WT/DS382/R 
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ANNEX F 
 
 
EXECUTIVE SUMMARIES OF THE PA RTIES' STATEMENTS AT THE 
SECOND SUBSTANTIVE ME ETING OF THE PANEL 
 
 
Contents Page 
Annex F-1 Executive Summary of the Oral Opening Statement of Brazil F-2 
Annex F-2 Executive Summary of the Oral Opening Statement of 
the United States F-9 
 WT/DS382/R 
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ANNEX F-1  
 
 
EXECUTIVE SUMMARY OF THE ORAL OPENING 
STATEMENT OF BRAZIL 
 
 I. INTRODUCTION 
 
1. Zeroing has now been condemned in eight dispute settlement cases.  Unfortunately, the 
United States continues to resist the rulings in these cases, and repeats yet again arguments that have 
already been rejected by the Appellate Body.  Br azil is therefore compelled to address again a large 
number of interpretive points that should, by now, be accepted by all WTO Members.
1   
 
II. DEFINITIONS OF THE CONCEPTS OF DUMPING AND MARGIN OF DUMPING 
 
A. D UMPING IS DEFINED IN RELATION TO THE PRODUCT AS A WHOLE  
 
2. Contrary to the United States' assertion, Brazil has explained in great detail2 that the text of 
Article 2 of the Anti-Dumping Agreement  and Articles VI:1 and VI:2 of the General Agreement on 
Tariffs and Trade 1994  ("GATT 1994") shows that "dumping" and "margin of dumping" are defined 
in relation to the "product" as a whole, and not in relation to individual export transactions.  Dumping, 
therefore, involves an "exporter's pricing behavior as reflected in all of its transactions over a period 
of time".3  Such dumping may cause injury to the domes tic industry – not on a transaction-specific 
basis, but through the exporter's pricing behavior ov er time.  Brazil has shown that its interpretation of 
the terms "dumping" and "margin of dumping" is confirmed by the context in Articles 2, 3, 5.8, 6.10, 
8.1, 9.1, 9.3, and 9.5 of the Anti-Dumping Agreement .   
 
3. Given the interconnectedness of all aspect s of anti-dumping proceedings, with anti-dumping 
duties justified only "as long as and to the extent  necessary to counteract dumping which is causing 
injury"4, the Appellate Body's conclusion that the cr ucial notion of "dumping" should be defined 
uniformly throughout the Agreement  – as Article 2.1 of the Anti-Dumping Agreement explicitly 
provides – is inescapable. 
 
4. The United States disregards the very lucid,  text-based, reasoning of the Appellate Body, and 
replaces it with an à la carte  interpretation.5   
 B. T
HE UNITED STATES ' ARGUMENTS ARE CONTRARY TO THE BASIC PRINCIPLES CONCERNING 
THE DETERMINATION OF DUMPING  
 
5. The US argument that "dumping" and "margi n of dumping" have different meanings in 
different proceedings, or even within the sa me type of proceedings, is unavailing.   
 6. The different proceedings at issue all concern a determination of the margin – or magnitude – 
of dumping, because anti-dumping duties involve a justified departure from Members' bound tariffs 
only so long as and to the extent  necessary to counteract "dumping".  The different procedural steps at 
                                                     
 
1 See Appellate Body Report, US – Continued Zeroing , para. 312. 
2 See Brazil's First Opening Statement, paras. 12 – 37;  Brazil's FWS, paras. 49 – 61.  
3 Appellate Body Report, US – Stainless Steel (Mexico) , para. 98. 
4 Anti-Dumping Agreement , Article 11. 
5 See, e.g., Appellate Body Report, US – Zeroing (Japan) , paras. 108 – 115;  and Appellate Body 
Report, US – Stainless Steel (Mexico) , paras. 82 – 99.    WT/DS382/R 
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which such magnitude is measured do not, therefore, ju stify a change in the definition of what is being 
measured, i.e., dumping.  At all stages, whether the existence and extent  of the right to counter 
dumping is being determined in an or iginal investigation;  whether the extent  of that right is being 
determined in an administrative review; or whether the duration  of that right is being determined in a 
sunset review, a Member's right to take counter measures is determined by reference to the same 
concept of "dumping".  The existence, extent, and duration , of the right must be measured in the same 
way.  The Appellate Body has made this point  in no uncertain terms.6 
 7. The United States also argues that the existe nce of different systems for the assessment of 
duties justifies different interpretations of the con cepts of "dumping" and "margin of dumping".  At its 
core, the US argument is wrong because it confuses duty collection with the determination of the 
margin of dumping .
7  If the US argument were accepted, then a Member's administrative choices on 
how to collect  duties would become the decisive consider ation in how "dumping" is defined for each 
Member.    
8. The United States adds that the multilateral character of the Anti-Dumping Agreement  
actually " undermines " the conclusion that "dumping" and "margin of dumping" have a single 
definition for purposes of the Agreement , because having multiple, open-ended meanings of terms is 
better suited to multilateral agreements, so as to " accommodate" the interpretation and practices of a 
large number of parties.
8  
 
9. The notion that the more parties there are to  an agreement, the more the agreement's terms 
should be interpreted to accommodate all Members' practices, is absurd.  This approach to treaty 
interpretation would unravel multilateral disciplines,  replacing them with unilateralism based on the 
diverse practices of up to 153 Members.    
10. The United States argues that the treaty inte rpreter should give meaning to "constructive 
ambiguity".
9  This confuses a negotiating tactic – i.e., employing language that might seem to lend 
itself to a range of interpretations – with the task  of treaty interpretation.  Just because certain 
negotiators might resort to so-called "constructiv e ambiguity" as a negotiating tactic does not mean 
that the ordinary meaning of the ensuing agreem ent is incapable of being ascertained through the 
customary rules of treaty interpretation.   
 
11. Indeed, this is the very purpose of treaty inte rpretation; namely, whatever the subjective views 
of this or that negotiator, the treaty interprete r must discern the common intent of the contracting 
parties as expressed through the words used.10  Moreover, as Article 3.2 of the DSU sets forth, the 
purpose of dispute settlement is to resolve disput es regarding the existing covered agreements using 
the customary rules of treaty interpretation.  The United States would deny this purpose.  
 12. As already explained, the text, context, and object and purpose of the Agreement  define 
"dumping" uniformly "[f]or the purpose of [the] Agreement".  The text of a treaty evidences the 
common intent and consent of the parties
11, leaving no grounds for arguing that the parties' subjective 
                                                      
6 Appellate Body Report, US – Stainless Steel (Mexico) , para. 96:  "'dumping' and 'margin of dumping' 
have the same meaning throughout the Anti-Dumping Agreement ". 
7 Appellate Body Report, US – Stainless Steel (Mexico) , para. 120;  Appellate Body Report, US – 
Zeroing (Japan) , paras. 162 – 163;  Appellate Body Report, US – Continued Zeroing , paras. 293 – 294. 
8 US SWS, Section III:B and para. 28. 
9 US Answers, para. 34. 
10 See Appellate Body Report, EC – Computer Equipment , para. 84;  and Appellate Body Report, EC – 
Chicken Cuts , para. 239. 
11 See, e.g. , Isabelle van Damme, Treaty Interpretation by the WTO Appellate Body , Oxford University 
Press, 2009, p. 36. WT/DS382/R 
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intent was different from that ascertained through an anal ysis of this text, in light  of its context, and of 
the treaty's object and purpose.  C. T
HE UNITED STATES ' CONTEXTUAL OBJECTIONS LACK MERIT 
 
13. In support of its à la carte  view of the Anti-Dumping Agreement , the United States reiterates 
several contextual arguments that have already b een dismissed by the Appellate Body.  Brazil is 
therefore compelled to address these arguments again,  together with some further objections that the 
United States raises with regard to provisions that Brazil relies upon as context.  
14. Ad Article VI:1 of the GATT 1994
:  The United States argues that Ad Article VI:1 defines a 
particular form of dumping in relation to indivi dual transactions, and therefore proves that dumping 
can be transaction-specific.  However, Ad Article VI:1 does not set out a definition of "dumping".  It 
is Article 2.1 of the Anti-Dumping Agreement  that does so, "[f]or the purpose of [the] Agreement".   
 
15. Article VII:3 of the GATT 1994 :  As already noted, the United States refuses to acknowledge 
that certain provisions on anti-dumping may provid e context for the interpretation of the terms 
"dumping" and "margin of dumping".  At the same ti me, it argues that the term "product" should have 
the same meaning in Article VII:3, on customs valuation, and in the WTO provisions on anti-
dumping.  Yet customs valuation is concerned with the establishment of the customs value of a single 
transaction, with the aim of levying duties on that single transaction.  Anti-dumping, on the other 
hand, is concerned with establishing the marg in of dumping for a product as defined by the 
investigating authority12, as a basis for levying duties on all subsequent entries of that product during 
a particular period.  Thus, the US attempts to assimilate the meaning of "product" from the customs 
valuation context to the anti-dumping context are without basis.   
16. Article 2.2 of the Anti-Dumping Agreement
:  The United States also repeats its argument that 
Article 2.2 supports a transaction-specific interpreta tion of "dumping".  The US argument is without 
merit.  The Appellate Body has clarified that th e conditions in Article 2.2 for the construction of 
normal value may be met on a model-specific basis, and model-specific intermediate comparisons may be made under Article 2.4.2, provided  that the results of all intermediate comparisons are 
aggregated to determine "dumping" on a product-wide b asis to meet the definition in Article 2.1.  It 
does not exempt Members from the obligation to  determine dumping for the product as a whole.
13   
 17. Mathematical equivalence under Article 2.4.2 of the Anti-Dumping Agreement
:  The 
United States argues that the mathematical implicati on of a "general prohibition on zeroing" is that the 
second sentence of Article 2.4.2 "would be reduced to inutility", and therefore, there can be no general 
prohibition on zeroing.14  But an exception such as that set out in the second sentence of Article 2.4.2, 
which is, moreover, inapplicable to the facts at issu e in this dispute, cannot govern the interpretation 
of the general rule regarding the determination of dumping.15  Further, the US argument is premised 
on the US interpretation of the third methodology set  out in the second sentence, whereas "there is 
considerable uncertainty regarding how preci sely the third methodology should be applied".16   
 
18. Article 5.8 of the Anti-Dumping Agreement :  While the United Sates insists that the meaning 
of "dumping" in Article 5.8 is unrelated to the meaning of "dumping" in other provisions of the Anti-
                                                      
12 See, e.g., Appellate Body Report, US – Stainless Steel (Mexico) , para. 115. 
13 Appellate Body Report, US – Softwood Lumber V (21.5) , paras. 82 and 97.  See Brazil's First 
Opening Statement, para. 46; and Brazil’s SWS, para. 5. 
14 US SWS, paras. 74 – 79. 
15 Brazil's First Opening Statement, paras. 52 – 58;  Appellate Body Report, US – Softwood Lumber V 
(21.5) , para. 97;  and Appellate Body Report, US – Continued Zeroing , para. 297.   
16 Appellate Body Report, US – Softwood Lumber V (21.5) , para. 98, cited in  Brazil's Answers, 
para. 58.  WT/DS382/R 
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Dumping Agreement , Brazil welcomes the United States' recognition that "in the context of an 
Article 5 investigation" the term "margin of dumpi ng" "may refer to multiple transactions", by which 
it seems to mean "product as a whole".17   
 19. Article 6.10 of the Anti-Dumping Agreement
:  The United States' reliance on the Spanish 
language version of the text of Article 6.10 in su pport of its contention that Article 6.10 leaves open 
the possibility of establishing dumping in rela tion to individual transactions is based on a 
mistranslation of this lang uage version ("a margin" in lieu of "the margin").18  Brazil's interpretation 
gives meaning to the English, French and Spanish versions of Article 6.10.19 
 
20. The Use of the Singular:   According to the United States, Brazil overstates the significance of 
the term "margin of dumping" in the singular in Articles 6.10, 8.1, 9.1 and 9.3 of the Anti-Dumping 
Agreement .  However, Brazil's interpretation is based on the text and context of the provisions relating 
to "dumping" and "margin of dumping", and on the obj ect and purpose of the treaties in which these 
provisions are set out.20  Brazil relies on the use of the singular as part of the textual choices made by 
negotiators.  The US also refers to US – OCTG from Mexico .  But in that case, the language at issue 
was the phrase " any anti-dumping duty", and the panel, upheld by Appellate Body, relied on the fact 
that "any" was different from "an", in that the former has both singular and plural meanings.21 
 21. Prospective Normal Value ("PNV") Systems
:  The United States repeats that "margin of 
dumping" must have a transaction-specific meaning b ecause, in PNV systems, a margin of dumping is 
established for each import entry of the goods subject  to measures.  As explained by the Appellate 
Body, this argument is unfounded, because the United States is confusing the method for duty collection with the determination of the margin of dumping.
22  The United States argues that Brazil's 
interpretation transforms PNV systems into retrosp ective systems.  This is not correct.  Under PNV 
systems, duties on importation are still collected on the basis of a PNV.  However, to ensure that the 
amount of duty collected is not excessive, the Anti-Dumping Agreement  provides for a refund 
mechanism based on the product as a whole.  The Un ited States also argues that Brazil's view would 
discourage importers from requesting refund review s under Article 9.3.2, because they could, as a 
result, "find out that [their] dumping liability increased".23  This too is wrong.  In a prospective duty 
assessment, based on the text, the outcome  of a refund review is:  (i) a refund;  or (ii) no action.  Even 
if the authority establishes that "the actual marg in of dumping" was higher than that established 
prospectively, it may not, as a result, retrospectiv ely increase the anti-dumping duty liability, because 
the treaty refers to a "refund" procedure.  Fina lly, the United States relies on the practice of one 
Member operating a PNV system, arguing that it gives preference to transaction-specific refunds.  
Yet, the practice of one – or even some – Member s does not establish the proper interpretation of a 
treaty counting 153 parties.24 
 
III. ARTICLE 2.4 OF THE ANTI-DUMPING AGREEMENT  IMPOSES AN OBLIGATION 
TO CONDUCT A FAIR COMPARISON, AND IS NOT LIMITED TO ISSUES OF PRICE COMPARABILITY 
 
22. The United States argues that "Article 2.4 a ddresses only the required adjustments that must 
be made to export price and normal value in orde r to account for 'differences which affect price 
                                                     
 
17 US SWS, para. 34. 
18 US SWS, para. 41. 
19 See Appellate Body Report, US – Stainless Steel (Mexico) , footnote 200. 
20 Brazil's FWS, paras. 49 – 69;  and Brazil' s First Opening Statement, paras. 6 – 34.  
21 Panel Report, US – OCTG from Mexico , para. 7.149;  and Appellate Body Report, US – OCTG from 
Mexico , paras. 146 – 147.  
22 Brazil's First Opening Statement, paras.  47 – 49;  and Brazil's SWS, para. 5. 
23 US SWS, para. 73. 
24 See, e.g. , Appellate Body Report, EC – Chicken Cuts , paras. 258 ff. WT/DS382/R 
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comparability'".25  This arguments overlooks the text of Ar ticle 2.4, as well as the case law setting out 
the proper interpretation of this provision.  23. Article 2.4 consists of a series of distinct sen tences, the first of which states succinctly:  "A 
fair comparison shall be made between the export price and the normal value".  Thus, the panel in 
Egypt – Steel Rebar , for example, held that the "fair compar ison" requirement in Article 2.4 generally 
concerns "the nature of the comparison  of export price and normal value"
26, with the first sentence 
explicitly focused on the "the fairness  of the comparison ".  Only the third, fourth and fifth sentences 
of Article 2.4 address issues relating to "price comparability".27 
 
24. The Appellate Body conf irmed this understanding in US – Zeroing (EC) .  It saw "nothing 
incorrect" in the reasoning of the panel in that case.  The Appellate Body "also agree[d] with the Panel 
that the legal rule set out in the first sentence of  Article 2.4 is expressed in terms of a general and 
abstract standard", noting that "[o]ne implication of th is is that this requirement is also applicable to 
proceedings governed by Article 9.3".28  Contrary to the US arguments, the Appellate Body has 
repeatedly held that the use of zeroing in admi nistrative reviews is inconsistent with the fair 
comparison requirement of Article 2.4.29  
 25. The negotiating history of the Anti-Dumping Agreement  confirms that Article 2.4 imposes an 
independent obligation to conduct a fair comparison  between export price and normal value.  This 
conclusion is compelled by the fact that the drafters of the Anti-Dumping Agreement  explicitly 
modified the text of this provision – as compared to that of the prior Anti-Dumping Codes
30 – to 
separate the "fair comparison" requirement in the first sentence of Article 2.4 into a stand-alone 
obligation.   
IV. THE USE OF ZEROING IS INCONSISTENT WITH ARTICLES 2.4 AND 9.3 OF 
THE ANTI-DUMPING AGREEMENT , AND ARTICLE VI:2 OF THE GATT 1994, 
REGARDLESS OF ITS IMPACT 
 
26. Brazil has demonstrated that the USDOC used zeroing in the First and Second Administrative 
Reviews, and that it continues to use  zeroing under the Orange Juice Order.
31  The United States has 
not contested that it used or continues to use zeroi ng in these instances;  rather, it has argued that the 
use of zeroing had no impact  on one of the exporters in the First Administrative Review ( i.e., Cutrale) 
and on one of the exporters in the Second Administrative Review ( i.e., Fischer).  In all other 
situations, it has no defence.  But even in the two limited situations it identifies, the use of zeroing is 
inconsistent with Articles 2.4 and 9.3,  and Article VI:2 of the GATT 1994, regardless of its impact . 
 
A. A RTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT  AND ARTICLE VI:2  OF THE GATT  1994 
 27. Article 9.3, which parallels Article VI:2, sets forth two requirements:  (i) that a margin of 
dumping be established in accordance with Article 2 of the Anti-Dumping Agreement ;  and (ii) that 
the amount of the anti-dumping duty not exceed the margin so established. 
                                                     
 
25 US SWS, para. 4 and Section II.A. 
26 Panel Report, Egypt – Steel Rebar , paras. 7.333 – 7.335 (emphasis added).  See also  Panel Report, 
Argentina – Poultry , para. 7.265;  and Panel Report, EC – Tube or Pipe Fittings , para. 7.140. 
27 Panel Report, Egypt – Steel Rebar , para. 7.333 (original emphases). 
28 Appellate Body Report, US – Zeroing (EC) , para. 146. 
29 Appellate Body Report, US – Softwood Lumber V (21.5) , para. 138;  Appellate Body Report, US – 
Corrosion-Resistant Steel Sunset Review , para. 135;  and Appellate Body Report, US – Zeroing (Japan) , 
paras. 190(c) and 190(e). 
30 Article 2(f) of the Kennedy Round Anti-Dumpi ng Code and Article 2.6 of the Tokyo Round Anti-
Dumping Code.  
31 See Brazil's FWS, paras. 62 – 97, 98 – 104, and 114 – 117;  and Brazil's First Opening Statement, 
paras. 66 – 69 and 74 – 75.   WT/DS382/R 
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28. With respect to the first requirement, the oblig ation to comply with Article 2 in determining 
margins of dumping is independent of any other aspect of the anti-dumping proceeding or of the 
outcome of that proceeding in terms of duty collec tion.  A failure to comply with Article 2 in 
determining the margin vitiates a determination made  under Article 9.3, irrespective of the amount of 
duties that is ultimately collected.32   
 
29. In US – Zeroing (Japan) (21.5) , the United States argued that Japan had not proven the 
impact of zeroing in the challenged administrative revi ews, and that therefore Japan's challenge had to 
fail.  The panel rejected the U.S. argument.33  The United States did not appeal this aspect of the 
panel's findings, and the Appellate Body upheld the panel's finding that the application of zeroing in 
these reviews was inconsistent with Article 9.3 of the Anti-Dumping Agreement , as well as 
Article 2.4, and Article VI:2 of the GATT 1994.34 
 30. Further, in US – Continued Zeroing , the United States argued that the EU's "continued use" 
claim failed because there was no evidence of the impact  of zeroing in any specific determinations.  In 
particular, the United States argued that there was no evidence that there would be negative 
comparison results that would be zeroed in each and every determination.  The Appellate Body 
rejected this argument, finding that the continued use of zeroing under a specific anti-dumping order is inconsistent with, among others, Article 9.3 of the Anti-Dumping Agreement  irrespective of the 
outcome of the calculation.
35   
 
B. A RTICLE 2.4 OF THE ANTI-DUMPING AGREEMENT  
 31. The United States' use of zeroing in the administrative reviews at issue is also inconsistent with Article 2.4 of the Anti-Dumping Agreement , irrespective of its impact.  As discussed earlier, the 
"fair comparison" requirement in the firs t sentence of Article 2.4 concerns "the nature of the 
comparison  of export price and normal value"
36, and is focused on "the fairness  of the comparison ".37  
Because the obligation concerns "the nature of the comparison" that is made by an anti-dumping 
authority, it applies independently of the amount of anti-dumping duties that are collected by an importing Member.  32. In terms of ordinary meaning,  "[t]he term 'fair" [in Article  2.4] is generally understood to 
connote impartiality, even-handedness, or lack of bias".
38  The Appellate Body has held that there "is 
an inherent bias in a zeroing methodology".39  It has also said that, as a " way of calculating " margins, 
the zeroing methodology "cannot be described as impartial, even-handed, or unbiased".40  A panel and 
the Appellate Body have, therefore, ruled that the maintenance and application  of zeroing procedures 
in administrative reviews is inc onsistent with Article 2.4 of the Anti-Dumping Agreement .41 
 
                                                      
32 See, in particular, Panel Report, US – Zeroing (Japan) (21.5) , para. 7.162.  See also Mexico's 
Answers, paras. 21-23;  the EU's Answers, para. 9;  and Korea's Answers, para. 13. 
33 Panel Report, US – Zeroing (Japan) (21.5) , para. 7.162. 
34 Appellate Body Report, US – Zeroing (Japan) (21.5) , paras. 195 and 197. 
35 Appellate Body Report, US – Continued Zeroing , para. 192. 
36 Panel Report, Egypt – Steel Rebar , paras. 7.333 – 7.335 (emphasis added).  See also  Panel Report, 
Argentina – Poultry , para. 7.265;  and Panel Report, EC – Tube or Pipe Fittings , para. 7.140. 
37 Panel Report, Egypt – Steel Rebar , para. 7.333 (original emphasis). 
38 Appellate Body Report, US – Softwood Lumber V (21.5) , para. 138.   
39 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135. 
40 Appellate Body Report, US – Zeroing (Japan) , para. 146, quoting  Appellate Body Report, US – 
Softwood Lumber V (21.5) , para. 142. 
41 Panel Report, US – Zeroing (Japan)(21.5) , paras. 7.168 and 8.1(b); Appellate Body Report, US – 
Zeroing (Japan)(21.5) , paras. 195, 197 and 213(c); and Appellate Body Report, US – Zeroing (Japan) , 
paras. 169, 176, 190(d) and 190(e). WT/DS382/R 
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33. Thus, irrespective of impact, the use of zeroing in making determinations for all of the companies in all of the measures at issue violates Article 2.4 of the Anti-Dumping Agreement  because 
it involves an unfair comparison.  
V. THE CONTINUED USE OF ZEROING IS INCONSISTENT WITH ARTICLES 2.4 
AND 9.3 OF THE ANTI-DUMPING AGREEMENT , AND ARTICLE VI:2 OF THE 
GATT 1994 
 
34. Brazil claims that the United States has violated  Articles 2.4, 2.4.2 and 9.3 of the Anti-
Dumping Agreement , and Article VI:2 of the GATT 1994, also through the continued use of zeroing 
under the Orange Juice Order.
42 
 35. The United States maintains that Brazil's "conti nued use" claim is not a measure that may be 
subject to dispute settlement.
43  However, in US – Continued Zeroing , the Appellate Body found "no 
reason to exclude ongoing conduct that  consists of the use of the ze roing methodology from challenge 
in WTO dispute settlement".44  The US argument is also surp rising because the United States is 
challenging a "continued use" measure in EC – Large Civil Aircraft , explicitly and extensively relying 
on the Appellate Body's reasoning in US – Continued Zeroing , which it is nonetheless encouraging 
this Panel to disregard.45   
 36. The United States also argues that Brazil has not made the evidentiary showings required for 
an "as such" challenge.  However, as Brazil has explained
46, a challenge to the "continued use" of 
zeroing under the Orange Juice Order is narrower than a challenge to zeroing "as such" and, therefore, 
not subject to the identical evidentiary requirements.    37. Brazil has established that there is a suffici ent "density of factual findings", that is not 
"fragmented" over time, showing that zeroing has b een used in successive proceedings under the same 
order.
47  As Brazil has demonstrated, the USDOC used zer oing in the original investigation;  in the 
First and Second Administrative Reviews; and in the Third Administrative Review.  Indeed, with 
regard to the latter review, Brazil notes that while the United States stated before the Panel that it 
could not foretell whether it would continue to use zeroing under the Orange Juice Order, it then used 
zeroing shortly after the first meeting with the Panel, in the Third Administrative Review.48  Thus, the 
United States has used zeroing with perfect consistency in every  proceeding under the Orange Juice 
Order, including very recently.49   
 
                                                      
42 See Brazil's FWS, paras. 98 – 117;  Brazil's First Opening Statement, paras. 80 – 96;  and Brazil's 
Answers, paras. 7 – 20.  
43 See U.S. SWS, paras. 83 – 87. 
44 Appellate Body Report, US – Continued Zeroing , para. 181. 
45 US Other Appellant's Submission, EC – Large Civil Aircraft , 23 August 2010, paras. 53-58, 
available at http://www.ustr.gov/trade-topics/enf orcement/dispute-settlement-proceedings/wto-dispute-
settlement/measures-affecting-t-0 .   
46 See Brazil's Answers, paras. 3 – 6.  
47 See Brazil's SWS, paras. 29 – 30 and Appellate Body Report, US – Continued Zeroing , paras. 191 
and 194.    
48 See Brazil's SWS, paras. 31 – 45.  
49 See Brazil's SWS, para. 42.  It has also repeatedly a ffirmed its intent to persist in this conduct under 
the Orange Juice Order, despite WTO rulings.  See IDM in the First Administrative Review, pp. 5 – 6; IDM in 
the Second Administrative Review, pp. 4 – 6; and IDM in the Third Administrative Review, pp. 4 – 6.  Exhibits 
BRA-28, BRA-43 and BRA-50.  On IDMs, s ee Appellate Body Report, U.S. – Continued Zeroing , footnote 767.  WT/DS382/R 
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  ANNEX F-2 
 
 
EXECUTIVE SUMMARY OF THE ORAL OPENING  
STATEMENT OF THE UNITED STATES 
 
 1. In our statement today, we would like to fo cus on rebutting arguments made by Brazil in its 
second written submission and in response to the Panel' s questions.  We hope th at our oral statement 
will clarify our views as Brazil's opening statement did not present them accurately.  We first will highlight that interpreting the terms "dumping" and "margin of dumping" to have meaning in relation 
to individual transactions is a permissible a nd perfectly coherent interpretation of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Antidumping 
Agreement").  Brazil's proposed interpretation, in cont rast, has no textual basis.  In addition, Brazil's 
interpretation is inconsistent w ith the very concept of a prospective normal value system, both as 
provided for in the text and as such systems are act ually used.  Indeed, as we show in the exhibits 
submitted with this oral statement, and contrary  to Brazil's representations, Brazil's own use of 
prospective normal value is inconsistent with Br azil's insistence that the Antidumping Agreement 
prohibits a transaction-specific definition of dumping.  
 2. We will then respond to four other lines of argume nt in this dispute:  First, with respect to 
mathematical equivalence, as we demonstrated empi rically in our response to the Panel's questions, 
Brazil's proposed interpretation of the Antidumpi ng Agreement would render the second sentence of 
Article 2.4.2 meaningless.  Second, with respect to "fair comparison" under Article 2.4, Brazil's 
interpretation invites a subjective examination that is  not based on the text.  Third, Brazil's arguments 
regarding cash deposits are similarly not based on the text of the Antidumping Agreement, which 
plainly allows Members to collect a cash deposit as security for payment of antidumping duties.  Finally, with respect to its assertion that the "use"  of "zeroing" is inconsistent with the covered 
agreements regardless of whether any duties were co llected or whether there even were any negative 
comparison results to "zero", Brazil's interpretation is  completely inconsistent with the text.  Brazil 
has failed to demonstrate any basis for finding an inconsistent "continued use" measure, even were 
such a measure within the Panel's terms of reference.   
I. A TRANSACTION-SPECIFIC INTERPRETATION OF "DUMPING" AND 
"MARGIN OF DUMPING" IS PERMISSIBLE 
 
3. The text and context of the covered agreemen ts, interpreted in accordance with the customary 
rules of interpretation of public international law, make clear that the terms "dumping" and "margin of 
dumping" may have meaning for individual transactions .  Brazil's interpretation, in contrast, is not 
consistent with either the text, or with how prospective normal value systems operate.  
 
A. S
TANDARD OF REVIEW  
 4. As we have noted previously, in a dispute involving the Antidumping Agreement, the relevant 
standard of review includes that set forth in Ar ticle 17.6(ii) with respect to various permissible 
interpretations of a provision of the Agreement. 
 5. 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 the action consistent with the Agreement. WT/DS382/R 
Page F-10 
BCI deleted, as indicated [[XX]] 
 
  6. The United States has argued – and multiple previous panels have agreed – that an 
interpretation of the Antidumping Agreement that do es not require offsets is permissible.  This 
interpretation is permissible because the text and context of the Antidumping Agreement, interpreted 
in accordance with customary rules of interpretation of public international law, make clear that the 
terms "dumping" and "margin of dumping" may have meaning for individual transactions.  The mere 
fact that this interpretation differs from anot her interpretation is not a basis for finding it 
impermissible.   7. An interpretation of the provisions of the Antidumping Agreement and the GATT 1994 that 
not only is consistent with the text, but also re flects how business is conducted, how trade in goods 
occurs, and the point at which duties are imposed – that is, in individual transactions – is hardly, as 
Brazil alleges, "incoherent".  Multip le previous panels, applying the customary rules of interpretation 
of international law, have confirmed that  this interpretation is permissible.   
 8. The interpretation by previous panels does not  allow a Member to define dumping any which 
way it wants.  As noted earlier, there is a defin ition of "dumping" in Article 2.1 of the Antidumping 
Agreement.  The question is whether this definiti on, "the difference between  normal value and export 
price", can apply at the level of individual transacti ons or must be applied to "the product as a whole", 
a term that does not even appear in the text.  Brazil argues that the term "dumping margin" must 
relate, solely and exclusively, to the "product as a whole" regardless of the text and context of the 
provision in which the term is used.  The United St ates argues – and previous panels have confirmed – 
that "dumping margin" may be understood as relating to the "product" that is the subject of an 
individual transaction, in accordance with the ordinary meaning of the word "product", and permits the text and context of the relevant provisions to in form the appropriate interpre tation of the term as it 
is used.  
B. T
HERE IS NO TEXTUAL BASIS FOR THE OBLIGATION THAT BRAZIL PROPOSES  
 9. To require, as Brazil asserts, that a Memb er calculate a "margin of dumping" only for the 
"product as a whole" does not reflect a "harmonious " interpretation of the Antidumping Agreement.  
There is no textual basis for such an obligation in either the Antidumping Agreement or the GATT 
1994.  Not surprisingly, then, in arguing that an in vestigating authority must calculate a margin of 
dumping for the "product as a whole" in assessment pr oceedings, Brazil does not rely on the text of 
the GATT 1994 or the Antidumping Agreement.    10. To accept Brazil's argument would mean that the major users of dumping remedies, which were not granting offsets at the time the WTO Agreemen ts were negotiated, agreed to an obligation to 
provide offsets without including an express provisi on for such an obligation in the Antidumping 
Agreement and the GATT 1994.  In fact, there were  negotiating proposals to restrict "zeroing", but 
these proposals were not adopted.  The major users of dumping remedies continued to use "zeroing" 
after the agreements came into effect.  If the negotiators of the Uruguay Round agreements intended 
to make such a fundamental change in the meaning of "margin of dumping" as to require offsets, they 
would have been clear about it.  As we noted in  our first written submission, in settling disputes 
among Members, panels and the Appe llate Body cannot add to or diminish the rights and obligations 
provided in the covered agreements.    11. A panel should not build an interpretation on terms that do not appear in the covered 
agreements, such as "product as a whole".  Prior panels  have found that there is no textual basis in the 
Antidumping Agreement for the obligation that Br azil proposes today.  All these panels made an 
objective assessment of the matter before them and came to the same conclusion that no offsets are 
required in assessment proceedings.  We respectfu lly request that this Panel reach the same 
conclusion in this proceeding.     WT/DS382/R 
 Page F-11 
BCI deleted, as indicated [[XX]] 
 
  C. B RAZIL 'S ARGUMENTS ARE INCONSISTENT WITH BOTH THE CONCEPT OF , AND ITS OWN 
APPLICATION OF , A PROSPECTIVE NORMAL VALUE SYSTEM  
 12. The United States has demonstrated that the obligation that Brazil seeks to impose on Members is contrary to the very concept of a pros pective normal value system provided for in Article 
9 of the Antidumping Agreement.  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 pr ospective normal value.  For example, an importer 
who imports a product the export price of which is equal to or higher than the prospective normal 
value cannot incur liability for payments of antidumpi ng duties.  The converse is also true.  A liability 
for a dumped sale would be determined by comparing the price of an individual export transaction 
with a prospective normal value and the prices of other transactions have  no relevance to this 
determination.  As the panel in US – Zeroing (Japan)  found, "there is no text ual support in Article 9 
for the proposition that export prices in other transactions are of any relevance".  
13. The United States has provided evidence that  demonstrates how prospective normal value 
systems operate and that the refund mechanism under a prospective normal value system normally addresses specific individual transactions.  In c ontrast, there is no evidence to support the assertions 
that a refund mechanism must recalculate a margin of dumping based on an aggregation of all comparisons.  Indeed, Brazil acknowledged that it h as never granted a single refund when collecting 
antidumping duties on the basis of a prospective normal value.  
 
14. Brazil nonetheless argues that an obligation to calculate the margin of dumping with respect 
to "product as a whole" is consistent with prosp ective normal value systems.  In its answers to the 
Panel's Questions, Brazil asserts that when it has a pplied prospective normal value, "the collection of 
the duty was limited to a dumping margin dete rmined in accordance with Article 2 of the Anti-
Dumping Agreement ".  A review of the facts, however, raises questions about how this assessment 
comports with Brazil's proposed interpretation of the Antidumping Agreement.    15. Brazil has used prospective normal value to  collect antidumping duties on products from at 
least seven countries: the United States, Mexico, Ro mania, Germany, France, Spain, and the United 
Kingdom.  In each case, Brazil calculated the antidum ping duty as the absolute difference between the 
normal value (or reference price) and the adjusted  export price of a specific transaction.  Brazil 
assessed the antidumping duty in instances where the price of the imported product (an entry) was lower than the established normal value.  Howe ver, Brazil assessed no duty if the result of the 
comparison was less than or equal to zero.  And, Brazil has never provided a refund or an offset based 
on non-dumped transactions.  
 
16. The way that Brazil has collected duties on imports of polyvinylchloride from the United States and Mexico, for example, does not appear consistent with the arguments that Brazil made in this dispute.  In that case, Braz il assessed duties on a transaction- specific basis without providing any 
offsets for non-dumped transactions.  In addition, Brazi l's Official Gazette specifically states that the 
antidumping duty is calculated on a transaction-specific basis:  
 
The anti-dumping duty is calculated on th e basis of the absolute difference 
between the reference price and the price at which the transaction by which the 
product is imported from the USA or Mexico is executed,  as the case may be.  
The anti-dumping duty will be charged only in a case in which the price of the 
imported product is lower than the proposed reference price.  
 17. There is no reason why liability for paymen t of antidumping duties in the retrospective 
system applied by the United States may not be si milarly assessed on the basis of transaction-specific 
export prices.  Accepting the interpretation that  a Member must aggregate the results of "all" WT/DS382/R 
Page F-12 
BCI deleted, as indicated [[XX]] 
 
  comparisons on an exporter-specific basis would requ ire that retrospective reviews be conducted even 
in a prospective normal value system.  This result is  contrary to the very concept of a prospective 
normal value system.   18. Despite its arguments that Members have an affirmative and fundamental obligation to 
determine the antidumping liability for the "product as  a whole" regardless of the context, Brazil has 
never conducted a review under Article 9.3.2.  Brazi l suggests this is because no importer has ever 
asked for a review or a refund.  As we explained previously, however, it is difficult to see why an importer would request such a review when the im porter does not have information for the "product 
as a whole" and as such does not know if the importer's liability could actually increase.  And, when 
importers do not request refunds, no offsets are provided.   
 19. It should be noted that Brazil's arguments in this respect are entirely inconsistent with its arguments regarding cash deposits.  Under Brazil's argument, the supposed obligation to calculate a 
margin for the "product as a whole" in a prospectiv e normal value system is apparently only triggered 
when someone requests a refund.  In the meantime, duties are collected on a transaction-specific basis 
without providing offsets for non-dumped transactions.  Of course, in a retrospective system such as 
that operated by the United States, cash deposits are expressly not a final assessment of duties.  Cash 
deposits are only a security pending the final assessment  of duties, which occurs later in a review 
initiated upon a request.  Yet according to Brazil, cash deposits that similarly do not reflect offsets for 
non-dumped transactions are themselves WTO-inconsistent.   
 
20. Before moving on, we would like to make one final but important point on the topic of 
prospective normal value systems:  It is implausibl e to think that the negotiators of the Antidumping 
Agreement would provide explicitly for a prospec tive normal value system and at the same time, 
without making any textual provision whatsoever, re quire that such systems conduct retrospective 
assessment proceedings that aggregate all the tran sactions occurring over some unspecified period of 
time.  Articles 9.3, 9.3.1, and 9.3. 2 are silent as to the period of review for any such proceeding.  
These articles include no requirements with respect to  whether an assessment proceeding must cover a 
time period of a certain length or even that assess ment proceeding coverage be time-based at all.  
 21. In its responses to the Panel's questions, Brazil suggested that the period of review for refund 
proceedings is specified in footnote 4 to Article 2.2.1.  Article 2.2.1 specifies certain conditions under 
which a Member may choose to disregard sales at prices below the per unit cost of production in the 
domestic market of the home country or a third country if "such sales are made within an extended period of time in substantial quantities and at pric es which do not provide for the recovery of all 
costs".  Footnote 4 specifies that "extended period of time" is "normally one year but shall in no case 
be less than six months".  Contrary to Brazil's suggestion, footnote 4 specifies what constitutes an 
"extended period of time ".  It does not specify the length of a "period of review" or "refund 
proceeding".  Moreover, Article 2.2.1 and footnote 4 only apply in specific circumstances, when a 
Member decides to disregard certain below-cost sales .  They do not apply in any other context.   
 22. If the drafters of the Antidumping Agreement had intended to adopt an obligation to provide 
an "offset" for non-dumped transactions, one would ha ve expected the drafters also to agree on an 
obligation for assessment proceedings to cover so me established time period over which transactions 
must be aggregated.  Otherwise a Member's obligations might have differed in a significant, substantive fashion depending solely upon whether it el ects to cover more or fewer entries, or more or 
less time, in conducting its assessment proceedings.  Thus, Brazil's assertion that the Antidumping 
Agreement imposes, with no textual basis, an oblig ation to grant offsets for non-dumped transactions 
implies that the drafters neglected to provide fo r an essential element of the obligation, namely, the 
time period over which such an offset would be grante d.  Such an interpreta tion should not be adopted 
by the Panel.   WT/DS382/R 
 Page F-13 
BCI deleted, as indicated [[XX]] 
 
  II. BRAZIL'S INTERPRETATION RENDERS THE SECOND SENTENCE OF 
ARTICLE 2.4.2 OF THE ANTIDUMPING AGREEMENT A NULLITY 
 23. The United States would recall that it has de monstrated that Brazil's interpretation of the 
Antidumping Agreement does not fit with the text of  Article 2.4.2 of the Antidumping Agreement.  
This is because the exceptional methodology provide d for in the second sentence of Article 2.4.2 
mathematically must yield the same result as an average-to-average comparison as provided for in the first sentence of Article 2.4.2 if, in both cases, non-dumped comparisons are required to offset 
dumped comparisons.  Accordingly, Brazil's interpre tation would be disfavored under a key tenet of 
customary rules of treaty interpretation, namely, as explained by the Appellate Body in US – 
Gasoline , that an "interpretation must give meaning and effect to all the terms of the treaty". 
 24. The United States demonstrated the mathematic al equivalency empirically in its response to 
the Panel's questions.  Brazil's only response to th e mathematical equivalenc y argument is to cite 
certain Appellate Body reports.  These reports are not persuasive because their reasoning is not based 
upon the text of the Antidumping Agreement and does not adequately resolve the problem of 
mathematical equivalency.  Panels have specifica lly addressed all of the situations under which it was 
argued that there would not be mathematical equi valence and found these situations did not represent 
methodologies consistent with the Antidumping Agreem ent.  The United States has demonstrated that 
if all export transactions are taken into account, and " zeroing" is prohibited, average-to-average and 
average-to-transaction comparisons produce the same result .  
 
III. BRAZIL'S BROAD INTERPRETATION OF ARTICLE 2.4 OF THE ANTIDUMPING 
AGREEMENT SHOULD BE REJECTED 
 
25. As the United States has explained, Brazil's arguments under Article 2.4 of the Antidumping Agreement – like its other interpretations of the Antidumping Agreement – require reading into the 
text of the Agreement words that are not there an d were never agreed.  There is no obligation in 
Article 2.4 to offset any negative differences  between normal value and export price.  The 
United States cannot be found to have violated an  obligation that does not exist.  Moreover, if 
Article 2.4 required offsets, there would be no need for such a requirement in Article 2.4.2 (which was 
the basis for the Appellate Body's finding in US – Softwood Lumber Dumping ).   
 26. Brazil's proposed interpretation that Article 2.4 applies to the results  of comparisons between 
export price and normal value is erroneous .  As the Appellate Body stated in US – Hot-Rolled Steel , 
"an examination of whether USDOC acted consistently with Article 2.4 of the Anti-Dumping 
Agreement  must focus on ... whether there were 'diffe rences', relevant under Article 2.4, which 
affected the comparability of export price and normal value".  Contrary to Brazil's assertions, because 
the "fair comparison" obligation in Article 2.4 refe rs to the required price adjustments, it does not 
create an obligation with respect to how the results  of those comparisons are treated.  Assessment of 
antidumping duties in the amount by which the normal value exceeded the export price on a transaction-specific basis does reflect a "fair comp arison" made for each export transaction.  The 
phrase "fair comparison" in Article 2.4 simply has no thing to do with the a ggregation of comparison 
results, and Brazil has not explained how an off set to the dumping found on one export transaction as 
a result of a distinct export transaction having been sold at above normal value would be considered 
an adjustment or other comparison criterion that falls under Article 2.4.    27. Instead, Brazil would have the Panel use Article 2.4 to examine any and all antidumping calculations to determine whether they are "impartial,  even-handed, or unbiased".  However, such an 
open-ended approach would result in disputes that ar e nearly impossible to r esolve in any principled, 
text-based way.  The Panel should reject an e xpansive interpretation of a "fair comparison" 
requirement that requires a subjective evaluation of what is "fair" or "unfair".  WT/DS382/R 
Page F-14 
BCI deleted, as indicated [[XX]] 
 
  IV. CASH DEPOSITS ARE A SECURITY, NOT DUTIES 
 
28. The United States explained in its First Wr itten Submission and in its responses to Panel 
questions that cash deposits are not duties covere d by Article 9 of the Antidumping Agreement, but 
rather a security governed by separate provisions of the GATT 1994.  The Ad Note to paragraphs 2 
and 3 of GATT Article VI expressly provides that a Member may collect a "reasonable security (bond 
or cash deposit) for the payment of anti-dumping duty .. . pending final determination of the facts".  In 
the retrospective system used by the United Stat es, cash deposits are held as a security pending 
determination of the antidumping duty to ensure that funds are available to pay the duties.  None of 
the cash deposit rates at issue in this dispute were applied as assessment rates. 
 29. In response to the US showing that cash de posits are a security, Brazil relies on the Appellate 
Body report in the United States – Shrimp Bonding  dispute.  That report, however, is inapposite to the 
issue in this dispute regarding cash deposits.  In Shrimp Bonding , the Appellate Body analyzed the 
WTO-consistency, including the "reasonableness", of an extra bonding requirement that applied 
above cash deposits.  The purpose of this extra requi rement was to secure potential additional liability 
that might arise if the margin of dumping was determ ined to be greater than the cash deposit – that is, 
to address defaults on that portion of the duties that  exceed the amount of cash deposited as a security.  
That is not an issue in this dispute, nor is it the standard for whether or not cash deposits are in fact a 
security.   
 
V. BRAZIL'S ARGUMENTS REGARDING THE "USE" OF ZEROING HAVE NO 
BASIS IN THE TEXT 
 
30. In the last meeting with the Panel, and in its second written submission, Brazil insists that the 
"use" of "zeroing" violates various provisions  of the Antidumping Agreement and the GATT 1994, 
regardless of whether any duties were collected, and regardless of whether any transaction-specific 
comparisons were in fact "zeroed".  To be clear, we have a defense to all of Brazil's claims as there is no basis in the text of the agreements for the obligations Brazil seeks to impose.  However, in 
response to Brazil's claims on this point we would like to explain further how these assertions with 
respect to the "use" of "zeroing" are inconsiste nt with the text of the relevant provisions.  
 31. In this dispute, Brazil's allegations of WT O-inconsistency based on its "zeroing" theories 
extend to certain instances in which the United Stat es in fact assessed no antidumping duties.  As the 
United States has explained, where no antidumping du ties have been assessed, there can be no breach 
of Article 9.3 of the Antidumping Agreement or Article VI:2 of the GATT.  32. In its second written submission, Brazil asserts that Article 9.3 and Article VI:2 – both of 
which expressly refer to the amount of the antidumping duty – can be violated "irrespective of the amount of duties that is ultimately collected".  The United States fails to see how, as Brazil argues, it 
makes sense to find a violation of an obligation not  to collect duties, when no duties are collected.  
Article VI:2 allows a Member to "levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping ...".  Article 9.3 directs that "[t]he amount of the anti-dumping duty shall not exceed the margin of dumping as establis hed under Article 2".  Finding a violation of 
these provisions where no antidumping duties are le vied and the antidumping duty is zero would 
render meaningless the provisions' references to "le vy ... an anti-dumping duty" and "[t]he amount of 
the anti-dumping duty".  33. Brazil's meaning of the term "use" is differe nt from what was at issue in prior panel and 
Appellate Body reports.  Brazil claims that "use" re fers to the line in the computer program.  Prior 
reports refer to the final duties assessed.  Conseque ntly, those earlier reports do not support Brazil.   
  WT/DS382/R 
 Page F-15 
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  34. Brazil does not address the fact that these pr ovisions specifically address the amount of the 
duty.  Instead, Brazil's only support for its argument that there could be a violation even when no duties are assessed is (i) a cite to the Appellate Body report in  Continued Zeroing and (ii) an argument 
that the chapeau  of Article 9.3 refers to Article 2.   
 
35. With regard to the Continued Zeroing  report, it is not pertinent to the issue in this dispute.  In 
particular, it does not address the argument in this case that there can be no violation of Article 9.3 or 
GATT Article VI:2 where a Member assesses no duties.   That dispute involved the issue of whether 
alleged "continued use" was outside of the terms of  reference because it purported to capture future 
measures.  However, the argument in this case is not  only about what might happen in the future.  In 
this dispute, Brazil's own evidence demonstrates that zeroing had no effect in certain of the 
proceedings at issue.     36. Brazil's argument as to the chapeau is based solely upon the fact that the chapeau  mentions 
Article 2.  However, Brazil fails to cite the actual text of the chapeau , which states that "the amount of 
the anti-dumping duty shall not exceed the margin of dumping as established under Article 2".  The 
text is clear that the obligation is  based upon "the amount of duty" not exceeding  the margin of 
dumping.  Where the United States has applied an assessment rate of zero, "the amount of duty" is 
zero, which cannot exceed the margin of dumping.     37. The United States fails to see how there can be a violation of an alleged obligation to provide 
offsets for non-dumped transactions when there ar e no non-dumped transactions.  As just noted, 
unlike in the Continued Zeroing  dispute, in this dispute we are not  just presented with a request to find 
an inconsistency with respect to measures that do not  exist even though we do not know whether there 
will be any non-dumped transactions.  We are also pr esented with a request to base a finding of future 
inconsistency on a proceeding in which the ev idence shows there actually were no non-dumped 
transactions.  Zeroing is not and cannot be "used" in  such circumstances.  It is mathematically 
impossible.  In such circumstances, the compar isons made, and the amount of duties collected, are 
exactly the same as they would have been if there were no "zeroing" line in the computer program.  
Brazil's own evidence indicates the United States cal culated the dumping margins in the orange juice 
investigation on the basis of all comparable transactions.   
 VI. ASIDE FROM THE FACT THAT IT IS OUTSIDE THE TERMS OF REFERENCE, 
BRAZIL'S CLAIMS WITH RESPECT TO THE "CONTINUED USE" MEASURE FAIL 
 
38. Even if Brazil's "continued use" claim were properly before this Panel, it must fail because 
there is no evidence that zeroing affected any margin  in the investigation, nor certain rates in the 
assessment proceedings at issue.  Brazil has relie d heavily upon the Appellate Body's report in 
Continued Zeroing , and the United States has explained why th at reliance is misplaced.  We have 
demonstrated that the Appellate Body's analysis in Continued Zeroing  does not apply here.  In that 
dispute, the Appellate Body found an inconsistenc y only in circumstances that included zeroing in the 
initial less than fair value investigation, zeroi ng in four successive administrative reviews, and 
reliance in a sunset review upon rates de termined using the zeroing methodology.   
 
39. In response to the US arguments, Brazil atte mpts to distinguish the circumstances in the 
current dispute from the cases in which the Appe llate Body declined to find a violation in Continued 
Zeroing  by arguing that the evidence of zeroing was "fra gmented" in those cases.  However, in this 
dispute, Brazil's own evidence shows that there wa s no zeroing in the investigation, zeroing had no 
effect on certain rates in the assessment proceedings, a nd there has been no sunset review.  This is not 
a case where, to quote the Appellate Body report in Continued Zeroing , "the zeroing methodology 
was repeatedly used in a string of determinations  made sequentially in periodic reviews and sunset 
reviews over an extended period of ti me".  Moreover, as explained earlier, there is no textual basis for WT/DS382/R 
Page F-16 
BCI deleted, as indicated [[XX]] 
 
  finding a violation where no duties are collected, or where there were no non-dumped transactions.  
Individual proceedings that are not inconsistent  cannot be the basis of a finding of "ongoing" 
inconsistency stretching indefi nitely into the future.   
  
 
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