WT/DS382/R 
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ANNEX C 
 
 
ORAL STATEMENTS OR EXECUT IVE SUMMARIES THEREOF OF  
THE PARTIES AT THE FIRST SUBSTANTIVE  
MEETING OF THE PANEL 
 
 
 
Contents Page 
Annex C-1 Executive Summary of the Opening Statement of Brazil at the First 
Meeting of the Panel C-2 
Annex C-2 Executive Summary of the Open ing Statement of the United States 
at the First Meeting of the Panel C-7 
Annex C-3 Closing Statement of Brazil at  the First Meeting of the Panel C-15 
Annex C-4 Closing Statement of the United States at the First Meeting of the 
Panel C-17 
 WT/DS382/R 
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 ANNEX C-1 
 
 
EXECUTIVE SUMMARY OF THE OPENING STATEMENT  
OF BRAZIL AT THE FIRST  MEETING OF THE PANEL 
 
 
 
I. INTRODUCTION 
 
1. Brazil responds, in turn, to the legal and fact ual arguments in the US First Written Submission 
("FWS").  At the outset, Brazil notes that in this di spute, the US consistently encourages the Panel to 
depart from established precedent in Zeroing  disputes.  Brazil regrets such arguments, noting that 
"WTO Members attach significance to reasoning pr ovided in previous pane l and Appellate Body 
reports".1  Contrary to the US suggestions, Article 11 of the DSU does not imply that relevant 
previous rulings by the Appellate Body should not be  followed.  On the contrary, respecting previous 
and repeated rulings – which have been adopted by  the WTO Membership in the DSB – is part and 
parcel of, and even facilitates, a panel's objective assessment under Article 11 of the DSU.2  
 
II. THE ANTI-DUMPING AGREEMENT AND THE GATT 1994 DEFINE "DUMPING" 
IN RELATION TO THE "PRODUCT" AS A WHOLE 
 
2. The US rightly notes that "this dispute is about the definitions of 'dumping' and 'margin of dumping'".
3  Brazil argues that these concepts are defined by reference to the product as a whole.  
Conversely, the US argues that these concepts are su fficiently "flexible" that they may be defined by 
individual Members in relation (1) to the "product"  as a whole;  (2) to each individual transaction 
relating to the "product";  or even (3) to both conceptions.    3. As a basis for its plea for unilateral discre tion, the U.S. relies on Article 17.6(ii) of the Anti-
Dumping Agreement , but misreads it.  Article 17.6(ii) comprises two sentences.  The first enjoins a 
panel to interpret the Anti-Dumping Agreement  using the customary rules of treaty interpretation.  The 
second provides that, when these rules yield multiple permissible interpretations, a measure is WTO-
consistent if it rests on one permissible interpretation.  As  the Appellate Body said in US – Continued 
Zeroing , "Article 17.6(ii) contemplat es a sequential analysis", w ith a panel first applying the 
customary rules of interpretation in a "conscientious" manner.  "Only after  engaging in this exercise 
will a panel be able to determine whether th e second sentence of Article 17.6(ii) applies".
4 
 4. The Appellate Body has applied the rules of  treaty interpretation to the definitions of 
"dumping" and "margin of dumping" in the past, and found that they lead to a product-wide meaning, and that therefore there is no room for reso rting to the second sentence of Article 17.6(ii).
5  It has 
added that the notion of multiple permissible in terpretations cannot be stretched to include rival  
interpretations.6   
 
                                                      
1 Appellate Body Report, US – Stainless Steel , para. 160. 
2 See Appellate Body Report, US – Stainless Steel , paras. 157 – 162.   
3 US FWS, para. 60. 
4 Appellate Body Report, US – Continued Zeroing , para. 271.  Original emphasis.  See also , Appellate 
Body Report, US – Hot-Rolled Steel , para. 60. 
5 Appellate Body Report, US – Zeroing (Japan) , para. 189.   
6 Appellate Body Report, US – Continued Zeroing , para. 273 and Concurring Opinion, para. 312.    WT/DS382/R 
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 5. Brazil has set forth its interpretation of these term s, explaining that they refer to the product as 
a whole, in its FWS.7  Brazil recalls that Article 2.1 of the Anti-Dumping Agreement , by defining 
"dumping" "[f]or the purpose of this Agreement", makes plain that "dumping" has the same meaning "in all provisions of the Agreement and for all types of anti-dumping proceedings".
8  The requirement 
to give the concept of "dumping" a consistent meaning throughout the Anti-Dumping Agreement  is 
crucial because:  "Nothing could be more important than the definition of the concept of "dumping".  
It is foundational and applies throughout the Agr eement, as the clear wording of Article 2.1 makes 
plain.  It cannot have variable or contradictory meanings, for that would infect the entire Agreement."9 
 6. The US argues that Brazil is wrong to interpret "dumping" and "margin of dumping" 
uniformly throughout the Anti-Dumping Agreement  and Article VI:1 and VI:2 as referring to the 
product as a whole, and finds support in the use of the singular words "product" and "price" in Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement .  However, the cited 
provisions use "price" in the singular also when referring to "normal value", which is not defined in relation to a single transaction.  Normal value is the "comparable price , in the ordinary course of 
trade, for the like product ".  "The ordinary course of trade" cannot be ascertained on the basis of one 
transaction;  and the adjective "normal" indicates that the price is the "regular", "usual", "standard" or 
"common" price for "the like product".  Such a "price" cannot be ascertained on the basis of one 
transaction, but must be based on all relevant tran sactions contributing to the "normal" price.  The 
French and Spanish language versions of  Article 2.1 confirm this view.   
 
7. Numerous contextual provisions of the Anti-Dumping Agreement  confirm that "dumping" and 
"margin of dumping" are defined in relation to the product as a whole.  For example, first, Article 5.8 
of the Anti-Dumping Agreement  requires the termination of an investigation into an exporter if "the 
margin of dumping" is de minimis .  The US position would mean that an authority's termination 
decision would be made for each individual export transaction.  This is absurd.
10  Second , Article 6.10 
requires that an authority determine "an individual  margin of dumping for each  known exporter or 
producer  concerned of the product  under investigation".11  Similar language appears in Articles 6.10.2 
and 9.5.  Third, under Article 3, an authority must assess th e injurious effects of "dumped imports", a 
term that covers all imports from an exporter engaged in "dumping".12  For purposes of Article 3, and 
consistent with Article 6.10, a single dumping determ ination, based on all export transactions, is made 
for an exporter, and that single determination infl uences the treatment of all imports from that party.13  
Fourth , under Articles 8 and 9 of the Anti-Dumping Agreement  and the GATT 1994, the extent of 
permissible remedial action to counter injurious "dum ping" is fixed by reference to a single margin of 
dumping, and that remedy applies to all future imports of the "product".14 
 8. In sum, there is both consistency and logic to the text of the Anti-Dumping Agreement .  By 
defining "dumping" in relation to the product as a whole, the Anti-Dumping Agreement  ensures 
parallelism between the scope of a dumping determination and the sc ope of the legal consequences 
this determination entails.  This parallelism is  important because, under Article II:2(b) of the 
GATT 1994, anti-dumping duties frequently exceed the le vel of a Member's bound rates.  To justify 
                                                     
 
7 See Brazil's FWS, paras. 49 – 61.  
8 Appellate Body Report, US – Zeroing (Japan) , para. 109. 
9 Appellate Body Report, US – Continued Zeroing , Concurring Opinion, para. 307.  See also, e.g., 
Appellate Body Report, US – Stainless Steel , para. 107, and Appellate Body Report, US – Continued Zeroing , 
para. 285.   
10 See Appellate Body Report, US – Continued Zeroing , para. 283.  
11 See Appellate Body Report, US – Softwood Lumber V , footnote 158, citing Appellate Body Report, 
US – Hot-Rolled Steel , para. 118. 
12 Appellate Body Report, EC – Bed Linen (21.5) , para. 115.  See also  Panel Report, Argentina – 
Poultry Anti-Dumping Duties , para. 7.303.   
13 See, e.g., Appellate Body Report, US – Stainless Steel , para. 108. 
14 See Articles 8.1, 9.1 and 9.3, and Appellate Body Report, US – Softwood Lumber V (21.5) , para. 108. WT/DS382/R 
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 imposing anti-dumping duties on a product-wide basi s, a dumping determination must be made on an 
equivalent product-wide basis.15   
 9. The U.S. also argues that "dumping" may have a transaction-specific meaning because the 
word "product" in Article VII:3 of the GATT 1994,  on customs valuation, refers to individual 
transactions.  The US confuses proximity (of Article V II:3 with Articles VI:1 and VI:2) with context.  
The purpose and consequences of a customs valua tion decision and of anti-dumping proceedings are 
altogether different.
16   
 10. The Note Ad Article VI:1, on which the US also relies, does not alter the requirement to 
determine dumping for the product as a whole, but simply provides for the situation where sales to an 
importer may not be relied upon directly because the exporter and the importer are related.  The US 
argument that a product-wide definition of "dum ping" and a prohibition on zeroing under Article 9.3 
prevent anti-dumping duties from being effective is al so flawed, because "it is the exporter, not the 
importer, that engages in" dumping.
17  Other US arguments have been comprehensively dealt with 
and rejected by the Appellate Body, and in some cases by panels, too.18   
 
III. ZEROING AS A MATTER OF FACT IN THE MEASURES AT ISSUE  
 
A. USDOC  PROGRAM LOGS 
 
11. For the First Review, Brazil inadvertently s ubmitted as Exhibit BRA-30 a log generated by its 
expert, Mr. Ferrier, when rerunning the USDOC software earlier this year.  In US – Continued 
Zeroing , the Appellate Body has questioned the significance of the fact that logs were replicated using 
the USDOC programs, rather than being directly generated by the USDOC.19  In any event, in 
Exhibit BRA-45, Brazil now submits the log that Fischer received from the USDOC with its final 
results in the First Review.  The US also c ontests the provenance of the log for Fischer's 
                                                      
15 Brazil also rejects the argument, in footnotes 8 and 144 of the US FWS, that cash deposits are not 
subject to the disciplines in Article 9.3 of the Anti-Dumping Agreement .  In several disputes, the DSB has ruled 
that cash deposits rates calculated with zeroing are inco nsistent with this provision (Appellate Body Reports, 
US – Stainless Steel , paras. 133 – 134 and 156(a);  US – Continued Zeroing , paras. 315 – 316 and 395(d);  US – 
Zeroing (EC) (21.5) , para. 294;  and Panel Report, US – Zeroing (Japan) (21.5) , paras. 7.166 – 7.168 and 8.1(b).  
See also Appellate Body Report, US – Zeroing (Japan) , para. 156).  In compliance proceedings in US – Zeroing 
(Japan) , the US itself argued in vain that its implementation obligations under Article 9.3 applied solely  to cash 
deposit rates, and not assessment rates ( see Panel Report, US – Zeroing (EC) (21.5) , para. 8.155(b);  Appellate 
Body Report, US – Zeroing (EC)  (21.5) , para. 6;  Panel Report, US – Zeroing (Japan) (21.5) , para. 3.3;  and 
Appellate Body Report, US – Zeroing (Japan) (21.5) , para. 12).  Thus, the applicability of Article 9.3 to cash 
deposit rates is well-established, and has been accepted by the US.   
16 Under Article 1.1 of the Customs Valuation Agreement , the customs value is the price actually paid 
or payable in a specific import transaction.  The authority does not value goods following an investigation into a 
large number of transactions relating to a "product" that the authority itself has defined.  Nor does the act of 
customs valuation for an individual entry necessarily entail, for example, the imposition of duties in excess of bound rates on all entries of the product.   
17 Appellate Body Report, US – Zeroing (Japan) , para. 156. 
18 See, respectively:  (i) on Article 2.2, Appellate Body Report, US – Softwood Lumber V (21.5) , 
paras. 82, 97 and 104;  (ii) on prospective normal value systems and the US confusion between duty collection 
under prospective normal value systems and the determination of the margin of dumping, Appellate Body 
Report, US – Zeroing (Japan) , paras. 160, 162 – 163 and 166;  and Appellate Body Report, US – Continued 
Zeroing , para. 294;  Panel Report, US – Stainless Steel , para. 7.131;  and Appellate Body Report, US – Stainless 
Steel , para. 120;  (iii) and on "mathematical equivalence", Appellate Body Report, US – Zeroing (Japan) , 
paras. 133 – 135;  Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 97 – 100;  Appellate Body 
Report, US – Stainless Steel , paras. 126 – 127;  Appellate Body Report, US – Continued Zeroing , para. 297.   
19 Appellate Body Report, US – Continued Zeroing , para. 340.  WT/DS382/R 
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 Third Administrative Review (Exhibit BRA-25), although without explanation.20  Fischer received the 
log in Exhibit BRA-25 directly from the USDOC , as evidenced by USDOC's email that Brazil 
submits as Exhibit BRA-46.    B. C
UTRALE 'S FIRST AND FISCHER 'S SECOND ADMINISTRATIVE REVIEWS  
 
12. The US argues that Brazil has not met its burden of proving that zeroing was applied to, or had an impact on, the margin of dumping for Cutrale in the First Re view, because the USDOC 
determined a margin of dumping lower than the US de minimis  threshold.  The US makes similar 
arguments regarding Fischer in the Second Revi ew, because the cash deposit and importer-specific 
assessment rates were zero.  The US is wrong on a number of counts.   
 13. First , as a matter of law, the use of zeroing is, in itself, sufficient to establish a violation of the 
Anti-Dumping Agreement  and the GATT 1994.
21   
 
14. In this dispute, the use of zeroing to calculate margins of dumping in administrative reviews 
violates Articles 2.4 and 9.3 of the Anti-Dumping Agreement , and Article VI:2 of the GATT 1994.  
Brazil has already presented arguments on Article 9.3 and Article VI:222, and now presents arguments 
based on Article 2.4.23  The Appellate Body has held that, as a " way of calculating " margins, the 
zeroing methodology "cannot be described as impar tial, even-handed, or unbiased", because it 
necessarily excludes any negative comparisons results.24  The Appellate Body has, therefore, ruled 
that the "maintenance" of zeroing procedures in admini strative reviews is incons istent with Article 2.4 
of the Anti-Dumping Agreement .25  Consequently, by including zeroing in its methodology for 
determining margins of dumping in the administrati ve reviews at issue, the US failed to conduct a 
"fair comparison".    
15. Brazil has established that the USDOC used zeroing for Cutrale's determination in the 
First Review, and for Fischer's de termination in the Second Review
26, and the US does not contest 
this.  As a result, the US violated Articles 2.4 and 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 in its dumping determin ations for Cutrale in the First Review, and for 
Fischer in the Second Review.    
16. Moreover, even though it was not required to do so, Brazil has also shown that the use of 
zeroing had an impact  on the USDOC's calculation.
27  The logs and outputs for Cutrale and Fischer 
show that the vast majority of export transactions  – in number, volume and value – generated negative 
comparison results, but were excluded from the calculation of the margins of dumping.28  These facts 
provide an illustration of the "inherent bias in a zeroing methodology".29   
                                                      
20 US FWS, footnote 145. 
21 See, e.g., Panel Report, US – Zeroing (Japan) (21.5) , para. 7.162.   
22 Brazil's FWS, paras. 62 – 76 and 97. 
23 Brazil's panel request, p. 3, includes claims under Article 2.4.   
24 Appellate Body Report, US – Zeroing (Japan) , para. 146, quoting Appellate Body Report, US – 
Softwood Lumber V (21.5) , para. 142.  See also  Appellate Body Report, US – Softwood Lumber V (21.5) , 
para. 138;  and Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135. 
25 Appellate Body Report, US – Zeroing (Japan) , paras. 169 and 190(d).   
26 As explained in detail in Exhibit BRA-31.   
27 This is explained in detail at paras. 35 – 38 and 40 – 44 of the Ferrier Affidavit.  Exhibit BRA-31. 
28 For Cutrale, Exhibit BRA-29, p. 63 and Exhibit BRA-34, last page.  For Fischer, Exhibit BRA-38, 
p. 76 and Exhibit BRA-39, last page.  See also  Exhibit BRA-31, paras. 38 and 56.   
29 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135.   WT/DS382/R 
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 17. The resulting overall weighted average margin of dumping for Cutrale in the First Review 
was 0.45 per cent, and not zero.30  Furthermore, also using zeroing, the USDOC determined an 
importer-specific assessment rate for Cutrale's goods that above the US de minimis  threshold, with 
anti-dumping duties collected at that rate.31  Thus, zeroing had an impact on the calculation, and also 
led to the collection of duties where none would have otherwise been collected.  For Fischer in the 
Second Review, the tiny minority of sales with a positive comparison result generated a positive 
margin, albeit a small one, of 0.002 per cent32, whereas without zeroing the margin would not have 
been positive.    C. E
XISTENCE OF THE CONTINUED USE MEASURE  
 
18. The US argues that Brazil has not proven the existence of the Continued Use measure to the 
standard set out in US – Continued Zeroing .  In that case, the Appellate Body sought to complete the 
analysis on the continued use measures, which th e panel had ruled to be outside the terms of 
reference.  The Appellate Body found that the existe nce of continued use of zeroing in a specific anti-
dumping case was established when  it was proven that the zeroing methodology had been used, 
without interruption, in different types of proceedings over an extended period of time33, or in other 
words, when there was a "density of factual findings"34 showing that zeroing had been used in 
successive proceedings in the same case.    19. In this dispute, Brazil has shown that zeroing has been used by the USDOC  at every available 
opportunity  under the Order in proceedings extending over five years from the original investigation, 
initiated in February 2005, through the First and Second Reviews, to the preliminary determination in 
the Third Review in April 2010.  Furthermore, in  its Issues and Decision Memoranda under the Order, 
the US affirmed its continued use of zeroing in administrative reviews, stating expressly that its zeroing policy in reviews is unchanged despite WTO rulings.
35  These Memoranda show that the use 
of zeroing continues to be part of the USDOC's calculation methodology.  In sum, there is the 
required "density" of facts.    20. The US also repeats its arguments on the impact  of zeroing.  However, the conduct at issue is 
the continued use of zeroing over time, and not the continued impact  of zeroing.  It is well-established 
that, irrespective of the impact of zeroing, it is c ontrary to WTO law to maintain zeroing procedures to 
calculate margins, whether for their continue d use in proceedings under specific anti-dumping 
orders
36 or for their continued use in anti-dumping proceedings generally.37  The Appellate Body 
reached this conclusion in reply to a similar US argument made in US – Continued Zeroing .38   
 21. The US arguments that the Second and Thir d Review are outside the panel's terms of 
reference are, in this context, irrelevant, because with regard to the Continued Use measure, these 
reviews serve as evidence of the continued use of zeroing.   
   
                                                     
 
30 Exhibit BRA-34, p. 93, "wt avg percent margin".  See also  Exhibit BRA-20. 
31 Exhibit BRA-34, p. 92, "percent ad valorem assessment".   
32 Exhibit BRA-39, p. 106, right-most column "Wt avg percent margin". 
33 Appellate Body Report, US – Continued Zeroing , para. 195.  The Appellate Body also explained that 
the approach it was taking was "cauti ous", because the panel had failed to make findings on continued use, and 
the Appellate Body has no mandate to find facts.   
34 Appellate Body Report, US – Continued Zeroing , para. 191. 
35 Exhibit BRA-28, pp. 5 – 6;  and Exhibit BRA-43, pp. 4 – 6. 
36 Appellate Body Report, US – Continued Zeroing , paras. 199 and 395(a)(v).  
37 Appellate Body Report, US – Zeroing (Japan) , paras. 166, 169 – 170, 190(c) and 190(d). 
38 Appellate Body Report, US – Continued Zeroing , para. 192.    WT/DS382/R 
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 ANNEX C-2 
 
 
EXECUTIVE SUMMARY OF THE OPENING STATEMENT OF THE 
UNITED STATES AT THE FIRS T MEETING OF THE PANEL 
 
 
 
1. The United States would like to focus on a fe w points concerning Brazil's arguments.  First, 
we will discuss how Brazil is improperly trying to in clude measures that fall outside of the scope of 
the Panel's terms of reference.  Second, we will refu te Brazil's claims that the United States has acted 
inconsistently with obligations under the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994  ("Antidumping Agreement") or the General Agreement on 
Tariffs and Trade 1994  ("GATT 1994").  A plain reading of the text of those agreements makes clear 
that there is no obligation to provide offsets outside  of the context of average-to-average comparisons 
in original investigations.  Reading the text to impose such obligations would render certain provisions of the Antidumping Agreement meaningless.  In addition, with respect to the challenged 
"continued use" of "zeroing", Brazil has failed to show any basis for concluding that such alleged 
"ongoing conduct" exists, or any basis for a di spute settlement panel to make findings based on 
speculation about what measure may or may not exist in the future.    2. We recognize that this is not the first time a dispute settlement panel has considered the issue 
of "zeroing," that is, the alleged obligation to pr ovide offsets for non-dumped transactions.  On the 
one hand, the Appellate Body h as found in other disputes that "zeroing" in Article 9 assessment 
proceedings is inconsistent with provisions of the Antidumping Agreement and the GATT 1994.  
Reliance upon those findings is the basis of Brazil's cl aims.  On the other hand – as panels have found 
in those disputes, and as discussed fully in the US first written submission – th ere is no textual basis 
for imposing the obligations that Brazil suggests.  Co nsistent with the standard  of review provided for 
in Article 17.6 of the Antidumping Agreement, and the responsibilities of panels provided for in the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ("DSU"), we ask this 
Panel to remain faithful to the text of the nego tiated agreements and refrain from making the findings 
that Brazil suggests.   
Standard of Review  
 
3. Article 11 of the DSU generally defines a pane l's task in reviewing the consistency with the 
covered agreements of measures taken by a WTO Member.  In a dispute involving the Antidumping 
Agreement, a panel must also take into account the st andard of review set fort h in Article 17.6(ii) with 
respect to various permissible interpretations  of a provision of the Antidumping Agreement. 
 
4. The question under Article 17.6(ii) is whether an investigating authority's action rests upon a 
permissible interpretation of the Antidumping Agreem ent.  Article 17.6(ii) confirms that there are 
provisions of the Agreement that "admit[] of more th an one permissible interpretation".  Where that is 
the case, and where the investigating authority's actio n rests upon one such interpretation, a panel is to 
find that interpretation consistent with the Agreement. 
 
5. Under Article 11 of the DSU, this Panel is  charged with making an objective assessment of 
the matter before it, including an objective assess ment of the facts and the conformity of the 
challenged measures with the relevant covered agreements, applying the customary rules of 
interpretation.  The Panel cannot ma ke findings or recommendations that add to or diminish the rights 
and obligations provided in  the covered agreements. WT/DS382/R 
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 6. The United States is aware that the Appellate  Body has rejected the view that the covered 
agreements do not impose an obligation to provide o ffsets in assessment reviews.  However, the fact 
that for the Appellate Body there is an interpre tation under which there would be an obligation to 
provide offsets is not a basis for concluding that no other interpretation is permissible.  The very 
inclusion of Article 17.6(ii) confirms that the te xt of the Antidumping Agreement may be susceptible 
to more than one interpretation.  To find that it is not possible to find that there are conflicting 
interpretations of the text would mean depriving the second sentence of Article 17.6(ii) of meaning.  
If the permissible interpretations are all "harmonious ", then it is difficult to see how a measure could 
be in conformity with only one of the interpreta tions.  And it is not surprising that the Antidumping 
Agreement could be subject to more than one perm issible interpretation.  For example, in many 
instances, the text was drafted to cover varying and complex antidumping systems around the world.  
A number of previous panels that considered the issu e have found that the interpretation that there is 
no obligation to provide offsets beyond the context of the average-to-average comparison methodology in investigations rests on a permissible interpretation of the Antidumping Agreement.  It 
is difficult to understand how, if these various panels found that this interpretation is permissible, then 
it is not permissible. 
 
Scope of this Dispute  
 
7. The United States has requested a preliminary ruling that two of the measures identified in 
Brazil's panel request are outside the Panel's terms of reference.   
 
8. Brazil suggests that the scope of a dispute includes any measure, adopted at any time (from before consultations through implementation), as long as the measures share the same "essence" or 
"close substantive connections" and together "man ifest a common 'problem' that the complaining 
Member's claims are seeking to 'fix'".  Such a sweeping approach is not based in the text of the DSU.   
 
9. The Appellate Body has explained that the iden tification in a panel request may be considered 
to include subsequent measures in more limited circumstances, namely where those measures do not change the essence of the measure properly identified in the panel request.  However, this is not the 
case here.  Each administrative review is separate a nd distinct from the reviews that proceed or follow 
it.  The second administrative review is not  a measure with the same "essence" as the 
first administrative review.  It is a distinct measu re dealing with different entries during a different 
period of time with different results.  The final re sults of one administrative review do not apply to 
entries of merchandise for any other review.  The fact that the second administrative review is a 
distinct measure is confirmed by Article 17 of the Antidumping Agreement which requires that there 
have been "final action" to "levy antidumping duties".  The "final action" under the 
second administrative review is distinct from the "final  action" under the first administrative review.   
 10. In addition, with respect to Brazil's claims concerning the "continued use of the US 'zeroing 
procedures'", this is not a "measure" that even exis ts.  Brazil purports to include in this "measure" an 
indefinite number of future proceedings, none of them  in existence.  Any findings with respect to any 
such hypothetical future measure would be based onl y on speculation.  It is not possible to have 
consulted on a measure not in existence or to "ide ntify" a "specific" non-existent measure, and any 
findings based only on speculation c ould not comport with an "objective assessment" of the matter.   
 11. Moreover, the "essence" of a non-existent measure  is nothing but speculation.  In that vein, it 
should be noted that, apart from the US – Zeroing II dispute, the cases cited by Brazil in support of its 
broad approach to a panel's jurisdiction address situ ations in which the challenged "future" measures 
were in fact in existence, such th at there was a measure that the panel could evaluate.  This is not the 
case here with respect to the "continued use of th e US 'zeroing procedures'".  Rather, Brazil requests 
the Panel to speculate as to whet her any such measure will come into  existence, what that measure 
will consist of, and find inconsiste nt an indefinite number of measure s that do not exist.  It is not  WT/DS382/R 
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 known whether any of these hypothetical future measures will even reflect "use of the US 'zeroing 
procedures'".  For example, there may be no negativ e value comparisons that could be "zeroed", such 
that neither the margin of dumping nor the du ties assessed will reflect "zeroing".  (Indeed, as 
discussed in our first written submission, the facts Br azil itself presents bear this out.)  The Panel of 
course is unable to analyze any such future measure si nce there are no details or specifics to analyze.   
 
12. Brazil's assertion that such an indeterminat e measure could be within a panel's terms of 
reference is based on the reasoning of the Appellate Body in the US – Zeroing II (EC)  dispute.  As 
just explained, however, we fail to see how a refe rence to the "continued use of the US 'zeroing 
procedures' in successive anti-dumping proceedings " can in any way meet the requirement of 
Article 6.2 of the DSU to identify the specific measu res at issue.  Whether something is a "measure" 
goes to the very question of what a Member may challenge under the DSU, and therefore what may 
fall within a panel's terms of reference.  If somethi ng is not a "measure", then it is not, and cannot be, 
a measure "specifically" identified within the meaning of Article 6.2.  Brazil may wish to be free of 
needing to provide evidence as to the existence, cont ent, and relationship of any future measure to the 
WTO agreements, but that is not consistent  with the WTO dispute settlement system. 
 13. Furthermore, Article 17.4 of the Antidumping Agreement provides that, if consultations have 
failed, and if "final action" has been taken by the administering authorities of the importing Member to levy definitive antidumping duties or to accep t price undertakings, a Member may refer "the 
matter" to dispute settlement.  At the time of Brazil's consultations request, neither the second 
administrative review nor the alleged "continued u se of the US 'zeroing procedures'" involved a final 
action to levy definitive antidumping duties or accept price undertakings.  (While provisional measures may also be challenged in certain circum stances, Brazil has made no allegations in this 
regard.)  Including the second administrative review a nd "continued use" within the terms of reference 
would ignore the fact that, for any given importation, the imposition of antidumping duties is 
grounded in a specific final action.   
 14. The United States first requests a preliminary ruling that the "Second Administrative Review", which appeared in Brazil's panel request but  was not the subject of consultations, is outside 
the Panel's terms of reference.  Under Article 7.1 of the DSU, the measures within a panel's terms of reference are determined by the complaining part y's request for the establishment of a panel.  
Article 6.2 in turn provides that a panel request mu st "identify the specific measures at issue" in a 
dispute.  Under Article 4.7, however, a Member may not request the establishment of a panel with respect to any measure, but only with respect to  a measure that was subject to consultations.  
Article 4.4 requires that the request for consultatio ns state the reasons for the request, "including 
identification of the measures at issue and an indica tion of the legal basis for the complaint".  As the 
United States explained in its first written submis sion, the Antidumping Agreement contains parallel 
requirements in Articles 17.3 through 17.5.    15. The covered agreements therefore establish a clear progression between the measures that are 
discussed in consultations conducted pursuant to Ar ticle 4.4 of the DSU and the measures identified 
in a request to establish a panel, which, in turn, form  the basis of the panel's terms of reference.  This 
is not a question of form over substance.  U nder the relevant provisions in the DSU and the 
Antidumping Agreement just discussed, a panel's te rms of reference cannot include measures that 
were not the subject of a request for consultations.    16. Brazil seeks to include the second administrative review in this dispute.  However, the final 
determination in the second administrative review was issued after Brazil's request for consultations, 
and even after those consultations were held.  It  was not, and could not have been, the subject of 
consultations and is therefore outside  this Panel's terms of reference.  Brazil's argument to the contrary 
is based on its assertion that the second administ rative review "has the same essence as" the 
first administrative review.  However, as explaine d earlier, the second administrative review is not WT/DS382/R 
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 essentially the same measure as the first administrative review, and is not within the scope of this 
dispute.    17. The United States also asks that the Panel find that Brazil's reference in its panel request to 
the "continued use of the US 'zeroing procedur es' in successive anti-dumping proceedings" does not 
meet the specificity requirement of DSU Article 6.2.  As noted above, by including this purported 
"measure" in its panel request, Brazil is merely sp eculating as to what might happen in the future, and 
speculation as to what might happen is not identification of a specific measure.   
 
18. In addition, Article 3.3 of the DSU contemplat es the "prompt settlement of situations where a 
Member considers that any benefits accruing to it di rectly or indirectly under the covered agreements 
are being impaired " by another Member's measures.  While it appears that Brazil is challenging an 
indeterminate number of future measures by identif ying "the continued use" in its panel request, a 
non-existent measure cannot be impairing any such benefits and cannot fall within the scope of a 
dispute.  
 
19. Finally, we note that Brazil makes repeated  references to what it suggests is the desired 
remedy in this dispute as justifying the expansion of  the scope of this proceeding.  First, there have 
been no recommendations and rulings yet in this di spute.  Moreover, a Member's desired remedy 
(whatever that may be) does not dictate a panel' s jurisdiction and does not provide a basis for 
departing from the requirements of the DSU.  In de termining its terms of re ference, a panel does not 
start from what the complaining Member describes as the appropriate relief and work backwards.  
Rather, the Panel should be guided by the require ments of the DSU, including the requirement to 
identify the specific measures at issue.    
The Claimed Obligation to Provide Offsets  
 
20. We now turn to comments related to Br azil's argument that the Antidumping Agreement 
contains an obligation to provide offsets for in stances of non-dumping in the context of assessment 
proceedings.  Brazil argues that the Antidumping Agreement imposes on Members an obligation to 
provide an offset to dumping in all types of antidumping proceedings, including assessment proceedings.  The key issue here is whether the te xt of the Antidumping Agreement actually contains 
such an obligation that applies in assessment proceedi ngs.  The starting point must be what the text of 
the Agreement actually says.  It is fundamental th at a treaty interpreter must not impute into an 
agreement words and obligations that are not contained in the text.  But, in this dispute, Brazil asks 
this Panel to read an obligation into the Antidum ping Agreement, notwithstanding the fact that there 
is no textual basis for the obligation that Brazil proposes.   
 
21. In particular, Brazil seeks to infer an ob ligation to reduce antidumping duties to account for 
instances of non-dumping.  This treats non-dumped imports as though they were a remedy for 
dumped imports.  Brazil does so despite the fact that  there is no textual basis for such an obligation 
and that there is a permissible interpretation of the Antidumping Agreement that does not require such 
offsets.   
 
22. In the disputes that have addressed this issue,  the only textual basis panels have identified for 
an obligation to provide offsets has been the "all comparable export transactions" language in the text 
of Article 2.4.2 of the Antidumping Agreement.  This is entirely consistent with the approach 
articulated by the Appellate Body in US – Softwood Lumber Dumping .  The phrase "all comparable 
export transactions" in Article 2.4.2 applies onl y to antidumping investigations and only when 
authorities use average-to-average comparisons pursuan t to Article 2.4.2.  Pa nels have consistently 
characterized as persuasive the argument that th e obligation to provide offsets applies only as a 
consequence of the text-based obligation to include all comparable export transactions when making 
weighted-average to weighted-avera ge comparisons in an investigation.  With respect to the argument  WT/DS382/R 
 Page C-11 
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 that there is an obligation to provide offsets outsi de this context, the pane ls addressing this question 
have consistently reasoned that ther e is no textual basis for such an obligation.  The analysis offered 
by the prior panels is persuasive and correct.    23. Article 2.4.2 provides for three different t ypes of comparisons:  two symmetrical comparison 
types, average-to-average and transaction-to-tran saction;  and a third asymmetrical comparison type, 
average-to-transaction, which may be used under certa in conditions.  With respect to the average-to-
average comparisons, the phrase "all comparable expor t transactions", as interpreted by the Appellate 
Body in US – Softwood Lumber Dumping , addresses whether the relevant comparison may be made at 
the level of averaging groups (or "models").  Unde r this reading, the word "all" in "all comparable 
export transactions" refers to all transactions acros s all models of the product under investigation.  
This is the textual basis for the conclusion that  margins of dumping based on average-to-average 
comparisons must relate to the "product as a w hole", rather than individual averaging group 
comparisons.  This phrase, "all comparable export transactions", however, applies only to the use of 
average-to-average comparisons in an investigation.   It does not apply to the use of transaction-to-
transaction or average-to-transaction comparisons .  Such comparisons will necessarily result in 
multiple comparisons where there are numerous transactions because each export transaction will 
result in its own separate comparison.  The text of Article 2.4.2 does not address whether or how a 
Member should aggregate the results of such multip le comparisons into a single overall margin of 
dumping.  
24. A general prohibition of zeroi ng that applies in all proceedings and with respect to all 
comparison types would negate and contradict the interpretation of the phrase "all comparable export 
transactions" that was the basis of the obligation to  provide offsets in the context of average-to-
average comparisons, and for the conclusion that the margin of dumping must be calculated for "the 
product as a whole".   
 
25. Brazil argues that margins of dumping calculate d in assessment proceedings must relate to the 
"product as a whole", and cannot be calculated for individual transactions.  However, "product as a 
whole" is not a term found in the Antidumping Agre ement, nor does it have any defined meaning.  
Furthermore, to the extent the concept of "produc t as a whole" has any relevance to the Antidumping 
Agreement, it is only as a shorthand for the operation of the phrase "all comparable export 
transactions" in the context of average-to-average comparisons in investigations.  Brazil's argument 
relies entirely on the concept of "product as a whole"  being applied in a manner detached from that 
underlying textual basis.    26. Brazil offers no textual analysis  to support its claim that offsets are required by Article 2.1 of 
the Antidumping Agreement and Article VI of th e GATT 1994.  This is because the text of these 
provisions defines and describes dumping as occurring in the course of individual commercial transactions.  Prices are generally set in individua l transactions, and products are "introduced into the 
commerce" of the importing country in individual transactions.  In other words, dumping – as defined under these provisions – may occur in a single transac tion.  This is entirely consistent with the 
exporter-specific understanding of dum ping because individual transactions are also exporter-specific.  
There is nothing in either the GATT 1994 or the Antidumping Agreement that suggests that dumping 
that occurs with respect to one transaction is mitig ated by the occurrence of another transaction made 
at a non-dumped price.  To the extent that some transactions introduce merchandise into the market of 
an importing country at a price a bove normal value, this benefits  the seller, but does not undo the 
effects on the domestic industry of other (dumped)  transactions made at less than normal value. 
 
27. Nevertheless, Brazil asserts th at dumping and margins of dumping  "are defined in relation to 
a product under investigation as a whole, encompassi ng all of the export transactions of the product 
pertaining to an investigated exporter, and they ca nnot be found to exist only for a type, model, or 
category of that product".  The Appellate Body re ports relied upon by Brazil for this proposition are WT/DS382/R 
Page C-12 
BCI deleted, as indicated [[XX]] 
 
 unpersuasive because they cannot alter the simple fact  that the relevant text of these provisions, the 
relevant context for interpreting the meaning of these terms, and the well-established prior 
understanding of these concepts all confirm that dumping and margins of dumping do have a meaning 
in relation to individual transactions.  Our written submission sets forth the textual, contextual, and 
other evidence that the concepts of dumping and ma rgins of dumping, as defined in the Antidumping 
Agreement and GATT 1994, are applicable to indivi dual transactions.  That evidence establishes that 
the terms dumping and margins of dumping as used in Article 2.1 of the Antidumping Agreement and 
Article VI of the GATT 1994 do not support the exis tence of an obligation to provide offsets for 
instances of non-dumping in assessment proceedings.  
28. Brazil has not demonstrated any inconsis tency with Article 9.3 of the Antidumping 
Agreement or Article VI:2 of the GATT.  Article 9.3 requires that the amount of the antidumping duty 
assessed shall not exceed the margin of dumping.  The term "margin of dumping" may be applied to individual transactions.  Individual transactions ar e both the means by which less than fair value 
prices are determined and by which the product is introduced into commerce.  Antidumping duties are 
similarly assessed on individual entries resulting from t hose individual transactions.  The obligation in 
Article 9.3 to assess no more in antidumping duties th an the margin of dumping, just like the term 
"margin of dumping" itself, may be applied at the level of individual transactions.   
 29. In this same vein, Brazil atte mpts to tie an obligation to provide offsets to a determination of 
injury, arguing that "injury cannot be found to exist in relation to an individual transaction, but only 
for the product as a whole ".  However, Brazil's argument actuall y reinforces the interpretation that 
any such obligation would be limited to the cont ext of investigations because, in contrast to 
investigations, there is no obligation to address the existence of injury in Article 9.3 duty assessment 
proceedings.    
30. In addition, Brazil's interpre tation of Article 9.3, requiring that antidumping duty liability be 
determined for the product "as a whole", cannot be reconciled with the specific provision in Article 9 
that recognizes the existence of prospective nor mal value systems of assessment.  Under such 
systems, the amount of liability for payment of antidumping duties is determined at the time of importation on the basis of a comparison between the price of the individual export transaction and the prospective normal value.  If the margin of dum ping must relate exclusively to the "product as a 
whole", as Brazil argues, the administration of such an assessment system is an impossibility.  This is 
because, among other reasons, future transactions that  would need to be taken into account in such a 
margin of dumping would not yet have occurred.  An obligation to account for other imports in 
assessing antidumping duties on a particular entry is c ontrary to the very concept of a prospective 
normal value system and, if accepted, would eff ectively render prospective normal value systems 
WTO-inconsistent unless they were converted to  a retrospective system by adopting periodic 
retrospective assessment reviews.  31. Antidumping duties are applied at the level of individual entries for which importers incur the liability.  An importer's cost of acquiring the entered merchandise is the sum of the dumped price and the antidumping duty.  Accordingly, the importer has an incentive to raise resale prices to cover the 
full normal value of the merchandise, thereby providing an effective remedy for the dumping.  The 
antidumping duty will be insufficient to have this effect if, instead, the amount of the duty must be reduced to account for the amount by which some ot her transaction was sold at above normal value, 
possibly involving an entirely different importer.  The importer would remain in a position to profitably resell the exporter's dumped product at a pri ce that continues to be less than normal value.  
If Brazil's reading of "margin of dumping" is ac cepted as the sole permissible interpretation of 
Article 9.3, the remedy provided under the Antidumping Agreement and the GATT 1994 will be 
prevented from fully addressing dumping.     WT/DS382/R 
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 31. In addition, as the panel in US – Softwood Lumber Dumping (21.5) observed, and as 
described in detail in our written submission, providing offsets creates perverse incentives and 
"absurd results" that undermine the remedial effect of antidumping duties.    32. Any interpretation that gives rise to a gene ral prohibition of zeroing also renders the second 
sentence of Article 2.4.2 inutile.  This is b ecause the exceptional methodology provided for in 
Article 2.4.2 mathematically must yield the same result as an average-to-average comparison if, in 
both cases, non-dumped comparisons are required to offset dumped comparisons.    
Brazil has not satisfied its Burden of Proving th at "Zeroing" was applied to, or had an Impact on, 
the challenged Margins of Dumping 
 
34. As detailed in our first submissi on, Brazil has also failed to make a prima facie  case as to the 
facts for certain of its claims.  Brazil has challe nged the calculation of dumping margins determined 
for two respondents, Fischer and Cutrale, in two admi nistrative reviews.  However, aside from the fact 
that the second administrative review is outside the Panel's terms of reference, in each of the reviews, 
the margin was zero or de minimis for one of these two respondents.  Consequently, Brazil cannot 
establish that the margin should have been any lowe r to be consistent with  the covered agreements. 
 35. Also, with respect to the assessment for Fischer  in the first administrative review, the exhibits 
Brazil submitted in support of its claim with its first written submission are not the actual computer 
program logs created by Commerce.  
 
The "Continued Use of the US 'Zeroing Procedures'"  
 
36. Brazil's claim with respect to the "continued use of the US 'zeroing procedures'" should also 
be rejected.  Aside from the fact that this alleged "measure" is outside the Panel's terms of reference, 
as explained in our first written submission, even we re there an obligation to provide offsets outside 
the context of average-to-average comparisons in in vestigations, there is no basis for concluding that 
such "continued use" constitutes "ongoing conduct" that violates Article VI:2 of the GATT 1994 or 
Articles 2.4.2 and 9.3 of the Antidumping Agreement.    
37. First, Brazil's own evidence refutes its claim that "zeroing" had any impact on the dumping 
margins in the original investigati on.  As such, even applying Brazil' s interpretations of the relevant 
provisions of the covered agreem ents, there is no basis for findi ng the margins in the original 
investigation were inconsistent with any provision of the covered agreements.   
 
38. The evidence with respect to each of th e first and second administrative reviews also 
undermines Brazil's claims regarding the alleged "continued use" of "zeroing."  One of the 
two companies reviewed had a de minimis  margin in the first administrative review, which Commerce 
essentially treats as zero.  One of the two companies reviewed had a zero margin in the second administrative review.    
39. Thus, each of the proceedings concluded to date in the orange  juice case – the investigation, 
the first administrative review, and the second admini strative review – include margins that were not 
impacted (or "inflated") by "zeroing".  As explained in our submission, this does not reflect a sequential string of determinations  applying "zeroing", contrary to Brazil's assertion.  It does not 
provide a basis for in turn projecting that the Unite d States will act inconsistently in the future with 
respect to measures that may ne ver come into existence.   
 40. As noted in our first written submission, our experience in the US – Zeroing II (EC)  dispute 
demonstrates further that there is  no basis to assume that "zeroing" will be used in any antidumping 
proceeding.  In that dispute, the Dispute Settleme nt Body adopted recommendations and rulings with WT/DS382/R 
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BCI deleted, as indicated [[XX]] 
 
 respect to the use of "zeroing" in four origin al investigations.  Commerce then issued new 
determinations with respect to those four inves tigations.  In doing so, however, Commerce discovered 
that in three of the four investigations there were  no offsets to provide (that is, there was no "zeroing") 
because all of the comparisons demonstrated dumpi ng, or the rates determined in the original 
determinations were base d upon facts available rates that did not involve "zeroing".  As such, the 
dumping margins did not change in Commerce's new determinations.  Accordingly, among the many 
problems under Brazil's approach would be the fact that any recommendation with respect to a future 
measure would need to be conditioned on the use of zeroing, but there would be no mechanism to determine if that condition were fu lfilled – that is, if zeroing were in fact used in any individual 
proceeding. 
 
41. As noted in our first written submission, we have serious concerns about the approach taken 
by the Appellate Body in the US – Zeroing II (EC) dispute.  However, because Brazil relies heavily 
upon the Appellate Body's reasoning in that dispute, it  bears repeating that, as a factual matter, there is 
no basis for such an approach in this case.  The facts of this case ar e not "virtually identical" to the 
cases in that dispute found to be WTO-inconsistent.  They are instead more si milar to the cases where 
the evidence was considered insuffici ent to support such a finding.   
 42. In summary, even were the alleged "continued use of the US 'zeroing procedures'" within the 
Panel's terms of reference, Brazil has failed to establish that any such "ongoing conduct" exists or is 
likely to continue into the future .  Brazil has not and cannot demons trate a basis for concluding that 
any measures that may come to be with respect to imports of orange juice will involve the application 
of "zeroing" and be inconsistent with the covered agreements.   
    WT/DS382/R 
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BCI deleted, as indicated [[XX]] 
 
 ANNEX C-3 
 
 
CLOSING STATEMENT OF  BRAZIL AT THE 
FIRST MEETING OF THE PANEL 
 
 
1. Mr. Chairman, Members of the Panel, Brazil th anks you for the opportunity to appear before 
you and answer your questions.    2. During the hearing yesterday, we heard oppos ing interpretations of the foundational terms 
"dumping" and "margin of dumping" in the Anti-Dumping Agreement  and Article VI of the 
GATT 1994.  According to Brazil, these concepts are defined by reference to the product as a whole.  
According to the United States, they are sufficiently "f lexible" that they may be defined in relation to:  
the "product" as a whole;  individual transacti on;  or, even a combination of these different 
conceptions.    3. Brazil takes the view that the meaning given to  these terms must be based on the text, context, 
object and purpose of the Anti-Dumping Agreement  and Articles VI:1 and VI:2 of the GATT 1994.  
The treaty interpreter must strive for an interpre tation that "is harmonious and coherent and fits 
comfortably in the treaty as a whole".
1  Brazil also notes that the terms at issue have been interpreted 
numerous times in previous disputes concerning zeroi ng.  The Appellate Body has now clarified the 
interpretation of these terms beyond any reasonable doubt .  An important part of ensuring "security 
and predictability"2 through the dispute settlement system is that panels must, in making an objective 
assessment under Article 11 of the DSU, follow the Appellate Body's rulings when the same legal 
questions are presented.  Brazil, therefore, urges the Panel to adopt the interpretation of "dumping" 
and "margin of dumping" that the Appellate Body has given.  4. Yesterday, we also had a discussion on the relevance of the impact of zeroing to Brazil's 
claims.  Brazil argues that the use of zeroing is prohibited, irrespective of its particular impact.  In 
previous disputes, the use and maintenance of zer oing has been found to be WTO-inconsistent in 
original investigations and administrative re views, irrespective of the impact of zeroing.
3 
 5. The Panel has also enquired about the impact , "in the real world", of zeroing in the present 
case.  Brazil therefore briefly summarizes the impact of zeroing under the Orange Juice Order. 
 6. First , the use of zeroing under this Order has resu lted in the determination of positive margins 
in the administrative reviews completed so far under the Orange Juice Order, where there would have 
been negative margins had zeroing not been used.  
7. Second , the use of zeroing under the Orange Juice Order has resulted in the imposition of 
duties, where no duties would have otherwise been im posed.  Cutrale and Fischer have so far incurred 
final anti-dumping duty liabilities of [[XX]] million US  dollars, whereas they would have owed zero 
duties had the United States not used zeroing.  Th us, "in the real world", zeroing has enabled the 
imposition of significant amounts of duties on Brazil's exports.   
                                                     
 
1 Appellate Body Report, US – Continued Zeroing , para. 268.   
2 Article 3.2 of the DSU. 
3 See, e.g.,  Panel Report, US – Zeroing (Japan) (21.5) , para. 7.162 and 8.1(b);  Appellate Body Report, 
US – Zeroing (Japan) , paras. 190(b) and (c) ; Appellate Body Report, US – Continued Zeroing , para. 395(a)(v), 
second indent.   WT/DS382/R 
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BCI deleted, as indicated [[XX]] 
 
 8. Third , under US law, the USDOC routinely terminates an anti-dumping order for any exporter 
that has zero margins in three consecutive administrative reviews.4  Under the Orange Juice order, 
Cutrale and Fischer would both have had consecutiv e zero margins in the first two administrative 
reviews, with the final results of the third due in August 2010.  Had the United States not used zeroing, the Brazilian exporters could now expect termination of the Orde r.  Thus, "in the real world", 
zeroing perpetuates the duration of the order.  
 9. To answer the Panel's enquiry, the use of zeroing has a significant "real world" impact on the Brazilian exporters covered by the Order.  
10. As regards Brazil's continued use claim, the United States goes not much further than to say 
that this "ongoing conduct" is based on "speculation" .  Brazil need only remind the Panel of the latest 
Issues and Decision Memorandum relative to the Or ange Juice Order at issue, where the USDOC 
restates its position of maintaining the zeroing methodology.
5  That is indeed a new meaning to the 
word "speculation", especially in li ght of the facts in this dispute,  where the "density" of facts is 
beyond doubt, not fragmented, and where zeroing is a bout to be re-used in the Third Administrative 
Review.  11. Finally, the continued used claim,  already accepted by the Appellate Body
6, allows Members 
to avoid being victims of the "moving target" and "h it and run" scenarios typical of measures that are 
sequential over time. 
 
12. Mr. Chairman, Members of the Panel, staff of the Secretariat, Brazil once again thanks you for this opportunity and for your hard work in this dispute.    
 
                                                     
 
4 19 C.F.R. § 351.222(b), available at http://frwebgate2.access.gpo.gov/cgi-
bin/PDFgate.cgi?WAISdocID=68qIUf/103/2/0&WAISaction=retrieve .   
5 Exhibit BRA-43, pp. 4 – 6, "Department's Position". 
6 See Appellate Body Report, US – Continued Zeroing , para. 185.  WT/DS382/R 
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 ANNEX C-4 
 
 
CLOSING STATEMENT OF TH E UNITED STATES AT THE 
FIRST MEETING OF THE PANEL 
 
 
 
Mr. Chairman, members of the Panel:  1. On behalf of the United States delegation,  I would once again like to thank you and the 
members of the Secretariat for your work on this dispute.  We appreciated the opportunity to provide you with preliminary thoughts on your questions a nd look forward to providing you with our written 
responses and our rebuttal submission.   
 2. As an initial matter, Brazil asserts its claims  are not dependent upon whether zeroing had an 
effect on the calculations.  We disagree.  It is not sufficient to simply point to the presence of a 
zeroing line in a computer code.  The zeroing line of  programming language is itself conditional.  It 
only operates when the requisite condition is satisfied .  With respect to the investigation, Brazil has 
conceded that no comparison results were "zeroe d".  Thus, these dumping margins were calculated 
without using zeroing.  While Brazil stated yesterday that it is only relying on the investigation as evidence as the "continued use" of zeroing, the in vestigation provides no such evidence.  Because 
zeroing was not used in the calculation of these ma rgins, Brazil's claim that there is any such 
"continued use" is not supported by the evidence.  
 
3. With respect to the second administrative re view determination, Brazil's position is equally 
incoherent.  Brazil fails to explain how no anti dumping duty for Fischer in the second administrative 
review determination is excessive under Article 9. 3, or otherwise inconsistent with any other 
provision of the covered agreements.  Like wise, Brazil did not explain how Commerce's 
determination to assess no duties on Fischer's entr ies during the period and to estimate that no 
antidumping duty would be due on Fischer's en tries after the second administrative review 
determination could be inconsistent.  
 4. Turning to the issues of interpretation, Brazil argues that the term "margin of dumping" must 
always relate to the "product as a whole" regardless of the context in which the term is used.  At the 
same time, Brazil also asserts, "The fact that the same word appears in two (or more) proximate treaty 
provisions does not mean that the word carries th e same meaning in each provision ... a single word 
used in two provisions may have different meanings  in each provision, depe nding upon the context".  
The United States agrees that context matters.  As we  have explained, the precise meaning of the term 
"margin of dumping" may be informed by the cont ext in which the term is used.  The terms 
"dumping" and "margin of dumping" are defined in relation to the term "product".  The ordinary 
meaning of "product" may refer to a single tran saction, or multiple transactions, or both.  For 
example, in Article II of the GATT 1994, the term "product" is used, including with respect to the 
imposition of an antidumping duty on a "product" "at th e time of importation".  Clearly, Article II is 
using "product" in the sense of an individual transaction and not in the sense of "product as a whole".  
No one has argued that tariffs on a product can excee d the bound rate for some transactions as long as 
they are below the bound rate in enough other transac tions such that the av erage does not exceed the 
bound rate.  5. In particular, contrary to Brazil's assertion at paragraph 20 of its opening statement, the 
United States agrees that in the context of Artic le 5.8 the margin of dumping may refer to an 
aggregation of multiple transactions.  Article 6.10 concerns the question of what information should WT/DS382/R 
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 be relied upon in calculating margins of dumping for exporters or producers.  It ensures that each 
exporter or producer is assigned an antidumping duty based on its own pricing behavior, and not that 
of other exporters or producers, unless it is imprac ticable.  In this context, this provision does not 
address whether the "margin of dumping" only has meaning in relation to the product as a whole (a term nowhere found in the text of the Antidumping Agreement) or individual transactions.  With 
respect to Articles 6.10, 8.1, 9.1, 9.3, and 9.5, Brazil's interpretation relies solely on the use of the 
term "margin of dumping" in the singular as the b asis for its interpretation.  We, however, would 
agree with Brazil's observation in pa ragraph 13 of its opening statement th at "the use of the singular is 
not decisive ...".    
6. As detailed in our first written submission, Brazil's interpretation cannot be reconciled with 
the ordinary meaning of the terms with whic h dumping and margins of dumping are defined.  
Dumping is defined as occurring in the course of ordinary commercial transactions, where products 
are "introduced into the commerce" of the importing country transaction by transaction, not "as a whole".  And, the prices of products are set in individual transactions, not "as a whole".  Brazil's 
interpretation also cannot be reconciled with the A ppellate Body's interpretation of the phrase "all 
comparable export transactions" in US – Softwood Lumber Dumping .  Nor can it be reconciled with 
the exceptional provision in the second sentence of Article  2.4.2;  or with the effective functioning of 
antidumping duties as a remedy for dumping.  7. In addition, Brazil's proposed obligation is c ontrary to the very concept of a prospective 
normal value system provided for in Article 9.  As we explained yesterday, under such a system, the 
amount of liability for payment of antidumping duties is determined at the time of importation on the 
basis of a comparison between the price of the individual export transaction and the prospective normal value.  The administration of such an ass essment system cannot function as intended if the 
margin of dumping must relate exclusively to an aggregation of all transactions constituting the 
"product as a whole".  As became apparent from Br azil's answers to the Panel's questions, Brazil's 
proffered understanding of how the prospective nor mal value systems should function is radically 
different from how Members operate these systems.    8. Under Brazil's interpretation, a prospective normal value assessment system necessarily requires retrospective reviews on the basis of the aggregation of transactions because the margin of 
dumping for the "product as a whole" can never be known at the time of importation.  Nothing in the 
text of Article 9, however, suggests that the re fund proceeding described therein necessarily must 
relate to an aggregated examination of all transac tions.  Nor does Brazil attempt to explain why, if 
refund proceedings under Article 9. 3 require aggregation of transactions for the "product as a whole", 
Article 9.3 fails to provide for any time frame ove r which the transactions would be aggregated.   
 
9. In contrast, the United States has offered a ha rmonious and coherent in terpretation that gives 
meaning to all provisions of the Antidumping Ag reement and the GATT 1994.  This interpretation 
has been endorsed by prior panels.  Brazil would ha ve you believe that none of these panels adopted 
an interpretation that is coherent, and that none of these panels had the interest of the dispute 
settlement system or the trading system at heart.  But this interpretation, in contrast to Brazil's 
interpretation, is fully consistent  with the text, context, and object and purpose of the covered 
agreements.   10. In its opening statement, Brazil categorically  asserts that "the same legal questions must be 
resolved in the same way in subsequent disput es".  On the contrary, the authority to adopt 
interpretations of the covered agreements rests ex clusively with the Ministerial Conference and the 
General Council.
1  Therefore, while the dispute settlement system serves to resolve a particular 
                                                      
1 Article IX:2 of the Marrakesh Agreement Establishing the World Trade Organization .  See also, 
United States' First Written Submission, n. 26.    WT/DS382/R 
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BCI deleted, as indicated [[XX]] 
 
 dispute, and to clarify agreement provisions in  the context of doing so, neither panels nor the 
Appellate Body can adopt authoritative interpreta tions that are binding with respect to another 
dispute.  11. Brazil would have this Panel me rely follow Appellate Body reports  without engaging in its 
own analysis.  We disagree.  To be clear, the Un ited States is not asking the Panel blindly to follow 
the numerous panel reports that ha ve found a general requirement to provide offsets does not exist in 
the Antidumping Agreement.  Nor have we aske d you to ignore Appellate Body reports finding 
zeroing to be WTO-inconsistent in certain circumstances.    
12. What we have asked you to do, and are conf ident you will do, is to fulfill your function to 
make an objective assessment of the matter before you.  As part of that, we have asked you to 
consider whether previous panel reports on this issue are persuasive;  we believe they are.  We have 
also asked you to consider whether previous Appella te Body reports on this issue are persuasive;  we 
have explained they are not.  Of course, the Pa nel must undertake its own consideration of these 
reports and determine their relevance to the issues he re and their persuasiveness, as previous panels 
confronted with claims against "zeroing" have done.    13. Brazil would instead have the Panel abdi cate its responsibility of making an objective 
assessment in the interest of "security and predicta bility".  Security and predictability are provided by 
a dispute settlement system that does not add to or  diminish the rights and obligations to which the 
Members agreed.  This requires the proper applicati on of customary rules of interpretation of public 
international law to the provisions of the covered ag reements.  Any obligation to provide offsets must 
be found in the text of the cove red agreements.  There is no textua l basis for a general prohibition of 
zeroing.  The only textual basis for an obligation to  provide offsets arises in the limited context of 
average-to-average comparisons in investigations.  
 
14. Brazil's proposed obligation to reduce anti dumping duty assessments for negative comparison 
results treats non-dumped imports  as a remedy for dumping that replace the application of 
antidumping duties.  However, the application of an tidumping duties is the remedy provided for in the 
covered agreements.  The prior panels addressing this issue have consistently recognized the 
deficiencies inherent in Brazil's proposed inte rpretation (and in the A ppellate Body reports upon 
which Brazil relies).  The panels have found that the relevant text, the relevant context, and the well-
established prior understanding of the terms "dumpi ng" and "margin of dumping" demonstrate that 
these concepts are not devoid of meaning except in relation to the product as a whole.   15. Mr. Chairman, Members of the Panel, we a ppreciate this opportunity to present these closing 
comments and look forward to continuing  to work with you on these issues. 
   
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