WT/DS405/R 
 Page B-1 
 
 
  
ANNEX B 
  
WRITTEN SUBMISSIONS, OR EXECUTIVE SUMMARIES  
THEREOF, OF THE THIRD PARTIES 
 
 
Contents Page 
Annex-B-1 Executive Summary of the Third Party Written Submission of 
Brazil B-2 
Annex B-2 Executive Summary of the Third Party Written Submission of 
Colombia B-5 
Annex B-3 Executive Summary of the Third Party Written Submission of 
Japan B-9 
Annex B-4 Third Party Written Submission of Turkey B-14 
Annex B-5 Executive Summary of the Third Party Written Submission of the 
United States B-20 
Annex B-6 Third Party Written Submission of Viet Nam B-24 
 WT/DS405/R 
Page B-2  
 
  
ANNEX B-1 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
WRITTEN SUBMISSION OF BRAZIL 
  
A. ARTICLE 17.6(I) IMPOSES AN OBLIGATION ON THE PANEL AND NOT UPON WTO 
MEMBERS   
 1. In its First Written Submission, China ra ises several independent claims based on 
Article 17.6(i) of the Anti-Dumping Agreement ("ADA" ), all of them based on its understanding that 
this provision is addressed not onl y to panels but creates an implic it obligation upon investigating 
authorities ("IA") as well. Brazil is of the view th at Article 17.6(i) establishes an obligation solely 
upon panels, in the course of their assessment of the conduct of IAs during the investigation.  
 2. This obligation imposed on panels, however,  does not lead to the conclusion that the 
obligation to conduct assessments in an unbiased and objective manner, which is an obligation also 
imposed on the IAs, emanates from Article 17.6(i)  itself. Rather, Brazil understands that such 
obligation is found in other provisions throughout the ADA, such as in Article 3.1 of the AD 
Agreement.  3. In conclusion, Brazil considers that Articl e 17.6(i) of the ADA imposes an obligation solely 
upon panels, and therefore cannot co nstitute an independent basis for a claim of violation by a WTO 
Member. 
 B. CONSISTENCY OF ARTICLE 9(5) OF THE BASIC AD REGULATION "AS SUCH" 
WITH THE ADA  
 4. One of the key issues raised in this dispute is  the alleged inconsistency of Article 9(5) of the 
EU Basic Anti-Dumping Regulation (Basic AD Regulation) as such  with Articles 6.10, 9.2, 9.3 and 
9.4 of the ADA as well as with Articles I, X:3(a) and XVI:4 of the GATT 1994.  5. Article 2 of the ADA lays down rules in relati on to the determination of normal value, export 
price and comparability between the two prices in or der to calculate dumping margins. Article 6.10 of 
the ADA states that the investigating authority "sha ll, as a rule, determine an individual margin of 
dumping for each known exporter or producer".  Ho wever, the methodology used to calculate 
dumping margins laid down in Article 2 and Article 6.10 of the ADA, as well as the exceptions to that methodology, only apply where prices and costs – the core measures for determining the normal value 
and the export price – are established according to  market-economy rules.  It ensues that the 
determination of either the normal value or the expor t price for NMEs may ordinarily be subject to an 
exceptional regime.    6. Regarding normal value, this exceptional regime  for NMEs is confirmed in Article 2.7 of the 
ADA and is further supported by paragraph 15(a)(ii) of China's Protocol of Accession.  Under these 
provisions, for exporters or pr oducers operating in NME conditi ons, the IA may depart from a 
methodology which exclusively takes account of domest ic costs and prices.  This will apply in cases 
where NME producers fail to show that market econom y conditions prevail in their industry or their 
individual operations.  On the other hand, where inv estigated companies are able  to show that market 
economy conditions prevail in their industry and/or th eir individual operations, they may be entitled to  WT/DS405/R 
 Page B-3 
 
 
individual dumping margins, calculated in accordan ce with the standard methodology specified in 
Article 2 of the ADA.  7. Brazil notes that the investigating authority enjoys a certain degree of discretion not only in establishing its methodology for the calculation of the dumping margin in case of NME countries but 
also in establishing the criteria that exporters from NME countries must fulfil in order to be subject to 
the exceptional regime of market economy treatment .  Brazil also consider s that WTO Members are 
not prevented from treating collectively lega l entities located in NME countries as a single 
producer/exporter for the purposes of dumping determina tions.  Therefore, whether or not a particular 
company should be classified as a distinct compa ny or as a single producer/exporter in conjunction 
with other companies under Article 6.10 of the ADA la rgely depends on the assessment of the facts in 
each case.   C. THE FAIR COMPARISON REQUIREMENT OF ARTICLE 2.4 OF THE ADA DOES NOT 
APPLY IN THE SELECTION OF THE ANALOGUE COUNTRY 
 
8. With regard to the selection of the anal ogue country, China considers that the selection 
procedure applied by the EU, as well as the partic ular selection of Brazil in the case under analysis, 
precluded a fair comparison between the Chinese export prices and the analogue country's normal value.  
9. In what pertains to this subject, Brazil understands that there are no specific WTO rules 
governing the choice of the analogue country in anti-dumping investigations for the purpose of calculating the normal value.  It should be noted that neither the GATT nor the ADA indicate which 
method should be used in order to establish the normal value in such a context.    
10. The sole guidance provided by the GATT and the ADA is that the nor mal value used should 
render a fair comparison with the export price possi ble.  Therefore, insofar as the investigating 
authority selects an analogue country which allows it to obtain a comparable, and thus appropriate, 
normal value, it should not be found to be in breach of WTO rules.  It can be concluded that, in the 
selection of an analogue country, the IA has cert ain discretion to set its own parameters of 
appropriateness, as long as they are unbiased and objective.  
 
11. The definition of the analogue country to be used  in an investigation is taken at a stage that 
precedes the (fair) comparison of the export price and the normal value.  Thus, the fair comparison rule pertaining to this latter stage cannot be inte rpreted so as to apply to the choice of the analogue 
country as such.  Indeed, once the analogue country has been selected, the IA  is required to make 
proper adjustments on the normal value and/or the export price, in accordance with the parameters 
established in Article 2.4 of the ADA.  These adjustments ensure a fair comparison between the export price and the normal value, as they will co mpensate for the differences found in the analogue 
and exporting countries.  12. In any event, the options ava ilable to IAs as to the selection of an analogue country are further 
limited as a result of limi ted availability of cooperating industrie s in analogue countries.  This fact 
further highlights the inherently imperfect character  of the selection of an analogue normal value and 
the need to ensure fair comparison through subseque nt adjustments to the normal value and the export 
price, wherever these are warranted in order to ensure compliance with Article 2.4 of the ADA. 
 
13. Therefore, Brazil considers that Article 2.4 of the ADA does not apply at the stage of 
selecting an analogue country as such and thus cannot fo rm the basis for claims in relation to fairness 
in such a selection process.  WT/DS405/R 
Page B-4  
 
D. PRODUCT UNDER CONSIDERATION   14. In its First Written Submission, China makes a series of claims related to the EU establishment of the "product concerned/like produc t".  Although the ADA defines the like product by 
reference to the "product under cons ideration", the latter is nowhere defined within the ADA.   Based 
on this absence of definition of what is the product under consideration, the panels in US – Softwood 
Lumber V , Korea – Paper AD Duties  and EC – Salmon  considered that there is no requirement of 
likeness within the "product under consideration", an d that there is no guidance in the AD Agreement 
on the way in which the 'product under consideration' shoul d be determined. 
 
15. China claims that when the EU decided to  exclude certain STAF, it acknowledged that STAF 
was not a like product.  China further submits that  by defining the product under consideration with 
reference to its price, and considering that STAF having a CIF price lower than EUR7.5 was to be 
included, the EU failed to correctly de fine the "product under consideration".  
 
16. Brazil submits that the EU's decision to excl ude certain STAF and to maintain certain other 
STAF was a decision by the IA defining the scope of  the product under consideration.  There is no 
discipline in the ADA governing how the product unde r consideration should be defined.  Brazil 
considers that IAs have a large degree of discretion under the WTO discipline in their decision to 
exclude a subset of a certain type of goods fro m the scope of the "product under consideration". 
 
E. SAMPLING FOR INJURY DETERMINATION 
 17. China argues, inter alia , that the EU acted inconsistently  with Articles 3.1 and 6.10 of the 
ADA and VI:1 of the GATT 1994 as it used different sampling procedures for selecting domestic producers and exporting producers, and that the domes tic producers' sample was neither statistically 
valid nor did it represent the largest percentage of  volume that could reasonably be investigated. 
 18. Brazil recalls that Article 6.10 of the ADA deals with the criteria and methodological guidelines to be applied when sampling is used fo r the purpose of dumping determinations.  Such 
criteria and methodologies are not applicable for sa mpling in the context of injury determinations. 
 
19. The only parameters established by the ADA with regard to sampling in the context of injury 
assessment are those established in Article 3.1, i.e.  that an injury determination should be based on 
"positive evidence" and on "objective examinati on" as interpreted by WTO jurisprudence. 
 20. In support of its claims concerning Article  6.10, China recalls the EU's statement in EC – 
Salmon  that this article "may serve as a very good gui dance for the determination of whether sampling 
of domestic industry was conducted in  compliance with Article 3.1". 
 21. Brazil, however, considers that the above st atement does not prevent an IA from taking an 
approach which departs from the methodology est ablished in Article 6.10 of the ADA.  While a 
methodology mirroring the one contained in Article  6.10 should be seen as complying with the 
requirements of "positive evidence" and on "objectiv e examination" under 3.1 of the ADA, this does 
not lead to the conclusion that a different methodology is a priori  inconsistent with Article 3.1.   
  WT/DS405/R 
 Page B-5 
 
 
  
ANNEX B-2 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
WRITTEN SUBMISSI ON OF COLOMBIA 
  
I. INTRODUCTION 
 
1. Colombia thanks the Panel and the Parties for this opportunity to present its views in the 
present proceeding.  Colombia interv enes in this case given its systemic interest in the application of 
several provisions of the GATT 1994 and the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994  (the "ADA").  
 
2. While not taking a final position on the specifi c facts of this case, Colombia will provide its 
views on some of the legal claims advanced by the Par ties to the dispute.  First, Colombia will address 
the issue of how anti-dumping duties should be im posed over products originating from non-market 
economy countries under the rules of Article VI of the GATT 1994 and ADA, in light of the most favoured nation obligation provided in Article I:1 of the GATT 1994.  Second, it will refer to the 
possibility of claiming that a measure as such breach es Article X:3(a).  Then it will comment on the 
rules that national authorities should follow when  undertaking an anti-dumping duties review.  Fourth, 
Colombia will review the definition of domestic  industry within the context of the injury 
determination.  Fifth, comments will be made on  the other factors of attribution for the injury 
determination in order to conclude that there is no causal link between dumping and injury, in 
accordance with Article 3.5 of the ADA.  Then Co lombia will comment on the elements that should 
be taken into account in order to analyze likeness in  a dumping investigation.  Finally, Colombia will 
review the way in which conditions of comp etition may affect the accumulation in dumping 
investigations, in accordance with Article 3.3 of the ADA.  
II. TREATMENT TO NON-MARKET ECON OMY COUNTRIES IN ANTI-DUMPING 
INVESTIGATIONS  
 
3. In the present case, China claims that Article  9(5) of Council Regula tion (CE) No. 1225/2009 
(the "AD Base Regulation") is contrary to the European Union's (the "EU") obligations under 
Articles 6.10, 9.2, 9.3, 9.4 and 18.4 of the ADA, Article XVI:4 of the Marrakech Agreement  and 
Articles I and X:3(a) of the GATT 1994. 
 4. Colombia considers that based on the second interpretative note  to paragraph 1 of Article VI 
of the GATT 1994, the WTO Members have the possib ility to use particular methodologies, such as 
the reconstruction of the normal value through an analogue country, to calculate the normal value of 
goods subject to a dumping investigation from non-market economy countries. 
 5. Thus, for Colombia it is clear that WTO Me mbers are allowed to differentiate the way in 
which the normal value is calculated for countri es with a market economy than that from those non-
market economy countries.  
6. Colombia invites the Panel to determine if in   the particular circumstances of the case, the 
differential treatment that the EU grants to Chin a and other countries, given that those countries do 
not have a market economy, is allowe d under Article 2.7 of the ADA and the second interpretative 
note to paragraph 1 of Article VI of the GATT 1994.  In this sense, Colombia suggests that if the WT/DS405/R 
Page B-6  
 
Panel concludes that Article 9(5) of the AD Base Re gulation is consistent w ith the EU's obligations 
under the ADA, it should find that there is no breach of Article I:1 of the GATT 1994.   7. Given the debate advanced by the Parties w ith respect to the interpretation of the term 
"unconditional" under Article I:1 of the GATT, Colo mbia invites the Panel to recall prior panel 
reports
1 in order to clarify how that concept must be construed.  
 8. Colombia wishes to close its comments with resp ect to China's claims against Article 9(5) of 
the AD Base Regulation based on Article I:1 of the GATT 1994, recalling that Member's obligations on anti-dumping investigations with respect to Ch ina are subject to section 14 of China's Accession 
Protocol
2, which must be read in light of paragr aph 151 of the Working Party Report on China's 
Accession to the WTO. 3 
 
III. CAN THERE BE A BREACH OF THE WTO MEMBERS' OBLIGATIONS UNDER 
ARTICLE X:3(A) WITH A MEASURE AS SUCH? 
 
9. In the present dispute, China claims that Ar ticle 9(5) of the AD Base Regulation is contrary, 
as such, with the EU's obligations un der Article X:3(a) of the GATT 1994.4  
 10. Thus, Colombia invites the Panel to analyze if  given the particular circumstances of the case 
at hand, it is acceptable that even though China's claim was made ag ainst Article 9(5) of the ADA as 
such, China bases its arguments of the EU's breach  of its obligations under Article X:3(a) of the 
GATT 1994 on examples related to the application of the measure at issue.   
IV. RULES APPLICABLE TO ADMINISTRA TIVE AND EXPIRY REVIEWS OF ANTI-
DUMPING DUTIES 
 
11. Among the claims that China addresses against Council Implementing Regulation (EU) No. 1294/2009 of 22 December 2009 (the "AD Review Regulation"), Colombia finds specially interesting the legal debate surrounding claims II:2 to II:5, relative to how the review of the anti-
dumping duties was made by the EU.   
12. Article 11.4 of the ADA provides that review procedures are subject to the procedural rules of 
Article 6 when applicable.  Prior panel reports
5 have clarified that Article 3, excluding Article 3.3 of 
the ADA, is applicable to administrative a nd expiry reviews. Finally, WTO document 
TN/RL/GEN/10 collects the Members' proposal with respect to sensitive issu es of administrative and 
expiry reviews whose regulation should be clarified.  
 
13. Colombia invites the Panel to take into  account the mentioned proposal, as a non-legally 
binding complement, in the interpretation process of Article 11 of the ADA.  Colombia considers that 
this proposal can be especially relevant to clarif y the debate between the Parties as to how the EU 
undertook and concluded on the exte nsion of the definitive anti-dumping duties, reviewed in the AD 
Review Regulation. 
 
                                                      
1 Panel Report, Canada – Autos , para. 10.23; and, Panel Report, Colombia –Ports of Entry , 
paras. 7.361 and 7.367. 
2 WT/L/432, dated 23 November 2001. 
3 WT/ACC/CHN/49, dated 1 October 2001. 
4 China's First Written Submission, paras. 91, 92 and 296-312. 
5 Panel Report, US – DRAMS , footnote 501.  WT/DS405/R 
 Page B-7 
 
 
V. DOMESTIC INDUSTRY 
 
14. China alleges in claim II:4 that the EU breach ed its obligations under Article 3.4 of the ADA 
by including, in the injury analysis made on the AD  Review Regulation, information of producers that 
were not part of the European domestic industry.6  In addition, China claims that the EU did not 
undertake an objective examination based on positive ev idence pursuant to Articles 3.1 and 17.6(i) of 
the ADA; since it did not exclude from the injury asse ssment, information of producers that no longer 
produced in the EU or outsourced its production out of the territory of the EU.7  In reply, the EU 
claims that China did an erroneous representation of the facts and thus there was no link between 
China's claims and the facts of the case. 8 
 
15. Colombia invites the Panel to review the wa y in which prior panels and the Appellate Body 
have applied Articles 3.1, 3.4 and 4.1 of the ADA,  in order to determine if the EU fulfilled its 
obligation to determine injury based  on an objective examination of th e positive evidence, and if such 
information was properly collected fro m the European domestic industry. 
 
VI. FACTORS OF ATTRIBUTION IN THE ANALYSIS OF THE LINK BETWEEN 
DUMPING AND INJURY  
 
16. With respect to the injury determination in th is case, China holds that in the EU's review of 
the definitive anti-dumping duties (Claim II.5), the i nvestigating authority did not safeguard that the 
injury caused to the European footwear industry by  other factors, was not attributed to the dumped 
imports.  17. Bearing the discussion advanced by the parti es, Colombia invites the Panel to take into 
account what has been said by the Appellate Body
9 in order to conclude if the EU investigating 
authority, during its investigation, effectively made the distinction between the dumped imports 
adverse effects and the harmful e ffects caused by other factors over the European domestic industry. 
 
VII. LIKENESS UNDER THE ADA AGREEMENT 
 
18. China alleges in its claim III:4 that by m eans of Council Regulation (EC) No. 1472/2006 of 
5 October 2006 (the "Definitive AD Regulation"), th e EU acted inconsistently with its obligation 
under Article 2.6 of the ADA, read together with Articles 3.1 and 4.1 of such agreement. 10  
 19. The Parties discussion with respect to likeness under this claim, raises two different issues to 
be solved by the Panel: (i) under what conditions  national authorities must choose which is the 
considered product; and (ii) to what extend is there an obligation of assessing the injury and 
identifying the domestic industry, with regard to similar products.  20. In relation to the first question, Colombia i nvites the Panel to analyze the issue in light of 
what was said by the Panel in EC - Salmon (Norway)
11, according to which each investigating 
authority is free to choose the products under consideration.  
 
21. On the second issue, Colombia considers th at there is a clear obligation to undertake a 
likeness assessment between the product unde r consideration and the domestic product12 in order to 
                                                      
6 China's First Written Submission, para. 550. 
7 China's First Written Submission, paras. 553-560. 
8 EU's First Written Submission, paras. 293-305. 
9 Appellate Body Report, United States – Hot Rolled Steel , paras. 222 and 223. 
10 China's First Written Submission, paras. 962-1004. 
11 Panel Report, EC – Salmon (Norway) , para. 7.43, 7.51, 7.52, 7.76.  This same position was held by 
the Panel in US – Softwood Lumber V , para. 7.153. WT/DS405/R 
Page B-8  
 
determine if there has been dumping and in orde r to identify the domestic industry.  Colombia 
considers that an investigating authority, when assessing whether two products are alike in order to 
determine if there is dumping, must follow Article 2.6 of the ADA and, if necessary, take relevant 
elements of the likeness test in other covered agreem ents.  In that vein, it is possible to bear aspects 
like physical characteristics of the products, uses or applications, substitutability, distribution 
channels, consumer preferences and tastes, among others.
13 
 22. Bearing in mind that in the present case, Chin a's claim is directed to point out likeness 
between the products under consider ation and other products, the Panel should evaluate in the case at 
hand, whether that classification affects the likeness analysis for the purpose of  injury determination 
and the identification of th e domestic industry involved. 
 
VIII. THE CONDITIONS OF COMPETITION IN THE ASSESSMENT OF CUMULATION 
OF DUMPING INVESTIGATIONS 
 23. The claimant alleges that the Definitive AD Re gulation is contrary to the EU's obligations 
under Article 3.3 of the ADA given that the cumulative  evaluation of the importations is inadequate 
based on the conditions of competition betw een imported and like domestic products.
14  
 24. Colombia considers that in order to assess this  issue, the Panel should take into account the 
opinion of the Appellate Body
15 and prior panels16 on how the conditions for accumulation under 
Article 3.3 of the ADA must be met.  In addition, Co lombia invites the Panel to take this opportunity 
to further clarify how the conditions of competition between the products subject to the investigation 
are to be analyzed in order to decide  upon the appropriateness of accumulation. 
 
IX. CONCLUSION 
 
25. Colombia considers that this case raises im portant questions on the interpretation of several 
provisions of the ADA and the GATT 1994.  While not taking a final position on the merits of the 
case, Colombia requests this Panel to carefully re view the scope of the claims in light of the 
observations made in this submission.  Colombia re serves its right to make further comments at the 
third party session of the first substantive meeting with the Panel.  
 
 
                                                                                                                                                                     
12 Panel Report, EC – Salmon (Norway) , para. 7.51. 
13 Appellate Body Report, Japan – Alcoholic Beverages II , p. 20. 
14 China's First Written Submission, paras. 1055 - 1064 and 1146 - 1166. 
15 Appellate Body Report, EC – Tube or Pipe Fittings , para. 109. 
16 Panel Report, EC – Tube or Pipe Fittings , paras. 7.224 and 7.240.  WT/DS405/R 
 Page B-9 
 
 
 
ANNEX B-3 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
WRITTEN SUBMISSION OF JAPAN 
  
I. INTRODUCTION 
 1. In this Written Submission, Japan focuses on th e following issues; (i) whether Article 9(5) of 
the Basic AD Regulation  is consistent with Article 6.10 of the AD Agreement ; (ii) whether selection of 
samples would be sufficient to determine likeliho od of continuation or recurrence of injury under 
Article 11.3 of the AD Agreement  in light of general duties under Ar ticle 3 thereof; and (iii) whether 
certain information should have been disclosed to interested parties in ac cordance with Articles 6.2 
and 6.4 of the AD Agreement . 
 
II. THE CONSISTENCY OF ARTICLE 9(5) OF THE BASIC AD REGULATION  WITH 
ARTICLE 6.10 OF THE AD AGREEMENT   
 
1. Permissible Conditions to Qualify an I ndividual Exporter/Producer for Assignment of 
an Individual Margin of Dumping 
 
2. The first sentence of Article 6.10 of the AD Agreement  provides that "the authorities shall, as 
a rule, determine an individual margin of dumpi ng for each known exporter or producer."  The term 
"shall" and the phrase "as a rule" in this sentence clarify that this provision is mandatory.   
 
3. The second sentence of this Article provid es for the exceptional situation in which an 
authority "may" limit the number of producers to be examined for determining a margin of dumping, i.e. where the number of exporters, producers, import ers or types of products is so large as to make 
individual examination impractical.  When taking  into account the individualized calculation of 
margin of dumping for each known exporter or produ cer as a mandatory rule, the term "may" in this 
sentence indicates that the second sentence set s forth exceptions to the first sentence.
1 
 4. It should be noted that the AD Agreement  sets forth no other exceptions to this mandatory rule 
under the first sentence of Article 6.10.  Accordingly,  an authority must determine individual margins 
of dumping for each known exporter or producer unless the authorities find the number of the known 
exporters or producers is so large as not to allow for individual calculations as provided in the second 
sentence of Article 6.10.
2 
 
2. The Identification of an "Exporter" a nd the Obligation to Examine Such an Exporter 
under Article 6.10 of the AD Agreement  
 
5. However, neither Article 6.10 nor any other provisions of the AD Agreement  sets forth any 
explicit criteria to identify an "exporter" or a "producer".  In this regard, the panel in Korea – Certain 
Paper  provides insight that "Article 9.5 as context strongly suggests that the term 'exporter' in 
Article 6.10 should not be read in a way to require an individual margin of dumping for each 
                                                      
1 See Appellate Body Report, EC – Bed Linen (Article 21.5 - India) , para. 116. 
2 See Panel Report, Argentina – Ceramic Tiles , para. 6.89; Panel Report, Argentina – Poultry Anti-
Dumping Duties,  para. 7.214. WT/DS405/R 
Page B-10  
 
independent legal entity under all circumstances."
3  In other words, the importing Member has a 
certain amount of discretion to define the meaning of these terms, taking into account the context of 
Article 6.10 and other provisions of the AD Agreement .  On this basis, depending on the particular 
factual situations of a given case, the authorit y may find that a group of multiple legal entities 
constitutes a single exporter.  
 
6. However, the issue of the authority's identifi cation of an exporter must be distinguished from 
the obligation to determine an individual margin of dumping for the exporter.  Once the authority 
determines what constitute an "exporter", the obligat ion to determine individual margins of dumping 
attaches to the authority with respect to the exporters  it has identified.  In this case, the authority must 
calculate individual margins of dumping for such  exporters unless the exception in the second 
sentence of Article 6.10 applies.   7. Japan respectfully request s that the Panel carefully review how criteria in the Basic AD 
Regulation function in anti-dumping investigations in light  of the mandatory rules to determine an 
individual margin of dumping for each known expo rter or producer and the exceptions thereof as 
discussed above.    
III. SELECTION OF SAMPLES IN DETERMINING THE LIKELIHOOD OF 
CONTINUATION OR RECURRENCE OF INJURY IN AN EXPIRY REVIEW AND MATERIAL INJURY IN AN ORIGINAL INVESTIGATION  
 
1. An Authority's Duty in Making Injury  Determinations under Article 3.1 of the AD 
Agreement  
 
8. Article 3.1 of the AD Agreement  sets forth "a Member's funda mental, substantive obligation"
4 
with respect to injury determinations.  In partic ular, this provision requires the authorities to make 
injury determinations upon "positive evidence" and "objective examination".  According to the 
Appellate Body in US – Hot-Rolled Steel , "[t]he word 'positive' means, to us, that the evidence must 
be of an affirmative, objective and verifiable ch aracter, and that it must be credible", and "an 
'objective examination' requires that the domestic  industry, and the effects of dumped imports, be 
investigated in an unbiased manner, without favouring the interests of any interested party, or group 
of interested parties, in the investigation."5  
 9. Furthermore, Japan notes that an authority is generally required to establish the facts properly, and evaluate facts in an unbiased and objective matte r in all steps of anti-dumping investigations.  The 
Appellate Body clarified this general obligation an d held that it arises from Article 17.6(i) of the AD 
Agreement.
6  However, it is noted that this provision prim arily sets out rules applicable to panels, and 
does not impose any obligations directly on the authorities.7 
 
2. Disciplines on the Authority's Determination of the Likelihood of Continuation or 
Recurrence of Injury 
 10. The starting point to review the WTO consiste ncy of an authority's determination in expiry 
reviews or sunset reviews in general terms is Article 11.3 of the AD Agreement.
8 In this regard, the 
panel in US – Corrosion Resistant Sunset Review  held that "it is clear that the investigating authority 
has to determine, on the basis of positive evidence , that termination of the duty is likely to lead to 
                                                      
3 Panel Report, Korea – Certain Paper , para. 7.159. 
4 Appellate Body Report, Thailand – H-Beams , para. 106. 
5 Appellate Body Report,  US – Hot-Rolled Steel , paras. 193-194 (footnotes omitted). 
6 Appellate Body Report,  US – Hot-Rolled Steel , para. 56. 
7 Appellate Body Report, Thailand – H-Beams , para. 114. 
8 Appellate Body Report, US – Corrosion Resistant Sunset Review , para. 103.  WT/DS405/R 
 Page B-11 
 
 
continuation or recurrence of dumping and injury."9  Moreover, the Appellate Body further clarified 
the general obligations under Article 11.3 by statin g that "[t]he words 'review' and 'determine' in 
Article 11.3 suggest that authorities conducting a sunset review must act with an appropriate degree 
of diligence  and arrive at a reasoned conclusion on the basis of information gathered  as part of a 
process of reconsideration and examination." 10  
 
11. Although the above citations  were made with respect to the determination of likely dumping  
under Article 11.3, Japan is of the view that this rati onale is equally applicable  to the determination of 
likely injury  in sunset reviews.  This provision sets forth rules on the determination of dumping and 
injury in parallel, stating "determine, in a review …,  that the expiry of the duty would be likely to lead 
to continuation or recurrence of dumping and injury".   Thus, Japan believes that there is no difference 
in the applicability and meaning of the terms "r eview", "determine" and "likely" between the 
determination of dumping and injury in sunset reviews.   Therefore, in injury determinations in sunset 
reviews, an authority also must act with an appropriate degree of diligence and arrive at a reasoned 
conclusion on the basis of positive evidence . 
 
3. Applicability of Article 3 to Sunset Reviews 
 
12. The Appellate Body held that the definition of "injury" in footnote 9 of the AD Agreement  
applies to injury determinations in sunset revi ew by virtue of the phrase "under this Agreement".11  
However, because of the absence of any explicit cros s-reference, and the differences in the nature and 
purposes of original investigations and sunset reviews12, it also held that "investigating authorities are 
not mandated to follow the provisions of Article 3 when making a likelihood-of-injury 
determination."13  Having said that, the non-applicability of specific provisions of Article 3 and the 
absence of any provisions specifying the methodology to make injury determinations in sunset reviews under Article 11.3 do not necessarily mean that an authority has unfettered discretion.  As we 
referred to before, an authority still must determ ine its injury based on "positive evidence" and an 
"objective examination" in sunset reviews.
14 
 
4. China's Arguments on Specific Factual Issues 
 
13. With respect to the Commission's own sampli ng methodology to collect data on the injury of 
the domestic industry, China alleges that its selection of sampling of European Union producers was 
inconsistent with Article 3.1 of the AD Agreement .15  China also argues th at the European Union 
producers' samples selected in the expiry review by the Commission were neither statistically valid 
nor represented the largest percentage of vol ume that could reasonably be investigated. 
 
14. The AD Agreement  has no specific provisions prohibiting particular sampling methods, or 
setting forth any specific methodologies for sampling to collect positive evidence.  As the panel in EC 
– Salmon (Norway)  explained, sampling is legitimate to the extent that the authority satisfies its 
general obligations.  Specifically, it held that "[a] sample that is not sufficiently representative of the 
domestic industry as a whole is not likely to allow fo r such an unbiased investigation, and therefore 
may well result in a determination on the question of injury that is not consistent with the 
                                                      
9 Panel Report, US – Corrosion Resistant Sunset Review , para. 7.271 (emphasis added), affirmed by 
Appellate Body Report, US – Corrosion Resistant Sunset Review , para. 114. 
10 Appellate Body Report, US – Corrosion Resistant Sunset Review , para. 111 (emphasis added). 
11 See Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 276. 
12 See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 124. 
13 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 280 (emphasis in 
original). 
14 Appellate Body Report, US – Oil Country Tubular Goods Sunset Review , para. 284. 
15 First Written Submission by China  submitted to this Panel on 24 September 2010 ("China FWS"), 
paras. 463-487. WT/DS405/R 
Page B-12  
 
requirements of Article 3.1 of the AD Agreement."
16 Therefore, the Commission's sampling 
methodology would be consistent with the AD Agreement  provided that the sampled information was 
"sufficiently representative of the domestic industry as a whole".  
IV. CHINA'S ALLEGED INCO NSISTENCY OF DISCLOSURE BY THE COMMISSION 
OF CERTAIN INFORMATION WITH ARTICLES 6.2 AND 6.4 OF THE AD 
AGREEMENT   
 
15. China argues that the Commission "failed to make  available the information used by it for the 
selection of the European Union producers' sample" in the expiry review
17, and that such failure is 
inconsistent with Articles 6.4 and 6.2 of the AD Agreement .18  China also argues that the Commission 
acted inconsistently with Articles 6.2 and 6.4 of the AD Agreement  in the expiry review because the 
Commission failed to disclose timely or sufficiently information regarding the revised production and sales data of the complainant producers and the sampled producers, regarding the analogue country 
selection procedure and the data submitted by some  of them, and regarding the Community interest 
questionnaire responses.
19 
 
1. Inconsistency with Article 6.4 Leads to Inconsistency with Article 6.2 
 
16. Contrary to Article 6.2 which pr ovides for "a fundamental due process"20 requirement, 
Article 6.4 requires the authority to disclose all info rmation that is (i) "relevant to the presentation of 
their cases," (ii) "not confidential," and (iii) "used by the authorities. "  According to Article 6.4, if 
information satisfied the above three conditions, the authority must disclose it in a "timely" fashion. 
Failure to meet the legal obligation to disclose information under Article 6.4 would result in the 
failure to afford interested parties "a full opportunity  for the defence of their interests."  As such, a 
"violation of Article 6.4 also would constitute the violation of Article 6.2."21 
 
17. In this regard, while China's alleged incons istency of the Commission's certain non-disclosure 
or delayed disclosure of certain information is rela ted to the expiry review, Article 11.4 provides that 
the provisions of Article 6 regarding evidence a nd procedures also apply to sunset reviews under 
Article 11.3.  The panel in US – Oil Country Tubular Goods Sunset Reviews  confirmed this 
conclusion by stating that "Article 6.2 generally d eals with the right of interested parties to defend 
their interests in an investigation and, by operation of Article 11.4, in a sunset review."22  Therefore, 
both Articles 6.2 and 6.4 are supposed to apply to expiry reviews.    
2. The Legal Requirements of Disclosure of Information under Article 6.4 
 (a) The Source of Information Is Not Relevant to Article 6.4 
 
18. As a preliminary matter, Japan would like to point out that none of conditions under 
Article 6.4 address the source of the information,  or the procedures through which an authority 
obtains the information.  So far as the informati on satisfies the above-mentione d conditions, no matter 
who submits the information or how particular info rmation is obtained, such information must be 
disclosed to interested pa rties in a timely fashion
23. 
                                                      
16 Panel Report, EC – Salmon (Norway) , paras. 7.129-7.130 (footnotes omitted). 
17 China FWS, para. 675. 
18 China FWS, para. 676. 
19 China FWS, paras. 667-668. 
20 Panel Report, Guatemala – Cement II , para. 8.179; Panel Report, Mexico – Anti-Dumping Measures 
on Rice , para. 8.179. 
21 See Appellate Body Report, EC – Tube or Pipe Fittings , para. 149. 
22 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , para. 7.234. 
23 See Panel Report, EC – Salmon (Norway) , para. 7.775.  WT/DS405/R 
 Page B-13 
 
 
 (b) Condition of "Relevant to the Presentation of Their Cases" 
 
19. As the first condition, information must be "relevant to the presentation of their cases" to 
trigger the disclosure obligation under Article 6.4.  Since the term "their" in this provision indicates 
the interested parties, the relevance of the informatio n must be viewed in light of interested parties, 
not in light of whether the authority finds such information useful in its determination.
24  In that case, 
the authority would not be able to know fully which information is relevant to an interested party's 
case until it becomes aware of the party's argument.  Moreover, to the extent that the authority 
reviews and maintains the information in connec tion with an anti-dumping investigation, such 
information may satisfy the first condition "r elevant to the presentation of their cases".25 
 (c) Condition of "Not Confidential" 
 
20. The second condition is that the information is  "not confidential", as specifically defined in 
Article 6.5.  According to this provision, informati on, "which is by its nature confidential" or "which 
is provided on a confidential basis" by the submitter, is outside of the scope of Article 6.4, and thus 
would not be subject to the "timely" disclosure to interested parties requirement.
26  However, Japan 
would like to note that where the party submitting information did not request confidential treatment 
of the information, the authority must have suffi cient basis to find that such information is still 
confidential "by nature".  The mere possibility of  confidentiality in this kind of case would not 
provide a sufficient basis to withhold the information.27  
 (d) Condition of "Used by the Authorities" 
 
21. The third condition is "that is used by the au thorities."  The phrase "which is used", rather 
than "which form the basis for the decision" as provided in Article 6.9, is significant.  This difference 
clarifies that information, on which an authority di d not base its decision and thus was not required to 
disclose under Article 6.9, still falls within the Artic le 6.4's disclosure requirement.  In other words, 
the information that is required to be disclosed under Article 6.4 could be understood to be broader 
than the one under Article 6.9.  In this  context, Japan agrees with the panel in  EC – Salmon (Norway) , 
which states that "it seems clear to us that whether information is 'used' by the investigating authority 
must be assessed by reference to whether it forms part  of the information relevant to a particular issue 
that is before the investigating authorit y at the time it makes its determination."
28 
 (e) Timeliness of Disclosure to Be Consistent with Article 6.4 
 
22. If particular information satisfies the above th ree conditions, the authority must also give the 
interested parties "timely opportunities"  to see the information.  Although the AD Agreement  does not 
define the meaning of the term "timely," Article 6.5 cl arifies that the timeliness is related to interested 
parties' opportunity to prepare its presen tation on the basis of this information.
29 
 
3. Conclusion 
 
23. Regarding the above China's claim, Japan r espectfully requests that the Panel review the 
underlying facts of the individual items of informat ion in light of legal requirements as discussed 
above.
                                                      
24 Appellate Body Report, EC – Tube or Pipe Fittings , para. 145. 
25 Panel Report, EC – Salmon (Norway) , para. 7.769. 
26 Panel Report, EC – Salmon (Norway) , para. 7.773. 
27 Panel Report, Guatemala – Cement II , para. 8.143. 
28 Panel Report, EC – Salmon (Norway) , para. 7.769. 
29 Panel Report, EC – Salmon (Norway) , para. 7.769. WT/DS405/R 
Page B-14  
 
 
ANNEX B-4 
 
 
THE THIRD PARTY WRITTEN SUBMISSION  
OF TURKEY 
  
A.   INTRODUCTION 
 
1. Turkey thanks the Panel for giving the opport unity to present its views in this proceeding. 
Turkey is not in the intention to present an opinion on the specific factual context of this dispute and 
takes no position what so ever as to the defense and allegations presented by  the parties on whether 
the specific measure at issue is inconsistent to the subject provisions of the WTO Agreements.  
Turkey wishes to contribute, by expressing its opinion on some systemic issues regarding the 
interpretation and implementation of the subject legal texts.  
 2. The dispute between the European Union (her einafter referred to as "EU") and the People's 
Republic of China (hereinafter referred to as "China")  covers several issues regarding the application 
of the Agreement on Implementation of Article VI  of the General Agreement on Tariffs and Trade 
(hereinafter referred to as "ADA").  However, the Republic of Turkey (hereinafter referred to as 
"Turkey") has chosen to focus on three issues na mely individual treatment assessments, analogue 
country selection and sampling.  B.  SETTING A THRESHOLD IN ORDER TO PROVIDE FOR INDIVIDUAL TREATMENT 
 
3.  Article 6.10 of the ADA states that " The authorities, as a rule , determine an individual 
margin of dumping for each known export er or producer concerned of the product under 
investigation".  Turkey understands individual treatment, i.e. calculation of individual dumping 
margin for each known exporter/producer is a general rule .  In line with the understandings of China 
and the EU, Turkey also understands that the second sen tence of Article 6.10, which is in regard to the 
sampling process, is an exception to the gene ral rule provided in the first sentence.  
 
4.  The legal question here is whether sampling is the sole exception to the general rule of IT, or 
can Members require some conditions to be met in th eir domestic legislation in order to provide IT.  
In their submissions the parties to this dispute have  provided opposite views on this issue.  While the 
EU, in its submission asserts that Article 6.10 does not contain a strict rule requiring investigating 
authorities to always determine dumping margins on an  individual basis with only one exception (i.e 
sampling), China argues that sampling is the sole ex ception to the IT rule, and therefore Members are 
not allowed to import additional excep tions to Article 6.10 of the ADA.
1  
 5.  Turkey is of the view that sampling may not be the sole exception to the general rule 
envisaged in Article 6.10 of the ADA, because of  the reasons explained in the following; 
 6.  First of all, the ADA provides rules for economies operating under market economy conditions.  There are no specific rules or exceptio ns provided in the ADA for economies that are not 
operating under market economy condi tions.  Taking into account this structure of the ADA, Turkey 
believes that it would not be appropriate to look  for a non-market economy exception in Article 6.10 
itself.  For economies where costs and consequent ly prices (for both domestic and export sales) are 
determined or affected significantly due to state intervention instead of being freely determined by 
                                                      
1 EU First Submission, paras. 80-82;  China First Submission, para. 189.  WT/DS405/R 
 Page B-15 
 
 
market forces, it is expected that  there will be exceptions to genera l rules of ADA on the calculations 
of normal value and export price.  In fact, paragr aph 2 of the Additional Article VI of the GATT 1994 
and China's Accession Protocol su pports this interpretation.  
 
7.  Paragraph 2 of the Additional Article VI of the GATT 1994 provides a special provision for calculation of prices regarding countries that do not operate under full ma rket economy conditions. 
This provision mentions that "It is recognized that, in the case of imports from a country which has a 
complete or substantially complete monopoly of its  trade and where all domestic prices are fixed by 
the State, special difficulties may exist in de termining price comparability for the purposes of 
paragraph 1, and in such cases importing contracting parties may find it necessary to take into 
account the possibility that a strict comparison with  domestic prices in such a country may not always 
be appropriate ."  
 
8.  In parallel with this ge neral provision, China's Working Party Report (WT/ACC/CHN/49) has 
a similar paragraph particularly for the Chinese mark et.  According to paragr aph 150 of the Report, 
"China was continuing the process of transition towards a full market economy.  Those members 
noted that under those circumstances,  in the case of imports of Chinese origin into a WTO Member, 
special difficulties could exist in determining co st and price comparability in the context of anti-
dumping investigations and countervailing duty investi gations.  Those members stated that in such 
cases, the importing WTO Member might find it necessary to take into account the possibility that a 
strict comparison with domestic costs and prices in China might not always be appropriate ".  
 
9.  Taking into account the abovementioned paragraph, it is acknowledged by the WTO 
Members that China is not operating in full market  economy conditions yet and is still in a transition 
process towards a full market economy.  It is also understood that due to the special conditions, i.e. 
state intervention, in China, both domestic and expor t sales prices are not freely determined by market 
economy forces.  Under these conditions it may be diff icult to make a strict comparison with domestic 
and export prices.  
 10.  Paragraph 1 of Article 31 of the 1969 Vie nna Convention on the Law of Treaties states that  
"A treaty shall be interpreted in good faith in a ccordance with the ordinary me aning to be given to the 
terms of the treaty in their context and in the light of its object  and purpose ." (emphasis added).  
When the object and purpose of paragraph 2 of the Additional Article VI of the GATT 1994 and 
paragraph 150 of the Report are c onsidered in the light of their purposes and objects; it is reasonable 
to understand that these paragraphs are included as an exception to the general rule of "strict 
comparison with domestic prices" for counties that are not operating in full market economy 
conditions.  Therefore, accepting that export sales pr ices may not be determined by market forces as 
well as domestics sales prices, without making dis tinction between these two types of sales in non-
market economy countries, is in conformity w ith the object and purpose of these two foregoing 
paragraphs.   11.  Second, taking into account the relevant case la w, it is hard to conclude that sampling is the 
sole exception to the general rule of IT.  In US - Corrosion Resistant Steel,  the Appellate Body (AB) 
stated that: 
 
"The first sentence of Article 6.10 requires investigating authorities, "as a rule", to 
determine an individual margin of dumping "for each known exporter or producer 
concerned of the product under inves tigation"…..However, even in these 
investigations, we have recognized that investigating authorities are not always required to calculate separate dumping margins for each exporter or producer."
2 
                                                      
2 AB Report, US - Corrosion Resistant Steel Sunset Review, para. 154. WT/DS405/R 
Page B-16  
 
12.  In addition, the panel in Korea - Certain Paper  also stated that:  
 
"Article 9.5 requires that the IA determine individual margins for exporters and 
producers who did not export during the POI. …… Nevertheless,  Article 9.5 as 
context strongly suggests that the term "ex porter" in Article 6.10 should not be read 
in a way to require an individual margin of dumping for each independent legal 
entity under all circumstances."
3 
13.  It can be understood from the foregoing cases that the panel Korea - Certain Paper  and the 
AB did not find it inconsistent with  Article 6.10 of the ADA to treat several distinct legal entities as a 
single entity if the conditions require so.   
14.  Third, in its submission, the EU provi des couple of examples, where the preference 
mentioned in Article 6.10, first sentence, may not apply.
4 If the Panel finds any of these examples as 
an exception to the general rule in Article 6.10, fi rst sentence, then it should also accept that sampling 
is not the only exception to the general rule a nd there could be other situations, including 
circumstances where thresholds is set for individual  treatment, that the investigating authorities may 
not determine individual margin of dumping and a ccordingly, individual dumping duties for each 
known exporter or producer.      15.  Consequently, in the light of above explana tions, Turkey considers that a Member can legally 
set out a threshold reflecting special circumstance s in terms of the variables affecting production, 
sales and prices to provide IT under Article 6.10.  
 C.  ANALOGUE COUNTRY SELECTION  
16.  Article 2.1 of the Anti-Dumping Agreement states that " For the purpose of this Agreement, a 
product is to be considered as be ing dumped, i.e. introduced into the commerce of another country at 
less than its normal value, if the export price of th e product exported from one country to another is 
less than the comparable price, in the ordinary course  of trade, for the like product when destined for 
consumption in the exporting country ."  
 
17.  A plain interpretation of Article 2.1 clearly indicates that an investigating authority has to work on two data groups (normal value and export price) to determine whether dumping is present for 
the product under consideration.  Accordingly, the in vestigating authority is legally obliged to make a 
fair comparison based on the rules and standards stipulated in Article 2.4 of the Anti-Dumping 
Agreement between normal value and export price.  
 18.  Most of the time, the normal value is determined by looking at sales of the like product in the ordinary course of trade in the domestic market of  the exporting country.  Ho wever, as envisaged in 
Article 2.2 of the ADA, in some situations (e.g. part icular market situation), domestic prices and the 
exporting prices do not permit a proper comparison.  In  order to overcome these difficulties, the ADA 
provides an alternatives ways to find a comparable price, the purpose of which is to identify a normal 
value.  In fact, the term "comparable price" is  used both in first and the second paragraph of the 
Article 2 of the ADA.   19.  Furthermore, Additional Article VI.2 of GA TT 1994 and paragraph 15(a) of the Protocol of 
Accession of China (Accession Protocol) point out di fficulties in determining the comparable price 
and permit to use a methodology that is not based on a strict comparison with domestic prices or costs 
in China with the export prices.  
                                                      
3 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia, 
para. 7.159.   
4 EU First Submission, para. 86.  WT/DS405/R 
 Page B-17 
 
 
 20.  In this regard, Additional Article VI.2 of GATT 1994 states that:  
"It is recognized that, in the case of imports  from a country which has a complete or 
substantially complete monopoly of its tr ade and where all domestic prices are fixed 
by the State, special difficulties may exist in determining price comparability for the 
purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic 
prices in such a country may not always be appropriate." 
21.  In Addition, Paragraph 15(a) of the Acc ession Protocol of China to WTO provides that: 
 
"In determining price comparability under Article VI of the GATT 1994 and the Anti-
Dumping Agreement, the importing WTO Me mber shall use either Chinese prices or 
costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following 
rules: 
(i)  If the producers under investigation can clearly show that market economy 
conditions prevail in the industry prod ucing the like produc t with regard to 
the manufacture, production and sale of  that product, the importing WTO 
Member shall use Chinese prices or cost s for the industry under investigation 
in determining price comparability; 
(ii)  The importing WTO Member may use a methodology that is not based on a 
strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product." 
22.  It is an undisputed fact that Ad. Article VI.2 of GATT 1994 together with paragraph 15(a) of 
the Accession Protocol provide derogation from the provisions of the Anti-Dumping Agreement regarding the determination of normal value.  In this context a WTO member may use a methodology that is not based on a strict comparison with domes tic prices or costs in China if the investigated 
producers cannot clearly show that they are op erating in market economy conditions.  Turkey 
considers that selecting an analogue country is the most reasonable method for determining the 
normal value when the investigated companies are not operating under market economy conditions. 
Furthermore, from the submission of the Parties, Tu rkey understands that use of the analogue country 
procedure is not disputed between the parties.  What  is disputed between the parties is the selection of 
analogue country procedure and the selection of Brazil as an analogue country  
23.  Turkey would like to point that inves tigating authorities sometimes face difficulties in 
selecting analogue country.  Companies to which analogue county questionnaires are sent sometimes 
may not co-operate with the investigating authorities.   Even if they respond properly, verification of 
the data is another problem that the investiga ting authorities have to face with.  The responding 
countries are mostly reluctant to open their data a nd premises for verification since they are not party 
of the investigation.  
 
24.  Turkey would also like to emphasize that th ere is no clear-cut provision in the ADA regarding 
the selection procedure of analogue country.  In this  regard, Turkey considers that to some extent 
members have the flexibly to adopt thei r own rules and procedures on this issue. 
 
25.  The critical question here is whethe r the selected analogue country should be an  appropriate 
or the most appropriate country.  Taking into account the difficulties regarding the selection of WT/DS405/R 
Page B-18  
 
analogue country  and the fact that the rules and pr ocedures on this issue is not prescribed in the Anti-
Dumping Agreement, Turkey considers that the sta ndard applied in  regard to the selection of the 
analogue country should be "an appropriate country  " standard, not "the mo st appropriate country" 
standard.  Therefore,  if it can be determined that the selected country is proper in order to determine 
the normal value, then the investigating authorities are not required to search for   the most appropriate 
country to select as analogue country.  Turkey  believes that although the level of economic 
developments should be taken into  account in determining the analogue  country, this should not be 
regarded as a mandatory condition for "an appropriate country" standard.  
 26.  In this context, if Brazil is an appropriate country under the internal standards set forth by the 
EU, there is no need to search for the more or most  appropriate country , since the standard is "an 
appropriate country" standard.  However, Turk ey refrains from making comments on whether the 
selection of Brazil is appropriate for the footwear i ndustry since it is the question of the concrete case. 
Turkey would like to share its opinion about what  the threshold question should be on this issue. 
 
27.  With regard to the arguments whether the "fair comparison principle" prescribed under 
Article 2.4 applies to the selection procedure of  the analogue country, Turkey considers that 
Article 2.4 does not govern the analogue country selection process.  In Turkey's view, the "fair comparison principle" prescribed under Article 2.4 requires the authorities to compare the "normal 
value" and "export price" in a fair manner.  Howeve r this requirement is rela ted with the comparison 
stage of these two prices and not related with the calculation stage of the normal value or the export 
price.  Since there is no comparison, there is no "fair comparison" requirement as well before the 
stage of determining the normal value and export price.  Howeve r, once the normal value and the 
export price are determined, the investigating au thorities are bound by the "fair comparison" rule 
prescribed under the Article 2.4 of the Anti-Dump ing Agreement.  The analogue country selection 
process is related with determining the normal valu e stage, not related with the comparison stage. 
 
28.  Consequently, Turkey considers that the fa ir comparison principle set out under Article 2.4 
does not govern the calculation of normal value or expor t price, it just covers the stage of comparison 
of these two prices.  The determination of whether Br azil is an appropriate analogue country is not an 
issue that can be argued in the context of fair comparison principle.   
D.  SAMPLING 
 
29.  Article 6.10 of the Anti-Dumping Agreement provides that: 
 
"The authorities shall, as a rule, determin e an individual margin of dumping for each 
known exporter or producer concerned of th e product under investigation.  In cases 
where the number of exporters, producers, importe rs or types of products involved is 
so large as to make such a determinati on impracticable, the authorities may limit 
their examination either to a reasonable num ber of interested parties or products by 
using samples which are statistically valid on the basis of information available to the 
authorities at the time of the selection, or to the largest percentage of the volume of 
the exports from the country in questi on which can reasonably be investigated." 
30.  It is understood from the above mentioned article  that while the general rule is to calculate 
individual dumping margins for every known exporter/producer, sampling is an exception to that general rule when the number of exporters/producers/ importers/types of products is too large to make 
such an individual treatment. 
 
31.  China claims that by not examining the Ma rket Economy Treatment (MET) application of the 
non-sampled companies, EU violated Article 6.10 of the Anti-Dumping Agreement.  According to China, an investigating authority has to evaluate separately all the MET applications, even if sampling 
is recoursed and the companies in question are not included in the sampling process.   WT/DS405/R 
 Page B-19 
 
 
 32.  Turkey considers that this interpretation is incompatible with the spirit of the sampling 
exception.  When it is impractical to examine all th e co-operated companies, by applying sampling the 
investigating authorities have opportunity to exam ine only a limited group of exporters in order to 
reach a determination in a timely manner on whether dumping exists.  
 
33.  Therefore once the sampling is applied, the investigating authorities make the examination of 
whether dumping exists according to the data of the only sampled companies.  This means that the 
investigating authorities limit their examinati on only to a group of companies.  The MET/IT 
determinations constitute the part of  this examination that is limited to group of sampled companies. 
In other words the investigating authorities have to examine only the MET/IT application of the 
companies that are included in the sample.  34.  Especially, when a product in a fragmented i ndustry such as footwear is subject to an anti-
dumping investigation, it is actually not possibl e to examine all the co-operated companies' 
applications since there may be hundreds of produ cers/exporters.  That is the reason why sampling is 
prescribed under the Article 6.10 as an exception to the individual treatment.   35.  Consequently Turkey considers that  the sampling rule prescribed under Article 6.10, which is 
as an exception to the individual treatment principle,  does not oblige the investigating authorities to 
examine separately all the MET applications of th e companies which are not included in the sampling 
process.  Therefore, according to Turkey's view  when sampling is recoursed, the investigating 
authorities have to examine only the responses of the companies that are included in the sample 
regardless of whether they applied for MET/IT.  E.  CONCLUSION   
36.   Turkey appreciates this opportunity to presen t its views to the Panel.  Turkey reserves the 
right to make further comments during the first substantive meeting with the Panel. 
  WT/DS405/R 
Page B-20  
 
   
 
ANNEX B-5 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
WRITTEN SUBMISSION OF THE UNITED STATES 
 
 
I.  CHINA'S CLAIMS REGARDING ARTICLE 9(5) OF COUNCIL REGULATION 
NO. 1225/2009 
 
1. China argues that Article 9(5) of Council  Regulation No. 1225/2009 ("Basic AD Regulation") 
of the European Union is inconsistent as such with Article 6.10 and, as a consequence, with 
Articles 9.2, 9.3, and 9.4 of the AD Agreement.   The United States disagrees with China's legal 
arguments because they are based on misundersta ndings of the relevant provisions of the AD 
Agreement.  
2. According to China, Article 6.10 of the AD Ag reement requires an investigating authority to 
calculate an individual margin of dumping for ever y interested party that identifies itself as an 
exporter or producer.  China misunderstands the obligations found in Article 6.10 of the AD 
Agreement.  Article 6.10 requires that an investigat ing authority calculate an individual margin of 
dumping in respect of each known "exporter" or "p roducer."  Before assigning an individual dumping 
margin to a particular firm, however, the investigatin g authority must decide whether that firm is an 
"exporter" or "producer."  The AD Agreement neith er defines "exporter" or "producer", nor sets out 
criteria for the investigating authority to examine to determine whether a particular entity constitutes 
an "exporter" or "producer."  Therefore, there is nothing in the text of Article 6.10 that requires an 
investigating authority to calculate an individual margin of dumping for each company solely on the 
basis of the company's assertion that it is an exporte r or producer.  Instead, an investigating authority 
is permitted to conclude, based on the facts on the record, which entities constitute an individual 
"producer" or "exporter" as a condition precedent to  calculating an individual dumping margin.  The 
facts of a particular case may therefore support a finding that the nature of the relationship or operations of two or more legally distinct entities ar e so closely connected th at the entities effectively 
constitute a single "exporter" or "producer" within th e meaning of Article 6.10.  The reasoning of the 
panel in Korea – Paper  directly supports this interpretation of Article 6.10 of the AD Agreement.   
 3. An inquiry into the relationship between companies and the reality of their respective commercial activities is particularly relevant in the context of producers and exporters from a non-
market economy.  During China's accession negotia tions, Members expressed concerns about the 
influence of the government of China in the co mmercial practices and decisions of enterprises in 
China.  The Protocol of the Accession of the People's Republic of China ("Protocol") recognizes the 
pervasiveness of government interference in  the Chinese economy. The presumption under the 
Protocol is that, absent a demonstration to the contrary by Chinese producers, government 
interference will prevent market principles from fu nctioning in the Chinese industry manufacturing 
the product under consideration. Given this presump tion of  government interference, it would make 
little sense for an investigating authority to assign an individual dumping margin to an exporting 
company in China without first confirming, at the very least, that the company functions as an exporter separate from and independent of influen ce by the government.  For all these reasons, an 
investigating authority may apply criteria to determ ine whether an individual company is an exporter 
or producer without acting inconsistently with Article 6.10 of the AD Agreement.  
  WT/DS405/R 
 Page B-21 
 
 
  4. China argues that Article 9(5) of the Basic AD  Regulation is inconsistent with Articles 9.2, 
9.3, and 9.4 of the AD Agreement because, with respect to those firms that do not qualify for 
individual treatment, Article 9(5) prevents the Commission from imposing or applying an individual 
anti-dumping duty for each exporter or producer that w as part of the sample or provided the necessary 
information to the investigating authority.  The United States submits that China's argument is 
premised on misunderstandings of Article 9 of the AD Agreement, and that China's interpretation of 
Article 9 does not result in the obligation for which China argues.   5. Article 9 discusses the imposition  of anti-dumping duties with respect to products , not 
individual exporters or producers, and the concept of imposing  anti-dumping duties on an individual 
exporter or producer, as advanced by China, is f ound nowhere in Article 9 of the AD Agreement.  
Furthermore, as in the case of its Article 6.10 clai m, China fails to recognize that the decision as to 
whether a group of companies functions as a single entity  is one that an investigating authority must 
make before  it can know how duties should be applied to those companies' imports.  If it concludes 
that multiple companies are closely related and f unction as a single entity, an investigating authority 
may apply a single duty to all of those companies' imports, even under China's reading of Article 9.  
Nothing in Article 9 prohibits such treatment; nor does Article 9 set out criteria for an investigating 
authority to examine before concluding that a par ticular firm or group of firms constitutes a single 
entity.   6. In any event, China's clai ms pursuant to Article 9 of the AD Agreement appear to be 
dependent on its claims under Article 6.10.  Fo r the reasons discussed above, China's arguments 
pursuant to Article 6.10 of the AD Agreement ar e based on an incorrect understanding of that 
provision.  As a result, there is no basis to support China's consequential claims under Article 9 of the 
AD Agreement.    
7. China argues that the EU does not administer the provisions of Article 9(5) in a uniform, 
impartial and reasonable manner in  accordance with Article X:3(a) of the GATT 1994.  However, 
Article 9(5) does not appear to address the admini stration of any other legal instrument.  Instead, 
Article 9(5) appears to provide substantive rul es on how anti-dumping duties are to be imposed under 
certain circumstances.  The United States ther efore agrees with the EU that, under these 
circumstances, Article 9(5) itself cannot be found to breach GATT Article X:3(a).  II.  CHINA'S CLAIMS RELATING TO THE EU DETERMINATIONS OF INJURY AND 
LIKELIHOOD OF INJURY  
 
8. China has asserted that the provisions of Ar ticle 3 of the AD Agreement apply to so-called 
sunset reviews under Article 11.3 of the AD Agreem ent.  The Appellate Body has explained on two 
occasions that the obligations set forth in Article 3 of the AD Agreement do not apply to likelihood-of-injury determinations in sun set reviews conducted under Article 11.3 of the AD Agreement.  As 
the Appellate Body observed, the AD Agreement di stinguishes between "determinations of injury" 
addressed in Article 3 and determinations of likeli hood of "continuation or recurrence . . . of injury", 
addressed in Article 11.3.  Article 11.3 contains no cross-references to Article 3 that would make 
Article 3 provisions applicable to sunset reviews.  Nor does Article 3 indicate that whenever the term 
"injury" appears in the AD Agreement, a determ ination of injury must be made following the 
provisions of Article 3.  Of course, some of the factors and analyses called for by Article 3.1 may be 
relevant in a sunset review conducted pursuant to Article 11.3.  However, as the Appellate Body has 
found, the necessity of considering such factors or conducting such analyses "in a given case results 
from the requirement imposed by Article 11.3  - not Article 3."  
 9. China also claims that the EU acted inconsis tently with Article 3.1 of the AD Agreement.  
While it takes no position on the merits of China's f actual allegations, the United States does maintain 
that an investigating authority acts inconsistently with Article 3.1 of the AD Agreement when it limits WT/DS405/R 
Page B-22  
 
  the universe of domestic producers from which it obtai ns information to complainants for purposes of 
its examination of injury. As the Appellate Body has recognized, "an ‘objective examination' [under 
Article 3.1] requires that the domestic industry, and the effects of dumped imports, be investigated in 
an unbiased manner, without favouring the interests of any interested party, or group of interested 
parties, in the investigation."  An investigating au thority's inclusion of only complainant firms in its 
examination of the domestic industry, particular ly when non-complainants have a meaningful 
presence in the industry, would appear to show an ab initio  selection bias that favours the domestic 
industry and does not meet the requirement that the investigating authority conduct an objective examination.  It also would be inconsistent with  the definition contained in Article 4.1 of the AD 
Agreement for an investigating authority to lim it the domestic industry for purposes of the injury 
analysis to complainant producers or to those pr oducers that have expressed support for the petition 
solely on the basis of the producers' position regarding the anti-dumping application.   10. China claims that the EU acted inconsisten tly with Article 3.3 of the AD Agreement by 
cumulating imports from China and Viet Nam.  The Un ited States disagrees with the legal premise of 
China's argument that an authority must establish that imports from differe nt countries have similar 
volume and market share trends in order to demonstr ate that cumulation is "appropriate in light of the 
conditions of competition between the importe d products," as required by Article 3.3. 
 11. China makes a variety of claims that the EU's  original injury determ ination was inconsistent 
with the third sentence of Article 3.5 of the AD Agre ement.  China appears to suggest that an injury 
authority must attempt to measure the "magnitude" of injury attributable to every known factor 
causing injury.  Any such suggestion is inconsistent with the language  of Article 3.5, as well as with 
the reasoning of the Appellate Body with respect to that language.  Article 3, while it requires 
authorities to examine many quantitative factors in  conducting an injury analysis, does not establish 
any formula(s) for authorities to quantify injury, per se .  Nor does it require authorities to attempt to 
measure the magnitude of injury, aside from specifyi ng that an authority must find the injury to be 
"material."  Because the AD Agreement does not re quire any quantitative measure of the magnitude 
of either any overall injury sustained by the domestic industry or the injury caused by dumped imports, it necessarily does not require measures of the magnitude of injury caused by factors other than dumped imports.  Thus, there is simply no basi s in the text or context of Article 3 of the AD 
Agreement for the obligation that China would seek  to impose that authorities provide a "good-faith 
estimate" of the magnitude of the injury caused by factors other than dumped imports. 
 12. China claims that the EU acted inconsiste ntly with Article 6.8 of the AD Agreement "by 
failing to apply facts available . . . when faced w ith incorrect and misleading information from the 
sampled European Union producers" in  the expiry review.  Even assuming arguendo  that the 
producers supplied "incorrect and misleading inform ation," China's claim is not supported by the 
language of Article 6.8.  The use of the word "m ay" in Article 6.8 indicates that, while authorities 
have the ability to use facts available under appropriate circumstances, they are not required to do so.  If Article 6.8 were intended to impose a mandatory obligation on authorities, it would have used the 
word "shall."  
 
III. CHINA'S PROCEDURAL CLAIMS UNDER ARTICLE 6 OF THE AD AGREEMENT  
 
13. China claims that the EU violated certain disclosure and procedural requirements found in 
Article 6 of the AD Agreement.  The United States  agrees with China that Article 6.4 generally 
requires that an investigating authority give interested parties access to all non-confidential 
information that is submitted during an investigati on.  Failure to provide such access would not only 
be inconsistent with Article 6.4, but also Article  6.2, because without access to information described 
in Article 6.4, an interested party is necessarily denied "a full opportunity for the defense of their 
interests."  WT/DS405/R 
 Page B-23 
 
 
  14. China claims that the EU acted inconsiste ntly with Article 6.1.1 of the AD Agreement by 
providing less than 30 days for interested parti es to submit responses to MET and IT claim forms.  
China appears to assume that the term " questionnaires" in Article 6.1.1 encompasses any request for 
information made by an investigating authority, as a result of which an exporter or foreign producers 
should be given at least 30 days to respond to every such request made in the course of an 
investigation.  However, as the panel in Egypt – Rebar  explained, the context of Article 6.1.1 reveals 
that the term "questionnaire" for purpos es of the AD Agreement refers to one particular request for 
information made by the investigating authority.  The original anti-dumping questionnaire in an 
investigation is the single document contemplated by the term "the questionnair e" in paragraphs 6 and 
7 of Annex I.  The opportunity provided by an i nvestigating authority to permit Chinese companies to 
claim market economy treatment or individual treatme nt is a precursor to the issuance of the actual 
anti-dumping questionnaire, and therefore not subject  to the obligations in Article 6.1.1.  The 
United States notes that, notwithstanding the Article 6.1.1 claim advanced by China in this dispute, 
China's investigating authorities appear to rec ognize that the 30-day time period for reply does not 
apply to every request for information made by an investigating authority.  Article 12.1.1 of the SCM 
Agreement is worded almost identically to Ar ticle 6.1.1 of the AD Agreement, setting out the 
requirement of a minimum 30-day response period to  questionnaires in CVD investigations.  In a 
recently completed countervailing duty investigation on grain-oriented electrical steel from the United States, the Chinese investigating authorities issued multiple requests for information to the 
U.S. Government following the original ques tionnaire, including new subsidy allegation and 
supplemental questionnaires.  For none  of these requests for informati on, attached as Exhibit US-1, 
did China provide an initial period of 30 days to respond.   
 15. China asserts that the EU acted inconsisten tly with Article 6.9 of the AD Agreement by 
providing only three business days for parties to res pond to what China refers to as "the Additional 
Final Disclosure Document" that the EU issued in its original injury investiga tion.  However, because 
Article 6.9 does not specify the manner in which authorities are to make disclosures, individual 
authorities may use different means to implement the requirements of the provision.  Some authorities may make one single, massive disclosure to intere sted parties.  Other authorities may make many 
disclosures to interested parties during the course of an investigation; as a resu lt, such an authority's 
final disclosure may be relatively modest in size and significance.  The United States believes that 
what constitutes a "sufficient time" for an interest ed party to defend its interests and respond to the 
disclosure will depend on the size, significance, and nature of the disclosure.   
 
IV.  ARTICLE 17.6(I) OF THE AD AGR EEMENT DOES NOT IMPOSE OBLIGATIONS 
ON WTO MEMBERS  
 16. China claims the EU acted inconsistently with  its obligations under Article 17.6(i) of the AD 
Agreement.  The Panel should reject these claims, because Article 17.6(i) does not impose obligations 
on WTO Members.  As is clear from the text, Article 17.6(i) is addressed to panels – "the panel shall 
determine."  To interpret Article 17.6(i) as imposin g an obligation on Members is to read into that 
provision words that are not there, something that may not be done under customary rules of interpretation of public international law.  Rather th an repeat the arguments of the EU on this issue in 
its request for a preliminary ruling, the United States will make only one additional point.  The 
United States notes that prior to its report in US – Hot-Rolled Steel , which both China and the EU 
discuss, the Appellate Body addressed this issue in Thailand – H-Beams  and found that Article 17.6 
does not impose obligations on WTO Members.  WT/DS405/R 
Page B-24  
 
   
 
ANNEX B-6 
 
 
THIRD PARTY WR ITTEN SUBMISSION 
OF VIET NAM 
 
 
I. INTRODUCTION 
 
1. Viet Nam welcomes this opportunity to presen t its views in these proceedings involving the 
European Union – Anti-Dumping Measures on Certain Footwear from China.  Viet Nam believes 
these proceedings relate to the understanding of certain articles of the Anti-Dumping Agreement 
(ADA) and the GATT 1994 in which Viet Nam has systemic interests. 
 
2. In this third party submission, Viet  Nam will focus on th e following issues: 
  (i) Whether Article 9.5 of the Regulati on No. 384/96 on anti-dumping measures against 
imports from countries which are not member of the European Union (AD Basic Regulation (amended and codified by Regula tion No. 1225/2009) is inconsistent with 
the Anti-Dumping Agreement (ADA) and the GATT 1994; 
  (ii) Whether selection of Brazil as the analo gue country is inconsis tent with the ADA and 
the GATT 1994; 
 
 (iii) Whether anti-dumping duty on Chinese exports was not imposed and collected by the 
European Union (EU) on a non-discriminatory basis. 
 
II. WHETHER ARTICLE 9.5 OF THE AD BASIC REGULATION IS INCONSISTENT 
WITH ADA AND THE GATT 1994 
 A.  CLAIMS ON ARTICLE 9.5 OF THE AD BASIC REGULATION  
 3. China claims that Article 9.5, which states that companies concerned failed to meet Market 
Economy Treatment (MET) are required to satisfy the Individual Treatment (IT) test provided therein, 
violates Article(s) 6.10, 9.2, 9.3, 9.4, 12.2.2 of  ADA, Article I.1 and Article X:3(a) of GATT 1994. 
 
4. In its first written submission, the EU rebuts almost claims by China.  B.  VIET NAM'S VIEWS ON VIOLATION OF ARTICLE 9.5 OF AD BASIC REGULATION  (i)  Article 9.5 of the AD Basic Regulation is  inconsistent with Article 6.10 of the ADA 
 
5. Article 6.10 of ADA provides, "the authorities, as a rule, shall determine individual margins 
of dumping for each known exporter or producer c oncerned of the product under investigation.  In 
cases where the number of exporters,  producers, importers or types of products involved is so large 
as to make such a determination impracticable, th e authorities may limit their examination either to a 
reasonable number of interested parties or products by  using samples which are statistically valid on 
the basis of information available to the authorities at the time of the selection, or to the largest  WT/DS405/R 
 Page B-25 
 
 
  percentage of the volume of the exports from  the country in question which can reasonably be 
investigated" . (emphasis added) 
 6. It is noted that the Article 6.10 requires i nvestigating authorities to determine individual 
margins of dumping for exporters or producers concer ned.  The sole exception is sampling where the 
number of exporters, producers, importers involved is so larg e as to make a determination 
impracticable.  There is no provision elsewhere in  the ADA that exporters or producers concerned 
have to satisfy additional conditi ons or requirements for enjoying individual margins of dumping, 
which is a basis for individual duty.  
7. However, under Article 9.5 of Basic AD Re gulation, the EU imposes a single anti-dumping 
duty on all exporters/producers that fail to satis fy the Market-Economy-Treatment (MET) test unless 
such exporters/producers prove, on the basis of posit ive evidence, they meet the additional conditions 
laid down in Article 9.5 of EU Basic Regulation.  Thus, the Article 9.5 of EU Basic Anti-Dumping 
Regulation requires exporters and producers from non-market economy country to satisfy the 
additional conditions in order to qua lify for Individual Treatment (IT) is inconsistent with Article 6.10 
of ADA.  (ii)  Article  9.5 of the AD Basic Regulation is inc onsistent with Article 9.2 of the ADA  
 8. Article 9.2 ADA states that "When an anti-dumping duty is impo sed in respect of any product, 
such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such produc t from all sources found to be dumped and 
causing injury, except as to imports from tho se sources from which price undertakings under the 
terms of this Agreement have been accepted."  (emphasis added) 
 
9. It is in Viet Nam's views that Article 9.2 of the ADA requires the individualization of anti-
dumping duty based on i) in the appropriate amounts in  each case and; ii) on non-discriminatory basis. 
Article 9.5 of the AD Basic Regulation, however, pr ovides that individual duty shall be specified for 
the exporters which can demonstrate to satisfy so -called IT requirements.  These requirements are 
considered as extra and discriminatory conditions for exporters or producers to be allocated individual 
duty.  Thus, imposing a country-wide anti- dumping duty on imported goods from non- market 
economy countries that do not qualify for IT test unde r Article 9.5 of the EU Basic AD Regulation, 
the Article 9.5 violates Article 9.2 of ADA.  
(iii)  Article 9.5 of AD Basic Regulation violates Article 9.3 of the ADA 
 
10. The Article 9.3 of ADA clearly states a general principle that "the amount of the anti-dumping 
duty shall not exceed the margin of dumping established under Article 2"  (emphasis added). 
Article 9.5 of the AD Basic Regulation, however, provides that EU will imposes a country-wide  average anti-dumping duty on all producers not qualif ying for IT.  This application will necessarily 
exceed the individual dumping margin of some of the exporters/ producers included in the average duty calculation.  Thus Article 9.5 EU Basi c regulation violates Article 9.3 of ADA. 
 
(iv)  Article 9.5 of the AD Basic Regulation violates Article 9.4 of the ADA 
 
11. Article 9.4 ADA provides that: 
 
"When the authorities have limited their examination in accordance with the second sentence of paragraph 10 of Article 6, any  anti-dumping duty applied to imports from 
exporters or producers not included in the examination shall not exceed: WT/DS405/R 
Page B-26  
 
   (i) the weighted average margin of dumping established with respect to the selected 
exporters or producers or, 
  (ii)  where the liability for payment of anti- dumping duties is calculated on the basis of a 
prospective normal value, the difference be tween the weighted average normal value of 
the selected exporters or producers and the exp ort prices of exporters or producers not 
individually examined, 
 provided that the authorities shall disregard for th e purpose of this paragraph any zero and de minimis 
margins and margins established under the circumstance s referred to in paragraph 8 of Article 6.  The 
authorities shall apply individual dutie s or normal values to imports fr om any exporter or producer not 
included in the examination who has provided th e necessary information during the course of the 
investigation, as provided for in subparagraph 10.2 of Article 6."  (emphasis added) 
 12. However, under Article 9.5 of the AD Basic Regulation, dumping margin of 
exporter/producers not qualifying for IT will not be calculated on basis of individual evidence of 
exporters or producers.  Thus, dumping margin of the sampled exporters or producers are not given, 
the investigating authorities is unable to calculate a weighted-average dumping margin of all sampled 
exporters or producers as stipulated in Article 2.4 ADA.  13. In addition, Article 9.4 of the ADA provides that, the authorities shall apply individual duties 
or normal values to imports from any exporter or producer not included in the examination who has 
provided the necessary information during the course of  the investigation.  But Article 9.5 of the AD 
Basic Regulation provides that unless such exporters or producers prove that they meet the additional 
conditions (IT criteria), exporters or producers shall not be applied individual duties.  Therefore, it is 
inconsistent with Article 9.4 of the ADA. 
 
(v)  Article I.1 of GATT 1994 
 
14. Article I.1 of the GATT 1994 states the most-favoured-nation treatment that "any advantage, 
favour, privilege or immunity gr anted by any contracting party to  any product originating in or 
destined for any other country s hall be accorded to immediately and unconditionally to the like 
product originating in or destined for the territories of all other contracting parties"  (emphasis 
added).  This provision is also applie d, certainly, to anti-dumping measures. 
 15. Meanwhile, under the Article 9.5 of AD Basic Regulation, an exporter or producer failed to meet IT criteria would be refused to enjoy individual duty.  Article 9.5, therefore, obviously and 
automatically gives a less favourable treatment to members not recognized by the EU as a market 
economy.  In the case that a member accepts th e concession to be recognized as a non-market 
economy but not concession for a less favourable treatment, the Article 9.5 still violates the most-favoured-nation treatment.  
III. WHETHER SELECTION OF BRAZIL AS THE ANALOGUE COUNTRY IS 
INCONSISTENT WITH ADA 
 
A.  CLAIMS ON SELECTION OF BRA ZIL AS THE ANALOGUE COUNTRY 
 16. China claims that the sele ction of Brazil as analogue country was taken on the basis of a 
biased and not objective examination, thus contrary to Article 17.6(i) of the Anti-Dumping Agreement 
and Article VI:1 of the GATT 1994.    WT/DS405/R 
 Page B-27 
 
 
  17. In its response, the EU stated that in the process of selection of analogue country, Brazil is 
considered as the best choice to establish normal  value for determining of dumping margin for 
Chinese exporters/producers.  B.  VIET NAM'S VIEWS ON THE SELECTION OF BRAZIL AS ANALOGUE COUNTRY 
 
18. It is noted that there existing different cond itions between China and Brazil in terms of socio-
economic developments and footw ear industry formation.  Brazil has a higher level of economic 
development than China and is one of the world's most protected footwear markets, with 35 per cent 
import tariff on footwear and non-automatic licensing.  Moreover, higher labour cost in the total cost 
of production and other differences in cost struct ure between Brazil and China exacerbates this effect. 
 19. In addition, Article X:3 of the GATT 1994 stat es that measures of general application are to 
be administered in an impartial, objective and unifor m manner.  In this dispute, it would appear that 
the application of anti-dumping measures, thr ough Regulation 1472/2006, was not objective or 
impartial when selecting Brazil due to the enor mous differences in level of trade, production 
capacities, labour standards, costs, transport fac ilities, etc.  Thus, the analogue-country selection is, 
arguably, inconsistent with Article X:3 of the GATT 1994.  
IV. WHETHER ANTI-DUMPING DUTY ON CHINESE EXPORTS WAS NOT IMPOSED 
AND COLLECTED BY THE EU ON A NON-DISCRIMINATORY BASIS 
 
A.  CLAIMS ON IMPOSITION AND COLLECTION OF ANTI-DUMPING DUTY ON A 
DISCRIMINATORY BASIS 
 20. In its submission, China claims that the EU application of anti-dumping duties on Chinese 
footwear products is a "Violation of Articles 3.1 and 9.2 of the Anti-Dumping Agreement because the 
anti-dumping duty on Chinese exports was not imposed and collected by the EU on a non-
discriminatory basis as the duty rate established for China was higher than that for Viet Nam, 
although both the dumping and injury margins foun d for Vietnamese exporters were higher than those 
for Chinese exporters" (Claim III.16) 
 
21. In its response, the EU stated that the "l esser duty" rule is applied in imposition of anti-
dumping duties on Chinese exports in the case of foot wear products (which also involved Vietnamese 
exports).  Due to the fact that it is a non-mandatory obligation bound by the Anti-Dumping Agreement, claims of China seem to be groundless.  
B.  VIET NAM'S VIEWS 
 22. The 'lesser duty' principle is provided in Article 9.1 of the Anti-Dumping Agreement:  
The decision whether or not to impo se an anti-dumping duty in cases where all 
requirements for the imposition have been  fulfilled, and the decision whether the 
amount of the anti-dumping duty to be imposed  shall be the full margin of dumping or 
less, are decisions to be made by the authorities of the importing Member.  It is 
desirable that the imposition be permissive in the territory of all Members, and that 
the duty be less than the margin if such lesser duty would be adequate to remove the 
injury to the domestic industry.  (emphasis added) 
23. It is noted that even though application of this principle is encouraged by the WTO language 
of "desirable that the imposition be permi ssive in the territory of all Members"  (emphasis added) , 
application of this principle is not obliged to members of the WTO.   WT/DS405/R 
Page B-28  
 
  24. Consequently, a member may use the notion of injury in its lesser duty rules without thereby 
incurring a new WTO obligation or extending an existing one.  Therefore, it is groundless to claim that either the lesser duty rule itself or methodology used  in application of the rule is inconsistent with 
the WTO regulations.  
 
_______________