WORLD TRADE  
ORGANIZATION  WT/DS268/12 
7 June 2005 
 (05-2316) 
 Original:   English 
  
 
     
 
    
 
 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING  
MEASURES ON OIL COUNTRY TUBULAR GOODS  
FROM ARGENTINA 
 
  
ARB-2005-1/18 
     
 
  
 
 
Arbitration  
under Article 21.3(c) of the  
Understanding on Rules and Procedures  
Governing the Settlement of Disputes  
 
 
 
   
Award of the Arbitrator 
A.V. Ganesan  WT/DS268/12 
 Page i 
 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Parties....................................................................................................... ......2  
A. United States.................................................................................................................. 2 
B. Argentina ...................................................................................................................... .5 
III. Reasonable Period of Time...................................................................................................... ...9 
A. General Principles......................................................................................................... 9 
B. The Recommendations and Rulings of  the DSB to be Implemented ............................ 12 
C. The Means of Implementation...................................................................................... 12 
D. The Implementation Process........................................................................................ 15 
E. Argentina as a Developing Country Member .............................................................. 17 
F. Determination of "Reasonable Period of Time" .......................................................... 17 
IV. The Award ...................................................................................................................... ..........19  
 WT/DS268/12 
Page ii  
 
TABLE OF ARBITRATIONS CITED IN THIS AWARD 
 
Short Title Full Title and Citation of Arbitration 
Australia – Salmon  Award of the Arbitrator, Australia – Measures Affecting Importation of 
Salmon – Arbitration under Article 21.3(c) of the DSU , WT/DS18/9, 
23 February 1999, DSR 1999:I, 267 
Canada – Autos  Award of the Arbitrator, Canada – Certain Measures Affecting the 
Automotive Industry – Arbitration under Article 21.3(c) of the DSU , 
WT/DS139/12, WT/DS142/12, 4 October 2000, DSR 2000:X, 5079 
Canada – Patent Term  Award of the Arbitrator, Canada – Term of Patent Protection – Arbitration 
under Article 21.3(c) of the DSU , WT/DS170/10, 28 February 2001, 
DSR 2001:V, 2031 
Canada – Pharmaceutical Patents  Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical 
Products – Arbitration under Article 21.3(c) of the DSU , WT/DS114/13, 
18 August 2000, DSR 2002:I, 3 
Chile – Price Band System  Award of the Arbitrator, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) 
of the DSU , WT/DS207/13, 17 March 2003 
EC – Hormones  Award of the Arbitrator, EC Measures Concerning Meat and Meat 
Products (Hormones) – Arbitration under Article 21.3(c) of the DSU , 
WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 
EC – Tariff Preferences  Award of the Arbitrator, European Communities – Conditions for the 
Granting of Tariff Preference s to Developing Countries  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS246/14, 20 September 2004 
Japan – Alcoholic Beverages II  Award of the Arbitrator, Japan – Taxes on Alcoholic Beverages – 
Arbitration under Article 21.3(c) of the DSU , WT/DS8/15, WT/DS10/15, 
WT/DS11/13, 14 February 1997, DSR 1997:I, 3 
Korea – Alcoholic Beverages  Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – 
Arbitration under Article 21.3(c) of the DSU , WT/DS75/16, WT/DS84/14, 
4 June 1999, DSR 1999:II, 937 
US – 1916 Act  Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – 
Arbitration under Article 21.3(c) of the DSU , WT/DS136/11, WT/DS162/14, 
28 February 2001, DSR 2001:V, 2017 
US – Hot-Rolled Steel  Award of the Arbitrator, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of 
the DSU , WT/DS184/13, 19 February 2002 
US – Offset Act  
(Byrd Amendment ) Award of the Arbitrator, United States – Continued Dumping and Subsidy 
Offset Act of 2000 – Arbitration under Article 21.3(c) of the DSU , 
WT/DS217/14, WT/DS234/22, 13 June 2003 
US – Section 110(5) Copyright Act  Award of the Arbitrator, United States – Section 110(5) of the US Copyright 
Act – Arbitration under Article 21.3(c) of the DSU , WT/DS160/12, 
15 January 2001, DSR 2001:II, 657 
  WT/DS268/12 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
AWARD OF THE ARBITRATOR  
 
 United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina 
 Parties: 
 
Argentina 
United States 
  ARB-2005-1/18 
  Arbitrator:  
 A.V. Ganesan 
 
  
I. Introduction 
1. On 17 December 2004, the Dispute Settlement B ody (the "DSB") adopted  the Appellate Body 
Report
1 and the Panel Report2, as modified by the Appellate Body Report, in  United States – Sunset 
Reviews of Anti-Dumping Measures on Oil Country Tubular Good s from Argentina  ("US – Oil Country 
Tubular Goods Sunset Reviews ").3  At the DSB meeting of 14 January 2005, the United States 
indicated its intention to implement the recommendati ons and rulings of the DSB in this dispute and 
stated that it would require a reasonable period of time in which to do so.4 
2. On 11 March 2005, Argentina informed the DSB th at consultations with the United States had 
not resulted in an agreement on the reasonable pe riod of time for implementation.  Argentina 
therefore requested that such period be determined by binding arbitration, pursuant to Article 21.3(c) 
of the  Understanding on Rules and Procedures Go verning the Settlement of Disputes   (the "DSU").5  
Subsequently, on 16 March 2005, Argentina and the United States communicated to the DSB their agreement that the award of the arbitrator made wi thin 60 days after the date of appointment of the 
arbitrator shall be deemed to be an arbitr ation award under Article 21.3(c) of the DSU, 
notwithstanding the expiry of the 90-day period stipulated in Article 21.3(c).
6 
                                                      
1Appellate Body Report, WT/DS268/AB/R. 
2Panel Report, WT/DS268/R and Corr. 1. 
3WT/DS268/8. 
4WT/DSB/M/181, para. 10. 
5WT/DS268/9. 
6WT/DS268/10.  The 90-day period following adoption of the Panel and Appellate Body Reports 
expired on 17 March 2005. WT/DS268/12 
Page 2  
 
3. On 22 March 2005, Argentina advised the Director-General in writing that Argentina and the 
United States had been unable to agree on an arbitr ator.  Argentina therefore requested the Director-
General to appoint an arbitrator pursuant to footnot e 12 to Article 21.3(c) of the DSU, which provides 
for the Director-General to do so "within 10 days, after consulting the parties".  However, before the 
Director-General had completed consultations with  the parties, Argentina and the United States 
agreed on the selection of an arbitrator and, by a joint letter dated 30 March 2005, Argentina and the 
United States requeste d me to act as the arbitrator in this ma tter.  On 8 April 2005, I informed Argentina 
and the United States in writing of my acce ptance of the appointment as the arbitrator
7 and confirmed 
that I would issue my award no later than 7 June  2005, that is, no later than 60 days after my 
appointment as the arbitrator on 8 April 2005. 
4. The United States and Argentina provided their wr itten submissions to me on 22 April 2005.  
An oral hearing with them was held on 18 May 2005.   
II. Arguments of the Parties 
A. United States 
5. The United States requests that I determine the "reasonable period of time" for 
implementation of the recommendations  and rulings of the DSB in this dispute to be 15 months from 
the date of adoption by the DSB of the Panel a nd Appellate Body Reports , ending on 17 March 2006.8 
6. According to the United States, in order to comply with the relevant recommendations and 
rulings, the United States Department of Commerce (the "USDOC") would ha ve to first amend the 
waiver provisions of its regulations.  Once these amended regulations have been issued, the USDOC 
would begin the process of making a new determinati on of likelihood of  continuation or recurrence of 
dumping in the sunset review regarding oil country tubular goods from Argentina.  The USDOC submits that it cannot complete these two phases of implementation in parallel "because of the impact 
of the WTO-inconsistent waiver provisions on the order-wide likelihood determination".
9  I n  t h i s  
regard, the United States highlights the fact that the Panel in the present dispute "expressly declined" 
to recommend how the United States should implement the recommendations and rulings of the DSB.
10  In any case, the United States argues that previ ous arbitration awards confirm that it is for the 
                                                      
7WT/DS268/11. 
8United States' submission, paras. 3 and 27. 
9Ibid., para. 9 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
supra , footnote 1,  paras. 234 and 260;  and Panel Report, US – Oil Country Tubular Goods Sunset Reviews , 
supra , footnote 2,  paras. 7.101 and 7.222).  See also ibid., para. 3.   
10Ibid., para. 13 (referring to Panel Report, US – Oil Country Tubular Goods Sunset Reviews , supra , 
footnote 2,  paras. 8.3 and 8.5).  WT/DS268/12 
 Page 3 
 
 
implementing Member to decide the means of  implementation, including the sequence of 
implementing steps.11  
7. Beginning with the first phase of implementation,  the United States contends that it will take 
approximately nine months for the US DOC to publish a new rule in the  United States Federal 
Register  (the " Federal Register ").  The United States submits that this phase, which is governed by 
section 123 of the Uruguay Round Agreements Act, comprises the following steps: 
(a) the first three months will involve consultations between:  the United States Trade 
Representative (the "USTR") and the USDOC;  the USTR and the United States Congress;  and the USTR and certain private sector advisory committees.  These consultations are already underway:  the U STR and the USDOC have consulted;  the 
USTR and Congress have consulted;  and th e USTR is consulting with the advisory 
committees.  This three-month period will end with the USTR submitting a report to 
Congress describing the proposed rule, the r easons for the proposed rule and the 
advice provided by private sector advisory committees.  The USTR has already begun to prepare this report;  
(b) the USDOC will then need three months to complete the preparatory steps for, and to 
publish the proposed rule in, the  Federal Register .  Prior to publication, the USDOC 
must circulate the proposed rule for intern al approval, modify it as a result of the 
USTR consultations with Congress and private sector advisory committees, and seek 
approval for publication of the proposed ru le from the Office of Management and 
Budget (the agency with oversight for agency rule-making);  and 
(c) after the publication of the proposed rule, the USDOC will need a further three 
months to prepare for and publish the final rule in the  Federal Register .  Before 
publication, the USDOC will need to a ddress public comments on the proposed rule 
and the USTR will hold final consultati ons with Congress.  The United States 
explains that the final rule must not go into  effect before the end of the 60-day period 
beginning on the date when consultations  with Congress on the final rule began, 
unless the President determines that an earlier effective date is in the national 
interest.
12 
                                                      
11United States' submission, para. 13 (referring to Award of the Arbitrator, Australia – Salmon , 
para. 35;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 52). 
12Ibid., paras. 4, 8, 15, and 18-20 (referring to section 123 of the Uruguay Round Agreements Act, 
codified as 19 U.S.C. §3533 (Exhibit US-1 attached to the United States' submission)). WT/DS268/12 
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8. As for the second phase of implementation, the United States submits that it will take six 
months for the USDOC to issue a new likelihood determ ination in the sunset review at issue.  The 
United States argues that this phase, which is governed by section 129 of the Uruguay Round 
Agreements Act, involves the following steps: 
(a) during the first month, consultations w ill be held between the USTR and the USDOC, 
and between the USTR and Congress;   
(b) during the following two months, the USDOC will prepare questionnaires for 
interested parties and review responses befo re issuing a preliminary redetermination; 
(c) interested parties will have one month to submit comments to the USDOC on the 
preliminary redetermination.  This may in clude a hearing, in appropriate case;   
(d) the USDOC will then have one month to address the comments of interested parties 
before issuing its final redetermination;  and  
(e) an additional month will be required for th e USTR to review the final redetermination 
and for consultations to be held between the USTR and the USDOC, and between the 
USTR and Congress.  Depending on the circumstances, the USTR may instruct the 
USDOC to implement the final redetermination and to notify the public of the 
implementation by publishing it in the  Federal Register .
 13 
9. The United States indicates that, during the c ourse of the second phase of implementation, the 
USTR will formally request the USDOC to issue a redetermination to "render [its] actions not 
inconsistent"14 with the relevant panel or Appellate Body  findings.  The USDOC will have 180 days 
from this request to issue a new determination.  Th e United States adds that, "[i]n practice, USTR has 
sometimes delayed transmitting that request until just  before [the USDOC] indicated informally that it 
was ready to issue a new determination".15 
10. The United States argues that the time required to  carry out these procedural steps in the two 
phases of implementation demonstrates the need for a 15-month implementation period in this 
dispute.  In particular, the USTR must seek input from various bodies and interested parties 
throughout the implementation process.  The United St ates indicates that previous arbitrators have 
recognized the importance of such consultations an d have allowed sufficient time for them to take 
                                                      
13United States' submission, paras. 4, 16, and 21-26 (referring to section 129 of the Uruguay Round 
Agreements Act, codified as 19 U.S.C. §3538 (Exhibit US-2 attached to the United States' submission)). 
14Ibid., para. 16.  
15Ibid., footnote 29 to para. 16.  WT/DS268/12 
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place.16  In the second phase, the USDOC al so needs sufficient time to en sure that it complies with its 
obligations of transparency and due process under Articles 6 and 12 of the  Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994   (the " Anti-
Dumping Agreement ").  The United States argues that, in accordance with previous arbitration 
awards, this should include time to obtain and an alyze information from interested parties, even 
though this is not expressly requi red by statute or regulation.17 
11. For these reasons, the United States contends that a period of 15 months, ending on  
17 March 2006, is a reasonable period of time for it to implement the recommendations and rulings  
of the DSB in this dispute.   
B. Argentina 
12. Argentina requests that I determine the "reasona ble period of time" for implementation of the 
recommendations and rulings of the DSB in this dis pute to be seven months from the date of adoption 
by the DSB of the Panel and Appellate  Body Reports, ending on 17 July 2005.18 
13. Argentina highlights three "particular circumstanc es" of this dispute that it regards as relevant 
to the determination of the reasonabl e period of time pursuant to Article  21.3(c) of the DSU.  The first 
relates to the nature of one of the provisions of the  Anti-Dumping Agreement   with which the 
United States has been found to have acted in consistently, namely, Article 11.3 of the  Anti-Dumping 
Agreement   dealing with "sunset" reviews of anti-dumpi ng duties.  Article 11.3 contains a temporal 
element in that it requires Members to terminate anti-dumping duties not later than five years after they are  imposed .  In this dispute, approximately five y ears have passed after the date by which the 
United States was required to  terminate   the duties.  According to Arge ntina, this reinforces the need 
for "[p]rompt compliance" in accordance with Article 21.1 of the DSU.   
14. Secondly, the United States has invoked the exception in Article 11.3, whereby a Member 
may continue the anti-dumping duty beyond five years if its authorities have made a specific determination in a review that comp lies with certain "exacting conditions".
19  The DSB has ruled  
                                                      
16United States' submission, para. 10 (referring to Awards of the Arbitrators in  Canada – Autos   and 
Canada – Pharmaceutical Patents ). 
17Ibid., para. 12 (referring to Award of the Arbitrator , EC – Tariff Preferences , para. 42). 
18Argentina's submission, para. 1. 
19Ibid., para. 4. WT/DS268/12 
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invalid the United States' invocation of the "exception".
20  Therefore, the question in this dispute is 
simply how much time the United States needs to comply with the "rule"21 in Article 11.3, namely, 
the termination of the duties.   
15. Thirdly, the primary inconsistency of the United States' measures,  as applied ,  in the sunset 
review at issue is "the lack of positive evid ence supporting [the USDOC's] determination that 
dumping would be likely".22  This inconsistency is separate from the "as such" violations of the 
United States law and regulations.  Modifying the la w and regulations to addr ess the inconsistency of 
the waiver provisions, and then applying the modifi ed law and regulations to  this sunset review, 
would not cure this primary "as applied" inconsis tency, because "the record evidence developed by 
[the USDOC] at the time of the Article 11.3 re view could not then, and cannot now, support [the 
USDOC's] likely dumping determination".23  Argentina therefore argues that I should not determine 
the reasonable period of time on the basis of this sequence of implementation, which cannot lead to 
compliance.  Rather, in the present case, the amount of time required to implement the recommendations and rulings of the DSB with respect  to the USDOC's likelihood determination in the 
sunset review at issue is simply the amount of  time required to withdraw the underlying anti-dumping 
duty order.
24  The United States need not wait until it h as amended its law and regulations before 
addressing this administrative "as appl ied" violation.  In this regard , Argentina refers to a previous 
arbitration award that recognized that an implemen ting Member can take administrative steps towards 
implementation at the same time as legislative steps.25   
16. In relation to the sequence of implementati on, Argentina refers to the methods of 
implementation followed by the United States in certain disputes.  Argentina points out that in  United States – Anti-Dumping Measures on C ertain Hot-Rolled Steel Products from Japan
26 and 
United States – Countervailing Measures Conc erning Certain Products from the European 
Communities27, the United States first amended the inconsiste nt regulations and then applied the new 
regulations to the specific proceedings at issue.  Ho wever, "there is no basis in U.S. law for such a 
                                                      
20Argentina's submission, para. 4. 
21Ibid. 
22Ibid., para. 5. 
23Ibid., para. 53. 
24Ibid., para. 36. 
25Ibid., para. 29 (referring to Award of the Arbitrator, US – Hot-Rolled Steel , para. 32). 
26Appellate Body Report, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697;  Panel 
Report, WT/DS184/R, adopted 23 August 2001, as modified by the Appellate Body Report, WT/DS184/AB/R, 
DSR 2001:X, 4769. 
27Appellate Body Report, WT/DS212/AB/R, adopted 8 January 2003;  Panel Report, WT/DS212/R, 
adopted 8 January 2003, as modified by the Appellate Body Report, WT/DS212/AB/R.  WT/DS268/12 
 Page 7 
 
 
position".28  On the contrary, United States law contemplates the issuance of a new determination that 
is not inconsistent with the rele vant recommendations and rulings of  the DSB.  Moreover, in those 
two cases, the "as applied" violation resulted from th e application of a law or regulation that was "as 
such" inconsistent with WTO obligatio ns.  This is not the case in this dispute.  Instead, "fix[ing] the 
'as such' violations first and then apply[ing] the amended waiver provisi ons would not cure the 
principal 'as applied' violation" in  this dispute, which, according to Argentina, is "the lack of any 
evidence supporting [the USDOC]'s likelihood determination."29  Argentina argues that a case more 
similar to this one is  United States – Counterva iling Duties on Certain Corrosion-Resistant Carbon 
Steel Flat Products from Germany30, where the United States simply revoked the inconsistent 
countervailing duty order under the "c hanged circumstances" provisions of the United States law.   
17. Argentina also raises certain general considerations that it regards as relevant in this 
arbitration proceeding.  According to Argentin a, the implementing Member bears the burden of 
demonstrating that the implementation period it proposes is the shortest period possible under the 
legal system of the implementing Member.31  In addition, that Member must take steps towards 
implementation as soon as the DSB adopts the relevant  reports.  Argentina points out that the United 
States was aware of the recommendations and ru lings of the DSB regarding the "as applied" 
violations well before their adoption by the DS B on 17 December 2004, because it did not appeal the 
Panel's findings in this regard.  Argentina further submits that if I find that the United States did not begin the compliance process upon adoption of the Pa nel and Appellate Body reports by the DSB, 
then I should take this "dilatory conduct" into account in determining the reasonable period of time.
32  
Argentina also emphasizes that the United States must use the flexibility and discretion available in its 
legislative system to comp ly as quickly as possible.  
18. Turning to the implementation process, Argen tina maintains that the United States  can, 
simultaneously, over a single seven-month period:  revoke the inconsistent USDOC determination in 
the sunset review at issue;  amend the Tari ff Act of 1930;  and amend the relevant USDOC 
regulations.  Argentina submits that the United States can revoke the anti-dumping order at issue 
either under the "changed circumstances" provisions  of United States law or under section 129(b) of 
                                                      
28Argentina's submission, para. 46. 
29Ibid., para. 47. 
30Appellate Body Report, WT/DS213/AB/R and Corr.1, adopted 19 December 2002;  Panel Report, 
WT/DS213/R and Corr.1, adopted 19 December 2002, as modified by the Appellate Body Report, WT/DS213/AB/R and Corr.1.  
31Argentina's submission, paras. 18-20 (referring to Award of the Arbitrator,  EC – Hormones , para. 26;  
Award of the Arbitrator, Canada – Pharmaceutical Patents , para. 47;  and Award of the Arbitrator, US – Offset 
Act (Byrd Amendment) , para. 44). 
32Ibid., paras. 23 and 56 (quoting Award of the Arbitrator, Chile – Price Band System , para. 43). WT/DS268/12 
Page 8  
 
the Uruguay Round Agreements Act.
33  Section 129(b) imposes no specific time frames for 
implementation, apart from requiring that the USDO C render a new determination within 180 days of 
a request by the USTR to do so.  Argentina contends  that the United States should use this flexibility 
to complete implementation quickly.  Argentin a also points out that amendments to USDOC 
regulations are governed by section 123(g)  of the Uruguay Round Agreements Act.34  Under this 
provision, a 60-day consultation peri od is required before a final rule goes into effect, unless the 
President determines that an earlier date is in  the national interest.  Argentina states that 
section 123(g) provides the United States with significan t flexibility.  In sum, Argentina argues that 
"[t]here are no constitutional or other legal impedi ments to U.S. implementation" within a short 
period of time.35 
19. Argentina also considers that I should take into account, in making my determination, the fact 
that Argentina is a developing country complainant.36  In particular, Argentina declares that 
"Argentina, a developing country Member, continues to suffer impaired access to the U.S. market 
because of the WTO-inconsistent U.S. measures".37  Argentina also points out that, unlike in the 
arbitration in  Chile – Price Band System , the implementing Member in this dispute is not a 
developing country Member. 
20. Finally, Argentina identifies some considera tions that it regards as irrelevant to the 
determination of the reasonable period of time, in particular, the internal practices of the United States 
Congress.  Therefore, Argentina argues that I shoul d not take into account the time required for the 
United States to implement broader legislative cha nges, such as in an Omnibus Trade Bill combining 
a large number of trade measures38, or the fact that Congress usually passes a large number of bills at 
the end of each legislative session.39  In addition, Argentina maintains that "extraneous 
considerations" such as the contentiousness of th e compliance process are irrelevant, and additional 
time should not be granted on that basis for ex tended consultations with interested parties.40  
                                                      
33Argentina's submission, para. 50;  19 U.S.C. §3538(b) (Exhibit ARG-1 attached to Argentina's 
submission). 
34Argentina's submission, para. 64;  19 U.S.C. §3533(g) (Exhibit ARG-3 attached to Argentina's 
submission). 
35Argentina's submission, para. 71. 
36Ibid., paras. 31-32 and 78-80 (referring to Award of the Arbitrator, Chile – Price Band System , 
paras. 55-56). 
37Ibid., para. 78. 
38Ibid., paras. 30 and 73-74 (referring to Award of the Arbitrator, EC – Tariff Preferences , para. 31). 
39Ibid., para. 75 (referring to Award of the Arbitrator, US – 1916 Act , para. 38). 
40Ibid., paras. 76-77.  WT/DS268/12 
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21. For these reasons, Argentina contends that a peri od of seven months, ending on 17 July 2005, 
is a reasonable period of time for the United Stat es to implement the recommendations and rulings of 
the DSB in this dispute.   
III. Reasonable Period of Time 
A. General Principles 
22. Pursuant to Article 21.3(c) of the DSU, my task as arbitrator in this case is to determine the 
"reasonable period of time" for the United States to  implement the recommendations and rulings of 
the DSB in  US – Oil Country Tubular Goods Sunset Reviews.41  As the Panel and Appellate Body 
Reports relating to this dispute were adopted  by the DSB on 17 December 2004, the "reasonable 
period of time" will be calculated as from that date. 
23. Article 21.3(c) of the DSU provides that, when the "reasonable period of time" is determined 
through arbitration: 
… a guideline for the arbitrator should be that the reasonable period 
of time to implement panel or Appellate Body recommendations 
should not exceed 15 months from the date of adoption of a panel or Appellate Body report.  However, th at time may be shorter or longer, 
depending upon the particular circumstances. (footnote omitted) 
24. Prior to examining the factual situation in this  dispute, I wish to highlight certain general 
principles that have been followed in previous arb itrations under Article 21.3(c)  and that are pertinent 
to the determination of the "reasonable period of time" in this dispute. 
25. First, the "reasonable period of time" under Artic le 21.3(c) should be "the shortest period 
possible within the legal system of the Member to implement the relevant recommendations and rulings of the DSB", in the light of the "particular circumstances" of the dispute.
42  Both the United 
States and Argentina are in agreemen t with this general principle.  
26. Secondly, the nature of the steps to be taken for implementation has a bearing on the 
"reasonable period of time" required to fully implemen t the recommendations and rulings of the DSB.   
The implementation may require amendments to laws  or regulations that may involve legislative 
action, or it may require amendments to administra tive guidelines or procedures that may not involve 
such action.  Implementation may also involve only the remedying of the deficiencies in a particular 
                                                      
41See WT/DS268/11.  
42Award of the Arbitrator, Chile – Price Band System , para. 34 (quoting Award of the Arbitrator,  US – 
1916 Act , para. 32).  See also Award of the Arbitrator, EC – Hormones , para. 26;  and  Award of the Arbitrator, 
EC – Tariff Preferences , para. 26. WT/DS268/12 
Page 10  
 
determination.  Previous arbitration awards under Article 21.3(c) have recognized that when 
implementation requires legislative action, the "r easonable period of time" required may be longer 
than in cases where only administrative action is required to amend guidelines or procedures or to 
remedy the deficiencies in particular determinations.
43  It is, however, not for the arbitrator under 
Article 21.3(c) to prescribe a particular method of  implementation and to determine the "reasonable 
period of time" on the basis of that method.44 
27. Thirdly, whatever be the method of implem entation chosen by the implementing Member, 
that Member must take advantage of the flexib ility and discretion available within its legal and 
administrative system to implement the recommend ations and rulings of the DSB as speedily as 
possible.45 
28. Fourthly, as the text of Article 21.3(c) mak es clear, the "particular circumstances" of each 
case must be taken into account in determining the "reasonable period of time" for implementation.   
The United States and Argentina are not in agreemen t, however, as to what constitutes the "particular 
circumstances" in this dispute within the meaning of Article 21.3(c). 
29. Argentina argues that I should take into account, as one of the "particular circumstances", the  
nature of the provisions   of the WTO agreement that the Un ited States has been found to have 
violated in the underlying dispute.  That violatio n pertains to a "sunset review" determination as 
envisaged under Article 11.3 of the  Anti-Dumping Agreement .  Article 11.3 requires Members to 
terminate anti-dumping duties not later than five years after they are  imposed .  This is the "rule", and 
the continuation of the anti-dumping duties beyond five  years, after a sunset review, is an "exception" 
that must fulfil "exacting conditions".46  Argentina observes that, in this case, approximately five 
years have passed since the date by which the United States was required to  terminate   the duties.   
Argentina argues that, as the United States' "invoca tion" of the "exception" to the "rule" of 
Article 11.3 has been found to be "invalid", the "s ole issue ... is the amount of time required under 
U.S. law to withdraw the antidumping duty order".47 
                                                      
43See Award of the Arbitrator, Canada – Pharmaceutical Patents , para. 49;  Award of the Arbitrator, 
Chile – Price Band System , para. 38;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 57. 
44See, for example, Award of the Arbitrator, Korea – Alcoholic Beverages , para. 45;  Award of the 
Arbitrator, US – 1916 Act , para. 36;  Award of the Arbitrator, Chile – Price Band System , para. 32;  Award of the 
Arbitrator, US – Offset Act (Byrd Amendment ), para. 48;  and Award of the Arbitrator, EC – Tariff Preferences , 
para. 30.   
45See Award of the Arbitrator,  Canada – Patent Term , paras. 63 and 64;  and Award of the Arbitrator, 
US – Offset Act (Byrd Amendment) , para. 64 (referring to Award of the Arbitrator, US – Section 110(5) 
Copyright Act , para. 39 and Award of the Arbitrator, US – 1916 Act , para. 39). 
46Argentina's submission, para. 4. 
47Ibid., paras. 4 and 36.  WT/DS268/12 
 Page 11 
 
 
30. The United States, in contrast, argues that the relevant "particular circumstances" in this 
dispute cannot include the nature of the specific provision at issue in the underlying proceeding, 
namely, Article 11.3 of the  Anti-Dumping Agreement .  Nor can they include the particular method of 
implementation proposed by Argentina, namely, th e revocation of the anti-dumping duty order, or the 
consideration that the termination of the duty is the "rule" and its continuation is an "exception" under 
Article 11.3.  Rather, "the particular circumstances"  that previous arbitrators have taken into account 
include the legal form of implementation, the t echnical complexity of the necessary measures to be 
adopted and implemented, and the period of time in which the implementing Member can achieve the 
proposed form of implementation within its legal system.48  Thus, the relevant "particular 
circumstances" in this dispute are the amount of  time the United States needs to complete the 
domestic procedures that would fully implement the DSB recommendations and rulings, taking into 
account the fact that the USDOC is required to  amend the "waiver provisions" of the USDOC 
Regulations49 found to be WTO-inconsistent "as such".  The United States emphasizes that the 
USDOC will not be in a position to begin the process of  issuing a redetermination in respect of the "as 
applied" violation until its modifi ed regulations are effective, b ecause of the Panel and Appellate 
Body findings on "the impact of the WTO-inconsistent waiver provisions on the order-wide 
likelihood determination."50 
31. Lastly, I note that Argentina argues that th e implementing Member—in this case, the United 
States—bears the burden of demonstrating that the period it proposes—in this case, 15 months—is the 
"shortest period possible" to bring its measures in to conformity with the relevant recommendations 
and rulings of the DSB.51  The United States responds that it has discharged this burden as it has 
demonstrated in detail both the specific steps needed to implemen t the recommendations and rulings 
of the DSB and the time needed to comply with those steps, emphasizing that, within its legal 
framework, the amendment of the USDOC Regula tions and the application of the amended 
regulations to the redete rmination must be done in seriatim .   
32. With these considerations in mind, I turn now to  an examination of the facts of this case. 
                                                      
 48United States' statement at the oral hearing;  United States' submission, para. 7 (referring to Award of 
the Arbitrator, Japan – Alcoholic Beverages II , para. 12 and Award of the Arbitrator,  Canada – Pharmaceutical 
Patents , paras. 49-51). 
49The "USDOC Regulations", as they relate to sunset reviews, are found in Procedures for Conducting 
Five-year ("Sunset") Reviews of Anti dumping and Countervailing Duty Orders, United States Federal Register , 
Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by the United States to the Panel), codified 
in Title 19, section 351.218 of the United States Code of Federal Regulations . 
 50Supra , footnote 9.  
51Argentina's submission, paras. 19 and 34.  WT/DS268/12 
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B. The Recommendations and Rulings of the DSB to be Implemented 
33. In this dispute, the United States is required to bring the following three measures, found in 
the Panel Report, as modified by the Appellate Body Report, to be inconsistent with the  Anti-
Dumping Agreement ,  into conformity with its obl igations under that Agreement: 
(a) the USDOC's determination of likelihood of continuation or recurrence of dumping 
(the "likelihood-of-dumping determination" ) made with respect to imports of oil 
country tubular goods from Argentina, whic h was found to be inconsistent with 
Article 11.3 as well as Article 6.2 of the  Anti-Dumping Agreement   (the "as applied" 
violation);  
(b) the "waiver provisions" of section 751(c)(4)(B) of the Tariff Act of 1930 and 
section 351.218(d)(2)(iii) of the USDOC Regulations, which were found to be 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement ("as such" 
violation);  and   
(c) the "deemed waiver provision" of section 351.218(d)(2)(iii) of the USDOC 
Regulations, which was found to be inconsiste nt, as such, with Articles 6.1 and 6.2 of 
the  Anti-Dumping Agreement  with respect to respondents that file incomplete 
submissions ("as such" violation). 
34. With respect to the "as applied" violation mentioned above, both parties agree that the 
likelihood-of-dumping determination underlying this dispute is the "order-wide likelihood 
determination" by the USDOC that "revocation of  the antidumping duty orders on oil country tubular 
goods from Argentina ... would likely lead to con tinuation or recurrence of dumping" that was 
published in the  Federal Register   on 7 November 2000.
52 
C. The Means of Implementation 
35. With respect to the "as such" violations described above53, it is not in dispute that, in order to 
implement the relevant recommendati ons and rulings of the DSB in  US – Oil Country Tubular Goods 
Sunset Reviews ,  the United States is required to amend the USDOC Regulations.  At the oral hearing, 
                                                      
52USDOC, Final Results of Expedited Sunset Reviews:  Oil Country Tubular Goods from Argentina, 
Italy, Japan, and Korea, United States Federal Register , Vol. 65, No. 216 (7 November 2000) p. 66701 at 66703 
(Exhibit ARG-46 submitted by Argentina to the Panel).  Duri ng the oral hearing, the United States clarified that 
although the order-wide determination includes countries other than Argentina, it is a combination of the 
determinations made with respect to each country and, so far as this dis pute is concerned, the determination 
made with respect to Argentina could be dealt with separately. 
53See supra , paras. 33(b) and 33(c).   WT/DS268/12 
 Page 13 
 
 
the United States confirmed that it "intends to address the DSB's recommendations and rulings 
concerning the waiver provision in the statute (sec tion 751(c)(4)(B) of the Tariff Act of 1930) through 
modification of its regulations."54  With respect to the "as a pplied" violation described above55, there 
is, however, a disagreement between the parti es as to whether the USDOC can make a "new 
determination" or a "redetermination"56 of the likelihood of continuation or recurrence of dumping in 
the underlying sunset review without first issuing ame nded regulations that are in conformity with the  
Anti-Dumping Agreement .  
36. Argentina argues that the "principal" inconsiste ncy that the Panel found with respect to the 
underlying likelihood-of-dumping dete rmination was that it "was not based on positive evidence";  
that is to say, there was no "evidentiary basis" to support the USDOC's likelihood-of-dumping determination.
57  According to Argentina, amending the waiv er provisions and then applying them to 
a new determination cannot "remedy the absen ce of positive evidence of likely dumping".58  
Argentina submits, therefore, that a "shorter opti on" for implementation of the recommendations and 
rulings of the DSB in this dispute is to "conduct an administrative proceeding  without  applying the 
waiver provision, or  without  allowing it to affect the country-wide determination based on the facts 
of this case."59  In sum, Argentina contends that there is  no basis for the United States' assertion that 
implementation requires an  in seriatim   approach.60 
37. The United States argues, in contrast, that the Panel's finding that the likelihood-of-dumping 
determination was inconsistent  with Article 11.3 of the  Anti-Dumping Agreement   was based on two 
grounds:  first, one of the factual bases of the USDOC's affirmative determination, namely, that 
dumping by Argentine exporters continued over th e life of the measure, was not proper; and, 
secondly, in reaching this determination, the US DOC applied to Argentine exporters other than 
Siderca the waiver provisions of United States law that the Panel found to be inconsistent, as such, 
with Article 11.3 of the  Anti-Dumping Agreement .  With respect to the first ground, the United States 
emphasizes that the Panel's conclusion was based not on a finding "that there was a lack of any 
evidence in support of the affirmative determinati on", but rather on a finding that the USDOC "did 
not have sufficient grounds for finding that dumpi ng had continued over the life of the order".61  With 
                                                      
54United States' submission, footnote 7 to para. 3.  
55See supra , para. 33(a).  
56The United States explained at the oral hearing that, in order to make this new determination or 
redetermination, it would "reassess the evidence" on the reco rd and "seek clarification" from interested parties.  
57Argentina's submission, paras. 5, 9, 47, 48, and 58. 
58Argentina's statement at the oral hearing.  
59Ibid. (original emphasis) 
60Ibid. 
61United States' statement at the oral hearing. WT/DS268/12 
Page 14  
 
respect to the second ground, the United States points out that the application of WTO-inconsistent 
waiver provisions in the underlying sunset revi ew determination cannot be remedied without 
amending the USDOC Regulations.  The United States submits that Argentina's arguments are based 
on its assumption that the only way for the United Stat es to cure the "as applie d" violation in this case 
is by revoking the anti-dumping duty order in its en tirety.  According to the United States, it is, 
however, for the implementing Member to decide the most appropriate way of bringing an impugned 
measure into conformity with its oblig ations under a covered agreement.  
38. In response to questioning at the oral h earing as to why the process of reassessing the 
evidence on record for a factual determination by the USDOC to remedy the "as applied" violation 
and the process of amending the USDOC Regulations  to remedy the "as such" violations cannot 
proceed in parallel, the United States argued that it w ould be "getting into legally murky waters" if it 
were to make a redetermination based on the ex isting regulations that were found to be WTO-
inconsistent, or if it began the process of making the redetermination based on existing regulations, 
amended the regulations "mid-str eam", and then applied the ame nded regulations to the final 
determination.  The United States stressed in this  regard that both the Panel and the Appellate Body 
had found that the existing waiver provisions have an "impact ... on the order-wide likelihood 
determination".
62  When the USDOC issues new questionnaires in order to make a redetermination, 
there may well be Argentine "non-respondents", unknown to the USDOC now, and if the USDOC 
applies the existing waiver provisions to them, the redetermination could agai n be challenged as being 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement .  Thus, to comply fully with the 
recommendations and rulings of the DSB and to remedy  the "as applied" violation, the United States 
submits that it must first amend the waiver provi sions of the USDOC Regulations and then apply the 
amended regulations to the rede termination.  The United States emphasizes that this does not, 
however, mean that the USDOC would engage in a de novo   sunset review determination.63 
39. In response to questioning at the oral hear ing as to how the USDOC could engage in a 
redetermination without first amending the waiver provisions of the USDOC Regulations (given that 
the Panel's conclusion rests in part on the applicati on of the waiver provisions to Argentine exporters 
other than Siderca), Argentina acknowledged that th e United States is required to amend the waiver 
provisions of the USDOC Regulations.  However, in this case, because the underlying determination 
lacked a sufficient factual basis with respect to exports either by Siderca or by other Argentine 
exporters, it is open to the United States to make its redetermination without taking into account the 
waiver provisions.  Argentina further argued that, un der the facts of this cas e, with respect to "non-
                                                      
62Supra , footnote 9. 
63United States' response to questi oning at the oral hearing.   WT/DS268/12 
 Page 15 
 
 
respondent" Argentine companies, the United States has a "discretion" not to apply the "automatic 
assumption" of continuation of dumping, and instead to assign a "zero weight" to such companies.  
Argentina further observed that th e United States has the discretion under its law and regulations to 
determine, on a case-by-case basis, the amount of weight to assign to company-specific findings and how those findings impact upon a country-wide determin ation.  If the United States chose to exercise 
such discretion in this case, it would be left only w ith the factual evidence on record "as it stood at the 
time the [USDOC] invoked the excep tion from Article 11.3", and it could make the redetermination 
on that basis.  In Argentina's view, that would lead to a revocation of the anti-dumping duty order.  Argentina therefore contended that an in seriatim  approach was not necessary or required on the facts 
of this case. 
D. The Implementation Process 
40. I now turn to the arguments advanced by the United States in support of its position that it 
requires 15 months to complete the implementation process in this case.
64 
41. The United States submits that it requires 15 months because the implementation process 
needs to be carried out in two phases  in seriatim .  The United States explains the two phases as 
follows.  In the first phase, the USDOC will amend th e waiver provisions of it s regulations to bring 
them into conformity with the DSB's recommendati ons and rulings.  The United States has already 
begun the work in respect of this phase, which, acco rding to the United States, will take nine months 
to complete.  In the second ph ase, the USDOC will issue a new determination of likelihood of 
continuation or recurrence of dumpi ng that is consistent with the DSB's recommendations and rulings.  
According to the United States, this phase will take  six months, but the USDOC will not be able to 
begin this phase until the regulations are first amended and made effective.  
42. Explaining the United States statutory framework, the United States submits that "[t]here are 
two principle U.S. statutory provisions governing im plementation in this dispute – section 123 of the 
Uruguay Round Agreements Act, which governs im plementation involving a [USDOC] regulation, 
and section 129 of the Uruguay Round Agreements Ac t, which governs implementation involving an 
action by [the USDOC] in an antidumpi ng (or countervailing duty) proceeding".65   
                                                      
64United States' submission, para. 3. 
65Ibid., para. 14. (footnote omitted) WT/DS268/12 
Page 16  
 
43. According to the United States, the first a nd second phases of the implementation process 
require the specific procedural steps outlined above.
66  At the oral hearing, the United States explained 
that it expected to complete the section 123 pro cess by 17 September 2005.  Although this was "about 
a month and a half behind" the schedule for the firs t phase, the United States expected that it could 
"still make up the time" during the section 129 process for the second phase.   
44. Argentina argues that the United  States "can adopt a new regula tion within four months of a 
DSB ruling" because "there are no rules that limit th e speed at which regulatory amendments could be 
made in order for the United States to comply with its WTO obligations".67  According to Argentina, 
"there is only one provision of sec tion 123(g) that imposes any define d time limit", and this provision 
merely provides that a "final rule may not go into  effect before the end of the 60-day consultation 
period", but even this is "subject to an exception".68  In this regard, Argentina cites  United States – Anti-
Dumping Duty on Dynamic Random Access Memory  Semiconductors (DRAMS) of One Megabit or 
Above from Korea ("US – DRAMS ")69, in which the United States changed its regulation in six months 
and seven days, and put in place a new regulation five  weeks later, for a total implementation period of 
seven months and seventeen days. 
45. As regards the second phase of the implementati on process, Argentina contends that some of 
the activities outlined by the Unite d States, such as the issuance of original and supplemental 
questionnaires, verification of information, and i ssuance of a preliminary determination, are not 
warranted or required under United States law in a sun set review proceeding.  Argentina also submits 
that some of the other activities, such as determ ining what information is needed, reviewing and 
analyzing the comments received, and making a final determination, do not require the long time periods indicated by the United States.  Argentina also points out that it is open to the United States to conduct its section 129(b) dete rmination concurrently with the section 123(g) process.
70  Lastly, 
Argentina submits that the redetermination need ed in this case is "akin to the administrative 
proceeding [that the USDOC] conducts when other tr ibunals (such as a reviewing court or a [North 
American Free Trade Agreement ("NAFTA")] panel)  find a [USDOC] determination to be unlawful", 
and that "such tribunals often provide [the USDOC] only  30 or 60 days   to render a 
redetermination".71  In sum, Argentina argues that the six- month period proposed by the United States 
                                                      
66See supra , paras. 7 and 8. 
67Argentina's statement at the oral hearing. 
68Ibid. 
69Panel Report, WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521. 
70Argentina's statement at the oral hearing.  
71Ibid. (original emphasis)  WT/DS268/12 
 Page 17 
 
 
for the second phase cannot possibly be justified, and th at a redetermination could be done in this case 
in three months.72 
46. Responding to Argentina's citation of previous disputes, the United States submits that the 
facts in  US – DRAMS  were "very different" from those that ar e relevant to implementation in this 
dispute.73  With respect to implementation of decisi ons by NAFTA panels, the United States points 
out that "NAFTA applies US law", that a NAFTA ruli ng "is subject to US rules", and that this is not 
the case with WTO proceedings, which have the add itional procedural and transparency requirements 
set out in section 129 of the Uruguay Round Agreements Act.74 
E. Argentina as a Developing Country Member 
47. Both in its written submission, and during the or al hearing, Argentina referred to Article 21.2 
of the DSU, which provides:  
Particular attention should be paid to matters affecting the interests of 
developing country Members with respect to measures which have 
been subject to dispute settlement. 
48. Argentina suggests that, in determining the reasonable period of time in this case, I should 
take "cognizance of Argentina's continuing hardship as a developing country as long as the WTO-inconsistent U.S. measures are maintained."
75  Argentina clarified at the oral hearing that it was not 
suggesting that I should depart from the basic pr inciple that the "reasonable period of time" be 
determined on the basis of "the shortest period possible", but rather that Article 21.2 provides 
"context" for my determination of the "reasonable period of time" in this case.76  
F. Determination of "Reasonable Period of Time" 
49. As noted above, both parties agree with the general principle articulated in previous 
arbitration awards under Article 21.3(c) of the DS U that the "reasonable period of time" should be 
determined on the basis of the "shortest period possi ble within the legal system of the Member to 
implement the relevant recommenda tions and rulings of the DSB".77  Both parties also agree that the 
implementing Member must take advantage of the flexibility  and discretion available within its legal 
                                                      
72Argentina notes in this regard that the United States had proposed only a four-month period to issue a 
new determination in  US – Hot-Rolled Steel .  (Argentina's statement at the oral hearing) 
73United States' statement at the oral hearing.  
74United States' response to questi oning at the oral hearing.  
75Argentina's submission, para. 80.  
76Argentina's statement and response to questioning at the oral hearing.  
77See supra , para. 25 and footnote 42.   WT/DS268/12 
Page 18  
 
and administrative system to implement the recomme ndations and rulings of the DSB as speedily as 
possible.
78  During the oral hearing, Argentina agreed that it is for the implementing Member to 
choose the most appropriate method of implementati on and that it is not for the arbitrator under 
Article 21.3(c) of the DSU to prescribe a particular method of implementation.  But Argentina emphasized that, whatever be the method or process chosen by the implementing Member, the 
implementation must be carried out within the "shortest period possible" by the implementing 
Member, utilizing all the flexibility and discretion av ailable to it within its legal and administrative 
system to do so.   
50. The United States considers that the waiver provisions of the USDOC Regulations must first 
be amended to bring them into conformity with the DSB's recommendations and rulings, and that only 
after the amended regulations are i ssued could they be applied to a new determination to remedy the 
"as applied" violation in this dispute.  In this rega rd, I note two aspects of this dispute:  first, one of 
the reasons for the Panel finding the "as applied"  violation was that WTO-inconsistent waiver 
provisions were applied to Argentine exporters other than Siderca;  and, second, an amendment of the 
waiver provisions of the USDOC Regulations is in any event required to remedy the "as such" 
violations in this dispute.  The United States has explained why it considers an  in seriatim   approach 
to be necessary in this case to ensu re that the redetermination is in conformity with its own legal 
system.
79  Argentina does not question wh at the United States considers to be the requirements of its 
legal system, but emphasizes that the United St ates, as the implementing Member, bears the 
responsibility to exercise all flexibility and discretion available to it to remedy the WTO violations as 
rapidly as possible.80   
51. I further note that the United States agrees that some of the steps and the time periods 
indicated for them in its implementation process are not  required by law.  But they are needed for the 
implementation to be carried out in  a transparent and efficient manner.81  I also note that the United 
States agrees that some of the steps included in the two phases of implementation, such as 
consultations with Congress, can be carried out in a flexible or concurrent manner to save time, 
consistent, however, with the legal requireme nts of sections 123 and 129 of the Uruguay Round 
Agreements Act.82   
                                                      
78See supra , para. 27. 
79See supra , para. 38. 
80See supra , para. 39. 
81United States' response to questi oning at the oral hearing. 
82Ibid.  WT/DS268/12 
 Page 19 
 
 
52. As noted above, for my determination of the reasonable period of time, Argentina requests me 
to use as "context" the fact that Argentina is a developing country Member.83  Having regard to the 
implementation process involved in this dispute, I consider that, beyond the fundamental requirement 
that the implementation process should be completed in the shortest period possible within the legal 
and administrative system of the United States, the "reasonable period of time" for implementation is not affected by the fact that Argentina, as the complaining Member, is a developing country. 
IV. The Award 
53. In the light of what has been st ated above, I determine that the "reasonable period of time" for 
the United States to implement the recommendations and rulings of the DSB in this dispute is 
12 months from 17 December 2004, which was the date on which the DSB adopted the Panel and 
Appellate Body Reports.  The reasonable period of  time will therefore expire on 17 December 2005. 
                                                     
 
83See supra , para. 48. WT/DS268/12 
Page 20  
 
 
Signed in the original at Geneva this 27th day of May 2005 by: 
 
 
   
________________________ 
A.V. Ganesan 
Arbitrator