WORLD TRADE  
ORGANIZATION  WT/DS268/AB/RW 
12 April 2007 
 (07-1455) 
 Original:   English 
  
 
     
 
    
 
 
 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON  
OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
 
RECOURSE TO ARTICLE 21.5 OF  THE DSU BY ARGENTINA 
 
  
AB-2007-1 
 
    
 
    
 
Report of the Appellate Body 
  WT/DS268/AB/RW 
 Page i 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants and the Third Participants ..........................................................6  
A. Claims of Error by the United States – Appellant .........................................................6  
1. Amended Waiver Provisions ............................................................................6  
(a) The Panel's Approach to Examining the Consistency of the 
Amended Waiver Provisions with Article 11.3 of the Anti-
Dumping Agreement ............................................................................6  
(b) Burden of Proof ...................................................................................8  
(c) Objective Assessment of the Matter under Article 11 of the 
DSU .....................................................................................................9  
2. The USDOC's Finding on Import Volumes....................................................10  
B. Arguments of Argentina – Appellee .............................................................................13  
1. Amended Waiver Provisions ..........................................................................13  
(a) The Panel's Approach to Examining the Consistency of the 
Amended Waiver Provisions with Article 11.3 of the Anti-
Dumping Agreement ..........................................................................13  
(b) Burden of Proof .................................................................................16  
(c) Objective Assessment of the Matter under Article 11 of the 
DSU ...................................................................................................16  
2. The USDOC's Finding on Import Volumes....................................................17  
C. Claims of Error by Argentina – Other Appellant ........................................................19  
1. New Evidentiary Basis....................................................................................19  
(a) Interpretation and Application of Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement ..................................................................19  
(b) Objective Assessment of the Matter under Article 11 of the 
DSU ...................................................................................................22  
(c) Articles 3.2 and 19.2 of the DSU.......................................................22  
2. Argentina's Request for a Suggestion pursuant to Article 19.1 of the DSU ................................................................................................................23
 
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU.......23  
(b) Request for the Appellate Body to Make a Suggestion under  Article 19.1 of the DSU .....................................................................24
 
D. Arguments of the United States – Appellee ..................................................................25  
1. New Evidentiary Basis....................................................................................25  
(a) Interpretation and Application of Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement ..................................................................25  
(b) Objective Assessment of the Matter under Article 11 of the 
DSU ...................................................................................................26  
(c) Articles 3.2 and 19.2 of the DSU.......................................................26  
2. Argentina's Request for a Suggestion under Article 19.1 of the DSU............27  
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU.......27  
(b) Request for the Appellate Body to Make a Suggestion under 
Article 19.1 of the DSU .....................................................................28  WT/DS268/AB/RW 
Page ii  
 
E.
 Arguments of the Third Participants ............................................................................28  
1. China...............................................................................................................28  
2. European Communities...................................................................................30  
3. Japan ...............................................................................................................33  
4. Korea...............................................................................................................34  
5. Mexico ............................................................................................................35  
III. Issues Raised in This Appeal ................................................................................................... .35 
IV. Amended Waiver Provisions ....................................................................................................36  
A. Original Proceedings ...................................................................................................36  
B. Measures Taken to Comply ..........................................................................................39  
C. Panel Proceedings pursuant to Article 21.5 of the DSU .............................................40  
D. Claims and Arguments on Appeal ................................................................................43  
E. Consistency of the Amended Waiver Prov isions with Article 11.3 of the Anti-
Dumping Agreement ....................................................................................................44  
V. The USDOC's Finding on Import Volumes..............................................................................53  
A. Original Proceedings ...................................................................................................53  
B. Measures Taken to Comply ..........................................................................................55  
C. Panel Proceedings pursuant to Article 21.5 of the DSU .............................................55  
D. Claims and Arguments on Appeal ................................................................................57  
E. Whether the USDOC's Finding on Import  Volumes was Properly Before the 
Panel ............................................................................................................................59  
VI. New Evidentia ry Basis.......................................................................................................... ....66  
A. Panel Proceedings pursuant to Article 21.5 of the DSU .............................................66  
B. Claims and Arguments on Appeal ................................................................................68  
C. Whether it was Permissible for the USDOC to Develop a New Evidentiary 
Basis for the Section 129 Determination .....................................................................69  
VII. Argentina's Request for a Suggestion .......................................................................................75  
VIII. Findings and Conclusions....................................................................................................... ..78 
 
ANNEX I Notification of an Appeal by the Unite d States 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  
 
ANNEX II Notification of an Other Appeal by Argentina under Article 16.4 and Article 17 of the 
Understanding on Rules and Procedures Govern ing the Settlement of Disputes (DSU), 
and under Rule 23(1) of the Working Procedures for Appellate Review   WT/DS268/AB/RW 
 Page iii 
 
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Poultry  
Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Australia – Automotive 
Leather II  
(Article 21.5 – US)  Panel Report, Australia – Subsidies Provided to Producers and Exporters of 
Automotive Leather – Recourse to Article 21.5 of the DSU by the United States , 
WT/DS126/RW and Corr.1, adopted 11 February 2000, DSR 2000:III, 1189 
Australia – Salmon  
(Article 21.5 – Canada)  Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW, adopted 
20 March 2000, DSR 2000:IV, 2031 
Canada – Aircraft  (Article 21.5 – Brazil)
  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, 4299 
Chile – Alcoholic Beverages  Appellate Body Report, Chile – Taxes on Alcoholic Beverages , 
WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000,  DSR 2000:I, 281 
Chile – Price Band System 
(Article 21.5 – Argentina) Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products – Recourse to Article 21.5 of the DSU by 
Argentina , WT/DS207/RW and Corr.1, circulated to WTO Members 
8 December 2006 
EC – Bananas III   
(Article 21.5 – Ecuador)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , 
WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, 803 
EC – Bed Linen  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, 
modified by Appellate Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties  
on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5  
of the DSU by India , WT/DS141/AB/RW, adopted 24 April 2003, 
DSR 2003:III, 965 
EC – Bed Linen  (Article 21.5 – India)
  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India , WT/DS141/RW, adopted 24 April 2003, modified by Appellate Body 
Report, WT/DS141/AB/RW, DSR 2003:IV, 1269  
EC – Export Subsidies on Sugar 
(Australia) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R, adopted 19 May 2005, modified by Appellate 
Body Report, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R 
EC – Export Subsidies on Sugar 
(Brazil) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Brazil , WT/DS266/R, adopted 19 May 2005, modified by Appellate Body 
Report, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R 
EC – Export Subsidies on Sugar 
(Thailand) Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Thailand , WT/DS283/R, adopted 19 May 2005, modified by Appellate 
Body Report, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R 
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 – Trademarks and 
Geographical Indications (US) Panel Report,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs, 
Complaint by the United States , WT/DS174/R, adopted 20 April 2005 WT/DS268/AB/RW 
Page iv  
 
Short Title Full Case Title and Citation 
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 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, 5295 
Japan – Apples  
(Article 21.5 – US)  Panel Report, Japan – Measures Affecting the Importation of Apples  
– Recourse to Article 21.5 of the DSU by the United States , WT/DS245/RW, 
adopted 20 July 2005 
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 
Mexico – Corn Syrup  (Article 21.5 – US)
  Panel 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/RW, adopted 21 November 2001, upheld by 
Appellate Body Report, WT/DS132/AB/RW, DSR 2001:XIII, 6717 
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 – Anti-Dumping Measures 
on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted 
28 November 2005  
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 – 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 – Cotton Yarn  Panel Report, United States – Transitional Safeguard Measure on Combed 
Cotton Yarn from Pakistan , WT/DS192/R, adopted 5 November 2001, 
modified by Appellate Body Report, WT/DS192/AB/R, DSR 2001:XII, 6067 
US – Countervailing Duty Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation  
on Dynamic Random Access Memory Se miconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005 
US – Countervailing Measures 
on Certain EC Products  (Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning  
Certain Products from the European Communities – Recourse to  Article 21.5 of the DSU by the European Communities , WT/DS212/RW, 
adopted 27 September 2005 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3 
US – Lead and Bismuth II  Panel Report, United States – Imposition of Countervailing Duties on Certain 
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the 
United Kingdom , WT/DS138/R and Corr.2, adopted 7 June 2000, upheld by 
Appellate Body Report, WT/DS138/AB/R, DSR 2000:VI, 2623  WT/DS268/AB/RW 
 Page v 
 
 
Short Title Full Case Title and Citation 
US – Offset Act  
(Byrd Amendment ) Panel Report, United States – Continued Dumping and Subsidy Offset Act  
of 2000 , WT/DS217/R, WT/DS234/R, adopted 27 January 2003, modified  
by Appellate Body Report, WT/DS217/AB/R, WT/DS234/AB/R, 
DSR 2003:II, 489 
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 – Oil Country Tubular 
Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, 
adopted 17 December 2004, modified by Appellate Body Report, 
W/DS/268/AB/R, DSR 2004:VIII, 3421 
US – Oil Country Tubular 
Goods Sunset Reviews Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina – Arbitration under Article 21.3(c) of the DSU , WT/DS268/12, 7 June 2005 
US – Oil Country Tubular 
Goods Sunset Reviews  
(Article 21.5 – Argentina) Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the 
DSU by Argentina , WT/DS268/RW, circulated to WTO Members 
30 November 2006 
US – Section 211 
Appropriations Act  Appellate Body Report, United States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589 
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 – 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  
US – Softwood Lumber VI 
(Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006  
US – Softwood Lumber VI 
(Article 21.5 – Canada) Panel Report, United States – Investigation of the International Trade 
Commission in Softwood Lumber from Canada – Recourse to Article 21.5  
of the DSU by Canada , WT/DS277/RW, adopted 9 May 2006, modified by 
Appellate Body Report, WT/DS277/AB/RW  
US – Tobacco GATT Panel Report, United States Measures Affecting the Importation, 
Internal Sale and Use of Tobacco , DS44/R, adopted 4 October 1994, 
BISD 41S/131 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007 
 
 WT/DS268/AB/RW 
Page vi  
 
ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Definition 
Anti-Dumping Agreement  Agreement on Implementation of Article VI of the General Agreement 
on Tariffs and Trade 1994  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
OCTG oil country tubular goods 
original panel panel in the US – Oil Country Tubular Goods Sunset Reviews 
proceedings 
original panel report Panel Report, US – Oil Country Tubular Goods Sunset Reviews  
Panel Panel in these US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.5 – Argentina) proceedings 
Panel Report Panel Report,  US – Oil Country Tubular Goods Sunset Reviews 
(Article 21.5 – Argentina) 
Regulations United States Code of Federal Regulations 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures 
Tariff Act United States Tariff Act of 1930, as amended 
URAA Uruguay Round Agreements Act 
USDOC United States Department of Commerce 
USITC United States International Trade Commission 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/5,  
4 January 2005 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Es tablishing the World Trade Organization  
 
 
 
   WT/DS268/AB/RW 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina  
 Recourse to Article 21.5 of the DSU by Argentina
 
 United States, Appellant/Appellee  
Argentina, Other Appellant/Appellee  
 
China, Third Participant  
European Communities, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
Mexico, Third Participant   AB-2007-1 
  Present:  
 Taniguchi, Presiding Member 
 Janow, Member  Unterhalter, Member  
 
 
I. Introduction 
1. The United States and Argentina each appeals certain issues of law and legal interpretations 
developed in the Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina, Recou rse to Article 21.5 of the DSU by Argentina  (the 
"Panel Report").1  The Panel was established to consider a complaint by Argentina concerning the 
consistency with the Agreement on Implementation of Article VI  of the General Agreement on Tariffs 
and Trade 1994  (the " Anti-Dumping Agreement ") and the Marrakesh Agreement Establishing the 
World Trade Organization  (the " WTO Agreement ") of measures taken by the United States to comply 
with the recommendations and rulings of the Disput e Settlement Body (the "DSB") in the original 
proceedings in  US – Oil Country Tubular Goods Sunset Reviews .2 
2. In the original proceedings, Argentina cha llenged various aspects of United States laws, 
regulations, and procedures relating to the conduc t of sunset reviews.  For purposes of these 
proceedings pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  (the "DSU"), the relevant laws and regul ations are those relating to the waiver 
of an exporter's right to participate in the re view conducted by the United States Department of 
                                                      
1WT/DS268/RW, 30 November 2006. 
2The recommendations and rulings of the DSB resulted from the adoption on 17 December 2004, by the 
DSB, of the Appellate Body Report, WT/DS268/A B/R, and the Panel Report, WT/DS268/R, in US – Oil 
Country Tubular Goods Sunset Reviews .  In this Report, we refer to the panel in these Article 21.5 proceedings as 
the "Panel", and to the panel that considered the original  complaint brought by Argentina as the "original panel" 
and to its report as the "original panel report". WT/DS268/AB/RW 
Page 2  
 
Commerce (the "USDOC").  At the time of the or iginal proceedings, two waiver situations were 
contemplated under United States laws and regulations :  (i) the so-called "affirmative waiver", where 
an exporter explicitly waives its right to participate pursuant to Section 751(c)(4)(A)
3 of the United 
States Tariff Act of 1930 (the "Tariff Act");  a nd (ii) the so-called "deemed waiver", where an 
exporter, through silence or failure to submit a comp lete substantive response to a notice of initiation 
of a sunset review by the USDOC, was "deemed" to have waived its right to participate pursuant to 
Section 351.218(d)(2)(iii) of the United States Code of Federal Regulations  (the "Regulations").  
Argentina also challenged in the original proceedi ngs several aspects of the sunset review conducted 
by the USDOC and the United States Internati onal Trade Commission (the "USITC") of the anti-
dumping duty order on oil country tubula r goods ("OCTG") imported from Argentina.4   
3. The following conclusions of the original pane l are relevant for purposes of these Article 21.5 
proceedings: 
(a) In respect of waiver provisions of [United States] law: 
(i) The provisions of Section 751(c)(4)(B) of the Tariff 
Act relating to affirmative waivers are inconsistent  
with the investigating authorities' obligation to 
determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Anti-Dumping Agreement, 
(ii) The provisions of Section 351.218(d)(2)(iii) of the 
USDOC's Regulations relati ng to deemed waivers are 
inconsistent
 with the investigating authorities' 
obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Anti-Dumping Agreement, 
... 
(d) In respect of the USDOC's determinations in the OCTG 
sunset review: 
(i) The USDOC acted inconsistently
 with Article[] 11.3 
... of the Anti-Dumping Agreement[.]5 (original 
underlining) 
                                                      
3Section 751 of the United States Tariff Act of 1930 is codified as Section 1675 of Title 19 of the 
United States Code .  See Exhibit ARG-33 submitted by Argentina to the Panel.  
4Original Panel Report, para. 3.1. 
5Ibid., para. 8.1.   WT/DS268/AB/RW 
 Page 3 
 
 
4. On appeal, the Appellate Body upheld the orig inal panel's findings that Section 751(c)(4)(B) 
of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations are inconsistent as such with 
Article 11.3 of the  Anti-Dumping Agreement .6  There was no appeal of the original panel's finding 
that the USDOC's sunset determination on Argentine OC TG is inconsistent with Article 11.3 of the  
Anti-Dumping Agreement . 
5. The original panel and Appellate Body  reports were adopted by the DSB on 
17 December 2004.7  The "reasonable period of time" for the United States to implement  
the DSB's recommendations and rulings  was determined by arbitration pursuant to Article 21.3(c) of 
the DSU.  The Arbitrator determined a "reasona ble period of time" of 12 months, expiring on 
17 December 2005.8 
6. On 28 October 2005, the USDOC announced that it was amending its Regulations  
relating to sunset reviews.9  In particular, the USDOC amende d Section 351.218(d)(ii) relating to 
"affirmative" waivers and repealed Section 351.218(d)(iii) relating to "deemed" waivers.10  T h e  
amendments became effective on 31 October 2005 and we re applicable to sunset reviews initiated on 
or after that date.  Section 751(c)(4 ) of the Tariff Act was not changed. 
7. On 2 November 2005, the USDOC initiated Sec tion 129 proceedings to address the original 
panel's and Appellate Body's findings adopted by the DSB regarding the sunset review on Argentine 
OCTG.  The USDOC's Section 129 Determination11 was issued on 16 December 2005.  In the 
Section 129 Determination, the USDOC found that  "there [was] likelihood of continuation or 
recurrence of dumping had the antidumping duty or der on OCTG from Argentina been revoked in 
2000, i.e., at the end of the original sunset review period."12   
                                                      
6Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 365(c)(i). 
7WT/DS268/8. 
8Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews , para. 53. 
9Procedures for Conducting Five-Year ("Sunset") Reviews of Antidumping and Countervailing Duty 
Orders, Final rule, United States Federal Register , Vol. 70, No. 208 (28 October 2005), pp. 62061-62064 
(Exhibit ARG-12 submitted by Argentina to the Panel).  
10The text of these provisions, before and af ter the amendments, as well as the text of 
Section 751(c)(4)(B) of the Tariff Act, are set out  infra   at paras. 106-107, and footnotes 207 and 246. 
11USDOC Memorandum from S. Claeys to J.A. Spetrini, "Section 129 Determination: Final Results of 
Sunset Review, Oil Country  Tubular Goods from Argentina", A-357 -810 (16 December 2005) (Exhibit ARG-16 
submitted by Argentina to the Panel). 
12Section 129 Determination, supra , footnote 11, p. 11.   WT/DS268/AB/RW 
Page 4  
 
8. Argentina considered that the United States had failed to bring its measures into conformity 
with the United States' obligations under the  Anti-Dumping Agreement  and the WTO Agreement   
and requested that the matter be referred to a panel pursuant to Article 21.5 of the DSU.  On 
17 March 2006, the DSB referred the matter to the original panel.  Before the Panel in these 
Article 21.5 proceedings, Argentina claimed that the amendments to the USDOC's Regulations and 
the Section 129 Determination failed to bring the United States into compliance with the 
recommendations and rulings of the DSB, and the United States thereby continued to act 
inconsistently with, inter alia , Articles 11.3 and 11.4 of the  Anti-Dumping Agreement .
13 
9. The Panel Report was circulated to the Members of the World Trade Organization (the 
"WTO") on 30 November 2006.  The following conclusi ons of the Panel are relevant for purposes of 
this appeal: 
(a) The United States waiver provisions under Section 
751(c)(4)(B) of the Tariff Act, operating in conjunction with 
Section 751(c)(4)(A) of the Tariff Act and Section 
351.218(d)(2) of the Regulations, remain inconsistent  with 
Article 11.3 of the [Anti-Dumping] Agreement, 
(b) The USDOC did  not  act inconsistently with Articles 11.3 
and 11.4 of the [Anti-Dumping] Agreement by developing a 
new factual basis for its Section 129 Determination, [and] 
(c) The USDOC acted inconsistently  with Article 11.3 of  
the [Anti-Dumping] Agreement as the Section 129 Determination that dumping was likely to continue or recur lacked a sufficient factual basis w ith regard to its analysis of 
both (1) likely past dumping and (2) volume[.]
14 (original 
emphasis) 
 
10. The Panel concluded that, "[s]ince the origin al DSB recommendations and rulings in 2004 
remain operative, [it] make[s] no new recommendation."15 
                                                      
13Panel Report, para. 3.1. 
14Ibid., para. 8.1.  In addition, the Panel concluded that the USDOC acted inconsistently  with 
Article 6.4 of the Anti-Dumping Agreement —because it did not give the Argentine exporters timely 
opportunities to see certain information that the USDO C used in its Section 129 Determination—and with 
Article 6.5.1—because the USDOC did  not require a petitioner submitting confidential information to submit a 
non-confidential su mmary thereof. ( Ibid., para. 8.1(e) and (f))  However, th e Panel rejected Argentina's claims 
that the USDOC acted inconsistently with Articles 6.1, 6.2, 6.6, and 6.9 of the Anti-Dumping Agreement . (Ibid., 
para. 8.1(d), (g), and (h)) 
15Ibid., para. 8.2. (footnote omitted)  WT/DS268/AB/RW 
 Page 5 
 
 
11. Argentina made a request, pursuant to Article 19. 1 of the DSU, "that the Panel suggest that 
the United States bring its measures into conform ity with its WTO obligations by revoking the anti-
dumping  order at issue."16  In response, the Panel stated that , "[i]n the circumstances of the present 
proceedings, ... we see no particular reason to make such a suggestion and therefore decline 
Argentina's request."17 
12. On 12 January 2007, the United States notified the DSB, pursuant to Article 16.4 of the DSU, 
of its intention to appeal certain issues of la w covered in the Panel Report and certain legal 
interpretations developed by the Panel and filed a Notice of Appeal18 pursuant to Rule 20 of the 
Working Procedures for Appellate Review  (the " Working Procedures ").19  On 19 January 2007, the 
United States filed an appellant's submission.20  On 24 January 2007, Argentina notified the DSB, 
pursuant to Article 16.4 of the DSU, of its intenti on to appeal certain issues  of law covered in the 
Panel Report and certain legal inte rpretations developed by the Pa nel and filed a Notice of Other 
Appeal 21 pursuant to Rule 23(1) and (2) of the  Working Procedures .  On 29 January 2007, Argentina 
filed an other appellant's submission.22  On 5 February 2007, the European Communities filed a third 
participant's submission.23  On 6 February 2007, Argentina and the United States each filed an 
appellee's submission.24  On the same day, China and Japan  each filed a third participant's 
submission 25, and Korea and Mexico each notified the Appella te Body Secretariat of its intention to 
appear at the oral hearing and to make an oral statement.26   
13. The oral hearing in this appeal was held on 19 February 2007.  The participants and the third 
participants presented oral arguments and respond ed to questions posed by the Members of the 
Division hearing the appeal. 
 
                                                      
16Panel Report, para. 9.1. 
17Ibid., para. 9.4. 
18WT/DS268/19 (attached as Annex I to this Report). 
19WT/AB/WP/5, 4 January 2005. 
20Pursuant to Rule 21 of the Working Procedures . 
21WT/DS268/20 (attached as Annex II to this Report). 
22Pursuant to Rule 23(3) of the Working Procedures . 
23Pursuant to Rule 24(1) of the Working Procedures . 
24Pursuant to Rules 22 and 23(4) of the Working Procedures . 
25Pursuant to Rule 24(1) of the Working Procedures . 
26Pursuant to Rule 24(2) of the Working Procedures . WT/DS268/AB/RW 
Page 6  
 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the United States – Appellant 
1. Amended Waiver Provisions
 
14. The United States requests that the Appellate Body reverse the Panel's finding that 
Section 751(c)(4)(B) of the Tariff Act, operating in  conjunction with Section 751(c)(4)(A) of the 
Tariff Act and Section 351.218(d)(2) of the Regul ations (collectively, the "amended waiver 
provisions") are inconsistent with Article 11.3 of the  Anti-Dumping Agreement .  The United States 
makes three claims in this regard:  (i) that th e Panel committed a legal error when it considered 
whether Section 751(c)(4)(B) of the Tariff Act  could  breach Article 11.3 of the  Anti-Dumping 
Agreement , rather than considering whether the statute  mandates  a breach;  (ii) that the Panel 
inappropriately shifted from Argentina to the Un ited States the burden of providing arguments and 
evidence;  and (iii) that the Panel failed to make an objective assessment of the matter, as required by 
Article 11 of the DSU.  
(a) The Panel's Approach to Examini ng the Consistency of the Amended 
Waiver Provisions with Article 11.3 of the Anti-Dumping Agreement  
15. The United States asserts that the Panel correctly stated that its task was to consider whether 
Section 751(c)(4)(B) of the Tariff Act precludes the US DOC from making, in some or all situations, a 
reasoned determination of likeli hood of continuation or recurrence of dumping if the order were 
revoked, as required under Article 11.3 of the  Anti-Dumping Agreement .  According to the United 
States, the Panel's formulation of its task in th is way amounted to "a variation on the classic 
mandatory/discretionary distinction used in de termining whether a statutory provision 'as such' 
breaches a particular WTO obligation."27  
16. According to the United States, the Panel set out the proper test and then failed to apply it.  
The United States explains that the Panel correctly noted that, under United Stat es law, determinations 
of likelihood of dumping for purposes of sunset  reviews are conducted on an order-wide basis.28  An 
individual respondent company may elect to waive participation in a sunset review, pursuant to 
Section 751(c)(4)(A) of the Tariff Act, with the eff ect that an affirmative finding of likelihood of 
                                                      
27United States' appellant's submission, para. 9 (referring to Appellate Body Report, US – Section 211 
Appropriations Act , para. 259, in turn referring to Appellate Body Report, US – 1916 Act , para. 88, and GATT 
Panel Report , US – Tobacco , para. 118).  According to the United Stat es, the effect of the finding in the GATT 
Panel Report in  US – Tobacco  is that, in order for a statute to be WTO-consistent, it "need not unambiguously 
require a WTO-consistent result";  rather, it need only  "permit" one. (United States' appellant's submission, 
para. 13) 
28Ibid., para. 11 (referring to Panel Report, paras. 7.37-7.38).  WT/DS268/AB/RW 
 Page 7 
 
 
dumping will be made for that company under Secti on 751(c)(4)(B).  Section 351.218(d)(2)(ii) of the 
Regulations provides that the election not to particip ate in the sunset review must be effectuated by 
filing a "statement of waiver", which must now in clude a statement that the respondent interested 
party is likely to dump if the order were re voked or the investigation were terminated.   
17. The United States asserts that the Panel ultimately concluded that the "USDOC 'will have to 
find likelihood [of dumping] on an order-wide basis if one exporter waives its right to participate'"29, 
notwithstanding the United States' explanation that this was not a result required under United States 
law.  The United States argues that the Panel di d not examine whether Section 751(c)(4)(B) precludes 
a reasoned and adequate order-w ide determination consistent  with Article 11.3 of the Anti-Dumping 
Agreement   but, rather, the Panel "examined just the opposite" 30, namely, whether there were any 
provisions of United States law that preclude Sec tion 751(c)(4)(B) from requiring an affirmative 
order-wide determination where one respondent compan y waives its right to participate.  The Panel 
thereby misdirected itself and revers ed the standard enunciated in  US – Tobacco , making it 
incumbent on the United States to show that the provi sions of United States law definitively foreclose 
any opportunity that order-wide determinati ons might be affected by company-specific 
determinations, and that United States law establishes that these two determinations are 
"independent".31   
18. The United States argues further that, on the b asis of the mandatory/discretionary standard, 
the Panel's factual recognition that "[t]here is no provision under [United States] law, statutory or 
otherwise ..., that determines the outcome of the US DOC's order-wide sunset  determinations" should 
have obliged the Panel to find that Sec tion 751(c)(4)(B) did not breach Article 11.3.32  According to 
the United States, if there is nothing in United St ates law requiring the USDOC to reach a particular 
outcome in its order-wide sunset determinations, then, by definition, Section 751(c)(4)(B) neither 
precludes, nor requires, a particular result in orde r-wide determinations.  The United States criticizes 
the Panel for, instead, concluding on this factual basis that Section 751(c)(4)(B) of the Tariff Act did 
breach Article 11.3 of the Anti-Dumping Agreement  and for, in the process, rejecting the United 
States' explanation that, in making its affirma tive order-wide determinations, the USDOC does not 
rely only on a company-specific finding pursuant to Section 751(c)(4)(B) but, rather, on all the 
evidence on the record.33   
                                                      
29United States' appellant's submission, para. 11 (quoting Panel Report, para. 7.39). 
30Ibid., para. 11. 
31Ibid., para. 13 (referring to Panel Report, para. 7.39). 
32Ibid., para. 12 (quoting Panel Report, para 7.37). 
33Ibid., para. 12. WT/DS268/AB/RW 
Page 8  
 
(b) Burden of Proof 
19. The United States claims that the Panel relieved Argentina of its burden to provide arguments 
and evidence establishing that the amended waiver provi sions are inconsistent with Article 11.3 of the  
Anti-Dumping Agreement .  According to the United States, the Panel relied on "pure speculation" in 
finding that the USDOC "will" have to find likelih ood of dumping on an order-wide basis if one 
company waives its right to participate.
34  Specifically, the United States cites as "speculative" various 
statements in which the Panel suggested that co mpany-specific determinations of likelihood of 
dumping made pursuant to Section 751(c)(4)(B) of th e Tariff Act have a determinative impact on the 
order-wide determination.35  The United States also questions the basis of the Panel's statement that 
the USDOC would not consider evidence submitted by exporters who do not waive their right to 
participate in the USDOC's sunset review investigation.36  According to the United States, the Panel's 
reasoning in arriving at these conclusions is "not  logical" and "does not hold up on its face".37  
Further, the United States argues that the Panel fa iled to support its "speculations" with factual 
evidence, which in any event would have been im possible since Argentina had never even made the 
arguments apparently relied on by the Panel.38  The United States contends that the Panel thereby 
erroneously shifted the burden of  proof to the United States to disprove "unproven assertions".39  
20. The United States recalls that the burden of proof was on Argentina to demonstrate that the 
statute could not be applied in a manner consiste nt with Article 11.3.  Instead, the Panel wrongly 
considered that it was for the United States to illust rate that, under United States law, order-wide and 
company-specific determinations of likelihood of dumping are independent of each other, and 
therefore that United States laws could not be applie d in a manner inconsistent with Article 11.3.  The 
United States claims that, although Argentina's ar gument was that the USDOC's alleged lack of 
discretion in making an affirmative determination ab out a company waiving participation "tainted" the 
order-wide determination, the Panel did not address this argument.40  Rather, according to the United 
States, the Panel focused on its own conclusion th at Section 751(c)(4)(B) of the Tariff Act requires 
that an affirmative company-specific determinati on of likelihood of dumping result in an affirmative 
order-wide determination without re gard to the evidence relating to other companies that do not waive 
                                                      
34United States' appellant's submission, para. 14.  
35Ibid. (referring to Panel Report, paras. 7.37 and 7.39). 
36Ibid., para. 14 (referring to Panel Report, para. 7.40).   
37Ibid., para. 14. 
38Ibid., para. 15.  
39Ibid., paras. 15 and 22. 
40Ibid., paras. 19-21 (referring to Argentina's response to Question 7  posed by the Panel, Panel Report, 
p. E-7, para. 20).   WT/DS268/AB/RW 
 Page 9 
 
 
participation.41  The United States argues that this line of argument was neither asserted, nor proven, 
by Argentina.   
(c) Objective Assessment of the Matter under Article 11 of the DSU 
21. The United States claims that the Panel failed to make an objective assessment of the matter 
as required under Article 11 of the DSU.  The Un ited States recalls the Panel's finding that 
Section 751(c)(4)(B) of the Tariff Act and Section 3 51.218(d)(2) of the Regulations are inconsistent 
as such with Article 11.3 of the Anti-Dumping Agreement .42  Bearing in mind the jurisprudence of the 
Appellate Body that the starting point for consider ing "as such" claims is always the text of the 
municipal law in question43, the United States argues that the Panel was first required to analyze 
whether the statute and Regulations require, for purposes of United States municipal law, the USDOC to make an affirmative order-wide determination,  without considering other probative evidence that 
might be relevant to that determination.  Accord ing to the United States, the Panel should have made 
this determination based on an examination of th e regulatory and statutory text as well as the evidence 
proffered by the parties.   
22. The United States recalls that Argentina had argued simply that the United States was 
required to repeal Section 751(c)(4)(B) of the Tariff Act, because the statute continues to mandate a 
finding of likelihood of dumping at the company-spec ific level, which would "taint" the order-wide 
determination and would therefore be in consistent with Article 11.3 of the  Anti-Dumping Agreement .  
However, according to the United States, the recomme ndations and rulings of the DSB in this case do 
not prohibit statutorily-mandated findings of likelihood of future dumping  per se ;  rather, they do not 
permit statutorily-mandated findings based on  assumptions .  The United States argues that Argentina 
failed to provide evidence—either based on the text of  the statute, its applica tion, or otherwise—that 
Section 751(c)(4)(B) requires a determination based on an  assumption . 
23. Further, the United States argues that the Pa nel breached Article 11 of the DSU because it 
engaged in its own analysis based on facts not argu ed by Argentina and not on the record.  In so 
doing, the United States contends, "[t]he Panel disr egarded the evidence before it and made findings 
that lacked a basis in the ... panel record."
44  The United States explains that the factual evidence did 
not show that the text of the statute mandates a WT O-inconsistent order-wide finding of likelihood of 
dumping, and that the Panel did not refer to other evidence establishing the meaning of the statute.  
                                                      
41United States' appellant's submission, para. 20 (referring to Panel Report, para. 7.40).  
42Ibid., para. 25 (referring to Panel Report, para. 7.41). 
43Ibid., paras. 25-26 (referring to Appellate Body Report, US – Carbon Steel , para. 157;  and Appellate 
Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 168). 
44Ibid., para. 34.  WT/DS268/AB/RW 
Page 10  
 
The Panel could not have done so because the amende d provisions have never been applied.  Further, 
the factual finding that the Panel did make—that is , that no provision of United States law determines 
the outcome of the USDOC's order-wide determination
45—is irreconcilable with the Panel's own 
conclusion that "the USDOC may have to find likelihood on an order-wide basis because of the 
company-specific determinations that it may have made under Section 751(c)(4)(B)".46   
24. According to the United States, the Panel breached further Article 11 of the DSU by 
disregarding evidence that contradicted its ultimate conclusion that the statute is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement .  The United States emphasizes that the USDOC makes 
the order-wide determination on the basis of  all  the evidence before it—which would include, but is 
not limited to, the company-specific determination.  The USDOC specifically included a statement 
explaining that it would proceed in this manne r in the preamble to its amended regulation.47  
According to the United States, the import of  this "uncontradicted evidence" was that, 
notwithstanding a company's statement that it is likely to dump, none of the statutory or regulatory waiver provisions prevent the USDOC from making a determination that dumping is not likely if there is countervailing evidence to that effect.
48 
25. For these reasons, the United States requests th e Appellate Body to reverse the Panel's 
findings that the amended waiver provisions are inconsistent with Article 11.3 of the Anti-Dumping 
Agreement . 
2. The USDOC's Finding on Import Volumes  
26. The United States requests the Appellate Body to  reverse the Panel's finding that the volume 
analysis on which the USDOC had partly based its first sunset review determination in 2000, and 
which it incorporated by reference and in an uncha nged form into the Section 129 Determination, was 
properly before it.  Specifically, the United Stat es challenges the Panel's finding that the volume 
analysis was part of the "measure taken to comply" under Article 21.5 of the DSU.   
27. In its original sunset review determination,  the USDOC based its affirmative likelihood-of-
dumping determination on two factual bases:  first,  that dumping had conti nued over the life of the 
anti-dumping duty order;  and second, that import vol umes had declined after the imposition of the 
order.  The United States recalls that the original pa nel found that the factual basis of the first finding 
                                                      
45United States' appellant's submission,  para. 34 (referring to Panel Report, para. 7.37).  
46Ibid., para. 34 (quoting Panel Report, para. 7.37). 
47Ibid., para. 31 (referring to United States' response to Question 3 posed by the Panel, Panel Report, 
p. E-57, para. 11). 
48Ibid., para. 32.   WT/DS268/AB/RW 
 Page 11 
 
 
by the USDOC—that is, that dumping had contin ued over the life of the anti-dumping duty order—
was "flawed".49  The United States notes that the original panel exercised judicial economy with 
respect to the second factual finding of the USDOC, th at is, that import volumes had declined after the 
imposition of the order.  According to the United St ates, in conducting its S ection 129 Determination, 
the USDOC complied with the recommendations and ru lings of the DSB with respect to the first 
factual basis.  However, as the recommendations  and rulings identified no error concerning the 
volume analysis, the USDOC could not "fix any such unidentified flaws, nor did [the] 
recommendations and rulings oblige [the USDOC] ... to do so".50  
28. The United States challenges the Panel's finding that "[t]he fact that a panel, in an original 
dispute settlement proceeding, did not make fi ndings ... cannot preclude a compliance panel ... from 
reviewing those aspects which ha ve been incorporated ... in the measure taken to comply."51  
According to the United States, the Appellate Body has noted that the starting point for identifying 
"measures taken to comply" is the r ecommendations and rulings of the DSB.52  Since no DSB 
recommendations or rulings were made specific to  the USDOC's original volume analysis, it could 
not have been within the scope of these complianc e proceedings.  Instead of starting with the DSB's 
recommendations and rulings, the United States conte nds, the Panel began with the wrong assumption 
that the Section 129 Determination as a whole was th e measure taken to comply, then found that the 
volume analysis was an "integral" part of it, a nd therefore concluded that the volume analysis was 
within its terms of reference and the scope of the measure taken to comply.53   
29. The United States refers to the Appellate Body's holding in  EC – Bed Linen (Article 21.5 – 
India) that, because the recommendations and rulings of the DSB did not require the European 
Communities to redo its "other factors" analysis in order to bring its measure into compliance, that 
aspect of the re-determination was beyond the scope  of those Article 21.5 proceedings.  The United 
States asserts that, in these proceedings, the Panel' s discussion of the Appellate Body's reasoning in 
EC – Bed Linen  (Article 21.5 – India)  supports the conclusion that the volume analysis was not part 
of the measure taken to comply.54  The United States notes that, a ccording to the Panel, that case 
stands for the proposition that, in some instances, pa rts of a re-determination that merely incorporate 
elements of the original determination do not au tomatically become an inseparable part of the 
                                                      
49United States' appellant's submission, para. 35. 
50Ibid.  
51Ibid., para. 39 (quoting Panel Report, para. 7.92). 
52Ibid., para. 40.  
53Ibid., paras. 39-40 (referring to Panel Report, paras. 7.91-7.92). 
54Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 93 
and 96).  WT/DS268/AB/RW 
Page 12  
 
measure taken to comply.
55  The United States notes, in this regard, that the volume analysis was not 
affected by the revised dumping analysis. 
30. The United States also challenges the Panel' s assessment that the present dispute is 
"distinguishable" from  EC – Bed Linen (Article 21.5 – India) .  According to the United States, if 
there is a distinction, it is not "legally significant".56  In that dispute, as well as in US – Shrimp 
(Article 21.5 – Malaysia) , the important consideration was that , regardless of the reason for the 
absence of a DSB recommendation or ruling in the original proceedings, the complainant should not 
be afforded a "second chance" in compliance proceedings to obtain a finding that it could not secure 
in the original proceedings.57  The United States recalls that, in  EC – Bed Linen (Article 21.5 – India) , 
the Appellate Body rejected India's claim on the basis that "an  unappealed  finding included in a 
panel report that is  adopted  by the DSB must be treated as a  final resolution  to a dispute between 
the parties in respect of the  particular   claim and the  specific  component of a measure that is the 
subject of that claim."58  According to the United States, the important consideration is the finality of 
the unappealed findings, which is e qually applicable to this case becau se the original panel exercised 
judicial economy and Argentina accepted the original panel's finding on the volume analysis.59  
Although Argentina had asked the original panel to  make factual findings, it never appealed the 
exercise of judicial economy in the original pr oceedings, but waited until the compliance proceedings 
to challenge the volume analysis.60   
31. The United States asserts further that the con sequences of the original panel's exercise of 
judicial economy, and Argentina's failure to app eal it, should not fall entirely on the respondent.61  
Such an approach would "collapse" the textually distinct requirements of compliance proceedings and 
original proceedings, and would a llow panels and complaining parties to "undo" choices that they 
made in original proceedings.62  Under the Panel's approach, a respondent that had not changed an 
aspect of its measure because it was not subject to  the DSB recommendations and rulings would learn 
for the first time at the compliance stage that certa in aspects of its measures were WTO-inconsistent, 
                                                      
55United States' appellant's submission,  para. 45 (referring to Panel Report, para. 7.94).  
56Ibid., para. 47.  
57Ibid. (quoting Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96).  
58Ibid., para. 43 (quoting Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 93 
(original emphasis)). 
59United States' statement at the oral hearing.  
60United States' appellant's submission,  para. 48 (referring to Original Panel Report, para. 6.11).   
61The United States agrees with a st atement of the recent panel in Chile – Price Band System  
(Article 21.5 – Argentina)  that cautions against permitting compla ining parties to "misuse ... the special 
expedited procedures contemplated in Article 21.5 of the DSU" at the expense of the respondent. ( Ibid., para. 48 
(quoting Panel Report, Chile – Price Band System  (Article 21.5 – Argentina) , para. 7.142)) 
62Ibid., paras. 36 and 50.  WT/DS268/AB/RW 
 Page 13 
 
 
and, therefore, the respondent would not have a "r easonable period of time" to bring its measure into 
compliance.  Unlike the respondent that is e xposed to suspension of concessions without a 
"reasonable period of time" to bring its measur e into compliance, the complainant suffers no 
"comparable disadvantage" given that it can always bring a new dispute.63 
32. The United States submits that another "troubling aspect" of the Panel's reasoning is that, in 
cases where the original panel declines to make fi ndings on a particular aspect of a measure, the 
respondent would be required "to guess  that the panel might have thought  there were WTO 
inconsistencies" with respect to that aspect of the measure.64  This would "strip" the complainant of its 
obligation to make its case in the original proceedi ngs and the panel of its obligation to comply with 
Article 11 of the DSU, which requires panels to  make findings that assist the DSB in making 
recommendations and rulings under the covered agreements.65 
33. For these reasons, the United States requests the Appellate Body to reverse the Panel's  
finding that the volume analysis was properly befo re it and, consequently, to declare the Panel's 
finding, that the volume analysis is in consistent with Article 11.3 of the  Anti-Dumping Agreement , to 
be "moot and of no legal effect".66 
B. Arguments of Argentina – Appellee 
1. Amended Waiver Provisions  
34. Argentina requests the Appellate Body to reject all of the United States' claims of error 
regarding the Panel's assessment of  the amended waiver provisions.  Argentina contends that the 
United States' arguments are based on a misunde rstanding of the findings of the panel and the 
Appellate Body in the original proceedings.   
(a) The Panel's Approach to Examini ng the Consistency of the Amended 
Waiver Provisions with Article 11.3 of the Anti-Dumping Agreement  
35. In response to the United States' argument that Section 751(c)(4)(B) of the Tariff Act does not 
mandate a breach of Article 11.3 of the Anti-Dumping Agreement , Argentina argues that the United 
States "confuses the issue".67  For Argentina, the issue is not whether the amended waiver provisions 
                                                      
63United States' appellant's submission, para. 48 (referring to Panel Report, Chile – Price Band System  
(Article 21.5 – Argentina) , para. 7.153). 
64Ibid., para. 49. (original emphasis) 
65Ibid.   
66Ibid., para. 51.  
67Argentina's appellee's submission, paras. 26-27 (referring to United States' appellant's submission, 
para. 12). WT/DS268/AB/RW 
Page 14  
 
mandate an affirmative determinati on on an order-wide basis;  rather, as considered by the panel and 
the Appellate Body in the original proceedings , as well as by the Panel in these Article 21.5 
proceedings, the issue is whether the operation of the amended waiver provisions prevents the 
USDOC from reaching a reasoned determination based on all the evidence with respect to a company 
waiving participation in the sunset  review.  Argentina recalls that, in the original proceedings, the 
Appellate Body found that Section 751(c)(4)(B) was inconsistent with Article 11.3 because it 
mandated the USDOC to find that a waiving company is  likely to dump, which in turn meant that the 
order-wide determination would be based, "a t least in part, on statutorily-mandated  assumptions   
about a company's likelihood of dumping".
68  According to the Appellate Body, this order-wide result 
was inconsistent with the obligation of an investig ating authority to arrive at a reasoned conclusion on 
the basis of "positive evidence".69  Given that Section 751(c)(4)(B) has not been amended, the WTO-
inconsistent aspects of the waiver provisions remain  in place and nothing has been done by the United 
States to address the source of the violation;  Section 751(c)(4)(B) continues to mandate an 
affirmative finding for a company that waives partic ipation.  Argentina explains that the statute 
divests the USDOC of discretion to weigh other ev idence as to a company's likelihood to dump and 
therefore prevents the USDOC from arriving at a re asoned conclusion.  Argentina contends further 
that, "even assuming  arguendo  that an admission of likely dumping constitutes positive evidence, 
the USDOC is still required to conduct a 'review' a nd to make a 'determination' that dumping would 
be likely/probable in the event of termination of the duty.  ...  That determination cannot rest on 
'assumptions' based on a statutorily-mandated finding of likelihood and remain consistent with the 
requirements of Article 11.3."70  The fact that the statutory mandate is now triggered by a statement 
from the waiving exporter that it is likely to dump does not change the nature of the violation of Article 11.3.   
36. Moreover, Argentina asserts that the USDOC continues to take into account company-
specific likelihood-of-dumping determinations wh en making an order-wide likelihood-of-dumping 
determination.  Argentina notes that the Appellate Body found in the original proceedings that, even 
assuming that the USDOC took into account the totalit y of record evidence in making its order-wide 
determination, as a result of the operation of the waiver provisions, certain  order-wide  likelihood-of-
dumping determinations made by the USDOC would be based on statutorily-mandated  assumptions  
                                                     
 
68Argentina's appellee's submission, para. 16 (quoting Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 234).  (original emphasis) 
69Ibid., para. 16 (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 234). 
70Ibid., para. 20.  WT/DS268/AB/RW 
 Page 15 
 
 
about a company's likelihood of dumping.71  This finding confirms that a company-specific 
determination need not determine, or necessarily resu lt in, an affirmative order-wide determination in 
order for the latter to be inconsistent with Article  11.3;  rather, the company-specific determination 
need only to be taken into account in  the order-wide determination.   
37. Argentina submits that the United States' reliance on the GATT Panel Report in US – 
Tobacco  for the proposition that "a statute need not ... require a WTO-consistent result, but only that 
it permit a WTO-consistent result", in fact reinforc es Argentina's argument of inconsistency, because 
it is the unchanged statutory mandate (irrespective of the fact that it is now triggered by an admission) 
that gives rise to the WTO-inconsistency.72  Argentina contends that the Panel in this case correctly 
found that the amended waiver provisions continue to mandate a particular company-specific determination that affects the order-wide determination.
73  Argentina also argues that the United 
States has failed to provide any rebuttal to Arge ntina's submission that, once a company waives 
participation in the USDOC stage of the sunset re view, the USDOC must, pursuant to the statutory 
mandate, make an affirmative determin ation with respect to that company.  
38. Argentina asserts that the Panel correctly held  that the amended waiver provisions "do", and 
not simply "could", violate Article 11.3 of the  Anti-Dumping Agreement .74  In this regard, Argentina 
notes that the United States admits that the Panel set forth for itself the correct test of whether 
Section 751(c)(4)(B) precludes the USDOC from making a reasoned determination based on an adequate factual foundation.  Argentina argues that , even after the modification of the Regulations, 
the statute continues to require statutorily-mandated affirmative findings for a company that elects to 
waive participation in the sunset review, regardless of the other evidence on the record, which in turn 
affects the order-wide determination.  Argentina also  contends that the Appellate Body has made it 
clear that, contrary to the United States' assertion, the mandatory/discretionary test is not dispositive 
and that its relevance may vary from case to case.
75  Moreover, the Panel recognized that, in some 
circumstances, Section 751(c)(4)(B) prevents an objective assessment of the admission made by the 
                                                      
71Argentina's appellee's submission, para. 36 (referring to Appellate Body Report,  US – Oil Country 
Tubular Goods Sunset Reviews , para. 234). 
72Ibid., para. 28 (quoting United States' appellant's submission, para. 13).  
73Argentina's statement at the oral hearing.  
74Argentina submits that the United States' focus on whether the amended waiver provisions "could" or 
"do" violate Article 11.3 suggests that the United States does not believe that the application of the new provisions could actually be in breach unless they had been applied.  Argen tina argues, however, that, especially 
in the context of compliance proceedings, it is no defence to an "as such" claim that a new provision has not as 
yet been applied in the context of an "as applied" ch allenge. (Argentina's appellee's submission, footnote 38 to 
para. 35) 
75Ibid., footnote 38 to para. 35 (referring to Appellate Body Report, US – Corrosion-Resistant Steel 
Sunset Review , para. 93;  and Appellate Body Report, US – Zeroing (Japan) , para. 211). WT/DS268/AB/RW 
Page 16  
 
waiving company.  According to Argentina, the United States has not asserted that this statement is 
incorrect, so there is no basis for the United States' cl aim that the Panel failed to satisfy its own test of 
WTO-consistency.  
(b) Burden of Proof 
39. Argentina rejects the United States' argument th at the Panel reversed the burden of proof.  
Argentina submits that it properly identified the rele vant text of the statutory and regulatory waiver 
provisions, noted that Section 751(c)(4)(B) had neith er been repealed nor amended, and demonstrated 
that the amendment of the Regulations di d not eliminate the WTO-inconsistency of 
Section 751(c)(4)(B) of the Tariff Act.  Acco rding to Argentina, it had established a  prima facie  
case, based on the text of the amended waiver pr ovisions, that the operation of Section 751(c)(4)(B) 
prevents the USDOC from basing its likelihood-of- dumping determination on anything other than the 
statutory mandate. 
40. Argentina also dismisses the United States' sugg estion that the Panel's approach was entirely 
different from the approach taken by Argentina in its arguments.
76  According to Argentina, the Panel 
recognized that the operation of Section 751(c)(4)(B) prevents an analysis of all the evidence with 
respect to the company waiving participation and therefore found that the order-wide determination 
remained inconsistent with Article 11.3.77  Argentina also disagrees with  the United States' contention 
that the Panel shifted the burden to the United Stat es to disprove an allegation that Argentina had 
never proven, namely, that an affirmative compan y-specific determination would necessarily lead to 
an affirmative order-wide determination.78  This was not Argentina's argument, nor was it the 
argument on which the Panel based its finding. 
(c) Objective Assessment of the Matter under Article 11 of the DSU 
41. Argentina contends that the Panel met its oblig ations under Article 11 of the DSU to make an 
objective assessment of the matter before it.  As required under that provision, the Panel neither 
distorted nor disregarded any evid ence on the issues presented to it. 
42. Argentina recalls the United States' argument th at the Panel should have examined whether 
the text of the amended waiver provisions, as well as evidence establishing the meaning of the provisions, require an affirmative order-wide dete rmination whenever there is a company-specific 
                                                     
 
76Argentina's appellee's submission, para. 44 (referring to United States' appellant's submission, 
para. 19). 
77Ibid., para. 44 (referring to Panel Report, para. 7.36). 
78Ibid., para. 48 (referring to United States' appellant's submission, para. 22).  WT/DS268/AB/RW 
 Page 17 
 
 
waiver.79  Argentina contends, however, that this wa s not the proper "test" to resolve the issue80;  
rather, as the United States agrees, the issue was whether there was ev idence that the amended waiver 
provisions preclude the USDOC in some or all s ituations from making a reasoned conclusion based 
on an adequate factual foundation.  Indeed, the Panel clearly did find that the amended waiver 
provisions precluded the USDOC from making such a reasoned determination.81  Argentina also 
rejects the United States' assertion that the Panel did not base its "as such" finding on the text of the 
statute or on the arguments of the parties.  Argen tina notes that the Panel examined the text of the 
statute in the light of the Statement of Administrative Action82 and the relevant provisions of the 
Regulations, and that the Panel's finding was based on the United States' acknowledgment of the role 
and importance of company-specific findings for order-wide determinations.83  Argentina furthermore 
points out that the United States did not direct the Panel's attention to any provision of United States 
law supporting the proposition that the company- specific and order-wide determinations are 
independent of each other.84 
2. The USDOC's Finding on Import Volumes  
43. Argentina requests the Appellate Body to rej ect the United States' appeal of the Panel's 
finding that the USDOC's volume analysis was part of the "measure taken to comply".  Argentina 
notes that it is uncontested that the USDOC relied on the analysis of the decline in import volumes in 
its Section 129 Determination.85 
44. Argentina argues that WTO jurisprudence do es not support the United States' reading of 
Article 21.5 of the DSU but, rather, suggests that the "measures taken to comply" must be considered in their "totality".
86  Further, Argentina argues that the Unite d States misinterprets and misapplies the 
Appellate Body decision in  EC – Bed Linen (Article 21.5 – India) .  According to Argentina, the 
Appellate Body's findings regarding the final resolu tion of an issue between the parties, for purposes 
                                                      
79Argentina's appellee's submission, para. 60 (referring to United States' appellant's submission, 
para. 34). 
80Ibid., para. 63. 
81Ibid., para. 62 (referring to Panel Report, para. 7.41). 
82Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 
(1994), reprinted in  1994 USCAAN 3773, 4040 (Exhibit ARG-31 submitted by Argentina to the Panel). 
83Argentina's appellee's submission, para. 65 (referring to Panel Report, paras. 7.37 and 7.39). 
84Ibid., para. 67 (referring to Panel Report, para. 7.39). 
85Ibid., para. 73 (referring to Section 129 Determination, supra , footnote 11, pp. 1, 6, and 11;  and 
Panel Report, paras. 7.89-7.90). 
86Ibid., paras. 75-77 (referring to Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) , 
para. 41;  Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 87;  and Appellate Body Report, 
US – Softwood Lumber VI (Article 21.5 – Canada) , para. 102). WT/DS268/AB/RW 
Page 18  
 
of Article 21.5 proceedings, do not apply to situa tions where a panel has exercised judicial economy.
87  
Argentina asserts that the United States omits the "s ingle most relevant" passage relating to judicial 
economy for the purposes of the present app eal and misrepresents the ruling in  EC – Bed Linen 
(Article 21.5 – India) .88  According to Argentina, in this di spute, the original panel's exercise of 
judicial economy afforded Argentina only a partial resolution of the matter at issue, and Argentina 
should not be penalized for the original panel's false exercise of judicial economy. 
45. Moreover, Argentina submits that the United States cannot "unilaterally" determine what 
constitutes a "measure taken to comply" fo r purposes of Article 21.5 of the DSU.89  According to 
Argentina, if the United States' assertion were to prevail, a compliance panel's ability to examine the 
WTO-consistency of compliance measures would be undermined.90  In this case, it is not possible to 
exclude from the Panel's terms of reference either  of the two grounds on which the USDOC based its 
Section 129 Determination.  In addition, Argentina points out that its request for the establishment of 
a panel "specifically identified" both the Sec tion 129 Determination and the finding on import 
volumes relied upon by the USDOC.91  Argentina asserts that the "nexus-based" test, which provides 
that measures "inextricably linked to" or "clearly co nnected to" the steps taken by the respondent to 
implement the recommendations and rulings of the DSB also constitute "measures taken to 
comply" 92, should apply to this dispute because:  (i) th e Section 129 Determina tion was made in order 
to implement the recommendations and rulings of the DSB in the or iginal proceedings;  (ii) the 
USDOC's volume analysis formed an integral part of the Section 129 Determination;  and (iii) the 
USDOC based its likelihood-of-dumping determ ination specifically on the volume analysis.93 
46. Finally, Argentina contends that the United States' claims of procedural unfairness are 
misplaced.  The United States' contention that a resp ondent is deprived of notice when learning of the 
WTO-inconsistency of an aspect of its measure fo r the first time at the compliance stage ignores the 
                                                      
87Argentina's appellee's submission, para. 81. 
88Ibid., para. 82 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 - India) , footnote 
115 to para. 96, which reads in part: 
We believe that in a situation where a panel, in declining to rule on a certain 
claim, has provided only a partial resolution of the matter at issue, a 
complainant should not be held responsible for the panel's false exercise of 
judicial economy, such that a compla inant would not be prevented from 
raising the claim in a subsequent proceeding.) 
89Ibid., subheading III.B.3, p. 27. 
90Ibid., para. 92. 
91Ibid., para. 93. 
92Ibid., paras. 94-96 (referring to Panel Report, Australia – Automotive Leather II (Article 21.5 – US) , 
para. 6.5;  Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10, subparagraph 22;  and Appellate 
Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , paras. 78-79).   
93Ibid., para. 96.   WT/DS268/AB/RW 
 Page 19 
 
 
Appellate Body's ruling that a measure taken to comply will be assessed for WTO-consistency in its 
totality, and not only from the perspective of the cl aims, arguments, and factual circumstances related 
to the original measure;  otherwise, the utility of  the Article 21.5 review would be undermined.94  
Argentina asserts that the United States' approach of immunizing certain aspects of measures taken to comply from Article 21.5 proceedings has been  rejected previously by the panel in  EC – Bananas III 
(Article 21.5 – Ecuador) .
95  Argentina rejects the notion that suspension of concessions resulting from 
a finding of inconsistency regardi ng an unchanged aspect of an original measure would be a "drastic" 
result, because this is the situation contemplated under Article 22.6 of the DSU, regardless of whether 
the measure is a modified version of an old measure or an entirely new one.96  Furthermore, contrary 
to the United States' assertion that it would have to "guess" about a possible claim of inconsistency 
regarding the volume analysis, the United States c ould have readily anticipated a claim in the 
Article 21.5 proceedings because the exact same volum e analysis had been contested in the original 
proceedings, and Argentina had made a specific requ est for findings by the original panel in the 
interim review stage.97   
C. Claims of Error by Argentina – Other Appellant 
1. New Evidentiary Basis  
(a) Interpretation and Application of Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement 
47. Argentina requests the Appellate Body to re verse the Panel's finding that the USDOC was 
permitted to develop a new evidentiary basis for it s Section 129 Determination.  Argentina claims 
that, by failing to consider properly the temporal li mitations contained in Artic les 11.3 and 11.4 of the  
Anti-Dumping Agreement , the Panel committed a legal error in interpreting and applying those 
provisions.  Further, Argentina asserts that the Pane l's reliance on "broader, horizontal considerations 
underpinning the operation of the WTO dispute settle ment system" led to an incorrect interpretation 
of the substantive requirements of Articles 11.3 and 11.4.98  
                                                      
94Argentina's appellee's submission, para. 98 (referring to Appellate Body Report, Canada – Aircraft 
(Article 21.5 – Brazil) , para. 41). 
95Ibid., para. 98 (referring to Panel Report, EC – Bananas III (Article 21.5 – Ecuador) , paras. 6.3  
and 6.9-6.10). 
96Ibid., para. 99. 
97Ibid., para. 101 (referring to United States' appellant's submission, para. 49). 
98Argentina's other appellant's submission, para. 45 (quoting Panel Report, para. 7.51 (footnote 
omitted)). WT/DS268/AB/RW 
Page 20  
 
48. Argentina notes that, in making the Section 129 Determination, the USDOC developed a  
new evidentiary basis to support its  likelihood-of-dumping determination.
99  This was not merely a 
clarification of the information developed in the 200 0 sunset review.  Further, the "undisputed" factual 
record clearly shows that the new information, wh ich could have been developed in 2000, was used 
by the USDOC in 2005 to advance a "new theory" for making its likelihood-of-dumping determination.
100  According to Argentina, allowing th e USDOC to continue applying the anti-
dumping duty when it did not develop sufficient positive evidence at the time of the initial review in 
2000 is inconsistent with Articles 11.3 and 11.4. 
49. Argentina observes that, under the terms of Article  11.3, the "determination" of likelihood of 
future dumping has to occur in a review initiated no later than five years after the imposition of the 
anti-dumping duty.  Moreover, Article 11.3 requires th at an investigating authority exercise diligence 
and rigour in carrying out its investigatory and ad judicatory functions and reach reasoned conclusions 
on the basis of information gathered as part of  a process of reconsideration and examination.101  
Further, under Article 11.4, an anti-dumping duty ma y continue during the course of a sunset review, 
but only as a "further exception" to the requirement to  terminate the measure at the expiry of the five-
year period.  It is permitted only because the investig ating authority is required in a sunset review to 
develop—diligently and actively—the necessary ev identiary basis for its likelihood-of-dumping 
determination.102  Therefore, Argentina argues, Articles 11. 3 and 11.4 establish that the evidentiary 
basis for continuing an anti-dumping duty beyond the presumptive expiration date of five years must 
be developed at the time of the original sunset review.103 
                                                      
99Argentina's other appellant's submission, para 24.  Argentina lists the following as constituting the 
"new evidentiary basis" of the Section 129 Determination:   
... financial statements for the Arge ntine producers for the period 1995-
2000;  cost information for ten categories of OCTG products;  a description 
of each company's sales and marketing pr ocesses;  a statement as to whether 
the company exported OCTG to the Un ited States during the 1995-2000 
period;  confidential import statistics from the [United States] Customs and 
Border Protection authorities ...;  ob served OCTG selling prices in the 
[United States] market during the 1995-2000 period from an industry publication;  financial statements of [United States] producers;  and data 
from Argentine export statistics. 
(Ibid. (referring to Panel Report, paras.  7.48-7.49;  Argentina's first written submission to the Panel, Panel 
Report, pp. A-16 to A-18, paras. 52-67;  and Argentin a's second written submission to the Panel, Panel Report, 
pp. C-5 to C-7, paras. 8-18)) 
100Ibid., paras. 26-27.  
101Ibid., paras. 13-14 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , para. 111). 
102Ibid., para. 29 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 113). 
103Ibid., para. 29.  WT/DS268/AB/RW 
 Page 21 
 
 
50. Argentina submits that, having chosen not to de velop the evidentiary basis during the sunset 
review in 2000, the USDOC did not and could not meet the conditions for invoking the "exception" in 
Article 11.3 and therefore for continuing the anti-du mping duty order.  Argentina explains that, in 
some cases, the nature of a violation has conse quences for the manner in which a Member can bring 
itself into compliance with DSB recommendations a nd rulings, which may in turn mean that it has 
fewer options to achieve compliance.  To illustrate its point, Argentina offers a hypothetical situation 
in which a Member seeking to continue an anti- dumping duty order conducts no review at all and 
simply fails to terminate its measure after five ye ars.  Argentina submits that, in such a case, a 
Member would be precluded from bringing its measur e into compliance by initiating a review for the 
first time after the measure was found by a WTO panel or the Appellate Body to be in violation.   
51. Argentina asserts that, had the USDOC exerci sed sufficient diligence and established a 
sufficient evidentiary basis for its 2000 sunset revi ew determination but faile d to explain adequately 
its decision, the USDOC might have been able to bring itself into compliance in 2005 by clarifying the information collected in 2000 or by further explai ning its action.  However,  as this did not happen, 
the United States could not bring itself into compliance "without negating the rights and obligations 
established in Articles 11.3 and 11.4".
104  Argentina objects to the Panel's suggestion that, as long as 
the USDOC  eventually  complies with its obligation to be "ac tive" in conducting its sunset reviews 
and  eventually  develops an evidentiary basis that contai ns more than an unsubstantiated inference, 
the USDOC complies with the obligations under Articles 11.3 and 11.4.105  
52. Argentina also submits that the Panel ignored th e requirements of Article 3.2 of the DSU and 
the customary international rules of treaty interpreta tion when it subordinated the interpretation of the 
text of Articles 11.3 and 11.4 to the "broader, hor izontal considerations underpinning the operation of 
the WTO dispute settlement system"106 and to "vague and undefined overarching principles of the 
DSU".107  Argentina argues that the Panel's reliance on these broad considerations led to an incorrect 
interpretation of the substantive obligations unde r Articles 11.3 and 11.4.  The Panel should have 
examined the ordinary meaning of key term s in those provisions, such as "review" and 
"determination", and given meaning to those Arti cles through a contextual analysis of the other 
paragraphs of Article 11.108  Instead, in Argentina's view, the Pane l's analysis came "full circle", and 
ended where it started, because it dismissed Argen tina's claim that the United States was precluded 
                                                      
104Argentina's other appellant's submission, para. 34.  
105Ibid., para. 37.  
106Ibid., para. 44 (quoting Panel Report, para. 7.51 (footnote omitted)). 
107Ibid., para. 46 (referring to Panel Report, para. 7.52).   
108Ibid., paras. 46-47.  WT/DS268/AB/RW 
Page 22  
 
from using new facts on the basis that this woul d run counter to the overall operation of the WTO 
dispute settlement system.
109  
(b) Objective Assessment of the Matter under Article 11 of the DSU 
53. Argentina claims further that, in subordinating its analysis of Articles 11.3 and 11.4 to the 
broader systemic considerations of the WTO disput e settlement system, the Panel failed to make an 
objective assessment of the matter before it in  violation of Article 11 of the DSU.   
54. Argentina asserts that the Panel's considerati on of the text of Articles 11.3 and 11.4 was 
limited to a few sentences110, in contrast to the "abundantly evident" influence of non-textual issues, 
including the "broader, horizontal considerations" and consideration of ot her trade remedy and non-
trade remedy cases.111  According to Argentina, these broader considerations were not part of the 
Panel's mandate, and the Panel's c onsideration of these concerns did not comply with its obligation 
under Article 11 of the DSU to make an objective asse ssment of the matter before it.  Instead of a 
rigorous textual interpretati on of Articles 11.3 and 11.4, the Panel b ased its analysis on conjecture and 
relied on a vague assertion that Argentina's claim ran "counter to the overall operation of the WTO 
dispute settlement system, and, in particular, the notion of implementation  of the DSB 
recommendations and rulings embodied in the relevant provisions of the DSU".112  Argentina argues 
that Articles 19, 21, and 22 of the DSU do not run "counter to" its claims under Articles 11.3 
and 11.4;  rather, Articles 11.3 and 11.4 are easily  reconcilable with the United States' rights and 
obligations under the DSU.113  
(c) Articles 3.2 and 19.2 of the DSU 
55. Argentina asserts that, by permitting the USDOC to develop a new evidentiary basis for its 
Section 129 Determination, the Pa nel acted inconsistently with Articles 3.2 and 19.2 of the DSU, 
which provide that panels, the Appellate Body, and the DSB cannot "add to or diminish" the rights of 
WTO Members.114  Specifically, Argentina claims that the Panel diminished Argentina's right to the 
termination of the anti-dumping duty order by finding that, in spite of the United States' failure to 
comply with the strict requirements of Articles 11.3 and 11.4 of the  Anti-Dumping Agreement , the 
                                                      
109Argentina's other appellant's submission, para. 48 (referring to Panel Report, para. 7.52). 
110Ibid., para. 57 (referring to Panel Report, para. 7.50). 
111Ibid., para. 58.  
112Ibid., para. 60 (quoting Panel Report, para. 7.52 (original emphasis)). 
113Ibid., para. 61 (referring to Argentina's first written submission to the Panel, Panel Report, pp. A-12 
to A-20, paras. 38-67;  and Argentina's second written s ubmission to the Panel, Panel Report, pp. C-5 to C-9, 
paras. 8-27).  
114Ibid., para. 63.  WT/DS268/AB/RW 
 Page 23 
 
 
USDOC could continue imposing anti-dumping duti es as long as a WTO-consistent determination 
was made "at some indeterminate point in the future".115  Similarly, Argentina claims that the United 
States' ability to develop a new evidentiary basis in 2005 to justify its 2000 sunset review 
determination "added to" the United States' rights under Article 11.3.116  
2. Argentina's Request for a Suggestion pursuant to Article 19.1 of the DSU  
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU 
56. Argentina claims that, by failing to provide e xplanations and reasons for its dismissal of 
Argentina's request for a suggestion that the an ti-dumping duty order be terminated, pursuant to 
Article 19.1 of the DSU, the Panel acted inconsiste ntly with its obligations  under Article 11 of the 
DSU to make an objective assessment of the matter before it.117  Although Argentina recognizes the 
discretionary nature of a panel's right to make a suggestion, it argues that the Panel was obliged under 
Article 11 of the DSU to consider the specific provisi on of the covered agreement at issue, which, in 
this case, was Article 19.1 of the DSU 118, and to make it clear that it "has reasonably considered [the] 
claim" before it.119  Argentina submits that the Panel failed to take objectively into account the fact 
that the United States has twice violated its "binding obligations" under Article 11.3 of the  Anti-
Dumping Agreement , and to consider reasonably Arge ntina's request for a suggestion.120  According 
to Argentina, the Panel's statement that it saw " no particular reason to ma ke a suggestion" renders 
meaningless the "duty" and "obligation"  inherent in Article 11 of the DSU.121  
57. Argentina asserts that the manner in which the Panel "summarily" dismissed its request for a 
suggestion also violates the requirements of Article 12.7 of the DSU.122  Argentina explains that, 
under Article 12.7, a panel has a three-fold obligation to set out:  (i) the findings of fact;  (ii) the 
applicability of relevant provisions;  and ( iii) the basic rationale behind any findings and 
recommendations that it makes.123  Argentina argues that the Panel complied with only the first of 
                                                      
115Argentina's other appellant's submission, para. 64. 
116Ibid., para. 65.  
117Ibid., para. 80 (referring to Panel Report, para. 9.4). 
118Ibid., para. 71 (referring to Appellate Body Report, US – Countervailing Duty Investigation on 
DRAMS , para. 184, where the Appellate Body stated that "an 'objective assessment' under Article 11 of the DSU 
must be understood in the light of the obligations of the particular covered agreement at issue in order to derive 
the more specific contours of the appropriate standard of review"). 
119Ibid., para. 72 (quoting Appellate Body Report, EC – Poultry , para. 135). 
120Ibid., para. 81.  
121Ibid.  
122Ibid., heading III, p. 19. 
123Ibid., paras. 73-77 and 83 (referring to Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – 
US), paras. 106-108).  WT/DS268/AB/RW 
Page 24  
 
these obligations.  According to Argentina, the Pa nel failed to comply with the second requirement 
under Article 12.7 because "[i]t did not set out the 'applicability' of Article 19.1 in the context of the 
present dispute".
124  With regard to the third obligation speci fied in Article 12.7, Argentina explains 
that the Panel was required to give a justificati on or state reasons why it was unnecessary to make a 
suggestion, which it did not do.  In this case, the s ituation was compounded by:  the threat of a "never-
ending cycle" of litigation;  the "intrinsic links between the requested suggestion of revocation and 
Article 11.3";  and, at the time, an "imminent second sunset review" by the USDOC.125  In these 
circumstances, the "cursory explanation"126 by the Panel that "the circumstances of the present 
proceedings" did not require it to make a suggestion, was inadequate.127 
(b) Request for the Appellate B ody to Make a Suggestion under 
 Article 19.1 of the DSU  
58. Argentina requests the Appellate Body to make  a suggestion that the United States terminate 
its anti-dumping duty order.  Argentina asserts th at the continuation of the illegal measure would 
render the temporal limitations in Articles 11.3 a nd 11.4 meaningless.  In addition, Argentina argues 
that the "patently absurd" sequen ce of events in this dispute— the 2000 and 2005 WTO-inconsistent 
likelihood determinations for the original sun set review, followed by a second sunset review 
conducted by the USDOC in October 2006, which c ould leave the anti-dumping duties in place 
through to 2011—exacerbates the violation of Argentina's WTO rights.128  According to Argentina, 
the inclusion of the discretionary authority in Article 19.1 of the DSU "demonstrates that its drafters 
contemplated circumstances in which such a sugg estion would be both appr opriate and necessary to 
help resolve [a] dispute."129  In this regard, Argentina refers to specific WTO disputes where panels 
exercised their discretion to make a suggestion.130  Finally, Argentina submits that the Appellate Body 
should be guided by the obligation, under Article 21.7 of the DSU, that the DSB consider what further 
action it might take in cases involving developing countries. 
                                                      
124Argentina's other appellant's submission, para. 89.  
125Ibid., paras. 89-92.  
126Ibid., para. 92.  
127Ibid. (quoting Panel Report, para. 9.4). 
128Ibid., paras. 96-97. 
129Ibid., para. 94.  
130Ibid., para. 102 (referring to Panel Reports, EC – Export Subsidies on Sugar , paras. 8.6-8.8;  Panel 
Report, EC – Trademarks and Geographical Indications (US) , para. 8.5;  Panel Report, Argentina – Poultry 
Anti-Dumping Duties , para. 8.7;  Panel Report, US – Offset Act (Byrd Amendment) , para. 8.6;  Panel Report,   
US – Cotton Yarn , para. 8.5;  Panel Report, Guatemala – Cement II , para. 9.6;  and Panel Report, US – Lead and 
Bismuth II , para. 8.2).  WT/DS268/AB/RW 
 Page 25 
 
 
D. Arguments of the United States – Appellee 
1. New Evidentiary Basis  
(a) Interpretation and Application of Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement 
59. The United States requests the Appellate Body to reject Argentina's appeal and to uphold the 
Panel's finding that it was not inconsistent with Articles 11.3 and 11.4 of the Anti-Dumping 
Agreement  for the USDOC to develop a new evidentiary basis for its Section 129 Determination.   
60. The United States contends that there is nothing in  the text of Article 11.3 or Article 11.4 to 
support Argentina's assertion that the temporal lim itations referred to in these provisions have a 
bearing on whether an investigating authority may gather new evidence in order to bring a measure 
into compliance.  These provisions require only that  a sunset review be  initiated  prior to the 
expiration of the five-year period and that such a review normally be comple ted within 12 months;  
they do not, according to the United States, addr ess the issue of whether a new evidentiary basis may 
be developed in the course of implementing th e recommendations and rulings of the DSB.   
61. According to the United States, "the sole effect  of Argentina's interpretation [of Articles 11.3 
and 11.4] would be to prevent reasoned a nd adequate affirmative redeterminations."131  F u r t h e r ,  
Argentina's interpretation would mean that, even if new factual material supported an affirmative 
determination, the determination would nonethel ess remain WTO-inconsistent, not because it was not 
reasoned and adequate, but simply because the ne w evidence on which the determination was based 
was collected during the process of implementation.  The United States contends that nothing in the  
Anti-Dumping Agreement —including Article 6 and Annex II theret o, which set out various procedural 
rights and obligations—suggests that this was the drafters' intention. 
62. The United States notes that the Panel referred to  further contextual considerations after 
"[h]aving considered and reject ed" Argentina's interpretation of the temporal limitations in 
Articles 11.3 and 11.4.132  The Panel correctly considered Artic le 19.1 of the DSU in the context of 
examining Argentina's arguments with respect to the collection of new evidence.  The United States 
endorses the Panel's reasoning that Article 19. 1 does not prescribe the ways in which a WTO-
inconsistent measure may be brought into conformity with the WTO rules.133   
                                                      
131United States' appellee's submission, para. 7.   
132Ibid., para. 6. 
133Ibid. (referring to Panel Report, paras. 7.54 and 7.60).   WT/DS268/AB/RW 
Page 26  
 
(b) Objective Assessment of the Matter under Article 11 of the DSU 
63. The United States maintains that the Panel di d make an objective assessment of the matter 
before it, because it considered whether any provisi ons of the DSU provide contextual support for 
Argentina's argument only after it had found that th e text of Articles 11.3 and 11.4 did not support 
Argentina's claim.  The Panel agreed with Arge ntina that Articles 11.3 and 11.4 reflect temporal 
obligations
 134, but then stated that it did not consider tho se obligations to "preclude[] an investigating 
authority from developing a  new  factual basis pertaining to the or iginal review period in the course 
of implementing the DSB recommendations and rulings pertaining to the original determination".135  
The United States argues that the concise nature of  the Panel's conclusion on the issue was legitimate 
because panels are required only "t o provide explanations and reas ons sufficient to disclose the 
essential, or fundamental, justification for [their] findings".136  In this case, the brevity of the Panel's 
reasoning reflected "the absence of any basis in the [Anti-Dumping] Agreement for Argentina's 
claims", and not a failure on the part of  the Panel in discharging its obligations.137  
(c) Articles 3.2 and 19.2 of the DSU 
64. In response to Argentina's claims that the Panel violated Articles 3.2 and 19.2 of the DSU, the 
United States argues that, as the Appellate Body found in Chile – Alcoholic Beverages , there is no 
independent basis of appeal under these provisi ons because they are "predicated on underlying 
findings of legal error".138  The United States notes that the Panel's conclusion—that the USDOC was 
not precluded from developing a new evidentiary b asis in the Section 129 Determination—reflects a 
correct interpretation and application of the relevant agreements so that, even if an independent basis 
for appeal did exist under Article 3.2 or Article 19.2,  Argentina fails to establish that the Panel acted 
contrary to those provisions.  Further, with regard  to the argument that the Panel denied Argentina's 
"right" to termination of the anti-dumping duty or der in question, the United States responds that 
Argentina has never attempted to demons trate that such a right even exists.139  No such right can be 
                                                      
134United States' appellee's submission, para. 11 (referring to Panel Report, para. 7.50).   
135Ibid., para. 11 (quoting Panel Report, para. 7.50 (original emphasis)).   
136Ibid., para. 12 (referring to Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , 
paras. 108-109). 
137Ibid., para. 12.  
138Ibid., para. 15 (referring to Appellate Body Report, Chile – Alcoholic Beverages , para. 79).  
139Ibid., para. 15.   WT/DS268/AB/RW 
 Page 27 
 
 
found in either the  Anti-Dumping Agreement  or the DSU.140  The United States also points out that 
Article 3.2 is directed to the DSB, not to panels or to the Appellate Body.   
2. Argentina's Request for a Suggestion under Article 19.1 of the DSU  
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU  
65. The United States argues that Argentina's claims  under Articles 11 and 12.7 of the DSU are 
"baseless and should be rejected" because "[t]he simple  fact is that [the text of] Article 19.1 provides 
that a panel or the Appellate Body 'may' suggest ways in which a Member 'could' implement a recommendation."
141   
66. The United States contends that the Panel did not  err in declining to make a suggestion under 
Article 19.1 of the DSU with regard to implemen tation of the recommendations and rulings of the 
DSB.  Article 11 of the DSU requires a panel to assess objectively the "matter" before it, and the 
"matter" before a panel comprises the "claims" and "measures" in question.142  In the United States' 
view, a request for a suggestion is neither a claim nor a measure.  Therefore, the requirements of Article 11 do not extend to a panel's exercise of its discretion to make a suggestion. 
67. Further, the United States argues that the Pa nel had no obligation under Article 12.7 of the 
DSU to provide a rationale for choosing not to ma ke a suggestion under Article 19.1, because the 
Panel's decision was not a "finding" or a "recomme ndation" as provided under Article 12.7, nor has 
Argentina argued that it is.
143  According to the United States, a "suggestion" under Article 19.1 is 
distinct from a "recommendation" or "finding".144  The United States also argues that nothing in 
Article 19.1 requires an explanation of a panel's exer cise of its discretion to make a suggestion, nor is 
there any guidance under this provision regarding how a panel or the Appellate Body should respond 
to a party's request for a suggestion.  In response to Argentina's argument that the Panel failed to set 
out the applicability of Article 19.1, the United States contends that the Panel did recognize its 
applicability but, in the light of the fact that Artic le 19.1 states that WTO panels "may" suggest means 
of implementation, simply elected not to exercise its discretion to make a suggestion.145   
                                                      
140United States' appellee's submission, para. 15 (referring to Appellate Body Report, US – Anti-
Dumping Measures on Oil Country Tubular Goods , para. 187). 
141Ibid., para. 18.  
142Ibid., para. 19 (referring to Appellate Body Report, Guatemala –Cement I , paras. 72-73).   
143Ibid., para. 21.  
144Ibid., para. 18.  
145Ibid., para. 23. WT/DS268/AB/RW 
Page 28  
 
(b) Request for the Appellate Body  to Make a Suggestion under 
Article 19.1 of the DSU 
68. The United States requests the Appellate Body to  dismiss Argentina's request that it make a 
suggestion under Article 19.1 of the DSU in this ap peal.  According to the United States, Argentina's 
claim that a suggestion from the Appellate Body is "v ital" or "necessary to help resolve" the dispute is 
unsubstantiated.
146  As the DSU attaches no legal con sequences to suggestions made under 
Article 19.1, the United States contends that a sugg estion cannot, therefore, be "vital" or "necessary" 
to resolve a dispute.147  The United States submits that Argen tina links its argument for a suggestion 
to its flawed interpretation of the temporal limita tions provided for in Articles 11.3 and 11.4 of the 
Anti-Dumping Agreement .  Even if a suggestion  were  "necessary", as Argentina would have it, "a 
legal requirement of automatic termination for correctable breaches would obviate any need for a 
suggestion."148  In any case, the United States asserts that it is well established that a WTO Member 
has the right to determine its "means of implementation".149   
69. For these reasons, the United States requests the Appellate Body to find that the Panel did not 
err by refusing to make a suggestion under Article 19.1 of the DSU and to reject Argentina's request 
that the Appellate Body make a suggestion in the current appeal.   
E. Arguments of the Third Participants 
1. China  
70. China argues that the USDOC's Section 129 Determination "as a whole" constitutes the 
measure taken by the United States to comply with  the recommendations and rulings of the DSB and 
that, because the volume analysis was an "inseparable basis" for that determination, it too was part of 
the measure taken to comply.150   
71. China agrees with the United States that th e DSB recommendations and rulings are an 
appropriate starting point for assessing a Member's compliance, and that they are important in 
identifying the "measure taken to comply".151  However, China considers that the United States 
                                                      
146United States' appellee's submission, para. 24 (referring to Argentina's other appellant's submission, 
paras. 87 and 94, respectively.)  
147Ibid., para. 25. 
148Ibid.  
149Ibid., para. 26 (referring to Appellate Body Report, US – Anti-Dumping Measures on Oil Country 
Tubular Goods , para. 187).   
150China's third participant' s submission, para. 63. 
151Ibid., paras. 33-34 (referring to United States' appellant's submission, paras. 37-38).   WT/DS268/AB/RW 
 Page 29 
 
 
misreads the findings made by the original panel.  China notes that the original panel concluded that 
the USDOC's likelihood-of-dumping determination was inconsistent with Article 11.3 of the  Anti-
Dumping Agreement after finding that one of the factual bases of that determination was not proper, 
that is, that dumping had continued over the life of the order.152  The original panel did not find that 
the continuation of dumping over the life of the order was an independent measure, nor did the 
USDOC make a new and separate determination that w as limited to this evidentiary basis.  Rather, 
China observes, the USDOC's Section 129 Determina tion was aimed at addressing the original panel's 
findings on the likelihood-of-dumping determination.  China considers that the USDOC made a  single  and  new  finding in its Section 129 Determination, wh ich was therefore the "measure taken to 
comply" under Article 21.5 of the DSU.
153  China also notes that the plain language of Article 21.5 
authorizes a compliance panel to decide on the consistency of a measure with the covered 
agreements.154  In China's view, the fact that the S ection 129 Determination was premised on two 
evidentiary bases, coupled with the Panel's mandate  to examine the consis tency with the covered 
agreements, means that "it is permissible for the compliance Panel to review these two factual bases 
from the angles of the DSB recommendations and rulings as well as Article 11.3 of the [ Anti-
Dumping ] Agreement ."155  For China,  it is "unreasonable and illogical" to conclude that, even though 
the Section 129 Determination is a "measure taken to comply", the evidentiary basis thereunder is 
not.156   
72. With respect to the United States' reliance on the Appellate Body Report in  EC – Bed Linen 
(Article 21.5 – India)  for its argument that the volume analysis  was not part of the "measure taken to 
comply", China submits that the reasoning in that case can be distinguished from the present situation 
on three grounds.157  First, China argues that the "other  factors" analysis at issue in  EC – Bed Linen 
(Article 21.5 – India)  was a necessary part of the legal  analysis with respect to causation under 
Article 3.5 of the  Anti-Dumping Agreement , whereas the volume analysis in  the current appeal is just 
part of the  evidentiary  basis used by the USDOC to make a likelihood-of-dumping determination.  
China also points out that the "other factors" analysis in EC – Bed Linen (Article 21.5 – India)  was an 
independent legal finding that the Appellate B ody found was not an inseparable element of the 
compliance measure.  China contrasts that situation to that of the present dispute by arguing that the 
                                                      
152China's third participant's submissi on, para. 36 (referring to Original Panel Report, para. 7.221).  
153Ibid., paras. 37-38 (referring to Section 129 Determination, supra , footnote 11, pp. 2 and 11). 
154Ibid., para. 38 (referring to Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) , 
para. 41).  China also cites the Appellate Body's reasoning in US – Shrimp  (Article 21.5 – Malaysia)  in support 
of its view that the volume analysis forms part of the new measure that must be reviewed "in its totality". ( Ibid., 
para. 42 (quoting Appellate Body Report, US – Shrimp  (Article 21.5 – Malaysia) , para. 87)) 
155Ibid., para. 39.  
156Ibid., para. 40.  
157Ibid., paras. 46-62 (referring to United States' appellant's submission, paras. 44, 47, and 48).   WT/DS268/AB/RW 
Page 30  
 
volume analysis is "inseparable"
158 from the revised likelihood-of-dumping determination.  China 
explains that, had the USDOC not incorporated the volume analysis into its factual reasoning, it might 
not have been possible for the USDOC to have  made an affirmative likelihood-of-dumping 
determination.   
73. Another difference, in China's view, between the present appeal and  EC – Bed Linen 
(Article 21.5 – India)  concerns the changed "aspect" of the Section 129 Determination.159  C h i n a  
submits that the "aspect" at issue in  EC – Bed Linen (Article 21.5 – India)  was the "other factors" 
analysis required pursuant to Article 3.5 of the Anti-Dumping Agreement , and that the comparable 
"aspect" in the present dispute is the likelihood-o f-dumping determination required by Article 11.3.160  
In  EC – Bed Linen (Article 21.5 – India) , the "other factors" aspect  did not change  between the 
original proceedings and the compliance proceedings.  By contrast, in this dispute, the USDOC made 
a new likelihood-of-dumping determination in the Section 129 Determination (albeit generating the 
same affirmative result), and therefore the "aspect" at issue was  changed  between the original 
proceedings and the compliance proceedings.  For Chin a, the volume analysis can only be regarded as 
a "sub-aspect" of the "measure taken to comply".161   
74. Finally, China distinguishes  EC – Bed Linen (Ar ticle 21.5 – India)  on the basis that a finding 
was made by the panel in that dispute on the "other factors" analysis.  In this dispute, there was  no  finding  made on the volume analysis in the origin al proceedings because the original panel 
exercised judicial economy.  Therefore, it cannot be said that this dispute has been finally resolved.  
Hence, this is not a case where the claim relating to the volume analysis is being given a "second 
chance".
162   
2. European Communities  
75. The European Communities states that the le gal basis for, and the existence of, the 
mandatory/discretionary doctrine referred to by the United States is "obscure" and does not derive 
                                                      
158China's third participant's submission, para. 51.   
159China explains that the USDOC and the USITC are responsible for making likelihood-of-dumping 
and likelihood-of-injury determinations, respectively.  According to China, each of these determinations 
constitutes an "aspect" of a sunset determination under Article 11.3 of the  Anti-Dumping Agreement .  
Therefore, in the case of the Section 129 Determination, the measure actually concerns only one aspect, that is, 
the likelihood-of-dumping determination. ( Ibid., footnote 21 to para. 53) 
160Ibid., paras. 52-53.   
161Ibid., para. 54.  
162Ibid., para. 61.    WT/DS268/AB/RW 
 Page 31 
 
 
from the  Anti-Dumping Agreement , the WTO Agreement , or WTO case law.163  The European 
Communities notes that the arguments made by the United States in  US – Zeroing (EC) on the 
mandatory/discretionary doctrine were rejected by the Appellate Body.164  The European 
Communities submits that many of the core concep ts associated with the mandatory/discretionary 
doctrine have "fallen by the way-side"165, including:  that the measure must be adopted by the 
"legislature", as opposed to the "executive"166;  that it must be "binding"167;  that it needs to have been 
applied 168;  and that it is allegedly susceptible to di fferent interpretations by various municipal 
courts.169   
76. Regarding the United States' argument that , according to the mandatory/discretionary 
doctrine, a measure can only be impugned if it leads to WTO-inconsistent action  in all cases , the 
European Communities argues that a mechanistic application of that test would mean that a measure 
would "never or almost never" be found inconsistent "as such" with WTO rules.170  In the European 
Communities' view, this approach contradicts both the WTO Agreement  and the Anti-Dumping 
Agreement .  Furthermore, the European Communities obser ves that, in deference to interpretations 
advanced by the executive branch, United States courts have refused to correct the USDOC's WTO-
inconsistent interpretations of ambiguous United St ates statutes and, thereby, have denied economic 
operators effective remedies in United States courts.  
77. Secondly, the European Communities argues that  the United States' appeal regarding the 
scope of "measures taken to comply" should be rejected.  The European Communities submits that the 
United States and Argentina offer two competing mode ls with regard to determining the scope of the 
"measure taken to comply":  (i) the "measure model", under which compliance panels refer to the 
original measure in general;  and (ii) the "ele ment of the measure model", according to which 
compliance panels focus on certain elements of the original measure.171  The European Communities 
considers neither model to be satisfactory in all ca ses and asserts that a relevant consideration for 
                                                      
163European Communities' third participant's submission, paras. 2-3 (referring to United States' 
appellant's submission, para. 9). 
164Ibid., paras. 2-3 and 6 (referring to Appellate Body Report, US – Zeroing (EC) , paras. 211-214). 
165Ibid., para. 4.  
166Ibid. (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 81).  
167Ibid., para. 4 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
paras. 38 and 85;  and Appellate Body Report,  Guatemala – Cement I , para. 69 and footnote 47 thereto). 
168Ibid., para. 4 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 82). 
169Ibid., para. 4 (referring to Appellate Body Report, US – 1916 Act , para. 90). 
170Ibid., para. 5.  
171Ibid., para. 10.   WT/DS268/AB/RW 
Page 32  
 
identifying the measure taken to comply is whether there is one WTO obligation at stake.  According 
to the European Communities, if an investiga ting authority's determination involves one WTO 
obligation and one finding on that obligation, a co mpliance panel should treat that determination as 
being indivisible.  The European Communities argues that the present dispute is distinguishable from  
EC – Bed Linen (Article 21.5 – India)  because, whilst this case involves one obligation and one finding 
regarding Article 11.3 of the  Anti-Dumping Agreement , EC – Bed Linen (Art icle 21.5 – India)  
concerned multiple obligations under the second a nd third sentences of Article 3.5 of the same 
Agreement.  Moreover, contrary to the United States ' assertion, the European Communities was in fact 
not required to change its "oth er factors" analysis in  EC – Bed Linen (Art icle 21.5 – India) .
172   
78. At the oral hearing, the European Communities made arguments concerning the amended 
waiver provisions.  The European Communities agrees with the Panel that there remains a 
mechanistic relationship between an affirmative waiver and a finding of likelihood of dumping with 
respect to the waiving exporter, which, especially in circumstances where there is only one exporter 
and one country, would inevitably "taint" the or der-wide likelihood-of-dum ping determination.  
According to the European Communities, under th e new provisions, a statement by the waiving 
exporter that it is likely to dump would make it ev en more likely that the USDOC would make an 
affirmative likelihood-of-dumping determ ination at the order-wide level. 
79. The European Communities also commented at the oral hearing on the permissibility of 
developing a new evidentiary basis for purposes of the Section 129 Determination.  On the specific 
facts of this case, the European  Communities considers that the investigation conducted by the 
USDOC was internally inconsistent.  Despite the fact that a new sunset review had been "initiated" in 
2005, the likelihood-of-dumping determina tion was assessed through the "prism"173 of 2000.  The 
European Communities considers that the USDOC should have either returned to its original sunset 
review (without initiating a new one) and made a likelihood-of-dumping de termination through a 
2000 "prism", or initiated a new Article 11.3 review in 2005 and assessed the prospect of likelihood of 
dumping after 2005.174  Instead, in the Section 129 Determin ation, the USDOC failed to make the 
type of prospective assessment re quired by Article 11.3 of the  Anti-Dumping Agreement . 
                                                      
172European Communities' third participant's submission, para. 16 (referring to United States' 
appellant's submission, para. 42). 
173European Communities' statement at the oral hearing. 
174Ibid.  WT/DS268/AB/RW 
 Page 33 
 
 
3. Japan  
80. Japan asserts that the Panel correctly concl uded that the amended waiver provisions are 
inconsistent as such with Article 11.3 of the  Anti-Dumping Agreement .  Japan emphasizes that 
domestic investigating authorities have  an obligation "to arrive at a  reasoned  conclusion on the basis 
of  positive evidence ", and to undertake "an  active  rather than a passive decision-making role".175  In 
Japan's view, the United States' sunset review m echanism "does not comport with these requirements" 
because it is "opaque, arcane, and permits th e USDOC to make decisions without active 
investigation".176  According to Japan, the arguments made by the United States in defending the 
relevant statutory and regulatory provisions "sim ply underline the absence of any provisions to 
regulate the decision-making with regard to  the USDOC's order-wide determinations".177  Japan 
submits that the Panel reached its conclusion wi th respect to order-wide determinations as a 
consequence of specific and clear arguments raised by Argentina in regard to the impact of company-
specific determinations on order-wid e determinations.  Japan maintains that the relationship between 
company-specific and order-wide determinations in the United States has not changed since the 
original proceedings, and that the United States repeats the arguments it made in the original 
proceedings, even though they were rejected by  the original panel a nd the Appellate Body.178   
81. Japan also argues that it was within the Pa nel's mandate to make a finding on the WTO-
consistency of the USDOC's volume analysis.  First,  Japan submits that Argentina's challenge to the 
consistency of the volume analysis is not a ne w claim because it was raised in the original 
proceedings, and the United States has therefore been given "sufficient opportunity to submit 
evidence and arguments on this point".179  The Panel's finding therefore does not raise due process 
concerns.  Secondly, in Japan's view, the finding by the original panel that the factual basis of the 
USDOC's likelihood-of-dumping determ ination was inadequate means th at it was appropriate for the 
Panel in these Article 21.5 proceedings to examine "w hether the factors, including volume decline, of 
the USDOC's re-determination [are] based on a sufficient factual basis or not".180   
                                                      
175Japan's third participant's submission, para. 7 (referring to Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 111). (original emphasis)  
176Ibid., para. 7.   
177Ibid.   
178Ibid., para. 10 (referring to Original Panel Report, para. 7.102;  and Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , paras. 233-234).  
179Ibid., para. 14.   
180Ibid., para. 15.  WT/DS268/AB/RW 
Page 34  
 
82. Moreover, according to Japan, "the United St ates was not entitled to assume that the volume 
analysis was consistent with  its obligations under the [ Anti-Dumping ] Agreement ."
181  R a t h e r ,  t h e  
original panel indicated that the volume analysis w ould be inconsistent if it lacked an evidentiary 
basis, so the United States had a "reasonable period of time" to bring its likelihood-of-dumping determination into conformity with  Article 11.3.  Japan submits that the United States should have 
used that time "to provide the volume analysis with a sufficient factual basis, as part of the likelihood 
re-determination".
182  At the oral hearing, Japan argued that the fact that the original panel exercised 
judicial economy on the volume analysis means that  the claim was not resolved.  Therefore, the 
limitations on the scope of the Artic le 21.5 proceedings do not apply.  
83. In addition, Japan requested at the oral hear ing that the Appellate Body limit the Panel's 
interpretative findings regarding th e new evidence that can be coll ected for purposes of implementing 
the recommendations and rulings of the DSB in or iginal proceedings.  Japan takes no position on the 
Panel's ruling on the facts of this case, but contends that the Panel's findings are too broad insofar as 
they articulate unqualified principles that apply to all trade remedy cases.  According to Japan, the 
Panel's findings ignore the unique character of trade remedy agreements, which set out specific 
procedural requirements for the conduct of trade remedy  investigations that are not replicated in other 
covered agreements, including the  Agreement on the Application of Sanitary and Phytosanitary 
Measures  (the " SPS Agreement ").  Japan therefore requests the Appellate Body to correct the Panel's 
finding that implementation in trade remedy disputes is the same as in all other disputes and to take 
into account the broader systemic implications of  its findings when addressing the very specific new 
facts at issue in this dispute.183   
4. Korea  
84. Pursuant to Rule 24(2) of the Working Procedures , Korea chose not to submit a third 
participant's submission.  At the oral hearing, Korea focused on the Panel's finding that the USDOC 
was not precluded from developing a new evidentiary basis for its Section 129 Determination.  Korea 
contends that allowing the United States to star t all over again would mean that investigating 
authorities are allowed to conduct inconsistent sunset reviews and justify the results only years later.  
For Korea, this would effectivel y undermine the fundamental purpose  of the sunset review provisions, 
namely, the five-year temporal limit on the dura tion of an anti-dumping duty order.  Korea also 
believes that the Panel's interpretation of Articles 11.3 and 11.4 of the Anti-Dumping Agreement  
                                                      
181Japan's third participant's submission, para. 17. 
182Ibid.   
183Japan's statement at the oral hearing.  WT/DS268/AB/RW 
 Page 35 
 
 
departs from the ordinary meaning of the terms used  in these Articles and cannot be justified by the 
"broader, horizontal considerations"184 of the WTO dispute settlement system referred to by the Panel. 
5. Mexico  
85. Mexico chose not to submit a third participant' s submission pursuant to Rule 24(2) of the 
Working Procedures .  In its statement at the oral hearing, Mexico expressed support for Argentina's 
request for a suggestion, under Article 19.1 of th e DSU, that the United States terminate the anti-
dumping duties.  According to Mexico, Argentina has a right to termination of the order, because the 
Panel found that the United States still had not brou ght itself into compliance after the expiration of 
the "reasonable period of time".  In Mexico's view, Article 11.3 of the  Anti-Dumping Agreement  
requires termination at this stage, and the Appellate Body should give effect to that provision, either 
through a direct interpretation of Article 11.3, or  through a suggestion under Article 19.1 of the DSU.  
 
III. Issues Raised in This Appeal 
86. The following issues are ra ised in this appeal: 
(a) whether the Panel erred in finding that Section 751(c)(4)(B)185 of the United States 
Tariff Act of 1930 (the "Tariff Ac t"), operating in conjunction with 
Section 751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the United States 
Code of Federal Regulations  (the "Regulations"), is incons istent with Article 11.3 of 
the  Anti-Dumping Agreement ;  and whether, in reaching this finding, the Panel failed 
to make an objective assessment of the matte r before it, as required by Article 11 of 
the DSU; 
(b) whether the Panel erred in concluding that the finding of the United States 
Department of Commerce (the "USDOC") concerning the decline in import volumes 
after the imposition of the anti-dumping duty order, which was made in the original sunset determination and incorporated into the Section 129 Determination, was 
properly before it; 
                                                     
 
184Panel Report, para. 7.51. 
185Section 751 of the United States Tariff Act of 1930 is codified as Section 1675 of Title 19 of the 
United States Code .  See Exhibit ARG-33 submitted by Argentina to the Panel.  WT/DS268/AB/RW 
Page 36  
 
(c) whether the Panel erred in finding that th e USDOC did not act inconsistently with 
Articles 11.3 and 11.4 of the Anti-Dumping Agreement  by developing a new 
evidentiary basis pertaining to the original review period for purposes of its 
Section 129 Determination;  and whether, in reaching this finding, the Panel acted 
inconsistently with its obligation under Ar ticle 11 of the DSU to make an objective 
assessment of the matter before it, and acted inconsistently with Articles 3.2 and 19.2 
of the DSU by diminishing Argentina's rights and the United States' obligations under 
Articles 11.3 and 11.4 of the  Anti-Dumping Agreement ;  and  
(d) whether, in rejecting Argentina's request for a suggestion pursuant to Article 19.1 of 
the DSU, the Panel failed to make an objec tive assessment of the matter before it, as 
required by Article 11 of the DSU, and failed to set out "the applicability of relevant 
provisions and the basic rationale behind [its] findings and recommendations", as 
required by Article 12.7 of the DSU. 
 
IV. Amended Waiver Provisions 
87. We begin with the United States' appeal of th e Panel's findings relating to Section 751(c)(4) 
of the Tariff Act and Section 351.218(d)(2) of the Regulations, the so-called "amended waiver 
provisions".  Before examining the issue raised on appeal, we briefly set out the panel's and the 
Appellate Body's findings in the original proceed ings;  the measures taken by the United States to 
comply with the recommendations and rulings of th e DSB arising from the original proceedings;  the 
Panel's findings in these Article 21.5 proceedings;  and the claims and arguments raised in this appeal 
by the participants. 
A. Original Proceedings 
88. Before the original panel, Argentina asserte d that Section 751(c)(4) of the Tariff Act and 
Section 351.218(d)(2)(iii) of the Regulations were in consistent as such with Article 11.3 of the  Anti-
Dumping Agreement .
186  At the outset of its analysis, the original panel distinguished between the two 
waiver situations contemplated in the United Stat es' statute and Regulations, which it described as 
follows: 
                                                      
186In the original proceedings, Argentina also challenged the consistency of the waiver provisions with 
Articles 6.1 and 6.2 of the  Anti-Dumping Agreement .  WT/DS268/AB/RW 
 Page 37 
 
 
We note that Section 751(c)(4)(A) of the Tariff Act provides  that an interested party may elect to waive its participation in  sunset review proceedings conducte d by the USDOC and participate 
only in sunset review proceedings conducted by the USITC.  Section 351.218(d)(2)(i) of the Regulations provides that an interested party 
may waive participation by filing a statement of waiver with the 
USDOC.  We will refer to this as an "explicit
" or "affirmative " 
waiver .  Further, according to Section 351.218(d)(2)(iii) of the 
Regulations, the USDOC will consider the failure of an interested party to submit a complete substantive response to the notice of 
initiation of a sunset review to cons titute a waiver of participation in 
the USDOC's sunset review proceedings.  We will refer to this as an "implicit
" or "deemed" waiver .187 (original underlining) 
 
The original panel noted that the "dee med" waiver category was "create[d]"188 in the Regulations and 
that, consequently, "[its] findings regarding affirmative waivers will have implications on the Tariff 
Act whereas those relating to d eemed waivers will only affect Section 351.218(d)(2)(iii) of the 
Regulations."189 
89. The original panel examined the consistency of  each of the two categories of waivers with 
Article 11.3 of the  Anti-Dumping Agreement .  As regards "deemed" waivers, in situations where an 
exporter files an incomplete response, the origin al panel found that the USDOC's determination 
cannot be "supported by reasoned and adequate conclusions based on the facts before an investigating 
authority", because "the USDOC is precluded from taki ng into consideration, in its determination with 
respect to a given exporter, the facts submitted by that  exporter (or any other facts before it that might 
be relevant to its determination), and it is furt her precluded from receiving, much less considering, 
any other facts relevant to this question".190  With regard to situations where an exporter fails to 
respond to the notice of initiation, the original panel found that "an a ffirmative [likelihood-of-
dumping] determination based exclusively upon the f act that the exporter did not respond to a notice 
of initiation, and which disregards entirely even th e possibility that other relevant information might 
be in the record, is not supported by reasoned and adequate conclusions based on the facts before an 
investigating authority, incons istently with Article 11.3."191  The original panel also "consider[ed] that 
even in a case of affirmative waiver, the investig ating authority's obligation to make a determination 
supported by reasoned and adequate  conclusions based on the facts before it continues to apply."192  In 
                                                      
187Original Panel Report, para. 7.83.  
188Ibid., para. 7.85. 
189Ibid.  
190Ibid., para. 7.93. 
191Ibid., para. 7.95. (footnote omitted) 
192Ibid., para. 7.99.  WT/DS268/AB/RW 
Page 38  
 
the original panel's view, "[t]he investigating au thority cannot simply assume, without further inquiry, 
that dumping is likely to continue or recur b ecause the exporter chose not to participate in the 
review."
193  Thus, the original panel found that "the provisions of [United States] law relating to 
affirmative waivers are also incons istent with the obligation to dete rmine likelihood of continuation or 
recurrence of dumping under Article 11.3 of the [Anti-Dumping] Agreement."194 
90. The United States pointed out that, under United States law, "the final likelihood 
determination in a sunset review is ma de on an order-wide basis for a country."195  It argued that, 
"[a]lthough [United States] law mandates an affirmative  finding of likelihood with respect to 
exporters that have waived their right to participat e in a sunset review, it does not do so with respect 
to the order-wide determination."196  The original panel rejected this argument because, "[t]o the 
extent that the order-wide determination of likeli hood is based in whole or in part upon a company-
specific determination that was improperly est ablished, [it did] not see how the order-wide 
determination can be supported by reasoned and ade quate conclusions based on the facts before the 
investigating authority."197 
91. The original panel concluded that: 
... both affirmative and deemed waiv ers provisions of [United States] 
law, i.e. Section 751(c)(4)(B) of the Tariff Act and Section 
351.218(d)(2)(iii) of the USDOC's Regu lations, are inconsistent with 
the investigating authorities' obligation to determine likelihood of continuation or recurrence of dumpi ng under Article 11.3 of the Anti-
Dumping Agreement.
198 
 
                                                      
193Original Panel Report, para. 7.99. 
194Ibid. 
195Ibid., para. 7.100. 
196Ibid. (referring to the United States' re sponse to Questions 4(c) and 5( d) posed by the original panel 
at the first meeting with the parties, Original Panel Re port, p. E-23, paras. 24-25 and p. E-25, para. 30;  and 
United States' second written submission to the original panel, Original Panel Report, p. C-9,  para. 21). 
197Ibid., para. 7.101.   
198Ibid., para. 7.103.  WT/DS268/AB/RW 
 Page 39 
 
 
92. The Appellate Body upheld the original pane l's findings, even though it disagreed with the 
original panel's approach to company-specific determinations.199  According to the Appellate Body, 
"[b]ecause the waiver provisions require the USDOC  to arrive at affirmative company-specific 
determinations without regard to any evidence on the record, these determinations are merely 
assumptions  made by the agency, rather than findings supported by evidence."200  The Appellate 
Body further reasoned that, "even assuming that the USDOC takes into account the totality of record 
evidence in making its order-wide determination, it is clear that, as a result of the operation of the 
waiver provisions, certain  order-wide  likelihood determinations made by the USDOC will be based, 
at least in part, on statutorily-mandated  assumptions  about a company's likelihood of dumping."201  
"[T]his result", the Appellate Body reasoned, "is inc onsistent with the obligation of an investigating 
authority under Article 11.3 to 'arrive at a reasone d conclusion' on the basis of 'positive evidence'."202  
Therefore, the Appellate Body upheld the original panel's findings that "Section 751(c)(4)(B) of the 
Tariff Act of 1930 and Section 351.2 18(d)(2)(iii) of the USDOC Regulations are inconsistent, as such, 
with Article 11.3 of the  Anti-Dumping Agreement ."203   
B. Measures Taken to Comply 
93. In order to comply with the recommendations and rulings of the DSB, the United States 
introduced three amendments to its Regulations204, which became effective on 31 October 2005.  Two 
of the three modifications are relevant for purposes of this appeal.205  First, Section 351.218(d)(2)(ii) 
of the Regulations, which sets out the contents of a statement of waiver, was revised and a new requirement was introduced whereby a respondent inte rested party wishing to waive its participation 
in the USDOC component of a sunset review must subm it "a statement that [it] is likely to dump ... if 
                                                     
 
199According to the Appellate Body: 
... it was neither necessary nor relevant for the [original] Panel to  
draw a conclusion as to the WTO-consistency of the company-specific 
determinations resulting from the waiver provisions.  [Rather,] the relevant 
inquiry ... [was] whether the  order-wide  likelihood determination would  
be rendered inconsistent with Article 11.3 by virtue of the operation of the 
waiver provisions.  
(Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 232 (original emphasis))  
200Ibid., para. 234. (original emphasis) 
201Ibid. (original emphasis) 
202Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 111  
and 114 (footnotes omitted)).  
203Ibid., para. 235. 
204Supra , footnote 9, p. 62061.  
205Ibid., p. 62062.  The third change relates to the use of waivers in countervailing duty sunset reviews 
and is not directly relevant for purposes of this appeal. WT/DS268/AB/RW 
Page 40  
 
the order is revoked or the investigation is terminated."
206  Secondly, Section 351.218(d)(2)(iii) of the 
Regulations, which dealt with "deemed" waivers, was repealed.207  The USDOC explained that, as a 
consequence of the repeal of this provision, it "will no longer make company-specific likelihood 
findings for companies that fail to file a statement of  waiver and fail to file a substantive response to 
the notice of initiation".208  Section 751(c)(4)(B) of the Tariff Act was neither repealed nor 
amended.209 
C. Panel Proceedings pursuant to  Article 21.5 of the DSU 
94. In these Article 21.5 proceedings, Argentina claimed that the amendments to the Regulations 
failed to bring the United States into compliance with its obligations under Article 11.3 of the  Anti-
Dumping Agreement .  The United States responded that it had fully "implemented the DSB 
recommendations and rulings regarding the WTO-in consistencies found in [United States] law by 
eliminating deemed waivers and by requiring exporters who chose to a ffirmatively waive their right to 
participate in a sunset review to acknowledge in wr iting that they would be likely to continue or 
resume dumping in the case of the revocation of the duty."210   
95. The Panel began its analysis by "identify[ing]  the scope of the current waiver provisions 
subject to Argentina's claim".211  It found that "the concept of  waiver  set out in Section 751(c)(4) of 
the Statute, in conjunction with the regulatory provis ions in Section 351.218(d)(2), now refers only to 
the  affirmative waiver  situation that is, where an exporter elects not to participate in a review by 
filing an affirmative statement of waiver, accompan ied by a statement that the exporter is likely to 
continue or resume dumping in the absence of the order."212  Having identified the scope of the 
amended waiver provisions, the Panel proceeded  to describe the issue before it as follows: 
                                                      
206Supra , footnote 9, p. 62064. 
207Before its repeal, Section 351.218(d)(2)(iii) provided: 
No response from a respondent interested party .  The Secretary will 
consider the failure by a respondent interested party to file a complete 
substantive response to a notice of in itiation under paragraph (d)(3) of this 
section as a waiver of participation in a sunset review before the [USDOC]. 
(See Exhibit US-13 submitted by the United States to the Panel) 
208Supra , footnote 9, p. 62062. 
209The text of Section 751(c)(4)(B) is reproduced  infra  at para. 106. 
210Panel Report, para. 7.7. 
211Ibid., para. 7.21. 
212Ibid., para. 7.31. (original emphasis;  footnote omitted)  WT/DS268/AB/RW 
 Page 41 
 
 
[W]hether, after the amendments  made by the United States  
with a view to implementing th e DSB recommendations and rulings 
in the original proceedings, the waiver provision under Section 751(c)(4)(B) of the Tariff Act, opera ting in conjunction with Section 
751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the 
Regulations, precludes the USDOC in some or all situations arising 
in sunset reviews from making a reasoned determination of likelihood of continuation or recurrence of dumping based on an adequate factual foundation, as required by Article 11.3 of the Anti-Dumping Agreement.
213  
 
96. Looking at the operation of the amended waiver  provisions, the Panel observed that "in some 
situations, the statutory and regulatory waiver provisions may not necessarily preclude the USDOC 
from arriving at reasoned conclusions of likelihood of continuation or recurrence of dumping on the 
basis of an adequate factual foundation as required by Article 11.3."214  The Panel explained that "in a 
sunset review where all exporters explicitly and a ffirmatively waive their right to participate and 
acknowledge, in accordance with Sec tion 351.218(d)(2)(ii) of the Regulations, that they are likely to 
continue or resume dumping if the measure is revoked, it may well be reasonable for the USDOC to 
find likelihood for these exporters individua lly and ... on an order-wide basis."215  However, the Panel 
went on to find that "there may be other situa tions where the waiver provisions may preclude the 
USDOC from reaching reasoned conclusions on an adequate factual basis."216  The Panel referred to a 
situation involving multiple exporters, where some neither file a complete substantive response nor 
expressly waive their right to participate and simply  remain silent after the initiation of the sunset 
review, while others follow Section 351.218(d)(2)(ii) of the Regulations and affirmatively waive their 
right to participate.  In a situation such as this, the Panel considered that "the USDOC may have to 
find likelihood on an order-wide basis because of th e company-specific determinations that it may 
have made under Section 751(c)(4 )(B) for the waiving exporters."217   
97. The Panel rejected the United States' argu ment that, "where the USDOC makes such 
company-specific findings for some exporters unde r Section 751(c)(4)(B), those findings would be 
taken into account in the order-wide determinati on, but they would not necessarily determine the 
outcome of the order-wide determination."218  The Panel found it "difficult to understand how the 
                                                      
213Panel Report, para. 7.35.  The Panel observed that it would "base [its] ultimate assessment of 
Argentina's claim regarding waiv ers on the USDOC's order-wide, as  opposed to company-specific, 
determinations". ( Ibid. (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 232)) 
214Ibid., para. 7.36. 
215Ibid. 
216Ibid., para. 7.37.   
217Ibid. 
218Ibid., para. 7.39.   WT/DS268/AB/RW 
Page 42  
 
USDOC would find no likelihood of continuation or recurrence of dumping on an order-wide basis in 
a sunset review where it may have made an affirm ative likelihood determination for some exporters 
pursuant to Section 751(c)(4)(B) of the Tariff Act."
219  Rather, the Panel explained that it could 
"reasonably conclude that in every sunset review  involving multiple exporters the USDOC will have 
to find likelihood on an order-wide basis if one exporter waives its right to participate".220 
98. The Panel then examined whether the amende d waiver provisions are consistent with 
Article 11.3 of the  Anti-Dumping Agreement .  The Panel explained that "[t]he provisions of 
Section 751(c)(4)(B) of the Tariff Act ... would pr eclude the USDOC from taking into consideration 
evidence submitted by cooperating exporters or eviden ce otherwise collected by the USDOC in sunset 
reviews where there is at least one other exporter who waives its right to participate."221  "In such 
cases", the Panel continued, "the USDOC's or der-wide determination would be based on the 
assumption that because one exporter waived its right to participate and acknowle dged to be likely to 
continue or resume dumping, other exporters ar e also likely to continue or resume dumping."222  Thus, 
the Panel reasoned, the USDOC "would fail to observe  the obligation of the investigating authorities 
to make reasoned determinations  of likelihood of continuation or recurrence of dumping based on a 
sufficient factual premise in accordance with Ar ticle 11.3 of the [Anti-Dumping] Agreement."223  
99. The Panel concluded: 
Having found that the [United States ] statutory and regulatory waiver 
provisions may, in some situations, preclude the USDOC from making a reasoned determination of  likelihood of continuation or 
recurrence of dumping based on an  adequate factual foundation—
such as where the USDOC may be required to make an affirmative 
finding on an order-wide basis due to an affirmative finding,  pursuant to Section 751(c)(4)(B) of the Tariff Act, for individual exporters who waive their right to participate—we thus find Section 
751(c)(4)(B) of the Tariff Act, opera ting in conjunction with Section 
751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the 
Regulations, to be inconsistent with Article 11.3 of the [Anti-
Dumping] Agreement.
224 
 
                                                      
219Panel Report, para. 7.39. 
220Ibid. 
221Ibid., para. 7.40.  
222Ibid. (footnote omitted) 
223Ibid., para. 7.40.  
224Ibid., para. 7.41.  WT/DS268/AB/RW 
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D. Claims and Arguments on Appeal 
100. The United States claims on appeal that the Pa nel erred in concluding that the amended 
waiver provisions are inconsiste nt with Article 11.3 of the  Anti-Dumping Agreement .  First, the 
United States argues that the Panel committed a legal error by applying an incorrect standard in its 
evaluation of the amended provisions.  According to the United States, the Panel evaluated whether 
Section 751(c)(4)  could  breach the  Anti-Dumping Agreement , rather than whether the statute 
mandates  a breach.225  Secondly, the United States asserts that the Panel reversed the burden of proof 
by relieving Argentina of its burden to provide  evidence and arguments establishing a breach of 
Article 11.3, and, instead, relying on "pure speculation".226  Thirdly, the United States submits that the 
Panel failed to make an objective assessment of th e matter before it, as required by Article 11 of the 
DSU.227 
101. Argentina asserts that the United States' arguments "are premised upon an erroneous 
understanding of the Appellate Body's findings [in the original proceedings ] as to why the waiver 
provisions were found to be inc onsistent with ... Article 11.3 of  the Anti-Dumping Agreement".228  
According to Argentina, "[t]he A ppellate Body was ... quite clear th at the WTO-inconsistency of the 
waiver provisions resulted from statutorily-mandated company-specific determinations that taint the 
order-wide determinations, because in  such cases, the determination will be based 'at least in part, on 
statutorily-mandated  assumptions  about a company's likelihood of dumping.'"229  Argentina argues 
that "the same WTO-inconsistency remains"230 because "[t]he modification of the waiver regulation 
by the United States did nothing  to address the source of the ... violation."231  It adds that "[t]he fact 
that the statutory-mandate is now triggered by an  affirmative statement and an 'admission' has not 
changed the nature of the viola tion of Article 11.3", because "[t]he statutory-mandate strips [the] 
USDOC of its ability to assess evidence with respec t to a waiving company in order to 'arrive at a 
                                                      
225United States' appellant's submission, subheading III. A, p. 4.  According to the United States, the 
Panel examined whether there was any provision in Unit ed States law that preclud ed Section 751(c)(4) from 
requiring an affirmative order-wide determination in cases  where an exporter filed a statement of waiver.  Such 
an approach, the United States argues, is contrary  to the standard set out by the GATT panel in  US – Tobacco  
whereby "a statute need not unambiguously require a WTO-consistent result, but only ... permit a WTO-
consistent result". ( Ibid., para. 13)  The United States points out that the Appellate Body referred to the US – 
Tobacco  GATT panel report in US – 1916 Act . (Ibid., para. 9 (referring to Appellate Body Report, US – 1916 
Act, para. 88))  
226Ibid., para. 14. 
227Ibid., para. 24. 
228Argentina's appellee's submission, para. 10.  
 229Ibid., para. 17 (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 234 (original emphasis)). 
230Ibid., para. 18. 
231Ibid., para. 19. (original underlining) WT/DS268/AB/RW 
Page 44  
 
reasoned conclusion' on the basis of the evidence de veloped for that company and, as a result, the 
order-wide determination 'will be based, at  least in part, on statutorily-mandated  assumptions  about a 
company's likelihood of dumping.'"
232  
E. Consistency of the Amended Waiver Provisi ons with Article 11.3 of the Anti-Dumping 
Agreement 
102. We turn now to assess the consistency of the am ended waiver provisions with Article 11.3 of 
the  Anti-Dumping Agreement and begin our examination by setti ng out the requirements established 
in this provision, as interpreted by the Appellate Body.  Article 11.3 of the Anti-Dumping Agreement 
provides: 
Notwithstanding the provisions of pa ragraphs 1 and 2, any definitive 
anti-dumping duty shall be terminated  on a date not later than five 
years from its imposition (or from the date of the most recent review under paragraph 2 if that revi ew has covered both dumping and 
injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry 
within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.*  The duty may remain in force pending the outcome of such a review. 
 
*[Original footnote 22] When the amount of the anti-dumping duty is 
assessed on a retrospective basis, a finding in the most recent assessment 
proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied 
shall not by itself require the authorities to terminate the definitive duty. 
 
103. The Appellate Body has explained that Artic le 11.3 "imposes a temporal limitation on the 
maintenance of anti-dumping duties" and "lays down a mandatory rule with an exception".233  
Article 11.3 requires WTO Members to terminate an anti-dumping duty within five years of its imposition  unless  the following three conditions are satisfied:   
                                                     
 
 232Argentina's appellee's submission, para. 19 (quoting Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 234 (original emphasis)). 
233Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 104.  WT/DS268/AB/RW 
 Page 45 
 
 
[F]irst, that a review be initiated be fore the expiry of five years from 
the date of the imposition of the duty;  second, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of  dumping ;  and third, that in the 
review the authorities determine that the expiry of the duty would be 
likely to lead to continuation or recurrence of  injury .  If any one of 
these conditions is not satisfied, the duty must be terminated.
234 
(original emphasis;  footnote omitted) 
 
104. The review conducted by an investigating au thority pursuant to Article 11.3 has been 
described by the Appellate Body as "combining  both investigatory and adjudicatory aspects", 
requiring investigating authorities to take "an activ e rather than a passive decision-making role".235  
The words "review" and "determine" in Article 11 .3 have been read by the Appellate Body as 
indicating that "authorities conducting a sunset revi ew must act with an appropriate degree of 
diligence and arrive at a reasoned conclusion on the b asis of information gathered as part of a process 
of reconsideration and examination."236  The Appellate Body further explained that "[t]he plain 
meaning of the terms 'review' and 'determine' in Artic le 11.3 ... compel an inv estigating authority in a 
sunset review to undertake an examination, on th e basis of positive evidence, of the likelihood of 
continuation or recurrence of dumping and injury" and that, "[i]n drawing conclusions from that 
examination, the investigating authority must arrive  at a reasoned determination resting on a sufficient 
factual basis;  it may not rely on assumptions or conjecture."237  The requirements that a determination 
be based on "positive evidence" and a "sufficient factual basis" "gover n all aspects of an investigating 
authority's likelihood determination".238 
105. At the same time, the Appellate Body has held  that "Article 11.3 does not expressly prescribe 
any specific methodology for investigating authoritie s to use in making a likelihood determination in 
a sunset review", nor does it "identify any particular factors that authorities must take into account in making such a determination."
239  The Appellate Body has also indicated that, where an investigating 
authority chooses to make its likelihood-of-dumpi ng determination on an order-wide basis, the 
examination of the WTO-consistency of that dete rmination must also be made on an order-wide 
basis.240 
                                                      
234Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 104.  
235Ibid., para. 111. (original emphasis) 
236Ibid.  
237Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 180. 
238Ibid., para. 302. 
239Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 123. (footnote omitted) 
240Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 231. WT/DS268/AB/RW 
Page 46  
 
106. Having set out the requirements of Article 11.3 of the  Anti-Dumping Agreement , we now 
examine the consistency of the amended waiver provi sions.  The relevant provisions of United States 
law, for purposes of this appeal, are Section 751(c )(4) of the Tariff Act and Section 351.218(d)(2)(ii) 
of the Regulations.  Section 751(c)(4) of the Tariff Act provides: 
W
AIVER OF PARTICIPATION BY CERTAIN INTERESTED PARTIES  
(A)   I N GENERAL .—An interested party described in Section 
771(9)(A) or (B) may elect not to participate in a review conducted by the administering authority under this subsection and to 
participate only in the review conducted by the [USITC] under this 
subsection. 
(B)   E
FFECT OF WAIVER .—In a review in which an interested party 
waives its participation pursuant to this paragraph, the administering 
authority shall conclude that revoca tion of the order or termination of 
the investigation would be likely to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.
241   
 
107. The relevant part of the amended Section 35 1.218(d)(2)(ii) of the Regulations states: 
Contents of statement of waiver.   Every statement of waiver must 
include a statement indicating that the respondent interested party waives participation in the sunset  review before the [USDOC];  a 
statement that the respondent interest ed party is likely to dump ... if 
the order is revoked or the investigation is terminated[.]
242  
 
108. Pursuant to Section 751(c)(4)(A) of the Tariff Act, an interested party is allowed to  
waive its right to participate in the review c onducted by the USDOC while still being able to 
participate in the review conducted by the United States International Trade Commission (the 
"USITC").243  In such instances, Section 751(c)(4)(B) re quires the USDOC to make an affirmative 
determination of likely dumping "with respect to that  interested party".  Section 351.218(d)(2)(ii) of 
the Regulations sets out the contents of the statemen t that must be submitted by the interested party 
wishing to waive its participation.  As a result of the amendments to the Regulations, the statement of 
waiver now must include "a statement that the res pondent interested party is likely to dump ... if the 
order is revoked or the inv estigation is terminated." 
                                                      
241See Exhibit ARG-33 submitted by Argentina to the Panel. 
242See supra , footnote 9, p. 62064.  
243We assume, and Argentina has not alleged otherwise, that an exporter that fails to respond to the 
USDOC's notice of initiation, or provides an incomplete re sponse, does not waive its right to participate in the 
USITC component of the sunset review.  WT/DS268/AB/RW 
 Page 47 
 
 
109. Argentina does not appeal the Panel's finding that "the concept of  waiver  set out in 
Section 751(c)(4) of the Statute, in conj unction with the regulatory provisions in 
Section 351.218(d)(2), now refers only to the affirmative waiver  situation that is, where an  
exporter elects not to participate in a review by filing an affirmative statement of waiver, accompanied by a statement that the exporter is likel y to continue or resume dumping in the absence 
of the order."
244  Argentina confirmed at the oral hearing that it does not contest this finding.  
Consequently, in our analysis, we proceed on the basis that the ame nded waiver provisions require the 
USDOC to make an affirmative company-specific finding  only  in cases where an exporter files a 
statement of waiver, that is, in cases of "affirmative" waiver.245 
110. In addition to the elimination of "deemed" waiv ers, there are significan t differences in the 
requirements that apply to "affirmative" waiver s under the amended Regulations.  Prior to the 
amendments, an exporter wishing affirmatively to waive its participation in the USDOC's sunset 
review had to submit a statement of waiver "indicating that [it] waives participation in the sunset review".
246  The amendments to the Regulations intro duced a new requirement:  in addition to the 
statement indicating its intention to waive its partic ipation, a waiving exporter must also include "a 
statement that [it] is likely to dump ... if the order is revoked or the investigation is terminated."  The 
Panel acknowledged that this statemen t "may constitute at least part of the evidentiary basis on which 
                                                      
244Panel Report, para. 7.31. (original emphasis;  footnote omitted)   
245In US – Section 211 Appropriations Act , the Appellate Body stated that: 
... a panel may examine the municipa l law of a WTO Member for the 
purpose of determining whether that Member has complied with its obligations under the  WTO Agreement .  Such an assessment is a legal 
characterization by a panel.  And, therefore, a panel's assessment of 
municipal law as to its consistency with WTO obligations is subject to appellate review under Article 17.6 of the DSU.  
(Appellate Body Report, US – Section 211 Appropriations Act , para. 105) 
246Prior to the amendments, Section 35 1.218(d)(2)(ii) re ad as follows: 
Contents of statement of waiver .  Every statement of waiver must include a 
statement indicating that the respondent interested party waives participation 
in the sunset review before the [USDOC] and the following information: 
(A) The name, address, and phone number of the respondent interested party 
waiving participation in the sunset review before the [USDOC]; 
(B) The name, address, and phone number of legal counsel or other 
representative, if any; 
(C) The subject merchandise and country subject to the sunset review;  and 
(D) The citation and date of publication in the F EDERAL REGISTER  of  the 
notice of initiation. 
(See Exhibit US-13 submitted by the United States to the Panel) WT/DS268/AB/RW 
Page 48  
 
the authorities may base their sunset determinations".
247  Argentina recognizes that this statement is an 
admission that may be accorded weight.248  
111. The significance of the amendments made to th e Regulations lies in the relationship between 
the statement submitted by the waiv ing exporter and the conclusion th at the USDOC is required to 
draw from the waiver pursuant to Section 751(c)(4)(B) of the Tariff Act.  Prior to the amendments to 
the Regulations, the statement submitted by the waiv ing exporter indicated only that the exporter did 
not intend to participate in the USDOC sunset re view;  the statement said nothing about whether  
the exporter was likely to dump if the order we re revoked or the investigation terminated.  
Nevertheless, that was the conclusion drawn fro m the waiver by the USDOC in accordance with 
Section 751(c)(4)(B).  The waiver triggered the conclusion and there was no evidentiary basis to 
support it.  Therefore, the conclusion drawn by th e USDOC pursuant to Section 751(c)(4)(B) was a 
mere assumption.  As the Appellate Body explaine d in the original proceedings, the USDOC arrived 
at "affirmative company-specific determinations wit hout regard to any evidence on record", and thus 
the company-specific determinations were "merely  assumptions  made by the agency, rather than 
findings supported by evidence".249 
112. Pursuant to the amended Regulations, an e xporter who chooses to waive participation  
must now submit a statement indicating that it is likely to dump if the order is revoked or the 
investigation is terminated.  The conclusion draw n by the USDOC from the statement, pursuant to 
Section 751(c)(4)(B) of the Tariff Act, is now sy nonymous with the statement submitted by the 
waiving exporter;  there is a clear relationship be tween the statement and the conclusion drawn by the 
USDOC.  A statement by an interested party who elects to make an admission, plainly against its own interest
250, as to its future conduct thereby provides significant, and sometimes overwhelming, 
evidence for the conclusion that is mandated by the statute.  The st atement required by the amended 
Regulations is such an admission and constitutes evid ence that warrants the finding that is statutorily 
                                                      
247Panel Report, para. 7.36. 
248Argentina's appellee's submission, paras. 19 and 25;  Argentina's response to questioning at the oral 
hearing. 
249Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 234. (original 
emphasis) 
250Admissions are generally taken to be reliable because they are adverse to the interests of the parties 
making them.  There may be exceptional circumstances wh ere this may not be the case.  Argentina offered a 
hypothetical example at the oral hearing involving st rategic behaviour by a foreign affiliate of a petitioner 
domestic industry.  The affiliate files a statement of waiver in order to make an affirmative order-wide 
determination more likely, for the benefit of its parent company.  However, the United States has indicated that, 
if such a situation were to arise, evidence contradic ting the waiving exporter's ad mission may be placed on the 
record of the sunset review and must be considered by the USDOC before it makes the order-wide 
determination. (United States' response to questioning at the oral hearing)  See also  United States' response to 
Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.  WT/DS268/AB/RW 
 Page 49 
 
 
mandated, because there is an unremarkable, and en tirely rational, chain of reasoning that links the 
evidence of what a party says it will do to the finding that such party is likely to act in accordance 
with its acknowledged intention.  Accordingly, th e waiving exporter's statement clearly constitutes 
positive evidence and provides a reasoned basis fo r the USDOC to make the company-specific 
findings required by Section 751( c)(4)(B) of the Tariff Act.  In these circumstances, we do not 
consider that the company-specific findings that rest  upon the exporter's statement can be described as 
"merely  assumptions  made by the agency, rather than findings supported by evidence".251  Likewise, 
although the company-specific finding of likelihood of  dumping is still statutorily mandated, the legal 
consequence mandated by the statute does not go beyond what is declared by the waiving exporter in its statement of waiver.  Therefore, even though Section 751(c)(4)(B) has not been amended, the manner in which it operates in conjunction with th e amended Regulations has changed significantly, 
and this informs our assessment of the consiste ncy of the amended waiver provisions with 
Article 11.3 of the Anti-Dumping Agreement . 
113. We also note that exporters are not compelled to  waive their right to participate in a sunset 
review.  An exporter that submits a statement of waiver does so  voluntarily .  Exporters have the 
option to participate actively in the proceedings  before the USDOC and to submit evidence.  
Alternatively, exporters may choose to remain silent , by failing to respond to a notice of initiation, in 
which case no company-specific determination will be made by the USDOC for that exporter.
252 
114. Having considered the underlying basis of th e company-specific findings, we now address the 
relationship of these findings with the order-wide de termination.  The United States asserted that, 
"[i]n making its order-wide de termination, [the USDOC] must  consider all information and argument 
on the record of the sunset proceeding".253  Argentina's argument is that, in the original proceedings, 
the Appellate Body did not consider relevant whether other evidence in the record would be 
considered by the USDOC when making the order-wide determination.254  Argentina points to the 
following statement made by the Appellat e Body in the original proceedings: 
                                                      
251Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 234. (original 
emphasis) 
252See  supra , para. 93.   
253United States' response to Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13. 
(emphasis added)  
254Argentina's appellee's submission, paras. 2, 17-18, and 36. WT/DS268/AB/RW 
Page 50  
 
[E]ven assuming that the USDOC ta kes into account the totality of 
record evidence in making its orde r-wide determination, it is clear 
that, as a result of the operation of the waiver provisions, certain order-wide  likelihood determinations made by the USDOC will be 
based, at least in part, on statutorily-mandated  assumptions  about a 
company's likelihood of dumping.
255 (original emphasis) 
 
115. The Appellate Body's statement must be read in the light of the measures at issue in the 
original proceedings.  As we have explained, be fore the amendments to the Regulations, the USDOC 
made company-specific findings for exporters that f iled incomplete submissions or failed to respond 
to a notice of initiation.  In addition, the company- specific findings with resp ect to waiving exporters 
were based on statements that said nothing about wh ether the exporter was likely to dump if the order 
were revoked or the investigation terminated.  In neither case were the company-specific findings 
based on positive evidence;  instead, the co mpany-specific findings were based on  assumptions .  This 
flaw could not be rectified by the USDOC's cons ideration, at the order-wide level, of evidence 
contradicting the company-specific finding.  This is because the finding was based on an assumption, and not on evidence, and therefore was not capable of being properly weighed at the order-wide level 
against other evidence that ma y have been on the record. 
116. The situation of the amended waiver provisions  is different.  We explained above that 
company-specific findings are no longer based merely on assumptions.  Rather, the company-specific 
finding is based on a statement by the exporter that it is likely to dump if the order were revoked or 
the investigation terminated.  This statement cons titutes positive evidence.  In  addition, the amended 
waiver provisions do not preclude the USDOC from considering other evidence on the record when 
making an order-wide determination.
256  Thus, at both the company-specific and order-wide levels of 
analysis, the USDOC's findings would have an eviden tiary basis and the totality of the evidence must 
be weighed before the order-w ide determination is made. 
117. Turning to the Panel's analysis, we note that, even though Argentina did not premise its claim 
on whether the company-specific findings were dete rminative for the order-wide determination, the 
Panel focused its reasoning on this issue.  The Panel described the relationship between company-
specific findings and the order-wide determination as follows: 
                                                      
255Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 234.   
256United States' appellant's submission, paras. 12 an d 31-32.  See also United States' response to 
Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.  WT/DS268/AB/RW 
 Page 51 
 
 
Given that Section 751(c)(4)(B) requires the USDOC to make an affirmative likelihood determinati on for individual exporters who 
waive their right to participate, it seems to us that such company-specific determinations would necessarily have a significant impact 
on, or even determine , the outcome of the USDOC's order-wide 
determination.  Hence, we can re asonably conclude that in every 
sunset review involving multiple exporters the USDOC will have to find likelihood on an order-wide basis if one exporter waives its right to participate, because otherw ise the USDOC would have found no 
likelihood with respect to the exporters who waive their right to 
participate.
257 (emphasis added) 
 
In such cases, the Panel added, "[t]he provisions of Section 751(c)(4)(B) of the Tariff Act ... would 
preclude the USDOC from taking into considerati on evidence submitted by cooperating exporters or 
evidence otherwise collected by the USDOC in sun set reviews where there is at least one other 
exporter who waives its right to participate" and, as a result, "the USDOC's order-wide determination 
would be based on the assumption that because one exporter waived its right to participate and 
acknowledged to be likely to continue or resume dum ping, other exporters are also likely to continue 
or resume dumping."258 
118. We are unable to agree with the Panel's analysis  for several reasons.  First, the Panel did not 
fully appreciate the consequences that flow from th e fact that, under the amended waiver provisions, 
the company-specific findings are now based on positiv e evidence taking the form of an admission.  
Secondly, as we have noted, Argentina did not set  out to demonstrate that the company-specific 
findings determine the outcome of the order-wide de termination.  Rather, Argentina sought to prove 
that "the order-wide determination will be based, at  least in part, on statutorily-mandated findings", 
which Argentina claims is sufficient to establish a violation of Article 11.3 of the  Anti-Dumping 
Agreement .259   
119. In addition, we note that the Panel conclude d that the amended waiver provisions "would 
preclude the USDOC from taking into considerati on evidence submitted by cooperating exporters or 
evidence otherwise collected by the USDOC in sun set reviews where there is at least one other 
exporter who waives its right to participate".260  The Panel also concluded that "company-specific 
determinations would necessarily have a significant impact on, or even determine, the outcome of the 
                                                      
257Panel Report, para. 7.39. 
258Ibid., para. 7.40. (footnote omitted) 
259Argentina's appellee's submission, para. 48 (referring to Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 234). 
260Panel Report, para. 7.40. WT/DS268/AB/RW 
Page 52  
 
USDOC's order-wide determination."
261  However, the United States emphasized before the Panel 
that, "[i]n making its order-wide determination, [the USDOC]  must  consider all information and 
argument on the record of the sunset proceeding."262   Furthermore, the United States pointed out that 
"the relevance of ... a company-specific finding to  the ultimate likelihood determination always would 
depend on the facts on the administrative record in that sunset review."263  
120. We observe that a respondent's explanation of the basis on which its investigating authority 
will make a determination will have more weight if it  is confirmed by the text of the applicable laws 
or regulations.  But the United States' statements that the USDOC must consider all information and 
arguments on the record, and that the relevance of a company-specific finding to the order-wide 
likelihood determination would alwa ys depend on the facts of each case, cannot be rejected merely 
because there is no legal instrument that expressly requires the USDOC to act in this way. This is 
insufficient to support properly a finding of incons istency as such.  Thus, the Panel's reasoning seems 
speculative, and this is reflected in the language used in the Panel Report.264    
121. In sum, on the basis of the evidence on the Pa nel record, we are not persuaded that the 
amended waiver provisions preclude the USDOC from making a reasoned determination with a 
sufficient factual basis, as required by Article 11.3 of the  Anti-Dumping Agreement .  Under the 
amended waiver provisions, a company-specific findi ng is not based on an assumption but, rather, on 
a statement by the waiving exporter indicating that it is likely to dump if the order were revoked or the 
investigation terminated.  Moreover, the ame nded waiver provisions do not preclude the USDOC 
from considering other evidence on the record of the sunset review.  Indeed, under Article 11.3 of the 
Anti-Dumping Agreement , the USDOC would have to consider any other evidence on the record, and 
assess the statement of waiver in the light of th at other evidence, before making the order-wide 
determination.  If it failed to do so, it would not exercise the degree of diligence required of 
                                                      
261Panel Report, para. 7.39. 
262United States' response to Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13. 
(emphasis added) 
263Ibid. 
264For example, the Panel stated that "the USDOC may have to find likelihood on an order-wide basis 
because of the company-spec ific determinations that it may have ma de under Section 75 1(c)(4)(B) for the 
waiving exporters." (Panel Report, para. 7.37 (emphasis added))  Later, the Panel found it " difficult to 
understand  how the USDOC would find no likelihood of continuation or recurrence of dumping on an order-
wide basis in a sunset review where it may have made an affirmative likelihood determination for some 
exporters pursuant to Section 751( c)(4)(B) of the Tariff Act." ( Ibid., para. 7.39 (emphasis added))  Finally, the 
Panel stated that it " [could] reasonably conclude  that in every sunset review involving multiple exporters the 
USDOC will have to find likelihood on an order-wide ba sis if one exporter waives its right to participate, 
because otherwise the USDOC would ha ve found no likelihood with respect to the ex porters who waive their 
right to participate." ( Ibid. (emphasis added))  WT/DS268/AB/RW 
 Page 53 
 
 
investigating authorities, nor could it make a reasoned determination with a sufficient factual basis, as 
required by Article 11.3 of the  Anti-Dumping Agreement .  
122. For these reasons, we  reverse  the Panel's finding, in paragr aphs 7.41 and 8.1(a) of the  
Panel Report, that Section 751(c)(4)(B) of the Tariff Act, operating in conjunction with 
Section 751(c)(4)(A) of the Tariff Act and Section 3 51.218(d)(2) of the Regulations, is inconsistent 
with Article 11.3 of the  Anti-Dumping Agreement .  In the light of our finding, we do not consider it 
necessary to examine whether the Panel failed to ma ke an objective assessment of the matter before it, 
as required by Article 11 of the DSU.  
 
V. The USDOC's Finding on Import Volumes 
123. We turn now to the United States' appeal of the Panel's conclusion that it could properly 
examine the USDOC's finding that the volume of imports of oil country tubular goods ("OCTG") 
from Argentina declined after the imposition of the anti-dumping duty order.  We begin with a brief 
summary of the relevant aspects of the original proceedings and a descrip tion of the Section 129 
Determination issued by the USDOC after the or iginal panel and Appella te Body reports were 
adopted by the DSB.  This is followed by a summar y of the findings of the Panel in these Article 21.5 
proceedings and the claims and arguments raised in  this appeal.  We then consider whether it was 
proper for the Panel to examine the USDOC's finding that import volumes declined after the imposition of the anti-dumping duty order, which is in corporated into the Section 129 Determination. 
A. Original Proceedings 
124. In the original sunset review, the USDOC based  its affirmative determination of likelihood of 
dumping on two bases:  (i) that dumping continued above  de minimis  levels during the time the anti-
dumping duty order was in place;  and (ii) that im port volumes declined after the imposition of the 
anti-dumping duty order.
265  Argentina argued before the origin al panel that the USDOC's likelihood-
of-dumping determination did not meet th e requirements of Article 11.3 of the  Anti-Dumping 
Agreement .266   
125. The original panel began its assessment with the first basis of the USDOC's determination.  It 
noted that the USDOC had relied on the dumping ma rgin determined for Ar gentine OCTG in the 
original investigation to conclude that dumpi ng had continued during the time the anti-dumping duty 
order was in place.  The original panel rejected th is approach because, in its view, "the original 
                                                      
265Original Panel Report, para. 7.213. 
266Ibid., paras. 3.1, 7.214, and 7.218. WT/DS268/AB/RW 
Page 54  
 
determination of dumping by itself cannot represent  a sufficient factual basis for concluding that 
dumping continued during the life of the measure, le t alone representing an adequate factual basis to 
conclude that dumping is likely  to continue or recur after the expiry of the order."
267  Therefore, the 
original panel concluded that "the  USDOC's likelihood determination in the instant sunset review was 
inconsistent with Article 11.3 of the Anti-Dumping Agreement."268 
126. At the interim review stage, Argentina requ ested that the original panel "make findings 
regarding the USDOC's reliance on the post-order d ecline in the volume of imports of OCTG from 
Argentina".269  The United States suggested that the original panel exercise judicial economy with 
respect to the USDOC's finding on import volumes.270  
127. In response, the original panel stated: 
We note that in paragraphs 7.20 1-7.206 below, we made the  
relevant factual findings regardi ng Argentina's claim challenging the 
USDOC's determinations in the OCTG  sunset review.  In particular, 
in paragraph 7.202, we observed as a matter of fact that the USDOC had based its likelihood determina tion on the facts that dumping had 
continued over the life of the measure and that import volumes of the 
subject product had declined.  It is, therefore, clear that we have 
made relevant factual findings in th is regard.  As far as legal findings 
are concerned, we note that we have decided Argentina's claim regarding the USDOC's likelihood determinations in the OCTG 
sunset review.  We have found that the USDOC's reliance on the 
existence of the original dumping margin was inconsistent with 
Article 11.3 of the Anti-Dumping Agreement.  We therefore did not need to address whether the USDOC's reliance on declined import volumes was yet another action incons istent with that article.  
Argentina argues that we should make a finding in this regard in case our decision is appealed and the Appellate Body finds that the 
USDOC's reliance on the original  dumping margin was in fact 
consistent with Article 11.3.  We  do not consider, however, that it 
would be appropriate to make an  additional legal finding based on 
the hypothetical situation Argentina posits.  We therefore decline to 
make additional findings in this regard.
271 
 
                                                      
267Original Panel Report, para. 7.219. 
268Ibid., para. 7.221. 
269Ibid., para. 6.9. 
270Ibid., para. 6.10. 
271Ibid., para. 6.11.  WT/DS268/AB/RW 
 Page 55 
 
 
Argentina did not appeal the original panel's decision not to make an additional finding on the 
USDOC's volume analysis.  Neither did the United St ates appeal the original panel's finding that the 
likelihood-of-dumping determination was in consistent with Article 11.3 of the  Anti-Dumping 
Agreement . 
B. Measures Taken to Comply 
128. On 16 December 2005, the USDOC made a new likelihood-of-dumping determination 
pursuant to Section 129 of the Uruguay Round Ag reements Act (the "URAA").  The USDOC 
concluded that "there is likeli hood of continuation or recurrence of dumping had the antidumping duty 
order on OCTG from Argentina been revoked in 2000, i.e., at the end of the original sunset review 
period."272  The analysis in the Section 129 Determination focuses on whether dumping continued 
during the time the anti-dumping duty order was in place, that is, the first basis of the original sunset 
determination.  The USDOC did not re-examine the s econd basis of its original sunset review, that is, 
the finding that the volume of imports had dec lined after the imposition of the anti-dumping duty 
order.  Nevertheless, the Section 129 Determina tion contains several references to the USDOC's 
previous finding regarding the volume of imports.273  
C. Panel Proceedings pursuant to  Article 21.5 of the DSU 
129. Before the Panel, Argentina asserted that the Section 129 Determinati on fails to bring the 
United States into conformity with Article 11.3 of the Anti-Dumping Agreement .  Argentina 
challenged the USDOC's findings regarding likely past dumping, as well as the post-order decline in 
import volumes.274  The United States responded that the incor poration of the analysis of the decline 
in import volumes from the original sunset determin ation into the Section 129 Determination is not 
part of the "measure taken to comply" with  the recommendations and rulings of the DSB.275  T h e  
United States underscored that "the original panel and the Appellate Body did not make any findings 
regarding the USDOC's volume analysis in the original proceedings".276 
                                                      
272Section 129 Determination, supra , footnote 11, p. 11. 
273See  infra , para. 145. 
274Panel Report, paras. 7.64 and 7.81. 
275Ibid., para. 7.82. 
276Ibid. WT/DS268/AB/RW 
Page 56  
 
130. The Panel observed that both Argentina and the United States noted that "the original panel 
applied judicial economy with respect to the USDOC's volume analysis."
277  The Panel then stated 
that "[t]he issue ... here is whether the volume analysis used by the USDOC in its Section 129 
Determination—the basis of an issue that was rais ed and argued in the original proceedings, but on 
which the [original] panel did not make a finding—is  part of the measure taken to comply by the 
United States and is therefore properly before [the Panel]."278   
131. In resolving this issue, the Panel noted that the USDOC based its conclusion in the 
Section 129 Determination on both the finding of  likely past dumping and the finding on import 
volumes from the original sunset review.279  "As such", the Panel "consider[ed] the volume analysis 
from the original sunset review to have become an  integral part of the Section 129 Determination."280  
The Panel therefore found that "the volume analysis from the original sunset review is part of the 
measure taken to comply by the United States an d hence is properly before [the Panel] in these 
proceedings."281 
132. The Panel rejected the United States' argument that Argentina was precluded from raising the 
claim in the Article 21.5 panel proceedings because th e original panel had declined to make a finding 
on that issue.282  The Panel explained: 
The fact that a panel, in an orig inal dispute settlement proceeding, 
did not make findings regarding certain issues relating to the 
investigating authorities' determina tion that were raised and argued 
before the panel, cannot preclude a compliance panel, in its assessment under Article 21.5 of the DSU of the measures taken to comply with the DSB recommendations and rulings, from reviewing those aspects which have been incorp orated by the authorities in the 
measure taken to comply.
283 
 
In addition, the Panel rejected the United States'  reliance on the Appellate Body's findings in  
EC – Bed Linen (Article 21.5 – India)  because it considered that the facts in that case differed from 
those before it.  The Panel explained that  the panel in the original proceedings in   EC – Bed Linen  
                                                      
277Panel Report, footnote 56 to para. 7.89 (referring to Argentina's and the United States' responses to 
Question 17(a) posed by the Panel, Panel Report, p. E-25, paras. 65-68 and p. E-72, paras. 68-69, respectively). 
278Ibid., para. 7.90. 
279Ibid., para. 7.91. 
280Ibid. 
281Ibid. 
282Ibid., para. 7.92. 
283Ibid.  WT/DS268/AB/RW 
 Page 57 
 
 
dismissed India's claim because India had failed to make out a  prima facie  case, whereas the original 
panel in this dispute exercised judicial economy with respect to  Argentina's claim.284   
133. Having decided that the USDOC's finding on import volumes was properly before it, the 
Panel examined its consistenc y with Article 11.3 of the  Anti-Dumping Agreement .  In the Panel's 
view, the USDOC's finding regarding the decline in the volume of imports was not based on a thorough evaluation of all possible causes of such a decline.  The Panel pointed out that "the 
Section 129 Determination fails to examine potentia l reasons, other than a likelihood of continuation 
or recurrence of dumping, that could have tr iggered the decline in the volume of imports."
285  For this 
reason, the Panel found that "[t]he USDOC's determ ination regarding the decline in the volume of 
imports lacks a sufficient factual basis."286  The Panel concluded: 
We have found above that both factual foundations of the USDOC's 
order-wide likelihood determination with respect to the imports of OCTG from Argentina, i.e. its findings regarding likely past dumping and the volume of imports, lack a sufficient factual basis.  We therefore find the USDOC's order-wide determination to be inconsistent with Article 11.3 of the [Anti-Dumping] Agreement.
287 
 
D. Claims and Arguments on Appeal 
134. The United States claims that the Panel erred in  finding that the USDOC's "volume analysis 
was part of the measure taken to comply, even  though that analysis was from the original 
determination and was simply incorporated by  reference in the Section 129 determination."288  The 
United States emphasizes that "[t]he text of Artic le 21.5 [of the DSU] provides that a compliance 
proceeding concerns the measure  taken to comply  with the recommendations and rulings of the DSB.  
Thus, the recommendations and rulings are the a ppropriate starting point for an analysis of 
compliance."289  The United States explains that "the  original Panel declined to make  any  
recommendations or rulings regarding the volume analysis" and, therefore, "there was no 
                                                      
284Panel Report, paras. 7.93-7.96. 
285Ibid., para. 7.101 and footnote 76 thereto.  Siderca explained that it had diversified its export markets 
following the imposition of the anti-dumping duty order by the USDOC.  Thus, the decline in United States 
imports of OCTG from Argentina was the result of this di versification rather than an alleged inability to sell in 
the United States without dumping. (Argentina's first wr itten submission to the Panel, Panel Report, p. A-33, 
para. 130)  See also Siderca's response to the USDOC questionnaire (30 November 2005) (public version) 
(Exhibit ARG-15 submitted by Argentina to the Panel), pp. 7-10. 
286Panel Report, para. 7.101. 
287Ibid., para. 7.102. 
288United States' appellant's submission, para. 35. 
289Ibid., para. 37. (original emphasis) WT/DS268/AB/RW 
Page 58  
 
recommendation or ruling with which to comply in that respect."
290  As a result, the United States 
argues, "the unaltered, original volume analysis, which was incorporated by reference into the 
section 129 determination, was not part of the measure  taken to comply, and was not within the scope 
of the compliance proceeding."291 
135. In support of its argument, the United States refers to the Appellate Body Report in  EC – Bed 
Linen (Article 21.5 – India)  where the Appellate Body held that, the fact that a particular analysis is 
incorporated into a re-determination, or indeed form s part of the basis for a re-determination, does not 
render that analysis an inseparable part of the measure taken to comply.292  The United States also 
relies on the Appellate Body's finding that a claim in respect of which a complainant had failed to 
make a  prima facie  case in the original proceedings cannot be reasserted in the Article 21.5 
proceedings.293  For the United States, this reasoning "i s equally applicable when a panel has 
exercised judicial economy, in particular when the complaining party d eclines to appeal such 
exercise".294  The United States refers also to what it d escribes as "another logically, and procedurally, 
troubling aspect to the Panel's reasoning".295  The United States submits that, under the approach 
followed by the Panel, "if a panel declines to make findings with respect to a particular aspect of a 
measure in an original proceeding, the responding Member is, nevertheless, under an obligation to 
guess  that the panel  might have thought  there were WTO inconsistencies with that aspect of the 
measure".296  Moreover, the United States argues that a respondent whose measure is found to be 
WTO-inconsistent for the first time by a complianc e panel is not given a "reasonable period of time" 
to bring itself into conformity, as is the case in original proceedings.297 
136. For these reasons, the United States requests the A ppellate Body to reverse the Panel's finding 
that "the original volume analysis was part of the measure taken to comply" and that, as a 
consequence, "the Panel's finding that the volume an alysis is inconsistent with Article 11.3 should be 
declared moot and of no legal effect."298 
                                                      
290United States' appellant's submission, para. 38. (original emphasis) 
291Ibid.  
292Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 86). 
293Ibid., para. 47 (referring to Appellate Body Report, EC – Bed Linen (Article 21-5 – India) , para. 96). 
294Ibid., para. 48. 
295Ibid., para. 49. 
296Ibid. (original emphasis) 
297Ibid., para. 36. 
298Ibid., para. 51.  WT/DS268/AB/RW 
 Page 59 
 
 
137. Argentina contends that the USDOC incorporat ed by reference and relied upon the volume 
analysis in the Section 129 Determination and, therefor e, it is part of the "measure taken to comply".  
According to Argentina, the situation in the present case is different from the situation in  EC – Bed 
Linen (Article 21.5 – India)  where the Appellate Body stated that a complainant could not reassert a 
claim in the Article 21.5 proceedings if the or iginal panel made a definitive ruling of WTO-
consistency or found that the complainant failed to make a  prima facie  case.299  Either of these 
findings constitute a "final resolution" of the issu e between the parties, which is not the case where 
the original panel exercises judicial economy.300  Argentina draws attention to a statement by the 
Appellate Body in  EC – Bed Linen (Article 21.5 – India)  that a complainant should not be prevented 
from reasserting a claim if the panel exercises false judicial economy.301  In addition, Argentina 
argues that the United States cannot unilaterally de termine the scope of the "measures taken to 
comply".  Finally, Argentina dismisses the United St ates' arguments of procedural unfairness, because 
the issue of the decline in import volumes was argued by the parties both before the original panel and 
in the Article 21.5 panel proceedings. 
E. Whether the USDOC's Finding on Import Volumes was Properly Before the Panel 
138. The issue on appeal is whether the USDOC's fi nding that the volume of imports of OCTG 
from Argentina declined after the imposition of the anti-dumping duty order—which was made in the 
original sunset determination and incorporated in to the Section 129 Determination—is part of the 
"measure taken to comply" within the meaning of Article 21.5 of the DSU.  
139. Article 21.5 of the DSU provides, in relevant part: 
Where there is disagreement as to th e existence or consistency with a 
covered agreement of measures taken to comply with the 
recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. 
 
140. The Appellate Body has explained that a "Member 's designation of a measure as one taken 'to 
comply', or not, is relevant to this  inquiry, but it cannot be conclusive."
302  Instead, "it is, ultimately, 
                                                      
299Argentina's appellee's submission, para. 81 (referring to Appellate Body Report, EC – Bed Linen 
(Article 21.5 – India) , para. 96).   
300Ibid., para. 81.   
301Argentina relies in particular on the Appellate Body's statement that the issue raised in the  EC – Bed 
Linen (Article 21.5 – India)  appeal "is different from a situation where a panel, on its own initiative, exercises 
'judicial economy' by not ruling on  the substance of a claim." ( Ibid., para. 82 (quoting Appellate Body Report, 
EC – Bed Linen (Article 21.5 – India) , footnote 115 to para. 96 (original emphasis)))   
302Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 73. (footnote 
omitted) WT/DS268/AB/RW 
Page 60  
 
for an Article 21.5 panel—and not for the complain ant or the respondent—to determine which of the 
measures listed in the request for its estab lishment are 'measures taken to comply'."
303  Nonetheless, 
the Appellate Body has cautioned that "characterizing an act by a Member as a measure taken to 
comply when that Member maintains otherwise is not something that should be done lightly by a panel."
304 
141. Turning to the particular facts of this case, we recall that the USDOC's affirmative 
determination of likelihood of dumping in the Sec tion 129 Determination is premised on two factual 
bases:  (i) the finding of likely past dumping during the period of review;  and (ii) the finding that import volumes declined after the imposition of the anti-dumping duty order, which was made in the 
original sunset determination and is incor porated into the Section 129 Determination.
305  I t  i s  
undisputed that the USDOC did not conduct a new an alysis of the volume of imports for purposes of 
the Section 129 Determination.  It is also undisput ed that no changes were made by the USDOC to the 
analysis it had conducted in the original sunset revi ew;  rather, that analysis is incorporated by 
reference without modification.  Furthermore, it is  undisputed that Argentina challenged the USDOC's 
volume analysis in the original panel proceedings  and the original panel did not make a finding 
regarding the WTO-consistency of that analysis.  Although the original panel did not expressly label it 
as such, Argentina and the United States both have ch aracterized the original panel's approach to the 
issue as an exercise of judicial economy.306 
142. The Appellate Body has explained that the fi rst sentence of Article 21.5 establishes an 
"express link between the 'measures taken to comp ly' and the recommendations and rulings of the 
DSB" and, therefore, "determining the scope of 'measures taken to comply' in any given case must also involve examination of the recommendations a nd rulings contained in the original report(s) 
adopted by the DSB."
307  Accordingly, to determine the scope of the "measure taken to comply" in 
this case, we look first to the recommendations and ru lings of the DSB in the original proceedings and 
to what they required of the United States .  We then examine the specific steps taken by the United 
States to bring into conformity the measure found to  be inconsistent in the original proceedings. 
                                                      
303Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 78. (footnote omitted) 
304Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 74. 
305Panel Report, para. 7.87. 
306Ibid., footnote 56 to para. 7.89.  The original panel's decision not to make findings as to the WTO-
consistency of the USDOC's volume analysis was not appealed by Argentina. 
307Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 68.  WT/DS268/AB/RW 
 Page 61 
 
 
143. The original panel concluded that "the USDOC 's likelihood determination in the instant 
sunset review was inconsistent with Ar ticle 11.3 of the Anti-Dumping Agreement."308  It is evident 
from this language that the original panel's fi nding of WTO-inconsistency is addressed to the 
USDOC's likelihood-of-dumping determination.  Ther efore, to comply with the original panel's 
finding, as adopted by the DSB, the United States had to bring its determ ination of likelihood of 
dumping into conformity with Article 11.3 of the  Anti-Dumping Agreement .  How it chose to do so 
was, in principle, a matter for the United States to decide.  The original panel did not make a specific 
legal finding concerning the USDOC's finding on im port volumes because it had already found that 
the factual basis of the original sunset determin ation was not proper.  Thus, the original panel 
considered that this finding invalidated  the likelihood-of-dumping determination.309  There was no 
need for it to consider whether that determinati on was defective for other reasons.  The original 
panel's conclusion concerning the USDOC's likel ihood-of-dumping determination should not be 
confused with the particular reason that provided the basis for that conclusion.  
144. Turning to the steps taken by the USDOC to br ing its measure into compliance, we note that 
the Section 129 Determination states expressly that the review was initiated "to address the [original 
panel's] findings concerning the [U SDOC's] likelihood determination".310  In the Section 129 
Determination, the USDOC concluded that "there is likelihood of continuation or recurrence of 
dumping had the antidumping duty order on OCTG  from Argentina been revoked in 2000, i.e., at the 
end of the original sunset review period."311 
145. As noted earlier, the finding on import volumes is one of two factual premises  on the basis of 
which the USDOC made its affirmative determin ation of likelihood of dumping.  The Section 129 
Determination indicates that the USDOC relied on  both  factual premises to make its affirmative 
determination.  This is evident in the followi ng excerpts from the Section 129 Determination:   
Based upon this information and argument, as well as findings on 
import volumes during 1995-2000 from the original sunset review , 
we continue to find that revocation of the order would be likely to lead to continuation or recurrence of dumping.   
... 
                                                     
 
308Original Panel Report, para. 7.221. 
309We note that, in response to Argentina's request at the interim review stage that it make a finding on 
the USDOC's reliance on the post-order decline in the volume of imports, the original panel stated that it had 
"decided Argentina's claim regarding the USDOC's likelihood determinations in the OCTG sunset review". (Ibid., para. 6.11) 
310Section 129 Determination, supra , footnote 11, p. 2. 
311Ibid., p. 11. WT/DS268/AB/RW 
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In making our likelihood determination, we also relied on our 
previous finding regarding th e volume of imports  of subject 
merchandise for the period before a nd the period after the issuance of 
the antidumping duty order.   
... 
In assessing likelihood, we also rely on our previous finding 
regarding the volume of imports of subject merchandise for the 
period before and the period afte r the issuance of the antidumping 
duty order.  In the original sunset review, we found that after imposition of the order, import volumes significantly decreased from 
pre-order levels.  Declining impor t volumes after, and apparently 
resulting from, imposition of an antidumping duty order indicate that exporters would need to dump to sell at pre-order levels.
312 (footnote 
omitted;  emphasis added) 
 
Before the Panel, the United States agreed that , "in addition to its finding regarding likely past 
dumping, the USDOC relied on its volume analysis from the original sunset review as the basis of its 
new sunset determination."313 
146. The USDOC's reasoning in the Section 129 Dete rmination indicates that the two factual 
premises operated together to support the determination of likelihood of dumping.314  The affirmative 
determination of likelihood of dum ping follows consideration of both the finding of likely dumping 
during the time the anti-dumping dut y order was in place and the finding that the volume of imports 
declined after the imposition of the order.  Becau se the likelihood-of-dumping determination in the 
Section 129 Determination is premised on bot h bases, which together support the affirmative 
likelihood determination, we consider that the US DOC's finding that the volume of imports declined 
after imposition of the anti-dumping duty order is an in tegral part of the "measure taken to comply" in 
this case.  This is consistent with the Appellate Body's statement in  US – Shrimp (Article 21.5 – 
                                                      
312Section 129 Determination, supra , footnote 11, pp. 1, 6, and 11.  
313Panel Report, para. 7.90. 
 314The European Communities states that the likelihood-of-dumping determination is based on a single 
bundle of facts and evidence that cannot be divided. (Eur opean Communities' statement at the oral hearing)  The 
European Communities also points out that the proper test to determine whether an aspect of a measure is part of 
the "measure taken to comply" is "whether what is at stake is just one WTO obligation, or more than one".  The 
European Communities argues that, in this case, "there is one WTO obligation: ... to make the determination in 
Article 11.3 of the   Anti-Dumping Agreement " and "one finding".  According to the European Communities, 
"this is sufficient to distinguish [this] case from the  EC – Bed Linen (Article 21.5 – India)  case, which involved 
different legal obligations". (European Communities'  third participant's submission, paras. 15-16) 
 China argues that, "since the volume analysis is an indispensable factual basis of the USDOC's 
Section 129 Determination, it is unreasonable and illogical to conclude that the measure constitutes a measure 
taken to comply while the factual basis thereunder is not part of such a compliance measure." (China's third 
participant's submission, para. 40)  WT/DS268/AB/RW 
 Page 63 
 
 
Malaysia)  that "the task of a panel in a matter referred  to it by the DSB for an Article 21.5 proceeding 
is to consider [the] new measure  in its totality ."315  
147. We further note that the Appellate Body considered in US – Softwood Lumber IV 
(Article 21.5 – Canada)   that "[s]ome measures with a particularly close relationship to the declared 
'measure taken to comply', and to the recommend ations and rulings of the DSB, may also be 
susceptible to review by a panel acting under Article 21.5."316  The Appellate Body noted that this 
"requires an Article 21.5 panel to examine the fact ual and legal background against which a declared 
'measure taken to comply' is adopted" because "[o]nly th en is a panel in a position to take a view as to 
whether there are sufficiently close links for it to ch aracterize such an other measure as one 'taken to 
comply' and, consequently, to assess its consistency with the covered agreements in an Article 21.5 
proceeding."317  If a measure that is formally separate from,  but closely linked to, a declared "measure 
taken to comply" can fall within the scope of an  Article 21.5 proceeding, this would suggest  a fortiori  
that, when both factual bases are relied upon for a likelihood-of-dumping determination, they can be 
considered by an Article 21.5 panel when assessi ng the consistency of th at determination with 
Article 11.3. 
148. The United States points out that "the original Panel declined to make any recommendations 
or rulings regarding the volume analysis" and, therefore, the finding on import volumes could not be part of the "measure taken to comply".
318  The United States submits that, in  EC – Bed Linen 
(Article 21.5 – India) , the Appellate Body recognized that th e fact that a particular analysis is 
incorporated into a re-determination does not render th at analysis an inseparable part of the "measure 
taken to comply".319  We see significant differences between the facts before the Appellate Body in  
EC – Bed Linen (Article 21.5 – India) and those of this appeal.  In EC – Bed Linen (Article 21.5 – 
India) , the issue concerned the investigating authority' s examination of the "other known factors" that 
could be injuring the domestic industry at the same time as the dumped imports, and the non-
attribution of that injury, which were considered to  be separable components of the "measure taken to 
comply" in that case.  In the present case, the USDOC's finding on import volumes is merely one 
factual basis underlying a single inquiry: the likelihood-of-dumping determination.  Moreover, the likelihood-of-dumping determina tion is supported by the findi ng on import volumes operating 
together with the finding of dumping during the period of review (1995-2000).  In these 
circumstances, we consider that the USDOC's findi ng on import volumes is an integral part of the 
                                                     
 
315Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 87. (emphasis added)   
316Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 77.   
317Ibid.   
318United States' appellant's submission, para. 38. 
319Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 86). WT/DS268/AB/RW 
Page 64  
 
likelihood-of-dumping dete rmination.  In addition, we note that  EC – Bed Linen (Article 21.5 – 
India)  concerned a claim for which the complain ant was found not to have made out a  prima facie  
case in the original proceedings.  This is not what  occurred in the original proceedings in the present 
case.  The participants have characterized the orig inal panel's approach as an exercise of judicial 
economy.
320  We do not express a view on whether this is  a proper characterization of the approach 
taken by the original panel.  In any event, even if the original panel's approach should properly be 
characterized as judicial economy, it would still mean that the central rationale of the Appellate Body 
in  EC – Bed Linen (Article 21.5 – India)  would not be applicable.321  The Appellate Body explained 
that the issue raised in that case differ ed "from a situation where a panel, on  its own initiative, 
exercises 'judicial economy' by not ru ling on the substance of a claim."322  
149. The United States also raises several concer ns related to the nature of Article 21.5 
proceedings, which, in its view, should lead to th e conclusion that it was improper for the Panel to 
consider Argentina's claim.  First, the United Stat es submits that, because the original panel did not 
make a specific finding concerning the USDOC's vol ume analysis, the United States is placed in the 
position of having "to guess  that the panel  might have thought  there were WTO-inconsistencies" 
with respect to that aspect of the measure.323  Secondly, the United States points out that a respondent 
whose measure is found to be WTO-inconsistent fo r the first time by a compliance panel is not given 
a "reasonable period of time" to bring itself into c onformity, as is the case in original proceedings.324  
Instead, the Member concerned could immediately face the suspension of concessions or other 
obligations.   
150. We do not consider that the concerns identifie d by the United States require that the finding 
on import volumes be excluded from the scope of these Article 21.5 proceedings.  The original panel 
found that the USDOC's likelihood-of-dumping determ ination in the original sunset review was 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement  because it lacked a proper factual 
basis.  Therefore, the USDOC had to bring its likelihood-of-dumping determination into conformity 
                                                      
320Panel Report, para. 7.89 and footnote 56 thereto. 
321In  EC – Bed Linen (Article 21.5 – India) , the Appellate Body referred to situations where there was 
a finding of WTO-consistency or the complainant had failed to make out a prima facie  case in the original 
proceedings. (Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96)  See also Appellate Body 
Report, US – Shrimp (Article 21.5 – Malaysia) , para. 97. 
322The Appellate Body went on to indicate that, "in a situation where a panel, in declining to rule on a 
certain claim, has provided only a partial resolution of the matter at issue, a complainant should not be held 
responsible for the panel's false exercise of judicial economy, such that a complainant would not be prevented 
from raising the claim in a subsequent  proceeding." (Appellate Body Report,  EC – Bed Linen (Article 21.5 – 
India) , footnote 115 to para. 96) 
323United States' appellant's submission, para. 49. (original emphasis) 
324Ibid., para. 36.  WT/DS268/AB/RW 
 Page 65 
 
 
with Article 11.3 by ensuring that it rested on a prop er factual basis.  On the basis of the original 
panel's conclusions, the USDOC could not assume that  its findings regarding the alleged decline in 
the volume of imports were WTO-consistent.  Th e United States was given a "reasonable period of 
time" to bring the USDOC's likelihood-of-dumpi ng determination into compliance following the 
adoption by the DSB of the panel and the Appellate  Body reports in the original proceedings.  
Moreover, Argentina's arguments relating to the finding on import volumes were not raised for the 
first time in these Article 21.5 proceedings.  Instead, the parties have offered arguments and counter-
arguments on the issue twice, first in the orig inal proceedings, and then in these Article 21.5 
proceedings.  Additionally, we do not believe that Argentina is unfairly getting a "second chance", as 
would be the case where a panel or the Appellate Bo dy had found the measure to be WTO-consistent 
in the original proceedings, or that the complainant failed to make out a  prima facie  case.325   
151. Furthermore, we recall that the aim of Article  21.5 of the DSU is to promote the prompt 
compliance with DSB recommendations and rulings and the consistency of "measures taken to 
comply" with the covered agreements by ma king it unnecessary for a complainant to begin new 
proceedings and by making efficient use of the or iginal panelists and their relevant experience.326  
These considerations support the Pa nel's finding that the volume analysis was properly before it.  
Requiring Argentina to initiate new WTO proceedings against the United States in order to challenge 
the USDOC's finding on import volumes would entail a significant delay.327  Moreover, it would be 
difficult to reconcile this with the objective that Article 21.5 panels "exami ne fully the 'consistency 
with a covered agreement of the measures taken to comply', as required by [that provision]".328  
Finally, it seems difficult to conceive how the tw o factual bases could each be examined by separate 
panels (one of which is operati ng pursuant to Article 21.5), considering that both factual premises 
together support the USDOC's like lihood-of-dumping determination.  
152. For these reasons, we find that the USDOC's finding on import volumes is part of the 
"measure taken to comply" for purposes of these Article 21.5 proceedings.  Accordingly, we  uphold  
the Panel's finding, in paragraphs 7.91 and 7.96  of the Panel Report, that the USDOC's volume 
analysis was properly before the Panel.  It thereb y follows that the Panel's findings, in paragraphs 
7.101, 7.102, and 8.1(c) of the Panel Report, also stand.   
 
                                                      
325Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96;  Appellate Body Report,   
US – Shrimp (Article 21.5 – Malaysia) , para. 97.  
326Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 72. 
327The aim of prompt compliance is also embodied in Articles 3.3 and 21.1 of the DSU. 
328Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) , para. 41. WT/DS268/AB/RW 
Page 66  
 
VI. New Evidentiary Basis 
153. We proceed to Argentina's claim that th e USDOC was not permitted to develop a new 
evidentiary basis for its Section 129 Determination.  Be fore assessing the merits of this claim, we first 
summarize the Panel's findings and then provide an ov erview of the claims and arguments raised by 
the participants in this appeal.   
A. Panel Proceedings pursuant to Article 21.5 of the DSU  
154. We recall that, as part of the measures take n by the United States to comply with the 
recommendations and rulings of the DSB stemming from the original proceedings, the USDOC made 
a new likelihood-of-dumping determ ination concerning imports of Argentine OCTG, pursuant to 
Section 129 of the URAA.
329  Upon initiating the Section 12 9 proceedings, the USDOC issued 
questionnaires to three Argentine OCTG producers in which it solicited facts pertaining to the original 
review period.330  The Section 129 Determination is based on the answers to the questionnaires by two 
of these producers, as well as on the information on the record from the original sunset review.331   
155. Before the Panel, Argentina claimed that the USDOC was precluded, under Articles 11.3 
and 11.4 of the  Anti-Dumping Agreement , from developing "a 'new and different' factual basis in  
the 2005 Section 129 review which was not de veloped in the original sunset review".332  The United 
States responded that Argentina's claim had "no text ual support" and that the approach advocated by 
Argentina "would make implementation impossible in  cases where a Member's determination is found 
to lack a sufficient factual basis".333 
                                                      
329See  supra , Section V.B. 
330The USDOC's questionnaire to Argentine exporters asked for information regarding production 
volumes, per-unit cost of manufacture, interest expenses, and consolidated and unconsolidated financial statements for the fiscal years between  July 1995 and June 2000.  The questionnaire also asked exporters to 
describe the nature of their sales process in their domestic and export markets. (Panel Report, footnote 36 to 
para. 7.48)  See also USDOC questionnaire to Acindar, Tubhier, and Siderca (31 October 2005) (Exhibit ARG-13 submitted by Argentina to the Panel). 
331Panel Report, para. 7.48.  See also Argentina's other appellant's submission, para. 24, where 
Argentina lists the following as constituting the "new evidentiary basis" of the Section 129 Determination:  
financial statements for Argentine producers for 1995 to 2000;  cost information for 10 categories of OCTG 
products;  a description of each company's sales and ma rketing processes;  a statement as to whether the 
company exported OCTG to the United States during the 1995-2000 period;  confidential import statistics from 
the United States Customs and Border Protection;  observed  selling prices in the United States market during the 
1995-2000 period from an industry publication;  financial statements of United States producers;  and data from Argentine export statistics.  
332Panel Report, para. 7.43. 
333Ibid., para. 7.44.  WT/DS268/AB/RW 
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156. The Panel identified the core issue before it as  being whether, under Articles 11.3 and 11.4 of 
the  Anti-Dumping Agreement , the USDOC was allowed to base its Section 129 Determination on 
facts pertaining to the original review period—that  is, 1995 to 2000—which it collected for the first 
time in 2005.334  In addressing this issue, the Panel turned to the text of Articles 11.3 and 11.4 of  
the Anti-Dumping Agreement  and explained that, although bot h provisions "reflect temporal 
considerations", neither provision, "i n isolation, resolve[s] the issue".335  Instead, the Panel considered 
that "the resolution of Argentina's claim must ha ve regard to broader, horizontal considerations 
underpinning the operation of the WTO dispute settlement system."336  In the Panel's view, 
"Argentina's proposition that the United States was somehow precluded from developing a new 
factual basis in its implementing sunset re-determi nation in this case runs counter to the overall 
operation of the WTO dispute settlement system, and, in particular, the notion of  implementation  of 
the DSB recommendations and rulings embodied in the relevant provisions of the DSU."337  
Considering the context provided by Articles 3.7, 19. 1, and 22.1 of the DSU, the Panel concluded that 
"[c]learly ... the non-conforming measure is to be br ought into a state of conformity with specified 
treaty provisions either by  withdrawing  such a measure completely, or, where possible, by  
modifying  it by revising the inconsistent aspect of the measure involved." 338 
157. Finally, the Panel referred to several previous panels that had dealt with similar situations 
involving implementation in trade remedies and other areas.339  According to the Panel, "[t]hese 
examples demonstrate that competent authorities of WTO Members may need to collect new 
information supplementary to that on the record of their original determinations in making subsequent 
determinations in the context of implementing the DSB recommendations and rulings."340  The Panel 
further observed that "[t]he WTO-consistency of co llecting new facts in the implementation of the DSB 
recommendations and rulings was not que stioned in any one of these cases."341  Thus, the Panel 
                                                      
334Panel Report, para. 7.49. 
335Ibid., para. 7.50. 
336Ibid., para. 7.51.  The Panel observed that, "pursuant to Article 1.2 of the DSU, the rules and 
procedures of the DSU shall apply subject to special or additional rules and procedures identified in Appendix 2 
to the DSU.  Neither the provisions of Article 11 [of the Anti-Dumping Agreement ] pertaining to reviews,  
nor the other provisions of the Agreement pertaining to investigations, are identified as such special or 
additional rules and procedures.  Accordingly, we believe  that the provisions of the DSU and the Anti-Dumping 
Agreement must be read togeth er in a coherent manner." ( Ibid., footnote 39) 
337Ibid., para. 7.52. (original emphasis) 
338Ibid., para. 7.54. (original emphasis) 
339Ibid., paras. 7.58-7.59.  As examples, the Panel referred to Mexico – Corn Syrup (Article 21.5 – US)  
and US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) . (Ibid., para. 7.58)  The Panel 
also mentioned disputes outside of the field of trade remedies, such as Australia – Salmon (Article 21.5 – 
Canada)  and  Japan – Apples (Article 21.5 – US) . (Ibid., para. 7.59) 
340Ibid., para. 7.60. 
341Ibid. WT/DS268/AB/RW 
Page 68  
 
"reject[ed] Argentina's claim that the USDOC acted inconsistently with Arti cles 11.3 and 11.4 of the 
[Anti-Dumping] Agreement by deve loping a new factual basis pertaini ng to the original review period 
for purposes of its Sec tion 129 Determination."
342 
B. Claims and Arguments on Appeal 
158. On appeal, Argentina challeng es the Panel's finding that the USDOC was not precluded from 
developing a new evidentiary basis for the Section 129 Determination.  First, Argentina asserts that 
the Panel incorrectly interpreted and applied Articles 11.3 and 11.4 of the  Anti-Dumping Agreement , 
which contain explicit temporal limita tions applicable to sunset reviews.343  Argentina further argues 
that "[t]he Panel's reliance on 'broader, horizontal  considerations underpinning the operation of the 
WTO dispute settlement system' led to an incorrect interpretation of the substantive obligations of 
Articles 11.3 and 11.4 of the [Anti-Dumping] Agreement."344  Secondly, Argentina claims that the 
Panel did not make an objective assessment of the matter before it, as required by Article 11 of the 
DSU, because the Panel "subordinated the actual treaty text of Articles 11.3 and 11.4, and the 
disposition of Argentina's claims under these provisions, to broader, 'systemic' considerations of the 
WTO dispute settlement system and the hypothetical impact that such a finding might have 'in an analogous ... context' or in matters 'outside of the trade remedies area.'"
345  Finally, Argentina claims 
that the Panel acted inconsistently with Articl es 3.2 and 19.2 of the DSU, because its findings 
concerning the USDOC's ability to develop a new fa ctual basis "severely diminished Argentina's 
rights, and enhanced the rights of the United States, under the Anti-Dumping Agreement."346 
159. The United States responds that "nothing in the text of Articles 11.3 and 11.4 supports 
Argentina's assertions" as "[n]either article addresses  the issue of whether an investigating authority 
may gather new facts to bring a measure into compliance."347  In addition, the United States argues 
that the Panel properly found that Article 19.1 of  the DSU "does not prescribe ways in which a WTO-
inconsistent measure may be brought in to conformity with the WTO rules".348  Furthermore, the 
United States questions Argentina's decision to rai se an additional claim under Article 11 of the DSU, 
considering that "Argentina is claiming that the Pa nel's interpretation of Ar ticles 11.3 and 11.4 ... was 
                                                      
342Panel Report, para. 7.60. 
343Argentina's other appellant's submission, paras. 36-37. 
344Ibid., para. 45 (quoting Panel Report, para. 7.51). 
345Ibid., para. 50 (quoting Panel Report, paras. 7.51 and 7.57). 
346Ibid., para. 63. 
347United States' appellee's submission, para. 5. 
348Ibid., para. 6 (referring to Panel Report, para. 7.54).  WT/DS268/AB/RW 
 Page 69 
 
 
erroneous."349  In any event, the United States asserts th at the Panel properly fulfilled its obligations 
under Article 11 of the DSU in its examination of Articles 11.3 and 11.4 of the  Anti-Dumping 
Agreement  and of the context provided by provisions  of the DSU, neither of which support 
Argentina's position.350  Accordingly, the United States reque sts that the Appellate Body reject 
Argentina's challenge to the Panel's finding that the United States did not act inconsistently with 
Articles 11.3 and 11.4 of the  Anti-Dumping Agreement  by developing a new evidentiary basis for the 
Section 129 Determination.351   
C. Whether it was Permissible for the USDOC to Develop a New Evidentiary Basis for 
the Section 129 Determination 
160. The issue raised on appeal is whethe r, under Articles 11.3 and 11.4 of the Anti-Dumping 
Agreement , an investigating authority that makes a re-d etermination of likelihood of dumping, for the 
purpose of implementing the recommendations and ruli ngs of the DSB, is precluded from developing 
a new evidentiary basis pertaining to the original sunset period.352   
161. We recall that Article 11.3 of the  Anti-Dumping Agreement  reads: 
Notwithstanding the provisions of pa ragraphs 1 and 2, any definitive 
anti-dumping duty shall be terminated  on a date not later than five 
years from its imposition (or from the date of the most recent review under paragraph 2 if that revi ew has covered both dumping and 
injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry 
within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.*  The duty may remain in force pending the outcome of such a review. 
 
*[Original footnote 22] When the amount of the anti-dumping duty is 
assessed on a retrospective basis, a finding in the most recent assessment 
proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied 
shall not by itself require the authorities to terminate the definitive duty. 
 
                                                      
349United States' appellee's submission, para. 10. 
350Ibid., para. 13. 
351Ibid., para. 14. 
352Argentina does not dispute that the information collected by the USDOC in the Section 129 
proceedings related to the original sunset review pe riod, that is, 1995 to 2000. (Argentina's response to 
questioning at the oral hearing)  See also, Panel Report, paras. 7.48-7.49. WT/DS268/AB/RW 
Page 70  
 
162. Article 11.4 of the  Anti-Dumping Agreement  provides: 
The provisions of Article 6 regarding evidence and procedure shall 
apply to any review carried out unde r this Article.  Any such review 
shall be carried out expeditiously and shall normally be concluded within 12 months of the date  of initiation of the review. 
 
163. As the Appellate Body has explained, these pr ovisions set out several temporal limitations.
353  
Article 11.3 provides that an anti-dumping duty must be  terminated  "five years from its imposition" 
unless  there is a determination that "the expiry of th e duty would be likely to lead to continuation or 
recurrence of dumping and injury."  According to th e Appellate Body, this provision thus operates as 
"a mandatory rule with an exception".354  There is the additional requirement that the sunset review be  
initiated  by the investigating authority on its own initiative or upon a request by the domestic 
industry "before that date", that is, before the fifth anniversary of the imposition of the anti-dumping 
duty order.  If the review is requested by the domest ic industry, the request must be made "within a 
reasonable period of time prior to" the fifth anniversar y.  Article 11.4 requires that a sunset review "be 
carried out expeditiously" and that it "normally be  concluded within 12 m onths of the date of 
initiation of the review".  Article 6 of the  Anti-Dumping Agreement , which applies to sunset reviews 
by virtue of the reference made in Article 11.4, al so sets out additional temporal requirements relating 
to opportunities for the parties to th e investigation to present evidence. 
164. Argentina's arguments rest on the following distin ction.  In certain circumstances, Argentina 
submits, a WTO Member may seek to bring a sunset determination into compliance by making a 
re-determination of likelihood of dumping in order to "clarify" or "explain" its original sunset 
determination.  However, Argentina considers that such a possibility is for eclosed in circumstances 
where the investigating authority seeks to develop a new evidentiary basis for its re-determination 
because it had not developed an adequate evidentiary foundation for its original sunset determination.  
Thus, we consider the specific question raised by  Argentina and proceed on the premise that an 
investigating authority is not precluded from maki ng a re-determination of likelihood of dumping in 
order to comply with the recommendations and rulings of the DSB.355 
                                                      
353See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 104. 
354Ibid. 
355As the Panel noted, WTO Members have often chosen to rectify the measure found to be WTO-
inconsistent, rather than w ithdraw it without replacement.  In a numbe r of disputes involving trade remedies, 
WTO Members have sought to comply by having their investigating authorities issue a re-determination, which 
seeks to correct the deficiencies found  in the original determination.  Several of these re-determinations have 
been the subject of Article 21 .5 proceedings:  for example, EC – Bed Linen (Article 21.5 – India) ;  Mexico – 
Corn Syrup (Article 21.5 – US) ;  US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) ;  
and US – Softwood Lumber VI (Article 21.5 – Canada) . (See Panel Report, para. 7.58)  WT/DS268/AB/RW 
 Page 71 
 
 
165. According to Argentina, the limitation on developing a new evidentiary basis in a 
re-determination derives from the requirement in Artic le 11.3 that an investigating authority make a 
"determination" of likelihood of dumping in a review  initiated before the fifth anniversary of the 
imposition of the anti-dumping duty.356  Argentina points out that, in  accordance with the Appellate 
Body's interpretation of Article 11.3, a determ ination of likelihood of dumping must rest on a 
sufficient factual basis.  Argentina reads the tempor al requirement in Article 11.3, together with the 
Appellate Body's interpretati on of the term "determine"357 in that provision, to mean that the 
evidentiary basis for the likelihood determination has to be developed in the original sunset review 
and cannot be developed at a later stage.  Argentina submits that  the Panel in this case allowed the 
United States to continue the anti-dumping duty without  having developed evidence at the time of the 
review, and allowed the United States to develop new information later.  In so doing, the Panel 
diminished Argentina's right to termination of  the anti-dumping duty unless a proper review was 
conducted at the time prescribed by Article 11.3.  Further, Argentina argues that this right is confirmed by the language in Article 11.3 that states that "[t]he duty may remain in force pending the 
outcome of such a review."
358   
166. At the same time, Argentina accepts that implementation of DSB recommendations and 
rulings through a re-determination of likelihood of dumping would be possible where an investigating 
authority merely "clarifies" the information developed in  the original sunset review or "further explains 
its reasoning".359  This is permissible, according to Argentina, because clarification of information or 
further explanation of evidence already on the record  does not necessarily mean that the investigating 
authority was not "active" in the initial sunset revi ew.  On this basis, Argentina draws a distinction 
between the facts of this case and those of US – Anti-Dumping Duty Measures on Oil Country 
Tubular Goods , where the Appellate Body stated that the temporal limitation of Article 11.3 does not 
affect the provisions of the DSU governing, inter alia , the means of implementation and the 
                                                      
356Argentina's other appellant's submission, para. 29. 
357See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras 110-111 and 114;  
and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 180. 
358See Argentina's other appellant's submission, para. 29. 
359Ibid., para. 34;  Argentina's response to  questioning at the oral hearing. WT/DS268/AB/RW 
Page 72  
 
"reasonable period of time" accorded for implementation.
360  According to Argentina, in that case, the 
investigating authority had developed a sufficient evid entiary basis in the original sunset review, but 
the panel was not satisfied with the assessment of that  evidence.  Therefore, in order to comply, the 
investigating authority was required to reassess the evidence, rather than to develop an evidentiary 
basis that it had not developed in the original sunset review.361  Argentina thus contends that 
implementation through a re-determination is po ssible only if the investigating authority was 
sufficiently "active" in developing a comprehensive record in the original sunset determination. 
167. Article 11.3 of the  Anti-Dumping Agreement  does not refer to the steps that an investigating 
authority may take to implement DSB recommendations and rulings or to the collection of evidence at 
that stage.  Article 11.4 states that the provisions of Article 6 of the Anti-Dumping Agreement  
regarding evidence and procedure are applicable to  sunset reviews.  Article 6 contains several 
provisions relating to the collection of evidence, including several time periods.  However, like 
Articles 11.3 and 11.4, Article 6 does not specifically  refer to the collection of evidence for purposes 
of implementing DSB recommendations and rulings.  Th erefore, we do not consider that Articles 11.3 
and 11.4 address the specific question of whether an investigating authority can develop a new 
evidentiary basis when implementing DSB recommendations and rulings.   
168. Neither do Articles 11.3 and 11.4 provide a basis for drawing a distinction between allowing 
an investigating authority to clarify information, or provide further explanations, on the one hand, and 
to develop a new factual basis, on the other hand.  At  the oral hearing, Argentina itself recognized that 
an investigating authority clarifying information, or providing further explanations, would be allowed 
to gather additional information and develop some new facts relating to the original sunset review 
period.  This illustrates the difficulty of drawi ng the distinction relied upon by Argentina, where 
collection of some facts is allowed to clarify info rmation or provide further explanations, but not to 
develop a new factual basis. 
                                                      
360In US – Anti-Dumping Measures on Oil Country Tubular Goods , the Appellate Body said: 
The mere fact that Article 11.3 sets a temporal limit for termination of an 
anti-dumping duty, in the absence of a review leading to a WTO-consistent 
determination under that Article for its continuation, does not affect the other provisions of the DSU governing the implementation of the 
recommendations and rulings of the DSB, including, inter alia , the means of 
implementation and the reasonable period of time accorded to the 
implementing Member for implementation. 
(Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 187) 
361Argentina's response to questi oning at the oral hearing.  WT/DS268/AB/RW 
 Page 73 
 
 
169. Argentina offers two hypothetical examples that it considers demonstrate that a WTO 
Member's implementation options are restricted by the temporal limitations set out in Articles 11.3 
and 11.4 of the  Anti-Dumping Agreement .  In the first example, an importing Member conducts no 
review at all, but fails to terminate the measure after five years.  According to Argentina, "the 
violating Member would not have the option of bri nging itself into compliance by initiating a review 
for the first time after it is found to be in violation."362  At the oral hearing, Argentina offered a second 
hypothetical in which the importing Member initia tes the sunset review within the time-limit 
prescribed in Article 11.3, but does nothing further.  In  this situation, Argentina also considers that the 
importing Member could bring itself into compliance only by terminating the anti-dumping duty order. 
170. The hypothetical examples described by Argentin a differ significantly from the facts in this 
case.  The first hypothetical concerns the conse quences of non-initiation and not, as in this case, the 
qualitative shortcomings of the fact-finding in the or iginal review.  The temporal limitations in 
Article 11.3 address directly the consequences of non-initiation, but do not speak to the facts of the present case.  Moreover, as we explained earlier, Argentina does not contest that the USDOC initiated 
the sunset review on Argentine OCTG within the tim e-limit prescribed in Article 11.3.  As for the 
second hypothetical, we note that the current case was not an instance where the investigating 
authority initiated a review, but then did nothing more.
363  Although inconsistenc ies were found in the 
original WTO proceedings, the USDOC did conduct a sunset review of the anti-dumping duty order 
on OCTG from Argentina.  It did not simply refuse to terminate the anti-dumping duties after five 
years.  Therefore, these hypothetical examples do not resolve the issue raised by Argentina in this 
appeal.   
171. Argentina argues, furthermore, that allowing an investigating authority to develop a new 
evidentiary basis would reduce to inutility the tempor al limitations set out in Articles 11.3 and 11.4 of 
the  Anti-Dumping Agreement .364  We do not share this view.  As explained above, Argentina's claim 
that the USDOC was precluded from developing a new evidentiary basis is premised on the qualitative shortcomings of the fact-finding in the original review.  It does not implicate the temporal requirements of Article 11.3, which remain valid ev en if an investigating authority is allowed to 
collect additional facts relating to the original re view period when making a re-determination of the 
                                                     
 
362Argentina's other appellant's submission, para. 32. 
363The Appellate Body has explained that "[t]he plain meaning of the terms 'review' and 'determine' in 
Article 11.3 ... compel an investigating authority in a s unset review to undertake an examination, on the basis of 
positive evidence, of the likelihood of continuation or recurrence of dumping and injury." (Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews , para. 180) 
364Argentina's other appellant's submission, para. 44. WT/DS268/AB/RW 
Page 74  
 
likelihood of dumping for the purpose of implemen ting recommendations and rulings of the DSB.  
Moreover, an investigating authority seeking to co mply with an adverse WTO ruling by conducting a 
sunset re-determination would have to comply with  all of the substantive obligations set out in 
Articles 11.3 and 11.4.  This means that any addi tional factual information relating to the initial 
review period that is collected for purposes of the re-determination would have to be "sufficient", and 
the conclusion reached on the basis of those facts would have to be "reasoned".
365  It also means that 
the anti-dumping duties could not remain in place unl ess the investigating authority concluded in the 
re-determination that dumping and injury were likely to continue or recur.  Furthermore, the due 
process and evidentiary obligations established in Article  11.4, by virtue of its reference to Article 6, 
would apply also to the process leading to the re-determination. 
172. We note that Argentina consid ers that the Panel failed to fulfil properly its duties under 
Article 11 of the DSU by "subordinat[ing] the actual  treaty text of Articles 11.3 and 11.4, and the 
disposition of Argentina's claims under these provisions, to broader, 'systemic' considerations of the 
WTO dispute settlement system".366  We have found that Articles 11.3 and 11.4 do not address 
specifically whether an investigating authority ma y collect additional facts relating to the initial 
review period when making a re-determination of like lihood of dumping.  Therefore, the Panel did not 
subordinate the text of these provisions to broade r systemic considerations of the WTO dispute 
settlement system when it found that the USDOC  could develop a new evidentiary basis. 
173. We next address the provisions of the DSU refe rred to by the Panel and the participants to 
examine whether they provide us with contextual  guidance.  We note that the requirement in 
Article 19.1, first sentence, to "bring the measure into conformity" does not indicate that the choice of 
means of implementation is conf ined to withdrawal of the measure that was found to be WTO-
inconsistent.  Article 19.1, second sentence, confer s authority on panels and the Appellate Body to 
suggest "ways in which the Member concerne d could implement the recommendations", which 
implies that several "ways" of implementation may be possible.367  The obligation under Article 21.3 
that the Member concerned "inform the DSB  of its intentions  in respect of implementation" also 
suggests that alternative means of implementation may exist and that the choice belongs, in principle, 
to the Member.  This implies that an investiga ting authority would not seem to be precluded from 
gathering additional facts relating to the review period in order to implement the recommendations 
                                                      
365Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 302. 
366Argentina's other appellant's submission, para. 50 (quoting Panel Report, paras. 7.51 and 7.57). 
367We note that Article 3.7 of the DSU states that "the first objective of the dispute settlement 
mechanism is usually to secure the withdrawal of the measures" found to be WTO-inconsistent.  In our view, 
this does not exclude that  the inconsistent measure to be withdr awn can be brought into compliance by 
modifying or replacing it with a revised measure.  See also Panel Report, para. 7.54.  WT/DS268/AB/RW 
 Page 75 
 
 
and rulings of the DSB regarding an original sunset review determination.  Fi nally, in this regard, we 
note the Appellate Body's statement in  US – Anti-Dumping Measures on Oil Country Tubular Goods , 
that the temporal limitation in Article 11.3 of the  Anti-Dumping Agreement  "does not affect the other 
provisions of the DSU governing the implementation of the recommendations and rulings of the DSB, 
including, inter alia , the means of implementation and the reasonable period of time accorded to the 
implementing Member for implementation".368  We believe also that the provisions of the DSU should 
not be read as altering the disciplines of Articles 11.3 and 11.4.  
174. Before concluding, we note that the implem entation of DSB recommendations and rulings in 
cases where a sunset review was found to be inco nsistent with Articles 11.3 and 11.4 of the  Anti-
Dumping Agreement  raises systemic questions.  For example, on what basis may an anti-dumping 
duty order be maintained after a sunset determin ation has been found to be inconsistent with 
Article 11.3 or 11.4 of the  Anti-Dumping Agreement ?369  These questions do not fall within the scope 
of the issue appealed by Argen tina that the USDOC was precluded from developing a new evidentiary 
basis in the Section 129 Determination.  Therefore,  we do not address them further in this appeal. 
175. In the light of the above, we  uphold  the Panel's finding, in paragr aphs 7.60 and 8.1(b) of the 
Panel Report, that the USDOC did not act inconsis tently with the United States' obligations under 
Articles 11.3 and 11.4 of the  Anti-Dumping Agreement  "by developing a new factual basis pertaining 
to the original review period for purpos es of its Section 129 Determination".370  Furthermore, we do 
not find error in the Panel's consideration of certain  provisions of the DSU as appropriate context and, 
therefore, reject  Argentina's claim that the Panel did not make an objective assessment of the matter 
before it, as required by Article 11 of the DSU.   
 
VII. Argentina's Request for a Suggestion 
176. Finally, we consider Argentina's request for a suggestion, pursuant to Article 19.1 of the 
DSU, that the anti-dumping duty order on OCTG from Argentina be terminated.   
                                                      
368Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 187. 
369This question, in turn, raises other issues, such as : when does a sunset review reach an "outcome" for 
the purpose of Article 11.3, last sentence;  and what is implied by the requirements in Article 11.4 that the 
review "be carried out expeditiously" and that it "shall normally be concluded within 12 months of the date of 
initiation"? 
370Because we see no error in the Pa nel's disposition of this issue, we  do not consider that the Panel 
diminished the rights of Argentina and the obligations of the United St ates, in breach of Article 3.2 and 
Article 19.2 of the DSU.  WT/DS268/AB/RW 
Page 76  
 
177. Argentina requested that the Panel make a sugg estion, pursuant to Article 19.1 of the DSU, 
that the United States implement its recommendations  by terminating the anti-dumping duty order on 
Argentine OCTG.  According to Argentina, a sugges tion was justified in the light of the particular 
facts of the case, the nature of the obligation of Article 11.3 of the  Anti-Dumping Agreement , and the 
overall objective of the dispute settlement mechanism.
371  The United States maintained that a WTO 
Member retains the right to determine the manne r in which it implements the recommendations and 
rulings of the DSB, and that, while Argentina prefe rred to have the measure terminated, the relevant 
question before the Panel was the existence or consistency of the "measure taken to comply".372  
178. In response to Argentina's request, the Panel noted  that "Article 19.1 of the DSU states that 
WTO panels may suggest ways through which the Member concerned could implement their 
recommendations."373  The Panel added that, "[i]n the circ umstances of the present proceedings, [it 
saw] no particular reason to make such a suggesti on and therefore decline[d] Argentina's request."374 
179. On appeal, Argentina asserts that the manne r in which the Panel "summarily" dismissed 
Argentina's request for a suggestion for withdrawal  of the anti-dumping duty order was inconsistent 
with the Panel's duties under Articles 11 and 12.7 of th e DSU.  Argentina argues that the Panel failed 
to fulfil its duties under Article 11 because it did no t "reasonably consider" Argentina's request for a 
suggestion under Article 19.1 of the DSU, and becau se it failed to assess objectively the fact that the 
United States has twice violated its obligations under Article 11.3 of the  Anti-Dumping Agreement .375  
Furthermore, Argentina submits that the Panel did not comply with its obligations under Article 12.7 
to set out the "applicability" of Artic le 19.1 in the context of the pr esent dispute and to provide a basic 
rationale for its refusal of Argentina's request.376  The United States responds that the requirement in 
Article 11 of the DSU to make an objective assess ment of the "matter" entails a consideration of 
claims and measures and does not apply to a request for a suggestion under Article 19.1.377  Moreover, 
the United States argues that the obligation under Artic le 12.7 to state a "basic rationale" relates to 
"findings" and "recommendations", and is not  applicable to a request for a suggestion.378 
                                                      
371Argentina's first written submission to the Panel, Panel Report, pp. A-53 to A-55, paras. 210-224.  
372United States' first written submission to the Panel,  Panel Report, pp. A-75 to A-76, paras. 85-87.  
373Panel Report, para. 9.4. (footnote omitted) 
374Ibid., para. 9.4. 
375Argentina's other appellant's submission, paras. 78 and 81. 
376Ibid., para. 89.  
377United States' appellee's submission, para. 19 (referring to Appellate Body Report, Guatemala – 
Cement I , paras. 72-73). 
378Ibid., para. 21.  WT/DS268/AB/RW 
 Page 77 
 
 
180. In addition to its claims under Articles 11 and 12.7 of the DSU, Argentina requests that the 
Appellate Body exercise its authority under Article 19.1 and make, itself, a suggestion that the United 
States revoke its anti-dumping duty order on Argentine OCTG.379  The United States submits that the 
Appellate Body should decline Argentina's request.380 
181. Article 19.1 of the DSU provides: 
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 omitted;  
emphasis added)   
 
182. The first sentence of Article 19.1 requires panels  or the Appellate Body, if they find the 
challenged measure to be inconsistent with a provi sion of the covered agreements, to recommend that 
the respondent Member bring its measure into confor mity with that agreement.  The second sentence 
confers a discretionary right, authorizing panels and the Appellate Body to suggest ways in which 
those recommendations may be implemented.  The Appellate Body has explained that the second 
sentence of Article 19.1 "does not oblig e panels to make ... a suggestion".
381   
183. The Panel addressed Argentina's request for a suggestion in paragraph 9.4 of the Panel 
Report.  The Panel's explanation is  brief, but it is sufficient to convey that the Panel considered 
Argentina's request and that, in the light of the discretionary nature of the authority to make a 
suggestion, the Panel declined to exercise that discre tion.  The discretionary nature of the authority to 
make a suggestion under Article 19.1 must be kept  in mind when examining the sufficiency of a 
panel's decision not to exercise su ch authority.  However, it should not relieve a panel from engaging 
with the arguments put forward by a party in suppor t of such a request.  In the present case, Argentina 
offered several reasons in support of its request for a suggestion.382  Although it would have been 
advisable for the Panel to articulate more clearly th e reasons why it declined to exercise its discretion 
to make a suggestion, this does not mean that Pa nel's exercise of its discretion was improper, and, 
                                                      
379Argentina's other appellant's submission, paras. 102 and 106. 
380United States' appellee's submission, para. 27. 
381Appellate Body Report,  US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 189.  
 382Before the Panel, Argentina argued that a sugges tion was justified because Argentina's rights under 
Article 11.3 had been "undermined completely" by the United States' implementation.  Argentina explained that 
the USDOC had failed to conduct a WTO-consistent sunset review on two occasions—first in 2000, and again in 2005.  According to Argentina, the respondent Member should not be given endless opportunities to correct a 
sunset determination.  This would render meaningless the requirements of Article 11.3. (Argentina's first written 
submission to the Panel, Panel Report, pp. A-53 to A-54, paras. 211-218)   WT/DS268/AB/RW 
Page 78  
 
thus, even assuming  arguendo  that Articles 11 and 12.7 were applicable to a request for suggestion, 
we do not consider that, in the circumstances of this case, the Panel failed to fulfil its duties under 
those provisions.
383   
184. We noted earlier that Articles 19.1 and 21.3 of the DSU suggest that alternative means of 
implementation may exist and that the choice bel ongs, in principle, to the implementing Member.384  
In addition, we indicated that several systemic qu estions arise in connection with the implementation 
of DSB recommendations and rulings in cases where a sunset review was found to be inconsistent 
with Articles 11.3 and 11.4 of the  Anti-Dumping Agreement .385  These complex questions are 
implicated in Argentina's request for a suggesti on that the United States terminate the anti-dumping 
duty order.  We believe that these questions are beyond the scope of the issues raised by the 
participants in this appeal and, furthermore, we do not consider that we should resolve them in the 
context of considering a request for a suggestion under Article 19.1 of the DSU.  For these reasons, 
we decline Argentina's request that we make a suggestion on how the United States could implement 
the recommendations in this case.   
 
VIII.  Findings and Conclusions 
185. For the reasons set out in this Report, the Appellate Body: 
(a) reverses  the Panel's finding, in paragraphs 7. 41 and 8.1(a) of the Panel Report,  
that Section 751(c)(4)(B) of the Tariff Act, operating in conjunction with 
Section 751(c)(4)(A) of the Tariff Act and S ection 351.218(d)(2) of the Regulations, 
is inconsistent with Article 11.3 of the  Anti-Dumping Agreement ;  and in the light of 
this finding, does not consider it necessary to examine whether the Panel failed to 
make an objective assessment of the matter be fore it, as required by Article 11 of the 
DSU; 
(b) upholds  the Panel's finding, in paragraphs 7.91 and 7.96 of the Panel Report, that the 
USDOC's volume analysis was properly before  the Panel;  consequently, the Panel's 
findings, in paragraphs 7.101, 7.102, and 8. 1(c) of the Panel Report, also stand; 
                                                      
383In the light of the above, we need not decide here whether the requirements of Articles 11 and 12.7 
are applicable to a panel's consideration of a request for a suggestion pursuant to Article 19.1 of the DSU. 
384See  supra , para. 173. 
385See  supra , para. 174.  WT/DS268/AB/RW 
 Page 79 
 
 
(c) upholds  the Panel's finding, in paragraphs 7.60 and 8.1(b) of the Panel Report, that 
the USDOC did not act inconsistently w ith the United States' obligations under 
Articles 11.3 and 11.4 of the  Anti-Dumping Agreement  by developing a new factual 
basis pertaining to the original review period for purposes of its Section 129 Determination;  and finds
 that the Panel did not fail to make an objective assessment of 
the matter before it, as required by Article 11 of the DSU, by considering certain 
provisions of the DSU as appropriate context;  and 
(d) rejects  Argentina's claims that, in declin ing to make a suggestion pursuant to 
Article 19.1 of the DSU, the Panel did not  properly fulfil its duties under Articles 11 
and 12.7 of the DSU. 
186. The Appellate Body recommends  that the Dispute Settlement Bo dy request the United States 
to implement fully the recommendations and rulings of the DSB.  
 Signed in the original in Geneva this 23rd day of March 2007 by:  
 
   
_________________________ 
Yasuhei Taniguchi 
Presiding Member 
 
 
 
 _________________________ _________________________ 
 Merit E. Janow David Unterhalter 
 Member Member 
 WT/DS268/AB/RW 
Page 80  
 
ANNEX I
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS268/19 
16 January 2007 
 (07-0180) 
 Original:   English 
  
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES  
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA  
 
Recourse to Article 21.5 of the DSU by Argentina
 
 
Notification of an 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 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 12 January 20 07, 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 20 of the Working 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 on United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina: Rec ourse to Article 21.5 of the DSU by Argentina 
(WT/DS268/RW) 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 legal conclusion that the 
provisions of section 751(c)(4)(B) of the Tariff Ac t of 1930, operating in conjunction with section 
751(c)(4)(A) of the Tariff Act and section 351.218(d) (2) of Title 19 of the Code of Federal 
Regulations, are inconsistent  with Article 11.3 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994  ("Antidumping Agreement").
1  This finding is in 
error and is based on erroneous findings on issues of law and related legal inte rpretations, such as the 
finding that U.S. law, including section 751(c)(4)(B)  of the Tariff Act and section 351.218(d)(2)(iii) 
of the Department of Commerce's regulations, precludes the Department of Commerce from making an order-wide determination of likelihood of continuation or recu rrence of dumping, supported by 
reasoned and adequate conclusions based on the fact s before the agency, wher e an interested party 
elects not to participate in the sunset re view at the Department of Commerce.   
 
Other errors include, for example, reversi ng the burden of proof by failing to require 
Argentina to prove its claim and instead requiring the United States to disprove it; in addition, the 
Panel applied the wrong legal standard by evaluating whether the statute "may" breach the Antidumping Agreement, rather than whether the st atute mandates a breach of that Agreement.  
                                                     
 
1See, e.g. , paras. 7.32-7.41, 8.1(a).  WT/DS268/AB/RW 
 Page 81 
 
 
Further, the Panel failed to make an objective assessme nt of the matter before it, including a failure to 
make an objective assessment of the facts of  the case, contrary to Article 11 of DSU .  For example, 
the Panel based its conclusion not on the evidence contained in the panel record – indeed, this 
provision of U.S. law had never been used – but rath er on the basis of pure speculation by the Panel as 
to what the United States would do if the law were to be invoked.  For example, the Panel moves from 
speculating that evidence would "necessarily" have a "significant impact" on the U.S. determination at 
issue to concluding that the United States would be  unable to consider any additional evidence.  
 
2. The United States seeks review by the Appellate  Body of the Panel's legal conclusion that the 
"volume analysis" incorporated by  reference in the Section 129 determination forms part of the 
measure taken to comply within the meaning of  Article 21.5 of the DSU for purposes of these 
proceedings.2  This conclusion is in error and is b ased on erroneous findings on issues of law and 
related legal interpretations of DSU Article 21.5.  Fo r example, in the original proceeding, there were 
no recommendations or rulings pertaining to the volu me analysis, and, in the redetermination, the 
volume analysis was an unchanged aspect of the origin al determination that was simply incorporated 
by reference, as was the case in EC – Bed Linen (Article 21.5 – India) .3 
_______________  
 
  
                                                     
 
2See, e.g. , paras. 7.88-7.96.  Paragraphs 7.98-7.101 and 8.1(c)(2) would be rendered moot if the United 
States were to prevail with respect to this claim. 
3Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India: Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted 24 April 
2003 (" EC – Bed Linen (Article 21.5 – India) "). WT/DS268/AB/RW 
Page 82  
 
ANNEX II
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS268/20 
26 January 2007 
 (07-0370) 
 Original:   English 
  
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES  
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA  
 
Recourse to Article 21.5 of the DSU by Argentina
 
 
Notification of an Other Appeal by Argentina  
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 24 January 2007,  from the Delegation of Argentina, is being 
circulated to Members. 
 
_______________ 
 
 
 Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  ("DSU") and Rule 23(1) of the Working Procedures for Appellate Review , 
Argentina hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in 
the Report of the Panel on United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from Argentina – Recou rse to Article 21.5 of the DSU By Argentina  
(WT/DS268/RW) (the "Panel Report") and certain legal interpretations developed by the Panel in this 
dispute. 
 1. Argentina seeks review by the Appellate Body of  the Panel's conclusions , and its related legal 
findings and interpretations , that "[t]he USDOC did not act inconsistently  with Articles 11.3 and 11.4 
of the Agreement by developing a new factual ba sis for its Section 129 Determination."  This 
conclusion is set out in paragraph 8.1(b) of th e Panel Report.  The rela ted legal findings and 
interpretations of the Panel are set out in pa ragraphs 7.47 to 7.61 of the Panel Report. 
 2. The Panel acted inconsistently with its obliga tion under Article 11 of the DSU to make an 
objective assessment of the matter before it.  The Pane l determined that "the resolution of Argentina's 
claim must have regard to broader, horizontal c onsiderations underpinning the operation of the WTO 
dispute settlement system."
1  By basing its findings on "broader, horizontal considerations 
underpinning the operation of the WTO dispute settleme nt system", rather than  on the specific claims 
and arguments raised by Argentina, the Panel fa iled to make an objective assessment of "the matter 
before it", including "the facts of the case" and "the applicability of and confor mity with the relevant 
covered agreements." 
 
                                                      
 1Panel Report, para. 7.51; see also  para. 7.57.  WT/DS268/AB/RW 
 Page 83 
 
 
3. The Panel's findings set out in paragraphs 8.1( b) and 7.47 to 7.61 of the Panel Report were 
also inconsistent with Articles 3.2 and 19.2 of the DSU.  The Panel's findings have diminished 
Argentina's right under Article 11.3 of the Anti-Du mping Agreement to termination of the measure 
after five years in the absence of compliance with the requirements of Articles 11.3 and 11.4.  The Panel's findings also diminished the obligation of  the United States to terminate the antidumping 
measure on Argentine OCTG absent a review a nd determination consiste nt with Articles 11.3 
and 11.4 of the Anti-Dumping Agreement.  4. The Panel acted inconsistently with its obliga tion under Article 11 of the DSU by failing to 
objectively assess Argentina's request for a suggestion pursuant to Article 19.1 of the DSU.  Noting 
the original Panel's conclusion that it "saw no par ticular reason to make a suggestion and therefore 
decline[ed] Argentina's request"
2, Argentina provided additional argument and explanation as the 
need for a suggestion during the DSU Article 21.5 pr oceeding.  However, without any analysis, the 
Panel simply repeated its statement that it "saw  no particular reason to make a suggestion and 
therefore decline[ed] Argentina's request."3  The Panel also violated Article 12.7 of the DSU by 
failing to set out the findings of fact, the applicability of relevant provisions and the basic rationale 
behind its finding that there was "no particular reason to make a suggestion."  5. In the light of the Panel's finding that the United States did not bring itself into compliance 
with its obligations under the Anti-Dumping Agreement, and in light of the fact that the United States 
has not appealed the Panel's finding in the regard,
4 Argentina respectfully requests that the Appellate 
Body suggest that the United States terminate th e anti-dumping measure on OCTG from Argentina.  
The United States accepts the Panel's decision th at the United States did not achieve compliance 
before the expiration of the implementation period.  Article 19.1 of the DSU authorizes Panels and the 
Appellate Body to make suggesti ons, and to suggest ways in which the Member concerned could 
implement the recommendations.  A suggestion to te rminate the anti-dumping measure is appropriate 
and necessary in this case in order to protect the spec ific rights of Argentina which the United States 
violated, and continues to violate.  
__________ 
 
  
                                                     
 
 2WT/DS268/R, para. 8.5. 
 3Panel Report, para. 9.4. 
 4While the U.S. Notice of Appeal and the U.S. Appellant's Submission allege certain legal errors 
related to the Panel's consideration of the matter before it,  the United States does not appeal the Panel's findings 
in paragraph 8.1(c)(1) of the Panel's Report.  The Panel concluded that the Section 129 Determination, which 
was one of the measures taken to comply, is inconsistent with U.S. obligations under the Anti-Dumping 
Agreement.  Thus, the United States does not challenge th e conclusion that at the United States failed to bring 
itself into compliance with its WTO obligations.  Stated differently, even if the United States were to prevail on 
all its arguments in this appeal, it would still have faile d to bring itself into compliance with its obligations 
under the Anti-Dumping [Agreement].