or electronic format.722  These programs can be preserved by 
interested parties and may, at some later date, be reproduced or printed in the same format as 
originally received from the USDOC.723  The United States does not dispute this characterization, but 
takes the position that it could not confirm the content of margin calculation programs that indicated that they had been printed or otherwise produced  by someone other than the USDOC after the final 
results were published.
724  The United States therefore argues th at, absent program logs originating 
from the USDOC, or other proof from USDOC-issued  documents, "it is not apparent from the 
evidence submitted by the [European Communities]  that zeroing was employed in the seven 
administrative review determinations in question".725  The European Communities responds that this 
is a restrictive view of what it means for docum ents to be generated by the USDOC, and that 
subsequent printouts of the margin calculation pr ograms, originally supplied by the USDOC to 
interested parties in an anti-dumping proceeding, s till reflect the margin calculations generated by the 
USDOC during the review.726   
340. Even if printouts of margin calculation program s, or the calculation tables prepared by the 
European Communities, were not issued by the US DOC during the review at issue, we question the 
significance of this for a conclusion that the doc uments submitted are not probative as evidence of 
simple zeroing in periodic reviews.  While it ma y have simplified the Panel's task if the evidence 
submitted by the European Communities had been confirmed as original USDOC documents, the 
absence of authentication does not negate the evid entiary significance of those documents.  As we 
understand it, the USDOC provides margin calculation programs at the end of anti-dumping 
proceedings to interested parties in paper and/or  electronic format, and it is from these programs that 
the original margin calculation program can be repli cated, or the underlying data can be extracted to 
produce other documents such as the calculati on tables submitted by the European Communities.727  
As the European Communities maintains, "the prin ted paper version of the margin programme is 
                                                      
722European Communities' appellant's submission, paras. 114 and 119.  The European Communities 
refers to Section III.B of Chapter 11 of the USDOC Antid umping Manual, which provides that "a full disclosure 
of all calculations, including the computer printouts and worksheets used, will be made". (Panel 
Exhibit EC-4.11, p. 25) 
723European Communities' appellant's submission, paras. 117 and 137. 
724United States' responses to questio ning at the oral hearing.  See also United States' comments to 
European Communities' response to Panel Question 1(a)  following the second meeting; and United States' 
comments to the European Communities' interim review comments, para. 7. 
725United States' appellee's submission, para. 141. 
726European Communities' responses to questioning at the oral hearing.  
727See supra , footnotes 722 and 723. WT/DS350/AB/R 
Page 132  
 
identical to the electronic version provided by [the] USDOC".
728  We also note the argument of the 
European Communities that the United States does not a llege that the printouts have been altered, or 
otherwise challenge that the content or underlyi ng data of the documents was generated by the 
USDOC.729  Accordingly, the printouts of the margin  calculation programs appear to have their 
origins in original USDOC documents, and we s ee no basis to conclude that such documentation 
differs in any material respect from the original  program.  Thus, while an authenticated USDOC 
document may have offered greater certainty as to its  content, we do not agree that this renders a 
document that has not been authenticated not probative of the fact asserted, particularly if it is produced or replicated from documents or data supplied by the USDOC.    
341. We agree with the United States that the i ssue of whether documents submitted by the 
European Communities were authen ticated as USDOC-generated appears to have been "pivotal"
730 to 
the Panel's finding regarding the seven periodic review s.  While the Panel does not explain the extent 
to which the probative value of submitted evid ence was, in its view, undermined by its non-
authentication, the fact of non-authenticati on was one of two factors, and at times the only factor, 
cited by the Panel for its conclusion that the Eur opean Communities had failed  to demonstrate the use 
of simple zeroing in particular periodic reviews.731  We therefore consider that the Panel, by insisting 
on authenticated USDOC documents to demonstrate or show the use of simple zeroing, also failed to 
make an objective assessment by allowing a challenge  to the authenticity of evidence originating from 
the USDOC, but later reproduced by interested part ies, to skew its consideration of the probative 
value of that evidence. 
342. We now turn to address the European Communitie s' arguments that the Panel erred in its 
interpretation of Article 13 of the DSU when it c oncluded that the European  Communities did not ask 
the Panel to seek detailed, transaction-specific marg in calculations from the United States, and that 
the request the European Communities made in its written response to questions from the Panel "does 
not suffice as a request to the Panel to seek speci fic factual information from the USDOC pursuant to 
its authority under Article 13".732  The European Communities requ ests the Appellate Body to find
                                                      
728European Communities' appellant's submission, para. 117. (emphasis omitted) 
729Participants' responses to questioning at the or al hearing.  See also European Communities' 
appellant's submission, paras. 117, 119, 121 and 128.   
730United States' appellee's submission, para. 140. 
731In the periodic reviews for Stainless Steel Bar from Germany (Case IX – No. 34) and Stainless Steel 
Bar from Italy (Case XI – No. 39), for instance, the Panel refers to the evidentiary value of the calculation tables 
submitted by the European Communities by noting only that they were not generated by the USDOC during the 
review at issue. (Panel Report, paras. 7.155 and 7.156)  We noted above the other "factor", namely, that the 
Panel stated that certain evidence did not necessarily show, or that it was not readily discernable, that simple 
zeroing was used in a particular review. (See supra , footnotes 708, 709 and 713)   
732European Communities' appellant's submission, para. 203 (quoting Panel Report, footnote 20 to 
para. 6.20).  WT/DS350/AB/R 
 Page 133 
 
 
that the Panel erred in its interpretation of Article 13, and to find that it would have been "appropriate" 
for the Panel, before finding against the Eur opean Communities, to seek further information 
corroborating the use of simple zeroing in the periodic reviews at issue.733  
343. Article 13 of the DSU gives panels "the right  to seek information and technical advice from 
any individual or body which it deems appropriate".  The Appellate Body has explained that this is a 
discretionary authority that panels may exercise in  seeking information "from any relevant source".734  
The Appellate Body has also explained that, while  panels have "broad authority to pose such 
questions to the parties as it deems relevant for purposes of considering the issues that are before 
it"735, such authority cannot be used "to make the case for a complaining party".736  
344. The European Communities claims it explaine d to the Panel that the USDOC does not 
disclose a complete listing of all transactions and comparisons made in each periodic review.  As a 
result, the European Communities posited to the Panel that, "should the Panel consider further 
corroboration appropriate, the Panel should request the United States to provide copies of the detailed 
margin calculations for each of the sev en administrative reviews at issue."737  We do not consider that 
the Panel acted inconsistently with Article 13 of th e DSU when it did not seek such information.  As 
noted, a panel's authority to request information under Article 13 of the DSU is discretionary, and 
there is therefore no error that can be attributed to the Panel for its conduct in respect of that Article.   
345. Article 11 of the DSU, however, regulates a panel's exercise of its discretion.  The Appellate 
Body has noted the "comprehensive nature" of a pa nel's authority under Article 13, and has affirmed 
that this authority is "indispensably necessary" to  enable a panel to discharge its duty imposed by 
Article 11.738  Moreover, the Appellate Body has undersco red the importance of a panel's investigative 
function: 
[A] panel is vested with ample a nd extensive discretionary authority 
to determine when  it needs information to resolve a dispute and what  
information it needs.  A panel may need such information before or 
after a complaining or a responding Member has established its 
complaint or defence on a prima facie  basis.  A panel may, in fact, 
need the information sought in order to evaluate evidence already before it in the course of determining whether the claiming or the 
                                                     
 
733European Communities' appellant's submission, paras. 206 and 211. 
734Appellate Body Report, Argentina – Textiles and Apparel , para. 84.  
735Appellate Body Report, US – Zeroing (EC) , para. 260. 
736Appellate Body Report, Japan – Agricultural Products II , para. 129.  
737European Communities' appellant's submission, para. 201. 
738Appellate Body Report, Japan – Agricultural Products II , para. 127 (quoting Appellate Body 
Report, US – Shrimp , paras. 104 and 106).  WT/DS350/AB/R 
Page 134  
 
responding Member, as the case  may be, has established a 
prima facie  case or defence.
739 (original emphasis) 
346. In explaining why it did not request informati on from the United States, the Panel stated not 
only that the European Communities' request was not sufficiently specific, but that it would not have been appropriate for the Panel to have  done so.  As the Panel explained: 
[W]e consider that it would be inappropriate for a panel to exercise 
its authority to seek information based on its own judgement as to 
what information is necessary for a party to prove its case, as opposed to seeking information in order to elucidate its understanding of the facts and issues in the dispute before it.
740 
347. As we have said, the Panel appears to have c onsidered that a margin calculation program, or 
other document, only established the use of simple  zeroing if it originated from the USDOC at the 
time of the review.  Once the Panel set out that standard, however, we see no indication that it got to the heart of the matter concerning the probative value of evidence before it.  For one thing, it is not 
enough for a panel to leave it to the parties to guess what proof it will require.  Moreover, while a 
panel cannot make the case for a pa rty, Article 11 requires a panel to test evidence with the parties, 
and to seek further information if necessary, in or der to determine whether the evidence satisfies a 
party's burden of proof.  As the Appellate Body h as explained, "[a] panel may, in fact, need the 
information sought in order to ev aluate evidence already before it"
741 so as to make an objective 
assessment of whether the complaining party has established a prima facie  case, regardless of whether 
a party has requested it to seek such information.  In our view, the Panel required evidence that was 
authenticated as USDOC documents, but then did not take the necessary steps to elicit from the 
parties information that might, in the words of the Panel, "elucidate its unde rstanding of the facts and 
issues in the dispute before it".  Because, however, th e Panel erred in its articulation of the applicable 
standard as to the burden of proof, and failed to c onsider the submitted evidence in its totality, we 
cannot determine whether further inquiry by the Panel pursuant to its authority, including under 
Article 13, would have yielded greater clarity as to the evidence.742   
C. Conclusion 
348. In sum, we consider that the Panel erred in  failing to examine the European Communities' 
evidence in its totality, and requiri ng, instead, that specific types of evidence, in and of themselves, 
                                                      
739Appellate Body Report, Canada – Aircraft , para. 192. 
740Panel Report, footnote 20 to para. 6.20.  
741Appellate Body Report, Canada – Aircraft , para. 192.  
742At a minimum, it would seem the Panel should have done more to engage the parties on the specific 
question of the extent to which the printouts of margin calculation programs and other documents—originating 
from the USDOC but later reproduced by interested par ties—could be relied upon by the Panel in determining 
the use of simple zeroing.  WT/DS350/AB/R 
 Page 135 
 
 
are necessary in order to establish that simple ze roing was used by the USDOC in specific periodic 
reviews.  Because of this error, the Panel coul d not properly reach a conc lusion as to whether the 
European Communities had established a prima facie  case.  We therefore find  that the Panel acted 
inconsistently with its obligation under Article 11 of the DSU to make an objective assessment of the 
matter before it, including an objective assessment of the facts of this case, when it found that the 
European Communities had not shown that simple ze roing was used in the seven periodic reviews at 
issue.  Consequently, we reverse  this finding of the Panel.   
D. Completion of the Analysis 
349. Having reversed this finding, we turn to consid er the European Communities' request that we 
complete the analysis and modify the finding "in order to conclude that the European Communities 
showed that zeroing was used".743  In previous disputes, the Appellate Body has emphasized that it 
can complete the analysis "only if the factual findi ngs by the panel, or the undisputed facts in the 
panel record" provide a sufficient basis for the Appellate Body to do so.744  Where this has not been 
the case, the Appellate Body has dec lined to complete the analysis.745   
350. For five of the periodic reviews— Steel Concrete Reinforcing Bars from Latvia (Case I – 
No. 3); Stainless Steel Bar from Germany (Case IX – No. 33);  Stainless Steel Bar from Germany 
(Case IX – No. 34);  Stainless Steel Bar from Italy (Case XI – No. 39); and Certain Pasta from Italy 
(Case XIII – No. 43)—the European Co mmunities provided the Panel with the Federal Register  
Notice and the Issues and Decision Memorandum, al ong with documentation consisting of printouts 
of the margin calculation program that the USDOC a llegedly used in each review, and certain tables 
purportedly showing margin calculations results that  reflect zeroing, and what those results would 
have been without the use of zeroing.746  We also note the European Communities' argument that 
there are several facts in the record, including findi ngs in other WTO disputes and statements by the 
United States in other proceedings, from which th e Panel should have draw n inferences that the 
zeroing methodology was applied in these periodic reviews. 
                                                      
743European Communities' appellant's submission, para. 183.  
744Appellate Body Report, US – Hot-Rolled Steel , para. 235.  See Appellate Body Report, EC – 
Hormones , para. 222 ff;  Appellate Body Report, EC – Poultry , para. 156 ff;  Appellate Body Report, Australia – 
Salmon , paras. 117 ff and 193 ff;  Appellate Body Report, US – Shrimp , para. 123 ff;  Appellate Body Report, 
Japan – Agricultural Products II , para. 112 ff;  and Appellate Body Report, EC – Asbestos , para. 133 ff.  
745See Appellate Body Report, Australia – Salmon , paras. 209 ff, 241 ff and 255;  Appellate Body 
Report, Korea – Dairy , paras. 91 ff and 102 ff;  Appellate Body Report, Canada – Autos , paras. 133 ff 
and 144 ff;  Appellate Body Report, Korea – Various Measures on Beef , para. 128 ff;  Appellate Body Report, 
EC – Asbestos , para. 78 ff;  and Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US) , 
para. 98 ff.  
746Panel Report, paras. 7.151 and 7.154-7.157.  WT/DS350/AB/R 
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351. With respect to the case-specifi c evidence for these reviews, we recall the United States' 
position that, unless it could be established that a pa rticular document was generated by the USDOC, 
the United States could not confirm its content.
747  As we noted, the United States does not argue that 
these documents were altered, and has not directly  challenged the content of these documents or the 
data on which they were based.748  We also note that the margin calculation programs contain 
information, uncontested by the parties, that i ndicates that they represen t the margin calculation 
programs used by the USDOC for the relevant periodic review.749  For the periodic review in Stainless 
Steel Bar from Germany (Case IX – No. 33), the United States submits that the evidence offered by 
the European Communities at Appendix II to Pane l Exhibit EC-57 does not consist of a margin 
calculation program.750  The European Communities submitted two additional documents before the 
Panel that purportedly reflect margin calculation prog rams used in this review, and "refer to various 
macros forming part of the macro program incl uded under Appendix II of [Panel] Exhibit EC-57 and 
which contains the zeroing code".751  As we noted above, the Eur opean Communities also prepared 
and submitted calculation tables for each of these revi ews which, it asserts, show margin calculation 
results that reflect the use of zeroing, and what those results would have been without the use of 
zeroing.   
352. As we have also noted, the United States does not contest the underlying information of these 
documents other than to say that, because they appear  to have been reproduced by interested parties 
after the periodic review at issue, the United States was not in a position to confirm them.  The 
European Communities observes that  the United States adduced no evidence or argument that it did 
not apply simple zeroing in these reviews752, and we see no evidence in the Panel record to suggest 
that the United States did not  apply simple zeroing in these reviews.  When asked at the oral hearing, 
                                                      
747United States' responses to ques tioning at the oral hearing. 
748See supra , footnote 729. 
749During questioning at the oral hearing, it was noted that the documents advanced by the European 
Communities as margin calculation programs reflect the case number for the periodic review, the covered product, the name of the foreign exporter or producer, the name of the USDOC analyst identified in the Federal 
Register  Notice, and the line of computer programming code  that indicates that simple zeroing was applied. 
(Participants' responses to questioning at the oral h earing)  The European Communities introduced an exhibit 
before the Panel that described various programming code designations that are used in margin calculation 
programs. (Panel Exhibit EC-5)  The European Communities explained that use of the programming line 
"WHERE EMARGIN GT 0" reflects the application of the simple zeroing methodology in the challenged 
periodic reviews. (European Communities' first written submission to the Panel, Panel Report, Annex A-1, 
pp. A-12 and A-43, paras. 27-28 and 184-185)  We see no indication that the significance of this line of programming code was contested between the parties in this dispute. (See United States' response to Panel 
Question 7(a) following the first meeting) 
750United States' appellee's submission, para. 147 and footnote 204 thereto. 
751European Communities' response to Panel Question 1(c) following the second meeting.  See also 
Panel Report, para. 7.154. 
752European Communities' appellant's submission, paras. 128-129 and 175-177.   WT/DS350/AB/R 
 Page 137 
 
 
the United States was not in a position to confirm wh ether or not it applied simple zeroing in the 
periodic reviews at issue.753   
353. We have carefully considered the Panel record  in its totality regarding the seven periodic 
reviews.  On the basis of the factual findings and uncontested facts in connection with five of these 
reviews—that is, Steel Concrete Reinforcing Bars from Latvia (Case I – No. 3)754;  Stainless Steel Bar 
from Germany (Case IX – No. 33)755;  Stainless Steel Bar from Germany (Case IX – No. 34)756;  
Stainless Steel Bar from Italy (Case XI – No. 39)757;  and Certain Pasta from Italy (Case XIII – 
No. 43)758—we find  that the European Communities has shown that simple zeroing was used in these 
reviews and that the United States acted inconsis tently with Article VI:2 of the GATT 1994 and 
Article 9.3 of the Anti-Dumping Agreement  by applying simple zeroing in these reviews.   
354. For the two periodic reviews concerning Stainless Steel Bar from France (Case V – Nos. 20 
and 21)759, the European Communities submitted the Federal Register  Notice and the Issues and 
Decision Memorandum relating to each case, but did not submit other case-specific evidence, consisting of either margin calculation programs or ca lculation tables, that would suggest that simple 
zeroing was used.
760  The Federal Register  Notice and the Issues and Decision Memorandum do not 
explicitly address the issue of zeroing. 
355. In its appellant's submission, the European Co mmunities argued that there are several facts in 
the record from which the Panel should have drawn inferences that the zeroing methodology was 
applied in these periodic reviews.  As we noted, the European Communities pointed to prior adopted 
reports in which the Appellate Body made "as su ch" findings that the zeroing methodology existed as 
a rule or norm of general and prospective a pplication with regard to periodic reviews.761  The United 
States was found to be "incapable of providing  a single case in which zeroing was not used".762  The 
European Communities argues that , because the United States did not provide the panel and the 
                                                      
753United States' responses to questi oning at the oral hearing.  
754Panel Exhibit EC-35. 
755Panel Exhibit EC-57. 
756Panel Exhibit EC-58. 
757Panel Exhibit EC-62. 
758Panel Exhibit EC-65. 
759Panel Exhibit EC-47;  Panel Exhibit EC-48. 
760Panel Report, paras. 7.152 and 7.153.  
761We observed above that factual findings in prior disputes are not binding in this dispute.  See supra , 
para. 190. 
762European Communities' appellant's submission, para. 169.  The European Communities similarly 
argues that the Panel failed to draw inferences from the fact that the United States "remained silent as regards 
the use of zeroing in the administrativ e reviews at issue and never said that it did not use simple zeroing". ( Ibid., 
para. 175)   WT/DS350/AB/R 
Page 138  
 
Appellate Body with evidence from the reviews at i ssue here that simple zeroing was not used, the 
Panel should have drawn the inference th at simple zeroing was in fact used.
763 
356. We also noted above the European Communities' reference to statements by the United States 
that indicate the continued application of simp le zeroing in periodic reviews.  The European 
Communities refers, for instance, to the USDOC December 2006 Notice, announcing that the United 
States would no longer use W-W zeroing in original investigations.764  As the European Communities 
argues, in reversing its policy with respect to W-W comparisons in original investigations, the 
USDOC also stated that it was not modifying any other comparison methodologies for dumping determinations or any other segment of an an ti-dumping proceeding.  The European Communities 
maintains that the Panel should have drawn the co nclusion that simple zer oing was used in such 
reviews.
765  We also note the Panel's finding that the policy change reflected in the USDOC 
December 2006 Notice does not explicitly state that  simple zeroing is used in periodic reviews.766 
357. The fact that there is no direct evidence establishing the use of simple zeroing does not 
absolve a panel from examining submitted evidence in  its totality.  We, however, come to this 
question not as the original reviewer of that eviden ce, but against the standard of whether the factual 
findings and uncontested facts on the Panel record ade quately support completion.  On that basis, we 
decide not to complete the analysis to reach a fi nding that the United States applied simple zeroing in 
these two periodic reviews.767  We emphasize that the nature and scope of the evidence that might be 
reasonably expected by an adjudicator in order to establish a fact or claim in a particular case will 
depend on a range of factors, including the type of  evidence that is made available by a Member's 
regulating authority.  Because the design and oper ation of national regulatory systems will vary, we 
believe that, in a specific case, a panel may have a sufficient basis to reach an affirmative finding
                                                      
763The European Communities observes, with respect to  Stainless Steel Bar from France (Case V – 
Nos. 20 and 21), that the final periodic review results  preceded the issuance of the panel and Appellate Body 
reports in US – Zeroing (Japan) .  (European Communities' appellant's submission, paras. 169 and 181) 
764The European Communities also argues that the Panel ignored the fact that, in 30 of the 37 periodic 
review challenged by the European Communities, the US DOC "made repeated statements supporting the use of 
simple zeroing in administrative reviews". (European Communities' appellant's submission, para. 173)  The 
European Communities maintains that, through these statements issued after the conclusion of the seven 
periodic reviews at issue in this appeal, the United States  "confirmed the existence of  'its current approach' and 
practice of using simple zeroing in administrative reviews". ( Ibid., para. 174) 
765European Communities' appellant's submission, para. 171. 
766Panel Report, para. 6.9.  By contrast, in section VI II of this Report, we refer to the fact that the 
USDOC expressly stated in the USDOC  December 2006 Notice that, prio r to the Notice, model zeroing was 
consistently used in original investigations.  
767We also note that the European Communities did not produce, for th ese two reviews, direct evidence 
to demonstrate the use of simple zeroi ng (for example, in the form of an  Issues and Decision Memorandum that 
references zeroing and/or margin calculation programs and calculation tables), whereas it did so for all of the 
other periodic reviews at issue in this dispute.     WT/DS350/AB/R 
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regarding a particular fact or claim on the basi s of inferences that can be reasonably drawn from 
circumstantial rather than direct evidence. 
VII. The European Communities' Conditional Appeals 
358. The European Communities submits what it charac terizes as two "conditional appeals".  First, 
the European Communities argues that, if the Pane l Report is construed as finding that a panel can 
invoke "cogent reasons" for departing from previous  Appellate Body rulings on the same issue of 
legal interpretation, then the European Commun ities requests the Appellate Body to "modify or 
reverse" that finding by the Panel.  Secondly, if the Appellate Body were to "modify or reverse" the 
Panel's finding that simple zeroing is inconsistent with Article VI:2 of the GATT 1994 and Article 9.3 
of the Anti-Dumping Agreement  as a result of an other appeal by the United States, then the European 
Communities requests that the Appellate Body comple te the legal analysis and find that the United 
States acted inconsistently with its obliga tions under Article VI:2 of the GATT 1994 and 
Articles 2.1, 2.4, 2.4.2, 9.3, and 11.2 of the Anti-Dumping Agreement , as well as Article XVI:4 of the 
WTO Agreement  by applying simple zeroing in the periodic reviews at issue in this dispute. 
359. The United States requests the Appellate B ody to reject the European Communities' 
conditional appeal.768  The United States alleges, first, that  the European Communities is "seeking to 
shift the burden to the Appellate Body to develop the argumentation and explanation"769 on behalf of 
the European Communities as to whet her there is a legal error.  The United States submits that, under 
the European Communities' rationale, "notices of appeal  could simply read 'if there are any errors in 
the panel report, the Appellate Body should modify or reverse accordingly'."770  Secondly, the United 
States argues that "the only conceivable basis for a claim of error would seem to be under Article 11 
of the DSU."771  However, the European Communities "has not made such a claim in its notice of 
appeal, nor has it articulated such a claim in its appellant submission".772 
360. The United States adds that the European Co mmunities "is essentially asking the Appellate 
Body to assess the consistency of the Panel Report with the Appellate Body's dicta in US – Stainless 
Steel (Mexico) ".773  However, for the United States, the Panel "was bound neither by the findings, nor 
the dicta in a prior, unrelated dispute".774  The United States further argues that "the Ministerial 
Conference and the General Council have the exclusiv e authority to adopt binding interpretations of 
                                                      
768United States' appellee's submission, para. 166.  
769United States' appellee's submission, para. 167.   
770United States' appellee's submission, para. 167.   
771United States' appellee's submission, para. 168.   
772United States' appellee's submission, para. 168.   
773United States' appellee's submission, para. 169.   
774United States' appellee's submission, para. 169.   WT/DS350/AB/R 
Page 140  
 
the covered agreements under Article  IX:2 of the WTO Agreement."
775  For the United States, treating 
prior reports as binding outside the scope of the orig inal dispute would add to the obligations of WTO 
Members, inconsistently with Articles 3.2 and 19.1 of the DSU.  On this basis, the United States 
submits that the European Co mmunities "cannot treat the statements from a prior report as 
authoritative and then ask the Appellate Body un der Article 17.6 of the DSU to assess whether the 
Panel acted consistently with them or not".776 
361. We begin by examining the European Co mmunities "conditional appeal" regarding the 
relevance of prior Appellate Body reports. 
A. The Relevance of Prior Appellate Body Reports 
362. Appellate Body reports adopted by the DSB are binding and must be unconditionally 
accepted by the parties to the particular dispute.777  The Appellate Body has also said that adopted 
panel and Appellate Body repor ts create legitimate expectations among WTO Members and, 
therefore, should be taken into account wh ere they are relevant to any dispute.778  Following the 
Appellate Body's conclusions in earlier disputes is no t only appropriate, it is what would be expected 
from panels, especially where the issues are the same.779  This is also in line with a key objective of 
the dispute settlement system to provide security  and predictability to the multilateral trading 
system.780  The Appellate Body has further explained th at adopted panel and Appellate Body reports 
become part and parcel of the acquis  of the WTO dispute settlement system and that "ensuring 
'security and predictability' in the dispute settlement  system, as contemplated in Article 3.2 of the 
DSU, implies that, absent cogent reasons, an adjudicat ory body will resolve the same legal question in 
the same way in a subsequent case."781  Moreover, referring to the hierarchical structure contemplated 
in the DSU, the Appellate Body reasoned in US – Stainless Steel (Mexico)  that the "creation of the 
Appellate Body by WTO Members to review legal interpretations develope d by panels shows that
                                                      
775United States' appellee's submission, para. 169.   
776United States' appellee's submission, para. 169.   
777See Appellate Body Report, US – Softwood Lumber V , paras. 109-112;  Appellate Body Report, US – 
Shrimp (Article 21.5 – Malaysia) , para. 97;  and Appellate Body Report, Japan – Alcoholic Beverages II , 
pp. 12-15, DSR 1996:I, 97, at 106-108.   
778Appellate Body Report, Japan – Alcoholic Beverages II , p. 14, DSR 1996:I, 97, at 108;  Appellate 
Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 109. 
779See Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188.  We further 
recall that the Appellate Body has previously explained that "the mandate of an Article 21.5 panel includes the 
task of assessing whether the measures taken to comply  with the rulings and recommendations adopted by the 
DSB in the original proceedings achie ve compliance with those rulings" and therefore "panels established under 
that provision are bound to follow the legal interpreta tion contained in the original panel and Appellate Body 
reports that were adopted by the DSB." (Appellate Body Report, US – Stainless Steel (Mexico) , footnote 309 to 
para. 158) 
780Article 3.2 of the DSU.  
781Appellate Body Report, US – Stainless Steel (Mexico) , para. 160.  WT/DS350/AB/R 
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Members recognized the importance of consistency a nd stability in the interpretation of their rights 
and obligations under th e covered agreements."782  The Appellate Body found that failure by the panel 
in that case to follow previously adopted A ppellate Body reports addressing the same issues 
undermined the development of a coherent and pred ictable body of jurisprudence clarifying Members' 
rights and obligations under the covered agreements as contemplated under the DSU.783  T h e  
Appellate Body added that:   
Clarification, as envisaged in Article 3.2 of the DSU, elucidates the 
scope and meaning of the provisions  of the covered agreements in 
accordance with customary rules of interpretation of public international law.  While the application of a provision may be regarded as confined to the cont ext in which it takes place, the 
relevance of clarification contai ned in adopted Appellate Body 
reports is not limited to the applica tion of a particular provision in a 
specific case.
784  
363. The European Communities underscores that it agrees with this reasoning of the Appellate 
Body in US – Stainless Steel (Mexico) "without reservation".785  The European Communities 
understands the Appellate Body to have found that a panel may invoke  "cogent reasons" in order to 
depart from previous panel findings; but only the Appellate Body can invoke "cogent reasons" in 
order to depart from previous Appellate Body findings.786  The European Communities reasons that 
the Appellate Body refers in US – Stainless Steel (Mexico) to "an adjudicatory body" (in the singular), 
which the European Communities takes "to mean that the phrase refers to the situation in which it is 
the same body in both the previous case and the case to be decided".787  T h a t  i s ,  " i t  r e f e r s  t o  t h e  
situation in which a panel might be called upon to r esolve the same legal issu e that it has previously 
resolved;  or the situation in which the Appellate Body might be called upon to resolve the same legal 
issue that it has already resolved."788  The European Communities understands the phrase to refer "to 
'cogent reasons" as the basis for a change in view".789   
                                                      
782Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
783Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
784Appellate Body Report, US – Stainless Steel (Mexico) , para. 161. 
785European Communities' appellant's submission, pa ra. 224 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , paras. 160-162). 
786Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this 
Report), p. 4. 
787European Communities' appellant's submission, pa ra. 225 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , para. 160). 
788European Communities' appellant's submission, pa ra. 225 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , para. 160). 
789European Communities' appellant's submission, pa ra. 225 (referring to Appellate Body Report, US – 
Stainless Steel (Mexico) , para. 160). WT/DS350/AB/R 
Page 142  
 
364. On appeal, the European Communities submits that "if the Panel Report is construed as 
finding that a panel can invoke 'cogent reasons' for departing from previous Appellate Body findings 
on the same issue of legal interpretation, then th e European Communities requests the Appellate Body 
to modify or reverse those findings by the Panel."
790  The European Communities further requests that 
the Appellate Body "complete the analysis".791  These requests, however, are conditional.  To reach 
the issues raised by the European Communities on a ppeal, we would first have  to "construe" the Panel 
Report "as finding that a panel can invoke 'cogent  reasons' for departing from previous Appellate 
Body findings on the same issue of legal interpretation."792 
365. The Panel engaged in circuitous reasoning and it is not clear whether the Panel in fact found 
that it could invoke cogent reasons to depart from previous Appellate Body rulings on the same legal 
issue.  The statement of the Panel that it "is impor tant for a panel to have cogent reasons for any 
decision it reaches", regardless of "whether or not  the panel follows such reports", is ambiguous.793  
Ultimately, the Panel in this case did follow previous Appellate Body reports.  In the light thereof, the 
Panel does appear to have acceded to the hierar chical structure contemplated in the DSU.  
Consequently, and since we have ruled on the merits  of the United States' claims under Article 9.3 of 
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, there is no need for us to address 
this aspect of the European Communities' conditional appeal. 
B. The European Communities' Conditional Appe al regarding the Consistency of Simple 
Zeroing in Periodic Reviews 
366. We turn next to examine the European Co mmunities' "conditional appeal" regarding the 
consistency of simple zer oing in periodic reviews. 
367. The Panel found that the United States acted inconsistently with Article VI:2 of the 
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement  by applying simple zeroing 
in 29 periodic reviews.  On appeal, the European  Communities submits that if the Appellate Body 
"reverses or modifies those findings in whole or in part", then it appeals "what might be construed as 
                                                      
790Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this 
Report), p. 4.  See also European Communities' appellant's submission, paras. 10 and 229.  The European 
Communities refers, in particular, to Panel Report, para. 7.180, final sentence, and Panel Report, para. 7.182, 
final sentence.  (European Comm unities' appellant's submission, footnote 246 to para. 229) 
791Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this 
Report), p. 4.  See also European Communiti es' appellant's submission, paras. 10 and 229. 
792Notification of an Appeal by the European Communities, WT/DS350/11 (attached as Annex I to this 
Report), p. 4.  
793Panel Report, para. 7.180.  WT/DS350/AB/R 
 Page 143 
 
 
substantive findings" or the exercise of judicial economy by the Panel with respect to the "substantive 
issue of zeroing" in periodic reviews.794 
368. We have upheld the Panel's finding that th e United States acted inconsistently with 
Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement  by applying simple 
zeroing in 29 periodic reviews.  Accordingly, we are not required to rule on this aspect of the European Communities' conditional appeal. 
VIII.  The Eight Sunset Reviews 
369. We turn now to address the United States' claim that the Panel failed to undertake an 
objective assessment of the matter before it, as require d by Article 11 of the DSU, in finding that the 
United States acted inconsistently with Article 11.3 of the Anti-Dumping Agreement  by allegedly 
using, in the eight sunset reviews at issue, dumping margins obtained through model zeroing in 
original investigations.
795 
370. Before the Panel, the European Commun ities challenged the use of zeroing in eight796 sunset 
reviews carried out by the USDOC, arguing that, as part of its sunset revi ew determinations, the 
USDOC relied on dumping margins calculated through zeroing in original investigations or in the 
subsequent reviews.797  The Panel noted that, "[a]s the factual basis" for this claim798, the European 
Communities submitted copies of the Issues and Deci sion Memoranda, issued by the USDOC in the 
eight sunset reviews, which showed that the USDOC used dumping margins obtained in the 
underlying original investigations.   
371. The Panel further noted that these underlying origin al investigations were carried out before 
the effective date of the USDOC's policy change  published in the USDOC December 2006 Notice, in 
which the USDOC announced that it would "no longe r make average-to-average comparisons in 
investigations without providing offsets for non-dumped comparisons".799  On this basis, the Panel 
found that "the European Communities ha[d] shown prima facie  that the margins in the investigations 
at issue were obtained through model zeroing".800  Noting that the United States had not submitted 
                                                      
794European Communities' appellant's submission, para. 230. 
795United States' other appellant's submission, paras. 114-121. 
796The European Communities' challenge initially concerned 11 sunset reviews. (Panel Report, 
para. 7.184)  The Panel noted that, with respect to th ree of the 11 sunset reviews, the European Communities' 
challenge concerned preliminary determinations.  Recal ling its finding that the pr eliminary determinations 
challenged by the European Communities were outside its terms of reference, the Panel stated that it would 
make findings only with regard to the remaining eight sunset reviews.  ( Ibid., para. 7.191) 
797Panel Report, para. 7.184. 
798Panel Report, para. 7.198. 
799Panel Report, para. 7.199 (quoting USDOC December 2006 Notice, supra , footnote 92). 
800Panel Report, para. 7.200. WT/DS350/AB/R 
Page 144  
 
evidence to rebut the European Co mmunities' assertion, the Panel c onsidered that "the European 
Communities ha[d] demonstrated that in the eight s unset reviews at issue, the USDOC relied, either 
exclusively or along with margins obtained in pr ior periodic reviews, on margins obtained through 
model zeroing in prior investigations".
801  The Panel recalled the Appellate Body's findings in US – 
Zeroing (Japan)  and found "convincing"802 the Appellate Body's reasoning that, to the extent margins 
relied on in sunset review determinations are inc onsistent with the covered agreements, the resulting 
sunset review determination is also rendere d inconsistent with the covered agreements.803  Because 
model zeroing in original investigations is  "inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement "804, the Panel concluded that the United States acted inconsistently with its obligations 
under Article 11.3 of the Anti-Dumping Agreement  by relying, in the eight sunset reviews at issue, on 
margins obtained through model zeroing in prior investigations.805   
372. The United States asserts that the Panel failed to make an objective assessment under 
Article 11 of the DSU in reaching the "erroneous conclusion" that the European Communities made 
out a prima facie  case that the margins in the original inv estigations underlying  the eight sunset 
reviews were obtained through model zeroing.806  The United States submits that, in order to establish 
that the United States breached Article 11.3 of the Anti-Dumping Agreement , the European 
Communities must "provide evidence from the inves tigations in which the dumping margins at issue 
were calculated showing that model zer oing was employed in calculating those particular dumping 
margins ".807  The United States mainta ins that the "sole basis"808 for the Panel's finding was language 
from the USDOC December 2006 Notice, in which the USDOC announced that it would no longer 
use model zeroing in W-W comparisons in original i nvestigations.  Such a general statement, in the 
United States' view, does not provide evidence as to wh ether zeroing was in fact used in calculating 
the specific margins relied upon in each of the eight sunset reviews at issue.  The United States adds 
that none of the other evidence submitted by th e European Communities supported a finding that 
model zeroing was used to calculate  margins in the original investig ations underlying the eight sunset 
reviews.  Therefore, the United States asserts that the Panel's finding that model zeroing was used in the investigations underlying the sunset reviews at issue "lack[s] a basis in the evidence contained in 
                                                     
 
801Panel Report, para. 7.200. 
802Panel Report, para. 7.196. 
803Panel Report, paras. 7.195 and 7.196 (referring to Appellate Body Report, US – Zeroing (Japan) , 
para. 185). 
804Panel Report, para. 7.196. 
805Panel Report, para. 7.202. 
806United States' other appellant's submission, para. 115. 
807United States' other appellant's submission, para. 118. (original emphasis) 
808United States' other appellant's submission, para. 119.  WT/DS350/AB/R 
 Page 145 
 
 
the panel record".809  On this basis, the United States requ ests that the Appellate Body reverse the 
Panel's finding that it acted inconsistently with Article 11.3 of the Anti-Dumping Agreement . 
373. The European Communities argues that the Panel was entitled to conclude from the evidence 
in the record that, "in the eight sunset reviews at issue, the USDOC relied, either exclusively or along 
with margins obtained in prior periodic reviews, on margins obtained through model zeroing in prior 
investigations".810  In reaching this conclusion, the Pane l properly drew inferences from the facts 
available in the record, including the fact that th ere was a concrete policy change declared by the 
USDOC to depart from its practice of using model zero ing in original investigations, and the fact that 
the original investigations underlying the sunset  reviews at issue took place before this policy 
change.811  The European Communities further maintain s that the United States did not submit any 
evidence to rebut the European Co mmunities' assertion concerning the sunset reviews at issue, and 
that the Panel properly took this additional fact  into account in drawing its final conclusion.812  
Therefore, the European Communiti es requests the Appellate Body to reject the United States' claim 
and to find, instead, that the Panel "made an objec tive assessment of the facts when finding that the 
European Communities demonstrated that in the s unset reviews at issue, the USDOC relied ... on 
margins obtained through model zeroing in prior investigations."813 
374. We recall that, before the Panel, there was no disagreement between the parties that, in the 
eight sunset reviews at issue, the USDOC used  margins obtained in the underlying original 
investigations.814  Furthermore, the United States did not contest the Panel's reliance on the Appellate 
Body's finding, in US – Zeroing (Japan) , that to the extent that a sunset review determination is based 
on previous margins obtained through a methodol ogy that is inconsistent with the covered 
agreements, the resulting sunset review determinati ons would also be incons istent with the covered 
agreements.815  Neither did the United States contest th e Panel's finding that the model zeroing 
methodology in original investigations is inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement .816 
375. Thus, in order to make findings on the Eur opean Communities' claims relating to the eight 
sunset reviews, the remaining issue before th e Panel was whether the dumping margins from the
                                                      
809United States' other appellant's submission, para. 121 (quoting Appellate Body Report, US – Carbon 
Steel , para. 142). 
810European Communities' appellee's submission, pa ra. 73 (quoting Panel Report, para. 7.200). 
811European Communities' appellee's submission, paras. 75 and 76. 
812European Communities' appellee's submission, para. 78. 
813European Communities' appellee's submission, para. 79. 
814Panel Report, para. 7.198. 
815Panel Report, paras. 7.195 and 7.196. 
816Panel Report, para. 7.196.  See also ibid., para. 7.104. WT/DS350/AB/R 
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original investigations underlying the eight sun set reviews, which the USDOC relied upon to make its 
likelihood determinations, were cal culated on the basis of the model zeroing methodology.  The Panel 
found that these margins were calculated using the model zeroing methodology on the basis of the 
following:  (i) an announcement in the USDO C December 2006 Notice stating that the USDOC 
would no longer apply the model zeroing methodology in original investigations;  and (ii) the fact that 
the original investigations underlying the eight sunset reviews were all completed before this 
announced change became effective on 22 February 2007.
817 
376. According to the United States, "a general stat ement" in which the USDOC announced that it 
would no longer use model zeroing in original inv estigations "does not provide evidence as to 
whether zeroing was in fact employed in the speci fic margins relied upon in each of the challenged 
sunset reviews."818  Therefore, in the United States' view, the Panel failed to conduct an objective 
assessment of the matter because its finding that  the model zeroing methodology was used in the 
original investigations underlying the eight sunset reviews lacked a basis in the evidence contained in 
the Panel record.819 
377. The "general statement" to which the United States refers states that: 
The Department will no longer make average-to-average comparisons in 
investigations without providing offsets for non-dumped comparisons.820 
378. As the United States points out, this statement concerns what the USDOC would no longer do 
after 22 February 2007.821  We recognize that, taken in isolati on, this sentence might not have been 
conclusive of the issue of whether the USDOC in fact used model zeroing in all W-W comparisons in 
the original investigations c onducted before that date.   
379. Nonetheless, other evidence submitted by the European Communities to the Panel lends 
support to a finding that the model zeroing methodology was indeed used in the original 
investigations that were conducted before the USDOC's above announcement.  Specifically, in the 
same document on which the Panel relies, the USDOC also made clear, in a separate paragraph, that it applied the model zeroing methodology in original investigations prior to this change in its 
methodology.  This paragraph was specifically c ited in the European Communities' response to the 
Panel's request to show that the zeroing methodol ogy was used in the original investigations 
underlying the eight sunset reviews.  More speci fically, the European Communities replied that: 
                                                     
 
817Panel Report, paras. 7.198-7.200. 
818United States' other appellant's submission, para. 119. 
819United States' other appellant's submission, para. 121. 
820Panel Report, para. 7.199 (quoting USDOC December 2006 Notice, supra , footnote 92). 
821United States' other appellant's submission, para. 119.  WT/DS350/AB/R 
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It is undisputed that before 22 February  2007, the USDOC applied model zeroing in 
weighted average dumping margin calculations  during the original investigation. As 
stated in the USDOC Notice dated 27 December 2006:  
The [USDOC] is modifying its methodology in antidumping 
investigations with respect to the calculation of the weighted–average 
dumping margin. This final modification is necessary to implement 
the recommendations of the World Trade Organization Dispute Settlement Body. Under this final modification, the [USDOC] will no 
longer make average–to-average comparisons in investigations without providing offsets for non–dumped comparisons. (…) 
Prior to this modification , when aggregating the results of the 
averaging groups in order to de termine the weighted–average 
dumping margin, the [USDOC] did not permit the results of averaging groups for which the we ighted–average export price or 
constructed export price exceeds the normal value to offset the results 
of averaging groups for which the weighted–average export price or 
constructed export price is less than the weighted–average normal value.
822 (emphasis added by the European Communities) 
380. As background, we recall that "model zeroing" refe rs to the use of zeroing in investigations 
where the normal value and the export price are comp ared on a weighted average-to-weighted average 
basis.823  Thus, pursuant to the model zeroing methodol ogy, where the weighted-average export price 
exceeds the weighted-average normal value, the results  of the comparison will be regarded as zero, so 
as not to "offset" the comparison results in which th e weighted-average export price is less than the 
weighted-average normal value.  Therefore, by stating that it did not permit such "offsets" in original investigations conducted before  the announced change, the USDOC made it clear, in its 
announcement that, prior to 22 February 2007, model zeroing was consistently used in original 
investigations. 
381. This response of the European Communities was referenced by the Panel in a footnote to its 
Report, without reproducing the full text of the response.
824  In addition, before the Panel, it was 
undisputed that the original investigations unde rlying the eight sunset reviews were completed 
before 22 February 2007.  Moreover, the United States did not submit any evidence in rebuttal to 
show that the model zeroing methodology was not used in  the original investigations at issue.  In our 
view, therefore, the Panel had before it a suffici ent evidentiary basis for its conclusion that the 
margins relied upon by the USDOC in these eight s unset reviews were calculated using the model 
zeroing methodology. 
                                                      
822European Communities' response to Panel Question 2(b) following the second meeting (quoting 
USDOC December 2006 Notice, supra , footnote 92). 
823Panel Report, para. 2.2. 
824Panel Report, footnote 161 to para. 7.198. WT/DS350/AB/R 
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382. The Appellate Body has interpreted Article 11 of  the DSU as requiring panels not to wilfully 
disregard or distort the evidence put before them, and not to make affirmative findings that lack a 
basis in the evidence.
825  Provided that panels' actions remain  within these limits, the Appellate Body 
has consistently held that it would not interfere ligh tly with the a panel's exercise of its discretion in 
the assessment of the facts.826  In this dispute, the United States alleges that the Panel acted 
inconsistently with Article 11 in finding that the model zeroing methodology was used in the 
investigations underlying the eight sunset reviews, arguing that this finding lacked a basis in the 
evidence contained in the Panel record.  Howeve r, we have found that the Panel's finding was 
supported by the evidence before it.  Therefore, we  do not consider that the Panel committed legal 
error in reaching its finding that the model zeroi ng methodology was used in the investigations 
underlying the eight sunset reviews at issue. 
383. On this basis, we dismiss the United States' cl aim that the Panel failed to conduct an objective 
assessment of the matter, as required by Article 11 of  the DSU, in finding that the United States acted 
inconsistently with Article 11.3 of the Anti-Dumping Agreement  with regard to the eight sunset 
reviews and, consequently, uphold  the Panel's finding. 
IX. The European Communities' Request for a " Suggestion" under Article 19.1 of the DSU 
384. We now consider the European Communities'  arguments relating to its request for a 
suggestion under the second sentence of Article 19.1 of the DSU.   
385. Before the Panel, the European  Communities asked the Panel "t o suggest that the steps the 
United States might take in the implementation of the DSB recommendations and rulings following 
this dispute should be WTO-cons istent, particularly with regard to the issue of zeroing."827  T h e  
United States responded that there is no basis in  the DSU for a panel to make a suggestion for 
"purposes of avoiding unnecessary discussions about wh at might or might not fall within the scope of 
a compliance panel."828  The United States further emphasized that, "[i]t is unreasonable that the 
[European Communities] is even asking this Panel to start from the premise that there would be a 
dispute as to compliance."829 
                                                      
825Appellate Body Report, US – Carbon Steel , para. 142. 
826Appellate Body Report, EC – Asbestos , para. 161;  Appellate Body Report, EC – Hormones , 
para. 132;  Appellate Body Report, EC – Sardines , para. 299;  Appellate Body Report, Japan – Apples , 
para. 222;  Appellate Body Report, Korea – Dairy , para. 137;  and Appellate Body Report, US – Wheat Gluten , 
para. 151. 
827Panel Report, para. 8.4.   
828Panel Report, para. 8.4.  
829United States' comments to the European Communities' response to Panel Question 4.   WT/DS350/AB/R 
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386. The Panel noted that Article 19.1 of the DSU s tipulates that "when a panel or the Appellate 
Body finds a measure to be inconsistent with a covered agreement, it shall recommend that the 
measure be brought into conformity with the relevant agreement" and that, in such cases, "the panel or 
the Appellate Body may suggest ways in wh ich such recommendation may be implemented."830  
Having found that the United States acted inco nsistently with its obligations under the Anti-Dumping 
Agreement  and the GATT 1994, the Panel declined to  make a suggestion as to how the DSB 
recommendations and rulings could be  implemented by the United States.  The Panel said that it is 
"evident" under the DSU, including Article 19.1, that "Members must implement DSB 
recommendations and rulings in  a WTO-consistent manner."831  The Panel added that it could not 
"presume that Members might act inconsistently w ith their WTO obligations in the implementation of 
DSB recommendations and rulings."832  On this basis, the Panel d eclined the European Communities' 
request for a suggestion under the second sentence of Article 19.1. 
387. On appeal, the European Communities raises two issues concerning Article 19.1 of the DSU.  
First, the European Communities asserts that the Panel committed "legal error"833 by declining to 
make a suggestion regarding implementation.  S econdly, the European Communities asks that the 
Appellate Body exercise its discretion under Article 19.1 of the DSU to make such a suggestion in 
this appeal.834 
388. We begin our analysis by examining the text of Article 19.1 of the DSU, which provides, in 
relevant part, as follows: 
Where a panel or the Appellate Body concludes that a measure is 
inconsistent with a covered agreement, it shall recommend  that the 
Member concerned bring the measure into conformity with that agreement.  In addition to its  recommendations, the panel or 
Appellate Body may suggest ways in which the Member concerned 
could  implement the recommendations. (footnotes deleted;  emphasis 
added)   
389. Article 19.1 contains two components.  The first sentence is mandatory, requiring  panels or 
the Appellate Body, if they find the challenged meas ure to be inconsistent with a provision of the 
covered agreements, to recommend that the respond ent Member bring its measure into conformity 
with that agreement.  The second sentence confers a discretionary right, auth orizing panels and the 
Appellate Body to suggest ways in which those r ecommendations may be implemented.  Therefore, as 
the right to make a suggestion is discretionary, a pa nel declining a request for such a suggestion does 
                                                     
 
830Panel Report, para. 8.6.  
831Panel Report, para. 8.7. 
832Panel Report, para. 8.7. 
833European Communities' appellant's submission, para. 218.     
834European Communities' appellant's submission, para. 222.  WT/DS350/AB/R 
Page 150  
 
not act contrary to Article 19 of the DSU.  Accordin gly, we do not find that the Panel committed legal 
error in declining to make a suggesti on under the second sentence of Article 19.1. 
390. We now consider the European Communities' request for the Appellate Body to make a 
suggestion pursuant to Article 19.1.  We begin by detailing the request that the European 
Communities made to the Panel. 
391. The European Communities asked the Panel to suggest that the United States cease using 
zeroing when calculating dumping margins in any anti-dumping proceeding with respect to 
the 18 measures identified in the annex to the European Communities' panel request.
835  According to 
the European Communities, "[t]his suggestion would be  appropriate to help promote the resolution of 
the dispute because it would provide helpful guidance to the United States as to what it must do in 
order to comply, and hopefully c ontribute to avoiding the need fo r further compliance proceedings, 
for example as a result of a switch by the United States to some other comparison method (such as 
transaction-to-transaction) but still based on zeroing."836  The European Communities also requested 
the Panel to suggest that the United States "should take  all necessary steps of a general or particular 
nature to ensure that any furthe r specific action against dumping by the United States in relation to the 
same products from the European Communities as  referenced in the present dispute be WTO 
consistent, and specifically with re ference to the question of zeroing."837  The European Communities 
explains that this "suggestion was intended to  reduce the need for protracted and unnecessary 
discussions about the scope of any compliance panel."838 
392. Referring to Articles 3.3 and 3.4 of the DSU,  the European Communities argues that absent 
any "clear suggestion" from the Panel or the A ppellate Body as to how the United States could 
implement the recommendation to bring its measures into conformity with its WTO obligations, the 
objectives of prompt settlement and achieving a satisf actory settlement of the matter "may simply not 
be achieved".839  The European Communities also emphasizes that "the circumstances of this dispute 
require clarity" and argues that a suggestion by the Appellate Body under Article 19.1 of the DSU 
could be "very useful for providing the necessary clar ity as to the implications of the reports when 
adopted".840   
                                                      
835European Communities' appellant's submission, para. 215. 
836European Communities' appellant's submission, para . 215 (referring to European Communities' first 
written submission to the Panel, Panel Re port, Annex A-1, p. A-59, para. 266). 
837European Communities' appellant's submission, para. 216 (referring to European Communities' 
closing statement at the second Panel meeting). 
838European Communities' appellant's submission, para. 216.   
839European Communities' appellant's submission, para. 219. 
840European Communities' appellant's submission, para. 221.  WT/DS350/AB/R 
 Page 151 
 
 
393. The Appellate Body observed in the recent compliance proceedings in EC – Bananas III , that 
"suggestions made by panels or the Appellate Body may provide useful guidance and assistance to 
Members and facilitate implementation of DSB recomm endations and rulings, particularly in complex 
cases."841  In the present case, the European Communiti es appears to request that the Appellate Body 
suggest that the United States cease using zer oing when calculating dumping margins in " any anti-
dumping proceeding "842 with respect to the 18 cases identif ied in the annex to the European 
Communities' panel request.  
394. We have upheld the Panel's findings that simp le zeroing as applied by the United States 
in 29 periodic reviews is inconsis tent with Article 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994.  We have also found that the United States acted inconsistently with 
Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 in respect of five 
additional periodic reviews.  Moreover, we have uphe ld the Panel's findings that the United States 
acted inconsistently with Article 11.3 of the Anti-Dumping Agreement  in eight sunset reviews by 
relying on margins of dumping calculated through the use of zeroing.  In the light of these findings, and our findings regarding the European Communities' claims against the continued application of the 
zeroing methodology in 18 cases, we do not consider it necessary to further consider the European 
Communities' request for a suggestion under Article 19.1 of the DSU. 
X. Findings and Conclusions 
395. For the reasons set out in this Report, the Appellate Body: 
(a) regarding the European Communities' clai ms concerning the continued application 
of the 18 anti-dumping duties at issue: 
(i) reverses
 the Panel's finding that the Eur opean Communities failed to comply 
with Article 6.2 of the DSU, and finds , instead, that the panel request 
identifies the specific measures at issue; 
(ii) declines  to make additional findings concerning whether the Panel acted 
inconsistently with Articles 7.1,  7.2, 11, and 12.7 of the DSU; 
(iii) concludes  that the continued application of the anti-dumping duties in each of 
the 18 cases was identified in the request for consultations; 
                                                      
841Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) , para. 325.  
842European Communities' appellant's submission, para. 215. WT/DS350/AB/R 
Page 152  
 
(iv) finds
 that the continued use of the zeroing methodology in successive 
proceedings in which duties resulti ng from the 18 anti-dumping duty orders 
are maintained, constitute measures that  can be challenged in WTO dispute 
settlement; 
(v) regarding  Ball Bearings and Parts Thereof from Italy (Case II), Ball Bearings 
and Parts Thereof from Germany (Case III), Ball Bearings and Parts Thereof 
from France (Case IV), and Stainless Steel Sheet and Strip in Coils from 
Germany (Case VI): 
- finds  that the Panel's factual findings sufficiently establish the continued use 
of the zeroing methodology in successive proceedings whereby duties in these cases are maintained; 
- concludes
 that the application and continued application of anti-dumping 
duties is inconsistent with Articles 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 to the exte nt that the duties are maintained at 
a level calculated through the use of the zeroing methodology in periodic 
reviews; 
- concludes  that the application and continued application of anti-dumping 
duties is inconsistent with Article 11.3 of the Anti-Dumping Agreement  to the 
extent that reliance is placed upon a margin of dumping calculated through 
the use of the zeroing methodology in ma king sunset review determinations;  
and 
- declines  to make additional findings under Articles 2.1, 2.4, 2.4.2, and 11.1 
of the Anti-Dumping Agreement , Article VI:1 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement  for purposes of resolving this dispute;   
(vi) declines  to complete the analysis in respect of the remaining 14 of 
the 18 anti-dumping cases at issue;  and 
(b) regarding the European Communities' claims concerning four preliminary 
determinations: 
(i) reverses  the Panel's finding that the European Communities' claims 
concerning the four preliminary determ inations were outside the Panel's 
terms of reference;  and  WT/DS350/AB/R 
 Page 153 
 
 
(ii) declines  the European Communities' request  for a finding that the four 
preliminary determinations are incons istent with "the provisions of the 
GATT 1994 and the Anti-Dumping Agreement  cited in the Panel 
proceedings"; 
(c) upholds  the Panel's finding that the 14 periodi c and sunset reviews were within the 
Panel's terms of reference; 
(d) upholds  the Panel's finding that the United Stat es acted inconsistently with Article 9.3 
of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 by applying 
simple zeroing in the 29 periodic reviews, and accordingly declines  to rule on the 
conditional appeals of the European Co mmunities regarding the Panel's finding; 
(e) as regards the European Communities' claims  concerning the seven periodic reviews: 
(i) finds  that the Panel acted inconsistently with Article 11 of the DSU when it 
found that the European Communities had not shown that simple zeroing was used in the seven periodic reviews at issue and, consequently, reverses
 this 
finding of the Panel; 
(ii) completes the analysis and finds  that the European Communities has shown 
that simple zeroing was used, and that  the United States acted inconsistently 
with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping 
Agreement  by applying simple zeroing in the periodic reviews in Steel 
Concrete Reinforcing Bars from Latvia (Case I – No. 3);  Stainless Steel Bar 
from Germany (Case IX – No. 33);   Stainless Steel Bar from Germany 
(Case IX – No. 34);  Stainless Steel Bar from Italy (Case XI – No. 39);  and 
Certain Pasta from Italy (Case XIII – No. 43);  and 
(iii) declines  to complete the analysis in respect of the periodic reviews in 
Stainless Steel Bar from France (Case V – No. 20) and Stainless Steel Bar 
from France (Case V – No. 21); 
(f) dismisses  the United States' claim that the Panel acted inconsistently with Article 11 
of the DSU in finding that the United States acted inconsistently with Article 11.3 of 
the Anti-Dumping Agreement  with regard to the eight sunset reviews and, 
consequently, upholds  this finding of the Panel;  and  WT/DS350/AB/R 
Page 154  
 
(g) rejects
 the European Communities' request for a suggestion under Article 19.1 of the 
DSU. 
396. The Appellate Body recommends  that the DSB request the United States to bring its 
measures, found in this Report, and in the Panel Repor t as modified by this Report, to be inconsistent 
with the GATT 1994 and the Anti-Dumping Agreement , into conformity with its obligations under 
those Agreements.  WT/DS350/AB/R 
 Page 155 
 
 
Signed in the original in Geneva this 20th day of January 2009 by:  
 
   
_________________________ 
Yuejiao Zhang 
Presiding Member 
 
 
 
  
 _________________________ _________________________ 
 Luiz Olavo Baptista David Unterhalter 
 Member Member 
  WT/DS350/AB/R 
 Page 157 
 
 
ANNEX I  
 
 WORLD TRADE  
ORGANIZATION  WT/DS350/11 
10 November 2008 
 (08-5429) 
 Original:   English 
  
UNITED STATES – CONTINUED EXISTENCE AND APPLICATION 
 OF ZEROING METHODOLOGY 
 
Notification of an Appeal by the European Communities
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 6 November  2008, from the Delegation of the European 
Communities, is being circulated to Members.  
_______________ 
 
 Pursuant to Article 16.4 and Article 17 of the DSU  the European Communities hereby notifies 
to the Dispute Settlement Body its decision to app eal to the Appellate Body certain issues of law 
covered in the Panel report and cer tain legal interpretations devel oped by the Panel in the dispute 
United States – Continued Existence and Application of Zeroing Methodology (WT/DS350/R). 
Pursuant to Rule 20(1) of the Working Procedures for Appellate Review , the European Communities 
simultaneously files this Notice of Appeal  with the Appellate Body Secretariat. 
 For the reasons set out in its submissions to the Panel, and for the reasons to be further 
elaborated in its submissions to the Appellate B ody, the European Communities appeals, and requests 
the Appellate Body to modify or reverse the legal findings and conclusions of the Panel and complete 
the analysis, with respect to the following errors of law and legal interpretations contained in the 
Panel Report: 
(a) With respect to each of the 18 measures, th e Panel erred when finding that the European 
Communities failed to identify in the panel requ est the specific measure at issue, as required 
by Article 6.2 of the DSU , and that consequently the Eur opean Communities' claims with 
respect to these 18 measures did not fall wi thin the Panel's terms of reference 
(paragraphs 7.40 – 7.67, particularly paragra ph 7.61, and paragraph 8.1(b) of the Panel 
Report). The Panel also erred in law when it found that each of the 18 measures is not a measure within the meaning of Article 3.3 of the DSU  (paragraph 7.56 of the Panel Report, 
final sentence). In particular, the European  Communities submits that the Panel Report: 
• erroneously confounds the procedural le gal analysis under Article 6.2 of the DSU  on 
the question of whether or not the Europ ean Communities' Panel Request identified 
the 18 specific measures at issue and the s ubstantive legal analysis under Article 3.3 
of the DSU  on the question of whether or not the 18 measures at issue are measures 
within the meaning of that provision, suscep tible to dispute settlement (particularly, 
but not only, at paragraphs 7.41  and 7.50 of the Panel Report); WT/DS350/AB/R 
Page 158  
 
• is inconsistent with Article 7.1 of the DSU  regarding a panel's terms of reference; 
with Article 12.1, Appendix 3 and paragra phs 4 and 13 of the Working Procedures of 
24 July 2007 regarding the timeliness of submissions including requests for 
preliminary rulings; with the rule that the United States had the burden of raising an issue under Article 3.3 of the DSU ; and with the rule that the Panel must not make the 
case for the defending Member – insofar as the Panel made findings regarding the 
existence and precise content of the 18 measu res, which relate to Article 3.3 of the 
DSU , and concern matters never raised by the United States; 
• is based on an erroneous interp retation of Article 6.2 of the DSU , insofar as it 
requires, in effect, that the Article 3.3 DSU  standard be met in the panel request 
(particularly, but not only, at paragraph 7.50 of the Panel Report); 
• is based on an erroneous interpretation of Article 3.3 of the DSU  (and/or Article 6.2 
of the DSU ), insofar as it effectively interprete d that provision or those provisions so 
as to conclude that the European Communities had not demonstrated the existence 
and precise content of the 18 measures at  issue (particularly, but not only, at 
paragraphs 7.50, third sentence and paragra phs 7.50, fifth and seventh sentences of 
the Panel Report). The 18 measures are simply case specific instances of the application of the zeroing methodology, the existence and precise content of which 
has been repeatedly established. These meas ures are presently experienced directly by 
EC exporters paying anti-dumping duty rates inflated by zeroing; 
• is based on an erroneous interp retation of Article 6.2 of the DSU  insofar as it 
interpreted that provision so as to concl ude that the European Communities' Panel 
Request did not identify the specific measure s at issue. The 18 measures are simply 
more specific instances of the application of the zeroing methodology (identified by 
reference to particular products, a particul ar exporting Member and particular duties); 
• is inconsistent with Article 7.2 of the DSU  insofar as the Panel did not, with respect 
to this issue, address relevant provisions of the GATT 1994 (Articles II.2(b), VI.1, VI.2 and XXIII) and the Anti-Dumping Agreement  (Articles 1, 7.2, 8.6, 9.1, 9.2, 9.3, 
11.1, 11.2, 11.3, 12.2.2, 15, 17.4 and 18.3.2) cited in this dispute; 
• is inconsistent with Article 11 of the DSU , insofar as the Panel failed to make an 
objective assessment of the matter before it, including an objective assessment of the 
facts of the case and the applicability of a nd conformity with th e relevant covered 
agreements; and 
• is inconsistent with Article 12.7 of the DSU  insofar as the Panel did not set out the 
basic rationale behind its findings and recommendations. 
Having modified or reversed the Panel's fi ndings, the European Communities requests the 
Appellate Body to complete the analysis by fi nding that, with respect to the 18 measures, the 
European Communities' Panel Request identified the specific measures at issue as required by 
Article 6.2 of the DSU  and, insofar as the Appellate Body reaches the issue, that the European 
Communities demonstrated the existence and precise content of 18 measures within the 
meaning of Article 3.3 of the DSU . The European Communities further requests the Appellate 
Body to complete the analysis by finding th at, because of the use of zeroing, each of the 
18 measures is inconsistent with Articles VI :1 and VI:2 of the GATT 1994, Articles 2.4, 
2.4.2, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement .  WT/DS350/AB/R 
 Page 159 
 
 
If the Appellate Body accepts this part of the appeal and completes the analysis as requested 
by the European Communities, then the European Communiti es would accept that parts (b) 
and (c) of this appeal could be  dealt with by the Appellate B ody declaring the Panel's findings 
moot and of no legal effect. 
(b) The Panel erred when excluding four preliminar y determinations from its terms of reference 
on the basis of Articles 17.4 and 7.1 of the Anti-Dumping Agreement  (paragraphs 7.70 – 7.77, 
particularly paragraph 7.77, and paragraph 8.1(c) of the Panel Re port). The determinations in 
question were not provisional measures within the meaning of Article 7, but part of the 
continuing application of existing definitiv e anti-dumping duties based on zeroing, being 
preliminary outcomes of one of the five types of anti-dumping proceeding. 
Having modified or reversed the Panel's fi ndings, the European Communities requests the 
Appellate Body to complete the analysis by fi nding that the administrative review preliminary 
determination is inconsistent with Articles VI:2 of the GATT 1994, Articles 2.1, 2.4, 2.4.2, 
9.3 and 11.2 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO Agreement ; and 
that each of the three sunset review preliminar y determinations is inconsistent with Articles 
2.1, 2.4, 2.4.2, 11.1 and 11.3 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement . 
(c) The Panel made factual and legal errors in  violation of, inter alia, Article 11 of the DSU  when 
concluding that the European Communities had not shown that simple zeroing was used in 
seven administrative reviews (paragraph 7.15 8 of the Panel Report and, by omission, 
paragraph 8.1(e) of the Panel Report). In par ticular, the European Communities contends that: 
• the Panel failed to carry out an objective assessment of the facts as required by 
Article 11 of the DSU  when concluding that the European Communities did not make 
a prima facie case that simple zeroing was used in seven administrative reviews 
(paragraphs 7.145 – 7.158 of the Panel Report,  particularly, paragraphs 7.151, 7.152, 
7.153, 7.154, 7.155, 7.156, 7.157 and (concluding) 7.158). The Panel Report ignores the totality of the evidence provided by th e European Communities to show the use of 
zeroing in this case. For each measure the European Communities demonstrated that 
the methodology was part of the measure, and provided additional evidence over and 
above what was required to make a prima facie case. Furthermore, in essence, the Panel Report is based on the disavowing of documents imputable to the United States regarding the use of zeroing, and particularly the disavowing of paper copies or print runs of electronic documents provided direc tly by and imputable to the United States, 
which documents are expressly referenced in and form part of the measures at issue. 
The original documents are held on file by the United States, but the United States 
declines to produce or consult the originals.  At the same time the United States does 
not assert that the documents have been  improperly altered by the European 
Communities nor did the United States contest  the accuracy of any of the relevant 
data contained in the copies produ ced by the European Communities; 
• the Panel failed to apply a reasonable bur den of proof (paragraphs 6.5 – 6.20, 
particularly paragraph 6.20, of the Panel Report); and  
• the Panel made an error when disregardi ng the European Communities' request for 
the Panel to ask further information pursuant to Article 13 of the DSU  
(paragraph 6.20 and footnote 20 of the Panel Report). 
Having modified or reversed the Panel's fi ndings, the European Communities requests the 
Appellate Body to complete the analysis by finding that each of the seven administrative 
review determinations is inconsis tent with Articles VI:2 of the GATT 1994 , Articles 2.1, 2.4, WT/DS350/AB/R 
Page 160  
 
2.4.2, 9.3 and 11.2 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement . 
(d) The Panel made a legal error when disreg arding the European Communities' requests for 
suggestions (paragraph 8.7 of the Panel Repor t) and the European Communities requests the 
Appellate Body to modify or reverse the fi ndings in the Panel Report and complete the 
analysis by making suggestions pursuant to Article 19.1 of the DSU , such as those requested 
by the European Communities in the Panel proceedings, or as otherwise considered 
appropriate by the Appellate Body. 
The European Communities also ma kes two conditional appeals.  
First, if the Panel Report is construed as finding that a pane l can invoke "cogent reasons" for 
departing from previous Appellate Body findin gs on the same issue of legal interpretation 
(paragraphs 7.180 and 7.182 of the Panel Report) , then the European Communities requests the 
Appellate Body to modify or reverse those findings and complete the analysis, for all the reasons set 
out by the Appellate Body in its report in US – Stainless Steel from Mexico. The European 
Communities considers that a panel may invoke "coge nt reasons" in order to depart from previous 
panel findings; but only the Appellate Body can invoke "cogent reasons" in order to depart from 
previous Appellate Body findings.  
Second, if the United States appeals the findings in paragraphs 7.183 and 8.1(e) of the Panel 
Report (particularly as regards what the Panel refers to as "the role of jurisprudence"); and if the 
Appellate Body modifies or reverses those findi ngs in whole or in part; then the European 
Communities requests the Appellate Body to modify  or reverse (and complete the analysis) with 
respect to the substantive findings or the exercise of  false judicial economy in the Panel Report on the 
substantive issue of zeroing in administrative reviews.
1 In such eventuality, the European 
Communities submits that the measures are inconsistent with Articles VI:2 of the GATT 1994 , 
Articles 2.1, 2.4, 2.4.2, 9.3 and 11.2 of the Anti-Dumping Agreement , and Article XVI:4 of the WTO 
Agreement , for the reasons set out in full in its pleadings  before the Panel, and in the separate opinion 
(paragraphs 9.1 to 9.10 of the Panel Report). 
 
                                                      
1Panel Report, para. 7.162, seventh sentence; para. 7.163, fourth sentence; para. 7.164, second 
sentence; para; 7.165, third sentence; para. 7.166, second sentence; para. 7.167, third sentence; para. 7.168, final 
sentence; and para. 7.169, first sentence.  WT/DS350/AB/R 
 Page 161 
 
 
ANNEX II  
 
 WORLD TRADE  
ORGANIZATION  WT/DS350/12 
21 November 2008 
 (08-5691) 
 Original:   English 
  
UNITED STATES – CONTINUED EXISTENCE AND APPLICATION  
OF ZEROING METHODOLOGY 
 
Notification of an Other Appeal by the United States
 
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 23(1) of the Working Procedures for Appellate Review  
   The following notification, dated 18 November 2008, from the Delegation of the United States, is being circulated to Members.  
_______________ 
 
 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (“DSU”) and Rule 23(1) of the Worki ng Procedures for Appellate Review, the 
United States hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the report of the panel in United States – Continued Existence and Application of Zeroing 
Methodology (WT/DS350/R) (“Panel Report”) and certain legal interpretations developed by the 
Panel in this dispute.  1. The United States seeks review by the Appellate Body of the Panel’s finding that Members need not consult on a measure prior to requesting a pa nel to review that measure.  In particular the 
United States seeks review by the Appellate Body of  the Panel’s finding that the 14 periodic reviews 
and sunset reviews that were identified in the EC’s  panel request, but not in the EC’s consultations 
request, were within the Pa nel’s terms of reference.
1  This finding is in error and is based on 
erroneous findings on issues of law and relate d legal interpretations, including an incorrect 
interpretation of Articles 4, 6, and 7 of th e DSU and Articles 17.3, 17.4, and 17.5 of the Agreement on 
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994  (“AD 
Agreement”).  2. The United States seeks review of the Pa nel’s conclusion that the United States acted 
inconsistently with its obligati ons under Article VI:2 of the General Agreement on Tariffs and 
Trade 1994 (“GATT 1994”) and Article 9.3 of the AD Agreem ent by applying simple zeroing in the 
29 periodic reviews at issue in this dispute.
2  This conclusion is in error and is based on erroneous 
findings on issues of law and related legal interpre tations, including the improper interpretation and 
application of Article 17.6(ii) of the AD Agre ement, Article 9.3 of the AD Agreement, and 
Article VI:2 of the GATT 1994.  
                                                     
 
1See, e.g. , Panel Report, paras. 7.17-7.28; 8.1(a). 
2See, e.g. , Panel Report, paras. 7.162-7.169; 7.178-7.183; 8.1(e). WT/DS350/AB/R 
Page 162  
 
3. The United States requests the Appellate Body to find that the Panel failed to 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 th e relevant covered agreements” as required by 
Article 11 of the DSU with respect to the EC’s clai ms that the United States acted inconsistently with 
its obligations under Article 11.3 of the AD Agre ement in the eight sunset reviews at issue.
3  The 
Panel’s failure to undertake an objective assessment includes the erroneous finding that the EC made 
a prima facie case that the margins in the underlying prior investigations were obtained through so-
called model zeroing.   
 
    
                                                     
 
3See, e.g. , Panel Report, paras. 7.192-7.202; 8.1(f).  WT/DS350/AB/R 
 Page 163 
 
 
ANNEX III  
 
ORGANISATION MONDIALE   ORGANIZACIÓN MUNDIAL  
    DU COMMERCE   DEL COMERCIO  
 
WORLD TRADE ORGANIZATION  
 
APPELLATE BODY 
 
United States – Continued Existence and Application of Zeroing Methodology  
AB-2008-11 
 
Procedural Ruling  
 
1. On 14 November 2008, the Division hearing th is appeal received a request from the European 
Communities to allow observation by the public of the oral hearing in the above appellate 
proceedings.  On 17 November 2008, the United Stat es also requested the Division to authorize public 
observation of the oral hearing.1  The participants argued that nothing in the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (the "DSU") or the Working Procedures for 
Appellate Review  (the " Working Procedures ") precludes the Appellate Body from authorizing public 
observation of the oral hearing.2 
 
2. On 18 November 2008, we invited the thir d participants to comment in writing on the 
requests of the participants.  In particular, we asked  the third participants to provide their views on the 
permissibility of opening the hearing under the DSU and the Working Procedures , and, if they so 
wished, on the specific logistical arrangements pr oposed in the requests.  We received comments on 
24 November from Brazil, China, Egypt, India, Japan , Korea, Mexico, Norway, the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu, and Thailand.  Japan, Norway, and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Ma tsu expressed their support for the requests of 
the participants.  Brazil, China, Egypt, India,  Mexico, and Thailand expressed the view that the 
provisions of the DSU do not allow public hearings  at the appellate stage.  Korea shared these 
concerns but did not object to the opening of the or al hearing to the public in these proceedings;  at 
the same time, it requested the Appellate Body to treat  its written and oral statements as confidential.  
According to these third participants, the oral hearin g forms part of the proceedings of the Appellate 
Body and, therefore, is subject to the requirement of Article 17.10 of the DSU that "[t]he proceedings 
of the Appellate Body shall be confidential."  
3. We are making the following ruling on the requests of the participants, having carefully 
considered the comments of the third participants.  Ar ticle 17.10 must be read in context, particularly 
in relation to Article 18.2 of the DSU.  The sec ond sentence of Article 18.2 expressly provides that 
"[n]othing in this Understanding shall preclude a part y to a dispute from disclosing statements of its 
own positions to the public".  Thus, under Arti cle 18.2, the parties may decide to forego 
confidentiality protection in respect of their statemen ts of position.  The third sentence of Article 18.2 
states that "Members shall treat as confidential info rmation submitted by another Member to the panel 
or the Appellate Body which that Member has desi gnated as confidential."  This provision would be 
redundant if Article 17.10 were interpreted to requi re absolute confidentiality in respect of all 
elements of appellate proceedings.  There would be no  need to require, pursuant to Article 18.2, that a 
                                                     
 
1The participants expressed a preference for simu ltaneous, closed-circuit television broadcast to 
another room, with the transmission switched off when those third participants who do not wish to make their 
statements public take the floor. 
2Similar requests were made in the appeals in United States / Canada – Continued Suspension of 
Obligations in the EC – Hormones Dispute  and European Communities – Regime for the Importation, Sale and 
Distribution of Bananas (Article 21.5 – Ecuador / United States) . WT/DS350/AB/R 
Page 164  
 
Member designate certain information as confidential.   The last sentence of Article 18.2 ensures that 
even such designation by a Member does not put an end to the right of another Member to make disclosure to the public.  Upon request, a Member must provide a non-confidential summary of the information contained in its written submissions that  it designated as confidential, which can then be 
disclosed to the public.  Thus, Article 18.2 provi des contextual support for the view that the 
confidentiality rule in Article 17.10 is not absolute .  Otherwise, no disclosure of written submissions 
or other statements would be permitte d during any stage of the proceedings. 
 4. In practice, the confidentiality requirement in  Article 17.10 has its limits.  Notices of Appeal 
and Appellate Body reports are discl osed to the public.  Appellate Bo dy reports contain summaries of 
the participants' and third particip ants' written and oral submissions and frequently quote directly from 
them.  Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-based system of adjudication.  Consequently, u nder the DSU, confidentiality is relative and time-
bound.  
5. In our view, the confidentiality requiremen t in Article 17.10 is more properly understood as 
operating in a relational manner.
3  There are different sets of relationships that are implicated in 
appellate proceedings.  Among them are the following relationships.  First, a relationship between the 
participants and the Appellate Body.  Secondly, a relationship between the third participants and the 
Appellate Body.  The requirement that the proceedi ngs of the Appellate Body are confidential affords 
protection to these separate relationships and is intend ed to safeguard the inter ests of the participants 
and third participants and the adj udicative function of the Appellate Body, so as to foster the system 
of dispute settlement under conditions of fairness, im partiality, independence and integrity.  In this 
case, the participants have requested authoriza tion to forego confidentiality protection for their 
communications with the Appellate Body at the oral hearing.  The requests of the participants do not 
extend to any communications, nor touch upon the relati onship, between the third participants and the 
Appellate Body.  The right to confidentiality of third participants vis-à-vis  the Appellate Body is not 
implicated by these requests.  The question is thus  whether the participants' requests to forego 
confidentiality protection satisfy the requirements of fairness and integrity that are the essential 
attributes of the appellate process and define th e relationship between the Appellate Body and the 
participants.  If the requests meet these standard s, then the Appellate Body would incline towards 
authorizing them. 
 
6. We note that the DSU does not specifically provide  for an oral hearing at the appellate stage.  
The oral hearing was instituted by the Appellate Body in its Working Procedures , which were drawn 
up pursuant to Article 17.9 of the DSU.  The conduct and organization of the oral hearing falls within 
the authority of the Appellate Body ( compétence de la compétence ) pursuant to Rule 27 of the 
Working Procedures .  Thus, the Appellate Body has the power to exercise control over the conduct of 
the oral hearing, including authorizing the lifting of c onfidentiality at the request of the participants as 
long as this does not adversely affect the rights and inte rests of the third participants or the integrity of 
the appellate process.  As we observed earlier, Artic le 17.10 also applies to the relationship between 
third participants and the Appellate Body.  Nevert heless, in our view, the third participants cannot 
invoke Article 17.10, as it applies to their relationshi p with the Appellate Body, so as to bar the lifting 
of confidentiality protection in the relationship be tween the participants and the Appellate Body.  
Likewise, authorizing the participants' requests to forego confidentiality does not affect the rights of 
third participants to preserve the confidentiality of their communications with the Appellate Body. 
 7. The powers of the Appellate Body are themsel ves circumscribed in that certain aspects of 
confidentiality are incapable of derogation—even  by the Appellate Body—where derogation may 
undermine the exercise and integrity of the Appellate Body's adjudicative function.  This includes the 
situation contemplated in the second sentence of Artic le 17.10, which provides that "[t]he reports of 
                                                     
 
3This relational view of rights and obligations of confidentiality is consistent with the approach 
followed in domestic jurisdictions with respect to similar issues, such as privilege.  WT/DS350/AB/R 
 Page 165 
 
 
the Appellate Body shall be drafted without the presen ce of the parties to the dispute and in the light 
of the information provided and the statements ma de."  Confidentiality of the deliberations is 
necessary to protect the integrity, impartiality, and independence of the appellate process.  In our 
view, such concerns do not arise in a situation wh ere, following requests from the participants, the 
Appellate Body authorizes the lifting of the confidentia lity of the participants' statements at the oral 
hearing. 
 8. The Appellate Body has fostered the active pa rticipation of third parties in the appellate 
process in drawing up the Working Procedures and in appeal practice.  Ar ticle 17.4 provides that third 
participants "may make written submissions to, a nd be given an opportunity to be heard by, the 
Appellate Body."  In its Working Procedures , the Appellate Body has given full effect to this right by 
providing for participation of third participants during the entirety of the oral hearing, while third 
parties meet with panels only in a separate session at  the first substantive meeting.  The rights of third 
participants are distinct from those of the main pa rticipants to a dispute.  They have a systemic 
interest in the interpretation of the provisions of the covered agreements that may be at issue in an 
appeal.  Although their views on the questions of lega l interpretation that come before the Appellate 
Body are always valuable and thoroughly consid ered, these issues of legal interpretation are not 
inherently confidential.  However, it is not for th e third participants to determine how the protection 
of confidentiality in the relationship between the pa rticipants and the Appellate Body is best dealt 
with.  We do not consider that the third particip ants have identified a specific interest in their 
relationship with the Appellate Body  that would be adversely affected if we were to authorize the 
participants' requests. 
 9. The requests for public observation of the oral hearing in this dispute have been made by the European Communities and the United States.  As we  explained earlier, the Appellate Body has the 
power to authorize the requests by the participants to lift confidentiality, provided that this does not 
affect the confidentiality of the relationship between the third participants and the Appellate Body, or 
impair the integrity of the appellate process.  Th e participants have sugg ested alternative modalities 
that allow for public observation of the oral heari ng, while safeguarding the confidentiality protection 
enjoyed by the third participants that seek such  protection.  The modalities include simultaneous or 
delayed closed-circuit television broadcasting in a room separate from the room used for the oral 
hearing.  Finally, we do not see the public observation of the oral hearing, using the means described 
above, as having an adverse impact on the integrity  of the adjudicative functions performed by the 
Appellate Body.  10. For these reasons, the Division authorizes the public observation of the oral hearing in these proceedings on the terms set out below.  Accordingly, pursuant to Rule 16(1) of the Working 
Procedures , we adopt the following additional proced ures for the purposes of this appeal: 
 
(a) The oral hearing will be open to public ob servation by means of simultaneous closed-
circuit television.  The closed-circuit tele vision signal will be shown in a separate 
room to which duly registered delegat es of WTO Members and members of the 
general public will have access.   
(b) Oral statements and responses to questions by  third participants wishing to maintain 
the confidentiality of their submissions w ill not be subject to public observation.   
(c) Any third participant that has not already done so may request that its oral statements 
and responses to questions remain conf idential and not be subject to public 
observation.  Such requests must be received by the Appellate Body Secretariat no
 
later than 5:00 p.m. Geneva time on Thursday, 4 December 2008 . 
(d) An appropriate number of seats will be reserved for delegates of WTO Members in 
the room where the closed-circuit broadcast will be shown. WT/DS350/AB/R 
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(e) Notice of the oral hearing will be provid ed to the general public through the WTO 
website.  WTO delegates and members of the general public wishing to observe the oral hearing will be required to register in advance with the WTO Secretariat. 
(f) Should practical considerations not allow si multaneous broadcast of the oral hearing, 
deferred showing of the video recordin g will be used in the alternative. 
Geneva, 28 November 2008 
__________