WORLD TRADE  
ORGANIZATION  WT/DS382/R 
25 March 2011 
 (11-1311) 
 Original:   English 
  
 
     
 
UNITED STATES – ANTI-DUMPING ADMINISTRATIVE 
REVIEWS AND OTHER MEASURES RELATED TO 
IMPORTS OF CERTAIN ORANGE JUICE 
FROM BRAZIL 
 
 
 
 
Report of the Panel 
 
 
 
 
 
 
BCI DELETED, AS INDICATED 
[[XX]] 
  WT/DS382/R 
 Page i 
BCI deleted, as indicated [[XX]] 
 
  TABLE OF CONTENTS 
 
Page   
I.
 INTRODUCTION ................................................................................................................... .1 
II. FACTUAL ASPECTS ..............................................................................................................2  
III. PARTIES' REQUESTS FOR FIND INGS AND RECOMMENDATIONS.........................3  
A. BRAZIL ............................................................................................................................... .........3  
B. THE UNITED STATES ...................................................................................................................4  
IV. ARGUMENTS OF THE PARTIES ........................................................................................4  
V. ARGUMENTS OF THE THIRD PARTIES ..........................................................................4  
VI. INTERIM REVIEW................................................................................................................. 4 
A. REVIEW REQUESTED BY BRAZIL ................................................................................................4  
B. REVIEW REQUESTED BY THE UNITED STATES ..............................................................................7  
VII. FINDINGS....................................................................................................................... ........10  
A. UNITED STATES ' REQUESTS FOR PRELIMINARY RULINGS ........................................................10  
1. Second Administrative Review ..............................................................................................10  
(a) Arguments of the United States ................................................................................................1 0 
(b) Arguments of Brazil............................................................................................................ ......10  
(c) Arguments of the Third Parties................................................................................................. 12 
(i) European Union................................................................................................................. .......12  
(ii) Japan.......................................................................................................................... ...............12  
(iii) Korea .......................................................................................................................... ..............13  
(iv) Mexico......................................................................................................................... ..............13  
(d) Evaluation by the Panel ........................................................................................................ ....14  
2. "Continued Zeroing"............................................................................................................ ..17 
(a) Arguments of the United States ................................................................................................1 7 
(b) Arguments of Brazil............................................................................................................ ......17  
(c) Arguments of the Third Parties................................................................................................. 18 
(i) European Union................................................................................................................. .......18  
(ii) Japan.......................................................................................................................... ...............19  
(iii) Korea .......................................................................................................................... ..............19  
(iv) Mexico......................................................................................................................... ..............19  
(d) Evaluation by the Panel ........................................................................................................ ....20  
B. BRAZIL 'S CLAIMS CONCERNING THE ALLEGED USE OF "SIMPLE ZEROING " IN 
ADMINISTRATIVE REVIEWS ......................................................................................................25  
1. Arguments of Brazil............................................................................................................ ....25  WT/DS382/R 
Page ii 
BCI deleted, as indicated [[XX]] 
 
  (a) Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994....................................25  
(b) Article 2.4 of the AD Agreement..............................................................................................28  
2. Arguments of the United States .............................................................................................28  
(a) Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994....................................28  
(b) Article 2.4 of the AD Agreement..............................................................................................31  
3. Arguments of the Third Parties.............................................................................................32  
(a) Argentina ...................................................................................................................... ............32  
(b) European Union ................................................................................................................. .......32  
(c) Japan .......................................................................................................................... ...............33  
(d) Korea.......................................................................................................................... ...............33  
(e) Mexico ......................................................................................................................... .............34  
4. Evaluation by the Panel........................................................................................................ ..34 
(a) Relevant Facts................................................................................................................. ..........34  
(i) Administrative Reviews under United States' Law ...................................................................34  
(ii) Measures at Issue.............................................................................................................. ........35  
(b) Introduction................................................................................................................... ............37  
(c) The definition of "dumping".................................................................................................... .37 
(i) Articles 3, 5.8, 6.10, 8.1, 9.1, 9.3 and 9.5 of the AD Agreement...............................................39  
(ii) "Dumping" is an exporter-specific, not importer-specific, concept..........................................41  
(iii) Article VII:3 and the Ad Note to Article VI:1 of the GATT 1994, and Articles 2.2 and 
2.3 of the AD  Agreement........................................................................................................ ...42 
(iv) Duty collection on the basis of a prospective normal value .....................................................44  
(v) Article 2.4.2 and "mathematical equivalence"..........................................................................47  
(vi) Historical background .......................................................................................................... ....49  
(vii) Permissible Interpretations under Article 17.6(ii) of the AD Agreement .................................51  
(viii) Conclusion concerning the definition of "dumping".................................................................52  
(d) Brazil's claims under Article 2.4 of the AD Agreement ...........................................................54  
(i) "Simple zeroing" in the First Administrative Review................................................................59  
(ii) "Simple zeroing" in the Second Administrative Review............................................................60  
(e) Brazil's claims under Article 9.3 of the AD Agreement and Article VI:2 of the GATT 
1994 ........................................................................................................................... ...............61  
C. BRAZIL 'S CLAIMS CONCERNING "CONTINUED ZEROING ".........................................................61  
1. Arguments of Brazil............................................................................................................ ....61  
2. Arguments of the United States .............................................................................................62  
3. Arguments of the Third Parties.............................................................................................63  
(a) Japan .......................................................................................................................... ...............63   WT/DS382/R 
 Page iii 
BCI deleted, as indicated [[XX]] 
 
  4. Evaluation by the Panel........................................................................................................ ..63 
(a) Introduction................................................................................................................... ............63  
(b) Whether the "continued use" of "zeroi ng" as "ongoing conduct" is a "measure" 
susceptible to WTO dispute settlement.....................................................................................63  
(c) Has Brazil established that the allege d "continued zeroing" as "ongoing conduct" 
measure exists? ................................................................................................................ .........65  
(i) Original Investigation......................................................................................................... ......66  
(ii) Third Administrative Review.................................................................................................... .68 
(iii) Conclusion regarding the existence of the "continued zeroing" measure ................................69  
(d) Whether the "measure" is inconsistent w ith Articles 2.4, 2.4.2 and 9.3 of the AD 
Agreement and Article VI:2 of the GATT 1994.......................................................................69  
VIII.  CONCLUSIONS AND RECOMMENDATIONS................................................................70  
A. CONCLUSIONS ...........................................................................................................................70  
B. RECOMMENDATION ...................................................................................................................71  
 WT/DS382/R 
Page iv 
BCI deleted, as indicated [[XX]] 
 
  LIST OF ANNEXES 
 
 
ANNEX A 
 
EXECUTIVE SUMMARY OF THE FIRST WRITTEN 
SUBMISSIONS OF THE PARTIES 
 
Contents Page 
Annex A-1 Executive Summary of the First Written Submission of Brazil A-2 
Annex A-2 Executive Summary of the First Written Submission of the 
United States A-8 
Annex A-3 Executive Summary of Brazil's Response to the United States' 
Requests for Preliminary Rulings  A-17 
 
 
ANNEX B 
 
THIRD PARTIES' WRITTEN SUBMISSIONS OR 
EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
Annex B-1 Third Party Written Submission of Argentina B-2 
Annex B-2 Executive Summary of the Third Party Written Submission of the 
European Union B-6 
Annex B-3 Executive Summary of the Third Party Written Submission of 
Japan B-10 
Annex B-4 Executive Summary of the Third Party Written Submission of 
Korea B-16 
Annex B-5 Executive Summary of the Third Party Written Submission of 
Mexico B-20 
 
 
ANNEX C 
 
ORAL STATEMENTS OR EXECUTIVE 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 
 Page v 
BCI deleted, as indicated [[XX]] 
 
  ANNEX D 
 
ORAL STATEMENTS OF THIRD PARTIES OR 
EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
Annex D-1 Third Party Oral Statement of the European Union D-2 
Annex D-2 Executive Summary of the Third Party Oral Statement of Japan D-4 
Annex D-3 Third Party Oral Statement of Korea D-9 
 
 
ANNEX E 
 
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN  
SUBMISSIONS OF THE PARTIES 
 
Contents Page 
Annex E-1 Executive Summary of the Second Written Submission of Brazil E-2 
Annex E-2 Executive Summary of the Second Written Submission of 
the United States E-9 
 
 
ANNEX F 
 
EXECUTIVE SUMMARIES OF THE PARTIES STATEMENTS AT THE SECOND 
SUBSTANTIVE MEETING 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 
 
 
ANNEX G 
 
REQUESTS FOR CONSULTATIONS AND THE  
ESTABLISHMENT OF A PANEL 
 
Contents Page 
Annex G-1 Request for Consultations by Brazil G-2 
Annex G-2 Request for Consulta tions by Brazil - Addendum G-4 
Annex G-3 Request for the Establis hment of a Panel by Brazil G-7 
 
 WT/DS382/R 
Page vi 
BCI deleted, as indicated [[XX]] 
 
  TABLE OF CASES CITED IN THIS REPORT 
 
 WTO DISPUTE SETTLEMENT REPORTS  
Short Title Full Case Title and Citation 
Argentina – Poultry 
Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727 
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, 1221 
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , 
WT/DS70/R, adopted 20 August 1999, as upheld by Appellate Body Report 
WT/DS70/AB/R, DSR 1999:IV, 1443 
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted  
23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473) 
Dominican Republic – Import 
and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as modified 
by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, 7425 
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted  
12 March 2001, DSR 2001:V, 2049 
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India , WT/DS141/R, adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, 2077 
EC – Bed Linen 
(Article 21.5 – India) Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the 
DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 
965 
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, 9157 
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, 
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003, DSR 2003:VI, 2613 
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R, adopted 
18 August 2003, as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, 2701  WT/DS382/R 
 Page vii 
BCI deleted, as indicated [[XX]] 
 
  Short Title Full Case Title and Citation 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667 
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767 
Japan – Alcoholic  
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 
1 November 1996, DSR 1996:I, 97 
Mexico – Corn Syrup (Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article 21.5 of the DSU  by the United States , WT/DS132/AB/RW, adopted 
21 November 2001, DSR 2001:XIII, 6675 
US – Anti-Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted  
28 November 2005, DSR 2005:XX, 10127 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from Mexico , WT/DS282/R, adopted 
28 November 2005, as modified by Appellate Body Report WT/DS282/AB/R, DSR 2005:XXI, 10225 
US – Anti-Dumping Measures 
on PET Bags Panel Report, United States – Anti-Dumping Measures on Polyethylene Retail 
Carrier Bags from Thailand , WT/DS383/R, adopted 18 February 2010 
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 
10 January 2001, DSR 2001:I, 373 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – Continued Zeroing Panel Report, United States – Continued Existence and Application of Zeroing 
Methodology , WT/DS350/R, adopted 19 February 2009, as modified as 
Appellate Body Report WT/DS350/AB/R 
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3  
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional 
Gasoline , WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/R,  DSR 1996:I, 29 
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, 4697 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793 
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 WT/DS382/R 
Page viii 
BCI deleted, as indicated [[XX]] 
 
  Short Title Full Case Title and Citation 
US – Shrimp (Ecuador) Panel Report, United States – Anti-Dumping Measure on Shrimp from 
Ecuador , WT/DS335/R, adopted on 20 February 2007, DSR 2007:II, 425 
US – Shrimp (Thailand) / 
US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / 
WT/DS345/AB/R, adopted 1 August 2008, DSR 2008:VII, 2385 / 
DSR 2008:VIII, 2773 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, 2539 
US – Softwood Lumber V 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Dumping Determination on 
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, 
5087 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, 513 
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless 
Steel from Mexico , WT/DS344/R, adopted 20 May 2008, as modified by 
Appellate Body Report WT/DS344/AB/R, DSR 2008:II, 599 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted  
9 May 2006, and Corr.1, DSR 2006:II, 417 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, 521 
US – Zeroing (EC)  
(Article 21.5 – EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of 
the DSU by the European Communities , WT/DS294/AB/RW and Corr.1, 
adopted 11 June 2009 
US – Zeroing (EC)  (Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/RW, adopted 11 June 2009, 
as modified by Appellate Body Report WT/DS294/AB/RW 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, 3 
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R, adopted 23 January 2007, as modified by Appellate 
Body Report WT/DS322/AB/R, DSR 2007:I, 97 
US – Zeroing (Japan)  (Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009  WT/DS382/R 
 Page ix 
BCI deleted, as indicated [[XX]] 
 
  Short Title Full Case Title and Citation 
US – Zeroing (Japan)  
(Article 21.5 – Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/RW, 
adopted 31 August 2009, as upheld by Appellate Body Report 
WT/DS322/AB/RW 
 
 GATT PANEL REPORTS 
 
European Economic Community – Imposition of Anti-Du mping Duties on Imports of Cotton Yarn from Brazil 
("EEC – Cotton Yarn") , ADP/137, adopted 30 October 1995, BISD 42S/17  
 
 
  WT/DS382/R 
 Page 1 
BCI deleted, as indicated [[XX]] 
 
 I. INTRODUCTION 
1.1 On 27 November 2008, the Government of Brazil ("Brazil") requested consultations with the 
Government of the United States of America (the "United States") under Articles 4 of the 
Understanding on Rules and Procedures Governi ng the Settlement of Disputes (the "DSU"), 
Article XXII:1 of the General Agreement on Ta riffs and Trade of 1994 (the "GATT 1994") and 
Articles 17.2 and 17.3 of the Agreement on Implemen tation of Article VI of the General Agreement 
on Tariffs and Trade of 1994 (the "AD Agreement"),  with regard to certain laws, regulations, 
administrative procedures, practices and methodologies for calculating dumping margins in administrative reviews, involving the alleged use of so-called "zeroing", and their application in anti-
dumping duty administrative review s regarding imports of certain orange juice from Brazil (case 
No A-351-840).
1  On 22 May 2009, Brazil requested further consultations with the United States with 
regard to the alleged use of "zeroing" in the anti-dumping duty investigation and in the second 
administrative review related to case No A- 351-840 as well as to the continued use of the 
United States "zeroing procedures" in successive  anti-dumping proceedings regarding imports of 
certain orange juice from Brazil.2  The consultations were held  on 16 January and 18 June 2009, 
respectively.  The consultations failed to resolve the dispute.  
1.2 On 20 August 2009, Brazil requested, pursu ant to Articles 4.7 and 6 of the DSU, 
Article XXIII of the GATT 1994, and Article 17.4 of  the AD Agreement, that the Dispute Settlement 
Body ("DSB") establish a Panel with regard to the following measures:   
(a) The anti-dumping duty investigation on certain orange juice from Brazil (the 
"Original Investigation"). 
(b) The 2005-2007 anti-dumping duty administrative review on certain orange juice from 
Brazil (the "First Administrative Review").   
(c) The 2007-2008 anti-dumping duty administrative review on certain orange juice from 
Brazil (the "Second Administrative Review"). 
(d) The continued use of the US "zeroing procedures" in successive anti-dumping 
proceedings, in relation to the anti-dumping dut y order issued in respect of imports of 
certain orange juice from Brazil.3   
1.3 At its meeting on 25 September 2009, the DSB established a panel pursuant to the request of 
Brazil in document WT/DS382/4, in accordance with Article 6 of the DSU. 
1.4 The Panel's terms of reference are the following:   
"To examine, in the light of the relevant provisions of the covered agreements cited 
by the parties to the dispute, the matter  referred to the DSB by Brazil in document 
WT/DS382/4 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements." 
1.5 On 29 April 2010, Brazil requested the Director-G eneral to determine the composition of the 
Panel, pursuant to paragraph 7 of Article 8 of the DSU.  This paragraph provides:   
                                                     
 
1 WT/DS382/1. 
2 WT/DS382/1/Add.1. 
3 WT/DS382/4. WT/DS382/R 
Page 2 
BCI deleted, as indicated [[XX]] 
 
 "If there is no agreement on the panelists within 20 days after the date of the 
establishment of a panel, at the request of  either party, the Director-General, in 
consultation with the Chairman of the DSB and the Chairman of the relevant Council 
or Committee, shall determine the com position of the panel by appointing the 
panelists whom the Director-General consid ers most appropriate in accordance with 
any relevant special or additional rules or  procedures of the covered agreement or 
covered agreements which are at issue in th e dispute, after consulting with the parties 
to the dispute.  The Chairman of th e DSB shall inform the Members of the 
composition of the panel thus formed no later than 10 days after the date the 
Chairman receives such a request." 
1.6 On 10 May 2010, the Director-General accord ingly composed the Panel as follows:   
 Chairman:  Mr. Miguel Rodriguez Mendoza 
  Members: Mr. Pierre S. Pettigrew    Mr. Reuben Pessah 
 
1.7 Argentina;  the European Union;   Japan;  Korea;  Mexico;  the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu ("Chinese Taip ei");  and Thailand reserved their rights to 
participate in the Panel proceedings as third parties.   
1.8 The Panel met with the parties on 15-16 July and 12 October 2010.  It met with the third 
parties on 16 July 2010.  The Panel issued its inte rim report to the parties on 20 December 2010.  The 
Panel issued its final report to the parties on 21 February 2011.    
II. FACTUAL ASPECTS 
2.1 Brazil's complaint is focused on the alleged use by the United States Department of 
Commerce ("USDOC") of a particular methodology, known as "zeroing", when calculating the 
margin of dumping of investigated exporters in the anti-dumping proceedings conducted against 
certain orange juice products from Brazil (case No. A-351.840).  In particular, Brazil challenges the 
alleged use of "simple zeroing" for the purpose of calculating the margins of dumping, cash deposit 
rates and relevant importer-specifi c assessment rates for two respondents, Sucocítrico Cutrale S.A. 
("Cutrale") and Fischer S.A. Comércio, Indústria e Agricultura ("Fischer") in the First and Second 
Administrative Reviews.
4  In addition, Brazil challenges th e USDOC's alleged "continued use of 
zeroing" as "ongoing conduct" in successive anti- dumping proceedings, including in the original 
investigation resulting in the imposition of the an ti-dumping duty order on certain orange juice 
products from Brazil5, and each of the first three administrative reviews related to that order.6  
2.2 Brazil alleges two types of "zeroing" in this  dispute, which it describes as constituting 
different aspects of the same methodology:  "mode l zeroing" and "simple zeroing".  According to 
Brazil, "model zeroing" involves a number of steps:   First, the product under consideration is sub-
divided into a series of "averaging groups" or "m odels", and an annual we ighted-average normal 
value and export price is calculated for the tran sactions falling within each group or model.  A 
                                                      
4 Final Results of the First Administrative Review, 11 August 2008, 73 Fed. Reg. 46584.  
Exhibit BRA-21 ("First Administrative Review");  and Final Results of the Second Administrative Review, 
11 August 2009, 74 Fed. Reg. 40167.  Exhibit BRA-22 ("Second Administrative Review"). 
5 Anti-Dumping Duty Order:  Certain Orange Juice from Brazil, 9 March 2006, 71 Fed. Reg. 12183 
("Anti-Dumping Duty Order").  Exhibit BRA-3. 
6 First Administrative Review;  Second Administrative Review;  and Final Results of the Third 
Administrative Review, 18 August 2010, 75 Fed. Reg. 50999.  Exhibit BRA-49.  WT/DS382/R 
 Page 3 
BCI deleted, as indicated [[XX]] 
 
 comparison is then made between the annual weighted -average price of all export transactions and the 
annual weighted-average price of all domestic market  transactions in the same group or model.  Next, 
the multiple comparison results are aggregated and di vided by the total value of all comparable export 
transactions for all groups or models to arrive at a weighted-average margin of dumping.  In summing 
the comparison results by group or model, positive diffe rences (i.e., where the weighted average price 
of export transactions is less than the weighted-a verage normal value of the model or group) are 
added to determine the total amount of dumping, but  all comparison results showing negative results 
are disregarded or given a value of zero in the aggr egation exercise.  This practice of disregarding or 
counting as zero the negative results of weighted-a verage normal value to weighted-average export 
price comparisons ("W-W") is what Brazil describes as "model zeroing".  Brazil notes that the 
USDOC ceased to apply "model zeroing" in February 20077, after the results of the original 
investigation into exports of orange juice products from Brazil were issued. 
2.3 Brazil describes "simple zeroing" as very similar to "model zeroing", with the key difference 
stemming from the fact that the latter takes pl ace when using the W-W comparison methodology, 
whereas the former arises when comparing the weig hted-average normal value by model or group to 
the price of individual export transactions ("W-T" ).  As with W-W comparisons, results of W-T 
comparisons are aggregated and divided by the tota l value of all comparable export transactions to 
arrive at a weighted average margin of dumping.  Again, in making this calculation, only the positive 
comparison results are aggregated, with all negative r esults (i.e., where the export price is higher than 
weighted average normal value) disregarded or given a value of zero.  This practice of disregarding or 
counting as zero the negative comparison results when using the W-T comparison methodology is 
what Brazil describes as "simple zeroing".  
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS 
A. BRAZIL  
3.1 Brazil requests that the Panel find: 
(i) the United States' two administrative reviews concerning imports of certain 
orange juice from Brazil inconsistent  with Articles 2.4 and 9.3 of the 
AD Agreement and Article VI:2 of  the GATT 1994 due to the above-
mentioned alleged use of "zeroing";  and  
(ii) the continued use by the United States of "zeroing" in successive anti-
dumping proceedings, in relation to the anti-dumping duty order issued in respect of imports of certain orange juice from Brazil, including the 
original investigation and subsequent administrative reviews, by which duties 
are applied and maintained over a pe riod of time, inconsistent with 
Articles 2.4, 2.4.2 and 9.3 of the AD Agreement and Article VI:2 of the GATT 1994. 
3.2 Pursuant to Article 19.1 of the DSU, Braz il requests that the Panel recommend that the 
United States bring its measures, found to be inconsistent with the AD Agreement and the 
GATT 1994, into conformity with its obli gations under the covered agreements. 
                                                     
 
7 In particular, Brazil explains that on "Decemb er 27, 2006, the USDOC published a notice in the 
Federal Register announcing that it would no longer make W-to-W comparisons in investigations without 
providing offsets for non-dumped comparisons (71 Fed. Reg. 77722).  The effective date of entry into force of this modification was February 22, 2007 (72 Fed. Re g. 3783)".  Brazil, First Written Submission ("FWS"), 
footnote 31, citing Exhibits BRA-10 and BRA-11. WT/DS382/R 
Page 4 
BCI deleted, as indicated [[XX]] 
 
 B. THE UNITED STATES  
3.3 The United States asks the Panel to reject the en tirety of Brazil's claims concerning the First 
and Second Administrative Reviews as well as Brazil's claim regarding the alle ged "continued use" of 
"zeroing".  The United States also asks the Panel to  make two preliminary rulings concerning Brazil's 
claims with respect to the Second Administrative Review and the alleged "continued use" of "zeroing" 
in the orange juice anti-dumping proceedings.8  
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set out in their written submissions, oral statements to the 
Panel and their answers to questions.  Executive summaries of the parties' written submissions, and 
where provided oral statements9, are attached to this Report as annex es (see List of Annexes, pages iv 
and v).10   
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 Argentina;  the European Union;  Japan;  Ko rea;  Mexico;  Chinese Taipei;  and Thailand 
reserved their rights to participate in the Panel pr oceedings as third parties.  Thailand and Chinese 
Taipei did not submit third party written submissions;  and Argentina, Mexico, Chinese Taipei and 
Thailand did not submit third party oral statements.  The arguments of Argentina and Mexico are set 
out in their written submissions and answers to ques tions, and the arguments of the European Union, 
Japan and Korea are set out in their written subm issions, oral statements and their answers to 
questions.  Third parties' written submissions and oral statements, or executive summaries thereof, are 
attached to this Report as annexes (see List of Annexes, pages iv and v).  
VI. INTERIM REVIEW 
6.1 On 20 December 2010, we submitted our Interim Report to the parties.  On 12 January 2011, 
Brazil and the United States submitted written requests for review of precise aspects of the Interim Report.  On 7 February  2011, Brazil and the United States submitted written comments on each other's 
requests for interim review.  Neither party requ ested an additional meeting with the Panel. 
6.2 Due to changes as a result of the interim revi ew, the numbering of paragraphs and footnotes 
in the Final Report has changed from the Interim Repor t.  The text below refers to the paragraph and 
footnote numbers in the Interim Report.  Where we have made changes, a reference to the 
corresponding paragraph or footnote number in the Fi nal Report is included in parentheses for ease of 
reference.  In addition to the modifications me ntioned below, we have corrected a number of 
typographical and other non-substantive errors throughout the report. 
A. R
EVIEW REQUESTED BY BRAZIL  
6.3 Brazil requests review of paragr aphs 7.25, 7.51-7.54, 7.65, 7.69, 7.72, 7.73, 7.77-7.81, 7.86, 
7.115, 7.119, 7.125-7.127, 7.135, 7.136, 7.174, 7.180-7.182, 7.185 and 8.1, and footnotes 119-121, 124, 125, 135, 229, 271, 275-278.  In addition, Brazil asks for th e insertion a new paragraph after 
paragraph 7.86.   
                                                     
 
8 United States, First Written Submission ("FWS"), paras. 37-52. 
9 The parties' closing oral statements from the firs t substantive meeting with the Panel are attached in 
full. 
10 In accordance with the Working Procedures, executive summaries of  the parties' answers to the 
Panel's questions were not provided.  The arguments made in the parties' answers are therefore not reflected in 
the annexes to this Report.  WT/DS382/R 
 Page 5 
BCI deleted, as indicated [[XX]] 
 
 6.4 In the absence of any objections from the Un ited States, we have decided to accept the 
changes requested to paragraphs 7.25, 7.53 (par agraph 7.59 in the Final Report), 7.54 (7.60), 7.65 
(7.71), 7.69 (7.75), 7.72 (7.78), 7.73 (7.79), 7.78 (7.84), 7.79 (7.85), 7.80 (7.86), 7.81 (7.87), 7.86 
(7.92), 7.115 (7.122), 7.119 (7.126), 7.125 (7.132), 7.127 (7.134), 7.135 (7.142), 7.136 (7.143), 7.174 (7.181), 7.180 (7.187), 7.181 (7.188), 7.182 (7.189), 7.185 (7.192), 8.1 and footnotes 119-121 (127-
129), 124 (132), 125 (133), 219 (229), 229 (241), 271 (284), 277 (290) and 278 (291), albeit not 
always on the exact terms proposed by Brazil.  For th e reasons explained below, we have also agreed 
to inserting a new paragraph after paragraph 7.86  (7.92), and to modify the language used in 
paragraphs 7.126, 7.127 and 8.1.  However, we have declined Brazil's requests to amend 
paragraphs 7.51, 7.52 and 7.77. 
Paragraphs 7.51 and 7.52
 
 
6.5 Brazil considers that paragraphs 7.51 and 7. 52 of the Interim Report failed to accurately 
convey its arguments concerning the impact of "zeroing" in response to what it characterizes as the United States submission that, in certain of the instances challenged by Brazil, the USDOC's recourse 
to "zeroing" had no impact, and therefore did not  violate Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994.  Brazil recalls th at it had argued that the United States' use of 
"zeroing" under the orange juice anti-dumping duty order had three impacts: First, it resulted in the exclusion of a large number of negative comparis on results from the determination of the margin; 
second, it resulted in the determination of positive ma rgins of dumping higher than would have been 
the case without the use of "zeroing"; and third, it resulted in the determination of cash deposit rates 
("CDRs")  and importer-specific assessme nt rates ("ISARs") that were above de minimis levels.  
Brazil argues that paragraphs 7.51 and 7.52 faile d to convey the first two arguments and did not 
convey accurately the gist of Brazil's third argument.  Thus, Brazil requests that these paragraphs be modified to ensure that they set out a more comp lete and accurate description of Brazil's arguments.  
The United States did not comment on Brazil's request. 
6.6 We note that the section of the Interim Report Br azil refers to sets out Brazil's arguments in 
support of its claim that "simple zeroing" in the First and Second Administrative Reviews was 
inconsistent with Article 9.3 of the AD Agre ement and Article VI:1 of the GATT 1994.  Brazil 
presented essentially two lines of argument in support of this claim: First, that the use of "simple 
zerong" irrespective of its impact on the amount of anti-dumping duty collected is inconsistent with 
these provisions; and second, that even if "simple zeroing" were required to impact the amount of 
anti-dumping duty collected in order to violate th ese provisions (which is what is argued by the 
United States), the facts of the First and Second Ad ministraive Reviews confirm that there was such 
an impact for both respondents.  Pa ragraphs 7.51 and 7.52 sought to d escribe this latter argument, that 
is, what Brazil considered to be the impact of "simple zeroing" on the amount of anti-dumping duty 
collected that caused the United States to be in br each of its obligations under Article 9.3 of the AD 
Agreement and Article VI:2 of the GATT 1994.   
6.7 While it is true that Brazil identified the three impacts of "simple zeroing" described above, it 
did not claim that all three impacts resulted in a violation of Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994, which is the focus of  paragraphs 7.51 and 7.52 .  Therefore, we see no 
need to include Brazil's additiona l arguments in the relevant para graphs, and consequently decline 
Brazil's request.  
 Paragraph 7.77
 
 6.8 Brazil notes that the description of United States Administrative Reviews found in 
paragraph 7.77 of the Interim Report characterized a cash deposit as "an estimate of an importer's final amount of anti-dumping duty".  Brazil recalls , however, that the parties disagree on the legal 
characterization of cash deposits as a matter of WTO law, and that the Panel has not ruled on the WT/DS382/R 
Page 6 
BCI deleted, as indicated [[XX]] 
 
 matter.  Thus, Brazil suggests that the Panel reform ulate its characterization by noting that a CDR is 
determined by reference to each exporter's margin  of dumping, and that the description of a cash 
deposit as an estimate of future liability, reflects th e position of the United States.  The United States 
disagrees with Brazil's proposed revision, arguing th at the Interim Report text reflects more clearly 
and accurately the way in which the United States sets cash deposits. 
6.9 Brazil's requested modification suggests that it is of the view that by describing a cash deposit 
as "an estimate of an importer's final amount of an ti-dumping duty liability", the Panel has effectively 
prejudged one of the matters in dispute, namely , the question whether cash deposits amount to anti-
dumping duties or whether they are securities.  Howe ver, in our view, the mere description of cash 
deposits as "an estimate of an importer's final amount  of anti-dumping duty liability" does not express 
any view or conclusion on whether that "estimate" amounts to a duty or a security.  Indeed, the very 
sentence Brazil focuses upon in paragraph 7.77 makes cl ear that it is the United States that considers 
cash deposits to represent a "security", not the Panel.   Thus, we consider the proposed modification to 
be unnecessary and therefore decline Brazil's request.  
 Paragraph 7.86  
 
6.10 Brazil considers that paragraph 7.86 does not fu lly reflect the contextual arguments it made 
regarding the correct interpretation of the concept of "dumping".  In order to do so, Brazil proposes 
specific text for an additional paragraph it suggest s could be inserted after paragraph 7.86.  The 
United States does not agree with Brazil's proposed insertion as written, stating that it does not make 
clear that the suggested language reflects only Brazi l's view of the interpretation of "dumping".  The 
United States therefore asks the Panel to revise Braz il's proposed text to make clear that the proposed 
statements are Brazil's assertions.  We have decided to accept Brazil's requested modification to paragraph 7.86 (7.92), but slightly edited it to address the United States' concern.  
 Paragraphs 7.126, 7.127 and 8.1
 
 
6.11 Brazil finds certain views expressed by the Panel in paragraphs 7.126, 7.127 and 8.1 of the 
Interim Report on the impact of "zeroing" disputes on the WTO dispute settlement system unnacceptable.  According to Brazil, these views: " call into question the wisdom" of Brazil and other 
Members in bringing "zeroing" disputes; exte nd beyond the Panel's mandate ; and do not serve to 
advance the interests of the dispute settlement sy stem.  Thus, Brazil requests the Panel to delete 
certain portions of these paragraphs a nd suggests revisions to this effect. 
6.12 The United States considers that there is no basi s to accept Brazil's request.  The United States 
recalls that Article 11.7 of the DSU provides that "the report of the panel shall set out ... the basic 
rationale behind any findings and recommendations that it makes", and notes that the passages at issue 
explain why the Panel concludes as a legal matter that "dumping" cannot have a transaction-specific 
meaning.  The United States argues that Brazil's di sagreement with some elements of the Panel's 
reasoning provides no basis for its deletion.  To the contrary, according to the United States, the 
language challenged by Brazil is pa rt of the Panel's discussion of the systemic issues related to the 
Panel's conclusions, and theref ore should not be deleted. 
6.13 We note that the passages of text that Brazil obj ects to were not intended, as Brazil puts it, to 
"question the wisdom" of Members in bringing "zeroing" disputes.  We fully recognize that Members are entitled to bring challenges where they believe  that their rights under the WTO Agreement have 
been nullified or impaired.  The relevant passages were simply intended to draw attention to the 
continuing difficulties of interpretation arising in resp ect of this issue, which we believe reflect the 
lack of clarity in how the AD Agreement defin es "dumping".  The views expressed in the Interim 
Report that Brazil takes issue with were intended to  highlight this interpretative problem, its effects 
and potential consequences.  In the light of the pa rties' comments, we have decided to revise the  WT/DS382/R 
 Page 7 
BCI deleted, as indicated [[XX]] 
 
 relevant passages of paragraphs 7.126 (7.133) , 7.127 (7.134) and 8.1 in order to avoid any 
misunderstanding.     
B. REVIEW REQUESTED BY THE UNITED STATES  
6.14 The United States requests review of paragraphs 2.1, 7.3, 7.12-7.14, 7.22, 7.25, 7.26, 7.28, 
7.38, 7.58, 7.63, 7.66, 7.74, 7.80, 7.86, 7.87, 7.102, 7.106, 7.184, 7.185 and footnotes 126 and 147.  
6.15 In the absence of any objections from Brazil, we have decided to accept the United States' 
requests to make changes to paragraphs 2.1, 7.3, 7.12-7.14, 7.22, 7.25, 7.58 (7.64), 7.63 (7.69), 7.66 
(7.72), 7.74  (7.80), 7.86 (7.92), 7.87 (7.94), 7.102 (7.109), and footnote 147 (155), albeit not always on the exact terms proposed by the United States.  In addition, for the reasons expressed below, we 
have decided to accept the modifications the Unite d States requests to paragraphs 7.26, 7.28, 7.81 
(7.87) and 7.106 (7.113) and, in part, the change re quested to paragraph 7.80 (7.86).  However, we 
have declined the United States request concerni ng paragraphs 7.184 (7.191) and 7.185 (7.192), but 
have decided to modify the language used in these paragraphs in order to avoid confusion and to 
clarify our conclusions. 
 Paragraphs 7.26 and 7.28
 
 
6.16 The United States argues that the Panel's findings  in the Interim Report concerning its request 
for a preliminary ruling in respect of Brazil's ch allenge to the "continued zeroing" measure addressed 
only two of the three arguments it made in support of its request.  In particular, the United States notes 
that the Panel's ruling did not take into account its  argument that "continued zeroing" should not fall 
within the Panel's terms of refere nce because of Article 17.4 of the AD Agreement.  The United States 
asks the Panel to reflect this argument in the Fina l Report and, in addition, calls upon the Panel to 
evaluate its merits as a separate jurisdictional basis for finding the alleged "continued zeroing" 
measure outside of its terms of reference. 
6.17 Brazil suggests two edits to the changes sought by the United States to paragraphs 7.26 and 
7.28 in order to reflect the fact that the particul ar argument the United States now asks the Panel to 
refer to was made for the first time in its Opening St atement at the Panel's First Substantive Meeting.  
In addition, in the light of the United States' re quest, Brazil asks the Panel to insert one additional 
paragraph into the Final Report in order to captu re an argument it advanced in response to the 
United States.  Brazil objects to the United States' re quest to have the Panel evaluate the merits of the 
argument it made concerning Article 17.4 of the AD Agreement, recalling that Panels are not 
specifically required to address all of the arguments advanced by parties.  In any case, Brazil 
considers that the United States' argument should be rejected on its substance.   
6.18 We have decided to decline Brazil's suggested modifications to paragr aphs 7.26 and 7.28, but 
have accepted its request to refer to the additional argument it made in response to the United States' 
request for a preliminary ruling.  Paragraph 7.30 has been modified accordingly.  We have also 
accepted the United States' request to describe the ar gument it advanced in respect of Article 17.4 of 
the AD Agreement in paragraphs 7.26 and 7.28, a nd have evaluated its mer its in our findings at 
paragraphs 7.43-7.49 of the Final Report. 
 Paragraph 7.80  
 6.19 The United States submits that paragraph 7.80 inaccurately describes its position with regard 
to the margin of dumping for Fischer in the S econd Administrative Review.  The United States does 
not agree that the bracketed number referred to in  this paragraph is a weighted-average margin 
("WAM") for Fischer, and explains that the US DOC publishes exporters' WAMs in the Federal 
Register.  The United States argues that the com puter programme output from which the bracketed WT/DS382/R 
Page 8 
BCI deleted, as indicated [[XX]] 
 
 number is drawn is not the same as the official final WAM published in the Federal Register.  The 
United States asks the Panel to modify the langa uge in the penultimate sentence and delete the 
entirety of the last sentence of paragraph 7.80 in orde r to clarify this distinction.  Brazil objects to the 
United States' request to delete the last sentence, arguing that it cannot be justified. 
6.20 We note that the last sentence of paragraph 7. 80 was not intended to be understood to suggest 
that the United States believes that Fischer's official  WAM, published in the Federal Register, was the 
same as the output from the computer programme ru n by the USDOC.  Rather, the last sentence was 
intended to convey the fact that the United Stat es does not contest that the WAM published in the 
Federal Register for Fischer was 0%, precisely b ecause a WAM of [[XX]] was determined for Fischer 
through the computer programme.  Thus, we do not consider the changes the United States has 
requested to this paragraph to be necessary.  Neve rtheless, we have redrafted the last sentence of 
paragraph 7.80 (7.86) in orde r to avoid any misunderstanding. 
 Paragraph 7.81  
 6.21 The United States suggests that footnote 126, whic h appears in paragraph 7.81, be revised to 
reflect the fact that all transactions, including transactions where export price was not below normal 
value, were taken into account in the denominator of  the calculation of Fischer's ISAR in the Second 
Administrative Review.  To this end, the United States proposes that certain specific textual changes 
be made to the footnote.  Brazil objects to the Unite d States' proposed modification, arguing that it is 
premised on a definition of "dumping" that is disputed  between the parties and rejected by the Panel.  
Brazil advances its own textual modifications to footnote 126, which it considers would address the 
United States' concern while avoiding any confusion about the correct interpretation of the notion of 
"dumping".   
6.22 Footnote 126 explains and refers to evidence of  the United States' use of "simple zeroing" in 
the calculation of Fischer's ISAR in the Second Ad ministrative Review.  The description of how the 
United States determined this ISAR is consiste nt with how the "simple zeroing" methodology is 
described elsewhere in the Report (e.g. paragraph 7. 79).  In our view, it does not prejudge our views 
on the correct interpretation of the definition of "dumping".  Thus, we fail to see the problem that 
Brazil raises with the language proposed by the Un ited States and therefore accept the United States 
requested modifications to this footnote.   
 Paragraph 7.106
 
 
6.23 The United States considers that paragraph 7.106  contains an incomplete summary of its 
position regarding what it asserts is Brazil's use of "zeroing" under its prospective normal value 
system.  In particular, whereas the Interim Report in dicated that the United States had pointed to only 
"one particular instance" of Brazil's alleged rec ourse to "zeroing" when collecting duties on the basis 
of a prospective normal value, the United States recalls  that it had in fact identified the collection of 
duties by Brazil in this manner with respect to  products from "at least seven countries".  The 
United States asks that this submission be fully re flected in the Final Report.  Brazil objects to the 
United States' request, stating that  the United States' allegations are factually wrong.  According to 
Brazil, and contrary to the United States' assertions, the Brazilian investigating authority did not treat 
the amount of duties imposed in relation to a singl e entry as a margin of dumping in the instances 
identified by the United States.  Rather, Brazil argues that the relevant exhibits show that the amount 
of duties was capped at the level of a ma rgin of dumping previously established. 
6.24 We note that the relevant passage at issue in  paragraph 7.106 does not represent a factual 
finding on our part, but merely a description of an assertion made by the United States concerning how Brazil has allegedly collected anti-dumping duties in a number of cases.  To this extent, we have 
decided to grant the United States' request and ha ve consequently modified the language of this  WT/DS382/R 
 Page 9 
BCI deleted, as indicated [[XX]] 
 
 paragraph in order to fully reflect the United St ates' factual assertions.  Although Brazil did not 
immediately respond to the United States' assertio ns when they were made during the Second 
Substantive Meeting of the Panel with the parties,  we have decided to reflect the position it has now 
communicated with respect to the United States' alle gations in the Final Report.  We have modified 
footnote 177 (187) for this purpose.     
 Paragraph 7.184 and 7.185  
 6.25 The United States considers that the inferences drawn in paragraphs 7. 184 and 7.185 from the 
Issues and Decision Memoranda Brazil submitted to substantiate its claim in respect of "continued zeroing" are inherently speculative.  According to the United States, it is "incorrect" to read these 
Decision Memoranda as stating what approach the USDOC would take in a future proceeding because 
they pertain to the particular determinations at issue.   In this regard, the Unit ed States also notes that 
in US – Continued Zeroing , the Appellate Body did not take a position as to what the USDOC would 
do in the future, relying only on what had been done  to date.  Thus, the United States requests the 
deletion of the relevant statemen ts from paragraphs 7.184 and 7.185. 
6.26 Brazil objects to the United States' request on tw o grounds.  First, Brazil considers that the 
United States is, in essence, stating that the Panel's factual findings concerning the Issues and Decision Memoranda are "incorrect" on the ground th at it disagrees with the Panel's assessment.  
Brazil recalls, however, that it is a Panel's task to examine and weigh evidence as the trier of facts in 
WTO dispute settlement.  Thus, the fact that the United States disagrees with the Panel's assessment 
does not render it "incorrect".  Secondly, Brazil cons iders that the Panel correctly concluded that the 
Issues and Decision Memoranda support Brazil's claims concerning "continued zeroing", submitting 
that in the absence of any change to the United States' "zeroing" policy, the Memoranda show that the 
use of "zeroing" is part of the USDOC's calculation methodology. 
6.27 We note that the statements in  paragraphs 7.184 and 7.185 that are the focus of the United 
States' request do not conclude that the USDOC will continue to use the "zerong procedures" in future 
administrative reviews under the orange juice anti-dumping duty order.  Rather, the statements 
indicate only that the Issues and Decision Memoranda "strongly suggest" or "leave little doubt" that this would be the case.  Moreover, we do not agre e with the United States view that the Appellate 
Body in US – Continued Zeroing  did not take a position on whethe r the USDOC would continue to 
use the "zeroing procedures" in the administrative revi ews at issue in that dispute.  On the contrary, 
the Appellate Body expressly conc luded in that dispute that the evidence before it provided a 
sufficient basis to find that "the zeroing methodology would likely continue
 to be applied in 
successive proceedings".11  Thus, we see no reason to delete the relevant statements made in 
paragraphs 7.184 and 7.185, and therefore decline th e United States' request.  Nevertheless, we have 
decided to amend the language in these paragraphs in order to clarify that the Panel's evaluation of the 
contents of the Issues and Decision Memoranda refl ects an assessment of the intention held by the 
USDOC at the time those documents were published.  A modification to this end has been made in the 
Final Report at paragr aphs 7.191 and 7.192. 
                                                      
11 Appellate Body Report, US – Continued Zeroing , para. 191 (emphasis added). WT/DS382/R 
Page 10 
BCI deleted, as indicated [[XX]] 
 
 VII. FINDINGS 
A. UNITED STATES ' REQUESTS FOR PRELIMINARY RULINGS  
1. Second Administrative Review 
(a) Arguments of the United States 
7.1 The United States asserts that Brazil's request  for the establishment of a panel ("panel 
request"), which it submits defines this Panel's te rms of reference, identified the "2007-2008 anti-
dumping duty administrative review on certain oran ge juice from Brazil (the 'Second Administrative 
Review')" as one of the measures at issue.  However,  the United States points out that the final results 
in Second Administrative Review were issued on 11 August 2009, well after the date of Brazil's 
request for consultations, dated 27 May 2009.  Thus, according to the United States, the measure that 
Brazil challenges in its panel request did not exis t at the time of its consultations request, and 
therefore could not have been subject to consultations.12 
7.2 The United States recognizes that the prelimin ary results of the Second Administrative 
Review had been issued by the time of Brazil's reque st for consultations.  However, the United States 
explains that preliminary results are not final, and their publication simply affords interested parties an 
opportunity to provide comments, which the Un ited States Department of Commerce ("USDOC") 
considers before making a final determination.  The United States submits that prior to the issuance of 
the final results of the Second Administrative Revi ew, it was entirely possible that no definitive duties 
would have been levied at all.  The United States a sserts that this is exactly what happened for one of 
the two respondents (Fischer) in the Second Administrative Review.13 
7.3 The United States recalls that a panel's terms of  reference are determined by the complaining 
party's panel request, and that pursuant to Article 4.7 of the DSU, a complaining party may request 
establishment of a panel only if "consultations fail to settle a dispute".14  The United States argues that 
Articles 17.3 through 17.5 of the AD Agreement cont ain requirements that parallel those of the DSU, 
and the AD Agreement clarifies further the relati onship between consultatio ns and panel requests 
under that Agreement.  The United States notes that Article 17.4 provides that a Member may only 
refer "the matter" to the DSB following a failure of consultations to achieve a mutually agreed 
solution, and final action by the administering authorities to levy definitive antidumping duties or accept price undertakings.  The United States submits further that, in Guatemala – Cement , the 
Appellate Body found that the term "matter" has the same meaning in Article 17.3, relating to the 
request for consultations, and in Articles 17.4 and 17 .5, relating to the referral of a matter to the DSB 
and the request for the establishment of a panel.  Thus, the United States submits that a Member may 
only file a panel request with respect to a measu re upon which the consulta tions process has run its 
course;  and the United States considers that no such consultations were held in respect of the "2007-
2008 anti-dumping duty administrative review on certain orange juice from Brazil (the 'Second Administrative Review')".  In this light, the Unite d States asks the Panel to make a preliminary ruling 
that Brazil's claims against this measure are outside of its terms of reference. 
(b) Arguments of Brazil 
7.4 Brazil notes that although Article 6.2 of the DSU requires that consultations be held between 
parties in dispute, it does not require that the meas ures identified in the panel request be identical to 
the measures identified in the consultations request .  Brazil recalls that the Appellate Body has on 
                                                     
 
12 United States, FWS, paras. 37, 46 and 48. 
13 US, FWS, para. 47. 
14 US, FWS, para. 39.  WT/DS382/R 
 Page 11 
BCI deleted, as indicated [[XX]] 
 
 several occasions explained that "Articles 4 and 6 of the DSU [do not] ... require a precise and exact 
identity between the specific measures that were  the subject of consultations and the specific 
measures identified in the request for the establishment of a panel".15  Rather, Brazil argues that 
panels and the Appellate Body have  consistently held that a panel' s terms of reference may include a 
measure properly identified in the panel request, even if that measure was not included in the 
consultations request, provided that doing so does not change the "essence" of the dispute.16 
7.5 Brazil submits that its consultations and panel requests both identified the Second 
Administrative Review, which was ongoing when  the consultations request was filed.17  According to 
Brazil, the consultations request also included a reference to "any on-going or future antidumping 
administrative reviews ... related to the imports of  certain orange juice from Brazil (case no. A-351-
840)", as well as the "continued use of zeroing pro cedures" by the United States in successive anti-
dumping proceedings under the orange juice anti-du mping duty order.  Thus, Brazil argues that the 
relevant measures were identified with sufficient cl arity for the United States to comprehend that the 
Second Administrative Review was part of the dispute.   
7.6 Brazil also submits that the Second Administ rative Review has very close substantive 
connections to, and the same essence as, the First Administrative Review.  Brazil explains that the 
Second Administrative Review followed the First Administrative Review adopted under the same 
anti-dumping duty order.  The Second Administrativ e Review also involved the same type of 
determinations as the First Administrative Review, made by the same United States administering authority, concerning the same products, the same exporters, and the same exporting country.  Brazil 
also highlights that the First and Second Admini strative Reviews provide succeeding bases for the 
continued imposition of anti-dumping duties under the orange juice anti-dumping duty order.  Brazil 
submits that these connections are confirmed by the fact that, under the USDOC's Regulations, all administrative (and other) reviews occurring under a single order are mere "segments" of a single "proceeding" that continues until revocation.
18   
7.7 Finally, Brazil argues that, if the Second Administrative Review were excluded from the 
panel's terms of reference, it woul d be difficult, if not impossible, to pursue WTO dispute settlement 
with respect to United States' administrative reviews.  Because the United States conducts 
                                                      
15 Brazil, Comments on US Prelimin ary Rulings Request ("Brazil, Pr eliminary Rulings"), para. 7, 
referring to Appellate Body Report, Brazil – Export Financing Programme for Aircraft ("Brazil – Aircraft "), 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161, para. 132.  See also, e.g. , Panel Report, 
United States – Continued Existence and Application of Zeroing Methodology  ("US – Continued Zeroing "), 
WT/DS350/R, adopted 19 February 2009, as modified by Appellate Body Report WT/DS350/AB/R, para. 7.23;  
Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology ("US – 
Continued Zeroing "), WT/DS350/AB/R, adopted 19 February 2009, para. 222;  and Appellate Body Report, 
United States – Subsidies on Upland Cotton  ("US – Upland Cotton "), WT/DS267/AB/R, adopted 21 March 2005, 
DSR 2005:I, 3, para. 285. 
16 Brazil, Preliminary Rulings , paras. 9-22, referring inter alia  to Panel Report, Canada – Measures 
Affecting the Export of Civilian Aircraft ("Canada – Aircraft "), WT/DS70/R, adopted 20 August 1999, as upheld 
by Appellate Body Report WT/DS70/AB/R, DSR 1999:IV, 1443, para. 9.14;  Appellate Body Report, Brazil – 
Aircraft , para. 132;  Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products ("Chile – Price Band System "), WT/DS207/AB/R, adopted 23 October 2002, 
DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473), para. 139;  Panel Report, Dominican Republic – Measures 
Affecting the Importation and Internal Sale of Cigarettes  ("Dominican Republic – Import and Sale of 
Cigarettes "), WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, 
DSR 2005:XV, 7425, para. 7.21;  Appellate Body Report, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts ("EC – Chicken Cuts "), WT/DS269/AB/R, WT/DS286/AB/R, adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, 9157, para. 157;  Appellate Body Report, US – Continued 
Zeroing , in particular paras. 222 and 228. 
17 Brazil, Preliminary Rulings, paras. 3-4 and 23. 
18 Brazil, Preliminary Rulings, para. 25, referring to 19 C.F.R. § 351.102.  Exhibit BRA-44. WT/DS382/R 
Page 12 
BCI deleted, as indicated [[XX]] 
 
 administrative reviews on an annual basis, Brazil argu es that if a complainant were required to file a 
new consultations request for every administrativ e review, WTO dispute settlement would become a 
"moving target", and the recommendations and ruli ngs of the DSB could not address the latest 
measure.  According to Brazil, this would need lessly prevent the prompt settlement of disputes.19 
7.8 Thus, Brazil asks the Panel to reject the United States' request for the exclusion of the Second 
Administrative Review from its terms of reference, and instead find that it properly falls within the 
scope of this dispute. 
(c) Arguments of the Third Parties 
(i) European Union 
7.9 The European Union considers that Brazil's consultations and pane l requests adequately 
identified the Second Administrative Review as one of the challenged measures.20  Moreover, the 
European Union argues that since the Second Admi nistrative Review is part of the "continued 
zeroing" measure, which the European Union consider s is within the panel's terms of reference, the 
fact that the final results were published only after consultations were  held is irrelevant.21  Thus, the 
European Union urges the Panel to reject the United States' request for preliminary ruling. 
(ii) Japan 
7.10 Japan recalls that the Appellate Body has found that Articles 4 and 6 of the DSU "set forth a 
process by which a complaining party must request consultations, and consul tations must be held, 
before a matter may be referred to the DSB for the establishment of a panel".22  Moreover, Japan also 
notes that the Appellate Body has held that "consulta tions provide the parties an opportunity to define 
and delimit the scope of the dispute between them"23;  and that Articles 4 and 6 do not "require a 
precise and exact identity  between the specific measures that were the subject of consultations and the 
specific measures identified in the request  for the establishment of a panel".24  Rather, "[a]s long as 
the complaining party does not expand the scope of the dispute", the Appellate Body has said it would 
"hesitate to impose too rigid a standard for the 'precise and exact identity' between the scope of 
consultations and the request for the establishment of a panel, as this would substitute the request for 
consultations for the panel request".25 
7.11 Japan notes that the Second Administrative Revi ew was subject to consultations and is 
included in the Panel's terms of reference.  Jap an recognizes that the final results of the Second 
Administrative Review had not been issued at the time  of Brazil's request for consultations.  However, 
it asserts that the Review had been initiated and a final result was expected to be issued within a 
certain period.  Japan observes that Brazil's panel re quest mentioned the date and contents of the final 
result of the Second Administrative Review.  Thus, Jap an argues that, in the light of the description in 
the request for consultations, Brazil's consultations provided the parties with an opportunity to define 
and delimit the scope of the dispute between them.  After reviewing Brazil's consultations request and 
                                                      
19 Brazil, Preliminary Rulings, para. 27. 
20 EU, Third Party Written Subm ission ("TPWS"), para. 5. 
21 EU, TPWS, para. 8. 
22 Appellate Body Report, Brazil – Aircraft , para. 131. 
23 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) 
from the United States – Recourse to Article 21.5 of the DSU  by the United States ("Mexico – Corn Syrup 
(Article 21.5 – US) "), WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675, para. 54. 
24 Appellate Body, Brazil – Aircraft , para. 132 (Emphasis original). 
25 Appellate Body Report, US – Upland Cotton , para. 293.  WT/DS382/R 
 Page 13 
BCI deleted, as indicated [[XX]] 
 
 panel request, Japan concludes that it is sure that Br azil's panel request has not  broadened the scope of 
the dispute.  Thus, Japan submits that the Panel should dismiss the United States' request.26 
(iii) Korea 
7.12 Korea submits that there is no basis to suppor t the United States' request for a preliminary 
ruling because a combined reading of Articles 17. 3 and 17.4 of the AD Agreement indicate that 
consultations may be requested before "final action"  is taken by the administering authorities, while 
the establishment of a panel may not be requested un til after that "final action" has occurred.  In 
particular, Korea notes that Article 17.3 of the AD Agreement, which authorizes WTO Members to 
request consultations, does not contain any language that might be read to suggest that a Member 
must wait to request consultations until a final determ ination has been issued.  By contrast, the first 
sentence of Article 17.4, which authorizes WTO Members to refer matters to the DSB for 
establishment of a panel, does specifically require complaining Members to wait until (1) consultations under Article 17.3 "have failed to achieve a mutually agreed solution", and (2) "final 
action has been taken by the administering author ities of the importing Member to levy anti-dumping 
duties ….".  Korea argues that if the administrativ e authorities have not yet taken "final action", the 
matter may not be referred to the DSB for establishmen t of a panel (except to the extent permitted by 
the second sentence of Article 17.4, concerning pa nel review of "provisional measures").   
7.13 According to Korea, the clear implication of th is combined reading of the two provisions is 
that consultations may be requested before "fin al action has been taken by the administering 
authorities".  Korea submits that if this were not the case, there would be no need to include a 
requirement of "final action" in the first sentence of  Article 17.4.  If consu ltations could be requested 
only after "final action" by the administering author ities, Korea argues that the provisions of the first 
sentence of Article 17.4 requiring that consulta tions be held (and "have failed") would embody a 
requirement of "final action" as well.  Under such an interpretation, Korea considers that the language 
requiring "final action" in the first sentence of Article 17.4 would be redundant. 
7.14 Thus, Korea argues that, consistent with the pr inciple of effective treaty interpretation, 
Article 17.3 of the AD Agreement must be read to  allow for the possibility of holding consultations 
on measures before "final action" has been taken.  Accordingly, Korea asks the Panel to reject the 
United States' request for a preliminary ruling.
27 
(iv) Mexico 
7.15 Mexico considers that the United States' argum ents for seeking the exclusion from the Panel's 
terms of reference of Brazil claims against the Second Administrative Review are factually incorrect 
and misstate the role of consultations in defining the Panel's terms of reference.  Mexico asserts that, 
as a factual matter, Brazil did specifically seek consultations, and in fact did consult with the United States, in respect of the Second Administrativ e Review.  Moreover, Mexico argues that Brazil 
was not required to request consultations precisely with respect to the Second Administrative Review 
in order to properly include it in its panel request , recalling that neither Articles 4 and 6 of the DSU 
"require a precise and exact identity  between the specific measures that were the subject of 
consultations and the specific measures identified in  the request for the establishment of a panel".
28  
Thus, according to Mexico, as long as Brazil made cl ear that it was challenging the application of 
zeroing in recent and ongoing administrative re views, sufficient notice was provided to the 
United States, and the Second Administrative Revi ew could properly be challenged in the panel 
                                                      
26 Japan, Third Party Written Submission ("TPWS"), paras. 13-17. 
27 Korea, Third Party Written Submission ("TPWS"), paras. 8-10. 
28 Mexico, Third Party Written Submission ("TPWS"), para. 15, quoting from Appellate Body Report, 
Brazil – Aircraft , para. 132 (emphasis original). WT/DS382/R 
Page 14 
BCI deleted, as indicated [[XX]] 
 
 request as a measure subject to the Panel's terms of re ference.  In this regard, Mexico recalls that the 
panel was confronted with, and dismissed, a similar request for a preliminary ruling in US – 
Continued Zeroing .  Mexico invites the Panel to do the same in the present dispute.29   
(d) Evaluation by the Panel 
7.16 In general, a panel's terms of re ference are found in the panel request30, where pursuant to 
Article 6.2 of the DSU, a complaining Member must "indicate whether consultations were held, 
identify the specific measures at issue and provide a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly".  The United States' request for a preliminary ruling 
concerning Brazil's complaint against the Second Ad ministrative Review does not take issue with 
whether the measure being challenged, or the claims  being made, are properly described in the Panel's 
terms of reference.  Rather, the United States asks that  we rule that Brazil's claims are outside of the 
terms of reference of this dispute because it alleges that the final results of the "2007-2008 anti-
dumping duty administrative review on certain oran ge juice from Brazil (the 'Second Administrative 
Review')" did not exist at the time of Brazil's cons ultations request, and therefore they could not have 
been the subject of consultations. 
7.17 It is well established that in order to bring a matter before a WTO dispute settlement panel, a 
Member must first make a request for consultations and consultations must take place in respect of 
that matter.  In Brazil – Aircraft , the Appellate Body observed that: 
"Articles 4 and 6 of the DSU ... set forth a process by which a complaining party must 
request consultations, and cons ultations must be held, befo re a matter may be referred 
to the DSB for the establishment of a panel".31 
Article 4.4 of the DSU prescribes that a consultati ons request must "be submitted in writing and shall 
give the reasons for the request, including identifica tion of the measures at issue and an indication of 
the legal basis for the complaint".  Moreover, fo r the purpose of dispute settlement, the scope of 
consultations are defined by what is expressed in th e consultations request (and not by any record of 
what was actually discussed).32  A Member cannot, therefore, challenge a measure in panel 
proceedings unless it has been identified in its request  for consultations.  However, it is not necessary 
for there to be "a precise and exact identity between  the specific measures that were the subject of 
consultations and the specific measures identified in the request for the establishment of a panel" in 
order for the latter to properly fall within a panel's terms of reference.33  In this regard, the Appellate 
Body in US – Upland Cotton  explained that: 
 
"As long as the complaining party does not expand the scope of the dispute, we 
hesitate to impose too rigid a standard for the 'precise and exact identity' between the 
scope of consultations and the request for the establishment of a panel, as this would 
substitute the request for consultations for the panel request.  According to Article 7 
of the DSU, it is the request for the estab lishment of a panel that governs its terms of 
reference, unless the parties agree otherwise."34  
                                                      
29 Mexico, TPWS, paras. 11-20. 
30 Article 7.1 DSU. 
31 Appellate Body Report, Brazil – Aircraft , para. 131.  A parallel process is envisaged under 
Articles 17.3 to 17.5 of the AD Agreement.  See Appellate Body Report, Guatemala – Cement I , paras. 57-80. 
32 Appellate Body Report, US – Upland Cotton , paras. 286-287. 
33 Appellate Body Report,  Brazil – Aircraft , para. 132. 
34 Appellate Body Report, US – Upland Cotton , para. 293 (footnotes omitted).  WT/DS382/R 
 Page 15 
BCI deleted, as indicated [[XX]] 
 
 7.18 Thus, in evaluating the merits of the United Stat es' request for a preliminary ruling, we see the 
main question to be resolved to be  whether Brazil's reference to the final results of Second 
Administrative Review in its panel request has e xpanded the scope of the dispute beyond the contours 
of what the United States could have reasonably understood from Brazil's request for consultations.  
We start by reviewing Brazil's request for consultations. 
7.19 Brazil's request for consultations is constituted by two documents:  an original request for 
consultations and an addendum.  Brazil's original request is dated 27 November 2008 (circulated on 
1 December 2008).  This request identified the Firs t Administrative Review under the orange juice 
anti-dumping duty order and "any on-going or future  antidumping administrative reviews, and the 
final results thereof, related to the imports of certain orange juice from Brazil (case no. A-351-840)" 
as the USDOC "determinations" raising concern.35  As regards the First Administrative Review, the 
original consultations request reveals that Brazil t ook issue with the USDOC's alleged application of 
"zeroing".   
7.20 The addendum to Brazil's original request for consultations is dated 22 May 2009 (circulated 
on 27 May 2009).  This document states that Brazil and the United States held consultations on 
16 January 2009 covering the First and Second Admi nistrative Reviews "pursuant to the original 
request for consultations, which included among othe rs: the First Administrative Review ... and, any 
on-going or future antidumping administrative revi ews" under the orange juice anti-dumping duty 
order.36  In other words, although not expressly mentioned in Brazil's original request for 
consultations, the Second Administrative Revi ew appears to have been discussed during the 
16 January 2009 consultations between  the two parties.  In this regard, we note that the Second 
Administrative Review was in progress at the time of the January 2009 consultations, with 
preliminary results being issued on 6 April 2009.37  Reflecting this state of affairs, the addendum to 
Brazil's original consultations request explicitly identified the Second Administrative Review as one 
of the measures Brazil wished to consult about with the United States.38 
7.21 Brazil's request for establishment of a pane l is dated 20 August 2009 (circulated 
21 August 2009).  This document recalls that by vi rtue of the addendum to its original request for 
consultations, Brazil had requested further consultations with the Un ited States concerning "the use of 
'zeroing' in the anti-dumping duty investigation an d in the second administrative review related to 
case No A-351-840 ...".39  The same document explains that a second round of consultations was held 
on 18 June 2009.  It also identifies the final results  of the Second Administrative Review, which had 
been issued on 11 August 200940, as one of the measures at issue in the following terms: 
"(c) The 2007-2008 anti-dumping duty admini strative review on certain orange juice 
from Brazil (the 'Second Administrative Review') 
This anti-dumping proceeding concerns the administrative review of anti-
dumping duties on certain orange juice from Brazil (case No A-351-840) for the period 1 March 2007 through 29 February 2008.  The final results of this 
                                                     
 
35 Request for Consultations by Brazil, 1 December 2008, WT/DS382/1, p. 1 
36 Request for Consultations by Brazil (Addendum), 27 May 2009, WT/DS382/1/Add.1, p. 1 
37 Second Administrative Review, Final Results, Exhibit BRA-22. 
38 Request for Consultations by Brazil (Addendum), 27 May 2009, WT/DS382/1/Add.1, p. 2 ("The 
Antidumping Duty Administrative Review from 1 March 2007 to 29 February 2008 (the 'Second Administrative 
Review'), related to the imports of certain or ange juice from Brazil (case n° A-351-840)"). 
39 Request for the Establishment of a Pane l by Brazil, 21 August 2009, p. 1. 
40 Second Administrative Review, Final Results, Exhibit BRA-22. WT/DS382/R 
Page 16 
BCI deleted, as indicated [[XX]] 
 
 Second Administrative Review were published in 74 Fed. Reg. 40167 on 
11 August 2009. ..."41 
7.22 In our view, Brazil's reference to the final resu lts of the Second Administrative Review in its 
panel request does not expand the scope of the compla int presented in its request for consultations.  
Not only do Brazil's original consultations request and addendum respectively identify a concern with 
"any on-going or future antidumping administrative revi ews, and the final results thereof, related to 
the imports of certain orange juice from Brazil (case no. A-351-840)" and the "Second Administrative 
Review", but it appears that the USDOC's conduc t during the Second Administrative Review was 
discussed in both consultations that were actually held.  While it is true that the final results of the 
Second Administrative Review were not yet issued  at the time of those consultations, we do not 
consider this to mean that Brazil's focus on these r esults in its panel request expanded the scope of its 
complaint beyond what the United States could have reasonably understood the dispute to be about.  
On the contrary, we see the explicit reference to th e final results of the Second Administrative Review 
as merely confirming the content of the complain t Brazil appears to have always been making. 
7.23 In support of its objection to Brazil's inclusion of the final results of the Second 
Administrative Review in the panel re quest, the United States refers to US – Certain EC Products 
dispute.  In that controversy, the European Co mmunities sought to challenge two measures taken by 
the United States in retaliation to the EC's alle ged failure to implement the recommendations and 
rulings of the DSB in the EC – Bananas  dispute.  The first measure, taken by the US Customs 
Service, imposed increased bonding requirements on im ports of certain EC products, which subject to 
the decision of the arbitrator in the EC – Bananas dispute, could potentially result in the payment of 
additional duties of 100%.  This measure was effec tive as of 3 March 1999, and was identified in both 
the consultations and panel requests.  The second measure was adopted by the USTR and imposed 
100% duties on some, but not all, of the designated products that were previously subject to the 
increased bonding requirements, in the light of the arbitrator's ruling in EC – Bananas .  This second 
measure was adopted on 19 April 1999 and was identifi ed only in the panel request.  Thus, at the time 
of the consultations request, dated 4 March 1999, the second measure did not exist.   
7.24 The panel and Appellate Body found that the 19 April 1999 measure was outside of the 
panel's terms of reference, not only because it did not exist at the time of consultations (and therefore 
could not have been subject to consultations), but also because they found it to be "legally distinct" 
from the 3 March 1999 measure.  Among the factors c onsidered by the Appellate Body to indicate 
that the two measures were "legally distinct" include d the fact that the substance of the two measures 
was not entirely the same;  that different legal b ases and different United States government agencies 
were responsible for each measure;  and the fact  that the first measure was not in any way a 
prerequisite for the second measure.42   
7.25 In our view, the circumstances surrounding the United States' request for a preliminary ruling 
in the present dispute are clearly different to the particular facts of US – Certain EC Products .  For 
instance, as we have already noted, although the final results of the Second Administrative Review 
were not mentioned in Brazil's original  consultations request and addendum, the Second 
Administrative Review and its preliminary results were in fact identified.  The final results of the 
same Second Administrative Review are part of th e same proceeding undertak en by the same United 
States' agency in relation to the same product.  Th e final results of the Second Administrative Review 
represent the USDOC's final determination of the i ssues at stake in the Second Administrative Review 
under the orange juice anti-dumping duty order;  i ssues which included those Brazil had identified in 
                                                      
41 Request for the Establishment of a Pane l by Brazil, 21 August 2009, p. 1. 
42 Appellate Body Report, United States – Import Measures on Certain Products from 
the European Communities ("US – Certain EC Products "), WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, 373, paras. 74-77.  WT/DS382/R 
 Page 17 
BCI deleted, as indicated [[XX]] 
 
 its original consultations request and addendum.  It is also important to note that Brazil's claims in 
respect of the final results of the Second Administra tive Review are identical to those raised in its 
original consultations request and addendum concerning the Second Administrative Review and its 
preliminary results.  Thus, we cannot see how Brazil's focus on the final results of the Second 
Administrative Review in its panel request expand s the scope of its complaint beyond what the 
United States could have reasonably understood thro ugh Brazil's consultations request.  Indeed, as we 
have already observed, the explicit reference to th e final results of the Second Administrative Review 
merely confirms the content of the complaint Br azil appears to have always been making.  We 
therefore reject the United States request for a prelim inary ruling and find that the final results of the 
Second Administrative Review fall with in our terms of reference.   
2. "Continued Zeroing" 
(a) Arguments of the United States 
7.26 The United States requests the Panel to make a pr eliminary ruling that Brazil's claims against 
the "continued use" of "zeroing" do not fall within its terms of reference because:  (i) Brazil's panel 
request lacks specificity as regards the alleged meas ure;  (ii) Brazil's challenge purports to include 
future measures that were not in existence at the ti me of the establishment of this Panel; and (iii) the 
alleged measure did not involve a final action to levy definitive anti-dumping duties or accept price 
undertakings as required by Article 17.4 of the AD Agreement.   
7.27 The United States argues that Brazil's focus on "continued zeroing" is nothing more than a 
challenge to "an indeterminate number of potential m easures".  The United States recalls that in order 
to satisfy the requirements of Article 6.2, a pane l request must identify the "specific" measures at 
issue.  According to the United States, in challenging "continued zeroing" Brazil is speculating as to 
what may happen in the future, and such speculation is not an identification of a "specific" measure.43 
7.28 Referring to previous terms of refere nce rulings by the panels in the US – Upland Cotton and 
Indonesia – Autos  disputes, the United States also submits that future measures that are not yet in 
existence at the time of panel establishment are not w ithin a panel's term of reference under the DSU.  
The United States asserts that the alleged "contin ued zeroing" measure is focused on "indeterminate 
future measures that did not exist at the time of Brazil's panel request (and may never exist)".  The 
United States submits that such measures cannot be "impairing any benefits accruing to Brazil", 
within the meaning of Article 3.3 of the DSU, and th erefore they cannot be with in the Panel's terms of 
reference.44  Furthermore, the United States argues th at including "continued zeroing" within the 
Panel's terms of reference would be contrary to  Article 17.4 of the AD Agreement because it would 
ignore the fact that, for any given importation, the imposition of anti-dumping duties is grounded in a 
specific final action, and no such final action h as been taken in the case of "continued zeroing". 
(b) Arguments of Brazil 
7.29 Brazil recalls that the Appellate Body has observed that the specificity requirement in 
Article 6.2 of the DSU means that "the measures at issue must be identified with sufficient precision 
so that what is referred to adjudication by a panel may be discerned from the panel request ".45  Brazil 
notes that in US – Continued Zeroing , the Appellate Body found that  the European Communities had 
satisfied this standard when it identified a "speci fic measure" that the Appellate Body described as 
"the use of the zeroing methodology in successive  proceedings, in each of the 18 [anti-dumping] 
                                                      
43 US, FWS, para. 51. 
44 US, FWS, para. 52. 
45 Brazil, Preliminary Rulings, para. 33, quoting Appellate Body Report, US – Continued Zeroing , 
para. 168. WT/DS382/R 
Page 18 
BCI deleted, as indicated [[XX]] 
 
 cases, by which the anti-dumping duties are maintained".46  Brazil submits that the measure it has 
described in its panel request uses very simila r language, noting that the only material difference 
between Brazil's description and the measure at issue in US – Continued Zeroing  is that in Brazil's 
case, the measure addresses continued conduct un der a different anti-dumping duty order from the 
orders implicated by the European Communities.47  Indeed, given the Appellate Body's own 
formulation of the "continued use" measure in US – Continued Zeroing , Brazil argues that the 
formulation used in the panel request is more than  sufficient for the Panel, the United States, and the 
third parties to "identify[] with sufficient precision … what is referred to adjudication".  In particular, 
according to Brazil, the panel request specifies that:  (1) the measure involves the use of "zeroing" in 
successive anti-dumping proceedings;  (2) the relevant  proceedings in which "zeroing" is used are 
those conducted pursuant to a named anti-dumping duty order;  (3) the particular types of anti-
dumping proceedings in which "zeroing" is used in clude original investigations and administrative 
reviews;  and (4) the determinations made in th ese proceedings using "zeroing" provide the basis for 
the application and maintenance of anti-dumpi ng duties under the order over a period of time.48 
7.30 Brazil rejects the United States allegations to the effect that the measure at issue is of a type 
that cannot be challenged in WTO dispute settlement  and that it does not exist, recalling that faced 
with similar arguments in US – Continued Zeroing , the Appellate Body explained that "... the 
identification of the specific measures at issue,  pursuant to Article 6.2, is different from a 
demonstration of the existence of such measures";  and that "an examination regarding the specificity 
of a panel request does not entail substantive c onsideration as to what types of measures are 
susceptible to challenge in WTO dispute settlement".49  In addition, Brazil considers that the United 
States' characterization of its complaint as a challe nge to potential future measures misses the point.  
According to Brazil, the United States' position fails  to appreciate the difference between a "continued 
use" measure and challenges to individual determin ations.  Brazil argues that the "continued use" 
measure involves ongoing conduct in the form of us e of the "zeroing" methodology under a particular 
anti-dumping order.  In its view, this is  not a "potential future measure[]",50 but an actual measure that 
exists today.51 
7.31 Thus, Brazil asks the Panel to reject the Unite d States' request for the exclusion of the 
"continued use" measure from its terms of reference,  and find instead that it falls within the scope of 
this dispute.52 
(c) Arguments of the Third Parties 
(i) European Union 
7.32 The European Union recalls that the Appellate Body in US – Continued Zeroing was faced 
with essentially the same issue that  is before the Panel in the pr esent dispute, namely, whether the 
European Union's complaint against the United States' alleged "continued zeroing" as "ongoing conduct" was within the panel's terms of refere nce.  The European Un ion recalls that in US – 
Continued Zeroing , the Appellate Body ruled that "the identification of the specific measures at issue, 
pursuant to Article 6.2, is different from a demonstr ation of the existence of such measures", rejecting 
"the proposition that an examination of the specifici ty requirement under Article 6.2 of the DSU must 
                                                     
 
46 Brazil, Preliminary Rulings, para. 34, quoting Appellate Body Report, US – Continued Zeroing , 
para. 166. 
47 Brazil, Preliminary Rulings, para. 39. 
48 Brazil, Preliminary Rulings, paras. 40-41. 
49 Brazil, Preliminary Rulings, paras. 43-45, quoting from Appellate Body Report, para. 169. 
50 US, FWS, para. 52. 
51 Brazil, Preliminary Rulings, para. 54. 
52 Brazil, Preliminary Rulings, paras. 29-56.  WT/DS382/R 
 Page 19 
BCI deleted, as indicated [[XX]] 
 
 involve a substantive inquiry as to the exis tence and precise content of the measure".53  As regards the 
proper identification of the alleged measure in its  panel request, the European Union notes that the 
Appellate Body saw "no reason to exclude ongoing c onduct that consists of the use of the zeroing 
methodology from challenge in WTO dispute settlement".54  The European Union asks the Panel to 
come to the same result in respect of Brazil's challe nge to the United States' "continued zeroing" in the 
orange juice anti-dumping proceedings.55 
(ii) Japan 
7.33 Japan finds no substantial difference betw een the "continued zeroing" measure Brazil 
challenges in this dispute and the "c ontinued zeroing" measures at issue in US – Continued Zeroing .  
In response to the United States argument that th e alleged measure includes an indeterminate number 
of potential future measures and is not properly with in the Panel's terms of reference, Japan argues 
that the United States overlooks Brazil's description of  the alleged measure that "[i]n particular, the 
use of zeroing continues in the 'most recent admini strative review' … by which duties are 'currently' 
applied and maintained".56  In this light, Japan urges the panel to  reject the United States' request for a 
preliminary ruling and find that the "continued use" of the zeroing methodology in successive anti-
dumping proceedings, in relation to the anti-dumpi ng duty order issued in respect of imports of 
certain orange juice from Brazil, constitutes a "me asure" that falls within the Panel's terms of 
reference under Article 6.2 of the DSU. 
(iii) Korea 
7.34 Korea recalls that the specificity requirement  under Article 6.2 of the DSU is designed to 
ensure that a panel request "present[s] the problem clearly" and that "the identification of a measure 
within the meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate 
the nature of the measure and the gist of what is at issue".57  According to Korea, it is clear from 
item (d) of Brazil's panel request that its complain t relates to "a string of  connected and sequential 
determinations" in which the United States u ses the zeroing methodology by which duties are 
maintained over a period of time under the anti-dump ing duty order.  Thus, Korea argues that Brazil 
has satisfied the standard under Article 6.2 of the DS U.  Moreover, Korea agrees with Brazil that the 
"continued zeroing" measure it is challenging in th is dispute is virtually the same "ongoing conduct" 
that was at issue in US – Continued Zeroing .  However, Korea notes that it would be inappropriate to 
address the existence of the measure for the purpose of responding to the United States' request for a 
preliminary ruling, recalling that the Appellate Body in US – Continued Zeroing stated that "the 
identification of the specific measures at issue,  pursuant to Article 6.2, is different from a 
demonstration of the existence of such measures".58  
(iv) Mexico 
7.35 Mexico argues that the United States' request fo r a preliminary ruling confuses the specificity 
requirement under Article 6.2 of the DSU with the susceptibility of ongoing conduct to WTO dispute 
settlement.  Mexico recalls that the Appellate Bo dy has observed that "the identification of the 
specific measures at issue, pursuant to Article 6.2, is different from a demonstration of the existence 
of such measures";  and that "the specificity requi rement under Article 6.2 is intended to ensure the 
                                                      
53 EU, TPWS, para. 6, quoting from Appellate Body Report, US – Continued Zeroing , para. 169. 
54 EU, TPWS, para. 7, quoting from Appellate Body Report, US – Continued Zeroing , para. 181. 
55 EU, TPWS, para. 8. 
56 Request for the Establishment of a Panel by Brazil, WT/DS382/4, p. 3. 
57 Korea, TPWS, para. 12, quoting Appellate Body Report, US – Continued Zeroing , paras. 168 
and 169. 
58 Korea, TPWS, paras. 14-16. WT/DS382/R 
Page 20 
BCI deleted, as indicated [[XX]] 
 
 sufficiency of a panel request in presenting the problem clearly".59  According to Mexico, the problem 
at issue in this dispute – the United States' c ontinued application of zeroing in successive anti-
dumping proceedings – is clear and easy to discern.  Accordingly, Mexico contends that Brazil's panel 
request satisfies the specificity requirement of Article 6.2 of the DSU. 
7.36 In addition, Mexico argues that  the United States' reliance on US – Upland Cotton  in support 
of its view that future measures not yet in existen ce at the time of panel establishment are not within a 
panel's term of reference is misplaced.   According to Mexico, the facts in US – Upland Cotton can be 
distinguished from the facts at issue in the present dispute.  In particular, Mexico notes that in US –
Upland Cotton , the panel found that payments under the Agricultural Assistance Act of 2003 (the 
"Act") were not within its terms of re ference because the Act was not enacted until after  the panel 
request.  As a result, consultations were not sought  or held on the payments under the Act.  In making 
its finding, Mexico recalls that the panel specifica lly "noted[d] that the cottonseed payments for each 
year were ad hoc appropriations, each with a separ ate legal basis, which did not follow a single 
model".  Moreover, Mexico recalls that the panel found that the relevant section "did not amend or 
modify any existing or previous programme".  Mexi co also notes that the panel concluded that the 
evidence before it disclosed "the existence of se parate and legally distinct cottonseed payment 
programmes for crops in different years rather  than a single cottonseed payment programme".60   
7.37 Mexico observes that, in contrast, in the present dispute Brazil challenges the continued 
application of zeroing in periodic reviews conducte d as stages of a continuous proceeding involving 
the imposition, assessment, and collection of duties under the same anti-dumping duty order.  With respect to the proceeding on certain orange jui ce from Brazil, Mexico argues that the USDOC has 
applied zeroing at every stage of the proceeding a nd has given no indication that it will change its 
approach in the future.  Mexico submits that it is this recurring and ongoing conduct under the single 
anti-dumping duty order that Brazil challenges.  After recalling that the Appellate Body in US – 
Continued Zeroing found a series of similar "ongoing conduct"  measures to be susceptible to WTO 
dispute settlement proceedings, Mexico asks the Pa nel to deny the United States' request for a 
preliminary ruling to exclude Brazil's claims from its terms of reference.
61  
(d) Evaluation by the Panel 
7.38 The United States' request for a preliminary ruling in respect of Brazil's "continued zeroing" 
claim is based on three lines of argument.  First, th e United States submits that in seeking to describe 
the alleged "continued zeroing" measure, Brazil's pane l request provides only a "general reference to 
an indeterminate number of potential measures" base d on "speculation" as to what may happen in the 
future.  According to the United States, such "sp eculation" cannot satisfy the Article 6.2 requirement 
that a panel request "identify the specific  measures at issue".62  Secondly, the United States argues that 
by challenging "continued zeroing", Brazil appears to  challenge "an indeterminate number of potential 
future measures", which were not in existence at the time of panel establishment and may never exist, 
and therefore cannot fall within the Panel's terms of reference.63 Thirdly, the United States argues that 
the inclusion of "continued zeroing" in the Panel's te rms of reference is incons istent with Article 17.4 
of the AD Agreement, because no "final action" within  the meaning of that provision has been taken 
in the case of "continued zeroing". 
                                                      
59 Mexico, TPWS, para. 23, quoting from Appellate Body Report, US – Continued Zeroing , paras. 168 
and 169. 
60 Mexico, TPWS, para 25, quoting from Panel Report, US – Upland Cotton , paras. 7.162, 7.165 
and 167. 
61 Mexico, TPWS, paras. 26-28. 
62 US, FWS, paras. 49-51 (United States' emphasis). 
63 US, FWS, para. 52.  WT/DS382/R 
 Page 21 
BCI deleted, as indicated [[XX]] 
 
 7.39 Before turning to examine Brazil's panel request , we note that the first two of the arguments 
described above served as the basis for a similar request for a preliminary ruling made by the 
United States in US – Continued Zeroing .  Although the panel in that dispute agreed with the 
United States64, the Appellate Body reversed the panel's fi ndings.  In particular, the Appellate Body 
held that the United States could reasonably have been expected to understand, from reading the panel 
request as a whole, that the Eur opean Communities was challenging th e use of "zeroing" in successive 
proceedings, as "ongoing conduct", in each of 18 sepa rate anti-dumping cases.  The Appellate Body 
saw confirmation of this in the fact that th e European Communities wa s seeking a prospective 
remedy.65  The Appellate Body also rejected the pane l's view that "in order to successfully raise 
claims against a measure, the complaining Member must in the first place demonstrate the existence 
and the precise content of such measure, consisten tly with the requirements of Article 6.2 of the 
DSU".66  In this regard, the Appellate Body made the following observation: 
"... the identification of the specific measure s at issue, pursuant to Article 6.2, is 
different from a demonstration of the existe nce of such measures.  For the latter, a 
complainant would be expected to present relevant arguments and evidence during 
the panel proceedings showing the existence of the measures, for example, in the case 
of challenges brought against unwritten norms.{}  Moreover, although a measure 
cannot be identified without some indication of its contents, the identification of a 
measure within the meaning of Article 6.2 need be framed only with sufficient particularity so as to indicate the nature of th e measure and the gist of what is at issue.  
Thus, an examination regarding the specifi city of a panel request does not entail 
substantive consideration as to what types of  measures are susceptible to challenge in 
WTO dispute settlement.  Such consideration may have to be explored by a panel and 
the parties during the panel proceedings, but is not prerequisite for the establishment 
of a panel.  To impose such prerequisite w ould be inconsistent with the function of a 
panel request in commencing panel pro ceedings and setting the jurisdictional 
boundaries of such proceedings.  Therefor e, we reject the proposition that an 
examination of the specificity requirement under Article 6.2 of the DSU must involve a substantive inquiry as to the existence and precise content of the measure."
67 
7.40 In the present dispute, Brazil's panel request describes the alleged measure at issue in the 
following terms: 
 "Measures and claims 
 
 The measures at issue are the following: 
 ... 
(d) The continued use of the U.S. 'zeroing procedures' in successive anti-
dumping proceedings, in relation to the anti-dumping duty order 
issued in respect of imports of certain orange juice from Brazil 
 This measure concerns the continue d use by the United States of "zeroing 
procedures" in successive anti-dumping proceedings, in relation to the anti-dumping duty order issued in respect of imports of certain orange juice from Brazil (case No A-351-840), including the original investigation and any subsequent 
                                                     
 
64 Panel Report, US – Continued Zeroing , para. 7.61. 
65 Appellate Body Report, US – Continued Zeroing , para. 171. 
66 Panel Report, US – Continued Zeroing , para. 7.50. 
67 Appellate Body Report, para. 169. WT/DS382/R 
Page 22 
BCI deleted, as indicated [[XX]] 
 
 administrative reviews, by which duties are applied and maintained over a period of 
time.  In particular, the use of zeroing continues in the most recent administrative 
review, identified under item (c) above, by  which duties are currently applied and 
maintained." 
7.41 The language in Brazil's panel request explic itly identifies the measure at issue as "the 
continued use by the United States of 'zeroing pr ocedures' in successive anti-dumping proceedings" 
under the orange juice anti-dumping duty order, "i ncluding the original investigation and any 
subsequent administrative reviews, by which duties ar e applied and maintained over a period of time".  
We note that this language reveals that Brazil's c oncern is focused on the "continued use" of "zeroing 
procedures" in "successive " proceedings "including  the original investigation and any  subsequent 
reviews".  In other words, Brazil objects to the United States' alleged "continued use" of "zeroing 
procedures" over time, starting from the original i nvestigation that resulted in the imposition of the 
orange juice anti-dumping duty order to any subsequent proceeding un der the same order.  In our 
view, it is reasonably clear from this description, wh en read in the light of the panel request as a 
whole68, that the alleged measure Brazil challenges is the United States' "continued use" of "zeroing 
procedures" as "ongoing conduct".   
7.42 We see no need, for the purpose of responding to  the United States request for a preliminary 
ruling, to pronounce on whether such "ongoing conduc t" is susceptible to challenge in WTO dispute 
settlement.  As the Appellate Body ob served in the above-quoted passage from US – Continued 
Zeroing , "an examination regarding the specificity of  a panel request does not entail substantive 
consideration as to what types of measures are su sceptible to challenge in WTO dispute settlement".69  
Likewise, we do not see that it is our task, when considering the United States' preliminary ruling 
request, to decide whether the "ongoing conduct" measure Brazil objects to actually exists, even 
assuming that it can be challenged in WTO disput e settlement.  Again, as the Appellate Body 
explained in US – Continued Zeroing , "the identification of the specifi c measures at issue, pursuant to 
Article 6.2, is different from a demonstra tion of the existence of such measures".70  
7.43 The third argument the United States advances to  support its request for a preliminary ruling 
is related to Article 17.4 of the AD Agreement.  This provision reads: 
"If the Member that requested consultations  considers that the consultations pursuant 
to paragraph 3 have failed to  achieve a mutually agreed solution, and if final action 
has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter 
to the Dispute Settlement Body ("DSB").   When a provisional  measure has a 
significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisi ons of paragraph 1 of Article 7, that 
Member may also refer such matter to the DSB." 
7.44 The United States notes that Article 17.4 provides that a member may only refer a matter to 
the DSB following a failure of consultations to achie ve a mutually agreed solution, and "final action" 
has been taken by the administering authorities to  levy definitive anti-dumping duties or accept price 
undertakings.  According to the United States, "continued zeroing" does not amount to "final action" within the meaning of Article 17.4 of the AD Agreem ent and, therefore, it cannot fall within our terms 
of reference.  Although the Appellate Body in US – Continued Zeroing  did not directly address this 
                                                     
 
68 For instance, we note that in addition to making claims against the "continued use" of "zeroing 
procedures" in "successive anti-dumping proceedings", Brazil's panel request challenges the original 
investigation and First and Second Administrative Reviews individually , as three separate  measures. 
69 Appellate Body Report, US – Continued Zeroing , para. 169. 
70 Appellate Body Report, US – Continued Zeroing , para. 169.  WT/DS382/R 
 Page 23 
BCI deleted, as indicated [[XX]] 
 
 argument, it did appear to take this provision ( as well as Article 17.3 of the AD Agreement) into 
account in the process of overturning the panel's fi ndings on the merit of the European Communties' 
"continued zeroing" claims.  In particular, in exam ining the question whether "continued zeroing" is a 
measure susceptible to WTO dispute settlement, a nd after recalling its observation from a previous 
case where it stated that "in principle, any act or omission attributable to a WTO Member can be a 
measure of that Member for purposes of dispute settlement proceedings"71, the Appellate Body noted 
that: 
"Articles 17.3 and 17.4 of the Anti-Dumping Agreement  are also relevant to the 
question of the types of measures that can  be submitted to dispute settlement under 
the Anti-Dumping Agreement .  Closely resembling Article 3.3 of the DSU, 
Article 17.3 provides that, '[i]f any Member considers that any benefit accruing to it, 
directly or indirectly, under [the Anti-Dumping Agreement ] is being nullified or 
impaired ... by another Member or Member s, it may, with a view to reaching a 
mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question.'
{}  Article 17.4 of the Anti-Dumping Agreement  
further specifies that a Member may refer a ma tter to the DSB if it considers that the 
consultations have failed to achieve a mutual ly agreed solution 'and if final action has 
been taken by the administering authorities of the importing Member to', inter alia , 
'levy definitive anti-dumping duties'.72" 
7.45 In the very next paragraph, the Appellate Body agreed with the panel that "measures 
examined by WTO panels and the Appellate Body in clude 'not only measures consisting of acts that 
apply to particular situations, but also those cons isting of acts setting forth rules or norms that have 
general and prospective application'."   The Appellate Body then went on to observe that "[i]n order to 
be susceptible to challenge, a measure need not fit squarely within [the "as such" or "as applied"] 
categories, that is, either as a rule or norm of gene ral and prospective application, or as an individual 
instance of the application of a rule or norm".  Finally, the Appellate Body described the "continued 
zeroing" measure challenged by the European Commun ities using terms that are very similar to those 
used by Brazil in the present dispute, and conc luded that it saw "no reason to exclude ongoing 
conduct that consists of the use of the zeroi ng methodology from challenge in WTO dispute 
settlement"73. 
7.46 In our view, the clear implication to draw fro m the Appellate Body's reasoning and findings 
in US – Continued Zeroing  is that Article 17.4 of the AD Agreement does not limit Brazil's right in 
the present dispute to challenge "continued zeroing"  under the AD Agreement.  This conclusion finds 
support in the Appellate Body's observations in US – 1916 Act , where in allowing the European 
Communities and Japan to challenge certain United States' anti-dumping legislation, the Appellate 
Body explained inter alia  that: 
"Important considerations underlie the restri ction contained in Article 17.4.  In the 
context of dispute settlement  proceedings regarding an anti-dumping investigation, 
there is tension between, on the one hand, a complaining Member's right to seek 
redress when illegal action affects its economic  operators and, on the other hand, the 
risk that a responding Member may be harass ed or its resources squandered if dispute 
settlement proceedings could be initiated ag ainst it in respect of each step, however 
small, taken in the course of an anti-dumpi ng investigation, even before any concrete 
measure had been adopted.{}  In our view, by limiting the availability of dispute 
settlement proceedings related to an an ti-dumping investigation to cases in which a 
                                                      
71 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 81. 
72 Appellate Body Report, US – Continued Zeroing , para. 177. 
73 Appellate Body Report, US – Continued Zeroing , paras. 180-181.   WT/DS382/R 
Page 24 
BCI deleted, as indicated [[XX]] 
 
 Member's request for establishment of a panel identifies a definitive anti-dumping 
duty, a price undertaking or a provisional measure{}, Article 17.4 strikes a balance 
between these competing considerations. 
Therefore, Article 17.4 sets out certain cond itions that must exist before a Member 
can challenge action taken by a national inv estigating authority in the context of an 
anti-dumping investigation. However, Article 17.4 does not address or affect a 
Member's right to bring a claim of inconsistency with the  Anti-Dumping Agreement   
against anti-dumping legislation as such. 
Moreover, as we have seen above, the GA TT and WTO case law firmly establishes 
that dispute settlement proceedings may be brought based on the alleged 
inconsistency of a Member's legislation as su ch with that Member's obligations.  We 
find nothing, and the United States has iden tified nothing, inherent in the nature of 
anti-dumping legislation that would rationall y distinguish such legislation from other 
types of legislation for purposes of disput e settlement, or that would remove anti-
dumping legislation from the ambit of the generally-accepted practice that a panel 
may examine legislation as such.74" 
7.47 Thus, in the US – 1916 Act  dispute, the Appellate Body fo und that the European Communities 
and Japan were entitled to bring a complaint against legislation they considered to be inconsistent 
with the AD Agreement before a panel, even though th at legislation did not amount to a "final action" 
or a provisional measure within the meaning of Ar ticle 17.4 of the AD Agreement.  In doing so, the 
Appellate Body described the relevance of Article 17 .4 as being limited to complaints related to the 
conduct of investigating authorities in an anti-dum ping investigation.  However, in the present 
dispute, Brazil's challenge to the United States' al leged "continued use" of "zeroing" does not pertain 
to the conduct of the USDOC in one particular an ti-dumping investigation.  Rather, as we more fully 
explain below75, Brazil's complaint is focused on the USDO C's alleged "use of zeroing" in multiple 
proceedings, under the orange juice anti-dumping duty order, as a single " ongoing conduct " measure.  
In our view, an "ongoing conduct" measure is br oader than the type of conduct envisaged under 
Article 17.4 of the AD Agreement, and as such, falls outside of its scope of operation.  
7.48 In any case, we note that the ev idence Brazil has advanced in support of the existence of the 
alleged "continued zeroing" measure includes inst ances where the United States authorities have, in 
fact, levied definitive anti-dumping duties.76  Thus, Brazil does not challenge the alleged "continued 
zeroing" measure in the absence of any connection betw een this alleged measure and "final action".   
On the contrary, the evidence of Unite d States' "final action" lies at the heart of Brazil's complaint.   
7.49 In conclusion, we find that Brazi l's panel request is sufficiently  precise to satisfy the standards 
of Article 6.2 of the DSU in that it reasonably iden tifies "the nature of the measure and the gist of 
what is at issue".  Furthermore, we also find th at the inclusion of Brazil's claim against the alleged 
"continued zeroing" measure in our terms of refere nce is not inconsistent with the requirements of 
Article 17.4 of the AD Agreement.  We therefore di smiss the United States' request for a preliminary 
ruling.  
                                                      
74 Appellate Body Report, United States – Anti-Dumping Act of 1916 ("US – 1916 Act "), 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 4793, at paras. 73-75 (footnote 
omitted). 
75 See below, paras. 7.171-7.176. 
76 The evidence Brazil has advanced to establish the existence of the alleged "continued zeroing" 
measure is set out and evaluated below, at paras. 7.177-7.192.  WT/DS382/R 
 Page 25 
BCI deleted, as indicated [[XX]] 
 
 B. BRAZIL 'S CLAIMS CONCERNING THE ALLEGED USE OF "SIMPLE ZEROING " IN 
ADMINISTRATIVE REVIEWS  
1. Arguments of Brazil 
7.50 Brazil claims that by allegedly calculati ng the margins of dumping, relied upon for the 
purpose of establishing the cash-deposit rates ("CDRs"), and the importer-specific assessment rates 
("ISARs") for Cutrale and Fischer in the First a nd Second Administrative Reviews through the use of 
"simple zeroing", the USDOC acted inconsistently w ith its obligations under Articles 2.4 and 9.3 of 
the AD Agreement and Article VI:2 of the GATT 1994.77    
(a) Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994 
7.51 Brazil argues that Article 9.3 of the AD Ag reement and Article VI:2 of the GATT 1994 
establish an obligation on Members not to impose an anti-dumping duty on any dumped product in an 
amount that is greater than the "margin of dumping" determined in respect of that product.  Relying upon the findings of the Appellate Body in a series of disputes involving the USDOC's application of 
"simple zeroing" in administrative reviews
78, Brazil submits that a "margin of dumping" can only be 
calculated with respect to the product under cons ideration "as a whole", encompassing all export 
transactions of the product under consideration;  a nd that it cannot be found to exist only for a type, 
model or category of that product.  Brazil recalls that the Appellate Body has repeatedly found that 
Article 2.1 of the AD Agreement and Article VI:1 of the GATT 1994 define "dumping" as a concept 
related to the product "as a whole".  In addition, Brazil notes that the Appellate Body has previously 
indicated that "dumping" and "margin of dumping" relate to the pricing practices of individual 
exporters or foreign producers;  and that this interp retation is supported by sev eral other provisions of 
the AD Agreement, including Articles 2.2, 2.3, 5.8, 6. 10, 8.1, 9.4 and 9.5.  Furthermore, Brazil recalls 
that the Appellate Body has found that the AD Ag reement and the GATT 1994 are not concerned with 
dumping per se , but with dumping that causes or threatens to cause material injury to the domestic 
industry, a condition that by the terms of Article 3. 1 of the AD Agreement cannot be found to exist in 
relation to individual transactions, but only for the product as a whole.79 
7.52 Brazil argues that the fact that Article 9.4(ii) of the AD Agreement recognizes that variable 
anti-dumping duties may be collected on a transaction- specific basis does not mean that Article 2 of 
the AD Agreement authorizes a determination of dumping on the same basis.  Brazil emphasizes that Article 9 of the AD Agreement governs the imposition and collection of duties, noting that these rules 
are "distinct and separate" from th e rules governing the determinati on of dumping under Article 2.  
Thus, while Article 9 permits collection of vari able anti-dumping duties on a transaction-specific 
                                                     
 
77 Brazil, FWS, paras. 97 and 1 18;  Brazil, Second Written Submission ("SWS"), para. 47;  Brazil, 
Answers to Panel Questions 2 and 3. 
78 In particular, Brazil refers to the following Appellate Body Reports:  Appellate Body Report, 
United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing")  ("US – 
Zeroing (EC) "), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, 417;  Appellate Body Report, 
United States – Measures Relating to Zeroing and Sunset Reviews  ("US – Zeroing (Japan) "), WT/DS322/AB/R, 
adopted 23 January 2007, DSR 2007:I, 3;  Appellate Body Report, United States – Measures Relating to Zeroing 
and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan  ("US – Zeroing (Japan) (Article 21.5 – 
Japan) "), WT/DS322/AB/RW, adopted 31 August 2009;  Appellate Body Report, United States – Final Anti-
Dumping Measures on Stai nless Steel from Mexico  ("US – Stainless Steel (Mexico) "), WT/DS344/AB/R, 
adopted 20 May 2008;  and US – Continued Zeroing .   
79 Brazil, FWS, paras. 6, 49-76;  Brazil, Firs t Confidential Opening Oral Statement ("FCOOS"), 
paras. 12-37. WT/DS382/R 
Page 26 
BCI deleted, as indicated [[XX]] 
 
 basis, Brazil argues that "dumping" must be dete rmined for the "product as a whole" in accordance 
with Article 2.80 
7.53 In addition, Brazil submits that the possibility  that a general prohibition on "zeroing" may 
result in "mathematical equivalence" between th e result obtained when calculating a margin of 
dumping, for the purpose of Article 2.4.2, through the use of the W-W and W-T methodologies, does 
not undermine its legal argument, because "mathe matical equivalence" may arise only "under a 
specific set of assumptions" that do not always apply.  Furthermore, Brazil argues that the interpretation of the exceptional comparison methodolog y in Article 2.4.2 (i.e., "W-T") – and whether 
it permits "zeroing" – cannot govern the interpretation of the general rule regarding the definition of 
"dumping".  In any case, Brazil recalls that the Appellate Body has noted that some Members have 
argued that the second sentence of Article 2.4.2 does not permit "zeroing".
81   
7.54 Brazil observes that the Appellate Body has repeat edly confirmed that the interpretation of the 
concepts of "dumping" and "margin of dumping" that  it is advancing in the present dispute is the only 
"permissible" interpretation under the terms of Artic le 17.6(ii) of the AD Agreement, noting that the 
application of customary rules of treaty interpretation cannot result in a rival transaction-specific 
definition of these concepts.82   
7.55 Thus, on the basis of essentially the same line of  reasoning expounded by the Appellate Body 
in previous disputes involving "simple zeroing", Braz il argues that if a Member determines a margin 
of dumping for a particular exporter in an admini strative review that exceeds the overall margin of 
dumping for that exporter's "product as a whole" because of the systematic exclusion of certain export transactions, that determination must be inconsis tent with Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994.  Brazil urges the Pane l to come to the same conclusion, emphasizing 
the importance of resolving the same legal questions  in the same way in subsequent disputes for the 
"security and predictability" and "consistency and stability" of the WTO dispute settlement system.
83  
7.56 Brazil argues that the facts show that the USDOC calculated the margins of dumping for 
Cutrale and Fischer in the First and Second Administrative Reviews through the use of "simple 
zeroing", and that in the absence of "simple zeroing", both respondents would have had no margins of 
dumping at all.84  According to Brazil, the mere use of "simple zeroing" by the USDOC to calculate 
these margins, irrespective of any impact they may have had on the amount of anti-dumping duties actually collected, is inconsistent with Article 9.3 of the AD Agreement and Article VI:2 of the 
GATT 1994.  In particular, Brazil argues that pursuant to these provisions, a Member must establish a margin of dumping for the "product as a whole" in accordance with Article 2 of the AD Agreement.  
Referring to a statement made by the panel in US – Zeroing (Japan)(Article 21.5 – Japan) , Brazil 
submits that a failure to comply with this require ment vitiates a determination made under Article 9.3 
of the AD Agreement and Article VI:2 of the GATT 1994, irrespective of the amount of duties that is 
ultimately collected.
85  
7.57 In any case, Brazil notes that the margins of dumping determined for Cutrale and Fischer did 
have an impact on the amount of anti-dumping duti es collected.  Brazil notes that the margins of 
dumping were in fact relied upon by the USDOC to set the CDR for Cutrale in the Second 
                                                      
80 Brazil, FCOOS, paras. 47-51;  Brazil, SWS, para. 5. 
81 Brazil, FCOOS, paras. 52-58;  Brazil, SWS, para. 5. 
82 Brazil, FCOOS, paras. 2-4, 8-11. 
83 Brazil, FCOOS, para. 2;  Brazil, SWS, para. 4. 
84 Brazil, FWS, para. 5;  Brazil, FCOOS, paras. 66-75;  Brazil, SWS, paras. 19, 35;  Brazil, Answer to 
Panel Question 2. 
85 Brazil, Answer to Panel Question 2;  Brazil, SWS, paras. 11-13, citing Panel Report, US – Zeroing 
(Japan)(Article 21.5 – Japan) , para. 7.162.  WT/DS382/R 
 Page 27 
BCI deleted, as indicated [[XX]] 
 
 Administrative Review and Fischer in the First Administrative Review.86  According to Brazil, CDRs 
amount to anti-dumping duties and are subject to the disciplines of Article 9.3, as is well established 
in WTO case-law.87  Therefore, if the impact of the use of "zeroing" is relevant to establish a violation 
of Article 9.3 of the AD Agreement and Article  VI:2 of the GATT 1994, the USDOC's reliance upon 
margins of dumping calculated using "simple zero ing" for the purpose of the CDRs collected on 
imports of the respondents' products in the periods subsequent to the relevant administrative reviews 
must be inconsistent with those provisions.88   
7.58 Brazil also notes that the facts show that the ISARs determined for Cutrale in the First and 
Second Administrative Reviews, and for Fischer in the First Administrative Review, were calculated 
through the use of "simple zeroing".89  Thus, again, if the impact of the use of "zeroing" is relevant to 
establish a violation of Article 9.3 of the AD Ag reement and Article VI:2 of the GATT 1994, the 
USDOC's use of "simple zeroing" when establishing th e relevant ISARs must be inconsistent with 
those provisions.90   
7.59 Brazil rejects the United States' view that CDRs do not amount to anti-dumping duties falling 
within the scope of Article 9.3 of the AD Agre ement.  In its view, CDRs have the essential 
characteristics of anti-dumping duties imposed unde r Article 9 of the AD Agreement, and not 
reasonable securities within the meaning of the Ad Note to Article VI:2 and VI:3 of the GATT 1994.  
Relying on various observations of the Appellate Body in the US – Shrimp/Bond dispute91, Brazil 
concludes that a reasonable security is "a respon se to a determination of a risk of non-payment of 
future anti-dumping duties that is  commensurate with that risk"92 and that a CDR neither reflects nor 
is commensurate with the likely magnitude of the ri sk of non-payment by an importer.  Indeed, Brazil 
submits that the characteristics of a CDR match those of an anti-dumping duty because: it is imposed 
on all imports from exporters found to  be engaged in injurious dumping; it is imposed as a specific 
response to a dumping determination made in connection with a particular exporter; and it is fixed at 
the level of the individual margin of dumping determ ined by the USDOC for the exporter in question, 
and cannot exceed that margin.  As such, Brazil argues a CDR is an anti-dumping duty. 
7.60 That CDRs are anti-dumping duties subject to Article 9 of the AD Agreement is, Brazil 
argues, confirmed by the case-law concerning United States' administrative reviews.  First, Brazil recalls that in US – Shrimp/Bond , the Appellate Body, despite holding that it did not have to rule on 
the issue, disagreed with the "reasoning" that led th e panel in that case to find CDRs to be securities 
within the meaning of the Ad Note, and not an ti-dumping duties subject to Article 9 of the AD 
Agreement.  Moreover, Brazil submits that the Appe llate Body in the same dispute emphasized that 
even under United States' law, the role of cash depos its differs from a security, and that they are fixed 
at the level of an exporter's margin of dumping.  Second, Brazil argues that the Appellate Body has 
found several times that CDRs calculated through "zer oing" are inconsistent with Article 9.3 of the 
AD Agreement and Article VI:2 of the GATT 1994.
93 
                                                      
86 Brazil, FWS, paras. 77-96;  Brazil, Answer to Panel Question 2. 
87 Brazil, FCOOS, para. 35;  Brazil, Answer to Panel Question 3. 
88 Brazil, Answer to Panel Question 2. 
89 Brazil, FWS, paras. 77-96;  Brazil, Answer to Panel Question 2. 
90 Brazil, FCOOS, para. 72;  Brazil, SWS, paras.  20-21;  Brazil, Answer to Panel Question 2. 
91 In particular, Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bo nd Directive for Merchandise Subject to Anti-Dumping/Countervailing 
Duties  ("US – Shrimp (Thailand) / US –  Customs Bond Directive "), WT/DS343/AB/R, WT/DS345/AB/R, 
adopted 1 August 2008, paras. 221, 256, 258-263. 
92 Brazil, Answer to Panel Question 3. 
93 Brazil, Answer to Panel Question 3, referring to Appellate Body Report, United States – Final Anti-
Dumping Measures on Stai nless Steel from Mexico  ("US – Stainless Steel (Mexico) "), WT/DS344/AB/R, 
adopted 20 May 2008, paras. 133-134 and 156(a), Appellate Body Report, US – Continued Zeroing , paras. 315-WT/DS382/R 
Page 28 
BCI deleted, as indicated [[XX]] 
 
 7.61 Thus, Brazil argues that the applicability of Artic le 9.3 of the AD Agreement and Article VI:2 
of the GATT 1994 to CDRs is well established and th at security and predictability in the multilateral 
trading system dictate that the conclusion reached  in disputes involving several other Members should 
also apply to Brazil's claims.94 
(b) Article 2.4 of the AD Agreement 
7.62 Brazil argues that the use of "simple zeroing" to calculate an exporter's margin of dumping in 
any stage of an anti-dumping proceeding infringes th e requirement that a "fair comparison shall be 
made between export price and norma l value" under Article 2.4 of th e AD Agreement.  According to 
Brazil, the obligation under Article 2.4 to make a "fair comparison" applies independently of the 
amount of anti-dumping duties that are collected by an importing Member.  Brazil recalls that the 
Appellate Body has on numerous occasions observed that there is "an inherent bias in a zeroing 
methodology" and that as a "way of calculating"  margins, the "zeroing" methodology "cannot be 
described as impartial, even-handed, or unbiased".95  Moreover, Brazil notes that one panel and the 
Appellate Body have previously found that the maintenance and application of "zeroing" in the 
context of administrative reviews is inconsis tent with Article 2.4 of the AD Agreement.96  Brazil asks 
the Panel to come to the same conclusion, and in the light of the evidence it asserts shows the USDOC 
used "simple zeroing" to calculate the margins of  dumping of Cutrale and Fischer in the First and 
Second Administrative Reviews, find that the United States acted inconsistently with Article 2.4 of the AD Agreement.
97 
2. Arguments of the United States 
7.63 The United States rejects Brazil's claims, argui ng that they are grounded on an interpretation 
of Articles 2.4 and 9.3 of the AD Agreement and Ar ticle VI:2 of the GATT 1994 that finds no textual 
basis in the language of these provisions.  Moreover, even accepting Brazil's legal arguments, the United States submits that Brazil's claims are at least in part factually flawed.   
(a) Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994   
7.64 The United States submits that, in US – Softwood Lumber V , the Appellate Body concluded 
that "zeroing" is prohibited in the context of wei ghted-average to weighted -average comparisons in 
investigations by interpreting the terms "mar gins of dumping" and "all comparable export 
                                                                                                                                                                    
 
316 and 395(d), Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating 
Dumping Margins ("Zeroing") – Recourse to Article  21.5 of the DSU by the European Communities ("US – 
Zeroing (EC) (Article 21.5 – EC) "), WT/DS294/AB/RW and Corr.1, adopted 11 June 2009, para. 304, and 
Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to 
Article 21.5 of the DSU by Japan  ("US – Zeroing (Japan) (Article 21.5 – Japan) "), WT/DS322/AB/RW, 
adopted 31 August 2009, para. 156. 
94 Brazil, Answer to Panel Question 3. 
95 Brazil, FCOOS, para. 68 and Brazil, SWS, paras. 16-17, quoting Appellate Body Report, 
United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/AB/R, adopted 9 January 2004, 
DSR 2004:I, 3, para. 135, and Appellate Body Report, US – Zeroing (Japan) , para. 146, quoting Appellate Body 
Report, United States – Final Dumping Determination on Softwood Lumber from Canada – Recourse to 
Article 21.5 of the DSU by Canada  ("US – Softwood Lumber V
 (Article 21.5 – Canada) "), WT/DS264/AB/RW, 
adopted 1 September 2006, DSR 2006:XII, 5087, para. 142. 
96 Brazil, SWS, para. 17, referring to Panel Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan ("US – Zeroing (Japan) (Article 21.5 – 
Japan) "), WT/DS322/RW, adopted 31 August 2009, as upheld by Appellate Body Report WT/DS3227AB/RW, 
paras. 7.168 and 8.1(b);  Appellate Body Report, US – Zeroing (Japan)(Article 21.5 – Japan) , para. 195, 197 
and 213(c);  and Appellate Body Report, US – Zeroing (Japan) , paras. 169, 176, 190(d) and 190(e). 
97 Brazil, FCOOS, para. 67;  Brazil, SWS, para. 47.  WT/DS382/R 
 Page 29 
BCI deleted, as indicated [[XX]] 
 
 transactions" as they are used in Article 2.4.2 in an  integrated manner.  The United States argues that 
a general prohibition on "zeroing" can not be reconciled with this interp retation..  In this regard, the 
United States recalls that the language of Article 2.4.2 of the AD Agreement explicitly requires that 
"all comparable export transactions" be taken into account when establishing the margin of dumping 
through W-W comparisons.  The United States notes that this language canno t be found elsewhere in 
the AD Agreement.  Were there a general prohibiti on on "zeroing" applying in all proceedings and all 
comparison methodologies, the United States submits that the "all comparable export transactions" language in Article 2.4.2 would be  redundant.  Thus, according to the United States, the fact that no 
such language is found elsewhere in the AD Agreemen t suggests that there is no general prohibition 
on "zeroing" beyond W-W comparisons in original investigations.
98 
7.65 The United States argues that there is no textual basis in Articles 2.1 and 9.3 of the 
AD Agreement or Article VI:2 of the GATT 1994 to  conclude that the definition of the terms 
"dumping" and "margin of dumping" must be excl usively understood to mean that dumping and 
margins of dumping can only exist for the product "as a whole" through the aggregation of comparison results of all transactions.  The Unite d States submits that the "product is always 
'introduced into the commerce of another country' th rough individual transactions, and thus 'dumping', 
as defined in Article 2.1 of the AD Agreement, is most certainly transaction-specific".  The United States observes that this "definition descr ibes the real-world commercial conduct by which a 
product is imported into a country, i.e., transaction by transaction".
99 
7.66 The United States draws support for its interpretation of the concept of "dumping" from the 
1960 Report of the Group of Experts, which it asserts indicated that the "ideal method" for applying 
anti-dumping duties "was to make a determination of both dumping and material injury in respect of 
each single importation of the product concerned".  The United States considers that the view expressed by the Group of Experts reflects the rul es as they stood under Article VI of the GATT 1947, 
which was incorporated into the GATT 1994 without an y change or revision.  The United States finds 
this transposition significant arguing that the " normal inference one draws from the absence of a 
change in language is that the drafters inte nded no change in meaning".  Furthermore, the 
United States submits that if the negotiators inte nded to make "such a fundamental change" to the 
meaning of "margin of dumping", they would have done so clearly, and "it would not have come as a 
surprise to the major users of anti-dumping remedies,  such as the EU and the United States, after the 
fact through dispute settlement".
100  
7.67 The United States rejects the view that the definition of dumping in Article 2.1 of the 
AD Agreement can only be read to mean that dum ping can exist exclusively with respect to the 
"product as a whole".  The United States notes that the expression "product as a whole" does not appear anywhere in the AD Agreement, and that th e Appellate Body has not cited any actual text that 
would support a finding that a margin of dumping must  occur at the level of multiple transactions, nor 
any text that would preclude the calculation of dum ping from occurring at a transaction-specific level.  
Moreover, for the United States, the notion of "produ ct as a whole" denies that the ordinary meaning 
of the word "product" used in Article 2.1 adm its of a meaning that is transaction-specific.
101  
According to the United States, the words "pr oduct" and "products" in Article 2.1 of the 
AD Agreement and Article VI of the GATT 1994 cannot  be interpreted in such an exclusive manner 
                                                      
98 US, FWS, paras. 53-59;  US, First Confidential Opening Oral Statement ("FCOOS"), paras. 23-25. 
99 US, FWS, paras. 61-68;  US, FCOOS, para . 29;  US, Second Written Submission ("SWS"), 
paras. 23-27. 
100 US, FWS, paras. 69-72, citing Second Report of the Group of Experts, L/1141, adopted on 
27 May 1960, BISD 9S/194, para. 7. 
101 US, FWS, paras. 73-81. WT/DS382/R 
Page 30 
BCI deleted, as indicated [[XX]] 
 
 so as to deprive them of one of their ordinary  meanings.  The United States comes to a similar 
conclusion with respect to the term "margin of dumping".102 
7.68 The United States submits that a general prohib ition on the use of "zeroing" outside of the 
limited circumstances of W-W comparison methodology in original investigations under Article 2.4.2 
would render the third methodology (W-T) redundant because of "mathematical equivalence".  The 
United States rejects the Appellate Body's explana tion of how "mathematical equivalence" might be 
avoided, arguing that by suggesting that the comparison take place in respect of a subset  of export 
transactions, the Appellate Body proposes a methodol ogy that would itself be inconsistent with its 
view that the margin of dumping can only be establis hed for the "product as a whole".  In this regard, 
the United States recalls that a treaty "interpreter is  not free to adopt a reading that would result in 
reducing whole clauses or paragraphs of a treaty to redundancy or inutility".103  
7.69 The United States recalls that prospective normal value systems, which are explicitly 
provided for in Article 9.4(ii) of the AD Agreem ent, assess anti-dumping duties through a comparison 
of the import price of a given transaction with the prospective normal value, without considering the prices paid for other import transactions.  Accord ing to the United States, if the liability for the 
payment of anti-dumping duties can be determined on a transaction-specific basis in prospective 
normal value systems, there is no reason why the same cannot be the case in retrospective duty 
assessment systems.  Moreover, the United States submits that requiring, as the Appellate Body has ruled, that any margin of dumping determined for the purpose of Article 9.3 assessment be calculated 
on the basis of aggregating all comparison results of all transactions would turn prospective normal 
value systems of duty assessment into retrospectiv e systems.  The United States also notes that 
Articles 9.3, 9.3.1, and 9.3.2 are silent as to the period of review for any such assessment proceeding, 
and submits that the negotiators of the Antidum ping Agreement would not have provided explicitly 
for a prospective normal value system and at th e same time require th at such systems conduct 
retrospective assessment proceedings that aggr egate all the transactions occurring over some 
unspecified period of time.
104   
7.70 Thus, the United States urges the Panel to make  its own objective assessment of the matter, as 
it is required to do under Article 11 of the DSU, a nd refrain from adopting the interpretations of the 
AD Agreement advanced by Brazil and developed by the Appellate Body in previous disputes 
involving "simple zeroing".  Instead, the United Stat es asks the Panel to find, consistent with the 
objective assessment made by previous panels, that the United States' approach rests on a permissible 
interpretation of the AD Agreement within the meani ng of Article 17.6(ii) of the AD Agreement.  In 
this regard, the United States argues, inter alia , that the very inclusion of the special standard of 
review contained in Article 17.6(ii) confirms that th e text of the AD Agreement may be susceptible to 
more than one interpretation.  To find that it is not  possible to arrive at c onflicting interpretations of 
the text would, according to the United States, me an depriving the second sentence of Article 17.6(ii) 
of meaning.105 
7.71 In any event, the United States emphasizes th at the obligation in Article 9.3 of the 
AD Agreement is about ensuring that the " amount of the anti-dumping duty  shall not exceed the 
margin of dumping as established under Article 2".  According to the United States, this means that 
even if "simple zeroing" were used in an administ rative review, it cannot result in any violation of the 
                                                      
102 US, FWS, paras. 82-84;  US, FCOOS, paras. 26-28. 
103 US, FWS, paras. 93-98, citing Appellate Body Report, United States – Standards for Reformulated 
and Conventional Gasoline  ("US – Gasoline "), WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3, para. 23;  
US, FCOOS, para. 34;  US, SWS, paras. 74-79. 
104 US, FWS, paras. 109-115;  US, FCOOS, para. 31;  US, Answer to Panel Question 12; US, SWS, 
paras. 58-69; US, SCOOS, paras. 21-23. 
105 US, FWS, paras. 5, 23-33;  US, FCOOS, paras.  3-7;  US, Answer to Panel Questions 8 and 9.  WT/DS382/R 
 Page 31 
BCI deleted, as indicated [[XX]] 
 
 obligation contained in this provision if no anti-dumping duties were in fact collected.106  The 
United States notes that this is precisely the situ ation with respect to Fischer in the Second 
Administrative Review, whose ISAR was [[XX]].  Thus, the United States argues that Brazil has failed to substantiate its claims with respect of  Fischer in the Second Administrative Review.  
7.72 Similarly, the United States observes that a lthough Cutrale was assessed as having dumped at 
a rate of 0.45% in the First Administrative Re view, no CDR was applied because under United States 
law, a rate of less than 0.5% is de minimis .  Thus, the United States argues that regardless of whether 
"simple zeroing" was applied to determine the CDR for Cutrale in the First Administrative Review, a 
de minimis margin of dumping cannot exceed any "ceiling" provided for in the covered agreements.  
To this extent, the United States submits that the treatment of Cutrale in the First Administrative 
Review was not inconsistent with Article 9.3 and Article VI of the GATT 1994, even by Brazil's own 
interpretation of the obligations contained in those provisions.
107   
7.73 The United States also argues that Brazil errs  in characterising CDRs as anti-dumping duties 
that are subject to the disciplines of Article 9. 3 of the AD Agreement and Article VI:2 of the 
GATT 1994.  In its view, CDRs are a security for the payment of anti-dumping duties and are 
governed by the AD Note to paragraphs 2 and 3 of the GATT 1994.108  The United States recalls that 
the Ad Note allows a Member to "require a reas onable security (bond or cash deposit) for the payment 
of anti-dumping or countervailing duty pending final determinati on of the facts in any case of 
suspected dumping or subsidization".  According to the United States, the "determination of the facts" 
identified in the Ad Note refers  to the "determination of final liability for payment of anti-dumping 
duties" described in Article 9.3.1 of the AD Agreem ent.  Moreover, the United States explains that a 
CDR is only an estimate of future anti-dumping duties, based on past dumping, that serves as a 
security pending determination of final liability to  pay anti-dumping duties.  The United States 
disagrees with Brazil's characterization of the Appellate Body findings in US – Stainless Steel 
(Mexico)  and US – Continued Zeroing , submitting that they did not reflect a conclusion that CDRs are 
anti-dumping duties, but rather a conclusion that the application of "zeroing" in administrative 
reviews was inconsistent with Article 9.3 of the AD Agreement because it "results in the levy of an 
amount of anti-dumping duty that exceeds an exporter's margin of dumping".109  Similarly, the 
United States argues that the other Reports mentioned by Brazil do not stand for the proposition that CDRs amount to anti-dumping duties.
110 
(b) Article 2.4 of the AD Agreement 
7.74 The United States submits that Brazil's interpre tation of the obligation in Article 2.4 to 
conduct a "fair comparison" has no textual basis in the language of this provision and is 
misconceived.  In its view, the text of Article 2.4 makes clear that it only addresses the adjustments 
that must be made to export price and normal value in order to account for "differences which affect 
price comparability" and render a "fair comparison".  Thus, the United States argues that Article 2.4 does not create an obligation with respect to how the results of such comparisons are treated.  
According to the United States, its interpretation of  Article 2.4 is supported by previous panel and 
Appellate Body Reports as well as the negotiating hist ory of the AD Agreement.  Moreover, given the 
highly subjective nature of the term "fair", the Unite d States argues that its meaning in the context of 
Article 2.4 must have a principled basis, and not  the open-ended and subjective meaning advanced by 
Brazil.  Thus, the United States urges the Panel to reject Brazil's expansive interpretation of 
                                                     
 
106 US, SWS, para. 80. 
107 US, FWS, para. 121;  US, FCOOS, para. 35. 
108 US, FWS, footnote 8;  US, Answer to Panel Question 5. 
109 US, Answer to Panel Question 5, referring to Appellate Body Report, US – Stainless Steel (Mexico) , 
para.133 and Appellate Body Report, US – Continued Zeroing , para. 315. 
110 US, Answer to Panel Question 5. WT/DS382/R 
Page 32 
BCI deleted, as indicated [[XX]] 
 
 Article 2.4, which, in its view, would lead to  a flood of anti-dumping disputes that are virtually 
impossible to resolve in any credible manner.111 
3. Arguments of the Third Parties 
(a) Argentina 
7.75 Argentina does not address the merits of Brazil's specific claims, but rather the consistency of 
"zeroing", in general, under the AD Agreement.  Recalling the Appellate Body's findings in EC – Bed 
Linen , Argentina argues that zeroing is inconsistent w ith Article 2.4.2, regardless of the methodology 
used.112  In addition, according to Argentina, the " zeroing" methodology, by not producing a result 
that takes into account all the variables to be take n into consideration when determining a margin of 
dumping, ultimately results in the levying of anti- dumping duties in excess of the margin of dumping, 
and is consequently inconsistent with Articles 9.3 of the AD Agreement and VI:2 of the GATT 1994.  
However, Argentina emphasizes that the imposition a nd collection of duties cannot be confused with 
the calculation of the margin of dumping, which the implementing authority is required to make prior 
to the imposition phase.113 
(b) European Union 
7.76 The European Union submits that the United States' view that the prohibition on zeroing 
found in Article 2.4.2 of the AD Agreement is limite d to W-W comparisons in the context of original 
investigations should be rejected in  its entirety.  According to the European Union, when the language 
of this provision is correctly interpreted, fo llowing the rules of interpretation of the Vienna 
Convention, there can be no result other than a finding that Article 2.4.2 prohibits "zeroing" in all forms except targeted dumping
114, and in all types of anti-dumping proceedings.115   
7.77 Drawing on essentially the same line of reasoni ng developed in prev ious Appellate Body 
reports, the European Union argues that the "margi n of dumping" referred to in Article 9.3 of the 
AD Agreement must be interprete d and understood in the context of the definition of "dumping" 
contained in Article 2.1 of the AD Agreement and Article VI:1 of the GATT 1994 – i.e., that dumping 
can only be found in relation to the "product as a whol e", as defined by the investigating authority.  
According to the European Union, "dumping" cannot be found to exist for only a type, model or 
category of a product, including a "category" in one or more low priced export transactions.  Thus, the 
European Union submits that whatever method is u sed to calculate the margin of dumping, that 
margin must be and can only be established for th e "product as a whole", subject to targeted dumping 
provisions.116   
7.78 The European Union asserts that it is uncontest ed that the USDOC's use of "zeroing" in 
administrative reviews "systematically and inevitabl y inflates the dumping margin and the amount of 
duty, compared with a computation without zeroing".  Thus, it submits that the use of "zeroing" in the administrative reviews at issue constitute a "direct violation of Article 9.3".
117  The European Union 
argues that the possibility for Members to use pr ospective normal value systems of duty collection 
offers no support to the United States' interpretation of the obligations in Article 9.3.  In particular, the 
European Union is of the view that such prosp ective systems of duty assessment will always remain 
subject to Article 9.3.2, which calls for duty ref unds to be made on request.  In other words, the 
                                                      
111 US, SWS, paras. 4-22;  US, Second Confidential Opening Oral Statement ("SCOOS"), paras. 26-28. 
112 Argentina, Third Party Written Su bmission ("TPWS"), paras. 8-18. 
113 Argentina, TPWS, paras. 21-22. 
114 EU, TPWS, paras. 23-24, 163, 165 and 175. 
115 EU, TPWS, paras. 22-159. 
116 EU, TPWS, paras. 160-163. 
117 EU, TPWS, para. 169.  WT/DS382/R 
 Page 33 
BCI deleted, as indicated [[XX]] 
 
 margin of dumping that should be used to assess th e final duty liability must be determined on the 
basis of all export transactions, even those w ith a value above the prospective normal value.118  
Similarly, the European Union rejects the Unite d States' reliance on "mathematical equivalence", 
arguing that there are ways of using the targeted dumping methodology without "zeroing";  and that in 
any case, permitting "zeroing" in circumstances where the third methodology applies might be 
acceptable, given that it is an exception to the rule.119  
(c) Japan 
7.79 Japan submits that the legal principles govern ing the WTO-inconsistency of the "zeroing" 
procedures at issue in this dispute have been thoroughly canvassed by the Appellate Body in past 
WTO disputes, and are now well esta blished.  Japan recalls that th e Appellate Body has, on numerous 
occasions, determined that Article 2.1 of the AD Agreement and Article VI:1 of the GATT 1994, 
when properly interpreted according to the Vienna  Convention, define " dumping" on an exporter-
specific basis for the "product as a whole".  Japan notes that this definition applies throughout the 
AD Agreement, and is therefore relevant to all anti-dumping proceedings involving the determination 
of a margin of dumping, including duty assessment under Article 9.3 of the AD Agreement.  Japan 
argues that the consequences of the USDOC's use of "zeroing" in the administrative reviews at issue 
in the present dispute are the same as those addressed in  previous controversies.  Japan asserts that by 
excluding all negative comparison results, the US DOC makes a "dumping" determination that 
disregards an entire category of the export tran sactions making up the "pro duct" – namely, those 
transactions that generate the negative comparison results.  Thus, Japan submits that the USDOC does 
not determine "dumping" for the "product" as defined by the investigating authority, but for a sub-part 
of that product.  In conclusion, Japan argues that by applying "zeroing" in the measures at issue, the 
USDOC failed to comply with the definition of " dumping".  Japan therefore urges the Panel to find 
that the United States acted inconsistently with Ar ticle 9.3 of the AD Agreement and Article VI:2 of 
the GATT 1994.120 
(d) Korea 
7.80 Korea recalls that in repeatedly ruling th at the USDOC's practice of "zeroing" in 
administrative reviews is inconsistent with Artic le 9.3 of the AD Agreement and GATT Article VI:2, 
the Appellate Body has explicitly rejected the Un ited States' arguments that "dumping" and "margin 
of dumping" can be found to exist at the level of  individual transactions.  Korea notes that the 
Appellate Body has found contextual support for this  view in other provisions of the AD Agreement, 
such as Articles 5.8, 6.10 and 9.5 as well as the c oncept of injurious dumping.  Korea submits that, 
like the Appellate Body, it too is una ble to find "a textual or contextual basis in the GATT 1994 or the 
Anti-Dumping Agreement for treating transactions that occur above normal value as 'dumped', for 
purposes of determining the existence and magnitude of  dumping in the original investigation, and as 
'non-dumped', for purposes of assessing the final liability for payment of anti-dumping duties in a period review".
121   
7.81 Thus, Korea urges the Panel to follow the Appe llate Body's reasoning in previous cases, and 
find that Brazil has established that the United Stat es has acted inconsistently with its obligations 
under the AD Agreement and the GATT 1994.122 
                                                      
118 EU, TPWS, paras. 171-174. 
119 EU, TPWS, paras. 175-176. 
120 Japan, TPWS, paras. 4-12, 24-53, 57-69 and 72. 
121 Korea, TPWS, paras. 21-23, referring to and quoting Appellate Body Report, US – Continued 
Zeroing (EC) , paras. 285 and 287. 
122 Korea, TPWS, paras. 23-24. WT/DS382/R 
Page 34 
BCI deleted, as indicated [[XX]] 
 
 (e) Mexico 
7.82 Mexico asserts that Brazil's claims against the United States' "zeroing" methodology are 
substantially the same as those brought against the United States in previous disputes.  Mexico notes 
that the WTO-inconsistency of this methodology ha s now been firmly established with the Appellate 
Body rulings in US – Zeroing (EC) , US – Zeroing (Japan) , US – Stainless Steel  and US – Continued 
Zeroing .  According to Mexico, in responding to Brazi l's claims, the United States has raised no new 
substantive arguments in defence of "zeroing" that  have not already been fully addressed in these 
cases.  Mexico urges the Panel follow the Appellate Body on this matter and find that Brazil has fully 
made out its claims.  Mexico considers that the Pa nel should do this not only because the prior rulings 
are correct, but also because there are strong system ic reasons to adhere to the Appellate Body's 
consistent body of case-law.  In this regard, Mexico  recalls the point made by the Appellate Body in 
US – Oil Country Tubular Goods Sunset Reviews , where it stated that "following the Appellate Body's 
conclusions in earlier disputes is not only appropria te, but is what would be expected from panels, 
especially where the issues are the same".123  Thus, as the United States is, in Mexico's view, unable 
to identify any new substantive arguments not alrea dy rejected in previous WTO disputes, and as the 
substance of all of Brazil's legal claims have been considered and a ffirmed in a long line of consistent 
prior Appellate Body reports, Mexico asks the Pa nel to adopt the reasoning from those prior rulings 
and find "(yet again)" that the United States' "zeroing" methodology is inconsistent with the 
AD Agreement and the GATT 1994.124   
4. Evaluation by the Panel 
(a) Relevant Facts 
(i) Administrative Reviews under United States' Law 
7.83 The United States operates a retrospective syst em of duty assessment whereby liability for the 
payment of anti-dumping duties attaches at the time of entry, yet the final amount of such liability is not actually determined at that moment.  Instead, at  the time of entry, the United States collects what 
it characterizes as a "security" in the form of a c ash deposit, which represents an estimate of an 
importer's final amount of anti-dumping duty liability.  Once a year (during the anniversary month of 
the anti-dumping duty orders) interested parties may request an administrative review to determine the 
final amount of duties that is actually owed on each entry made during the period of review.
125  Thus, 
an administrative review serves two purposes.  Firs t, it establishes an overall dumping margin for each 
exporter, which becomes the new cash deposit rate (" CDR") for entries made after the publication of 
the review determination, and c ontinues to apply until the completion of the next administrative 
review.  Second, it establishes the final amount of anti-dumping duty that must be paid by each 
respective importer on imports that occurred during the relevant period of review – the importer-
specific assessment rate ("ISAR").  If the ISAR results in an amount of duties that is less than the total 
amount of cash deposits that were paid by the im porter on importation, the difference is refunded, 
with interest.  Conversely, if the ISAR results in an amount of duties that is greater than the total 
amount of the cash deposits, the importer is requested to  pay the difference, plus interest.  If the ISAR 
results in an amount of duties that is equal to the cash deposits, the importer is notified of assessment 
                                                      
123 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina  ("US – Oil Country Tubular Goods Sunset Reviews "), WT/DS268/AB/R, adopted 
17 December 2004, DSR 2004:VII, 3257, para. 188. 
124 Mexico, TPWS, paras. 1-10. 
125 The period of review covered by United States duty assessment proceedings is normally twelve 
months.  However, in the case of the first assessmen t proceeding following the orig inal investigation imposing 
the anti-dumping duty order, the period of time may extend to a period of up to 18 months in order to cover all 
entries that may have been subject to provisional measures.  WT/DS382/R 
 Page 35 
BCI deleted, as indicated [[XX]] 
 
 at that rate.  If no review is requested, the duty is assessed at the estimated rate, and the cash deposits 
made on the entries during the previous year are retained to pay the final duties. 
(ii) Measures at Issue 
7.84 The measures at issue under this part of Brazil's complaint relate to the anti-dumping duty 
order issued by the United States on 9 March 2006 covering exports of certain orange juice from 
Brazil.126  In particular, Brazil challenges the final resu lts for two respondents, Cutrale and Fischer, in 
the First and Second Administrative Reviews, which we re respectively published in the United States 
Federal Register on 11 August 2008 and 11 Augus t 2009.  The weighted average dumping margins 
("WAM"), the cash-deposit rates ("CDR") and the importer-specific assessment rates ("ISAR") 
determined for Cutrale and Fischer in the two admi nistrative reviews are shown in the following table: 
 WAM127 CDR127 ISAR128 
First Administrative Review  
Cutrale 0.45% 0% [[XX]] 
Fischer 4.81% 4.81% [[XX and XX]] 
Second Administrative Review  
Cutrale 2.17% 2.17% [[XX]] 
Fischer 0% 0% [[XX]] 
 
7.85 In each of the challenged administrative reviews, the USDOC used a computer programme to 
process the export price and normal value data of each exporter in order to calculate individual 
WAMs.  In essence, this calculation followed three steps:  First, the price of each individual export transaction was compared to a weighted-average nor mal value for a contemporaneous month;  second, 
the results of these comparisons were aggregated;  and third, the aggregated comparison results were 
divided by the total value of all export transactions , and the resulting fraction expressed in percentage 
terms.  When undertaking the second step (aggreg ation), the programme included language that 
instructed the computer to disregard or count as zer o any comparison results that were negative (i.e., 
where weighted-average normal value was lower than the relevant individual export price).  In other 
words, the computer programme called for negative comparison results to be disregarded or given a 
zero value in the process of their aggregation fo r the purpose of establishing the numerator of the 
fraction representing the margin of dumping.  It is this treatment of  negative weighted -average normal 
value and individual export price comparison resu lts that Brazil describes as "simple zeroing".   
7.86 In addition to the support found in certain p assages of the Issues and Decision Memoranda 
from the First and Second Administrative Reviews
129, the computer programme log and output 
                                                      
126 Anti-Dumping Duty Order:  Certain Orange Juice from Brazil, 9 March 2006, 71 Fed. Reg. 12183 
("Anti-Dumping Duty Order").  Exhibit BRA-3. 
127 As published in the Final Results of the First Administrative Review, Exhibit BRA-21, and the Final 
Results of the Second Administrative Review, Exhibit BRA-22. 
128 Figures drawn from Exhibits BRA-34 (BCI) and BRA-37 (Cutrale's computer programme outputs), 
penultimate page; and BRA-35 (BCI) and BRA-39 (Fischer's computer programme outputs), penultimate page. 
129 We note that the United States asserts that the Issues and Decision Memorandum from the First 
Administrative Review submitted by Brazil does not demonstrate that the USDOC applied "simple zeroing" in that administrative review.  In particul ar, the United States does not accept that it demonstrates that "Fischer's or 
Cutrale's sales presented [USDOC] with instances of non- dumped sales such that any denial of an offset for a 
non-dumped sale actually occurred" (US Answer to Panel Question 10).  However, in our view, various statements made in this Issues and Decision Memorandum strongly suggest that the "simple zeroing" instruction 
was in fact used.  For instance, "In the preliminary results, we followed our standard methodology of not using WT/DS382/R 
Page 36 
BCI deleted, as indicated [[XX]] 
 
 evidence advanced by Brazil demonstrates that the "simple zeroing" instruction was in fact executed 
in the WAM calculations performed for each of the two respondents.130  Moreover, we note that the 
WAMs for Fischer in the First Administrativ e Review (4.81%) and Cutrale in the Second 
Administrative Review (2.17%) were relied upon to se t equivalent CDRs.  In the First Administrative 
Review, the WAM for Cutrale of 0.45% was deemed to be de minimis  under United States law, and 
therefore a 0% CDR was applied.131  Although the WAM (and consequently the CDR) published in 
the Final Results of the Second Administrative Review for Fischer were 0%132, the computer 
programme evidence submitted by Brazil shows that the calculation run by the USDOC resulted in a 
WAM of [[XX]].133  Thus, it appears that a WAM of 0%, a nd an equivalent CDR, were imposed on 
Fischer in the Second Administrative Review because  of the WAM of [[XX]] determined through the 
application of the USDOC's computer programme.  We note that the United States does not argue that 
a WAM and CDR of 0% were imposed on Fischer for any other reason.   
7.87 To determine the ISARs applicable to entr ies of the respective exporter's products, the 
computer programme applied by the USDOC fo llowed the same methodology described in 
paragraph 7.85 but, for a given importer, it incl uded only those transactions imported by that 
importer in the calculation.  In other words, the computer programme sorted and 
aggregated transactions where the export price w as below normal value on an importer-specific basis, 
thereby applying "simple zeroing".134  Accordingly, ISARs of [[XX]] and [[XX]] were calculated for 
Cutrale in, respectively, the First and Second Admi nistrative Reviews;  and for Fischer, ISARs of 
[[XX]] and [[XX]] were determined in the First Administrative Review.135  Although a [[XX]] ISAR 
was applied to Fischer's imports in the Second Ad ministrative Review, the ev idence demonstrates that 
                                                                                                                                                                     
non-dumped comparisons to offset or reduce the dumping found on other comparisons (commonly known as 
'zeroing').  ... We have not changed our calculation of the weighted-average margin of dumping margin as 
suggested by the respondents in these final results".  Exhibit BRA-28, pp. 3 and 5.  Similar language can be found in the Issues and Decision Memorandum from the Second Administrative Review, Exhibit BRA-43, pp. 3 
and 6. 
130 Regarding Cutrale in the First Administrative Review, see Exhibits BRA-29 (BCI) (Computer 
programme log);  BRA-28 (Issues and Decision Memorandum), pp. 3-6;  BRA-34 (BCI) (Computer programme 
output);  and BRA-31 (BCI) (Ferrier Affidavit).  Regarding Fischer in the First Administrative Review, see 
Exhibits BRA-45 (BCI) (Computer programme log);  BRA-28 (Issues and Decision Memorandum), pp. 3-6;  BRA-35 (BCI) (Computer programme output);  and BRA-31 (BCI) (Ferrier Affidavit).  Regarding Cutrale in 
the Second Administrative Review, see Exhibits BRA-36 (BCI) (Computer programme log);  BRA-43 (Issues 
and Decision Memorandum), pp. 3-6;  BRA-37 (BCI) (Computer programme output);  and BRA-31 (BCI) 
(Ferrier Affidavit).  Regarding Fischer in the Second Administrative Review, see Exhibits BRA-38 (BCI) 
(Computer programme log);  BRA-43 (Issues and Decision Memorandum), pp. 3-6;  BRA-39 (BCI) (Computer programme output);  and BRA-31 (BCI) (Ferrier Affidavit).  Although the United States initially challenged the 
authenticity of one piece of evidence Brazil relied upon for the purpose of demons trating that the WAM of 
Fischer in the First Administrative Review was calculated through the use of "simple zeroing" (Exhibit BRA-30 (BCI) (Computer programme log)), Br azil subsequently introduced a repl acement exhibit, th e authenticity of 
which the United States has not challenged.  See, US, FWS, para. 122;  US, FCOOS, para. 36.  Exhibit BRA-45 
(BCI).  See also the summary of information on the use of "zeroing", submitted as Exhibit BRA-48. 
131 Exhibit BRA-21. 
132 Exhibit BRA-22. 
133 Exhibit BRA-39 (BCI), last page, right-hand column, "Wt avg percent margin". 
134 Regarding Cutrale in the First Administrative Review, see Exhibits BRA-29 (BCI) (Computer 
programme log);  and BRA-31 (BCI) (Ferrier Affidavit).  Regarding Fischer in the First Administrative Review, 
see Exhibits BRA-45 (BCI) (Computer programme log);  and BRA-31 (BCI) (Ferrier Affidavit).  Regarding Cutrale in the Second Administrative Review, see Exhibits BRA-36 (BCI) (Computer programme log);  
and BRA-31 (BCI) (Ferrier Affidavit).  Regarding Fischer in the Second Administrative Review, see 
Exhibits BRA-38 (BCI) (Computer programme log);  and BRA-31 (BCI) (Ferrier Affidavit).  See also the summary of infromation on the use of "zeroing", submitted as Exhibit BRA-48. 
135 See above, footnote 127.  WT/DS382/R 
 Page 37 
BCI deleted, as indicated [[XX]] 
 
 the computer programme used by the USDOC to  calculate Fischer's ISAR applied "simple 
zeroing".136 
(b) Introduction 
7.88 As the parties recognize137, Brazil's complaint against the United States' alleged use of 
"simple zeroing" in the relevant administrative revi ews is, first and foremost, premised on the view 
that "dumping" is defined, as a general matter, in the AD Agreement and the GATT 1994 in relation 
to the "product as a whole".  Thus, the fundamental qu estion that lies at the heart of Brazil's claims is 
the following:  how does the AD Agreement define the notion of "dumping"?  Is Brazil correct in 
submitting that "dumping" is a concept that relate s to an exporter's overall pricing behaviour that 
Members are only entitled to measure with respec t to the "product as a whole"?  Or does the 
AD Agreement, as the United States argues, permit bo th this and a transaction-specific conception of 
"dumping"?   
(c) The definition of "dumping" 
7.89 We start our assessment of the parties' arguments by reviewing Article VI:1 of the 
GATT 1994 and Article 2.1 of the AD Agreement, which respectively read: 
Article VI:1 of the GATT 1994  
"The contracting parties recognize that  dumping, by which products of one 
country are introduced into the commerce of another country at less than the normal value of the products, is to be conde mned if it causes or threatens material 
injury to an established industry in the terr itory of a contracting party or materially 
retards the establishment of a domestic indus try. For the purposes of this Article, a 
product is to be considered as being intr oduced into the commerce of an importing 
country at less than its normal value, if the price of the product exported from one country to another 
(a) is less than the comparable price, in the ordinary course of trade, for 
the like product when destined for consumption in the exporting 
country, or, 
 ( b) in the absence of such domestic  price, is less than either 
(i) the highest comparable price for the like product for export to 
any third country in the ordinary course of trade, or 
(ii) the cost of production of the product in the country of origin 
plus a reasonable addition for selling cost and profit. 
Due allowance shall be made in each case for differences in conditions and terms of 
sale, for differences in taxation, and for other differences affecting price 
comparability.*" 
                                                     
 
136 In particular, the computer pr ogramme evidence reveals that the numerator in the calculation of 
Fischer's ISAR in the Second Administrative Review in cluded only the total amount by which export price of 
individual transactions was below normal value.  These accounted for [[XX]] out  of a total of [[XX]] 
transactions.  See Exhibits BRA-38 (BCI), p.76;  and BRA-31 (BCI) (Ferrier Affidavit), paras. 53-56.  We note 
that the ISAR determined on this basis ([[XX]]) was cons idered to be [[XX]].  Exhibit BRA-39 (BCI), p. 105.  
See also the summary of information on the use of "zeroing", submitted as Exhibit BRA-48. 
137 Brazil, FCOOS, para. 6;  US, FWS, paras. 60-61. WT/DS382/R 
Page 38 
BCI deleted, as indicated [[XX]] 
 
 Article 2.1 of the AD Agreement  
"For the purpose of this Agreement, a produc t is to be considered as being dumped, 
i.e.  introduced into the commerce of anothe r country at less than its normal value, if 
the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of  trade, for the like product when destined 
for consumption in the exporting country." 
7.90 Both Article VI:1 of the GATT 1994 and Ar ticle 2.1 of the AD Agreement describe 
"dumping" in the same terms, namely, as occurri ng whenever a product is "introduced into the 
commerce of another country at less than its norma l value" or, more specifically, when the export 
"price of the product exported from one country to anot her is less than the comparable price, in the 
ordinary course of trade, for the like product wh en destined for consumption in the exporting 
country".  There is no disagreement between the parties that this description, as it appears in 
Article 2.1, defines "dumping" for the purpose of  the entire AD Agreement.  Moreover, although both 
parties consider the ordinary meaning of the text of these provisions to support their own 
interpretations of the notion of "dumping", they do not argue that the text alone  resolves the question 
whether "dumping" may be measured on the basis of individual transactions or whether it must 
necessarily always be determined through aggregatio n of all transactions relating to the "product as a 
whole".
138  Previous panels and the Appellate Body have  generally come to the same conclusion, and 
have looked beyond the language of Article 2.1 in order to decipher the meaning of "dumping".  
When it comes to the issue of "zeroing", the inco nclusive nature of the definition of "dumping" 
contained in Article 2.1 was perhaps most clearly articulated in US – Continued Zeroing , where the 
Appellate Body declared that: 
"Mere scrutiny of the particular terms – such as product and export price – in 
Article 2.1 does not resolve the issue of wh ether the concept of dumping is concerned 
with individual transactions or whethe r it is necessarily an aggregative concept 
attributable to an exporter".139  
Similarly, the Concurring Opinion in the same Appellate Body report observed: 
 
"... Nothing could be more important than the definition of the concept of 'dumping'.  It is foundational and applies throughout the Agreement, as the clear wording of Article 2.1 makes plain.  It cannot have va riable or contradictory meanings, for that 
would infect the entire Agreement.  Yet the definition is cast at a high level of 
generality.  The definition makes no attribution of agency;  it does not say who 
introduces a product into the commerce of another country.  Article 2.1 might so easily have included the words 'by an exporter', but it does not.  So too, the definition might have referred to the product as a whole, and not simply a product.  The definition is inchoate, and t hus it must be interpreted."
140 
7.91 In our view, the language of Article 2.1 of the AD Agreement and Article VI:1 of the 
GATT 1994 is drafted in such general terms that  render both provisions potentially capable of 
capturing either of the two conceptions of "dumpi ng" advanced by the parties.  We are mindful, 
however, that this conclusion is only the starting poi nt of our analysis, as pursuant to the customary 
rules of interpretation of public inte rnational law reflected in the Vie nna Convention, we must test and 
                                                      
138 See, for instance, Brazil, FWS, paras.  49-60;  and US, FWS, paras. 63-68. 
139 Appellate Body Report, US – Continued Zeroing , para. 282.  See further, e.g., Panel Report, US – 
Zeroing (Japan) , paras. 7.103-7.112;  Panel Report, US – Stainless Steel (Mexico) , para. 7.119. 
140 Appellate Body Report, US – Continued Zeroing , para. 300.  WT/DS382/R 
 Page 39 
BCI deleted, as indicated [[XX]] 
 
 explore our understanding of the relevant text in the light of its context and the object and purpose of 
the AD Agreement.  
(i) Articles 3, 5.8, 6.10, 8.1, 9.1,  9.3 and 9.5 of the AD Agreement 
7.92 Drawing from various findings of the Appellate Body in prior disputes141, Brazil argues that 
Articles 3, 5.8, 6.10, 8.1, 9.1, 9.3 and 9.5 of the AD Agreement all support the position that 
"dumping" must be understood in terms of the pric ing behaviour of individua l exporters or foreign 
producers determined through the calculation of a single margin of dumping with respect to the 
"product as a whole".142  In particular, Brazil highlights, inter alia , that pursuant to Article 5.8, there 
shall be "immediate termination" of an anti-dum ping investigation against an exporter where the 
margin of dumping determined for that exporter is de minimis , recalling that the Appellate Body has 
said that the term "margin of dumping" in this prov ision "refers to a single margin established for each 
exporter by aggregation of its export transactions".143  Similarly, Brazil points to:  (i) Article 6.10, 
which it emphasizes requires that investigating authorities "shall, as a rule, determine an individual  
margin of dumping for each known exporter  or producer concerned of the product under 
investigation"144:  (ii) Articles 6.10.2 and 9.5, which acco rding to Brazil, contain similar language145;  
(iii) Article 8.1, which Brazil submits provides th at price undertakings must not be greater than 
necessary "to eliminate the margin of dumping"146;  and (iv) Articles 9.1 and 9.3, which Brazil notes 
stipulate that duties imposed and collected must be no greater than " the margin of dumping".147  Brazil 
also asserts that the injurious effects of "dumped imports" are assessed under Article 3, not on a transaction-by-transaction basis, but rather by exam ining the effects of all imports of the exporter 
engaged in dumping.  Brazil argues that a uniform interpretation of the term "dumping" ensures that 
transactions treated as "dumped" for purposes of a dumping determination are also treated as 
"dumped" for the purpose of injury, and vice versa .
148 
7.93 Brazil adds that there is both a consistency an d logic to the text of the AD Agreement.  
According to Brazil, Article 6.10 expressly requires that a single margin of dumping be determined 
for each exporter of the product.  In Brazil's view, the singularity of that determination has a series of 
important legal consequences that affect the produc t as a whole:  under Article 5.8, the decision to 
terminate an investigation is based on a single dumping determination made for all transactions 
relating to the "product";  under Article 3, on the ba sis of a product-wide dumping determination, all 
entries of the "product" are treated as dumped fo r the purposes of an injury determination;  under 
Articles 8 and 9, the extent of permissible remedial action to counter injurious "dumping" is fixed by 
                                                      
141 Including, Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India – Recour se to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – 
India )"), WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965, para. 115;  Appellate Body Report, 
US – Softwood Lumber V , footnote 158;  Appellate Body Report, United States – Final Dumping Determination 
on Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada  ("US – Softwood Lumber V 
(Article 21.5 – Canada) "), WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII, 5087, para. 108;  
Appellate Body Report, US – Zeroing (Japan) , para. 126;  Appellate Body Report, US – Stainless Steel 
(Mexico) , paras. 86-87, 99, 108;  and Appellate Body Report, US – Continued Zeroing , paras. 268, 283. 
142 Brazil, FWS, paras. 54-56;  Brazil, FCOOS, paras. 20-28. 
143 Brazil, FWS, para. 55;  Brazil, FCOOS, para. 20, referring to Appellate Body Report, US – 
Continued Zeroing , para. 283. 
144 Brazil, FWS, para. 56;  Brazil, FCOOS, para. 21 (emphasis original). 
145 Brazil, FCOOS, para. 21. 
146 Brazil, FCOOS, para. 25 (emphasis original). 
147 Brazil, FCOOS, para. 25 (emphasis original). 
148 Brazil, FWS, para. 58;  Brazil, FCOOS, para. 23. WT/DS382/R 
Page 40 
BCI deleted, as indicated [[XX]] 
 
 reference to a single margin of dumping, and that  remedy applies to all future imports of the 
"product".149   
7.94 The United States considers that Brazil's contextu al arguments in support of its legal case are 
misplaced.  Although agreeing with Brazil that the ma rgin of dumping referred to in Article 5.8 of the 
AD Agreement may refer to an aggregation of multip le transactions, the United States considers that 
its relevance is limited to original investigati ons conducted under Article 5 of the AD Agreement, 
where an investigating authority must determ ine whether dumping exists above a 2 per cent de 
minimis  threshold, and whether such dumping causes in jury to the domestic industry.  The United 
States argues that, in contrast, duty assessment under Article 9.3 of the AD Agreement is about the 
collection of duty, not the determination of the ex istence of dumping and injury.  Thus, according to 
the United States, the differences between an Ar ticle 5 original inves tigation and duty assessment 
under Article 9.3 undermine Brazil's reliance on Article 5.8.150   
7.95 The United States submits that the term "individual" appearing in Article 6.10 does not, as 
Brazil argues, refer to a "single" margin of du mping calculated on the basis of the "product as a 
whole".  Rather, the United States argues that this term must be read as meaning that any calculated 
margin must correspond to the individual exporter.  The United States finds support for this view in 
the Spanish text, which it notes provides that the investigating authority determine a margin of 
dumping "que corresponda a cada exportador", i. e., "that corresponds to each exporter".  The 
United States explains that a margin may co rrespond to an exporter while being based on one 
transaction – as long as that transaction is the exporter' s.  According to the United States, Article 6.10 
has nothing to do with how many transactions form th e basis for any such margin, a fact it argues has 
been recognized by previous panels.151   
7.96 The United States also argues that Brazil's interpre tation of Articles 6.10, 8.1, 9.1, 9.3 and 9.5, 
overstates the importance of the term "margin of dumping" in the singular.152  According to the 
United States, Brazil has itself admitted that "the use of the singular is not decisive".153  Thus, drawing 
on previous panel and Appellate Body  findings, the United States submits that a term that is used in 
the AD Agreement in the singular form may have "both singular and plural meanings".154  In addition, 
the United States counters Brazil's reliance on how in jury is determined under Article 3 by recalling 
that no injury determination is required in Artic le 9.3 assessment proceedings.  The United States 
explains that Article 9 focuses on the amount of duty to be assessed on particular entries, an exercise 
that is separate and apart from the calculation of  an overall dumping margin  and determination of 
injury or threat of material injury during the original anti-dumping investigation.155  
7.97 We agree with the parties that Article 5.8 makes it necessary to determine a "single" overall 
margin of dumping for an investigated producer or exporter in order to ensu re compliance with the de 
minimis  dumping rule it prescribes.  However, it is equall y apparent to us that Article 5.8 says nothing 
about how any such single margin of dumping must be calculated – i.e., whether it should involve an 
                                                      
149 Brazil, FCOOS, para. 26. 
150 US, SWS, paras. 30-37. 
151 US, SWS, paras. 38-42, referring to inter alia  Panel Report, US – Zeroing (Japan) , para. 7.111;  
Panel Report, US – Stainless Steel (Mexico) , para. 7.127;  and Panel Report, US - Continued Zeroing , 
para. 7.163. 
152 US, SWS, para. 43. 
153 US, SWS, para. 43, citing Brazil, FCOOS, para. 13. 
154 US, SWS, para. 43, referring to Panel Report, United States – Anti Dumping Measures on Oil 
Country Tubular Good s (OCTG) from Mexico , WT/DS282/R, adopted 28 November 2005, as modified by 
Appellate Body Report WT/DS282/AB/R, para. 7.149;  and Appellate Body Report, United States –Anti 
Dumping Measures on Oil Country Tubular Goods (OCTG)  from Mexico, WT/DS282/AB/R, adopted 
28 November 2005, para. 147. 
155 US, FWS, paras. 87-92.  WT/DS382/R 
 Page 41 
BCI deleted, as indicated [[XX]] 
 
 aggregation of the results of all normal value and export price comparisons or only those where 
normal value exceeds export price.  We note that the question that must be answered when examining 
the WTO-consistency of "zeroing" is not simply whether there must be aggregation of multiple 
normal value and export price comparison results, but also whether any such aggregation must always 
necessarily take account of all those comparison results.156  In our view, the fact that Article 5.8 
envisages the calculation of a "single" overa ll margin of dumping clarifies little about how that margin 
of dumping is supposed to be calculated.157 
7.98 Similarly, the fact that all imports are treated as "dumped" for the purpose of determining 
injury in an original investigation under Article 3 might also be understood to provide support for the 
view that "dumping" concerns the "product as a whole".158  In this regard, Brazil recalls that the 
Appellate Body has highli ghted "the contradiction that arises wh en the same type of transactions are 
treated as 'dumped' for purposes of injury determ ination in the original investigation and as 'non-
dumped' in periodic reviews for duty assessment".159  Brazil argues that such contradictions have no 
place in a "harmonious and coherent" interpretation of the AD Agreement.160  However, as we see it, 
contradiction and incoherence aris es only if the qualitative differences in the rules governing original 
investigations (where authorities must perform an  injury analysis) and duty assessment proceedings 
(where the focus is purely on duty collection) are not  considered sufficient to justify the possibility of 
two conceptions of the notion of "dumping" co-e xisting in the AD Agreement.  Obviously, the 
Appellate Body believes the differences are not so great.161 
7.99 We find the language that Brazil has pointed to in the remainder of the above-mentioned 
provisions relatively weak and consider that it provides no particularly useful guidance for the 
purpose of determining which of the two con ceptions of "dumping" is favoured under the 
AD Agreement.  Again, it is difficult to see what ob ligations which refer to "the" margin of dumping 
or "an individual" margin of dumping can tell us about the definition of "dumping" when they do not speak at all to how "the" margin of dumping or any "individual" margin of dumping must be 
calculated – should it be through an aggregation of  the results of all normal value and export price 
comparisons or only those where normal value exceeds export price?
162   
(ii) "Dumping" is an exporter-specific , not importer-specific, concept 
7.100  Brazil recalls that the Appellate Body has found th at "dumping" is determined with respect to 
an individual exporter, and not on an  importer-specific basis.  Relyi ng upon the position articulated by 
the Appellate Body in US – Stainless Steel (Mexico) , Brazil submits that the elements of the definition 
of "dumping" – namely, that "dumping" occurs when a product is " introduced  into the commerce of 
another country " at an " export price " that is less than the "comparable price for the like product in the 
exporting country " – indicate that Article VI:1 of the GATT 1994 and Article 2.1 of the 
                                                      
156 See above, para. 7.90. 
157 A similar view was expressed in the Concurring Opinion of one Appellate Body Member in 
Appellate Body Report, US – Continued Zeroing , paras. 309-310. 
158 We note that there is no disagreement between the parties that a margin of dumping determined 
through the use of the first methodology described in Article 2.4.2 of the AD Agreement must be established on the basis of a comparison of weighted average normal value with a weighted average of prices of all comparable 
export transactions.  See, e.g., Brazil, FWS, para. 114;  US, FWS, para. 54. 
159 Appellate Body Report, US – Stainless Steel (Mexico) , para. 108. 
160 Brazil, FCOOS, para. 23. 
161 See, e.g, Appellate Body Report, US – Continued Zeroing , paras. 284-285. 
162 A similar view was expressed with respect to Ar ticles 6.10 and 9.5 of the AD Agreement in the 
Concurring Opinion of one Appellate Body Member in Appellate Body Report, US – Continued Zeroing , 
paras. 309-310. WT/DS382/R 
Page 42 
BCI deleted, as indicated [[XX]] 
 
 AD Agreement address the pricing practices of an exporter.163  Brazil also refers to Articles 2.2, 2.3, 
5.8, 6.10, 8.1, 9.4 and 9.5 of th e AD Agreement, drawing support fo r its position from the language in 
these provisions which identifies or focuses upon the " export price ", the " exporter ", the " volume of 
exports ", the " exporting country ", "any known exporter ", "any exporter ", "exporters or foreign 
producers " and the " selected exporters or producers ".164  In addition, Brazil cites another series of 
Appellate Body statements where it is observed that: 
"[d]umping arises from the pricing practices  of exporters as both normal value and 
export prices reflect their pricing strategies in home and foreign markets".165  
"Indeed, it is the exporter, not the importer  that engages in practices that result in 
situations of dumping".166   
"The fact that 'dumping' and 'margin of dumping' are exporter-specific concepts under 
the Anti-Dumping Agreement is not altered by the fact that the export price may be the result of negotiation between the importer and the exporter.  Nor is it altered by 
the fact that it is the importer that incu rs the liability to pay anti-dumping duties".
167 
7.101  The United States submits that "dumping" may be both exporter-specific and transaction-
specific at the same time.  Accord ing to the United States, an exporter orientation does not, of itself, 
require that transactions be aggregated under Ar ticle 9.3 of the AD Agreement because a dumping 
margin determination on the basis of an exporter's actions with respect to an individual transaction is 
no less exporter-specific than one on the basis of mu ltiple transactions by that exporter.  Moreover, 
the United States argues that a transaction-specific meaning is equally exporter-specific and importer-
specific since each transaction has both an exporter and an importer.168 
7.102  We agree with Brazil and the Appellate Body that  "dumping" is a concept that relates to an 
individual exporter's pricing behaviour.  Howeve r, in our view, this tells us little about how to make a 
determination of "dumping", and in particular, whether the focus of su ch a determination should be an 
individual exporter's overall pricing behaviour in resp ect of the "product as a whole", or an exporter's 
pricing behaviour considered on a transaction-specific basis.  As the United States has submitted, the 
question at issue in this dispute is not whether "d umping" is an exporter-specific or importer-specific 
concept, but rather to what extent individual transact ions of a particular exporter must be aggregated 
when making a determination of "dumping".169  Brazil's arguments concerning the exporter-specific 
nature of "dumping" elucidate very little in this regard.  
(iii) Article VII:3 and the Ad Note to Article VI:1  of the GATT 1994, and Articles 2.2 and 2.3 of 
the AD Agreement 
7.103  The United States submits that the term "product" used throughout the AD Agreement and the 
GATT 1994 carries with it a variable meaning, implying that it cannot be presumed that the same term has the exclusive meaning Brazil argues in th e context of Article 2.1 of the AD Agreement and 
Article VI:1 of the GATT.  For instance, the United States points to Article 2.6 of the AD Agreement, 
                                                     
 
163 Brazil, FWS, para. 53, referring to Appellate Body Report, US – Stainless Steel (Mexico) , para. 86 
(emphasis original). 
164 B r a z i l ,  F W S ,  p a r a s .  5 4 - 5 6 ,  r e ferring to Appellate Body Report, US – Stainless Steel (Mexico) , 
paras. 86-87 (emphasis original). 
165 Brazil, FWS, para. 57, c iting Appellate Body Report, US – Stainless Steel (Mexico) , para. 95 and 
Appellate Body Report, US – Zeroing (Japan) , para. 156. 
166 Brazil, FWS, para. 57, citing Appellate Body Report, US – Zeroing (EC) , para. 129. 
167 Brazil, FWS, para. 57, citing Appellate Body Report, US – Stainless Steel (Mexico) , para. 95. 
168 US, FWS, paras. 85-86. 
169 US, FWS, para. 85.  WT/DS382/R 
 Page 43 
BCI deleted, as indicated [[XX]] 
 
 which defines the term "like product" in relation to  "the product under consideration".  According to 
the United States, this provision plainly uses the term "product" in the collective sense.  The 
United States notes that, by contrast, Article VII: 3 of the GATT 1994 – which refers to "[t]he value 
for customs purposes of any imported product" – plai nly uses the term "product" in the individual 
sense of the object of a particular transaction ( i.e., a sale involving a specific quantity of merchandise 
that matches the criteria for the "p roduct" at a particular price).170 
7.104  In addition, the United States argues that the term "margin of dumping" found in the Ad Note 
to Article VI:1 of the GATT 1994 and Article 2.2 of the AD Agreement does not refer exclusively to 
the aggregated results of comparisons for the "pr oduct as a whole".  As used in the Ad Note to 
Article VI:1, the United States submits that the term "margin of dumping" cannot relate to aggregated 
results of all comparisons for the "product as a w hole" because an exporter or foreign producer may 
make export transactions using multiple importers.  Similarly, according to the United States, were 
Brazil correct, the term "margin of dumping" as it ap pears in Article 2.2 of the AD Agreement, would 
require the use of constructed normal value for the "product as a whole", even if the condition precedent for using constructed normal value under Article 2.2 relates only to a portion of the 
comparisons.  In this regard, the United States recalls that the panel in US – Softwood Lumber V 
(Article 21.5 – Canada)  observed that this "would run counter to  the principle that constructed normal 
value is an alternative to be used  only in the limited circumstances provided for in Article 2.2.  ... We 
are not convinced that the Appella te Body could have intended its US – Softwood Lumber V findings 
to be applied in this manner".
171 
7.105  Brazil argues that the United States' reliance on Article VII:3 of the GATT 1994 
misunderstands the role of context in treaty interpreta tion.  According to Brazil, the fact that the same 
word appears in two (or more) proximate treaty provisions does not mean that the word carries the 
same meaning in each provision.  Thus, Brazil subm its that a single word used in two provisions may 
have different meanings in each provision, depending on the context.  In its particular context, the 
word "product" appearing in Article VII:3 has a mean ing that is relevant to what is regulated under 
that provision – customs valuation, which is nece ssarily undertaken on a transaction-specific basis.  
This is an entirely different context to Article VI:1 , which is about dumping.  Therefore, Brazil is of 
the view that the United States is wrong to assume th at the same word, "product", must be given the 
same meaning in Article VI:1 and Article VII:3 of the GATT 1994.172 
7.106  Brazil also disputes the United States' interpretation of the Ad Note to Article VI:1, arguing 
that it does not provide a definition of either "dumping" or "margins of dumping", nor does it state 
implicitly or otherwise that "margins" may be tran saction-specific.  Brazil argues that like Article 2.3 
of the AD Agreement, the Ad Note to Article VI:1 simply permits an authority to use an importer's 
resale price to an independent buyer as the star ting-point for determining the export price in 
circumstances where the importer is related to the expor ter.  In its view, neither Article 2.3 nor the Ad 
Note to Article VI:1 alters the requirement that an individual marg in of dumping be determined for 
each exporter on the basis of all relevant export transactions.173 
7.107  Finally, Brazil rejects the United States' re liance on Article 2.2 of the AD Agreement, 
recalling that the Appellate Body has pr eviously rejected the same argument.174  In particular, Brazil 
notes that the Appellate Body has held that an authority may sub-divide the product in conducting 
                                                      
170 US, FWS, para. 79. 
171 US, FWS, para. 83, referring to Panel Report, US – Softwood Lumber V (Article 21.5 – Canada) , 
para. 5.62. 
172 Brazil, FCOOS, paras. 39-43. 
173 Brazil, FCOOS, paras. 44-45. 
174 Brazil, FCOOS, para. 46, referring to Appellate Body Report, US – Softwood Lumber V 
(Article 21.5 – Canada) , para. 104. WT/DS382/R 
Page 44 
BCI deleted, as indicated [[XX]] 
 
 intermediate comparisons on a model-specific basis, and on this basis assess whether the conditions in 
Article 2.2 for construction of normal value are me t.  Brazil emphasizes that the results of all 
intermediate comparisons must be aggregated to  determine "dumping" on a product-wide basis to 
meet the definition in Article 2.1. 
7.108  We agree with the United States that the transa ction-specific meaning of the word "product" 
when used in Article VII:3 of the GATT 1994 tends to support the view that it cannot be presumed  
that the same word, when it appears in Article 2. 1 of the AD Agreement and Article VI:1 of the 
GATT 1994, must necessarily refer to the "product as a whole", with all the consequences that follow 
for the definition of "dumping".  However, we not e that Brazil's arguments are based on more than 
just the ordinary meaning of the word "product", but also the particular context in which it is found in 
both the AD Agreement and the GATT 1994.  In other words, Brazil does not presume  that the word 
"product" in abstract has the meaning it argues.  Ra ther, Brazil submits that this meaning is confirmed 
from how the notion of "dumping" is described in other provisions it considers form part of the 
relevant context of Article 2.1 of the AD Agreem ent and Article VI:1 of the GATT 1994.  Thus, in 
our view, the fact that the word "product" in Artic le VII:3 has a transaction-specific meaning does not 
detract from Brazil's complaint.  It does, however , suggest that the drafters of the GATT understood 
that the meaning of the word "product" could have  a transaction-specific meaning in the particular 
context of customs valuation, which in turn also suggests that it cannot be categorically excluded that 
the negotiators may have held the same view a bout the meaning of "product" when it appears in 
Article 2.1 of the AD Agreement and Article VI:1 of the GATT 1994.  As we have said before, the 
ordinary meaning of the word "product" as it app ears in Article 2.1 of the AD Agreement does not 
resolve which of the two definitions of "dumping" must prevail. 
7.109  The United States argues that the Ad Note to Article VI:1 of the GATT 1994 expressly 
defines a particular form of dumping – "hidden dum ping" – in relation to individual transactions and 
that the text of that provision contemplates that  a "margin of dumping" may be calculated for a 
specific sale by an importer, implying that "dumping"  cannot be exclusively defined with respect to 
the "product as a whole".  It is not entirely clear to us  that this is the correct reading of the Ad Note.  
In our view, the plain language of the Ad Note mi ght equally be interpreted as merely identifying one 
particular situation ("Hidden dumping by associated houses") in which investigating authorities are entitled to construct export price on the basis of an importer's resale price.  In any case, because the 
Ad Note is silent about how any comparison results involving normal value and one or more 
constructed export prices must be aggregated, it doe s not provide any useful guidance on the question 
whether "dumping" relates exclus ively to the "product as a whole" or whether it can also be 
transaction-specific.  The same can be said about Ar ticle 2.2 of the AD Agreement.  As Brazil notes, 
it is possible to sub-divide a product when multiple averaging, and explore whether the conditions in 
Article 2.2 for constructed normal value are satisfi ed for each averaging group.  However, again, 
because Article 2.2 (like Article 2.3) says nothing about how comparisons involving constructed 
normal value must be aggregated, this provision is, in our view, inconclusive about how to interpret 
the notion of "dumping". 
(iv) Duty collection on the basis of a prospective normal value 
7.110  The United States argues that the existence of  prospective normal value systems of duty 
collection demonstrates that the notion of "dumping" cannot be exclusively understood to relate to the 
"product as a whole".
175  Drawing on descriptions found in previous panel reports176, as well as 
                                                      
175 US, FWS, paras. 109-115;  US, SWS, paras. 59-69. 
176 For example, Panel Report, US – Zeroing (Japan) , para. 7.201;  and US – Softwood Lumber V 
(Article 21.5 – Canada) , para. 5.53.  WT/DS382/R 
 Page 45 
BCI deleted, as indicated [[XX]] 
 
 information concerning how Canada administers its own prospective normal value system177, the 
United States explains that under such systems, the amount of liability for payment of anti-dumping duties is determined at the time of importation on th e basis of a comparison between the price of the 
individual export transaction and the prospective normal value.  Thus , according to the United States, 
duties will be payable only when the price of an  imported product is belo w the prospective normal 
value, with the prices of all other transactions playin g no part in this determination.  The United States 
recalls that the transaction-specific nature of pr ospective normal value systems has led previous 
panels to find that a transaction-specific conception of "dumping" must also be permissible under the 
AD Agreement.  For instance, the United States points to the following observation of the panel in US – Zeroing (Japan) :   
"the fact that express provision is made in the AD Agreement for this sort of system 
confirms that the concept of dumping can apply on a transaction-specific basis to 
prices of individual export transactions below the normal value and that the AD Agreement does not require that in calculating margins of dumping the same significance be accorded to export prices a bove the normal value as to export prices 
below the normal value".
178   
7.111  Brazil responds to the United States' submissi ons by recalling that the Appellate Body has 
considered and rejected the same arguments in previous "zeroing" disputes.179  In particular, Brazil 
notes that the Appellate Body has explained "that the duty collected at the time of importation under a prospective normal value system does not represent th e margin of dumping", and that the rules in the 
AD Agreement regarding duty "imposition and collec tion" are "distinct and separate" from those 
governing a determination of "dumping".
180  Moreover, Brazil observes that the Appellate Body has 
also explained that the amount of duties collected in  a prospective normal value system is subject to 
review under Article 9.3.2 of the AD Agreement to ensure that the total amount of duties does not 
exceed the margin of dumping for the "product as a whole".181   
7.112  Previous panels have generally disagreed with the view that duty collection in a prospective 
normal value system is subject to refund proceed ings involving the calculation of a margin of 
dumping for the "product as a whole" under Article 9. 3.2 of the AD Agreement, on the ground that it 
would be inconsistent with the fundamental natu re of how such systems are intended to function.182  
The United States submits that accepting the Appella te Body's position would effectively transform 
the prospective normal value system into a retrospective system of duty collection.183  We recognize 
that the functioning of prospective normal value systems of duty collection, as described by the 
United States and previous panels, would be fundame ntally altered if subjected to the possibility of 
duty refunds involving the calculation of a margin of dumping on the basis of the "product as a whole".  An approach that would permit transacti on-specific determinations of a margin of dumping 
for the purpose of collecting anti-dumping duties, yet require "product as a whole" determinations 
when deciding whether there was over-collection, in  our view, seems to be incongruent and not in 
keeping with how prospective normal value systems ha ve traditionally operated.  In this regard, we 
                                                     
 
177 US, Answer to Panel Question 13; and US, SWS, paras. 63-65, referring to Report on the Special 
Import Measures Act, House of Commons Canada, December 1996, submitted by the United States as 
Exhibit US-2;  and Canada's WTO Trade Policy Review, WT/TPR/S/112, para. 68 and Table III.5. 
178 Panel Report, US – Zeroing (Japan) , para. 7.205.  The United State refers to a similar statement 
made by the panel in Panel Report, US – Zeroing (EC) , para. 7.206. 
179 Brazil, SCOOS, paras. 14-16. 
180 Brazil, FCOOS, paras. 47-48, referring to Appellate Body Report, US – Zeroing (Japan) , para. 160;  
Appellate Body Report, US – Continued Zeroing , para. 294;  and Brazil, SWS, para. 5. 
181 Brazil, FCOOS, para. 49;  and Br azil, Answer to Panel Question 12. 
182 See for instance, Panel Report, US – Zeroing (Japan) , para. 7.204;  Panel Report, US – Stainless 
Steel (Mexico) , para. 7.133. 
183 US, FWS, para. 115;  US, SWS, para. 64. WT/DS382/R 
Page 46 
BCI deleted, as indicated [[XX]] 
 
 note that the United States asserts that Canada, a WTO Member that applies a prospective normal 
value system, grants refund ("re-determination") requests that are "usually transaction-specific".184  
Moreover, although the Canadian system envisag es that, under certain conditions, importers may 
request a refund with respect to multiple transactions ("blanket request procedure")185, this possibility 
is limited to transactions concerning "shi pments of goods to the same importer".186   
7.113  Brazil and a number of third parties that typically collect anti-dumping duties on a 
prospective basis, but with varying levels of experience in their collection on the basis of a 
prospective normal value, have stated that they would  provide refunds of excessive duties collected 
through application of a prospective normal value on the basis of a margin of dumping determined for 
the "product as a whole".187  However, neither Brazil nor any of the relevant third parties have 
explained how any such refunds w ould be determined.  Thus, we do not know, for instance, what 
would be the length of the period of review cove red by any such "product as a whole" assessment or 
whether any refund would be based on a calculation i nvolving exports to all importers or only those 
requesting a refund.  Indeed, neither Brazil nor any of  the relevant third parties have identified any 
instance in which refunds for duties collected on the basis of a prospective normal value have actually 
been requested and/or granted.  In this regard, we note that the United States has questioned whether 
Brazil's system in fact operates as Brazil asserts , pointing to instances involving the collection of 
duties on the basis of a prospective normal value on products from seven WTO Members, where the 
United States asserts Brazil's Official Gazette stated that the anti-dumping duty would be calculated on a transaction-specific basis.
188   
7.114  In considering the United States' arguments in respect of prospective normal value systems, 
we cannot, however, overlook the absence from the AD Agreement of any complete description of 
how prospective normal value systems are intended to operate.  Apart from Article 9.4(ii) of the 
AD Agreement – a provision explaining how anti-du mping duties may be collected from exporters or 
producers not included in a limited examination pe rformed under Article 6.10 – the AD Agreement is 
silent about how such systems must be implemente d.  In the absence of any more detailed provisions 
explaining how prospective normal value systems are generally supposed to function, it is difficult to 
come to any firm conclusion about which of the two views should prevail.   
                                                      
184 US, Answer to Panel Question 13, footnote 11 citing Exhibit US-6, Canada Border Services 
Agency;  Procedures for making a request for a Re-Determination or an Appeal under the Special Import 
Measures Act :  Memorandum D14-1-3 (1 October 2008) (the "SIMA Memorandum"), paras. 19, 34-44.   
185 The SIMA Memorandum stipulates that "A blanket request is a procedure through which an 
importer may request re-determinations on more than one transaction under specific conditions provided that 
both the public and the CBSA receive administrative bene fits".  A "blanket request" may be refused where inter 
alia it "may result in administrative difficulties or processing delays".  Exhibit US-6, paras. 50 and 53(b). 
186 SIMA Memorandum, para. 53(d).  Exhibit US-6. 
187 Brazil, Answer to Panel Question 13.  See also EU, Answer to Panel Question 2 to the Third Parties;  
and Mexico, Answer to Panel Question 2 to the Third Parties. 
188 US, SCOOS, paras. 13-19 and Ministry of Development, Industry and Foreign Trade, Office of the 
Secretary of Foreign Trade, Circular No. 12 of 7 March 2008 , (imports of polyvinylchloride from the 
United States and Mexico)  Exhibit US-9, para. 3 ("The anti-dumping duty is calculated on the basis of the 
absolute difference between the refere nce 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.")  See also 
Exhibits US-10 to US-12, containing other determinations with substantially similar language.  Brazil submits 
that the United States' assertions are f actually wrong.  In its vi ew, the measures at issue laid down a cap on the 
amount of duties that could be levied on each import entry, providing that this amount could not exceed the 
relevant margins of dumping previously established by the Brazilian investigating authority.  Thus, according to 
Brazil, its investigating authority did not treat the amount of duties imposed in relation to a single entry as a margin of dumping, and instead, capped the amount of duties at the level of a margin of dumping previously 
estalished.  Brazil, Comments on US Requests for Interim Review, paras. 19-22.  WT/DS382/R 
 Page 47 
BCI deleted, as indicated [[XX]] 
 
 (v) Article 2.4.2 and "mathematical equivalence" 
7.115  The United States submits that the prohibiti on on "model zeroing" found by the Appellate 
Body to exist in US – Softwood Lumber V  under Article 2.4.2 of the AD Agreement was based on the 
textual references to "margins of dumping" and "a ll comparable export transactions" appearing in the 
first sentence of this provision, which the Appellate Body stated ha d to be read in an "integrated 
manner".  According to the United States, it was th ese textual references, and not any independent 
obligation found elsewhere in the AD Agreement, th at led the Appellate Body to conclude that 
"product" must mean "product as a whole" and th at "margins of dumping" may not be based on 
individual averaging group comparisons.  The Un ited States notes that no similar language appears 
elsewhere in the AD Agreement, in its view s uggesting that the "product as a whole" notion of 
"dumping" cannot extend, as a general matter, beyond  the particular context of W-W comparisons in 
original investigations.  Indeed, the United Stat es submits that if, as Brazil argues, there were a 
general prohibition on "zeroing" applying to a ll anti-dumping proceedings and all comparison 
methodologies, the meaning ascribed to "all comparab le export transactions" by the Appellate Body 
in US – Softwood Lumber V , would be redundant.189   
7.116  The United States also argues that any in terpretation of the AD Agreement and the 
GATT 1994 that gives rise to a general prohibition of "zeroing" – i.e., that establishes that "dumping" 
can only be defined with respect to the "produc t as a whole" – would render the second sentence of 
Article 2.4.2 redundant.  In particular, the Unite d States submits that the exceptional comparison 
methodology provided for in this sentence (the W- T methodology) would yield precisely the same 
result as a W-W comparison if, in both cases, "dum ping" was determined for the "product as a 
whole".  According to the United States, such an outcome would contradict a key rule of treaty 
interpretation, namely, that an "interpretation must  give meaning and effect to all the terms of a 
treaty".190  The United States recalls that previous  panels have found th is argument persuasive191, and 
urges the Panel in this dispute to do likewise.192  
7.117  Brazil does not appear to have directly  responded to the United States' arguments concerning 
the implications of a general prohibition on "zeroing" in the light of the Appellate Body's findings in 
US – Softwood Lumber V  and Article 2.4.2 of the AD Agreement.  However, it has repeatedly 
emphasized that the Appellate Body  has consistently found that Artic le 2.1 of the AD Agreement and 
Article VI:1 of the GATT 1994, when considered in the context of various other provisions and in the 
light of the object and purpose of the AD Agreement, establish a definition of "dumping" applicable to the entire  AD Agreement that is focused on the "product as a whole".  As regards the United States' 
"mathematical equivalence" argument, Brazil recalls  that the Appellate Body has found there to be 
"considerable uncertainty as to how precisely the third methodology should be applied", noting that different approaches to its application could gene rate results that would not be mathematically 
equivalent.  In addition, Brazil argues that the exceptional authority conferred under the second 
sentence of Article 2.4.2 cannot dictate how the general (non-exceptional) rules for calculating 
margins of dumping are to be interpreted.
193    
7.118  The United States is correct in recalling that an "integrated" reading of the terms "margins of 
dumping" and "all comparable export transactions" was central to the Appellate Body's "model 
                                                      
189 US, FWS, paras. 54-59;  US, FCOOS, paras. 23-25. 
190 US, FWS, para. 94, referring to Appellate Body Report, US – Reformulated Gasoline , p. 23. 
191 The United States refers to:  Panel Report, US – Zeroing (EC) , para. 7.266;  Panel Report, US – 
Softwood Lumber V (Article 21.5 – Canada) , para. 5.52;  Panel Report, US – Zeroing (Japan) , para. 7.127;  and 
Panel Report, US – Stainless Steel (Mexico) , para. 7.134. 
192 US, FWS, paras. 93-98;  US, FCOOS, para. 34;  US, Answer to Panel Question 14. 
193 Brazil, FCOOS, paras. 52-58;  Brazil, Answer to Panel Question 14;  Brazil, SWS, para. 5;  Brazil, 
SCOOS, paras. 32-36. WT/DS382/R 
Page 48 
BCI deleted, as indicated [[XX]] 
 
 zeroing" findings in US – Softwood Lumber V .  However, there was no disagreement between the 
parties in that dispute about how the term "all comp arable export transactions" should be interpreted.  
That is, all participants agreed that "all comparab le export transactions" had to be taken into account 
in establishing margins of dumping.  The parties' dispute was with respect to how the results of 
multiple comparisons should be interpreted and ag gregated.  The Appellate  Body described this 
disagreement as flowing from the respective views on the meaning of "dumping" and "margins of 
dumping".194  To resolve this difference of opinion, the Appellate Body turned to the definition of 
"dumping" found in Article 2.1 of the AD Agre ement and Article VI:1 of the GATT 1994.  The 
Appellate Body then explained:  
"It is clear from the texts of these provisions  that dumping is defined in relation to a 
product as a whole as defined by the investigating authority.  Moreover, we note that 
the opening phrase of Article 2.1—'[f]or the purpose of this Agreement'—indicates that the definition of 'dumping' as contained in Article 2.1 applies to the entire Agreement, which includes, of course, Artic le 2.4.2.  'Dumping', within the meaning 
of the  Anti-Dumping Agreement , can therefore be found to exist only for the product 
under investigation as a whole, and cannot be f ound to exist only for a type, model, or 
category of that product."
195 
Thus, it appears to us that the same notion of "dumping" that Brazil advances in the present 
controversy was also at the heart of the Appe llate Body's finding concerning "model zeroing" in US – 
Softwood Lumber V .   
 
7.119  In its answer to Panel Question 14, the United St ates explained in detail how it considered the 
third (W-T) methodology described in Article 2.4.2 operates, demonstrating how "mathematical equivalence" would result if "zeroing" was genera lly prohibited.  Brazil, on the other hand, has 
pointed to various descriptions found in previous  panel and Appellate B ody reports of how other 
Members give effect to, or potentially give effect to, the W-T methodology set out in Article 2.4.2 
without yielding "mathematical equivalence".  It is  apparent that Members have different views on 
how the W-T methodology in Article 2.4.2 should be implemented, and whether it will result in 
"mathematical equivalence".  This is not surp rising as when it comes to understanding the modalities 
for how it should be applied, the text of Article  2.4.2 provides little guidance for those seeking a 
detailed explanation of what may or may not be pe rmissible.  Were the approach advocated by the 
United States correct, a general prohibition on "zeroing"  (i.e., a definition of "dumping" in relation to 
the "product as a whole") applicab le to the entire AD Agreement w ould render the text describing the 
W-T methodology in Article 2.4.2 redundant.  Obviousl y, such a result would be inconsistent with the 
principle of effective treaty interpretation.  This  would imply that no such general prohibition could 
exist, unless, as Brazil, two of the third parties
196 and the Appellate Body contend, the W-T 
methodology can be characterized as an "exception" to the otherwise generally applicable definition 
of "dumping".  However, it could be argued that this  point of view also has its weaknesses.  First, the 
word "exception" does not appear in Article 2.4.2.   Arguably, the fact that the first sentence of 
Article 2.4.2 directs Members to "normally" establis h margins of dumping through the use of the W-
W and T-T methodologies does not render the W-T methodology described in the following sentence 
an "exceptional" methodology, but rather one whose application is not expected  to be the "norm".197  
Second, the fact that the definition of dumping c ontained in Article 2.1 of the AD Agreement is 
                                                      
194 Appellate Body Report, US – Softwood Lumber V , para. 90. 
195 Appellate Body Report, US – Softwood Lumber V , para. 93. 
196 EU, TPWS, para. 175;  and Japan, Answer to Panel Question 3 to the Third Parties. 
197 In our view, there may well be situations where a particular product or market is affected by 
"targeted" dumping to such an extent that an investig ating authority will resort to  the W-T methodology more 
often than the W-W or T-T methodologies.  In such circumstances, the W-T methodology could effectively 
become the "norm" with respect to that particular product or market.  WT/DS382/R 
 Page 49 
BCI deleted, as indicated [[XX]] 
 
 intended to apply "[f]or the purpose of this Agreem ent" could be viewed as suggesting that it is not 
subject to any "exception".  Thus, on the issue of "mathematical equivalence", we find neither of the 
positions advanced by the parties' to be conclusive.  
(vi) Historical background 
7.120  The United States considers that the Second Report of the Group of Expert Report on anti-
dumping and countervailing duties, adopted in May 1960, supports the view that the notion of 
"dumping" may be defined on a transaction-specific b asis.  The United States explains that the Group 
of Experts considered that the "ideal method" for applying anti-dumping duties "was to make a determination of both dumping and material injury in  respect of each single importation of the product 
concerned".
198  The United States recalls that previous panels have found this evidence persuasive, 
with the panel in US – Zeroing (Japan)  observing that it "shows that historically the concept of 
dumping has been understood to be applicable at  the level of individual export transactions"199;  and 
the panel in US – Softwood Lumber V (Article 21.5 – Canada)  concluding that it demonstrates that 
"the Group of Experts did not consider that there was anything in the definition of dumping set forth 
in Article VI of the GATT that would preclud e the calculation of such transaction-specific 
margins".200  
7.121  In addition, the United States notes that two GATT 1947 panels asked to determine whether 
"zeroing" was prohibited under the provision of th e Tokyo Round Anti-Dumping Code concluded that 
it was not, further reinforcing the validity of the Gr oup of Experts' understandi ng of Article VI of the 
GATT 1947.201  In this light, the United States finds it significant that Article VI of the GATT 1947 
was incorporated into the GATT 1994 without revisions, notwithstanding the fact that the Uruguay 
Round negotiators had actively discussed whether the use of "zeroing" should be restricted.  
According to the United States, if the Uruguay Round negotiators had intended to make such a 
fundamental change to the notion of "dumping" they  would have been clearer about it, and it would 
not have come to a surprise to the major user s of dumping remedies, such as the EU and the 
United States, after the fact through dispute settlement.202  In this regard, the United States advances 
evidence which it considers demonstrates that ap art from the United States and the EU, at least 
two other major users of the anti-dumping remedy co ntinued to calculate margins of dumping through 
the use of "zeroing" after the entry into  force of the Uruguay Round Agreements.203 
                                                      
198 US, FWS, para. 69, citing Anti-Dumping and Countervailing Duties , Second Report of the Group of 
Experts, L/114, adopted on 27 May 1960, BISD 9S/194, para. 7. 
199 Panel Report, US – Zeroing (Japan) , para. 7.107. 
200 Panel Report, US – Softwood Lumber V (Article 21.5 – Canada) , para. 5.64. 
201 US, FWS, para. 71, referring to EC – Audiocassettes , para. 360 and EC – Cotton Yarn , para. 502. 
202 US, FWS, paras. 69-72. 
203 US, Answer to Panel Question 17, referring to Argentina and South Africa, who together with the 
European Communities and the United States, accounted for the largest number of initiations of anti-dumping 
investigations in 1995.  As regards Argentina, the United States points out that in the Argentina – Poultry Anti-
Dumping Duties  dispute, the panel concluded inter alia  that "if zeroing is inconsistent with Article 2.4.2, then 
Argentina's practice of totally disregarding certain export transactions [i.e., transactions with a price that was 
higher than or equal to normal value] would also be inconsistent with Article 2.4.2 because it does not compare the weighted average normal value with  the weighted average of prices of all comparable transactions".  In 
addition, the United States notes that Argentina stated that its methodology was also used by other WTO 
Members. Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil  ("Argentina – 
Poultry Anti-Dumping Duties "), WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727, para. 7.78 and 
Annex B-4 (Replies of Argentina to Questions of the Panel – First Meeting, reply to question 11(b), at B-94).  In 
respect of South Africa, the Unite d States points to the Board of Tariffs and Trade Report, in the Investigation 
into the Alleged Dumping of Meat of Fowls of the Species Gallus Domesticus, Originating in or Imported from 
the United States of America , where the following statement was made:  "In determining the dumping margin, WT/DS382/R 
Page 50 
BCI deleted, as indicated [[XX]] 
 
 7.122  Brazil considers the United Stat es' references to the methodologies allegedly used by other 
WTO Members to be irrelevant for the purpose of assessing whether the United States' own conduct 
in the orange juice proceedings was WTO-consiste nt.  In any case, Brazil notes that the European 
Union has abandoned "zeroing" in order to comply  with its WTO obligations;  that the panel's 
findings in Argentina – Poultry Anti-Dumping Duties , relied upon by the United States, related in fact 
to the investigating authority's decision to initiate an  investigation, and not to  the determination of the 
margin of dumping in the investigation itself; and that Argentina's position as a third party in the 
present dispute is that it considers "zeroing" to be inconsistent with the AD Agreement.204 
7.123  Brazil has not responded to the United States ' arguments concerning the Group of Experts 
Report and the prior GATT panels.  However, they have been addressed previously by the Appellate 
Body in a number of disputes, where it has denied  the relevance of the Report and the previous GATT 
panel reports for various reasons, including becau se:  (i) the Group of Experts' Report itself 
characterized the "ideal" transaction-specific method of determining injurious dumping as "clearly impracticable";  (ii) today, Article VI of the GATT 1994 has to be interpreted in the light of the 
relevant AD Agreement framework in cluding provisions such as Articles 2.1, 2.4, 2.4.2 and 9.3;  (iii) 
the AD Agreement entered into force "long after" the 1960 Group of Experts Report;  and (iv) the 
panel reports at issue examined "zeroing" unde r the Tokyo Round Anti-Dumping Code, which as a 
plurilateral agreement was legally separate from the GATT 1947, has been terminated, and in any 
case, contained provisions much less detailed th an those found in the current AD Agreement.
205  
7.124  We have sympathy for the view that a tr ansaction-specific notion of "dumping" was 
traditionally recognized by the Contracting Parties to the GATT 1947 as being at least permissible 
under Article VI, particularly given that the ma jor users of the anti-dumping remedy were all 
Signatories to the Tokyo Round Anti-Dumping Code and therefore members of the Committee on Anti-Dumping Practices, which on 30 October 1995 adopted the EEC – Cotton Yarn  panel report.
206  
Indeed, Brazil, which was the complainant in that  case, did not argue against the use of "zeroing" per 
se.  Rather, "Brazil argued that in this case the la rge variations in dumping margins found by the EC 
were due to severe distortions in the Brazilian financial environment.  In the circumstances of a volatile 
financial environment, so-called 'zeroing' produced a distortion which should have been the subject of a 
due allowance".207  It is true, however, that the panel in the EEC – Cotton Yarn  dispute examined 
Brazil's claims under Article 2.6 of the Tokyo R ound Code, a provision which was modified in the 
WTO AD Agreement.  Moreover, there was no equivalent of Article 2.4.2 of the WTO 
AD Agreement in the Tokyo Round Anti-Dumping Code.    
7.125  As regards the Group of Experts Report, we note that the Experts consid ered that the "ideal 
method of fulfilling [the principles of Article VI] was to make a determination of both dumping and 
material injury  in respect of each single importation of the product concerned".208  However, they 
                                                                                                                                                                     
the Board applied the 'zeroing' methodology ...  This methodology is applied by a number of jurisdictions 
including the European Union and the United States".  Exhibit US-13. 
204 Brazil, Comments on US Answer to Panel Question 17. 
205 See e.g., Appellate Body Report, US – Stainless Steel (Mexico) , paras. 131-132;  Appellate Body 
Report, US – Continued Zeroing , paras. 299-303. 
206 Minutes of the Meeting of the Committee on Anti-Dumping Practices, 21 February 1996, 
ADP/M/50.  As regards the EC – Audiocassettes  dispute, we note that although having expressed dissatisfaction 
with the ruling concerning "zeroing", Japan (the complainant) "welcomed the Report and strongly recommended 
the Committee to adopt it at this first opportunity".  It was the EC that opposed the adoption of this report.  See, e.g., Minutes of the Meeting of the Committee on Anti-Dumping Practices, 26 September 1995, ADP/M/49;  
and Minutes of the Meeting of the Committee on Anti-Dumping Practices, 8 April 1997, ADP/M/54. 
207 GATT Panel Report, European Economic Community – Imposition of Anti-Dumping Duties on 
Imports of Cotton Yarn from Brazil , ADP/137, adopted 30 October 1995, BISD 42S/17, para. 486. 
208 Emphasis added.  WT/DS382/R 
 Page 51 
BCI deleted, as indicated [[XX]] 
 
 found that this "was clearly impracticable, particularly as regards injury ".209  In other words, the 
Group of Experts appear to have tied their acceptan ce of transaction-specific dumping determinations 
to transaction-specific injury determinations, which is  not exactly what the United States is arguing in 
the present dispute.  
(vii) Permissible Interpretations under Artic le 17.6(ii) of the AD Agreement 
7.126  Brazil has characterized the notion of "dumping" as a "foundational concept" that must be 
defined uniformly for all Members.210  Although this language does not appear in the AD Agreement, 
it goes without saying that the notion of "dumping" is indeed fundamental and of critical importance to the operation of the AD Agreement.  However,  as our analysis of the parties' arguments and 
relevant jurisprudence reveals, the express term s of the AD Agreement provide no precise definition 
of this important concept.  Indeed, that the text  used in the definition of "dumping" set forth in 
Article 2.1 of the AD Agreement and Article VI:1  of the GATT 1994 is, alone, inconclusive has 
already been recognized by previous panels and the Appellate Body.
211  Furthermore, in our view, 
even when interpreted in its relevant context and in the light of the object and purpose of the 
AD Agreement, the definition of "dumping" containe d in these provisions does not result in one clear 
definition that is free from valid criticism, or that does not generate its own set  of practical and legal 
problems.  In this regard, we cannot help  but agree with the Concurring Opinion in US – Continued 
Zeroing  that the arguments the parties have advanced in  respect of the definition of "dumping" create, 
for different reasons, their own interpretative dilemmas.212  We view this objective lack of clarity in 
the definition of a concept that is as fundament al to the functioning of the AD Agreement as 
"dumping" to strongly suggest that Members held, if not accepted, differing views about what 
"dumping" meant at the time of the closure of the Uruguay Round.  
7.127  The Appellate Body has expressed the opinion th at the proper application of the rules of 
treaty interpretation set out in the Vienna Conventio n cannot result in conflicting interpretations.  In 
particular, the Appellate Body has explained that: 
"... the rules and principles of the Vienna Convention cannot contemplate 
interpretations with mutually contradict ory results.  Instead, the enterprise of 
interpretation is intended to ascertain the prope r meaning of a provision;  one that fits 
harmoniously with the terms, context, and object and purpose of the treaty.{}  T h e  
purpose of such an exercise is therefore to narrow the range of interpretations, not to generate conflicting, competing interpretati ons.  Interpretative tools cannot be applied 
selectively or in isolation from one anothe r.  It would be a subversion of the 
interpretative disciplines of the Vienna Convention   if application of those disciplines 
yielded contradiction instead of coheren ce and harmony among, and effect to, all 
relevant treaty provisions."
213 
7.128  Brazil agrees with the Appellate Body.214  On the other hand, the United States argues that 
such a view would render Article 17.6(ii) meaningless.  According to the United States, 
Article 17.6(ii) reflects the Uruguay Round negotiators ' recognition that they had left a number of 
issues unresolved and that customary rules of interpretation would not always yield only one permissible interpretation of a given provision.  Thus , the United States submits that to conclude that 
                                                     
 
209 Emphasis added. 
210 See, e.g., Brazil, FCOOS, para. 31. 
211 See above discussion concerning Article 2.1 of the AD Agreement and Article VI:1 of the 
GATT 1994, at paras. 7.89-7.91. 
212 Appellate Body Report, US – Continued Zeroing , para. 305. 
213 Appellate Body Report, US – Continued Zeroing , para. 273 (footnote omitted). 
214 See, e.g,. Brazil, FCOOS, paras. 6-11. WT/DS382/R 
Page 52 
BCI deleted, as indicated [[XX]] 
 
 "it is not possible to find that there are conflicting in terpretations of the text would mean depriving the 
second sentence of Article 17.6(ii) of meaning.  If th e permissible interpretations are all 'harmonious' 
then it is difficult to see how a measure coul d be in conformity with only one of the 
interpretations".215 
7.129  It is well established that the purpose of treat y interpretation through the use of the Vienna 
Convention is the identification of the common intention  of the parties.216  It follows that where the 
common intention of the parties to a treaty explic itly provides for two conflicting interpretations of 
the same term or treaty provision, the Vienna  Convention rules on treaty interpretation must 
necessarily recognize both positions.  In other word s, where the very words of a treaty expressly 
provide for the legality of two rival interpre tations, the Vienna Convention will respect both 
interpretations.  The same result must also hold wher e the examination of a term's ordinary meaning, 
in the light of its context and the object and purpose of the treaty to which it pertains, establishes a common intention  of the parties to accept two conflicting in terpretations.  To the extent that both 
circumstances give effect to the common intention  of the parties, they are not only consistent with the 
rules of interpretation contained in the Vienna  Convention, but also entirely coherent and 
representative of the particular order negotiated by the parties.  Thus, we see the critical question 
before us in the present dispute to be the followi ng:  does application of the customary rules of 
interpretation of public international law refl ected in the Vienna Convention rules of treaty 
interpretation lead us to understand the common in tention of the Members at the end of the Uruguay 
Round as allowing for one exclusive ("product as a whole") interpretation of the concept of "dumping";  or does it accept the possibility that "dumping" may also have an additional 
("transaction-specific") meaning? 
(viii) Conclusion concerning the definition of "dumping" 
7.130  The present controversy is the fifth dispute wher e a panel has been tasked with examining the 
notion of "dumping" in the context of a complaint ag ainst the United States' alleged use of "zeroing" 
administrative reviews.
217  In all but one of these disputes, panels have taken the view that the 
AD Agreement does not exclusively  define "dumping" in relation to the "product as a whole".  These 
panels have found that it is permissible to measure "dumping" in the context of duty assessment 
proceedings in the United States on a transaction-specific basis.218  On the other hand, the Appellate 
Body has consistently found that the only permissible interpretation of the notion of "dumping" is that 
it relates to the "product as a whole".  Not surprisingly, the parties' arguments in the present dispute have closely followed the two currents of thought th at have evolved in previous cases, with Brazil 
advocating the position taken by the Appellate Body and the United States the views of most of the 
previous panels.   
7.131  For the reasons we have tried to explain in the above analysis, we find it difficult to accept, on 
the basis of the arguments and jurisprudence we ha ve reviewed, that the AD Agreement entertains 
only one exclusive definition of "dumping".  Howeve r, there is no doubt in our minds that on the 
question of "zeroing", and more particularly, the definition of "dumping", the string of Appellate 
Body reports concerning mainly the United States' us e of "zeroing" in anti-dumping proceedings read 
loud and clear.   
                                                     
 
215 US, FCOOS, para. 7;  US, FWS, paras. 25-28. 
216 See, e.g, Appellate Body Report, European Communities – Customs Classification of Certain 
Computer Equipment ("EC – Computer Equipment "), WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, 
adopted 22 June 1998, DSR 1998:V, 1851, para. 84;  and Appellate Body Report, EC – Chicken Cuts , para. 239. 
217 See Panel and Appellate Body Reports, US – Zeroing (EC) ;  US – Zeroing (Japan) ;  US – Stainless 
Steel (Mexico) ;  and US – Continued Zeroing . 
218 Although the panel in US – Continued Zeroing  "generally found the reason ing of earlier panels ... 
persuasive", it concluded that "the multiple goals of the DSU" would be best served by following the Appellate 
Body's adopted findings.  Panel Report, US – Continued Zeroing , paras. 7.162-7.183.  WT/DS382/R 
 Page 53 
BCI deleted, as indicated [[XX]] 
 
 7.132  Although adopted panel and A ppellate Body reports do not bind WTO Members beyond 
parties to a particular dispute219, the Appellate Body has expressed the view that ensuring "'security 
and predictability' in the dispute settlement system, as  contemplated in Article 3.2 of the DSU, implies 
that, absent cogent reasons, an adjudicatory body w ill resolve the same legal question in the same way 
in a subsequent case".220  Indeed, the Appellate Body has held  that "following the Appellate Body's 
conclusions in earlier disputes is not only appropria te, but is what would be expected from panels, 
especially where the issues are the same".221  The Appellate Body's role in the WTO dispute 
settlement system is defined in terms of hearing a ppeals from panel cases and "limited to issues of law 
covered in the panel report and legal interpretations developed by the panel".222  Members are entitled 
to express their views on an Appellate Body report.  However, unless the DSB decides not to adopt it, 
an Appellate Body report "shall be adopted by th e DSB and unconditionally accepted by the parties to 
the dispute".223  Institutionally, the fact that all Appella te Body reports overturning panel findings on 
the question of "zeroing" have been adopted by the DSB implies acceptance by all WTO Members of 
their contents, and bestows upon them systemic legitimacy. 
7.133  WTO Members created the WTO dispute settlement system as "a central element in providing 
security and predictability to the multilateral trading system"224, emphasizing that "the prompt 
settlement" of disputes is "essential to the effective functioning of the WTO".225  Moreover, the "aim 
of the dispute settlement mechanism is to  secure a positive solution to a dispute".226  We recall that 
this is the fifth dispute where the United States' u se of "simple zeroing" in administrative reviews has 
been challenged.  It is also the tenth dispute that has involved the definition of "dumping" in the context of "zeroing".
227  Furthermore, two additi onal panels have re cently been established to examine 
complaints that include claims not unlike those presented by Brazil in the present dispute.228  
Inevitably, irrespective of the position taken by th ose (and any future) panels on the definition of 
"dumping", the Appellate Body will decide the matt er by following its previous rulings.  Following 
this pattern, the "zeroing" question has tested th e limits of the WTO dispute settlement system for 
almost 10 years now.  It has occupied the work of Members, panels and the Appellate Body like no 
other controversy.  We have no doubt that this  experience has not served to advance the system's 
efficiency; and we note that Members have not only sought to resolve the issue of "zeroing" through WTO dispute settlement, but they are also trying to address it through negotiations in the Negotiating 
Group on Rules in the context of the Doha Development Agenda.
229.   
                                                      
219 See, e.g., Appellate Body Report, Japan – Taxes on Alcoholic Beverages ("Japan – Alcoholic 
Beverages II "), WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97 at 
106-108;  and Appellate Body Report, US – Stainless Steel (Mexico) , para. 158. 
220 Appellate Body Report, US – Stainless Steel (Mexico) , para. 160. 
221 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188. 
222 Article 17.6, DSU. 
223 Article 17.14, DSU. 
224 Article 3.2, DSU. 
225 Article 3.3, DSU. 
226 Article 3.7, DSU. 
227 See Panel and Appellate Body Reports in EC – Bed Linen ;  EC – Pipe Fittings ; US – Zeroing (EC) ;  
US – Zeroing (Japan) ;  US – Stainless Steel ;  US – Continued Zeroing ;  US – Softwood Lumber V;  US – Shrimp 
(Ecuador) ;  US – Shrimp (Thailand) / US –  Customs Bond Directive ;  and US – Anti-Dumping Measures on PET 
Bags . 
228 United States – Use of Zeroing in Anti-Dumping Measures on Products from Korea , panel 
constituted on 16 July 2010, WT/DS402/4;  United States – Anti-Dumping Measures on Shrimp from Viet Nam , 
panel constituted on 16 July 2010, WT/DS404/6. 
229 See, e.g, Draft Consolidated Chair Texts of the AD and SCM Agreements, 30 November 2007, 
TN/RL/W/213;  and New Draft Consolid ated Chair Texts of the AD And SCM Agreements, 19 December 2008, 
TN/RL/W/236.   WT/DS382/R 
Page 54 
BCI deleted, as indicated [[XX]] 
 
 7.134  Given the objective lack of clarity in the current  definition of "dumping" that is set forth in 
the AD Agreement (a conclusion which we beli eve is inescapable after almost a decade of 
unprecedented, and often conflicting, panel and Appe llate Body opinions on the matter), we firmly 
believe that all Members have a strong systemic in terest in seeing that a lasting resolution to the 
"zeroing" controversy is found sooner rather than later230. 
7.135  With all these considerations in mind, and d espite sometimes diverse positions existing even 
amongst ourselves as to different aspects of this de bate, we believe that, on balance, our function 
under Article 11 of the DSU, and the integrity an d effectiveness of the WTO dispute settlement 
system, are best served in the present instance by fo llowing the Appellate Body.  Thus, we find that 
the only permissible interpretation of the definiti on of "dumping" contained in Article 2.1 of the 
AD Agreement, with relevance for the entire AD Agreem ent, is one that is based on an understanding 
that "dumping" can only be determined for the "pr oduct as a whole", and not individual transactions.  
7.136  Having concluded that "dumping" cannot have a transaction-specific meaning, we now move 
on to examine the merits of Brazil's claims under Articles 2.4 and 9.3 of the AD Agreement and Article VI:2 of the GATT 1994.  Because "zeroing"  takes place in the process of calculating margins 
of dumping, we consider it appropriate to comme nce our evaluation by focusing on Brazil's claim 
under Article 2.4 of the AD Agreement, the one lega l basis for Brazil's complaint that, as the title to 
Article 2 indicates, is explicitly about the "determination of dumping". 
(d) Brazil's claims under Article 2.4 of the AD Agreement  
7.137  Brazil claims that the USDOC 's use of "simple zeroing" in the First and Second 
Administrative Reviews to determine the WAMs, relied upon for the purpose of establishing the 
CDRs, and the ISARs of Cutrale and Fischer was inc onsistent with Article 2.4 of the AD Agreement, 
irrespective of its impact on the amount of duties actually collected by the United States.
231  T h e  
United States rejects Brazil's claims, arguing inter alia  that the obligations set forth in Article 2.4 do 
not prescribe how the results of multiple comparisons  between export price and normal value must be 
aggregated. 
7.138  Brazil submits that the first sentence of Artic le 2.4 contains an obligation that applies 
whenever an investigating authority calcula tes a margin of dumping in any anti-dumping 
proceeding.232  According to Brazil, Article 2.4 is not only about "price comparability" but also "the 
nature of the comparison between export price and nor mal value", and therefore the "fairness of that 
comparison".233  Relying on previous findings of the Appe llate Body, and one panel in an Article 21.5 
implementation dispute234, Brazil argues that the calculation of a margin of dumping through the use 
                                                      
230 We note that Article 3.9 of the DSU states that its  provisions are "without prejudice to the right of 
Members to seek authoritative interpretation of provis ions of a covered agreemen t through decision-making 
under the WTO Agreement". 
231 Brazil, FCOOS, paras. 67-72 and 74-79, referring to inter alia , the explanation provided in the 
Ferrier Affidavit, Exhibit US-31 (BCI), paras. 35-38 (F irst Administrative Review - ISARs) and 40-44 (First 
Administrative Reviews - CDRs) and 48-65 (Second Administrative Review – ISARs and CDRs);  Brazil, 
Answer to Panel Question 2. 
232 Brazil, Answer to Panel Question 2. 
233 Brazil, SCOOS, para. 82, citing from Panel Report, Egypt – Definitive Anti-Dumping Measures on 
Steel Rebar from Turkey ("Egypt – Steel Rebar "), WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667, 
paras. 7.333-7.335, and referring to Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil  ("Argentina – Poultry Anti-Dumping Duties "), WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727, 
para. 7.265;  and Panel Report, EC – Tube or Pipe Fittings , para. 7.140.   
234 Appellate Body Report, US – Softwood Lumber V (Article 21.5 – Canada) , paras. 101, 138;  
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135;  Appellate Body Report, US – 
Zeroing (Japan) , paras. 146, 169 and 190(d).  WT/DS382/R 
 Page 55 
BCI deleted, as indicated [[XX]] 
 
 of "simple zeroing" results in an unfair comp arison between export price and normal value and 
therefore infringes Article 2.4.235  On the other hand, the United St ates argues that the obligation to 
make a fair comparison under Article 2.4 is lim ited to adjustments needed to ensure price 
comparability.  The United States finds support for this position not only in the statements made by panels and the Appellate Body in  other disputes, but also the alleged negotiating history of the 
AD Agreement and Member practice.  Moreover, the United States counters Brazil's reliance on the 
alleged panel and A ppellate Body findings in previous "zer oing" disputes, arguing that there were 
either no such findings made in the relevant disputes, or that they related to claims that are factually 
and legally distinct from those Braz il is making in the present dispute.
236 
7.139  Article 2.4 of the AD Agreement reads: 
"A fair comparison shall be made betw een the export price and the normal value.   
This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time.  Due allowance shall be made in each case, on its merits, for  differences which affect price comparability, including differences in conditi ons and terms of sale, taxation, levels 
of trade, quantities, physical characteristi cs, and any other differences which are also 
demonstrated to affect price comparability.
{}  In the cases referred to in paragraph 3, 
allowances for costs, including duties a nd taxes, incurred be tween importation and 
resale, and for profits accruing, should also be made.  If in these cases price comparability has been affect ed, the authorities shall establish the normal value at a 
level of trade equivalent to the level of tr ade of the constructed export price, or shall 
make due allowance as warranted under this paragraph.  The authorities shall indicate 
to the parties in question what information is necessary to ensure a fair comparison 
and shall not impose an unreasonable burden of proof on those parties."
237 
7.140  Brazil's claim raises two main questions.  The first is whether the obligation in the first 
(underlined) sentence of Article 2.4 to ensure a "fair comparison" between export price and normal 
value applies outside of the context of what is d escribed in the remainder of this provision, namely, 
beyond the selection of transactions and use of adjust ments to account for differences between export 
price and normal value which affect their comparability.  Assuming it does, and that it applies to calculations of the margin of dumping in the way Brazil argues, including during duty assessment proceedings, the second question we would have to reso lve is whether the use of "simple zeroing" to 
calculate a margin of dumping is unfair.    
7.141  In previous "zeroing" disputes where claims unde r Article 2.4 have been made in the context 
of United States' administrative reviews, panels and the Appellate Body appear to have accepted that 
the first (underlined) sentence in Article 2.4 is appli cable beyond the particular context of adjustments 
or the selection of transactions for purposes of price comparability.  For instance, in US – Zeroing 
(Japan) , the panel explained its views on the scope of Article 2.4, first sentence, in the following 
terms: 
                                                     
 
235 Brazil, FCOOS, para. 68;  Brazil, Answer to Panel Question 2. 
236 US, SWS, paras. 4-22, quoting Panel Report, Egypt – Rebar , para 7.335;  Panel Report, Argentina – 
Poultry Anti-Dumping Duties , para. 7.265;  Panel Report, US – Softwood Lumber V , para. 7.356;  Appellate 
Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ("US – 
Hot-Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697, para. 179, to support its 
position that Article 2.4 governs only adjustments needed to ensure price comparability;  and quoting Panel Report, US – Zeroing (Japan) , para. 7.155;  US – Softwood Lumber V (Article 21.5 – Canada) , para. 5.74;  and 
Panel Report, US – Zeroing (EC) , para. 7.260, in support of the view that the notion of "fairness" must be 
interpreted in a principled fashion, in the context of the activity at issue, and not in the abstract, as it alleges Brazil argues.  US, SCOOS, paras. 26-28. 
237 Underline added, footnote omitted. WT/DS382/R 
Page 56 
BCI deleted, as indicated [[XX]] 
 
 "We consider that the requirement of a fair comparison set out in the first sentence of 
Article 2.4 is an independent legal obligati on that is not defined exhaustively by the 
specific requirements set out in the remainder of Article 2.4 and is not limited in scope to the issue of adjustments to ensure  price comparability.  In this regard, we 
agree with the analysis of the panel in US – Zeroing (EC)  regarding the scope of the 
"fair comparison" obligation.  First , as stated by that panel, not to give independent 
meaning to the "fair comparison" requirem ent would render this provision inutile.  
Second , the structure of Article 2.4 suggests that the chapeau of Article 2.4 and its 
sub-paragraphs must be in terpreted as a whole.  Third , the "comparison" referred to in 
Articles 2.4.1 and 2.4.2 of the AD Agreement  is the "comparison" in Article 2.4.  
Fourth , the "fair comparison" requirement explic itly applies also to the subject matter 
of Article 2.4.2 by virtue of the phra se "subject to the provisions governing fair 
comparison in paragraph 4" in Article 2.4.2.
 {}"238 
7.142  We note that the plain language of the first sentenc e of Article 2.4 implies that it is concerned 
with the "comparison" made between export price a nd normal value for the purpose of determining a 
margin of dumping;  with the "fairness" re quirement applying precisely to discipline that 
"comparison".  While this requirement can (and s hould) be understood to inform the rules concerning 
price comparability issues addressed in the remainder of  Article 2.4, we agree with previous panels 
and the Appellate Body that this do es not exhaust its relevance.  First, it is significant that the "fair 
comparison" requirement is stated in a separate se ntence at the beginning of the provision.  In this 
light, to read it as simply repeating the requirement s that follow would render the first sentence of 
Article 2.4 redundant.239  Secondly, unlike Article 2.4.2, which is explicitly limited to the 
"investigation phase", the application of Article 2.4 is not constrained to any particular anti-dumping 
proceeding.  It follows that the entirety of Article  2.4, including its first sentence, must apply to 
discipline the "comparison" between export price and normal value whenever undertaken during an 
anti-dumping proceeding, including during duty assessment.240 
7.143  One panelist wishes to emphasize that, in his view, the correct interpretation of the "fair 
comparison" requirement set out in the first sentence of Article 2.4 is not as clear as previous panels 
and the Appellate Body appear to have suggested.  In  particular, this panelist considers that the scope 
of the "fair comparison" requirement must be info rmed by its immediate context, which includes the 
last sentence of Article 2.4.  This sentence esta blishes an obligation on investigating authorities to 
"indicate to the parties what information is necessary to  ensure a fair comparison".  In the view of this 
panelist, the "fair comparison" referred to in this last sentence of Article 2.4 is the same that is 
described in the first sentence.  Moreover, the "information ... necessary to ensure a fair comparison" 
is not information pertaining to any aspect  of the comparison between export price and normal value.  
Rather, it is information needed to make appropr iate adjustments or transaction selection for the 
purpose of accounting for differences affecting price comparability.  When this view of the operation 
of Article 2.4 is coupled with the arguments advanced  by the United States in support of its view that 
the "fair comparison" requirement should have limite d application, this panelist finds there to be 
strong grounds to doubt the broad interpretation of  the scope of the "fair comparison" requirement 
made by previous panels and th e Appellate Body.  Nevertheless, this panelist considers that, on 
balance, and in the light of the systemic considera tions previously mentioned in this report, the view 
of the Appellate Body should be followed on this issue. 
                                                      
238 Panel Report, US – Zeroing (Japan) , para. 7.157 (footnote omitted).   
239 Panel Report, US – Zeroing (EC) , para. 7.253.  On appeal, the Appellate Body agreed 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.  One implication of this is that this requir ement is also applicable to  proceedings governed by 
Article 9.3".  Appellate Body Report, US – Zeroing (EC) , para. 146 (footnote omitted). 
240 By this conclusion, we do not mean to say that a "comparison" between export price and normal 
value is required  in all anti-dumping proceedings.  WT/DS382/R 
 Page 57 
BCI deleted, as indicated [[XX]] 
 
 7.144  We recall that "simple zeroing" takes place when  aggregating multiple results of comparisons 
between individual export prices and weighted-avera ge normal values.  In our view, the process of 
aggregation  is an integral part of the "comparison"  that is undertaken between export prices and 
weighted-average normal values.  It therefore falls sq uarely within the "comparison" that is envisaged 
and regulated under the first sentence of Article 2.4.  Thus, in order to comply with what is prescribed 
in that sentence, "simple zeroing" must be "fair".   
7.145  In terms of whether Article 2.4 prohibits margins of dumping calculated on the basis of 
"simple zeroing", it is not surprising to find that, in  essence, the jurisprudence mirrors the findings of 
past panels and the Appellate Body with resp ect to the definition of "dumping".  Thus, in US – 
Zeroing (Japan) , the panel rejected Japan's claim that the USDOC's use of "simple zeroing" in 
11 administrative reviews was inconsistent with  Article 2.4 of the AD Agreement because it 
considered that a general prohibition on zeroing  in any context would:  (i) render the W-T 
methodology described under Article 2.4.2 inutile ;  and (ii) undermine the effectiveness of Article 9, 
which in the panel's view, permitted duty collection on a transaction basis.241  In US – Stainless Steel 
(Mexico) , the panel dismissed Mexico's claim that the United States had acted inconsistently with 
Article 2.4 of the AD Agreement by using "simple zero ing" in five administrative reviews because, in 
its view, it was permissible under Article 9.3 for the United States to have used "simple zeroing".  In 
other words, what was permissible under one provi sion of the AD Agreement could not be found to 
be "unfair" and impermissible under another provision.   
7.146  In US – Zeroing (Japan) , the Appellate Body reversed the panel's findings under Article 2.4 
and found instead that the United States use of "s imple zeroing" was, "as such" and "as applied", 
inconsistent with this provision.242  The Appellate Body explained its reasoning in the following 
terms: 
"We turn next to examine whether zeroing in periodic reviews and new shipper 
reviews is, as such, inconsistent with the "fair comparison" requirement in Article 2.4 
of the Anti-Dumping Agreement . 
If anti-dumping duties are assessed on the basis of a methodology involving 
comparisons between the export price and the normal value in a manner which results in anti-dumping duties being collected from importers in excess of the amount of the margin of dumping of the exporter or fore ign producer, then this methodology cannot 
be viewed as involving a 'fair comparison' w ithin the meaning of the first sentence of 
Article 2.4.
{}  This is so because such an ass essment would result in duty collection 
from importers in excess of  the margin of dumping established in accordance with 
Article 2,  as we have explained previously.{}"243 
7.147  Although clearly rejecting the view expressed by  the panel concerning the inconsistency of 
"simple zeroing" with Article 2.4, we note that the underlined text in the Appellate Body's reasoning 
appears to signal that the basis of its findings lay in the effect  "simple zeroing" had on the amount of 
duties collected.  Similarly, the Appellate Body appeared to express the same view in US – Zeroing 
(Article 21.5 – Japan) , where it upheld the panel's findings that the United States had failed to comply 
with the recommendations and rulings from the origin al proceeding when it acted inconsistently with 
Article 2.4 of the AD Agreement by using "simple ze roing" in a series of subsequent administrative 
                                                      
241 Panel Report, US – Zeroing (Japan) , para. 7.159. 
242 In US – Stainless Steel (Mexico) , the Appellate Body reversed the panel's findings, but it refrained 
from making any findings of its own on the merits of Mexico's claim under Article 2.4 on the basis that it 
considered it unnecessary for the purpose of resolving the dispute.  Appellate Body Report, US – Stainless Steel 
(Mexico) , paras. 143-144. 
243 Appellate Body Report, US – Zeroing (Japan) , paras. 167-168 (footnotes omitted, underline added). WT/DS382/R 
Page 58 
BCI deleted, as indicated [[XX]] 
 
 reviews.  In coming to its conclusion, the Appella te Body explained that ""[i]n this case, compliance 
with the DSB's recommendations and rulings require d the cessation of zeroing in the application of 
anti-dumping duties  by the end of the reasonable period of time".244  
7.148  However, in general, the Appellate Body h as on multiple occasions also described its views 
on "zeroing" in terms that strongly suggest that it is unfair because of its effect on the magnitude of 
the margin of dumping, whenever determined.  For instance, in US – Corrosion-Resistant Steel Sunset 
Review , the Appellate Body stated: 
"When investigating authorities use a zeroing methodology such as that examined in  
EC – Bed Linen to calculate a dumping margin, whet her in an original investigation 
or otherwise, that methodology will tend to inflate the margins calculated.  Apart 
from inflating the margins, such a methodol ogy could, in some instances, turn a 
negative margin of dumping into a positive margin of dumping.  As the Panel itself recognized in the present dispute, "zeroing ... may lead to an affirmative determination that dumping exists where no dumping would have been established in 
the absence of zeroing."
 {}  Thus, the inherent bias in a zeroing methodology of this 
kind may distort not only the magnitude of a dumping margin, but also a finding of 
the very existence of dumping."245 
7.149  We are somewhat attracted by the logic underlying the panel's observation in US – Zeroing 
(Japan)  that a general prohibition on "zeroing" operati ng through Article 2.4 of the AD Agreement, 
would render the W-T methodology described in  the second sentence of Article 2.4.2 redundant .  
However, we see a parallel betw een this line of reasoning and the conundrum posed by "mathematical 
equivalence".  In the latter context, we noted in our previous discussion that no redundancy would 
exist if the United States' views about how the W-T methodology actually operates were incorrect.  Yet we observed that there appears to be cons iderable uncertainty as to precisely how the W-T 
methodology should be given effect.  We also conc luded that another way to avoid redundancy would 
be if the W-T methodology, as described by the United States, could be characterized as an 
"exception" to the otherwise generally applicab le definition of "dumping", which operates to 
otherwise prohibit "zeroing".  We did not, how ever, find this explanation to be convincing.
246  In our 
view, the same interpretative dilemmas can be found in  the particular problem posed by the approach 
taken by the panel in US – Zeroing (Japan)  to Article 2.4.   
7.150  The United States argues further that if a genera l prohibition on "zeroing" existed by virtue of 
the operation of Article 2.4, there would be no need to articulate the same requirement through the use 
of the "all comparable export transactions" and "margins  of dumping" language in Article 2.4.2 of the 
AD Agreement.247  However, we note that Article 2.4 operates as the chapeau to Article 2.4.2, and 
therefore logically, it must inform  whatever is governed under that provision.  Indeed, Article 2.4.2 
explicitly provides that it must be read "subject  to the provisions governing fair comparison in 
paragraph 4".   
7.151  The United States also submits that Brazil's interpretation of the "fair comparison" 
requirement is overly broad, unprincipled and, as we understand the United States' argument, would 
result in the establishment of an ob ligation to ensure that "any and all anti-dumping calculations are 
'impartial, even-handed, or unbiased'".248  In this regard, the United States refers to the panel in US – 
                                                      
244 Appellate Body Report, US – Zeroing (Japan)(Article 21.5 – Japan) , para. 193 (underline added). 
245 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 135. 
246 See discussion above, para. 7.119. 
247 US, SCOOS, para. 26. 
248 US, SWS, paras. 16-22;  US, SCOOS, para. 28.  WT/DS382/R 
 Page 59 
BCI deleted, as indicated [[XX]] 
 
 Softwood Lumber V (Article 21.5 – Canada) , which it argues "cautioned against the overly liberal use 
of the 'fair comparison' language of Article 2.4" in the following terms: 
"[W]e believe that a claim based on a highl y general and subjective test such as 'fair 
comparison' should be approached with cau tion by treaty interpreters.  For this 
reason, any conception of 'fairness' should be solidly rooted in the context provided 
by the AD Agreement , and perhaps the WTO Agreement  more generally.  As such, 
there must be a discernable standard within the AD Agreement , and perhaps the WTO 
Agreement , by which to assess whether or not a comp arison has been 'fair' or 'unfair'.  
Thus, the fact that comparison methodology A produces a higher margin of dumping than comparison methodology B would only make comparison methodology A unfair 
if comparison methodology B were the applicable standard.
{}  If, however, the 
AD Agreement  were to permit either comparison methodology A or B, this would not 
be the case."249 
7.152  We agree with the United States and the panel in US – Softwood Lumber V (Article 21.5 – 
Canada) that the meaning of the notion of "fairness" as it is articulated in Article 2.4 will depend 
upon the particular context in which it is intended to operate.  In our view, the search for this context 
must, first and foremost, start with understanding preci sely what it is that must be "fair".  This, of 
course, is the "comparison" between export pri ce and normal value.  Thus, contrary to the 
United States' argument, accepting that the scope of the "fair comparison" requirement extends beyond the subject matter of Article 2.4, does not establish a rule governing "any and all anti-dumping 
calculations".
250  The very language of the fi rst sentence of Article 2.4 exp licitly limits its relevance to 
situations involving the "comparis on" between export price and normal value.  For instance, the "fair 
comparison" requirement does not extend to govern how an investigating authority establishes normal 
value.  It is clear that this is comprehensivel y disciplined under Article 2.2 of the AD Agreement.  
Neither does the "fair comparison" requirement re gulate how to establish constructed export price, 
which is addressed in Article 2.3 of the AD Agreemen t.  However, pursuant to the first sentence of 
Article 2.4, the "comparison" between any ex port price and normal value, both individually 
established in accordance with the specific rules set out in Article 2, must be "fair".   
7.153  An investigating authority will compare expor t price with normal value for the purpose of 
determining the existence of dumping or the magnitude of a margin of dumping.  This implies that the 
comparison between export price and normal value mu st be informed by the definition of "dumping" 
that is contained in Article 2.1 of the AD Agreem ent.  Above we have found that, on balance, and 
taking into account important systemic concerns, it is impermissible to compare export price with 
normal value in such a way that does not result in a determination of "dumping" for the "product as a 
whole".  In this light, a comparison methodology (such as "simple zeroing") that ignores transactions, 
which if properly taken into account, would result in  a lower margin of dumping, must be considered 
"unfair" and therefore inconsistent with Article 2.4.    
7.154  Thus, for all of the above reasons , we conclude that "simple zero ing" is inconsistent with the 
"fair comparison" requirement that is prescribed in Article 2.4 of the AD Agreement.   
(i) "Simple zeroing" in the First Administrative Review 
7.155  We recall that we have found that the WAMs  and ISARs determined for both Cutrale and 
Fischer in the First Administrative Review were calculated through the use of "simple zeroing".251  In 
the case of Fischer, the WAM determined by the USDOC was relied upon for the purpose of 
                                                      
249 Panel Report, US – Softwood Lumber V , para. 5.74. 
250 US, SWS, para. 22. 
251 See above, paras. 7.84-7.87. WT/DS382/R 
Page 60 
BCI deleted, as indicated [[XX]] 
 
 establishing Fischer's CDR.  Likewise, because the WAM determined for Cutrale was considered to 
be de minimis  under United State law, a CDR of 0% was app lied to entries of Cutrale's products in the 
subsequent period.   
7.156  The United States argues that even under the Appellate Body's own rationale, the 
determination of Cutrale's de minimis  margin of dumping, which was converted into a CDR of 0% 
through the operation of United States law, cannot be considered to infringe Article 2.4 because a de 
minimis  margin cannot be said to be "artificially inflated" or "inherently unfair".252  We disagree.  In 
our view, the obligation under Article 2.4 is focu sed on the "comparison" between export price and 
normal value, not its impact.  In other words, it is the nature of the "comparison" itself, and not the 
results of that comparison, that is disciplined unde r Article 2.4.  Thus, a "comparison" between export 
price and normal value that involves "simple zeroing" will be "unfair" for the purpose of Article 2.4, 
irrespective of whether the final margin of dumping actually applied is considered to be de minimis .  
Moreover, in the present instance, although Cutrale's WAM was de minimis , the fact remains that 
absent "simple zeroing" it would have been non-existent.253 
7.157  Thus, we find that by using "simple zeroi ng" to calculate the WAMs (relied upon for the 
purpose of setting CDRs) and the ISARs for both Cutrale and Fischer in the First Administrative 
Review, the United States failed to perform a "f air comparison" between export price and normal 
value, and thereby acted inconsistently with Article 2.4 of the AD Agreement. 
(ii) "Simple zeroing" in the Second Administrative Review 
7.158  We recall that we have found that the WAM and ISAR determined for Cutrale in the Second 
Administrative Review were calculated through the use of "simple zeroing".254  We also made the 
same finding with respect to Fischer.  In pa rticular, we noted that although the WAM and 
corresponding CDR for Fischer were both declared to be 0% in the published Final Results, the WAM 
calculation actually run by the USDOC by means of its computer programme that involved "simple zeroing" determined a WAM of [[XX]].
255  Likewise, we concluded that "simple zeroing" was used in 
the computer programme applied by the United St ates for the purpose of calculating Fischer's ISAR, 
even though the ISAR actually imposed on imports of Fischer's products was [[XX]].256    
7.159  The United States argues that, even according to  the Appellate Body's rationale relied upon by 
Brazil, the determination of a 0% margin of dump ing for Fischer cannot be considered to infringe 
Article 2.4 because a 0% margin cannot be said to be  "artificially inflated" or "inherently unfair".257  
Similarly, the United States argues that even accepting the Appellate Body's line of reasoning with respect to Article 2.4, in order for there to be an  infringement of the "fair comparison" requirement in 
                                                     
 
252 US, SWS, para. 18, citing from Appellate Body Report, US – Softwood Lumber V (Article 21.5 – 
Canada) , paras. 143-144. 
253 The computer programme log for Cutrale indicates  that [[XX]] out of [[XX]] export transactions 
generated negative comparison results, and were theref ore excluded from the US DOC's calculation.  These 
transactions represented [[XX]] of Cutrale's transactions.  Exhibits BRA-29 (BCI), p. 63;  and BRA-31 (BCI) (Ferrier Affidavit), para. 38.  Moreover, Cutral e's computer programme output reveals that the de minimis  
margin of 0.45% was determined by taking into accou nt export transactions accounting for [[XX]] of the total 
volume of transactions, and [[XX]] of their total value.  Exhibit BRA-34 (BCI), last page. 
254 See above, paras. 7.84-7.87. 
255 See above, para. 7.86. 
256 See above, para. 7.86. 
257 US, SWS, para. 18, citing from Appellate Body Report, US – Softwood Lumber V (Article 21.5 – 
Canada) , paras. 143-144.  WT/DS382/R 
 Page 61 
BCI deleted, as indicated [[XX]] 
 
 the context of administrative reviews, any use of "simple zeroing" must result in excessive collection 
of duties.258 
7.160  We are unable to agree with the United States' submissions.  As we have already explained259, 
the obligation under Article 2.4 is focused on th e "comparison" between export price and normal 
value, not its impact.  In other words, it is the natu re of the "comparison" itself, and not the results of 
that comparison, that is disciplined under Artic le 2.4.  Thus, in our view, it follows that a 
"comparison" between export price and normal value that involves "s imple zeroing" will be "unfair" 
for the purpose of Article 2.4, irrespective of whether the final WAM or final ISAR actually imposed is 0%.  Article 2.4 regulates the "comparison" that is made by an investigating authority;  and it is this 
"comparison" (not its outcome) that falls within  the scope of Article 2.4 of the AD Agreement. 
7.161  Thus, we find that by using "simple zeroi ng" to calculate the WAMs (relied upon for the 
purpose of setting CDRs) and the ISARs for both Cutrale and Fischer in the Second Administrative Review, the United States failed to perform a "f air comparison" between export price and normal 
value, and thereby acted inconsistently with Article 2.4 of the AD Agreement. 
(e) Brazil's claims under Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994 
7.162  Having found that the measures challenged by Braz il are inconsistent with Article 2.4 of the 
AD Agreement, we consider it is not necessary, for th e purpose of satisfactorily resolving this dispute, 
to make additional findings with respect to Br azil's claims that the same measures are also 
inconsistent with Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994.  On this basis, 
we decide to exercise judicial economy and decline to make any findings in respect of these claims. 
C. B
RAZIL 'S CLAIMS CONCERNING "CONTINUED ZEROING " 
1. Arguments of Brazil 
7.163  Brazil challenges the alleged "continued use by the United States of zeroing procedures in 
successive anti-dumping proceedings under the Or ange Juice Order, including the original 
investigation and any subsequent administrative re views by which duties are applied and maintained 
over a period of time".260     
7.164  Brazil characterizes the USDOC's alleged "conti nued use" of "zeroing" as "ongoing conduct" 
of virtually the same kind found to be inconsis tent with Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994 by the Appellate Body in US – Continued Zeroing .  Relying entirely 
upon the Appellate Body's reasoning in that disp ute, and various pieces of evidence allegedly 
demonstrating the USDOC's use of "zeroing procedur es" in the original investigation and First, 
Second and Third Administrative Reviews, Brazil asks  the Panel to find that the USDOC's "continued 
use" of "zeroing" in successive proceedings under of the orange juice anti-dumping duty order, by 
which duties are applied to imports of orange jui ce from Brazil, amounts to "ongoing conduct" that is 
inconsistent with Articles 2.4,  2.4.2 and 9.3 of the AD Agreement and Article VI:2 of the 
GATT 1994.261  
                                                      
258 US, SWS, para. 17, citing from Appellate Body Report, US – Zeroing (Japan) , para. 168. 
259 See above, para. 7.156. 
260 Brazil, FWS, para. 48. 
261 Brazil, FWS, paras. 98-117;  Brazil, FCOOS, paras.  80-96;  Brazil, SWS, paras. 27-46;  Brazil, 
SCOOS, paras. 86-93. WT/DS382/R 
Page 62 
BCI deleted, as indicated [[XX]] 
 
 2. Arguments of the United States 
7.165  The United States argues that "continued zeroing" as "ongoing conduct" does not exist as a 
"measure" susceptible to challenge in WTO disput e settlement proceedings.  In particular, the 
United States asserts that the alleged measure is focused on "indeterminate future measures that did 
not exist at the time of Brazil's panel request (and ma y never exist)".  Accord ing to the United States, 
"measures that do not and may never exist are no t within a dispute settlement panel's terms of 
reference", and for this reason, they cannot be challenged in WTO dispute settlement.  Thus, the 
United States asks the Panel to find that "contin ued zeroing" as "ongoing conduct" is not a measure 
that can be challenged in this dispute.262 
7.166  In any case, the United States submits that Br azil has failed to establish that the USDOC 
actually "zeroed", as a matter of fact, in "successive proceedings".  The United States asserts that the 
computer programme evidence submitted by Braz il in Exhibits BRA-32 (BCI) and BRA-33 (BCI) 
does not demonstrate that the USDOC used "zeroing" in  the original investigation.  According to the 
United States, the various lines of the computer programme that Brazil focuses upon show that the 
"necessary condition for activating the 'zeroing' operation" was not satisfied, meaning that no 
comparison of export price and normal value resulte d in a negative value.  In other words, the 
United States asserts that Brazil's evidence shows th at all comparison results were positive (i.e., all 
comparison results showed dumping).263  The United States also argues that the computer programme 
evidence submitted by Brazil in Exhibit BRA-33 (BC I) was generated by Brazil's consultant, not the 
USDOC, and only after the USDOC made the relevant final determinations.264  Moreover, the 
United States emphasizes that no CDR was applied to imports of Cutrale's products following the 
First Administrative Review, and no CDRs or ISARs were applied to Fischer's products as a result of 
the Second Administrative Review.  Thus, the Unit ed States submits that whatever "zeroing" may 
have taken place in the calculation of Cutrale's or Fischer's margins of dumping, it did not result in a 
breach of the United States' obligation under Article 9.3 of the AD Agreement to ensure that any anti-
dumping duty applied is not in excess of the ma rgin of dumping established under Article 2.265 
7.167  The United States submits that, at most, the evid ence advanced by Brazil shows that "zeroing" 
was applied in order to determine the margin of dumping of one company in one proceeding covering 
a one year period.  The United States contrasts this with the facts the Appellate Body found in US – 
Continued Zeroing  to demonstrate the existence of "continued zeroing" as "ongoing conduct", 
namely:  the use of "zeroing" in the original inv estigation;  the use of "zeroing" in four successive 
administrative reviews;  and reliance in a sunset  review upon rates determ ined using "zeroing".  
According to the United States, the facts Br azil relies upon do not c onstitute "a string of 
determinations, made sequentially ... over an ex tended period of time".  Thus, the United States 
argues that there is no basis for the Panel to find  that the "zeroing" methodology was used without 
interruption, that it was used in different proceedi ngs, and that it was used over an extended period of 
time.  The United States therefore asks the Panel to  reject Brazil's claim that it has established the 
USDOC's "continued zeroing" as "ongoing conduct".266 
7.168  Finally, the United States notes that Brazil challenges "continued zeroing" under Article 2.4.2 
of the AD Agreement, in addition to Article  9.3 and Article VI:2 of the GATT 1994.  The 
United States argues that Brazil's reliance on this legal basis is misplaced because Article 2.4.2 is 
explicitly limited to the "investiga tion phase", and has therefore no a pplication to duty collection or 
                                                      
262 US, FWS, paras. 52, 124 and 130-131;  US, SWS, paras. 83-84. 
263 US, FWS, para. 128;  US, FCOOS, para. 38;  US, SWS, para. 87;  US, Answer to Panel 
Question 24. 
264 US, Answer to Panel Question 24. 
265 US, FWS, para. 127;  US, FCOOS, para. 39. 
266 US, FWS, paras. 132-133;  US, SWS, para. 87;  US, SCOOS, paras. 39-40.  WT/DS382/R 
 Page 63 
BCI deleted, as indicated [[XX]] 
 
 other anti-dumping proceedings.  In this regard, th e United States asks the Panel to follow the finding 
of the panel in US – Zeroing (EC) , and decline to extend the oblig ations of Article 2.4.2 to 
"successive proceedings" beyond the original investigation.267 
3. Arguments of the Third Parties 
(a) Japan 
7.169  Japan argues that there is no substantial diffe rence between the "continued zeroing" measure 
that Brazil challenges in the present dispute and the "continued zeroing" measure challenged by the 
European Communities in US – Continued Zeroing .  Japan recalls that previous panels and the 
Appellate Body have found that "zeroing" is inco nsistent with Article 2. 4.2 (when performed in 
original investigations) and Article 9.3 of th e AD Agreement and Article VI:2 of the GATT 1994 
(when performed for the purpose of duty assessment pr oceedings).  Thus, Japan calls on the Panel to 
follow these findings and rule that the USDOC's "con tinued zeroing" in the orange juice anti-dumping 
proceedings is inconsistent with Article 9.3 of the AD Agreement and Article VI:2 of the 
GATT 1994.268 
4. Evaluation by the Panel 
(a) Introduction 
7.170  Brazil's complaint against the USDOC's alleged "continued use" of "zeroing" in the orange 
juice anti-dumping proceedings raises essentially three main questions:  (i) whether it is possible to 
challenge a Member's "ongoing conduct" as a "measu re" in WTO dispute settlement;  (ii) if it is 
possible to challenge such a "measure", whether Brazil has demonstrated that it exists as a matter of 
fact;  and (iii) if it does exist, whether the "measure" is inconsistent with Artic les 2.4, 2.4.2 and 9.3 of 
the AD Agreement and Article VI:2 of the GATT 1994.  Below we address each of these questions in 
turn. 
(b) Whether the "continued use" of "zeroing" as "ongoing conduct" is a "measure" susceptible to 
WTO dispute settlement 
7.171  It is well established that "in principle, any act or omission attributable to a WTO Member 
can be a measure of that Member for purposes of dispute settlement".269  Measures that have been 
examined by panels and the Appella te Body in the past include "not only measures consisting of acts 
that apply to particular situations, but also tho se consisting of acts setting forth rules or norms that 
have general and pros pective application".270  Moreover, in US – Zeroing (EC) , the Appellate Body 
found that the European Communiti es was entitled to challenge an unwritten  zeroing "norm" because 
it found no basis in the DSU and the AD Agreement to "conclude that 'rules or norms' can be 
challenged, as such, only if they are expressed in written form".271   
7.172  In US – Continued Zeroing , the Appellate Body concluded that the USDOC's "continued use" 
of "zeroing" to calculate the margins of dumping in 18 different anti-dumping proceedings could be challenged as a "measure" it described as "ongoi ng conduct".  The Appellate Body's reasoning 
included the following observations: 
                                                     
 
267 US, FWS, paras. 134-135. 
268 Japan, TPWS, paras. 18-22 and 72. 
269 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review , para. 81. 
270 Panel Report, US – Continued Zeroing , para. 7.45, cited with approval in Appellate Body Report, 
US – Continued Zeroing , para. 177. 
271 Appellate Body Report, US – Zeroing (EC) , para. 193.  The panel in the same case come to the same 
conclusion on the basis of similar reasoning. WT/DS382/R 
Page 64 
BCI deleted, as indicated [[XX]] 
 
 "Thus, the measures at issue consist of ne ither the zeroing methodology as a rule or 
norm of general and prospective application,  nor discrete applications of the zeroing 
methodology in  particular determinations;  rather, they are the use of the zeroing 
methodology in successive proceedings, in each of the 18 cases, by which duties are 
maintained over a period of time.  We see no reason to exclude ongoing conduct that 
consists of the use of the zeroing methodology from challenge in WTO dispute 
settlement.  The successive determinations  by which duties are maintained are 
connected stages in each of the 18 cases  involving imposition, assessment, and 
collection of duties under the same anti-dumping duty order.{}  The use of the zeroing 
methodology in a string of these stages is the allegedly unchanged component of each 
of the 18 measures at issue.{}  It is with respect to this ongoing conduct that the 
European Communities brought its challenge, seeking its cessation. At the oral hearing, the European Communities confirmed that it is not seeking the revocation of 
the 18 anti-dumping orders but, rather, the cessation of the use of the zeroing methodology by which the duties are calc ulated and maintained in these 18 cases.
{}  
In our view, the European Communities, in  seeking an effective resolution of its 
dispute with the United States, is entitled to frame the subject of its challenge in such 
a way as to bring the ongoing conduct, regarding the use of the zeroing methodology in these 18 cases, under the scrutiny of WTO dispute settlement."
272 
7.173  Conceptually, the alleged "measure" that Brazil ch allenges in this dispute appears to be very 
similar, if not identical, to the measure that was the subject of the European Communities' complaint 
in US – Continued Zeroing .  Indeed, Brazil has repeatedly emphasized that it is challenging the same 
type of "measure" that was at issue in US – Continued Zeroing , namely, a "measure" in the form of 
"ongoing conduct".  Moreover, Brazil has explaine d that by challenging the alleged "measure" it is 
seeking to obtain a prospective remedy, namely, th e "cessation of the use of the zeroing methodology" 
in the orange juice anti-dumping proceedings.273  
7.174  According to the United States, the allege d "ongoing conduct" "measure" that Brazil 
challenges cannot be subject to WTO dispute settleme nt because it is based on "an indefinite number 
of future individual measures that do not and may never exist".274  Moreover, the United States 
submits that if "continued use" were a "measure",  it would "presumably ... cease to exist if at any 
point 'zeroing' is not used in a particular indivi dual determination".  Yet, the United States notes that 
"Brazil's argument requires the Panel to assume that it will be used".275  Thus, the United States argues 
that Brazil's focus on "continued zeroing" as "ongoing conduct" involves "speculating as to what may 
happen in the future"276, and for this reason the United States considers that such conduct cannot 
amount to a "measure" that is susceptible to WTO dispute settlement. 
7.175  As we understand it, implicit in the United States' argument is the view that there is a 
prospective element to the alleged "ongoing conduc t" "measure" Brazil challenges which cannot be 
established with any degree of certainty because it is inherently speculative.  We note, however, that 
although describing the "ongoing conduct" measure in US – Continued Zeroing  in terms that 
contemplate its prospective operation,  the Appellate Body did not require absolute certainty as to the 
future conduct it envisaged.  In partic ular, the Appellate Body found that: 
"The density of factual findings in these cases, regarding the continued use of the 
zeroing methodology in a string of successive  proceedings pertaining to the same 
                                                      
272 Appellate Body Report, US – Continued Zeroing , para. 181 (footnotes omitted). 
273 Brazil, Answer to Panel Question 2. 
274 US, FWS, paras. 51 and 131. 
275 US, SWS, para. 84. 
276 US, SWS, para. 84.  WT/DS382/R 
 Page 65 
BCI deleted, as indicated [[XX]] 
 
 anti-dumping duty order, provides a sufficient basis for us to conclude that the 
zeroing methodology would likely continue  to be applied in successive proceedings 
whereby the duties in these four cases are maintained."277     
7.176  Thus, ongoing conduct may be simply described  as conduct that is currently taking place and 
is likely to continue  in the future.  Given that any act or omission attributable to a Member may, in 
principle, be challenged by a Member in WTO dispute settlement proceedings, we see no reason why 
"ongoing conduct" cannot also be the subject of a complaint.  The particular "ongoing conduct" that 
Brazil objects to is the USDOC's alleged "continue d use" of "zeroing procedures" under the orange 
juice anti-dumping duty order.  Conceptually, we see no practical difference between this form of 
"ongoing conduct" and the "ongoing conduct" challenged in the US – Continued Zeroing dispute.  
Like the Appellate Body in that controversy, we consider that Brazil is entitled to bring a complaint 
against such a "measure" to WTO dispute settlement.  However, accepti ng that the "continued use" of 
"zeroing" may be challenged in WTO dispute se ttlement as a "measure" in the form of "ongoing 
conduct" does not amount to accepting that any such "m easure" actually exists.  It is to this second 
question that we now turn.  
(c) Has Brazil established that the alleged "con tinued zeroing" as "ongoing conduct" measure 
exists? 
7.177  In US – Continued Zeroing , the Appellate Body explained the basis for its conclusion 
concerning the existence of "continued zeroing" as "ongoing conduct" in the following terms: 
"Thus, in each of the above four cases, the Panel's findings indicate that the zeroing 
methodology was repeatedly used in a string of determinations, ma de sequentially in 
periodic reviews and sunset review s over an extended period of time .  The density of 
factual findings in these cases, regarding the continued use of the zeroing 
methodology in a string of successive pro ceedings pertaining to the same anti-
dumping duty order , provides a sufficient basis for us  to conclude that the zeroing 
methodology would likely continue to be applied in successive proceedings whereby 
the duties in these four cases are maintained."278 
7.178  Thus, the evidence the Appellate Body consid ered demonstrated the existence of the 
"continued zeroing" measure covered the use of "zeroi ng" in the original investigation;  the use of 
"zeroing" in four successive administrative reviews;  and reliance in a sunset review upon rates determined using "zeroing".  On the other hand,  the Appellate Body fo und that the "continued 
zeroing" measure could not be established on the basis of evidence showing the use or reliance upon 
"zeroing" in only:  (i) one anti-dumping proceeding – i.e., either one origin al investigation, one 
administrative review or one sunset review;  (ii)  two (three) administrative reviews in the same 
proceeding, where there was a lack of evidence showing that the use of "zeroing" in a third (fourth) 
administrative review related to the same anti- dumping duty order;  and (iii) two administrative 
reviews and one sunset review related to the same anti-dumping duty order, where there was no 
evidence regarding any other proceedings submitted during the panel process.
279  
7.179  Brazil argues that the evidence it has introduced  shows that the USDOC used "zeroing" to 
calculate the margins of dumping in the original  investigation and the First, Second and Third 
Administrative Reviews.  Moreover, according to Br azil, the facts it has presented also demonstrate 
that the USDOC will continue to apply the same methodology in all future proceedings under the 
orange juice anti-dumping duty order.  On the othe r hand, the United States submits that Brazil has 
                                                      
277 Appellate Body Report, US – Continued Zeroing , para. 191 (emphasis added). 
278 Appellate Body Report, US – Continued Zeroing , para. 191 (emphasis added). 
279 Appellate Body Report, US – Continued Zeroing , para. 194. WT/DS382/R 
Page 66 
BCI deleted, as indicated [[XX]] 
 
 failed to satisfy the standard a pplied by the Appellate Body in US – Continued Zeroing , noting that in 
a number of instances, the USDOC did not use "zeroing" at all, or that even when it did, it had no bearing on the WAMs, CDRs or ISARs actually imposed.  According to the United States, the facts Brazil relies upon have more in common with the facts the Appellate Body considered did not 
establish the existence of a "continued zeroing" measure, than those the Appellate Body found to 
demonstrate its existence. 
7.180  We have previously concluded that Brazil has shown that the USDOC determined the WAMs 
(relied upon for the purpose of setting the CDRs) and th e ISARs of Cutrale and Fischer in the First 
and Second Administrative Reviews through the use of "simple zeroing".
280  Below we examine the 
extent to which the evidence Brazil has submitted esta blishes the same with r espect to the original 
investigation and the Third Administrative Review.   
(i) Original Investigation 
7.181  Brazil asserts that the computer programme the USDOC applied in the original 
investigation281 to calculate the respondents' margins of  dumping "provided for the exclusion ... of 
negative comparison results where the weighted-ave rage export price of any model exceeded normal 
value".282  To substantiate this assertion, Brazil subm its a copy of the relevant programme logs 
together with an explanation which identifies the "language to zero negative margins" appearing in 
each log.283   
7.182  The United States asserts that the computer  programme evidence submitted by Brazil 
demonstrates that no "zeroing" actually took place in  the original investiga tion.  According to the 
United States, there were no negative comparison results  to "zero" in that investigation because all of 
the respondents transactions were dumped.  Thus, th e United States does not argue that the "zeroing" 
instruction was not present in the computer programme used in the Original Investigation.  Rather, the 
United States points out that the instruction wa s not executed during the course of the calculation 
because of the absence of non-dumped transactions.    
7.183  Brazil does not contest the United States' assertion about the absence of transactions sold at an 
export price above normal value.  Indeed, the expl anation provided in Exhibit BRA-31 (BCI) appears 
to confirm this point.  However, Brazil does not accep t that the "zeroing" instruction did not function 
in the original investigation.  According to Brazil, the "zeroing" line ("WHERE EMARGIN GT 0") 
always functions to ensure that the total am ount of dumping is based exclusively on positive 
comparison results.  For this line not to function,  Brazil submits that it must be removed from the 
computer programme.284  Moreover, Brazil argues that in the light  of the nature of its claim, the fact 
that the "zeroing procedures" did not exclude any transactions sold at an export price above normal 
value is irrelevant.  Brazil explains the na ture of its claim in the following terms: 
                                                      
280 See above, paras. 7.84-7.87, 7.155 and 7.158. 
281 Final Results of the Original Investigation, 71 Fed. Reg. 2183 (13 January 2006), Exhibit BRA-18; 
and Amended Final Results of the Original Investigation,  71 Fed. Reg. 8841 (21 February 2006), Exhibit BRA-
19. 
282 Brazil, FWS, para. 102. 
283 Exhibits BRA-32 (BCI) (Programme log for Cutrale);  BRA-33 (BCI) (Programme log for Fischer);  
and BRA-31 (BCI) (Ferrier Affidavit).  The United States argues that Exhi bit BRA-33 (BCI) was "generated by 
Brazil's consultant, not by the USDOC, and only after the USDOC made the relevant final determinations" (US, Answer to Panel Question 24).  Howeve r, Brazil has presented evidence whic h we are satisfied confirms that 
Exhibit BRA-33 (BCI) was provided to Fischer's Counsel by the USDOC (See Exhibit BRA-58, and Brazil, 
Comment on US Answer to Panel Question 24).  See also the summary of infromation on the use of "zeroing", submitted as Exhibit BRA-48. 
284 Brazil, Comment on US Answer to Panel Question 24.  WT/DS382/R 
 Page 67 
BCI deleted, as indicated [[XX]] 
 
 "In Brazil's view, a challenge to the continued use of zeroing under a single anti-
dumping order does not fit squarely into either the 'as applied' or the 'as such' category.  Indeed, the claim shares elements of  both 'as such' and 'as applied' claims.   
With respect to similarities to an 'as such ' claim, the claim contests the continued use 
of zeroing in a series of determinations under a specific anti-dumping order that 
applies prospectively to all subject imports;  the claim is, therefore, not confined to 
'specific instances in which the zeroing me thodology was applied, such as a periodic 
review or sunset review determination'.
{}  The evidence, as a whole, shows that, under 
the Orange Juice Order, the United States systematically uses the zeroing as part of its methodology for determining dumping and marg ins of dumping.  Also similar to an 
'as such' claim, the aim of the 'continued use' claim is to obtain 'the cessation of the 
use of the zeroing methodology  by which the duties are calculated and maintained'.
{}  
Thus, the 'continued use' claim contests zer oing on a relatively generalized basis, 
aiming to terminate its use on that basis.   
However, the claim is nonetheless different fro m an 'as such' claim with respect to the 
degree of generality of the claim.  An 'as such' claim against the zeroing procedures 
as a rule or norm of general and pros pective application would address the 
maintenance of zeroing for use in administrative (or other) reviews, under all anti-
dumping orders.  In contrast, Brazil’s 'con tinued use' claim addresses the use of the 
zeroing in determinations under one single  anti-dumping order, namely the Orange 
Juice Order.  The claim is, therefore,  'narrower' than an 'as such' claim.{}"285   
"With respect to the 'conti nued use' measure, the conduct comprising this measure is 
the use of zeroing  in determinations made under the Orange Juice Order, including in 
administrative reviews.  As with an 'as such' claim against zeroing under all anti-
dumping orders, the consistency of this me asure, under Article 9.3 and Article VI:2, 
in the context of the Orange Juice Order, does not turn on the outcome  of any specific 
determination resulting from the use of zeroing."286 
Thus, Brazil argues that its challenge relates to  the "continued use" of the USDOC's "zeroing" 
methodology, not its impact.  For this reason, Brazil argues that the fact that the "zeroing" instruction did not function to "zero" any export transactions so ld at a price above normal value in the original 
investigation does not detract from its complaint.    
7.184  We agree with Brazil.  In our view, the nature  of its complaint against "continued zeroing" is 
akin to a claim that could be made against a measu re "as such", in the sense that Brazil challenges the 
"continued use" of the "zeroing methodology" under  the orange juice anti-dumping duty order, 
independent of its application .  However, whereas a measure subject  to a typical "as such" claim in 
WTO dispute settlement would be generally appl icable to all anti-dumping proceedings conducted 
under all United States anti-dumping duty orders, th e "measure" Brazil objects to exists only in the 
limited context of the orange juice proceedings.   
7.185  By bringing a complaint against such a "measure", Brazil is seeking to redress what it 
considers to be the root of the problem it has wi th the United States' conduct of the orange juice 
proceedings, namely, the USDOC's "continued use" of the "zeroing methodology".  Brazil's challenge 
seeks to achieve a prospective remedy;  a solution that would prevent the United States from using the 
"zeroing methodology" in future proceedings under th e orange juice anti-dumping duty order.  In this 
light, the fact that the particular circumstances of  the original investiga tion were such that the 
                                                     
 
285 Brazil, Answer to Panel Question 1 (footnotes omitted). 
286 Brazil, Answer to Panel Question 2. WT/DS382/R 
Page 68 
BCI deleted, as indicated [[XX]] 
 
 "zeroing" instruction did not function to rem ove any negative export price to normal value 
comparisons does not invalidate Brazil's claim, beca use it is the very existence of the "zeroing" 
instruction in the computer programmes used to  calculate the relevant margins of dumping, 
independent of its application , that is the subject of Brazil's complaint.   
7.186  Thus, we conclude that the evidence Brazil h as submitted demonstrates that the USDOC used 
the "zeroing methodology" in the original investiga tion, even though this conduct had no impact on 
the relevant margins of dumping determined for the respondents because of the particular set of facts 
that arose in that investigation.  
(ii) Third Administrative Review 
7.187  Brazil asserts287 that the USDOC used "simple zeroing" in the Final Results of the Third 
Administrative Review to determine the following WAMs, CDRs and ISARs:   
 WAM288 CDR288 ISAR289 
Third Administrative Review    
Cutrale 8.13% 8.13% [[XX]] 
Fischer 5.26% 5.26% [[XX]] 
 
7.188  To substantiate its assertion, Brazil submits the same type of evidence it used to demonstrate 
the use of "simple zeroing" in the First and Se cond Administrative Reviews, namely, the relevant 
computer programme logs and output for each r espondent, the Issues and Decision Memorandum, and 
a second Ferrier Affidavit.290  We have carefully reviewed this  evidence and find that it confirms 
Brazil's assertions. 
7.189  The United States does not contest that the USDOC  used "simple zeroing" when determining 
the above WAMs, CDRs and ISARs291, but it argues that the Third Administrative Review is not 
within the Panel's terms of reference.292  However, apart from referring to  a discussion contained in its 
first written submission where it explains why the Second Administrative Review is outside of the 
Panel's terms of reference, the United States pres ents no separate argumentation concerning the Third 
Administrative Review.  
7.190  In our view, the United States' position with resp ect to Brazil's reliance on the results of the 
Third Administrative Review is misplaced.  Brazil does not challenge the results of the Third 
Administrative Review, but instead uses them as evidence of the "continued zeroing" measure.  A 
panel's terms of reference need onl y contain a sufficiently clear explanation of the legal basis of a 
complainant's claims and a description of the challenged measures293;  they are not required to also 
                                                      
287 Brazil, SWS, paras. 36-41. 
288 Final Results, Third Administrative Review, Exhibit BRA-49. 
289 BRA-54 (BCI) (Programme output for Cutrale) , penultimate page; BRA-55 (BCI) (Programme 
output for Fischer), penultimate page. 
290 Exhibits BRA-50 (Issues and Decision Memorandum), pp. 2-6;  BRA-51 (BCI) (Ferrier Affidavit re 
3rd Administrative Review);  BRA-52 (BCI) (Programme log for Cutrale);  BRA-54 (BCI) (Programme output 
for Cutrale);  BRA-56 (BCI) (Programme log for Fischer);  BRA-55 (BCI) (Programme output for Fischer).  See 
also the summary of information on the use of "zeroing", submitted as Exhibit BRA-48. 
291 US, Answer to Panel Question 24. 
292 US, FWS, para. 126;  US, Answer to Panel Question 24. 
293 See, e.g., Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland 
Cement from Mexico ("Guatemala – Cement I "), WT/DS60/AB/R, adopted 25 November 1998, 
DSR 1998:IX, 3767, para. 72.  WT/DS382/R 
 Page 69 
BCI deleted, as indicated [[XX]] 
 
 identify the evidence.  We therefore see no basis fo r the United States' objection to Brazil's reliance on 
the results of the Third Administrative Review. 
(iii) Conclusion regarding the existence of the "continued zeroing" measure 
7.191  Overall, the evidence submitted by Brazil re veals that the USDOC applied a computer 
programme that included an instruction to "zero" in the original investigation and in the First, Second 
and Third Administrative Reviews, for the purpose of calculating the WAMs and the ISARs of the 
relevant respondents.  The evidence also shows that this instruction was actually executed in the first 
three administrative reviews under the orange jui ce anti-dumping duty order.  Moreover, the Issues 
and Decision Memoranda from the three administrative reviews strongly suggest that, at the time they 
were issued, the USDOC intended to continue to ta ke the same approach to calculating margins of 
dumping in the future.  In this regard, we find the following USDOC statement, which appears in 
exactly the same language in all three Issues and Deci sion Memoranda, to be particularly revealing:  
"Section 771(35)(A) of the Act defines 'dumping margin' as the 'amount by which the 
normal value exceeds the export price or constructed export price of the subject 
merchandise'.  Outside the context of an tidumping investigations involving average-
to-average comparisons, the Department inte rprets this statutory definition to mean 
that a dumping margin exists only when NV is greater than EP or CEP.  As no 
dumping margins exist with respect to sales where NV is equal to or less than EP or 
CEP, the Department will not permit these non-dumped sales to offset the amount of 
dumping found with respect to other sales.  The CAFC has held that this is a 
reasonable interpretation of the statute. "294  
7.192  We recall that in US – Continued Zeroing , the evidence the Appellate Body considered was 
sufficient to establish the existence of the "conti nued zeroing" measure challenged in that dispute 
demonstrated that the USDOC:  used "zeroing" in the original investigation;  used "zeroing" in four 
successive administrative reviews;  and relied in a sunset review upon margins of dumping 
determined through the use of "zeroing".  Although the pattern of use of "zeroing" in the present 
dispute is not exactly the same, there is neverthel ess, in our view, sufficient evidence to establish the 
existence of the "continued use" measure that Braz il challenges.  Apart from the evidence showing the 
use of "zeroing procedures" in each of the successive proceedings, of particular significance are the statements contained in the Issues and Decisi on Memoranda, which in our view, leave little doubt 
about how the USDOC intended to interpret the notio n of "dumping" in future proceedings under the 
orange juice anti-dumping duty order at the time the Me moranda were issued.  T hus, we conclude that 
Brazil has established the existence of the USDOC' s "continued use" of "zeroing procedures" as a 
"measure" in the form of "ongoing conduct" unde r the orange juice anti-dumping duty order.  
(d) Whether the "measure" is inconsistent with Ar ticles 2.4, 2.4.2 and 9.3 of the AD Agreement 
and Article VI:2 of the GATT 1994 
7.193  We recall that we have already found that the USDOC's use of "simple zeroing" is 
inconsistent with Article 2.4 of the AD Agreement.   In our view, it necessarily follows that the 
"continued use" of the "zeroing procedures" must also  be inconsistent with the same provision.  Thus, 
we find that the United States' "continued use" of  "zeroing" under the orange juice anti-dumping duty 
order is inconsistent with Article 2.4 of the AD Agreement.   
7.194  Brazil claims that the USDOC's "continued use" of "zeroing" is also inconsistent with 
Articles 2.4.2 and 9.3 of the AD Agreement and Article VI:2 of the GATT 1994.  The United States 
submits that Brazil's reliance on Article 2.4.2 is misplaced because, in its view, the prohibition on 
                                                     
 
294 Exhibits BRA-28, p 5;  BRA-43, pp 4-5;  and BRA-50, p 4. WT/DS382/R 
Page 70 
BCI deleted, as indicated [[XX]] 
 
 "zeroing" in this provision is explicitly limited to the "investigation phase" , which by definition does 
not include duty assessment proceedings or any ot her proceedings.  Having found that the "continued 
zeroing" measure challenged by Brazil is inconsiste nt with Article 2.4 of the AD Agreement, we 
consider it is not necessary, for the purpose of satisfact orily resolving this dispute, to make additional 
findings with respect to the same measure under Articles 2.4.2 and 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994.  On this basis, we decide to exercise judicial economy and decline to 
make any findings in respect of Brazil's claims under Articles 2.4.2 and 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994.   
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
A. CONCLUSIONS  
8.1 As previously observed, the question at the cen tre of Brazil's complaint in this dispute has 
been well litigated in WTO dispute settlement.  Th is core question concerns how the AD Agreement 
(and Article VI of the GATT 1994) defines the notion of  "dumping":  is it a concept that relates to an 
exporter's overall pricing behaviour that can onl y be measured with respect to the "product as a 
whole";  or can it also be conceived of and m easured on a transaction-specific basis?  Although 
fundamental and of critical importance to the opera tion of the AD Agreement, our evaluation of the 
parties' arguments and relevant jurisprudence has led us to conclude that there exists no single  answer 
to this question.  The objective lack of clarity on th is issue, to some extent also recognized by the 
Appellate Body295, lends legitimacy to both parties' pos itions.  However, the Appellate Body has 
consistently only found room for there to be one permissible interpretation of "dumping";  and for the 
important systemic reasons described above296, we have decided to follow this interpretation and 
come to the final conclusions expressed in this report.  Nevertheless, we wish to once again 
emphasize that all Members have a strong systemic interest in seeing that a lasting resolution to the "zeroing" controversy is found sooner ra ther than later.  In this rega rd, we note that Members have not 
only sought to resolve the issue of "zeroing" thr ough WTO dispute settlement, but they are also trying 
to address it through negotiations in the Negotiati ng Group on Rules in the context of the Doha 
Development Agenda
297. 
8.2 In the light of the findings set out in the fore going sections of this Repor t, we conclude that 
Brazil has established that: 
(a) the United States acted inconsistently with Article 2.4 of the AD Agreement when it 
used "simple zeroing" to determine the we ighted-average margins of dumping (used 
to set the cash-deposit rates) and the importe r-specific assessment rates of Cutrale and 
Fischer in the First and Second Administ rative Reviews under the orange juice anti-
dumping duty order;  and 
(b) the United States' "continued use" of "zeroi ng" in proceedings under the orange juice 
anti-dumping duty order is inconsistent w ith Article 2.4 of the AD Agreement. 
8.3 Finally, in the light of the findings we have set  out in paragraphs 8.2, we make no findings, 
based on judicial economy, in respect of Brazil's claims: 
                                                      
295 See, in particular, the Concurring Opinion of  one Appellate Body Member in Appellate Body 
Report, US – Continued Zeroing , paras. 304-313. 
296 See above, paras. 7.132-7.135. 
297 See, e.g, Draft Consolidated Chair Texts of the AD and SCM Agreements, 30 November 2007, 
TN/RL/W/213;  and New Draft Consolid ated Chair Texts of the AD And SCM Agreements, 19 December 2008, 
TN/RL/W/236.  We also note that Article 3.9 of the DSU states that its provisions are "without prejudice to the 
right of Members to seek authoritative interpretation of  provisions of a covered agreement through decision-
making under the WTO Agreement".  WT/DS382/R 
 Page 71 
BCI deleted, as indicated [[XX]] 
 
 (a) under Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994, 
concerning the United States' alleged use of "simple zeroing" in the First and Second 
Administrative Reviews under the orange juice anti-dumping duty order;  and  
(b) under Articles 2.4.2 and 9.3 of the AD Agreement and Article VI:2 of the 
GATT 1994, concerning the United States' "continued use" of "zeroing" in 
proceedings under the orange juice anti-dumping duty order. 
B. RECOMMENDATION  
8.4 Pursuant to Article 3.8 of the DSU, in cases wh ere there is infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment of bene fits under that agreement.  Accord ingly, we conclude that to the 
extent the United States has acted inconsistently  with Article 2.4 of the AD Agreement, it has 
nullified or impaired benefits accruing to Brazil.  
8.5 We recommend that the Dispute Settlement Body request the United States to bring its 
measures into conformity with its  obligations under the AD Agreement.  
 
 
_______________