WORLD TRADE  
ORGANIZATION  WT/DS322/AB/RW 
18 August 2009 
 (09-3902) 
 Original:   English 
  
 
     
 
    
 
UNITED STATES – MEASURES RELATING TO ZEROING 
AND SUNSET REVIEWS 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY JAPAN 
   
AB-2009-2 
   
 
    
 
   
Report of the Appellate Body  WT/DS322/AB/RW 
 Page i 
 
 
  I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants  and Third Participants ..............................................................10  
A. Claims of Error by the United States – Appellant .......................................................10  
1. The Panel's Terms of Reference – Review 9 ................................................10  
2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8..........................................13  
3. The Panel's Findings on Reviews 4, 5, 6, and 9..............................................17  
4. Article II of the GATT 1994...........................................................................18  
B. Arguments of Japan – Appellee ...................................................................................19  
1. The Panel's Terms of Reference – Review 9 ................................................19  
2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8..........................................23  
3. The Panel's Findings on Reviews 4, 5, 6, and 9..............................................26  
4. Article II of the GATT 1994...........................................................................28  
C. Arguments of the Third Participants ............................................................................29  
1. European Communities...................................................................................29  
2. Korea...............................................................................................................32  
3. Mexico ............................................................................................................34  
4. Norway ...........................................................................................................37  
III. Issues Raised in This Appeal ................................................................................................... .39 
IV. The Panel's Terms of Re ference – Review 9 ............................................................................40  
A. Article 21.5 Proceedings ..............................................................................................41  
B. Claims and Arguments on Appeal ................................................................................43  
C. Analysis ........................................................................................................................45  
1. Whether Japan's Panel Request Meets the Requirement of Article 6.2 
of the DSU to "Identify the Specific Measures at Issue"................................45  
2. Whether Review 9 Was Properly Included in the Panel's Terms of 
Reference Even Though It Had Not Been Completed at the Time of Japan's Panel Request .....................................................................................53
 
V. Collection of Duties After the Expiration of the Reasonable Period of Time – 
Reviews 1 through 9 ............................................................................................................ .....58  
A. Introduction .................................................................................................................58  
B. Article 21.5 Proceedings ..............................................................................................59  
1. Reviews 1, 2, 3, 7, and 8.................................................................................59  
2. Reviews 4, 5, 6, and 9.....................................................................................63  
C. Claims and Arguments on Appeal ................................................................................65  
D. Analysis ........................................................................................................................67  
1. What Is the Scope and Timing of the Obligation to Comply with the 
DSB's Recommendations and Rulings?..........................................................67  WT/DS322/AB/RW 
Page ii  
 
  2.
 Is the Date of Importation the Re levant Parameter for Determining 
Compliance? ...................................................................................................69  
3. What Is the Relevance of Delays Resulting from Domestic Judicial Proceedings? ...................................................................................................76
 
4. Reviews 1, 2, 3, 7, and 8.................................................................................84  
5. Reviews 4, 5, and 6.........................................................................................85  
6. Review 9 .........................................................................................................88  
VI. Article II of the GATT 1994.................................................................................................... .88 
A. Introduction .................................................................................................................88  
B. Article 21.5 Proceedings ..............................................................................................89  
C. Claims and Arguments on Appeal ................................................................................92  
D. Analysis ........................................................................................................................93  
VII. Findings and Conclusions....................................................................................................... ..95 
 
 
ANNEX I Notification of an Appeal by the United States, WT/DS322/32 
 ANNEX II Procedural Ruling by the Appellate Body of 11 June 2009 to allow public  
  observation of the oral hearing   
  WT/DS322/AB/RW 
 Page iii 
 
 
  CASES CITED IN THIS REPORT 
 
Short Title Full case title and citation 
Australia – Salmon  
(Article 21.5 – Canada)  Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW, adopted 
20 March 2000, DSR 2000:IV, 2031 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affe cting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affec ting Imports of Retreaded 
Tyres , WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, 1527 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, 1649 
Canada – Continued 
Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R, adopted 14 November 2008 
Canada – Wheat Exports and 
Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, 2739 
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) 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R, adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 3127 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, 591 
EC – Bananas III (US)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by the United States , WT/DS27/R/USA, 
adopted 25 September 1997, as modified by Appellate Body Report 
WT/DS27/AB/R, DSR 1997:II, 943 
EC – Bananas III   
(Article 21.5 – Ecuador II) / 
EC – Bananas III   
(Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and 
Corr.1 / European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United 
States , WT/DS27/AB/RW/USA and Co rr.1, adopted 22 December 2008 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from I ndia – 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 – Chicken Cuts (Thailand) Panel Report, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts, Complaint by Thailand , WT/DS286/R, adopted 
27 September 2005, as modified by Appellate Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XX, 9721 WT/DS322/AB/RW 
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  Short Title Full case title and citation 
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 – Countervailing Measures 
on DRAM Chips Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R, adopted 
3 August 2005, DSR 2005:XVIII, 8671 
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, 3791 
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 
India – Additional Import 
Duties Appellate Body Report, India – Additional and Extra-Additional Duties on 
Imports from the United States , WT/DS360/AB/R, adopted 17 November 
2008 
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R, 
WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827 
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, 
adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201 
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports  
of Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-Alloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701 
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 – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
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 Suspension Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 
14 November 2008 
US – Continued Suspension Panel Report, United States – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS320/R, adopted 14 November 2008, as 
modified by Appellate Body Report WT/DS320/AB/R 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
US – FSC  
(Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
4721  WT/DS322/AB/RW 
 Page v 
 
 
  Short Title Full case title and citation 
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 
US – Oil Country Tubular 
Goods Sunset Reviews  
(Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods fr om Argentina – Recourse to Article 
21.5 of the DSU by Argentina , WT/DS268/AB/RW, adopted 11 May 2007, 
DSR 2007:IX, 3523 
US – Oil Country Tubular 
Goods Sunset Reviews  (Article 21.5 – Argentina) Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina , WT/DS268/RW, adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX-X, 3609 
US – Section 129(c)(1) URAA  Panel Report, United States – Section 129(c)(1) of the Uruguay Round 
Agreements Act , WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 2581 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, 2755 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 
20 December 2005, DSR 2005:XXIII, 11357 
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 
US – Superfund GATT Panel Report, United States – Taxes on Petroleum and Certain 
Imported Substances , L/6175, adopted 17 June 1987, BISD 34S/136 
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 – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, 
Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate 
Body Report WT/DS267/AB/R, DSR 2005:II, 299 
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 WT/DS322/AB/RW 
Page vi  
 
  Short Title Full case title and citation 
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) Panel Report, United States – Measures Relating to Zeroing and Sunset 
Reviews – Recourse to Article 21.5 of the DSU by Japan , WT/DS322/RW, 
circulated to WTO Members 24 April 2009 
  WT/DS322/AB/RW 
 Page vii 
 
 
  ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Ad Note  Interpretive Note to paragraphs 2 and 3 of Article VI of the 
GATT 1994  
Anti-Dumping Agreement Agreement on Implementati on of Article VI of the General Agreement 
on Tariffs and Trade 1994 
Customs United States Customs and Border Protection  
DSB Dispute Sett lement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
GATS General Agreement on Trade in Services 
GATT 1994 General Agreement on Tariffs and Trade 1994  
ILC Draft Articles Draft Articles on Responsibility of States for internationally wrongful 
acts, adopted by the International Law Commission at its fifty-third 
session (2001), annexed to the Un ited Nations General Assembly 
Resolution A/RES/56/83 (29 January 2002) 
original panel Panel in the original US – Zeroing (Japan)  proceedings 
original panel report Report of the panel in the original US – Zeroing (Japan)  proceedings, 
WT/DS322/R, 20 September 2006 
Panel Panel in these US – Zeroing (Japan) (Article 21.5 – Japan)  
proceedings 
Panel Report Report of the Panel in these US – Zeroing (Japan) (Article 21.5 – 
Japan) proceedings, WT/DS322/RW 
RPT Reasonable period of time, pursuant to Article 21.3 of the DSU  
SCM Agreement Agreement on Subsidies and Countervailing Measures  
USDOC United States Department of Commerce 
Vienna Convention  Vienna Convention on the Law of Treaties , done at Vienna, 
23 May 1969, 1155 UNTS 331;  8 In ternational Legal Materials 679 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 
2005 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Establishi ng the World Trade Organization   
   WT/DS322/AB/RW 
 Page 1 
 
 
  WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Measures Relating to Zeroing and 
Sunset Reviews 
 
Recourse to Article 21.5 of the DSU by Japan  
 United States, Appellant  
Japan, Appellee  
 China, Third Participant  
European Communities, Third Participant  
Hong Kong, China, Third Participant  
Korea, Third Participant  
Mexico, Third Participant 
Norway,  Third Participant  
Separate Customs Territo ry of Taiwan, Penghu,  
     Kinmen and Matsu, Third Participant  
Thailand, Third Participant   AB-2009-2 
  Present:  
 Sacerdoti, Presiding Member 
 Bautista, Member  Zhang, Member  
  
I. Introduction 
1. The United States appeals certain issues of law and legal interpretations developed in the 
Panel Report, United States – Measures Relating to Zero ing and Sunset Reviews – Recourse to 
Article 21.5 of the DSU by Japan  (the "Panel Report").
1  The Panel was established pursuant to 
Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes  (the 
"DSU") to consider a complaint by Japan con cerning the existence and consistency with the 
Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994 (the 
"Anti-Dumping Agreement ") and the General Agreement on Tariffs and Trade 1994  (the 
"GATT 1994") of measures taken by the United States to comply with the recommendations and rulings of the Dispute Settlement Body (the "DSB") in US – Zeroing (Japan) .
2 
                                                      
1WT/DS322/RW, 24 April 2009. 
2The recommendations and rulings of the DSB resulted from the adoption, on 23 January 2007, by the 
DSB, of the Appellate Body Report, WT/DS322/AB/R, and the Panel Report, WT/DS322/R, in US – Zeroing 
(Japan) .  In this Report, we refer to the panel that considered the original complaint brought by Japan as the 
"original panel", and to its report as the "original panel report".  WT/DS322/AB/RW 
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  2. This dispute concerns the use of the so-ca lled "zeroing" methodology by the United States 
Department of Commerce (the "USDOC") when calculating margins of dumping.
3  In the original 
proceedings, the Appellate Body upheld the panel's finding that the United States' zeroing procedures 
constituted a measure that can be challenged "as such " in dispute settlement proceedings in the World 
Trade Organization (the "WTO").4  The original panel found that, by maintaining model zeroing 
procedures in the context of original investigatio ns, the United States acts inconsistently with 
Article 2.4.2 of the Anti-Dumping Agreement .5  The Appellate Body also found that: 
(a) the United States acts inconsistently with Articles 2.4 and 2.4.2 of the Anti-Dumping 
Agreement  by maintaining zeroing procedures when calculating margins of dumping 
on the basis of transaction-to-transaction comparisons in original investigations6;   
(b) the United States acts inconsistently  with Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994 by maintaining zeroing procedures in 
periodic reviews7;  and 
(c) the United States acts inconsistently  with Articles 2.4 and 9.5 of the Anti-Dumping 
Agreement  by maintaining zeroing procedures in new shipper reviews.8 
3. As regards Japan's "as applied" claims, the orig inal panel held that, by using model zeroing in 
the anti-dumping investigation regarding imports of  cut-to-length carbon quality steel products from 
Japan, the United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement .9  
This finding of the original panel was not app ealed.  The Appellate Body additionally found that: 
                                                      
3Before the original panel, Japan used the term "zeroing" to denote the methodology under which the 
USDOC "disregards intermediate negative dumping marg ins ... through the USDOC's [Anti-Dumping] Margin 
Calculation Computer Programme and other related procedures, in the process of establishing the overall 
dumping margin for the product as a whole". (Original Panel Report, footnote 668 to para. 7.45, quoting the original Request for the Establishment of a Panel by Japan, WT/DS322/8, para. 1(a) (attached as Annex A-2 to 
the Original Panel Report)) 
4Appellate Body Report, US – Zeroing (Japan) , para. 190(a). 
5Original Panel Report, para. 7.258(a).  This fi nding of the original panel was not appealed. 
6Appellate Body Report, US – Zeroing (Japan) , para. 190(b). 
7Appellate Body Report, US – Zeroing (Japan) , para. 190(c).  In this Report, we use the term "periodic 
review" to describe the periodic review of the amount of anti-dumping duty as required in Section 751(a) of the 
United States Tariff Act of 1930, United States Code , Title 19, Section 1675(a).  That provision requires the 
USDOC to review and determine the amount of any anti-dumping duty at leas t once during each 12-month 
period, beginning on the anniversary of the date of publication of an anti-dumping duty order, if a request for 
such a review has been received.   
8Appellate Body Report, US – Zeroing (Japan) , para. 190(d).  
9Original Panel Report, para. 7.258(b).  WT/DS322/AB/RW 
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  (a) the United States acted inconsistently  with Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994 by applying zeroing procedures in 
the 11 periodic reviews at issue in that appeal10;  and  
(b) the United States acted inconsistently with Article 11.3 of the Anti-Dumping 
Agreement  by relying, in two sunset review determinations, on margins of dumping 
calculated in previous proceedings through the use of zeroing.11 
4. The Appellate Body recommended that the DS B request the United States to bring its 
measures into conformity w ith its obligations under the Anti-Dumping Agreement  and the 
GATT 1994.12 
5. On 23 January 2007, the DSB adopted the or iginal panel and Appellate Body reports.13  
Pursuant to Article 21.3(b) of the DSU, the Unite d States and Japan agreed that the reasonable period 
of time to implement the recommendations and ru lings of the DSB would be 11 months, expiring 
on 24 December 2007.14 
6. On 14 February 2007, the USDOC published a notice of revocation of the anti-dumping duty 
order on corrosion-resistant carbon steel flat products from Japan, which related to one of the sunset 
reviews that Japan challenged in the original proceedings.15   
7. In its status report of 8 November 2007, the Un ited States informed th e DSB that the USDOC 
had published a notice indicating its intention to no longer use zeroing when performing weighted average-to-weighted average comparis ons in original investigations.  This change became effective as 
of 22 February 2007.
16  The United States added that it was "continuing to consult internally on steps 
to be taken with respect to the other DSB recommendations and rulings."17 
                                                      
10Appellate Body Report, US – Zeroing (Japan) , para. 190(e). 
11Appellate Body Report, US – Zeroing (Japan) , para. 190(f).   
12Appellate Body Report, US – Zeroing (Japan) , para. 191. 
13WT/DS322/15. 
14WT/DS322/20.  
15Revocation Pursuant to Second Five-Year ("Sunset") Reviews of Antidumping and Countervailing 
Duty Orders:  Certain Corrosion-Resistant Carbon Steel Flat Products from Australia, Canada, Japan, and 
France, United States Federal Register , Vol. 72, No. 30 (14 February 2007) 7010 (Panel Exhibit US-A20). 
16Antidumping Proceedings:  Calculation of the Weig hted-Average Dumping Margins in Antidumping 
Investigations; Change in Effective Date of Final Modification, United States Federal Register , Vol. 72, No. 17 
(26 January 2007) 3783 (Panel Exhibit US-A8). 
17WT/DS322/22.  On 6 December 2007 , the United States provided the same status report to the DSB, 
with no additional information. (WT/DS322/22/Add.1) WT/DS322/AB/RW 
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  8. On 19 November 2007, the USDOC advised in terested parties that it was initiating 
proceedings under Section 129 of the Uruguay Round Agreements Act in order to implement the 
DSB's recommendations and rulings concerning the anti-dumping investigation of certain cut-to-
length carbon quality steel products from Japan.  On 20 May 2008, the USDOC published a notice of 
implementation of the Section 129 de termination, in which it indicated that the margin of dumping of 
one Japanese exporter and the "all others" ra te had been recalculated without zeroing.
18   
9. With respect to the 11 periodic reviews at issue in the original proceedings, the United States 
informed the DSB, on 10 January 2008, that: 
... in each case the results were supe rseded by subsequent reviews.  
Because of this, no further action is necessary for the United States to bring these challenged measures into compliance with the 
recommendations and rulings of the DSB.
19 
10. On 21 January 2008, the United States informed the DSB that, through the elimination of 
zeroing in weighted average-to-weighted average co mparisons, it had eliminated the single measure 
that Japan had challenged in the original proceedi ngs and that the Appellate  Body had found to be 
inconsistent "as such", and that the United Stat es considered that it had complied with the DSB's 
recommendations and rulings with respect to that measure.20 
11. Japan did not consider that the United States  had brought itself into compliance with the 
DSB's recommendations and rulings.  Consequently, on 7 April 2008, Japan requested that the matter 
be referred to the original panel pursuant to Article 21.5 of the DSU21, and this occurred 
on 18 April 2008.22  Japan requested the Panel to find that  the United States had failed to implement 
the DSB's recommendations and rulings by mainta ining zeroing procedures in the context of 
transaction-to-transaction comparisons in origin al investigations, and under any comparison 
methodology in periodic and new shipper reviews, c ontrary to Articles 17.14, 21.1, and 21.3 of the 
DSU, Articles 2.4, 2.4.2, 9.3, and 9.5 of the Anti-Dumping Agreement , and Article VI:2 of the 
GATT 1994.23  Japan also argued that in the case of five of the 11 periodic reviews that were found to 
                                                      
18Notice of Implementation of Determination under Section 129 of the Uruguay Round Agreements 
Act Regarding the Antidumping Duty Order on Certain Cut-to-Length Carbon-Quality Steel Plate Products 
from Japan, United States Federal Register , Vol. 73, No. 98 (20 May 2008) 29109 (Panel Exhibit US-A18) .  As 
a result, the margin for Kawasaki Steel Corporation and the "all others" rate decreased from 10.78 per cent 
to 9.46 per cent. ( Ibid., at 29109) 
19WT/DS322/22/Add.2. 
20WT/DSB/M/245. 
21WT/DS322/27. 
22WT/DS322/28.  
23Panel Report, para. 3.1(a).  WT/DS322/AB/RW 
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  be WTO-inconsistent in the original pr oceedings—Reviews 1, 2, 3, 7, and 824—the United States had 
failed to implement the DSB's recommendations and rulings regarding the importer-specific 
assessment rates determined in those Reviews, cont rary to Articles 17.14, 21.1, and 21.3 of the DSU, 
Articles 2.4 and 9.3 of the Anti-Dumping Agreement , and Article VI:2 of the GATT 1994.25  I n  
addition, Japan asserted that four subsequent  periodic reviews—Reviews 4, 5, 6, and 926—were 
"measures taken to comply" that are incons istent with Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994.27  Further, Japan claimed that the United States had 
failed to bring one of the two s unset review determina tions found to be WTO-inconsistent in the 
original proceedings into conformity with its obliga tions, in violation of Articles 17.14, 21.1, and 21.3 
of the DSU, and Article 11.3 of the Anti-Dumping  Agreement .28  Finally, Japan submitted that the 
United States acted in violation of Articles II:1(a) and II:1(b) of the GATT 1994 when it took certain 
                                                      
24Review 1 concerned Ball Bearings and Parts Thereof from Japan  (1 May 1999 
through 30 April 2000), United States Federal Register , Vol. 66, No. 134 (12 July 2001) 36551 (as amended:  
United States Federal Register , Vol. 72, No. 231 (3 December 2007) 67892) (JTEKT and NTN);  Review 2 
concerned Ball Bearings and Parts Thereof from Japan  (1 May 2000 through 30 April 2001), United States 
Federal Register , Vol. 67, No. 169 (30 August 2002) 55780 (as amended:  United States Federal Register , 
Vol. 73, No. 57 (24 March 2008) 15481) (NTN);  Review 3 concerned Ball Bearings and Parts Thereof from 
Japan  (1 May 2002 through 30 April 2003), United States Federal Register , Vol. 69, No. 178 
(15 September 2004) 55574 (JTEKT, NSK, and NTN);  Review 7 concerned Cylindrical Roller Bearings and 
Parts Thereof from Japan  (1 May 1999 through 31 December 1999), United States Federal Register , Vol. 66, 
No. 134 (12 July 2001) 36551 (JTEKT and NTN);  and Review 8 concerned Spherical Plain Bearings and Parts 
Thereof from Japan  (1 May 1999 through  31 December 1999), United States Federal Register , Vol. 66, No. 134 
(12 July 2001) 36551 (NTN). (See Panel Report, footnote 13 to para. 3.1(b)(i)) 
25Panel Report, para. 3.1(b)(i). 
26Review 4 concerned Ball Bearings and Parts Thereof from Japan  (1 May 2003 
through 30 April 2004), United States Federal Register , Vol. 70, No. 179 (16 September 2005) 54711 (as 
amended:  United States Federal Register , Vol. 70, No. 203 (21 October 2005) 61252 (NSK)) (as amended:  
United States Federal Register , Vol. 70, No. 219 (15 November 2005) 69316 (Nippon Pillow Block ("NPB")) 
(JTEKT, NSK, NPB, and NTN);  Review 5 concerned Ball Bearings and Parts Thereof from Japan  
(1 May 2004 through 30 April 2005), United States Federal Register , Vol. 71, No. 135 (14 July 2006) 40064 
(JTEKT, NSK, NPB, and NTN);  Review 6 concerned Ball Bearings and Parts Thereof from Japan  
(1 May 2005 through 30 April 2006), United States Federal Register , Vol. 72, No. 197 (12 October 2007) 
58053 (Asahi Seiko, JTEKT, NSK, NPB, and NTN);  and Review 9 concerned Ball Bearings and Parts Thereof 
from Japan  (Final Results for the Period 1 May 2006 to 30 April 2007), United States Federal Register , Vol. 73, 
No. 177 (11 September 2008) 52823 (JTEKT, NPB, and NTN). (See Panel Report, footnote 14 to 
para. 3.1(b)(ii)) 
27Panel Report, para. 3.1(b)(ii).  Although Japan had also included a claim under Article VI:1 of the 
GATT 1994 in its first written submission to the Panel, the Panel considered that Japan had failed to develop 
that claim in its subsequent submissions or statements to the Panel.  Accordingly, the Panel considered that 
Japan had abandoned its claim under Article VI:1 of the GATT 1994. (Panel Report, footnote 16 to 
para. 3.1(b)(ii))  This finding is not appealed. 
28Panel Report, para. 3.1(c).  Specifically, Japan referred to the sunset review determination 
of 4 November 1999 regarding the anti-dumping duty order on anti-friction bearings from Japan found to be 
WTO-inconsistent in the original proceedings.  WT/DS322/AB/RW 
Page 6  
 
  actions to liquidate the entries covered by Reviews 1, 2, 7, and 8 after the expiry of the reasonable 
period of time.
29 
12. The United States contended that the zeroing pr ocedures challenged "as su ch" by Japan in the 
original proceedings no longer existed because th e United States had ceased to apply the zeroing 
procedures in weighted average-to-weighted aver age comparisons in original investigations.30  T h e  
United States requested a preliminary ruling that "subsequent closely connected measures", including 
Review 9, were not within th e Panel's terms of reference.31  Furthermore, the United States requested 
a preliminary ruling that Reviews 4, 5, 6, and 9 were not "measures taken to comply" within the meaning of Article 21.5 of the DSU, and ther efore fell outside the scope of the compliance 
proceedings.
32  The United States also argued that it did not have any implementation obligations in 
relation to Reviews 1 through 9 because they covere d imports that entered the United States prior to 
the expiration of the reasonable period of time.  Moreover, the United States argued that it had 
complied with the DSB's recommendations and rulings regarding Reviews 1, 2,  and 3 by withdrawing 
the WTO-inconsistent cash deposit rates with prosp ective effect, and replacing them with new cash 
deposit rates determined in subsequent periodic reviews.33  The United States asserted that it was not 
required to take any action to comply with the DSB's recommendations and rulings regarding the 
sunset review of 4 November 1999, because th e relevant likelihood-of-dumping determination 
continued to be based on a number of dumping margin s not called into question by the findings of the 
Appellate Body in the original proceedings.34  Finally, the United States asked the Panel to refrain 
from ruling on Japan's Article II claims, because it wa s not necessary to do so.  The United States also 
asserted that the anti-dumping liability giving rise to  the liquidation actions challenged by Japan was 
incurred prior to the expiry of the reasonable period of time.35   
13. The Panel Report was circulated to WTO Members on 24 April 2009.  The United States' 
appeal concerns the following findings of the Panel: 
(a) ... the United States has failed to comp ly with the DSB's recommendations 
and rulings regarding the importer-spec ific assessment rates determined in 
Reviews 1, 2, 3, 7 and 8 that apply to entries covered by those Reviews that were, or will be, liquidated after the expiry of the RPT;  
                                                     
 
29Panel Report, para. 3.1(d). 
30Panel Report, para. 3.2.  
31Panel Report, para. 3.3. 
32Panel Report, para. 3.3. 
33Panel Report, para. 3.3.  
34Panel Report, para. 3.4. 
35Panel Report, para. 3.5.   WT/DS322/AB/RW 
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  (i) Accordingly, ... the United States is in continued violation of its 
obligations under Articles 2.4 and 9.3 of the [ Anti-Dumping ] 
Agreement  and Article VI:2 of the GATT 199436; 
... 
(b) ... the United States has acted inconsisten tly with Articles 2.4 and 9.3 of the 
[Anti-Dumping ] Agreement  and Article VI:2 of the GATT 1994 by applying 
zeroing in the context of Reviews 4, 5, 6 and 937; 
... 
(d) ... the United States is in violation of Articles II:1(a) and II:1(b) of the 
GATT 1994 with respect to certain liquida tion actions taken after the expiry 
of the RPT, namely with respect to the USDOC liquidation instructions set 
forth in [Panel] Exhibits JPN-40.A and JPN-77 to JPN-80 and the [Customs] liquidation notices set forth in [Panel] Exhibits JPN-81 to JPN-87.
38 
14. In addition, the Panel found that: 
(c) ... the United States has failed to comply with the recommendations and 
rulings of the DSB regarding the Un ited States' maintenance of zeroing 
procedures challenged "as such" in the original proceedings.  In particular, ... the United States has failed to impl ement the DSB's recommendations and 
rulings in the context of [transaction-to-transaction] comparisons in original 
investigations and under any compar ison methodology in periodic and new 
shipper reviews
39; 
(i) Accordingly, ... the United States remains in violation of Articles 2.4, 
2.4.2, 9.3 and 9.5 of the [ Anti-Dumping ] Agreement  and Article VI:2 
of the GATT 199440; 
... 
(e) ... the United States has failed to comp ly with the DSB's recommendations 
and rulings with respect to the 1999 sunset review. 
                                                      
36Panel Report, paras. 8.1(a) and 8.1(a)(i).  The Panel declined to rule on Japan's claim that, in relation 
to Reviews 1, 2, 3, 7, and 8, the United States had ther eby also acted inconsistently with its obligations under 
Articles 17.14, 21.1, and 21.3 of the DSU. ( Ibid., para. 8.1(a)(ii)) 
37Panel Report, para. 8.1(b).  
38Panel Report, para. 8.1(d).   
39Panel Report, para. 8.1(c). 
40Panel Report, para. 8.1(c)(i).  The Panel declined to rule on Japan's claim that the United States had 
thereby also acted inconsistently with its obligations  under Articles 17.14, 21.1, and 21.3 of the DSU. ( Ibid., 
para. 8.1(c)(ii)) WT/DS322/AB/RW 
Page 8  
 
  (i) Accordingly, ... the United States remains in violation of Article 11.3 
of the [ Anti-Dumping ] Agreement .
41 
... 
These findings are not appealed by the United States .  Nor does the United States appeal the Panel's 
finding that Reviews 4, 5, 6, and 9 are "measures taken to comply" within the meaning of Article 21.5. 
15. The Panel concluded that, to the extent that th e United States has failed to comply with the 
DSB's recommendations and rulings in the origin al proceedings, these recommendations and rulings 
remain operative.
42  The Panel also recommended that the DSB request the United States to bring 
Reviews 4, 5, 6, and 9, and the relevant liquidation actions, into conformity with the Anti-Dumping 
Agreement and the GATT 1994.43 
16. On 20 May 2009, the United States notified the DSB, pursuant to Articles 16.4 and 17 of the 
DSU, of its intention to appeal certain issues of law and legal interpretati ons covered in the Panel 
Report and filed a Notice of Appeal44, pursuant to Rule 20 of the Working Procedures for Appellate 
Review45 (the " Working Procedures ").  On 27 May 2009, the United States filed an appellant's 
submission.46  On 15 June 2009, Japan filed an appellee's submission.47  On the same day, the 
European Communities, Korea, Mexico, and Norw ay each filed a third participant's submission48;  
and China, Hong Kong, China, the Separate Cu stoms Territory of Taiw an, Penghu, Kinmen and 
Matsu, and Thailand each notified its inte ntion to appear at the oral hearing.49 
17. On 29 May 2009, Japan and the United States each requested the Appellate Body Division 
hearing this appeal to authorize public observation of the oral hearing.  Japan explained that its 
request was being made on the understanding th at any information that it had designated as
                                                      
41Panel Report, paras. 8.1 and 8.1(e)(i).  The Panel again declined to rule on Japan's claim that this 
failure to implement was inconsistent with the United States' obligations under Articles 17.14, 21.1, and 21.3 of 
the DSU. ( Ibid., para. 8.1(e)(ii)) 
42Panel Report, para. 8.2. 
43Panel Report, para. 8.2. 
44WT/DS322/32 (attached as Annex I to this Report). 
45WT/AB/WP/5, 4 January 2005. 
46Pursuant to Rule 21 of the Working Procedures . 
47Pursuant to Rule 22 of the Working Procedures .   
48Pursuant to Rule 24(1) of the Working Procedures.  
49Pursuant to Rule 24(2) of the Working Procedures.   WT/DS322/AB/RW 
 Page 9 
 
 
  confidential would be adequately protected in the c ourse of the hearing.  Both participants relied on 
the reasoning provided by the Appellate Body in previous appeals50 where public observation of the 
oral hearing had been authorized, and expressed a preference for simultaneous closed-circuit 
television broadcast to a separate room.  On 2 June  2009, the Division invited the third parties to 
comment in writing on the requests of Japan and th e United States, as well as the specific logistical 
arrangements proposed in the requests.  Comment s were received on 8 June 2009 from Korea, and 
on 9 June 2009 from China, the European Commun ities, Hong Kong, China, Mexico, Norway, the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, and Thailand.  The European 
Communities, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
expressed support for the requests of the particip ants.  China, Hong Kong, China, Mexico, and 
Thailand expressed the view that the provisions of  the DSU do not allow public hearings at the 
appellate stage.  Korea shared this concern, but  did not object to public observation of the oral 
hearing.   
18. In a Procedural Ruling dated 11 June 2009, th e Appellate Body Division hearing this appeal 
authorized the public observation of the oral hear ing and adopted additional procedures on logistical 
arrangements in accordance w ith Rule 16(1) of the Working Procedures , which it considered would 
address the concerns raised by certain third participants and Japan.51 
19. The oral hearing in this appeal was held on 29-30 June 2009.  The participants and third 
participants were given the opportunity to present oral arguments and respond to questions posed by 
the Division hearing the appeal.  Public observa tion took place via simultaneous closed-circuit 
television broadcast to a separate room.52 
                                                      
50US – Continued Suspension / Canada –  Continued Suspension ;  EC – Bananas III (Article 21.5 – 
Ecuador II)  / EC – Bananas III (Article 21.5 – US) ;  US – Continued Zeroing ;  and US – Zeroing (EC) 
(Article 21.5 – EC) . 
51The Procedural Ruling is attached as Annex II to this Report.  Notice of the opening of the hearing to 
public observation and registration instructions were provided on the WTO website. 
52Pursuant to the additional procedures adopted by the Division, China, Hong Kong, China, Korea, 
Mexico, and Thailand each requested that its oral statemen ts and responses to questions remain confidential and 
not be subject to public observation.  A total of 36 individuals registered to view the oral hearing. WT/DS322/AB/RW 
Page 10  
 
  II. Arguments of the Participants and Third Participants 
A. Claims of Error by the United States – Appellant 
1. The Panel's Terms of Reference – Review 9
 
20. The United States submits that the Panel erred in finding that Review 9 was within its terms 
of reference.  The United States argues that, cont rary to the Panel's finding, the phrase "subsequent 
closely connected measures" in Japan 's panel request does not meet th e requirement in Article 6.2 of 
the DSU to "identify the specific measures at issue".  In addition,  the United States asserts that 
Review 9 could not be included in the Panel's terms of reference, because its final results had not yet 
been published when the Panel was requested.53   
21. Japan's panel request identified five periodic re views that had been the subject of the DSB's 
recommendations and rulings in the original proceedings  (Reviews 1, 2, 3, 7, and 8) and "three closely 
connected periodic reviews that the United Stat es argues 'superseded' the original reviews" 
(Reviews 4, 5, and 6).54  It also referred to "any subsequent closely connected measures".55  Japan's 
panel request also specified that Reviews 1-8 st emmed from three anti-dumping duty orders, namely, 
Ball Bearings and Parts Thereof from Japan , Cylindrical Roller Bearings and Parts Thereof from 
Japan , and Spherical Plain Bearings a nd Parts Thereof from Japan .56 
22. The United States argues that the phrase "subseque nt closely connected measures" in Japan's 
panel request is "broad" and "vague"57 and can encompass a variety of measures, including 
subsequent administrative determin ations, ministerial corrections, or  remand determinations in court 
proceedings.  The United States maintains that th e Panel relied too heavily on the United States' 
statement in its first written submission that Japan  was trying to include in the Panel's terms of 
reference any future periodic reviews related to the eight periodic reviews specifically identified in the 
panel request.58  The fact that the United States' speculation proved to be accurate and that it correctly 
guessed at Japan's motivation did not excuse Japan fr om complying with the specificity requirement 
                                                      
53Review 9 was initiated on 29 June 2007.  Japan submitted its panel request on 7 April 2008.  The 
Panel was established on 18 April 2008.  Preliminar y results for Review 9 were published by the USDOC 
on 7 May 2008, and the final results were published by the USDOC on 11 September 2008.  The Panel issued 
its Report on 24 April 2009.   
54See WT/DS322/27, para. 12. 
55See WT/DS322/27, para. 12. 
56See WT/DS322/27, para. 12. 
57United States' appellant's submission, para. 45. 
58United States' appellant's submission, footnote 56 to para. 45 (referring to Panel Report, para. 7.105, 
in turn quoting United States' first written submission to the Panel, para. 50).  WT/DS322/AB/RW 
 Page 11 
 
 
  in Article 6.2.59  The United States considers it "irrelevant"60 that Review 9 had already been initiated 
by the time of the panel request61, because Review 9 was still ongoing at the time of the panel request, 
and therefore any challenge to it would have been "premature".62 
23. The United States submits that the Panel further departed from the text of the DSU when it 
examined whether Japan's challenge to "subsequent  closely connected measures" would "violate any 
due process objective of the DSU"63, because there is no requirement in Article 6.2 of the DSU, or 
elsewhere in the covered agreements, to show that the respondent's due process right or entitlement to 
notice was not respected by the lack of specificity  in the panel request.  According to the United 
States, a panel is not free to override the clearly negotiated text of the DSU because of its own views 
on due process.  The only showing that the United Stat es was required to make was that Japan did not 
specifically identify Review 9 in its panel request. 
24. The United States points out that the Appellate Body, in  US – Zeroing (EC) (Article 21.5 – 
EC), recognized that each periodic review is "separate and distinct", and that each review serves as a 
basis for the calculation of the assessment rate  for each importer of the entries of subject 
merchandise.64  For this reason, the United States believes that each review must be identified in the 
panel request.  Furthermore, the United States does not  consider that Articles 6.2 and 7.1 of the DSU 
permitted the Panel to examine measures not identifie d in the panel request because they allegedly 
form part of a "continuum" of similar measures that  were identified in the panel request, or because 
there was an allegedly "high degree of predicta bility" under the United States' anti-dumping system 
that they would come into existen ce subsequent to the panel request.65 
25. Additionally, the United States argues that a future periodic review, like Review 9, cannot be 
subject to dispute settlement because it was "not yet in existence" at the time of the panel request.66  
The United States submits that, although the Panel a ppropriately referred to the panel's reasoning in 
                                                      
59United States' appellant's submission, para. 45 and footnote 56 thereto.  
60United States' appellant's submission, para. 46.  
61United States' appellant's submission, para. 46 (ref erring to Panel Report, paras. 7.110 and 7.116). 
62United States' appellant's submission, para. 46 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , paras. 374 and 375, in turn referring to Appellate Body Report, US – Continued 
Zeroing , para. 210). 
63United States' appellant's submission, para. 55 (quoting Panel Report, para. 7.105). 
64United States' appellant's submission, para. 44 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , paras. 192 and 193).  
65United States' appellant's submission, para. 44 (referring to Panel Report, paras. 7.110, 7.111, 7.115, 
and 7.116).  
66United States' appellant's submission, paras. 47 and 48.  WT/DS322/AB/RW 
Page 12  
 
  US – Upland Cotton
67 and, in particular, its reliance on Article 3.3 of the DSU, the Panel failed to take 
into account the fact that Review 9 could not ha ve been impairing any benefits accruing to Japan, 
within the meaning of Article 3.3 of the DSU, beca use Review 9 did not exist at the time of Japan's 
panel request.  The Panel improperly distinguished US – Upland Cotton  on the basis that Japan's 
claim against Review 9 was not "entirely speculative".68  The United States submits that, on the 
contrary, Japan's claim was not "entirely predictable", because, at the time of the panel request, Japan 
had no way of knowing whether zeroing would be used in Review 9 or whether the review would be 
rescinded after its initiation.69  
26. The United States asserts that the Panel's approach  is not consistent w ith previous Appellate 
Body reports, such as EC – Chicken Cuts  and Chile – Price Band System .70  According to the United 
States, the Panel failed to recognize that the situa tion arising in this dispute was not one of the 
"limited circumstances" referred to by the Appellate Body in EC – Chicken Cuts  that would justify 
including measures enacted subsequent to the pa nel establishment within its terms of reference.71  
With respect to Chile – Price Band System , the United States explains that the inclusion within the 
panel's terms of reference of an amendment to a me asure identified in the panel request was based on 
the fact that the subsequent modifications did not change the essence of the measure before the 
panel.72  By contrast, in this dispute, each subsequent periodic review is "separate and distinct".73  
Exporters participating in each review may vary;  sh ipments, data, and time pe riods are different;  and 
the anti-dumping duty rate may change and, in some cases, fall to a de minimis  level.74  For the United 
States, this illustrates that the use of zeroing alon e is not enough to identify the specific measures at 
issue for purposes of Article 6.2. 
                                                      
67United States' appellant's submission, para. 48 (referring to Panel Report, paras. 7.115 and 7.116, in 
turn referring to Panel Report, US – Upland Cotton , paras. 7.158-7.160). 
68United States' appellant's submission, para. 49 (quoting Panel Report, para. 7.116, in turn quoting 
Panel Report, US – Upland Cotton , para. 7.158).  
69United States' appellant's submission, para. 50 (quoting Panel Report, para. 7.116).  The United States 
notes, by way of example, that the USDOC's regulations provide that an administrative review will be rescinded 
if all the parties requesting a review w ithdraw their request for a review within 90 days of the date of publication 
of the notice of initiation for that review.  This regulatio n also provides that it is within the USDOC's discretion 
to extend this time-limit at the parties' request. (Un ited States' appellant's submission, footnote 71 to para. 50 
(referring to United States Code of Federal Regulations , Title 19, Section 351.213(d), submitted as Panel 
Exhibit US-A2)) 
70United States' appellant's submission, paras. 51 and 52.   
71United States' appellant's submission, para. 51 (referring to Appellate Body Report, EC – Chicken 
Cuts, para. 156). (emphasis omitted) 
72United States' appellant's submission, para. 52 (referring to Appellate Body Report, Chile – Price 
Band System , para. 139). 
73United States' appellant's submission, para. 52 (quoting Appellate Body Report, US – Zeroing (EC) 
(Article 21.5 – EC) , para. 192). 
74United States' appellant's submission, para. 53.   WT/DS322/AB/RW 
 Page 13 
 
 
  27. Finally, the United States submits that system ic considerations milita te against the Panel's 
approach.  In particular, the Panel's approach would allow parties to make new legal claims on new or 
amended measures midway through compliance pane l proceedings, when Article 21.5 proceedings 
should be limited to an examination of wh ether a Member has complied with the DSB's 
recommendations and rulings at the time of the panel request.75  Disputes would become "moving 
targets"76 in a manner not contemplated by the DSU.  Further, the United States observes that the 
Panel's approach is "asymmetrical" as only compla ining parties would be allowed to include new 
measures.  The United States refers to previous pa nels that have rejected respondents' requests to 
examine measures that came into ex istence after the panels' establishm ent with a view to showing that 
the alleged inconsistency no longer existed.77 
28. For these reasons, the United States requests the A ppellate Body to reverse the Panel's finding 
that Review 9 fell within its terms of reference. 
2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8  
29. The United States claims that the Panel erred in  finding that the United States has failed to 
comply with the DSB's recommendations and rulings  regarding the importer-specific assessment rates 
determined in Reviews 1, 2, 3, 7,  and 8 that apply to entries covered by those Reviews that were, or 
will be, liquidated after the expiry of the reasonable period of time.  The United States also claims that 
the Panel's consequential finding that the United St ates is in continued violation of its obligations 
under Articles 2.4 and 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 is in 
error.   
30. In the United States' view, the text of the GATT 1994 and of the Anti-Dumping Agreement  
"confirms that it is the legal regime in existence at the time that an import enters the Member's 
territory that determines whether the import is liable for the payment of antidumping duties."78  The 
United States asserts that Article  VI:6(a) of the GATT 1994 reflects the fact that the levying of an 
anti-dumping duty generally takes place on "the importa tion of any product".  The interpretive Note to 
                                                      
75In particular, the United States explains that cer tain procedural concerns  would arise from this 
approach, including that parties would be obliged to make legal claims and undertake analysis of new or 
modified measures on short notice, without an opportunity to review the measures;  and compliance panels 
would have to react to changes, in some cases after submissions and meetings with  the parties, resulting in 
possible delays or the panel making findings without the benefit of parties' views. (United States' appellant's submission, para. 57) 
76United States' appellant's submission, para. 57.  
77United States' appellant's submission, para. 57 (referring to Panel Report, India – Autos , 
paras. 7.23-7.30;  and Panel Report, Indonesia – Autos , para. 14.9).  
78United States' appellant's submission, para. 67. WT/DS322/AB/RW 
Page 14  
 
  paragraphs 2 and 3 of Articl e VI of the GATT 1994 (the " Ad Note") clarifies that WTO Members may 
require a cash deposit or other security  in lieu of the duty.  Yet, th e United States emphasizes, liability 
is incurred at the time of entry.  The United States also refers to Articles 8.6, 10.1, 10.6, and 10.8 of 
the Anti-Dumping Agreement , which it considers illustrate that "whenever the [ Anti-Dumping 
Agreement ] specifies an applicable date for an action, the scope of applicability is based on entries 
occurring on or after that date."
79  The United States asserts that the Panel erred in dismissing the 
relevance of these provisions of the Anti-Dumping Agreement  and the GATT 1994, focusing instead 
on the DSU, because the DSU does not exist in a "vacuum" and must be read in the light of the rights 
and obligations contained in the other covered agreements.80  The United States argues that, since 
these Article 21.5 proceedings focused on th e existence, or consistency with the Anti-Dumping 
Agreement  and the GATT 1994, of measures taken to co mply with the recommendations and rulings 
of the DSB, "these agreements, along with the DSU,  are crucial to determining whether the United 
States complied with the DSB's recommendations and rulings, including what the United States was required to do in order to implemen t those recommendations and rulings."
81   
31. The United States takes issue with the Panel's st atement that a Member that chooses to apply 
a retrospective anti-dumping system must "respect the consequences of that choice".82  According to 
the United States, the Panel "overlook[ed]" the fa ct that the United States "elected to adopt a 
retrospective system long before there was a WTO".83  Members with retrospective systems cannot be 
presumed to have agreed to "consequences" only now being assigned by panels or the Appellate 
Body.  Furthermore, the United States notes that, in  retrospective anti-dumping systems, the entry of 
merchandise triggers potential liability, while the dete rmination of final liability and collection occurs 
at a later date.  This is a principal feature of a retr ospective system and this distinction is reflected in 
the text of Articles 9.3.1 and 9.3.2 of the Anti-Dumping Agreement .  The United States asserts that the 
Panel's view that it need not ensure that the im plementation obligations unde r different anti-dumping 
                                                      
79United States' appellant's submission, para. 72. 
80United States' appellant's submission, para. 73 (referri ng to Article 3.2 of the DSU;  as well as Panel 
Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , footnote 39 to para. 7.51;  
and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 173). 
81United States' appellant's submission, para. 73.  The United States argues that previous panels have 
recognized that "prospective implementation obligations ar e triggered by the date of entry" and refers to the 
Panel Report in US – Section 129(c)(1) URAA  as an example. (United States' appellant's submission, para. 74 
(referring to Panel Report, US – Section 129(c)(1) URAA , para. 6.52))  In addition, the United States observes 
that the European Communities "took a prospective approach" to the implementation of the DSB's 
recommendations and rulings in EC – Chicken Cuts .  (United States' appellant's submission, paras. 75 and 76) 
82Panel Report, para. 7.152. 
83United States' appellant's submission, para. 78.  WT/DS322/AB/RW 
 Page 15 
 
 
  systems be identical84 contradicts "the Appellate Body's recognition that all systems of duty 
assessment must be afforded analogous treatment"85 under the Anti-Dumping Agreement .   
32. The United States maintains that an approach b ased on the date of entry of the merchandise 
ensures equal treatment between retrospective a nd prospective anti-dumping systems.  The United 
States explains that, in a prospective system, an anti-dumping measure found to be inconsistent with 
the Anti-Dumping Agreement  would have to be modified only as it applies "to imports occurring on or 
after the date of importation", and the respondent Memb er would not have to remedy the effects of the 
measure on imports that occurred prior to the end of the reasonable period of time.86  A similar result 
would be obtained in retrospective systems if the op erative date for implemen tation were the date of 
entry of the merchandise subject to anti-dumping duties, thereby preserving the neutrality between 
retrospective and prospective systems.87 
33. The United States notes that it is uncontested that all of the liquidations applied (or that would 
apply) in connection with Reviews 1, 2, 3, 7, and 8 relate to merchandise that entered the United 
States " long before  the end"88 of the reasonable period of time.  The United States further explains 
that liquidation would have taken place before the en d of the reasonable period of  time had it not been 
for domestic judicial proceedings.89  The United States observes that, in  US – Zeroing (EC) 
(Article 21.5 – EC) , the Appellate Body did not make "findings  against actions to liquidate duties that 
are based on administrative review determinations i ssued before the end of the RPT, and that have 
been delayed as a result of domestic judicial proceedings".90  In the United States' view, "a Member 
should not be found in non-compliance because liqui dation was delayed until after the RPT due to 
domestic judicial proceedings".91 
34. The United States points out that Article 13 of the Anti-Dumping Agreement  requires 
Members to provide for independent review of  certain anti-dumping administrative actions.  
Moreover, footnote 20 to Article 9.3.1 expressly r ecognizes "that the observance of the time-limits 
mentioned in [subparagraph 3.1] and in subparagraph 3.2 may not be possible where the product in 
question is subject to judicial review proceedings."   Accordingly, the United States submits that, "if a 
                                                      
84United States' appellant's submission, para. 79 (referring to Panel Report, para. 7.152). 
85United States' appellant's submission, para. 83. 
86United States' appellant's submission, para. 84. 
87United States' appellant's submission, para. 84. 
88United States' appellant's submission, para. 87. (original emphasis) 
89United States' appellant's submission, para. 92. 
90United States' appellant's submission, para. 94 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 314). 
91United States' appellant's submission, para. 94. WT/DS322/AB/RW 
Page 16  
 
  particular time limit is not observed due to pending  judicial review, the delay caused by the judicial 
review is not inconsistent with the [ Anti-Dumping Agreement ]".
92  The United States asserts that this 
also means that "a delay in liquidation until after the RPT as a result of judicial review should not 
serve as a basis to find that a Member has failed to  comply with the recommendations and rulings of 
the DSB, since but for judicial proceedings, the Member would have liquidated prior to the RPT."93 
35. Referring to the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) , the United 
States submits that the initiation of judicial review  means that "the liquidation of entries can no longer 
derive mechanically from the admini strative reviews challenged by Japan".94  Instead, "the timing of 
liquidation is controlled by the independent judiciary and not the administering authority".95  
Moreover, the judiciary may sustain the administerin g authority's determination or require changes to 
it.  The United States explains that judicial review "severs" any "mechanical" link between the 
assessment of liability in the periodic re view and the liquidation instructions.96 
36. The United States further explains that a finding that a Member failed to comply because 
liquidation was suspended until after the reasonable period of time as a result of litigation "would give 
private litigants the ability to control complian ce by Members operating retrospective antidumping 
systems".97  Such a delay would not be possible in a prospective system.  The United States adds that,  
if such a finding were sustained, "private par ties would have perverse incentives to manufacture 
domestic litigation and prolong liquidation past the RPT to obtain what amounts to retroactive 
relief".98 
37. The United States submits that the WTO dispute settlement system requires only prospective 
implementation of the DSB's recommendations and ru lings.  In support of this proposition, the United 
States asserts that Article 21.5 proceedings focu s only on the consistency of those measures in 
existence at the time of panel establishment and,  as such, a Member's compliance with the DSB's 
recommendations and rulings is "determined on a prospective basis".99  The United States also 
observes that the Appellate Body has "repeatedly recognized" the prospective nature of remedies in 
WTO law.100  The United States considers that the Panel "improperly disregarded the importance of 
                                                      
92United States' appellant's submission, para. 96. 
93United States' appellant's submission, para. 96. 
94United States' appellant's submission, para. 97. 
95United States' appellant's submission, para. 97. (original emphasis) 
96United States' appellant's submission, para. 97. 
97United States' appellant's submission, para. 98. 
98United States' appellant's submission, para. 99. 
99United States' appellant's submission, para. 63. 
100United States' appellant's submission, para. 64 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 299 and footnote 406 thereto).  WT/DS322/AB/RW 
 Page 17 
 
 
  the prospective/retrospective distinction" when de termining the United States' compliance obligations 
and, as a result, "imposed a retroactive remedy where none is allowed".101 
38. Accordingly, the United States requests the Appe llate Body to reverse the Panel's findings 
and conclude, instead, that liquidatio n that occurred (or will occur) afte r the reasonable period of time 
in relation to Reviews 1, 2, 3, 7, and 8 does not demonstrate that the United States failed to comply 
with the recommendations and rulings of the DSB,  because these liquidations would have occurred 
prior to the conclusion of the reasonable period of ti me but for the delay caused by domestic judicial 
review.102 
3. The Panel's Findings on Reviews 4, 5, 6, and 9  
39. The United States contends that the Appellate Body should reverse the Panel's finding that 
Reviews 4, 5, and 6 are inconsistent  with Article 2.4 and 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 for the same reason th at it considers that the Panel's findings with 
respect to Reviews 1, 2, 3, 7, and 8 should be reve rsed, namely, that entries under Reviews 4, 5, and 6 
were made before the end of the reasonable period of  time.  In addition, the United States asserts that 
Reviews 4, 5, and 6 had not had effects since the e xpiration of the reasonable period of time given that 
there had not been liquidation of any entries cove red by these Reviews since the reasonable period of 
time expired. 
40. The United States recalls that, in US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body 
examined, inter alia , whether a number of periodic reviews and resultant assessment instructions that 
were not part of the original dispute demons trated a failure to comply with the DSB's 
recommendations and rulings.103  According to the United States, the Appellate Body's analysis of 
those reviews and resultant assessment instructions suggests that, where the review determination was 
published and the assessment instructions were issu ed prior to the end of the reasonable period of 
time, these reviews and assessment instructions were not a basis for finding a failure to comply104;  
however, where a measure was put in place or had "cognizable effects" after the conclusion of the 
reasonable period of time, that measure could provi de a basis for finding that a Member failed to 
comply with the DSB's recommendations and rulings , to the extent that such effects after the
                                                      
101United States' appellant's submission, para. 65. 
102United States' appellant's submission, para. 100. 
103United States' appellant's submission, para. 103 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC ) , paras. 326, 337, 338, and 345). 
104United States' appellant's submission, para. 104 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 313 and footnote 423 thereto).   WT/DS322/AB/RW 
Page 18  
 
  expiration of the reasonable period of time refl ected the inconsistency found in the original 
determination.  By contrast, if the measure was not put in place or did not have any "cognizable 
effects" after the expiration of the reasonable period  of time, that measure cannot provide a basis for 
finding that the Member failed to comply with th e DSB's recommendations and rulings in a dispute.
105   
41. Turning to the facts of this dispute, the Un ited States notes that Reviews 4, 5, and 6 were 
concluded long before the end of the reasonable period of time, and that, as a result of domestic 
litigation, assessment of duties calculated in these Revi ews was enjoined prior to  the conclusion of the 
reasonable period of time, and continued to be enjoined.106  Applying the above reasoning to these 
facts, the United States considers that Reviews 4, 5, and 6 "have had no post-RPT effects of the kind 
that give rise to a finding of inconsistency".107 
42. With respect to Review 9, the United States argues that Review 9 fell outside the Panel's 
terms of reference.108  Moreover, the United States submits that, since Review 9, like Reviews 4, 5, 
and 6, does not cover entries occurring after the end of the reasonable period of time, the application 
of zeroing in Review 9 cannot serve as a basis for a finding of inconsistency. 
43. For these reasons, the United States requests the A ppellate Body to reverse the Panel's finding 
that the United States acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement  
and Article VI:2 of the GATT 1994 by applying zeroi ng in the context of Reviews 4, 5, 6, and 9. 
4. Article II of the GATT 1994  
44. The United States submits that the Panel erred in finding that the United States is in violation 
of Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain USDOC liquidation 
instructions and United States Customs and Border  Protection ("Customs") liquidation notices issued 
after the expiry of the reasonable period of time.109  First, the United States argues that, since Japan's 
Article II claims are derivative of Japan's  claims under Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement , it was "entirely unnecessary" for the Panel to make any Article II findings.110  The United 
                                                      
105United States' appellant's submission, para. 104.  The United States further notes that the Appellate 
Body stated:  "to the extent that a measure … would be based on zeroing, the United States would fail to comply 
with the recommendations and rulings of the DSB … if it were to apply  that measure after the end of the 
reasonable period of time." ( Ibid. (quoting Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , 
para. 310 (emphasis added by the United States)))   
106United States' appellant's submission, para. 105. 
107United States' appellant's submission, para. 105. 
108See supra , para. 20. 
109The USDOC liquidation instructions are set forth in Panel Exhibits JPN-40.A, and JPN-77 through 
JPN-80.  The Customs liquidation notices are set forth in Panel Exhibits JPN-81 through JPN-87. 
110United States' appellant's submission, para. 107.  WT/DS322/AB/RW 
 Page 19 
 
 
  States contends that, if the Appellate Body reverses th e Panel's findings in relation to Reviews 1, 2, 3, 
7, and 8, then the Appellate Body must reve rse the "derivative findings" under Article II.111   
45. In addition, the United States recalls its previ ous arguments that compliance with the DSB's 
recommendations and rulings shoul d be evaluated by examining a Member's treatment of the 
merchandise on the date of entry, and not when the "ministerial" act of collection of duties occurs.112  
It explains that the liability for anti-dumping duties,  that Japan claims resu lted in duties collected 
beyond the United States' bound rate, was incurred prio r to the expiration of the reasonable period of 
time, when the merchandise entered the United States .  Any liquidation after the reasonable period of 
time resulted from a delay due to domestic judicial review.113  The United States submits that, in the 
same way that such liquidation cannot serve as a basis for a failure to comply with the DSB's 
recommendations and rulings, it cannot support a co rollary finding that the United States acted 
inconsistently with Articles II: 1(a) and II:1(b) of the GATT 1994.114 
B. Arguments of Japan – Appellee 
1. The Panel's Terms of Reference – Review 9  
46. Japan argues that the Panel properly found that Re view 9 was within its terms of reference.  
First, Japan submits that its panel request satisfi ed the requirement in Article 6.2 to identify the 
specific measures at issue.  Japan explains that it used the term "closely connected" to identify 
Reviews 4, 5, and 6 and that it used the same te rm to identify the subsequent "closely connected" 
measures.  Moreover, it observes that "subsequent cl osely connected measures" could relate solely to 
the ball bearings anti-dumping duty order, because, effective 1 January 2000, the United States had 
revoked the other two orders specified in the panel request.115   
47. Secondly, Japan contends that the phrase "sub sequent closely connected measures" identified 
a "category of measure", which is sufficiently specifi c to satisfy the requirement of Article 6.2 of the 
DSU.  Japan submits that accepting that a category of  measure can be sufficiently specific to satisfy 
Article 6.2 does not imply that measures falling within the category are not themselves "separate and distinct", as referred to by the United States;  it mean s only that the category is in itself sufficiently 
                                                     
 
111United States' appellant's submission, para. 107. 
112United States' appellant's submission, para. 108. 
113United States' appellant's submission, para. 108.  
114United States' appellant's submission, para. 108. 
115Japan's appellee's submission, para. 387 and footnote 513 thereto (referring to United States' first 
written submission to the Panel, para. 66, in turn quoting  Revocation of Antidumping Duty Orders on Certain 
Bearings from Hungary, Japan, Romania, Sweden, France, Germany, Italy, and the United Kingdom, United 
States Federal Register , Vol. 65, No. 133 (11 July 2000) 42667 (Panel Exhibit US-A19)).  WT/DS322/AB/RW 
Page 20  
 
  specific to satisfy Article 6.2.
116  In this regard, Japan refers to Australia – Salmon (Article 21.5 – 
Canada)  and EC – Bananas III , which, in its view, illustrate that panels and the Appellate Body have 
accepted a reference to a category of measures in a panel request as being sufficiently specific to 
satisfy Article 6.2.117  Furthermore, Japan argues that the category of "any subsequent closely 
connected measures" was broad enoug h to cover Review 9, as compared to panel requests in other 
disputes that were drafted too narrowly to justify the inclusion of certain measures.118 
48. Japan also supports the Panel' s reliance on the fact that th e United States anticipated the 
inclusion of subsequent periodic reviews like Revi ew 9 in its first written submission to the Panel.119  
Japan rejects the United States' argument that its st atement "was a lucky 'guess' or 'speculation' [that] 
proved to be accurate"120, because, as the Panel noted, under the United States' retrospective anti-
dumping duty system, periodic reviews are highly predic table.  Moreover, at the time of Japan's panel 
request, the USDOC had already initiated Review 9 a nd was scheduled to issue its final determination 
in mid-August 2008, which was shortly thereafter extended to 4 September 2008.121  
49. Japan observes that, in EC – Chicken Cuts , the Appellate Body identified a "general rule" that 
a measure must exist at the time of panel establishmen t to be included in a pane l's terms of reference.  
However, the Appellate Body in that case also held  that there are "limited circumstances" in which 
departing from the "general rule" is consistent w ith Article 6.2 and the purposes which that provision 
serves.122  Japan considers that, as the compliance panel in Australia – Salmon (Article 21.5 – 
Canada)  found, the "ongoing or continuous" nature of  compliance offers ci rcumstances where an 
exception from the "general rule" is warranted.123  Japan observes that, in th is dispute, the compliance 
                                                      
116Japan's appellee's submission, para. 389 (referring to United States' appellant's submission, paras. 44 
and 52). 
117Japan's appellee's submission, paras. 390-393 (referring to Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10;  Panel Report, EC – Bananas III (US) , para. 7.27;  and Appellate Body 
Report, EC – Bananas III , para. 140). 
118Japan's appellee's submission, paras. 403-407 (referring to Panel Report, EC – Chicken Cuts 
(Thailand) , paras. 7.28 and 7.32;  and Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.125 and 
footnote 690 thereto). 
119Japan's appellee's submission, paras. 394 and 395 (referring to Panel Report, para. 7.105, in turn 
quoting United States' first written submission to the Panel, para. 50). 
120Japan's appellee's submission, para. 397 (quoting United States' appellant's submission, footnote 56 
to para. 45). 
121Japan's appellee's submission, para. 398 and footnotes 527 and 528 thereto.  
122Japan's appellee's submission, para. 374 (referring to Appellate Body Report, EC – Chicken Cuts , 
para. 156). 
123Japan's appellee's submission, paras. 375, 376, 382, and 383 (referring to Panel Report, Australia – 
Salmon (Article 21.5 – Canada) , para. 7.10).  Japan recalls the Panel's observation that the decision in 
Australia – Salmon (Article 21.5 – Canada)  was approved by the Appellate Body in US – Softwood Lumber IV 
(Article 21.5 – Canada) . (Japan's appellee's submission, para. 377 (referring to Panel Report, para. 7.116 and 
footnote 142 thereto, in turn referring to Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – 
Canada) , para. 74).  WT/DS322/AB/RW 
 Page 21 
 
 
  process is "ongoing or continuous", as each of Re views 4, 5, 6, and 9 serves as a "replacement" 
measure that "supersedes" the previous periodic review relating to entries of ball bearings.124  
Review 9 was the "latest link in the chain"125 of measures under the same anti-dumping duty order and 
is a "measure taken to comply".  Failure to incl ude Review 9 would have made the Panel's findings 
incomplete, as the "zeroed" cash deposit rate establis hed in Review 6 had "ceased to exist" during the 
course of the proceedings.126  According to Japan, excluding a post-establishment measure taken to 
comply from the terms of reference, where the pane l request is broad enough to cover that measure 
and the process of achieving and undermining complia nce is "ongoing or continuous", "would go 
against the objective of 'prompt comp liance'" in Article 21.1 of the DSU.127 
50. Japan explains that panels and the Appellate Body have noted th at, in order to be consistent 
with Article 6.2, the inclusion of a measure adopt ed during panel proceedings within a panel's terms 
of reference must not compromise the "due process objective of notifying the parties and third parties 
of the nature of a complainant's case".128  Japan submits that the inclusion of Review 9 did not 
compromise the due process objectives of Article 6.2 of the DSU.  This is because the United States 
was not deprived of the opportunity to examine sufficiently Review 9 and understand its legal 
consequences, nor was it deprived of the opportunity  to prepare and present its defence to claims 
against Review 9.129  Japan adds that the sole element of Review 9 subject to Japan's challenge was 
the USDOC's use of the zeroing procedures, and the evidence in this regard was identical to the 
evidence submitted with respect to Reviews 4, 5, and 6.130  Moreover, the United States presented a 
defence with respect to Review 9 that was virtually identical to its defence with respect to these other 
periodic reviews.131  Japan also observes that the United States took advantage of ample opportunities 
                                                      
124Japan's appellee's submission, paras. 413-416 (referrin g to Panel Report, paras. 7.65-7.67, 7.71, 7.72, 
7.74, and 7.75). 
125Japan's appellee's submission, para. 419 (referring to Panel Report, para. 7.114). 
126Japan's appellee's submission, para. 419. 
127Japan's appellee's submission, para  421 (referring to Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10). 
128Japan's appellee's submission, para. 422 (quoting Appellate Body Report, EC – Chicken Cuts , 
para. 155, in turn referring to Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10).  Japan also 
refers generally to Appellate Body Report, US – Carbon Steel , para. 126;  Appellate Body Report, Korea – 
Dairy , paras. 126 and 127;  Appellate Body Report, EC – Computer Equipment , para. 70;  and Appellate Body 
Report, Thailand – H-Beams , para. 95. (Japan's appellee's submission, para. 422 and footnote 565 thereto) 
129See Japan's appellee's submission, paras. 425-439. 
130Japan's appellee's submission, paras. 429 and 430. 
131Japan's appellee's submission, paras. 432-435.  WT/DS322/AB/RW 
Page 22  
 
  to address the one aspect of its defence relating to Review 9 that varied from its defence relating to 
Reviews 4, 5, and 6, namely, that Review 9 was not properly within the Panel's terms of reference.
132 
51. Further, Japan argues that third parties had th e opportunity to present their views concerning 
Review 9, and potential third parties were not deprived of their rights.  Three third parties—the European Communities, Mexico, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu—addressed whether Review 9 fell within the Pa nel's terms of reference, and agreed that it 
did.
133  Moreover, according to Japan, there is no reaso n to assume that potential third parties did not 
interpret the phrase "any subsequent closely connected measures" to include Review 9. 
52. Finally, Japan disagrees with the United States' contention that the inclusion of Review 9 in 
the Panel's terms of reference would create "asymme try" in the sense that the Panel would exercise 
jurisdiction over a post-establishment measure ch allenged by a complaining Member, but not over 
one relied upon by a responding Member.134  Japan points out that, in  this case, the United States 
asserted that it "came into compliance"135 with the DSB's recommendations and rulings by adopting 
the subsequent periodic reviews, including Review  9, and the Panel examined and addressed each of 
them.136  Japan argues that previous panels have ex amined post-establishment measures offered by a 
responding Member as evidence that an alle ged WTO-inconsistency no longer exists.137  In Japan's 
estimation, a panel's failure to do so would in fact constitute legal error.138 
53. For the foregoing reasons, Japan requests the Ap pellate Body to reject the United States' 
appeal of the Panel's finding that Review 9 properly fell within its terms of reference. 
                                                      
132Japan's appellee's submission, paras. 436-438 (ref erring to United States' first written submission to 
the Panel, para. 50;  United States' second written submission  to the Panel, paras. 29-3 4;  United States' opening 
statement at the meeting with the Panel, paras. 13 and 14;  United States' response to Japan's Supplemental 
Submission, paras. 8-16;  United States' appellant's submission, para. 42 and footnote 47 thereto;  and Panel 
Report, paras. 7.103 and 7.105). 
133Japan's appellee's submission, para. 441 (referring to European Communities' oral statement at the 
meeting with the Panel, paras. 47 and 48;  European  Communities' third party submission, para. 27;  oral 
statement of the Separate Customs Territory of Taiwan , Penghu, Kinmen and Matsu at the meeting with the 
Panel, paras. 7, and 12-15;  and Mexico's oral statement at the meeting with the Panel, para. 12).  Japan notes 
that an additional third party, Norway, "expressly declined  to offer its views" on Review 9. (Japan's appellee's 
submission, footnote 596 to para. 441 (referring to Norway's third party submission to the Panel, para. 7)) 
134Japan's appellee's submission, para. 444 (referring to United States' appellant's submission, para. 57). 
135Japan's appellee's submission, para. 445 (quoting United States' responses to Panel Questions 
dated 26 November 2008, para. 3;  see also paras. 10, 13, 14, 16, and 17). 
136Japan's appellee's submission, para. 445 (referring to Panel Report, paras. 7.69-7.75). 
137Japan's appellee's submission, para. 447 (referring to Panel Report, India – Autos , paras. 8.4, 8.5, 
8.25 and footnote 461 thereto, and 8.28). 
138Japan's appellee's submission, paras. 450 and 451 (referring to Appellate Body Report, EC – 
Bananas III (Article 21.5 – US) , paras. 271 and 479;  Appellate Body Report, US –  Upland Cotton , para. 272;  
Appellate Body Report, US – Certain EC Products , paras. 80 and 81;  and Panel Report, Chile – Price Band 
System , para. 7.112).  WT/DS322/AB/RW 
 Page 23 
 
 
  2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8  
54. Japan supports the Panel's finding that the United States has failed to comply with the DSB's 
recommendations and rulings to bring Reviews 1, 2, 3, 7, and 8 into conformity with Articles 2.4 
and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.  Specifically, Japan 
submits that the importer-specific assessment rate s determined in these Reviews, and applied to 
entries that were, or will be, liquidated after the expi ry of the reasonable period of time, have not been 
revised and remain inconsistent with  the United States' WTO obligations. 
55. Japan rejects the United States' submission that the date of entry, rather than the date on 
which the anti-dumping duties are collected, is de terminative in assessing compliance.  Japan argues 
that the provisions cited by the United States—Article VI of the GATT 1994, and the Ad Note to 
paragraphs 2 and 3 of Article VI, and Ar ticles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping 
Agreement139—concern the date on which an anti-dumping duty order may be applied to an entry.  
They do not address the issue of how a Member s hould implement the recommendations and rulings 
of the DSB, nor how the applicable date fo r implementation action should be determined.140 
56. Japan asserts that using the date of entry to determine the United States' implementation 
obligations, as proposed by the United States, "nullifies"141 the disciplines contained in Article 9.3 of 
the Anti-Dumping Agreement , because, under a retrospective system, a WTO-inconsistent importer-
specific assessment rate always relates to entri es occurring before the expiration of the reasonable 
period of time.142  Under the "date of entry" approach , these rates would be immune from the 
disciplines of Article 9.3 and this would result in the collection of duties in excess of an exporter's 
margin of dumping.  Following this approach, a WT O-inconsistent importer-sp ecific assessment rate 
need never be brought into conformity with Artic le 9.3, and the importing Member could always 
collect inflated anti-dumping duties.143   
57. Moreover, Japan considers that the United Stat es' approach is contrary to the object and 
purpose of the dispute settlement system, which requires a WTO-inconsistent measure to be 
withdrawn or revised during the reasonable period of time.144  Following the United States' "date of 
entry" approach would mean that nullification or impairment resulting from the original WTO-
                                                      
139Japan's appellee's submission, para. 230. 
140Japan's appellee's submission, paras. 231 and 232 (quoting Panel Report, para. 7.147). 
141Japan's appellee's submission, para. 239. 
142Japan's appellee's submission, para. 245. 
143Japan's appellee's submission, para. 246. 
144Japan's appellee's submission, para. 248 (referring to Articles 3.7, 19.1, 21.1, and 21.3 of the DSU). WT/DS322/AB/RW 
Page 24  
 
  inconsistent measures would never be terminated and would continue  after the end of the reasonable 
period of time, without being offset by the suspension of concessions.
145  
58. Japan disagrees with the United States' argu ment that the Panel's interpretation treats 
retrospective and prospective duty collection sy stems unequally and "'[u]nfairly disadvantages 
Members with retrospective systems".146  Japan asserts that both systems are subject to the disciplines 
of Article 9.3 of the Anti-Dumping Agreement147, which requires the importing Member "to 'refund' 
some or all of the duties 'paid' on importation".148  Moreover, Japan asserts that, under either system, a 
review could continue to produce legal effects after the end of the reasonable period of time as a result 
of, for example, domestic litigation concerning that review.149  Japan submits that Articles 13, 14, 
and 15 of the International Law Commission Draft Articles on Responsibility of States for 
internationally wrongful acts150 (the "ILC Draft Articles") confirm that the United States is required 
by the DSU to bring its measures into conformity with its WTO obligations "when they continue to 
produce legal effects after the end of the RPT, regardless of the dates of entry" of imports.151 
59. Japan objects to the United States' characterization of its implementation obligations as being 
either "retrospective" or "prospective", em phasizing that these are not "treaty terms".152  Rather, the 
United States' compliance obligation, pursuant to Artic les 3.7, 19.1, 21.1, and 21.3 of the DSU, was to 
take "transformative" action to "b ring" the importer-specific assessment rates in Reviews 1, 2, 3, 7, 
and 8 "into conformity" by the end of the reasonable period of time.153  This obligation did not require 
the United States to "repay inflat ed duties that were collected ... before  the end of the RPT"154;  
instead, where the United States has not yet collected  duties by the end of the reasonable period of 
time, "[it] is required to take action to modify or revise the [importer-specific assessment rates in 
Reviews 1, 2, 3, 7, and 8] to ensure that any future  definitive anti-dumping duties collected do not 
exceed the properly determined margins of dumping".155 
                                                      
145Japan's appellee's submission, para. 250. 
146Japan's appellee's submission, para. 252 (quoting United States appellant's submission, heading IV. 
B.2). 
147Japan's appellee's submission, para. 253. 
148Japan's appellee's submission, para. 254. 
149Japan's appellee's submission, para. 257. 
150Draft Articles on Responsibility of States for in ternationally wrongful acts, adopted by the 
International Law Commission at its fifty-third session (9  August 2001).  The text of the ILC Draft Articles is 
annexed to the United Nations General Assembly Resolution A/RES/56/83 (29 January 2002).  
151Japan's appellee's submission, para. 261 and footnote 366 thereto.  
152Japan's appellee's submission, para. 206. 
153Japan's appellee's submission, paras. 21 7 and 219.  See also paras. 174-194. 
154Japan's appellee's submission, para. 215. (original emphasis) 
155Japan's appellee's submission, para. 215. (original emphasis)  WT/DS322/AB/RW 
 Page 25 
 
 
  60. Japan also rejects the United St ates' argument that it should be excused from its obligation to 
bring Reviews 1, 2, 3, 7, and 8 into conformity, because the delay in liquidation was due to domestic 
court proceedings.  Japan recalls that the panel in Brazil – Retreaded Tyres found that injunctions 
issued by a Member's own courts did not exone rate that Member from complying with its WTO 
obligations.156  Moreover, Japan dismisses the United States' argument that it cannot be held 
responsible in WTO law for actions by private parti es, noting that injunctions are actions taken by the 
United States' own courts, pursuant to powers confer red by United States law, which are attributable 
to the United States under WTO law.157  Japan recalls the Appellate Body's finding in US – Shrimp  
that a Member "bears responsibility for acts of a ll its departments of government, including its 
judiciary".158   
61. Japan disagrees that Article 13 and footnote 20 of the Anti-Dumping Agreement  support the 
United States' argument that, where duty collection is delayed beyond the end of the reasonable period 
of time as a result of domestic litigation, the United States need not bring the periodic reviews into 
conformity by the end of the reasonable period of  time.  Although footnote 20 provides an exception 
authorizing non-compliance with the deadlines in Ar ticle 9.3, according to Japan, this exception does 
not extend to the obligations in the DSU to bring WTO-inconsistent periodic reviews into conformity 
with WTO law.159  Further, Japan submits that, even if footnote 20 could excuse a delay in 
compliance, it does not excuse a Member from meeti ng its substantive obligati ons under Article 9.3 of 
the Anti-Dumping Agreement once the judicial review requirements have been met and the delay has 
passed.160 
62. Japan does not consider that judicial revi ew severs any "mechanical link" between the 
assessment of liability in the original determination and the liquidation instructions.161  According to 
Japan, "judicial review does not alter either the manner by which [Customs] takes measures to collect 
duties, or the interaction between the USDOC and [Customs]".162  Rather, "[w]ith or without 
litigation, the mechanism for duty collection takes the same ordinary course ... [and] always  derive[s] 
mechanically from the USDOC 's assessment rate through the straightforward application of the basic 
                                                      
156Japan's appellee's submission, para. 279 (referring to Panel Report, Brazil – Retreaded Tyres , 
para. 7.305;  and Appellate Body Report,  Brazil – Retreaded Tyres , para. 252). 
157See Japan's appellee's submission, para. 282. 
158Japan's appellee's submission, para. 283 (quoting Appellate Body Report, US – Shrimp , para. 173).  
159Japan's appellee's submission, para. 290. 
160Japan's appellee's submission, paras. 291 and 292. 
161Japan's appellee's submission, para. 293 (referring to the United States' appellant's submission, 
para. 97).  
162Japan's appellee's submission, para. 293. WT/DS322/AB/RW 
Page 26  
 
  laws of arithmetic".
163  Moreover, even if the or iginal assessment rate is amended following judicial 
review, such amendment is relevant in Article  21.5 proceedings, not because it would break the 
"mechanical link" between Customs' duty collectio n measures and the original assessment rate, as 
contended by the United States, but "because the am endment might bring the measure into conformity 
with WTO law".164  Japan notes, however, that this did not o ccur in this case as the revised assessment 
rates in Reviews 1, 2, and 3 were based on the same zeroing methodology that rendered the original 
assessment rate WTO-inconsistent.165   
63. Furthermore, Japan does not agree with the United States' suggestion that the Panel's 
approach creates "perverse incentives" for priv ate parties to "manufacture domestic litigation".166  
Japan underscores the "considerable expenses" incurred by interested  parties in pursuing judicial 
proceedings with respect to Reviews 1, 2, 3, 7, and 8, including challeng es to the use of zeroing, 
which make it unlikely that domestic  litigation would be "manufactured".167  Japan posits that it 
cannot be considered "perverse" for private pa rties to seek to enjoin enforcement of WTO-
inconsistent periodic reviews. 
64. Accordingly, Japan requests the Appellate Body to uphold the Panel's findings that the United 
States has failed to bring the importer-specific assessm ent rates in Reviews 1, 2, 3, 7, and 8 into 
conformity with its WTO obligations after th e expiry of the reasonable period of time. 
3. The Panel's Findings on Reviews 4, 5, 6, and 9  
65. For Japan, the United Stat es' statement that Reviews 4, 5, 6, and 9 "cannot serve as a basis  for 
a finding of WTO-inconsistency"168 raises "a threshold issue" of whether or not the Panel was entitled 
to rule on the inconsistency of Reviews 4, 5, 6, and 9 in these Article 21.5 proceedings.169  Japan 
asserts that Reviews 4, 5, 6, and 9 were "measures taken to comply" that provided the Panel with a 
necessary and sufficient "basis" to rule on their consistency.170 
                                                      
163Japan's appellee's submission, para. 294. (original emphasis) 
164Japan's appellee's submission, para. 295. 
165Japan's appellee's submission, para. 296 (referring to Panel Report, para. 7.139 and footnote 148 
thereto, and para. 7.154). 
166Japan's appellee's submission, para. 285 (referring to United States' appellant's submission, para. 99). 
167Japan's appellee's submission, para. 285. 
168Japan's appellee's submission, para. 460 (quoting Un ited States appellant's submission, para. 105). 
(underlining added by Japan)  See also United States' appellant's submission, paras. 21, 24, 86, and 89. 
169Japan's appellee's submission, para. 461. 
170Japan's appellee's submission, para. 465 (referring to  United States' appellant's submission, paras. 21, 
24, 86, 89, and 105).   WT/DS322/AB/RW 
 Page 27 
 
 
  66. Japan rejects the United States' argument that  the timing of a periodic review precludes a 
compliance panel from ruling on its consistency.  Relying on the Appellate Body's finding in US – 
Zeroing (EC) (Article 21.5 – EC)  that "the timing of a measure cannot be determinative of whether it 
bears a sufficiently close nexus with a Member's implementation of the recommendations and rulings 
of the DSB so as to fall within the scope of an Article 21.5 proceeding"171, Japan rejects the United 
States' argument that "the fact that Reviews 4, 5 and 6 were 'concluded long before the end of the 
RPT' means these reviews 'cannot provide a basis for finding that the United States acted 
inconsistently' with its WTO obligations".172  As such, the Panel was entitled to rule upon the 
consistency of Reviews 4 and 5, even though they pre-dated the DS B's recommendations and rulings 
and, hence, the end of the reasonable period of time.173  For this same reason, Japan argues that  
Review 6, adopted after the original DSB recommend ations and rulings but be fore the expiration of 
the reasonable period of time, was also properl y found to be a measure taken to comply.174  Finally, 
Japan submits that, if measures ta ken to comply are not adopted before the end of the reasonable 
period of time, the implementing Me mber would fail to comply with its obligations under Article 21.3 
of the DSU to bring its measures into conformity by the end of the reasonable period of time.175 
67. Japan also rejects the United States' contention that Reviews 4, 5, 6, and 9 do not have any 
effects after the end of the reasonable period of time, and opposes the United States' argument that the Panel failed to explain the basis for its finding of  inconsistency regarding Reviews 4, 5, 6, and 9.
176  
Japan refers to the Panel's "express" finding, in its  analysis of whether Reviews 4, 5, and 6 were 
measures taken to comply, that "importer-specific assessment rates determined in Reviews 4, 5, and 6 
continued to have legal effect long after the adoption of the DSB's recommendations and rulings."177  
Japan also notes that the Panel's factual finding that some of the import entries covered by Reviews 4, 
5, and 6 had not been liquidated by the time of th e Panel proceedings was not appealed by the United 
States.178  Further, Japan refers to th e fact that Review 9 was adopted  after the reasonable period of 
time and therefore necessarily began to a pply and produce legal effects thereafter. 
                                                      
171Japan's appellee's submission, para. 469 (quoting Appellate Body Report, US – Zeroing (EC) 
(Article 21.5 – EC) , para. 224). 
172Japan's appellee's submission, para. 468 (quoting Un ited States' appellant's submission, para. 105). 
173Japan's appellee's submission, para. 470. 
174Japan's appellee's submission, paras. 471 and 472. 
175Japan's appellee's submission, para. 473. 
176Japan's appellee's submission, para. 479 (quoting United States' appellant's submission para. 102).  
177Japan's appellee's submission, para. 480 (quoting Panel Report, para. 7.79).   
178Japan's appellee's submission, para. 482 (referring to Panel Report, para. 7.74 and footnote 101 
thereto, and para. 7.75 and footnote 102 thereto). WT/DS322/AB/RW 
Page 28  
 
  68. For these reasons, Japan asserts that the assessment  rates from Reviews 4, 5, 6, and 9 continue 
to have effects after the end of the reasonable pe riod of time and will serve as the legal basis for duty 
collection measures to be taken with resp ect to entries covered by these Reviews.
179 
69. Japan further submits that the United States is mistaken in submitting that the "post-RPT legal 
effects of 'measures taken to comply'—like those of original measures—are to be ignored in assessing 
compliance, if the effects linger because of court injunctions."180  Japan contends that, in WTO law, 
court injunctions are attributable to, and the res ponsibility of, the United States, and that they cannot 
"exonerate" a Member from its obliga tions to comply with WTO law.181   
70. Accordingly, Japan submits that the Panel correctly found that Reviews 4, 5, 6, and 9 are 
"measures taken to comply" and that the Panel had a valid legal "basis" to rule on the consistency of 
these Reviews under Article 21.5.  Therefore, Japan requests the Appellate Body to uphold the Panel's 
finding that the United States has acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994 by applying zer oing in the context of Reviews 4, 5, 6, 
and 9. 
4. Article II of the GATT 1994  
71. Japan submits that the Panel correctly found that the United States is in violation of 
Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain USDOC liquidation instructions 
and Customs liquidation notices issued after the expi ration of the reasonable period of time.  Japan 
argues that the Panel had a proper basis to exam ine the WTO-consistency of the USDOC liquidation 
instructions and Customs liquidation notices because  the Panel had found that they are "measures 
taken to comply", and thus fell w ithin the jurisdiction of the Panel.182  Japan disagrees with the United 
States' argument that Japan's claims under Article II  are entirely derivative of its claims concerning 
the consistency of Reviews 1, 2, 7, and 8 with Articles 2.4 and 9.3 of the Anti-Dumping Agreement  
and Article VI:2 of the GATT 1994.  Japan notes that  its claims with respect  to the duty collection 
measures involve "different measures, and different cl aims" from its claims with respect to Reviews 1, 
2, 7, and 8.183  In this regard, Japan highlights the fact that they are separate and distinct measures, 
with distinct content, different times of adoption, that they involve separate agencies, and give rise to 
                                                      
179Japan's appellee's submission, para. 484. 
180Japan's appellee's submission, para. 489. 
181Japan's appellee's submission, para. 489. (emphasis omitted) 
182See Japan's appellee's submission, paras. 498-506.  Japan makes these submissions while 
acknowledging that the United States does not appeal the Panel's finding that the liquidation actions are measures taken to comply. 
183Japan's appellee's submission, para. 521.  WT/DS322/AB/RW 
 Page 29 
 
 
  mutually exclusive remedies in United States law.   Furthermore, Japan submits that measures 
affecting the collection or levying of import duties at WTO-inconsistent rates are not shielded from 
scrutiny under Article II of the GATT 1994, if a rela ted periodic review is challenged under separate 
WTO provisions.184  Japan argues that the liquidation actions  nullify and impair Japan's benefits under 
Article II of the GATT 1994, because they levy import duties in excess of the rates stipulated in the 
United States' Schedule of Concessions. 
72. Japan asserts that the United States' other two arguments—that the relevant date for 
determining compliance is the date of entry of th e merchandise, and that the duty collection measures 
would have occurred within the reasonable pe riod of time but for domestic litigation—are 
jurisdictional in nature and are explicitly directed  towards challenging whether the Panel had a valid 
basis or authority to rule upon the "consistency" of the duty collection measures.185  Japan repeats that 
the Panel's authority to rule on the consistency of the duty collection measures is not affected by the 
fact that goods covered by the measures entered th e United States before the end of the reasonable 
period of time.186  Japan also reiterates that court inj unctions cannot "exonera te" an implementing 
Member from its obligation to ensure that "measu res taken to comply" are "consistent" with WTO 
law.187 
C. Arguments of the Third Participants 
1. European Communities  
73. The European Communities agrees  with Japan that the Appellate Body should reject the 
United States' appeal in its entirety.  To the exte nt that the United States raises issues already decided 
by the Appellate Body in US – Zeroing (EC) (Article 21.5 – EC) , the European Communities submits 
that, "[a]bsent any new cogent reasons"188, the same principles and legal interpretation must be 
applied to the facts of this case. 
74. With respect to Review 9, the European Communities submits that the requirement in 
Article 6.2 of the DSU to identify the specific me asures at issue does not have a temporal scope;  
rather, it only requires that a panel request allow the Member concerned to understand in substantive 
terms the measure being referenced.  In this case, the United States was put on notice as to the specific 
                                                      
184Japan's appellee's submission, para. 522. 
185Japan's appellee's submission, paras. 529 and 530. 
186Japan's appellee's submission, para. 539. 
187Japan's appellee's submission, para. 546. 
188European Communities' third participant's submission,  paras. 21, 26, and 29 (referring to Appellate 
Body Report, US – Stainless Steel (Mexico) , para. 160). WT/DS322/AB/RW 
Page 30  
 
  measures challenged, because Japan had identified the periodic reviews in Annex 1 of its panel 
request, the procedures under United States municipal la w to modify periodic reviews are limited, and 
Review 9 had been initiated before Japan's request.
189  Moreover, the European Communities 
distinguishes the facts before the panel in US – Upland Cotton , where it was not certain that the 
measure would come into existence, from the facts in this case, where United States municipal law 
provides for limited means to amend periodic review s.  The European Communities also recalls the 
statement by the Appellate Body in US – Continued Zeroing  that an examination under Article 6.2 of 
the DSU need not involve a substantive inquiry as to the existence and precise content of the 
measure.190 
75. As regards Reviews 1, 2, 3, 7, and 8, the European Communities rejects the United States' 
argument that the Panel's approach would provide a "retroactive remedy" and give "retroactive effect" 
to the DSB's recommendations and rulings.  The Eu ropean Communities observes that the reference 
to a "remedy" would only be relevant for purpo ses of determining the level of nullification and 
impairment of benefits  to Japan in the context of an Article 22. 6 arbitration, which is not of concern at 
this stage of the proceedings.  Secondly, th e European Communities argues that the DSB's 
recommendations and rulings cannot be characteriz ed as "retroactive", because both the omissions 
and the actions with respect to Reviews 1, 2, 3, 7,  and 8 post-date the end of the reasonable period of 
time.  Moreover, it is immaterial that the assess ment rates pre-date the DSB's recommendations and 
rulings, since the entire point of the recommendations and rulings is that the original measures, 
including the assessment rates, be brought into conformity.  The European Communities points out 
that the obligations in question flow from the treat y, in the sense that the DSB's recommendations and 
rulings merely clarify the pre-existing rights and obligations of the parties.191   
76. The European Communities agrees with the Pane l's rejection of the United States' "date of 
entry" argument.  The European Commun ities argues that the provisions of the Anti-Dumping 
Agreement  cited by the United States simply reflect th at an import cannot be subject to an anti-
dumping duty unless a measure is in place, and do not concern compliance by a Member by the end of the reasonable period of time.
192  Furthermore, the European Comm unities asserts that Article 9.2 of 
the Anti-Dumping Agreement  regulates collection of anti-dumping duties, including the amount of 
                                                      
189European Communities' third participant's submission, para. 13.  
190European Communities' third participant's submission,  para. 15 (referring to Appellate Body Report, 
US – Continued Zeroing , paras. 168 and 169). 
191European Communities' third participant's submission, para. 24.  
192European Communities' third participant's submission, para. 27.  WT/DS322/AB/RW 
 Page 31 
 
 
  such duties, which signifies that actions to collect duties based on zeroing and applied after the end of 
the reasonable period of time are relevant for assessing compliance.193 
77. The European Communities submits that WTO ob ligations for retrospective and prospective 
anti-dumping systems are equal.  Both require that, if  duties have not been liquidated by the end of the 
reasonable period of time, no new WTO-inconsistent me asure can be taken, regardless of the date of 
entry covered by that measure.194  The European Communities notes that the United States focuses on 
the forward-looking aspect of implementation in a prospective system, while omitting to consider the 
backward-looking aspect of the prospective sy stem, namely, the refund proceedings under 
Article 9.3.2 of the Anti-Dumping Agreement , in which all the pertinent WTO obligations must be 
complied with after the end of the reasonable period  of time, even if the goods in question entered 
before the end of this period.195  To illustrate this point, the Eu ropean Communities refers to refund 
proceedings in which it applied a new WTO-cons istent methodology following the Panel Report in 
EC – Countervailing Measures on DRAM Chips .196 
78. The European Communities dismisses the United States' attempt to excuse its non-
compliance by referring to measures, such as injuncti ons, granted by its judiciary.  The European 
Communities refers to Article 27 of the Vienna Convention on the Law of Treaties197 (the " Vienna 
Convention "), pursuant to which "a party may not invoke the provisions of its internal law as 
justification for its failure to perform a treaty."  Moreover, Article XVI:4 of the Marrakesh Agreement 
Establishing the World Trade Organization  (the " WTO Agreement ") and Article 18 of the Anti-
Dumping Agreement  require Members to take all necessary steps of a general or particular character 
to ensure WTO conformity of its municipal law.198  This also applies to municipal court injunctions.  
The European Communities observes that neith er footnote 20, nor Article 13, of the Anti-Dumping 
Agreement  supports the United States' argument.  No r does the European Co mmunities accept that 
court proceedings initiated by private parties s hould justify non-compliance, since injunctions are 
actions imputable to the United States and are grante d because there is some prospect that the court 
proceedings will be successful.199  The European Communities reje cts the United States' reliance on 
the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC)  to support its arguments that a 
                                                      
193European Communities' third participant's submission, para. 28.  
194European Communities' third participant's submission, paras. 30 and 33. 
195European Communities' third participant's submission, para. 31. 
196European Communities' third participant's submission, para. 32;  European Communities' response 
to questioning at the oral hearing. 
197Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
198European Communities' third participant's submission, paras. 36 and 38. 
199European Communities' third participant's submission, para. 39. WT/DS322/AB/RW 
Page 32  
 
  delay in assessment or liquidation due to judicial proceedings would sever the "mechanical" link, 
because this issue was not  addressed by the Appellate Body in that report.
200  The European 
Communities explains that the A ppellate Body was not positing an a contrario  rule, that, if an action 
is not "mechanistic", late  compliance is justified.201  Furthermore, the European Communities asserts 
that liquidation actions (incorporating the results of  the judicial review proceedings) are positive acts 
that must be in conformity with the covered agreements when they are issued.  If the WTO-
inconsistent aspect of the measure was not remove d in the municipal litigation, then assessment and 
liquidation would proceed "just as it would in any other case".202 
79. The European Communities agrees with the Panel' s finding that Reviews 4, 5, 6, and 9 were 
measures taken to comply, which are WTO-inconsistent as a result of the use of zeroing.  For the same reasons explained above, the European Comm unities rejects the United States' arguments based 
on an alleged "retroactive remedy", "date of entr y", and "unequal treatment of prospective and 
retrospective systems".  In addition, the Europ ean Communities rejects the view that these Reviews 
"ceased to exist" and "had no effects" after the e nd of the reasonable period of time, since it is "self-
evident" that they are necessarily  either the legal basis for liquidation using zeroing or for the 
continued retention of cash deposits after the end of the reasonable period of time.  The European 
Communities notes that the Panel made factual findings in this respect.
203  According to the European 
Communities, whilst it is clear that compliance pro ceedings cannot normally be brought before the 
end of the reasonable period of time, this does not  mean that any WTO-inconsistent measure taken 
during that period is shielded from WTO-scrutiny.204 
2. Korea  
80. Korea submits that the Appellate Body should upho ld the Panel's findings in this dispute.  
Korea argues that, in finding that Review 9 was with in its terms of reference,  the Panel properly relied 
                                                      
200European Communities' third participant's submissi on, para. 40 (quoting United States' appellant's 
submission, para. 97). 
201European Communities' third participant's submission, para. 40. 
202European Communities' third participant's submission, para. 41. 
203European Communities' third participant's submission, para. 46 (referring to Panel Report, 
para. 7.79, which states, in relevant part, that "importer-specific assessment rates determined in Reviews 4, 5 
and 6 continued to have legal effect long after th e adoption of the DSB's recommendations and rulings.") 
204European Communities' third participant's subm ission, paras. 48 and 49.  The European 
Communities notes that the United States Court of Appeals in the Parkdale  case rejected the argument that a 
new USDOC policy would be impermissibly retroactive if it were applied to pr ior unliquidated entries. 
(European Communities' third participant's submission, footno te 69 to para. 48 (referring to United States Court 
of Appeals, Federal Circuit, Parkdale International v. United States , 475 F.3d 1375, 1379 (Fed. Cir. 2007) 
(9 February 2007)))  WT/DS322/AB/RW 
 Page 33 
 
 
  on the "predictability" associated with periodic revi ews under the United States' anti-dumping system 
and on the fact that it was part of a "continuum".205  
81. Korea further submits that any measure taken af ter the expiration of the reasonable period of 
time must be brought into compliance "irrespective of the date of entry".206  Korea explains that, as 
long as an action occurs after the reasonable peri od of time, it cannot be said to be retroactive.207  
Korea rejects the relevance of the provisions of the Anti-Dumping Agreement  on which the United 
States relies, arguing that "[a]t most ... these article s only show that the date of entry carries some 
meaning or initiates some function in the course of the duty assessment administration of a Member".
208  Moreover, Korea refers to US – Zeroing (EC) (Article 21.5 – EC)  and observes that, in 
that report, the Appellate Body "held that the date of entry is not determinative".209 
82. Korea asserts that the fact the liquidations were delayed because of domestic judicial 
proceedings cannot, and should not, affect the scope  of the obligation of the implementing Member.210  
Korea does not consider the United States' argument that domestic judicial proceedings are initiated by private parties to be relevant for purposes of the disposition of this issue.  Korea states that, "far 
from [being] a judicial tool that a private litigant coul d attempt to take advantage of in an effort to 
merely prolong the procedure", injunctions are "a n extraordinary remedy the court provides after 
careful consideration".
211  Korea emphasizes that it is not th e private entity that makes a decision 
about an injunction, but rather "it is a [United States] judge sitting in the [United States] court".212  
Furthermore, Korea considers that a private pa rty should not be prevented from pursuing "every 
avenue available domestically" when it has standing to do so.213  Korea also rejects the United States' 
assertion that the Panel's approach would require th e United States to "revisit" prior determinations.214  
For Korea, the Panel's approach is "entirely appr opriate" as it requires an implementing Member to 
liquidate the anti-dumping duties correctly in accordance with the Anti-Dumping Agreement .215  Korea 
thus submits that the Appellate Body should affirm  the Panel's finding that "the judicial review-
                                                      
205Korea's third participant's submi ssion, paras. 54 and 55 (referring to Panel Report, para. 7.105). 
206Korea's third participant' s submission, para. 28. 
207Korea's third participant' s submission, para. 23. 
208Korea's third participant' s submission, para. 24. 
209Korea's third participant's s ubmission, para. 27 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 309). 
210Korea's third participant' s submission, para. 33. 
211Korea's third participant's submi ssion, footnote 12 to para. 34. 
212Korea's third participant' s submission, para. 36. 
213Korea's third participant' s submission, para. 36. 
214Korea's third participant's submission, para. 38 (quoting United States' appellant's submission, 
para. 4). 
215Korea's third participant' s submission, para. 38. WT/DS322/AB/RW 
Page 34  
 
  delayed liquidation should also fall within the pa rameters of [the] compliance obligation of the 
implementing Member."
216 
83. Korea considers that the Panel's approach tr eats retrospective and prospective anti-dumping 
systems "equally".217  Korea explains that the "obligation to  cease" the inconsistent measures after the 
reasonable period of time is "identical" for all Members, irrespective of whether they apply a 
retrospective or prospective anti-dumping system.218  Korea adds that what is challenged in this case 
is not the manner in which the United States conducts  a periodic review, but rather actions taken by 
the United States after the reasonable period of time. 
84. Korea also submits that the Appellate Body sh ould uphold the Panel's finding under Article II 
of the GATT 1994, which Korea describes as an "important contribution".219  Korea submits that the 
Panel's finding under Article II is necessary for th e effective resolution of the dispute because it 
"shows the extent of negative impact caused by ... non-compliance".220  Furthermore, Korea explains 
that the findings under Article II show that the application of the zeroing practice and the continued 
non-compliance of the DSB's recommendations and ruli ngs can also "potentially undermine the basic 
expectations the Members have within the WTO regime, including Schedules of Concessions."221 
3. Mexico  
85. Mexico urges the Appellate Body to  adhere to its prior reasoning in US – Zeroing (EC) 
(Article 21.5 – EC)  and to affirm the findings of the Panel.222  In particular, Mexico highlights two 
key principles articulated by the Appellate Body in US – Zeroing (EC) (Article 21.5 – EC)  that it 
submits should inform the outcome of the present proceed ings.  First, that a measure is one "taken to 
comply" under Article 21.5 of the DSU if there is a sufficiently close nexus between it and the DSB's 
recommendations and rulings223;  and, secondly, that the obligation to implement the 
recommendations and rulings of the DSB extends to  measures that occur after the expiry of the 
                                                      
216Korea's third participant' s submission, para. 40. 
217Korea's third participant' s submission, para. 45. 
218Korea's third participant' s submission, para. 49. 
219Korea's third participant' s submission, para. 41. 
220Korea's third participant' s submission, para. 42. 
221Korea's third participant' s submission, para. 43. 
222Mexico's third participant's submission, para. 10. 
223Mexico's third participant's submission, para. 8 (referring to Appellate Body Report,  US – Zeroing 
(EC) (Article 21.5 – EC) , paras. 221-235).  WT/DS322/AB/RW 
 Page 35 
 
 
  reasonable period of time where those measures "derive mechanically" from anti-dumping duty 
determinations made prior to the e xpiry of the reasonable period of time.224 
86. Mexico asserts that the Panel correctly found that  Review 9 fell within its terms of reference 
and that the phrase "subsequent closely connected  measures" in Japan's panel request includes 
Review 9.  Mexico endorses the view of the Panel th at Review 9 is "a measure taken to comply" and 
emphasizes that "once finalised [Review 9] would become the next administrative review in the 
continuum of administrative reviews re lated to the 1989 Anti-Dumping Order."225  Mexico considers 
that, in the light of the predictability of the United States' retrospective anti-dumping system, the 
Panel appropriately distinguished the situ ation in this case from the situation in US – Upland 
Cotton .226  Mexico disagrees with the United States' argume nt that measures not yet in existence at the 
time of the panel request may not be subject to WTO dispute settlement.227  According to Mexico, 
compliance is focused on the final results of th e process of implementation and the DSU does not 
impose a temporal limit on the measures that may be  considered in determining whether compliance 
has been achieved.  Mexico cautions that th e objectives of WTO dispute settlement would be 
seriously undermined if a Member were allowed to continue applying WT O-inconsistent measures 
after the reasonable period of time had expired. 
87. Next, Mexico contends that the Panel correctly  found that the United States' implementation 
obligations are determined by the expiry date of th e reasonable period of time, irrespective of the date 
of entry of the relevant imports, and that this is consistent with the Appellate Body's approach in US – 
Zeroing (EC) (Article 21.5 – EC) .228  Mexico submits that, accordingly, the United States fails to act 
in compliance when it takes any positive action after th e end of the reasonable period of time that is 
contrary to the DSB's recommendations and rulings, regardless of the date of entry of the imports 
affected by the action.229  Mexico contends that to rule otherwise would permit the United States "'to 
extend the reasonable period of time ...' indefin itely to evade its WTO obligations" and would 
"deprive of meaning" the notion of a reasonable period of time.230  Mexico further argues that 
                                                      
224Mexico's third participant's submission, paras. 9, 27, and 30 (referring to and quoting Appellate 
Body Report,  US – Zeroing (EC) (Article 21.5 – EC ), paras. 300-310). 
225Mexico's third participant's submission, pa ra. 61 (quoting Panel Report, para. 7.110). 
226Mexico's third participant's submission, para. 57 (referring to Panel Report, para. 7.115). 
227Mexico's third participant's submission, para. 58 (referring to United States' appellant's submission, 
para. 47). 
228Mexico's third participant's submission, paras. 32 and 33 (referring to Appellate Body Report,  US – 
Zeroing (EC) (Article 21.5 – EC) , para. 311). 
229Mexico's third participant's submission, para. 36. 
230Mexico's third participant's submission, para. 36 ("' ampliar el plazo prudencial ... ' indefinidamente 
para evadir sus obligaciones bajo la OMC ";  "privaría de todo sentido ") (quoting Appellate Body Report,  US – 
Zeroing (EC) (Article 21.5 – EC ), para. 309). WT/DS322/AB/RW 
Page 36  
 
  permitting liquidation to occur after the expiry of the reasonable period of time on the basis of WTO-
inconsistent anti-dumping margins would be in viol ation of the obligation in Article 9.3 of the Anti-
Dumping Agreement  to ensure that the amount of anti-dumping duties collected does not exceed the 
margin of dumping established under Article 2 of the Anti-Dumping Agreement .
231 
88. Mexico rejects the United States' argument that  a finding of non-compliance cannot be based 
on the liquidation of anti-dumping duties that has been delayed until after the expiry of the reasonable 
period of time due to domestic judicial proceedings.  Mexico considers that Articles 9.3 and 13 of the 
Anti-Dumping Agreement "do[] not address, let alone modify, the United States' compliance 
obligations".232  Mexico submits that the obligation to comply derives from the provisions of the 
DSU, which require "universal compliance" re gardless of the factual circumstances surrounding 
delays related thereto.233  Mexico also disputes the United States'  suggestion that judicial review has 
severed the link between the liquidation of entries a nd the liability determined in the original review 
determination.  Rather, the releva nt analysis should be whether liqui dation bears a "sufficiently close 
nexus" with the recommendations and rulings of the DSB.234  Mexico asserts that it does and, 
therefore, the liquidation actions are "measures taken to comply".  Further, Mexico explains that it is 
of no relevance that private litigants caused the delay in liquidation.  Although the Anti-Dumping 
Agreement requires Members to afford priv ate litigants the opportunity to pursue judicial proceedings, 
and delayed liquidation is an "entirely predictable consequence" of the domestic procedures chosen by 
the United States to implement this obligation, this does not relieve the United States of its 
compliance obligations under the DSU.235  Mexico notes that the Appellate Body in US – Zeroing 
(EC) (Article 21.5 – EC) did not explicitly decide the issue of  whether judicial delay can excuse non-
compliance.  However, according to Mexico, the A ppellate Body's ruling that compliance implies not 
only cessation of zeroing in the assessment of duties, but also in consequent measures that "derive 
mechanically" from that assessment, clearly supports  the notion that actions to liquidate that are 
delayed as a result of judicial proceedings cannot be excluded from the compliance obligations of the 
United States.236 
                                                      
231Mexico's third participant's submission, para. 37. 
232Mexico's third participant's submission, para. 41 (" no se refieren, ni mucho menos modifican, las 
obligaciones de cumplimiento de Estados Unidos "). 
233Mexico's third participant's submission, para. 41.  
234Mexico's third participant's submission, para. 42. 
235Mexico's third participant's submission, para. 44 (" consecuencia enteramente previsible ").  
236Mexico's third participant's submission, para. 45 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , para. 310).  WT/DS322/AB/RW 
 Page 37 
 
 
  89. Finally, Mexico argues that WTO Members w ith retrospective anti-dumping systems are not 
unfairly disadvantaged when actions that "deriv e mechanically" from the assessment of duties are 
included in those Members' implementation obligations .  Mexico disagrees with the United States that 
the Panel's approach has "retroactive effects", st ating that the implementation obligation "does not 
require repayment of duties that have already been assessed and collected on liquidated entries"237;  
rather, it focuses on future actions taken after the reasonable period of time to collect anti-dumping 
duties. Mexico also takes issue with the United States' contention that it "elected to adopt a 
retrospective system long before there was a WTO"  and it "cannot be presumed to have agreed to 
'consequences' only now being assigned" by panels and the Appellate Body.238  Mexico explains that, 
after adopting a retrospective system, the Unite d States later negotiated and agreed to the WTO 
Agreement , and it must be presumed to have had full know ledge of the inherent differences between 
retrospective and prospective systems.239  Mexico highlights that the implementation obligations 
under both systems are equal in the sense that no new action that is inconsistent with the DSB's 
recommendations and rulings may be taken in either system after th e end of the reasonable period of 
time.  Mexico points to the discrimination that the United States' interpretation would create in 
allowing Members with retrospective systems to ev ade their WTO obligations for an extended period 
of time, while requiring Members with a prospective system to comply immediately. 
4. Norway  
90. Norway supports the Panel's findings that Review  9 fell within the Panel's terms of reference, 
and that the United States failed to comply with the DSB's recommendations and rulings with respect 
to the importer-specific assessment rates determ ined in Reviews 1, 2, 3, 7, and 8.   
91. Norway disagrees with the United States that Review 9 was not sufficiently specified in 
Japan's panel request and that it fell outside the Pa nel's terms of reference because it did not exist 
when the panel request was made.  Norway subm its that the phrase "subsequent closely connected 
measures" in the panel request was specific enough to meet the requirements of Article 6.2, since 
previous panels have accepted refe rences to a category of measures.240  Norway agrees with the Panel 
that the facts of this case show that inclusion of  Review 9 "should not in any way [have] come as a 
                                                      
237Mexico's third participant's submission, para. 50 (" no requiere el volver a pagar los derechos que ya 
fueron determinados y cobrados sobre entradas liquidadas "). 
238Mexico's third participant's submission, para. 51 (quoting United States' appellant's submission, 
para. 78). 
239Mexico's third participant's submission, para. 51. 
240Norway's third participant's submission, para. 16 (referring to Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10;  Panel Report, EC – Bananas III (US) , para. 7.27;  and Appellate Body 
Report, EC – Bananas III , para. 140). WT/DS322/AB/RW 
Page 38  
 
  surprise to the United States"
241 because it was clear from the United States' first written submission 
to the Panel that the United States was aware that the phrase would cover Review 9.242  N o r w a y  
further notes that, under the United States' retr ospective duty assessment system, Review 9 was 
predictable and came into existence as part of a "chain" or "continuum" of  measures, and Review 9 
had been initiated before the Panel was requested.  Norway recalls that the Appellate Body has held 
that future measures may, under exceptional circum stances, be included in a panel's terms of 
reference.243  Norway submits that the Panel properly relied on the Panel Report in Australia – 
Salmon (Article 21.5 – Canada)  to find that a measure introduced during compliance panel 
proceedings should be included within a panel's terms of reference, due to the "special characteristics 
of compliance proceedings", and in particular the "ongoing or continuous" nature of compliance.244  
Moreover, Norway states that there was no infringemen t of the parties' and third parties' due process 
rights.  Norway points out that the third parties r eceived all of the submissions relating to Review 9 
before the third party meeting with the Panel, and that they therefore had ample opportunity to 
respond to Japan's claim.245   
92. Norway recalls that the Appellate Body has al ready rejected the argument that the relevant 
date for assessing compliance is the date of entry of the subject merchandise.246  Furthermore, Norway 
does not consider that domestic judicial proceedings, as envisaged in Article 13 of the Anti-Dumping 
Agreement , provide an exception to compliance obl igations under the DSU.  Drawing on Brazil – 
Retreaded Tyres  and US  – Shrimp , Norway asserts that domestic court injunctions, even when 
initiated by private parties, cannot serve as a jus tification for non-complianc e with a Member's WTO-
obligations, since they remain acts of its govern ment for which it must be held responsible.247  Finally, 
Norway underscores that footnote 20 to the Anti-Dumping Agreement  provides an exception only to 
the time-limits contained in Article 9.3 of that Agreement, and not, as the United States argues, an exception to compliance obligations.
248 
                                                      
241Norway's third participant's submission, para. 22. 
242Norway's third participant's submission, para. 18 (referring to Panel Report, para. 7.105;  and United 
States' first written submission to the Panel, para. 50).  
243Norway's third participant's submission, pa ra. 8 (referring to Appellate Body Report, EC – Chicken 
Cuts, para. 156).  
244Norway's third participant's submission, para. 11 (quoting Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10).  
245Norway's third participant's submission, para. 28. 
246Norway's third participant's submission, para. 32 (referring to Appellate Body Report, US – Zeroing 
(EC) (Article 21.5 – EC) , paras. 308 and 309). 
247Norway's third participant's submission, paras. 38-40 (referring to Panel Report, Brazil – Retreaded 
Tyres , para. 7.305;  Appellate Body Report, Brazil – Retreaded Tyres , para. 252;  and Appellate Body Report, 
US – Shrimp , para. 173).  
248Norway's third participant's submission, para. 43.  WT/DS322/AB/RW 
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  III. Issues Raised in This Appeal  
93. The following issues are ra ised in this appeal: 
(a) Whether the Panel erred in finding that Revi ew 9 fell within its terms of reference 
because: 
(i) it was not properly identified in Ja pan's panel request, as required by 
Article 6.2 of the DSU;  and  
(ii) it had not been completed when Japan requested the establishment of the 
Panel. 
(b) Whether the Panel erred in finding that the United States has failed to comply with 
the DSB's recommendations and rulings re garding the importer-specific assessment 
rates determined in Reviews 1, 2, 3, 7, a nd 8 that apply to imports covered by those 
Reviews that were, or will be, collected after the expiry of the reasonable period of 
time, because: 
(i) the United States' compliance obligations  must be determined based on the 
date of importation and not on the basis of the date of collection of the anti-dumping duties;  and 
(ii) collection was delayed beyond the reasonable period of time due to the 
periodic reviews being subjected to  domestic judicial proceedings. 
(c) Whether the Panel erred in finding that the United States has acted inconsistently with 
Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the 
GATT 1994 by applying zeroing in the context of Reviews 4, 5, 6, and 9, because: 
(i) the United States' compliance obligations  must be determined based on the 
date of importation and not on the basis of the date of collection of the anti-dumping duties;  
(ii) collection was delayed beyond the reasonable period of time due to the 
periodic reviews being subjected to domestic judicial proceedings;  and 
(iii) Reviews 4, 5, and 6 had not had effect s after the reasonable period of time, 
given that collection had been suspended as a result of court injunctions. WT/DS322/AB/RW 
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  (d) Whether the Panel erred in finding that the United States is in violation of 
Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain liquidation 
actions taken after the expiry of the reasonabl e period of time, namely, with respect to 
the USDOC liquidation instructions set forth in Panel Exhibits JPN-40.A, and JPN-77 
to JPN-80, and the Customs liquidation noti ces set forth in Panel Exhibits JPN-81 to 
JPN-87. 
IV. The Panel's Terms of Reference – Review 9 
94. We begin by examining the United States' appeal  of the Panel's finding that Review 9 fell 
within its terms of reference.  Review 9 is a pe riodic review of an anti-dumping duty order on imports 
of ball bearings from Japan.
249  It followed successively from Reviews 1 through 6250, which were all 
periodic reviews stemming from the same anti-dumping duty order on ball bearings from Japan.  Review 9 covered imports for the period 1 May 2006 to 30 April 2007.   The notice of initiation of the 
Review was published by the United States Department of Commerce (the "USDOC") 
on 29 June 2007
251, preliminary results were published on 7 May 2008252, and final results were 
published on 11 September 2008.253 
95. The panel and Appellate Body reports in the or iginal proceedings were adopted by the DSB 
on 23 January 2007.  The reasonable period of time mutually agreed between the United States and 
Japan, pursuant to Article 21.3(b) of the DSU, expired on 24 December 2007. 
                                                      
249See supra , footnote 26.  See also Panel Report, footnote 14 to para. 3.1(b)(ii). 
250Reviews 1, 2, 3, 4, 5, 6, and 9 are periodic reviews concerning imports of ball bearings from Japan 
entering the United States in 1999-2007, with the exception of the period 1 May 2001 to 30 April 2002, that is, between Reviews 2 and 3.  Although Japan also made claims in the original proceedings regarding entries of 
ball bearings from Japan for the periods 1998-1999 and 2001-2002, Japan explained that it was not pursuing 
claims in these compliance proceedings regarding the 1998-1999 and 20 01-2002 periodic reviews, because the 
United States had liquidated all entries covered by those two reviews by the end of the reasonable period of 
time. (See Panel Report, para. 7.66 and footnote 92 thereto)  Reviews 7 and 8, which are also subject to these 
compliance proceedings, concerned imports from Japan of  cylindrical roller bearin gs and spherical plain 
bearings for the period 1 May 1999 to 31 December 1999. 
251Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation 
in Part and Deferral of Administrative Review, United States Federal Register , Vol. 72, No. 125 (29 June 2007) 
35690. (See Panel Report, footnote 134 to para. 7.110) 
252Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom:  
Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Reviews in Part, 
United States Federal Register , Vol.  73, No. 89 (7 May 2008) 25654.  The due date for the completion of these 
preliminary results was extended twice:  Extension of Time Limit for Preliminary Results of Antidumping Duty 
Administrative Reviews, United States Federal Register , Vol. 73, No. 11 (16 January 2008) 2887, extending the 
due date from 31 January 2008 to 15 April 2008;  and Extension of Time Limit for Preliminary Results of 
Antidumping Duty Administrative Reviews, United States Federal Register , Vol. 73, No. 77 
(21 April 2008) 21311, extending the due date from 15 April 2008 to 30 April 2008. 
253See supra , footnote 26, and Panel Report, footnote 14 to para. 3.1(b)(ii).    WT/DS322/AB/RW 
 Page 41 
 
 
  96. Before we proceed to analyze the arguments ra ised by the United States' appeal, we first 
provide a brief overview of the Panel's analysis of  this issue in these Article 21.5 proceedings, and 
then summarize the arguments of the partic ipants and third participants on appeal.254 
A. Article 21.5 Proceedings 
97. Japan requested the establishment of an Article  21.5 panel on 7 April 2008.  Paragraph 12 of 
Japan's panel request reads: 
This request concerns five of the 11 periodic reviews mentioned in 
paragraph 1(vi) [of the panel request], plus three closely connected periodic reviews that the United States argues "superseded" the original reviews.  The United St ates used zeroing in each of these 
reviews and, despite the DSB's recommendations and rulings, has 
omitted to eliminate zeroing from any of them.  These eight periodic reviews are identified in Annex 1 of this Request, and stem from anti-dumping duty orders on "Ball Be arings and Parts Thereof From 
Japan", "Cylindrical Roller Bearings and Parts Thereof From Japan", and "Spherical Plain Bearings and Pa rts Thereof From Japan".  This 
request also concerns United States Government instructions and 
notices, issued since the end of the RPT, to liquidate entries covered by these eight reviews.  Further, the request concerns any amendments to the eight periodic reviews and the closely connected 
instructions and notices, as well as any subsequent closely connected 
measures.
255 
98. Before the Panel, the United States sought a pr eliminary ruling that the phrase "subsequent 
closely connected measures" in Japan's panel re quest failed to identify the "alleged subsequent 
measures" for purposes of Article 6.2 of the DSU.256  The United States expressed concern that Japan 
was trying to include in the Panel's terms of refere nce any future periodic reviews related to the eight 
reviews identified in its panel request which, acco rding to the United States, would be "improper".257 
99. Japan did not refer to or make any claims with  respect to Review 9 in its first or second 
written submissions to the Panel.258  On 11 September 2008, during the course of the Article 21.5 
Panel proceedings, the USDOC published the final results of Review 9.  On 15 September 2008, 
                                                      
254Review 9 was not discussed in the original proceedings, given that it was initiated subsequent to the 
adoption of the DSB's recommendations and rulings. 
255WT/DS322/27, para. 12. 
256United States' first written submission to the Panel,  para. 50. See also Panel Report, paras. 7.84 
and 7.100. 
257United States' first written submission to the Panel, para. 50. 
258Japan filed its first and second wr itten submissions to the Panel on 30 June and 27 August 2008, 
respectively.  Japan stated in its first submission that it reserved "the rights to address any other subsequent 
closely connected measures."  (Japan's first written submission to the Panel, footnote 40 to para. 28)  WT/DS322/AB/RW 
Page 42  
 
  Japan requested leave and later obtained permission fr om the Panel to file a supplemental submission 
in which it argued that Review 9 is incons istent with Articles 2.4 and 9.3 of the  Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994 by virtue  of the application of zeroing in that 
Review.
259  In response to Japan's submission, the Un ited States objected that the phrase "subsequent 
closely connected measures" did not cover Review 9.  The United States argued that, in any event, 
Review 9 was a "future measure, not in existence" at  the time of the panel request, and therefore could 
not fall within the Panel's jurisdiction.260 
100. The Panel found that Review 9 fell within its term s of reference for three reasons.  First, the 
Panel found that the phrase "subsequent closely conn ected measures" in Japan's panel request was 
sufficiently specific for purposes of Article 6.2 of the DSU.261  In addition to examining the wording 
of Japan's panel request, the Panel considered that whether or not a panel reque st "adequately put[] the 
responding party on notice regarding the case agains t it" is a relevant consideration for assessing 
whether the request meets the requirements of Article 6.2.262  In this case, the Panel noted the high 
degree of predictability of the future occurrence of  subsequent periodic reviews in the United States' 
retrospective anti-dumping duty system, and consider ed that the United States should reasonably have 
expected that future periodic reviews w ould fall within the Panel's jurisdiction.263  Moreover, the 
Panel noted that the United States had clearly anticipat ed the inclusion of subsequent periodic reviews 
because, in its first written submission, the United States had expressed concern that Japan was trying 
to include in the Panel's terms of reference any fu ture periodic reviews related to the eight periodic 
reviews identified in the panel request.264  The Panel concluded that "a finding that the phrase 
'subsequent closely connected measures' satisfies th e terms of Article 6.2 w ould not viol ate any due 
process objective of the DSU."265   
101. Secondly, the Panel found that Review 9 was properly included within the scope of the 
Article 21.5 proceedings.  The Panel based its findi ng on the fact that Review 9 had already been 
                                                      
259Japan requested leave to file a supplemental submission on 15 September 2008.  The United States 
objected to Japan's request to file a supplemental submission.  The Panel informed the parties that it had 
accepted Japan's request to file a supplemental submissi on on 1 October 2008. (See Panel Report, para. 7.109)  
Japan's supplemental submission was filed on 10 October 2008.  The United States responded to Japan's 
supplemental submission on 3 November 2008.  Japan commented on the United States' response 
on 5 November 2008.  The Panel met with the parties on 4 and 5 November 2008;  and with the third parties 
on 5 November 2008. 
260See Panel Report, paras. 7.84 and 7.100.  
261Panel Report, para. 7.107. 
262Panel Report, para. 7.105.  
263Panel Report, paras. 7.102 and 7.105. 
264Panel Report, para. 7.105 (quoting United States' first written submission to the Panel, para. 50). 
265Panel Report, para. 7.105.   WT/DS322/AB/RW 
 Page 43 
 
 
  initiated at the time of Japan's panel request266;  was "identical in nature and effect" to Reviews 4, 5, 
and 6, which the Panel had found to be with in the scope of the Article 21.5 proceedings267;  and 
applied the zeroing methodology.268  The Panel concluded that, like Reviews 4, 5, and 6, Review 9 
was sufficiently closely connected to  the original dispute to constitute a "measure taken to comply", 
within the meaning of Article 21.5.269  
102. Thirdly, the Panel examined the United States' ar gument that a measure not yet in existence at 
the time of the panel request, such as Review 9, could not be the subject of WTO dispute settlement.  
The Panel observed that "although Review 9 did not ex ist at the time of the panel request, a chain of 
measures or a continuum existed, in which each new review superseded the previous one.  Review 9 
eventually came into existen ce as a part of this chain."270  The Panel found that "[i]n these particular 
circumstances, where the measure in  issue eventually came into existe nce as part of a continuum that 
existed at the time of the panel request, and wh ere the process for bringing about the measure's 
existence was already underway, ... Review 9 is  within the panel's terms of reference."271  The Panel 
subsequently found that the evidence submitted by Japan—including computer program excerpts, as 
well as USDOC Issues and Decision Memoranda—demonstrated that zeroing had been used in 
Review 9 and that, therefore, Review 9 was in consistent with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994.272 
B. Claims and Arguments on Appeal 
103. The United States requests that the Appellate B ody reverse the Panel's finding that Review 9 
was part of its terms of reference.  The United St ates submits that Articles 6.2 and 7.1 of the DSU 
required Japan to identify each periodic review in its panel request, since each review is "separate and 
distinct".273  Consequently, the phrase "subsequent clo sely connected measures" in Japan's panel 
request did not meet the requirement in Article 6.2 to "identify the specific measures at issue".  In 
addition, the United States argues that the Panel took  into account factors that are irrelevant to an 
analysis under Article 6.2, such as the United Stat es' statement in its first written submission that 
                                                      
266Panel Report, para. 7.110. 
267Panel Report, para. 7.114 (referring to Panel Report, para. 7.82).  The Panel explained that Review 9 
"supersedes those measures, and is therefore the latest link in the chain of assessment incorporating those 
measures." 
268Panel Report, para. 7.114. 
269Panel Report, para. 7.114. 
270Panel Report, para. 7.116.  
271Panel Report, para. 7.116.  
272Panel Report, paras. 7.160, 7.16 1, 7.166, and 7.168.  See also ibid., para. 8.1(b).  The Panel arrived 
at the same conclusion in relation to Reviews 4, 5, and 6. 
273United States' appellant's submission, para. 44. WT/DS322/AB/RW 
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  Japan was trying to include future reviews in the Panel's terms of  reference, the predictability of the 
United States' anti-dumping system, the fact that Re view 9 had been initiated by the time of the panel 
request, and the alleged due process objectives of Ar ticle 6.2 of the DSU.  Moreover, the United 
States reiterates that Review 9 cannot be subject  to WTO dispute settlement proceedings because it 
was a "future" measure in the sense that it did not exist at the time the Panel was requested.
274  The 
United States also highlights certain systemic considerations that militate against the Panel's 
approach.275  Finally, the United States refers to past disputes in which respondents, in claiming that 
inconsistencies had been removed, unsuccessfully re quested panels to examine measures that came 
into existence after the panels were established.276  The United States describes the Panel's approach 
as "asymmetrical", because it would favour complainants over respondents.277 
104. Japan agrees with the Panel's findings with resp ect to Review 9, and submits that the language 
of its panel request was specific enough to  satisfy the requirements of Article 6.2.278  Moreover, Japan 
points out that previous panels a nd the Appellate Body have found th at referring to a "category of 
measure" is sufficiently specific to satisfy the requirements of Article 6.2 of the DSU.279  Japan agrees 
with the Panel's emphasis on the fact that the Unite d States had anticipated the inclusion of Review 9 
in its first written submission to the Panel280, and that, under the United States' retrospective anti-
dumping system, periodic reviews are predictable.281  Further, Japan notes that Review 9 had been 
initiated by the USDOC over nine months before Ja pan's panel request, and was due to be completed 
during the course of the Panel proceedings.282  Japan also finds support in the panel's reasoning in 
Australia – Salmon (Article 21.5 – Canada)  that the "ongoing" and "continuous" nature of compliance 
under the WTO dispute settlement system warrants the inclusion of measures that come into existence 
during Article 21.5 panel proceedings.283  Japan considers that the inclusion of Review 9 is consistent 
with the due process objectives of Article 6.2 of the DSU.  Moreover, it disagrees that the inclusion of 
                                                      
274United States' appellant's submission, para. 47.  
275United States' appellant's submission, paras. 56 and 57. 
276United States' appellant's submission, para. 57 and footnote 81 thereto (referring to Panel Report, 
India – Autos , paras. 7.23-7.30;  and Panel Report,  Indonesia – Autos , para. 14.9). 
277United States' appellant's submission, para. 57. 
278Japan's appellee's submission, paras. 385-387.  
279Japan's appellee's submission, paras. 389-393 (referring to Panel Report, EC – Bananas III (US) , 
para. 7.27;  Appellate Body Report, EC – Bananas III , para. 140;  and Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10). 
280Japan's appellee's submission, paras. 395 and 396 (referring to Panel Report, para. 7.105, in turn 
quoting United States' first written submission to the Panel, para. 50).  
281Japan's appellee's submission, paras. 396-400 (referrin g to Panel Report, paras. 7.102, 7.106, 7.111, 
and 7.116). 
282Japan's appellee's submission, para. 398.  
283Japan's appellee's submission, paras. 382 and 411-413 (quoting Panel Report, Australia – Salmon 
(Article 21.5 – Canada) , para. 7.10).   WT/DS322/AB/RW 
 Page 45 
 
 
  Review 9 would create "asymmetry" to the disa dvantage of respondents, as argued by the United 
States.284 
105. The third participants addressing this issue—th e European Communities, Korea, Mexico, and 
Norway—support the Panel's inclusion of Review 9 in its terms of reference.285   
C. Analysis 
106. The United States' appeal focuses on two aspects of the Panel's analysis.286  First, the United 
States argues that the phrase "subsequent closely co nnected measures" in Japan's panel request does 
not meet the requirement of Article 6.2 of the DS U to "identify the specific measures at issue".  
Secondly, the United States submits that the Panel erred in finding that Review 9 was properly within 
the Panel's terms of reference because Review 9 had not been completed when Japan submitted its 
panel request to the DSB.  The United States cons iders that Review 9 was a "future measure" that 
"cannot form part of a [p]a nel's terms of reference".287  We recall that the notice of initiation of 
Review 9 was published on 29 June 2007.  Japan requ ested that the matter be referred to a panel under 
Article 21.5 of the DSU on 7 April 2008, and the ma tter was referred to the Panel on 18 April 2008.288  
The preliminary and final results of Review 9289 were published on 7 May and 11 September 2008, 
respectively, at which time the Panel proceedings were already underway.  
1. Whether Japan's Panel Request Meets th e Requirement of Article 6.2 of the 
DSU to "Identify the Specific Measures at Issue"  
107. Article 6.2 of the DSU provides, in relevant part: 
The request for the establishment of a panel shall be made in writing.  
It shall indicate whether consultati ons 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. 
                                                     
 
284Japan's appellee's submission, paras. 444-452.  
285European Communities' third participant's submissi on, paras. 10-17;  Korea's third participant's 
submission, paras. 54-57;  Mexico's third participant's submission, paras. 55-63;  and Norway's third 
participant's submission, paras. 5-28. 
286The United States included in its Notice of Appeal the paragraph in which the Panel found that 
Review 9 was a "measure taken to comply". (See WT/DS322/32, footnote 1 to para. 1 (referring to, inter alia , 
Panel Report, para. 7.114))  However, the United States did not make any arguments with respect to this finding in its appellant's submission.  At the oral hearing, the United States confirmed that it does not appeal the Panel's 
finding that Review 9 is a "measure taken to comply " within the meaning of Article 21.5 of the DSU. 
287United States' appellant's submission, para. 58.  
288WT/DS322/27 and WT/DS322/28, respectively.  
289See supra , footnotes 26 and 252. WT/DS322/AB/RW 
Page 46  
 
  Taken together, the identification of the specific measures at issue and the provision of a brief 
summary of the legal basis of the complaint compri se the "matter referred to the DSB", which forms 
the basis for a panel's terms of reference under Article 7.1 of the DSU.
290 
108. The Appellate Body has stated that, pursuant to Article 6.2, a panel request must be 
"sufficiently precise" for two reasons.291  First, it forms the basis for the terms of reference of the panel, 
pursuant to Article 7 of the DSU292;  and, secondly, the terms of reference, and the request for the 
establishment of a panel on which they are based, serve the due process objective of notifying 
respondents and potential third parties of the nature of  the dispute and of the parameters of the case to 
which they must begin preparing a response.293  The Appellate Body has explained that, in assessing 
the sufficiency of the panel request, a panel must "examine the request for the establishment of the 
panel very carefully to ensure its compliance with bo th the letter and the spirit of Article 6.2 of the 
DSU"294, and that compliance with the requirements of Article 6.2 must be "demonstrated on the face" 
of the panel request295, read "as a whole"296, and "on the basis of the language used".297 
109. In order to evaluate whether Japan's panel request complies with the requirements of 
Article 6.2 of the DSU, we must also take into  account that these are compliance proceedings brought 
pursuant to Article 21.5 of the DSU.  Article 21.5 di rects compliance panels to examine the "existence 
or consistency with a covered agreement of measu res taken to comply with the recommendations and 
rulings" of the DSB.  The Appellate Body has stated  that, although Article 6.2 is generally applicable 
to panel requests under Article 21.5, "the requirement s of Article 6.2, as they apply to an original 
                                                      
290See Appellate Body Report, Guatemala – Cement I , para. 72;  Appellate Body Report, US – Carbon 
Steel , para. 125;  and Appellate Body Report, US – Continued Zeroing , para. 160. 
291Appellate Body Report, EC – Bananas III , para. 142.  
292See, for instance, Ap pellate Body Report, EC – Bananas III , para. 142. 
293Appellate Body Report, US – Continued Zeroing , para. 161;  Appellate Body Report, US – Carbon 
Steel , para. 126;  Appellate Body Report, EC – Bananas III , para. 142. 
294Appellate Body Report, EC – Bananas III , para. 142;  Appellate Body Report, US – Continued 
Zeroing , para. 161. 
295Appellate Body Report, US – Carbon Steel , para. 127.  See also Appellate Body Report, US – 
Continued Zeroing , para. 161. 
296Appellate Body Report, US – Continued Zeroing , para. 161;  Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para. 169;  Appellate Body Report, US – Carbon Steel , para. 127. 
297Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 164.  In addition, 
the Appellate Body has explained that the "specific measure" is "what is being challenged by the complaining 
Member", while the brief summary of the legal basis of the complaint "aims to explain succinctly how or why the measure at issue is considered by  the complaining Member to be violating the WTO obligation in question." 
(Appellate Body Report, EC – Selected Customs Matters , para. 130 (emphasis omitted))  WT/DS322/AB/RW 
 Page 47 
 
 
  panel request, need to be adapted to  a panel request under Article 21.5."298  I n  A r t i c l e  2 1 . 5  
proceedings, the "specific measures at issue" are measures "that have a bearing on compliance with 
the recommendations and rulings of the DSB."299  This indicates that the "requirements of Article 6.2 
of the DSU, as they apply to an Article 21.5 pane l request, must be assessed in the light of the 
recommendations and rulings of the DSB in the original ... proceedi ngs that dealt with the same 
dispute."300  The complaining party must, inter alia : 
... cite the recommendations and rulings that the DSB made in the 
original dispute as well as in any preceding Article 21.5 proceedings, 
which, according to the complain ing party, have not yet been 
complied with ... either identify, with sufficient detail, the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such 
measures have been taken by th e implementing Member ... provide a 
legal basis for its complaint, by specifying how the measures taken, or not taken, fail to remove th e WTO-inconsistencies found in the 
previous proceedings, or whethe r they have brought about new 
WTO-inconsistencies.
301 (original emphasis;  footnote omitted) 
110. With this guidance in mind, we examine whet her Japan's panel request  met the requirements 
of Article 6.2, read in the light of Article 21.5 of the DSU.   
111. We begin with a textual analysis of Japan's panel request.  The reference to "subsequent 
closely connected measures" is made in paragraph 12, which falls within sub-section B of Part III, 
                                                      
298The Appellate Body stated in US – FSC (Article 21.5 – EC II) : 
The Appellate Body has, to date, not been called upon to determine the precise scope of the phrase "these dispute settlement procedures" in 
Article 21.5 and how it relates to Ar ticle 6.2 of the DSU.  We do not 
consider it necessary, for purposes of  resolving the present dispute, to 
determine the precise scope of this ph rase.  However, we are of the view 
that the phrase "these dispute settlement procedures" does encompass 
Article 6.2 of the DSU, and that Article  6.2 is generally applicable to panel 
requests under Article 21.5.  At the same time, given that Article 21.5 deals 
with compliance proceedings, Article 6.2 needs to be interpreted in the light 
of Article 21.5.  In other words, the requirements of Article 6.2, as they 
apply to an original panel request, need to be adapted to a panel request 
under Article 21.5. 
(Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 59 (footnotes omitted)) 
299Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 61. 
300Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 61. 
301Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 62 (referring to Appellate Body 
Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67).  WT/DS322/AB/RW 
Page 48  
 
  entitled "Periodic Reviews".
302  Paragraph 12 begins by stating that the request concerns five of the 11 
periodic reviews that were challenged in the original  proceedings (the "original reviews"), as well as 
three "closely connected periodic reviews" that th e United States had argued "superseded" the original 
reviews.  The original reviews (identified as Review s 1, 2, 3, 7, and 8) and the "closely connected" 
periodic reviews (identified as Review s 4, 5, and 6) are listed in Anne x 1 of the panel request.  Japan's 
request alleges that the United States used zeroi ng in each of these Reviews, and had omitted to 
eliminate zeroing with respect to any of them.  The request further states that these eight periodic 
reviews stem from three anti-dumping duty orders on  Ball Bearings and Parts Thereof from Japan , 
Cylindrical Roller Bearings and Parts Thereof from Japan , and Spherical Plain Bearings and Parts 
Thereof from Japan .303  Thereafter, the request refers to United States government instructions and 
notices, issued after the end of the reasonable period of time, to liquidate duties on the entries covered 
by these eight periodic reviews.  Finally, in the last line of paragraph 12, Japan states that "the request 
concerns any amendments to the eight periodic re views and the closely connected instructions and 
notices, as well as any subsequent closely connected measures ."304 
112. In our view, the plain meaning of the phrase "subsequent closely connected measures", as it 
appears in paragraph 12 of Japan's panel request, indicates that the measures being referred to would 
have to be enacted after (that is, "subsequent" to) the eight periodic reviews identified by Japan in its 
request and would have to relate (be "closely connected") to these ei ght reviews.  As paragraph 12 
falls within the sub-section entitled "Periodic Review s", the necessary implication is that the phrase 
refers to periodic reviews that followed some or a ll of the eight periodic reviews listed in the panel 
request.  These eight periodic reviews related to the three anti-dumping duty orders identified in 
Japan's request.  However, given that the anti-dumpi ng duty orders on cylindrical roller bearings and 
spherical plain bearings had been revoked by the USDOC at the time of Japan's panel request305, any 
subsequent periodic review could relate only to  the anti-dumping duty order on ball bearings.  We 
                                                      
302See supra , para. 97.  Japan's request for the establishment of a panel has main parts:  Part I covers 
the background to Japan's panel request, including the DSB's recommendations and rulings from the original 
proceedings;  Part II deals with the alleged implementation action or inaction by the United States;  Part III then 
outlines the measures at issue and claims made by Japan in these Article 21.5 proceedings;  and Part IV sets out 
the conclusion.  
303Antidumping Duty Orders:  Ball Bearings, Cyli ndrical Roller Bearings , and Spherical Plain 
Bearings, and Parts Thereof from Japan, United States Federal Register , Vol. 54, No. 92 (15 May 1989) 20904.  
The United States revoked the anti-dumping duty orders on cylindrical roller bearings and spherical plain 
bearings, effective 1 January 2000. (See United Stat es' first written submission to the Panel, para. 66) 
304Emphasis added.  
305Japan's appellee's submission, para . 387 (referring to United States' first written submission to the 
Panel, para. 66, in turn referring to  Revocation of Antidumping Duty Orders on Certain Bearings from Hungary, 
Japan, Romania, Sweden, France, Germ any, Italy, and the United Kingdom, United States Federal Register , 
Vol. 65, No. 133 (11 July 2000) 42667 and 42668 (Panel Exhibit US-A19)).   WT/DS322/AB/RW 
 Page 49 
 
 
  therefore disagree with the United States that th e phrase "subsequent closely connected measures" 
was too "broad" and "vague" for purposes of identifyi ng the measure at issue under Article 6.2 of the 
DSU.306 
113. We share the Panel's view that the use of the term "closely connected" earlier in paragraph 12 
of the panel request provides additional support for finding that "subsequent closely connected 
measures" refers to periodic reviews of the anti-dumping duty order on ball bearings, which were 
conducted after the reviews listed in the panel re quest.  The Panel looked at the language—"closely 
connected periodic reviews"—used to describe the pe riodic reviews (Reviews 4, 5, and 6) that had 
followed the reviews found to be WTO- inconsistent in the original pro ceedings (Reviews 1, 2, and 3) 
and noted the similarity in the reference to subsequent "closely connected" measures.307  The Panel 
also described the close connection among successive  periodic reviews occurring under the same anti-
dumping order in the United States' retrospective anti-dumping duty system.308  The Panel noted that, 
in this case, three of the periodic reviews challenged in  the original proceedings (Reviews 1, 2, and 3), 
as well as the other three periodic reviews challeng ed in the compliance proceedings as "measures 
taken to comply" (Reviews 4, 5, and 6), were part  of a continuum of periodic reviews "superseding" 
each other309, whose purpose was the ongoing assessment of anti-dumping duties owed under the 
same anti-dumping duty order on ball bearings issued in 1989.310  Thus, the use of the term "closely 
connected" earlier in paragraph 12 of Japan's pane l request provides contextual support for the 
conclusion that the term "subsequent closely co nnected measures" is referring to Review 9.  
Review 9, being the subsequent periodic revi ew, occurring under the same anti-dumping duty order 
on ball bearings as Reviews 1 through 6, was "close ly connected" to those listed in Japan's panel 
request. 
114. The object of these Article 21.5 proceedings is  to determine whether the United States has 
complied with the DSB's recommendations and ruli ngs.  The Appellate Body in the original 
proceedings found that the United States acts inc onsistently with Articles 2.4 and 9.3 of the 
Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 by maintaining zeroing procedures in 
                                                      
306United States' appellant's submission, para. 45.  Although the United States argues that "subsequent 
closely connected measures" could encompass measur es such as ministerial corrections or remand 
determinations in court proceedings, it acknowledges that "subsequent administrative determinations" could fall 
within the measures contemplated by the refere nce to "subsequent closely connected measures". 
307Panel Report, para. 7.103. 
308See Panel Report, para. 7.102. 
309Panel Report, para. 7.116.  The Panel described these consecutive reviews as forming a "chain of 
measures or a continuum ... in which each new review superseded the previous one". 
310Panel Report, para. 7.103.  The 1989 anti-dumping duty order referred to by the Panel was the same 
order referred to above in supra , footnote 303. WT/DS322/AB/RW 
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  periodic reviews.
311  In addition to this "as such" finding, the Appellate Body found that the United 
States acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement  and Article VI:2 
of the GATT 1994 by applying zeroing procedures in the 11 periodic reviews at issue in that 
appeal.312  If zeroing were used in Review 9, it w ould mean that the United States has not ceased 
using zeroing procedures in periodic reviews, contrary to the DSB's recommendations and rulings.  Thus, Review 9 is a measure that has "a bearing on compliance with the recommendations and rulings 
of the DSB" and this must be taken into account in assessing whether Japan's panel request meets the 
requirements of Article 6.2, read in the light of Article 21.5.
313 
115. The United States argues that Article 6.2 requires that each periodic review should have been 
identified in Japan's panel request, since each is "separate and distinct" and serves as the basis for the 
calculation of the assessment rate for each importer of the specific entries covered by the review.314  
In making this argument, the United States relies on a statement of the Appellate Body in US – 
Zeroing (EC) (Article 21.5 – EC) , that successive periodic review determinations are "separate and 
distinct measures".315 
116. We do not believe that the Appellate Body's prio r reference to subsequent periodic reviews as 
"separate and distinct" contradicts the notion that a periodic review can be identified for purposes of 
Article 6.2 of the DSU through the use of the phrase "subsequent closely connected measures".  
Although recognizing that each periodic review is a " separate and distinct" measure (in the sense that 
it is not an "amendment" of the previous periodic review316), the Appellate Body in US – Zeroing 
(EC) (Article 21.5 – EC)  nonetheless underscored the link betwee n subsequent periodic reviews by 
stating that "subsequent reviews ... issued under the same respective anti-dumping duty order as the measures challenged in the original proceedings , ... constitute[] 'connected stages ... involving the 
imposition, assessment and collection of duties under the same anti-dumping order'."
317  The periodic 
reviews, moreover, involved the same products, fro m the same countries, and formed part of a 
                                                      
311Appellate Body Report, US – Zeroing (Japan) , para. 190(c). 
312Appellate Body Report, US – Zeroing (Japan) , para. 190(e). 
313Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 61.  See also supra , para. 109. 
314United States' appellant's submissi on, para. 44.  For the United States, each successive review is  
distinct from the one before it, in that exporters may vary between review s;  each review involves different 
shipments and different data from different time periods;  and the anti-dumping duty rate may change, and in 
some cases may fall to a de minimis  level. ( Ibid., para. 53) 
315United States' appellant's submission, footnote 54 to para. 44 (referring to Appellate Body Report, 
US – Zeroing (EC) (Article 21.5 – EC) , paras. 192 and 193).  
316Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 192. 
317Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 230 (quoting Appellate Body 
Report, US – Continued Zeroing , para. 181).   WT/DS322/AB/RW 
 Page 51 
 
 
  continuum of events.318  It is precisely because it has similar connections that Review 9 can be 
properly described as a "subsequent closely connected measure".  Further, the text of Article 6.2 of 
the DSU does not require that a measure be referred to individually in order to be properly identified 
for purposes of that Article.  The Appellate Body h as stated that the measures at issue must be 
identified with sufficient precision in order that th e matter referred to a panel may be discerned from 
the panel request.319  Whereas a more precise way to identify a measure would be to indicate its name 
and title in the panel request320, there may be circumstances in whic h a party describes a measure in a 
more generic way, which nonetheless allows the measu re to be discerned.  In this case, the phrase 
"subsequent closely connected measure s" is sufficiently precise to identify Review 9, given that it is a 
periodic review of the same anti-dumping duty or der on imports of ball bearings from Japan and 
immediately followed Reviews 1 through 6.  
117. We consider that our previous analysis is sufficient to establis h that Japan's panel request met 
the requirement of Article 6.2 to "identify the specific measures at issue".  The United States, 
however, disagrees with the Panel that a "relevant consideration"321 for determining whether the 
specific measures at issue are properly identified under Article 6.2 is whether the panel request 
adequately puts the responding party on notice regarding the case against it.322  The United States 
submits that the Panel elevated "due process objectiv es" over the text of Article 6.2 by considering 
whether Japan's challenge to "subsequent closel y connected measures" would "violate any due 
process objective of the DSU".323 
118. As we observed earlier, one of the purposes of a panel's terms of reference is to fulfil the due 
process objective of notifying responde nts and potential third parties of the nature of the dispute and 
of the parameters of the case to which they must begin preparing a response.324  We see no error in the 
Panel having examined whether Japan's panel requ est adequately put the United States "on notice" 
regarding the case against it.325  Nor do we find error in the Panel's finding that the United States was 
reasonably put on notice by Japan's panel request .  The Panel noted that the United States had 
                                                      
318Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 240. 
319Appellate Body Report, US – Continued Zeroing , para. 168. 
320For example, Japan could have referred to the noti ce of initiation of Review 9 in its panel request.  
321Panel Report, paras. 7.104 and 7.105 (referring to Appellate Body Report, Brazil – Desiccated 
Coconut , p. 22, DSR 1997:I, 167, at 186). 
322United States' appellant's submission, para. 55. 
323Panel Report, para. 7.105.  In response to questioning at the oral hearing as to whether or not it had 
been prejudiced by the alleged lack of  specificity in Japan's panel request, the United States responded that it 
was not required to make any showing of prejudice in this case in addition to proving that Japan's panel request 
did not meet the specificity requirement in Article 6.2 of the DSU.   
324See supra , para. 108. 
325Panel Report, para. 7.105. WT/DS322/AB/RW 
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  anticipated in its first written submission "that Japan  is trying to include in the panel's terms of 
reference any future administrativ e reviews related to the eight identified in its panel request".
326  
Thus, the Panel found that "it is clear from the Un ited States' First Written Submission that the United 
States realized Japan was identifyi ng" such future periodic reviews.327  The Panel also referred to the 
fact that Review 9 had been initiated at the time of the panel request, and was due to be completed 
during the Panel proceedings by virtue of the ope ration of the United States' anti-dumping regime.328  
We consider that the Panel did not err in its analys is of the matter and in considering the due process 
objectives as relevant for purposes of deciding whethe r Review 9 was within its terms of reference. 
119. Further, we do not believe that the inclusion of  Review 9 in the Panel's terms of reference 
adversely affected the United States' due process righ ts.  In addition to the factors taken into account 
by the Panel, which are noted above, we observe that, once the final results of Review 9 were 
published, and Japan had filed its supplementa l submission, the United States was given an 
opportunity to respond in writing to the arguments raised in that submission.  Moreover, Japan's arguments concerning Review 9 were similar to those raised with regard to Reviews 4, 5, and 6, in 
that they also challenged the use of zeroing in a "chain of assessment incorporating those 
measures".
329  The United States had further opportunities to make arguments at the Panel meeting 
with the parties and in response to the Panel's qu estions.  In our view, the above suggests that the 
United States had ample opportunities, during the c ourse of the Panel proceedings and prior to the 
Panel's deliberations, to make arguments, answer  questions, and respond to Japan's submission with 
respect to Review 9.330  Potential third parties were sufficien tly put on notice by Japan's panel request, 
given the inclusion of the reference to "subseque nt closely connected measures", the connections 
between Review 9 and Reviews 1 through 6, and the fact that Japan was challenging the use of the 
same zeroing methodology.  The third parties also had opportunity to present arguments and respond 
to the claims made by Japan with respect to Review 9.331  Based on the above, we agree with the 
                                                      
326Panel Report, para. 7.105 (quoting United States' first written submission to the Panel, para. 50). 
327Panel Report, para. 7.106. 
328See Panel Report, paras. 7.110 and 7.111. 
329Panel Report, para. 7.114.  
330See Japan's appellee's submission, paras. 428-439.  
331As a third party in the Panel proceedings, Norway s ubmits that the third parties were given sufficient 
notice of Review 9, and were provided with ample opportunity to respond to claims with respect to Review 9. (Norway's third participant's submission, paras. 26-28.  See also Japan's appellee's submission, para. 441 
(referring to European Communities' oral statement at th e meeting with the Panel, paras. 47 and 48);  European 
Communities' third party submission to the Panel, para. 27;  oral statement of the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu at the meeting with the Panel, paras. 7, and 12-15;  and Mexico's oral 
statement at the Panel meeting, para. 12)  WT/DS322/AB/RW 
 Page 53 
 
 
  Panel's conclusion that "a finding that the phrase 's ubsequent closely connected  measures' satisfies the 
terms of Article 6.2 would not violate any due process objective of the DSU".332 
2. Whether Review 9 Was Properly Included  in the Panel's Terms of Reference 
Even Though It Had Not Been Comple ted at the Time of Japan's Panel 
Request  
120. The second error alleged by the United States is that Review 9 was a "future measure" that 
had not yet come into existence at the time of Japan 's panel request, and therefore could not have been 
included within the Pane l's terms of reference.333  The United States submits that the DSU does not 
allow for the inclusion of such "future measu res" within a panel's terms of reference.334 
121. We recall that Article 6.2 of the DSU provid es that the request for the establishment of a 
panel "shall indicate whether consultations were held, identify the specifi c measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly."  
Apart from the reference in the present tense to th e fact that the complainant must identify the 
measures "at issue", Article 6.2 does not set out an express temporal condition or limitation on the measures that can be identified in a panel request.  Indeed, in US – Upland Cotton , where the issue 
was raised in the context of measures that had e xpired prior to the panel proceedings, the Appellate 
Body explained that "nothing inherent in the term 'at issue' sheds light on whether measures at issue 
must be currently in force, or whether they ma y be measures whose legislative basis has expired".
335  
In EC – Chicken Cuts , the Appellate Body stated that "[t]he  term 'specific measures at issue' in 
Article 6.2 suggests that, as a general rule, the meas ures included in a panel's terms of reference must 
be measures that are in existence at the time of the establishment of the panel."336  Nevertheless, the 
Appellate Body also stated in that case that "mea sures enacted subsequent to the establishment of the 
panel may, in certain limited circumstances,  fall within a panel's terms of reference".337 
                                                      
332Panel Report, para. 7.105. 
333United States' appellant's submission, paras. 43, 47, and 58. 
334United States' appellant's submission, paras. 44 and 47.  
335Appellate Body Report, US – Upland Cotton , para. 269. 
336Appellate Body Report, EC – Chicken Cuts , para. 156.  The Appellate Body explained that:  
These measures should also have been the subject of consultations prior to 
the establishment of the panel, although the Appellate Body has held that there is no need for a " precise and exact identity " between the measures 
addressed in consultations and the measur es identified in the panel request.  
(Ibid., footnote 315 to para. 156 (referring to Appellate Body Report, Brazil – Aircraft , para. 132) (original 
emphasis)) 
337Appellate Body Report, EC – Chicken Cuts , para. 156.  WT/DS322/AB/RW 
Page 54  
 
  122. We observed earlier that the requirements of Article 6.2 must be read in the light of the 
specific function of Article 21.5 proceedings and that the "specific measures at issue" to be identified 
in these proceedings are measures that have a b earing on compliance with the recommendations and 
rulings of the DSB.
338  A measure that is initiated before th ere has been recourse to an Article 21.5 
panel, and which is completed during those Article 21.5 panel pr oceedings, may have a bearing on 
whether there is compliance with the DSB's recomm endations and rulings.  T hus, if such a measure 
incorporates the same conduct that was found to be WTO-inconsistent in the original proceedings, it 
would show non-compliance with the DSB's reco mmendations and rulings.  To exclude such a 
measure from an Article 21.5 panel's terms of reference because the measure was not completed at the time of the panel request but, rather, was complete d during the Article 21.5 proceedings, would mean 
that the disagreement "as to the existence or consis tency with a covered agre ement of measures taken 
to comply" would not be fully resolved by that Article 21.5 panel.  New Article 21.5 proceedings 
would therefore be required to resolve the disagr eement and establish whether there is compliance.  
Thus, an a priori  exclusion of measures completed during Artic le 21.5 proceedings could frustrate the 
function of compliance proceedings.  It would also be inconsistent with the objectives of the DSU to 
provide for the "prompt settlement of situations in which a Member considers that any benefits 
accruing to it directly or indirectly under the covere d agreements are being impaired", as reflected in 
Article 3.3, and to "secure a positive solution to  a dispute", as contemplated in Article 3.7. 
123. We recall that the Panel described the conn ection between Review 9 and the previous 
periodic reviews as follows: 
Review 9 is identical in nature a nd effect to Reviews 4, 5 and 6.  
Review 9 supersedes those measures, and is therefore the latest link 
in the chain of assessment incorporating those measures.  Review 9 
also continues to apply the zeroing methodology found to be WTO-inconsistent in the original proceed ing.  Like Reviews 4, 5 and 6, 
therefore, Review 9 is sufficiently closely connected to the original 
dispute to constitute a "measure taken to comply" within the meaning 
of Article 21.5.
339 (footnote omitted) 
124. While the United States questions the releva nce of these considerations for purposes of 
determining whether Review 9 properly fell within  the Panel's terms of reference, it has not 
challenged the Panel's finding that Review 9 is a "m easure taken to comply".  We disagree with the 
United States that the elements identified by the Pane l are not relevant to the determination of whether 
Review 9 could properly be included in the Panel's terms of reference.  As we noted above, Review 9 
                                                      
338See supra , para. 109. 
339Panel Report, para. 7.114.  WT/DS322/AB/RW 
 Page 55 
 
 
  related to the same anti-dumping duty order as Re views 1, 2, and 3, which were found to be 
inconsistent in the original proceedings, and to th e three subsequent reviews (Reviews 4, 5, and 6) 
being challenged by Japan as "measures taken to comp ly".  Japan's panel request expressly referred to 
"subsequent closely connected me asures".  Review 9 had been in itiated at the time the matter was 
referred to the Panel and was due to be complete d during the Article 21.5 proceedings.  Under these 
circumstances, we consider that the Panel was correct  in finding that Review 9 was within its terms of 
reference, as doing so enabled it to fulfil its mandate  to resolve the "disagreem ent" between the parties 
and determine, in a prompt manner, whether th e United States had achieved compliance with the 
DSB's recommendations and rulings. 
125. As a further argument to support its view that Re view 9 could not fall within the Panel's terms 
of reference, the United States relies on the Appellate Body's statement in EC – Chicken Cuts  that 
"[t]he term 'specific measures at issue' in Article  6.2 suggests that, as a general rule, the measures 
included in a panel's terms of reference must be measures that are in exis tence at the time of the 
establishment of the panel", and th at only in "certain limited circ umstances" will measures enacted 
subsequent to a panel's establishment fall within the Panel's terms of reference.340  According to the 
United States, the circumstances of this case, including  the fact that it is a compliance proceeding, do 
not justify the inclusion of Review 9 in the Panel' s terms of reference.  As the United States itself 
recognizes, however, in EC – Chicken Cuts , the Appellate Body did not rule that Article 6.2 
categorically prohibits the inclusion, within a panel' s terms of reference, of measures that come into 
existence or are completed after the panel is requ ested.  Rather, the Appellate Body noted explicitly 
that, in certain circumstances, such measures could be included in a panel's terms of reference.  
Moreover, whereas the statement in EC – Chicken Cuts to which the United States refers was made in 
the context of original WTO proceedings, we are d ealing here with Article 21.5 proceedings.  As we 
explained earlier341, the requirements of Article 6.2 must be adapted to a panel request under 
Article 21.5, and the scope and function of Ar ticle 21.5 proceedings necessarily inform the 
interpretation of the Article 6.2 requirements in such  proceedings.  The proceedings before us present 
circumstances in which the inclusion of Review  9 was necessary for the Panel to assess whether 
compliance had been achieved, and thereby resolv e the "disagreement as to the existence or 
consistency with a covere d agreement of measures taken to co mply with the recommendations and 
rulings".  
                                                      
340United States' appellant's submission, para. 51 (quoting Appellate Body Report, EC – Chicken Cuts , 
para. 156). 
341See supra , paras. 109 and 122. WT/DS322/AB/RW 
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  126. In addition, the United States argues that Re view 9 could not have been impairing any 
benefits accruing to Japan, within the meaning of Ar ticle 3.3 of the DSU.  The United States relies on 
a statement by the panel in US – Upland Cotton that a measure implemented under legislation that, at 
the time of the panel request, "did not exist, had ne ver existed and might not subsequently have ever 
come into existence" was not within the panel's te rms of reference because such legislation could not 
have been impairing any benefits accruing to the complainant, in the sense of Article 3.3 of the 
DSU.
342   
127. First, we note that the specific finding of the panel in US – Upland Cotton , on which the 
United States relies, was not appealed.  Secondly,  the Panel in these compliance proceedings found 
that the situation before it differed from the one presented to the panel in  US – Upland Cotton.   We 
agree that the circumstances of these compliance pr oceedings are different from those before the 
panel in US – Upland Cotton .  In this case, Review 9 had already been initiated at the time of the 
panel request, was due to be co mpleted during the Panel proceedings, and was the most recent 
periodic review stemming from the same anti-dump ing duty order on imports of ball bearings from 
Japan.  Thirdly, we recall that the Appellate Body in US – Upland Cotton  stated that, as regards the 
initiation of dispute settlement proceedings, Article  3.3 focuses "on the perception or understanding of 
an aggrieved Member".343  In the circumstances of this case, Japan had a basis to consider that 
Review 9, as part of a "chain of measures or a continuum"344 in which zeroing was used, could lead to 
the impairment of benefits accruing to it under the Anti-Dumping Agreement  and the GATT 1994.  
Moreover, as we explained above, the inclusion of Review 9 was consistent with the objective 
envisaged in Article 3.3, namely, ensuri ng the prompt settlement of the dispute.345  It was then for the 
Panel to determine whether Review 9 fell within th e scope of its jurisdiction and assess its consistency 
with the covered agreements. 
128. The United States refers to "systemic" considera tions that it believes would arise if one were 
to read the DSU as permitting compliance panels to examine new measures or modifications made 
                                                      
342United States' appellant's submission, para. 49 (referring to Panel Report, para. 7.115, in turn quoting 
Panel Report, US – Upland Cotton , para. 7.158).  Article 3.3 of the DSU reads: 
The prompt settlement of situations in which a Member considers that any 
benefits accruing to it directly or indi rectly under the covered agreements 
are being impaired by measures taken by another Member is essential to the 
effective functioning of the WTO and the maintenance of a proper balance 
between the rights and obligations of Members. 
343Appellate Body Report, US – Upland Cotton , para. 264. 
344Panel Report, para. 7.116.  
345For the same reasons, we disagree with the United St ates that the challenge to Review 9 prior to the 
issuance of a final determination was "premature". (United States appellant's submission, para. 46 and 
footnote 58 thereto)  WT/DS322/AB/RW 
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  during the course of proceedings.346  While we recognize that, in certain circumstances, these 
concerns may be relevant, we do not  consider this to be the case he re since, as we have found above, 
the United States and the third parties were given adequate notice and opportunities to respond to 
Japan's allegations concerning Review 9.347 
129. The United States raises an additional argument that accepting the Panel's approach could 
lead to "asymmetry" in the sense that, on the one  hand, complaining parties would be allowed to 
challenge measures that are subsequent to the pane l request, while, on the other hand, similar requests 
by respondents for the inclusion of measures comi ng into existence during panel proceedings have 
been rejected by panels.348  We do not detect such asymmetrical treatment of complainants and 
respondents.  In some cases, modifications of me asures during the panel proceedings have been taken 
into account to the benefit of respondents.  In US – Zeroing (EC) (Article 21.5 – EC) , developments 
subsequent to the establishment of the panel were c onsidered by the Appellate Body and, in the light 
of those developments, the Appella te Body found that the United States had "ultimately" not failed to 
comply with the DSB's recommendations and ruli ngs in relation to certain sunset reviews.349  
Therefore, we do not agree that the alleged " asymmetry" in the treatment of complaining and 
respondent parties arises in the manner suggested by the United States.350 
130. For these reasons, we agree with the Panel that Japan's panel request met the requirement of 
Article 6.2 of the DSU to "identify the specific meas ures at issue" as regards Review 9.  Further, we 
agree that, in the particular circumstances of these compliance proceedings, it was proper to include 
Review 9 within the Panel's terms of reference, even though Review 9 had not been completed when 
                                                      
346United States' appellant's submission, para. 56.  In support of its arguments, the United States refers 
to the fact that Members would be ob liged to make legal claims and undert ake an analysis of new or modified 
measures on short notice, without a meaningful opportunity to review these measures;  and, further, that compliance panels would have to react to such changes even after some or all of the written submissions had 
been filed and the meetings with the parties had been co mpleted.  The United States expresses concern that, in 
such circumstances, panels would be placed in a position of having to decide whether to restart the proceedings, or be required to make findings without the full benefit of the views of the parties and third parties. (United 
States' appellant's submission, para. 57) 
347See supra , para. 119. 
348See United States' appellant's submission, para. 57 (referring to Panel Report, India – Autos , 
paras. 7.23-7.30;  and Panel Report, Indonesia – Autos , para. 14.9). 
349See Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , paras. 376-381.  In that appeal, 
the Appellate Body relied on negative likelihood-of-injury determinations made by the United States 
International Trade Commission and the consequent revocation of the anti-dumping duty order after the establishment of the panel in declining to find that the United States had "ultimately" failed to comply with the 
recommendations and rulings of the DSB in respect of cert ain sunset reviews, even th ough, at the time of the 
panel establishment, there had been affirmative fina l likelihood-of-dumping determ inations by the USDOC. 
350Moreover, we note that the prior panel reports to  which the United States refers do not concern 
Article 21.5 proceedings. WT/DS322/AB/RW 
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  Japan requested the establishment of a panel.  Accordingly, we uphold
 the Panel's finding that 
Review 9 was properly within its terms of reference.351 
V. Collection of Duties After the Expiration of the Reasonable Period of Time – Reviews 1 
through 9 
A. Introduction 
131. We turn next to the United States' appeal of the Panel's finding that the United States has 
failed to comply with the DSB's recommendations  and rulings regarding the importer-specific 
assessment rates determined in Reviews 1, 2, 3, 7, and 8 that apply to entries covered by those 
Reviews that were, or will be, liquidated after the ex piry of the reasonable period of time.  We also 
examine the United States' appeal of the Panel's fi nding that the United States has acted inconsistently 
with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by 
applying zeroing in the context of Reviews 4, 5, 6, and 9. 
132. Reviews 1 through 6 and 9 are periodic reviews of an anti-dumping duty order on imports of 
ball bearings from Japan.352  Review 7 is a periodic review of  an anti-dumping duty order on imports 
of cylindrical roller bearings from Japan.353  Review 8 is a periodic review of an anti-dumping duty 
order on imports of spherical plain bearings from Japan.354  Reviews 1, 2, 3, 7, and 8 were challenged 
by Japan in the original proceedings.  The Appe llate Body found in those proceedings that, by 
applying zeroing procedures in these five Reviews (a long with six others), the United States acted 
inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement , and with Article VI:2 of the 
GATT 1994.355  In these Article 21.5 proceedings, Japan h as claimed that the United States has failed 
                                                      
351Panel Report, paras. 7.107, 7.114, and 7.116. 
352See supra , footnotes 24 and 26.  See also Panel Report, footnote 13 to para. 3.1(b)(i), and 
footnote 14 to para. 3.1(b)(ii). 
The Panel noted that Japan's claims also referred to certain amendments to Reviews 1, 2, and 3 and that 
these amendments were covered by Japan's request for panel establishment.  Before the Panel, the United States asserted that these amendments were not relevant to the Article 21.5 proceedings, because "they were the result 
of [United States] court orders unrelated to the DSB's recommendations and rulings in this dispute and did not 
alter the zeroing procedures employed in Reviews 1, 2 and 3."  However, the Panel observed that the importer-specific assessment rates resulting from Reviews 1, 2, and 3 were recalculated following the amendments 
challenged by Japan.  The Panel th erefore included these recalculated im porter-specific assessment rates in the 
scope of its findings, since the recal culated importer-specific assessment ra tes replace those initially determined 
by the USDOC.  As the Panel explained, "it is the recalculated importer-specific assessment rates that should 
have been brought into conformity". (Panel Report, footnote 148 to para. 7.139)  The Panel further noted that the United States had not formally ch allenged the inclusion of the amendments.  The Panel's inclusion of the 
amendments has not been challenged by the United States in this appeal.  
353See supra , footnote 24.  See also Panel Report, footnote 13 to para. 3.1(b)(i).  
354See supra , footnote 24.  See also Panel Report, footnote 13 to para. 3.1(b)(i). 
355Appellate Body Report, US – Zeroing (Japan) , para. 190(e).  WT/DS322/AB/RW 
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  to comply with the DSB's recommendations and rulings in  respect of Reviews 1, 2, 3, 7, and 8.  Japan 
has also challenged Reviews 4, 5, 6, and 9, asserting that they are "measures taken to comply" within 
the meaning of Article 21.5 of the DSU.356 
133. The final results of Reviews 1 through 9 were challenged by private parties before the United 
States domestic courts.  Injunctions enjoining liquidation of the anti-dumping duties in connection 
with all nine periodic reviews were issued by the United States Court of International Trade.357  As a 
result, the collection of anti-dumping duties was susp ended.  In some cases, domestic litigation has 
ended and the injunctions have been lifted.358  In other cases, domestic litigation remains pending and 
the injunctions remain in force.359 
134. Section B provides a brief summary of the Panel's analysis of these issues.  The arguments 
raised on appeal by the participants and third particip ants are set out in Section C.  Our analysis of the 
United States' appeal is in Section D. 
B. Article 21.5 Proceedings 
1. Reviews 1, 2, 3, 7, and 8  
135. Before the Panel, Japan asserted that the United States should have taken steps before the end 
of the reasonable period of time to bring into conformity the importer-specific assessment rates 
determined in Reviews 1, 2, 3, 7, and 8, but that the United States has failed to do so.360  Japan 
claimed that the United States' failure to act is in  violation of Articles 17.14, 21.1, and 21.3 of the 
DSU, and in continued violation of Articles 2.4 and 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994.361  For its part, the United States argued that it did not have any 
implementation obligations in respect of those importer-specific assessment rates, because they 
concerned merchandise that had entered the United States before the expiration of the reasonable 
period of time.362 
                                                      
356See supra , footnote 26.  See also Panel Report, para. 3.1(b)(ii).   
357This process is described infra , at para. 171. 
358Domestic litigation has ended in respect of Reviews 1-3, 7, and 8. (See Annexes 1-3, 7, and 8 to 
Japan's responses to the Panel's questions.  At the oral hearing, the United States conceded that these Annexes 
correctly reflected the chronology of the domestic proceedings.) 
359Domestic litigation is pending in respect of Reviews 4-6 and 9. (See Annexes 4-6 and 9 to Japan's 
responses to the Panel's questions.  At the oral hearing,  the United States conceded that these Annexes correctly 
reflected the chronology of the domestic proceedings.)  
360Panel Report, para. 7.117. 
361Panel Report, para. 7.117. 
362Panel Report, para. 7.118. WT/DS322/AB/RW 
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  136. The Panel first examined the United States' argu ment that Japan was seeking a "retrospective" 
remedy, while the DSU provides for prospective relief only.
363  The Panel observed that "neither the 
DSU nor the [ Anti-Dumping ] Agreement  uses the terms 'prospective' or  'retrospective' to describe 
Members' implementation obligations " and thus did not consider it "a ppropriate" to resolve the issue 
on that basis.364  The Panel then turned to the DSU and, in  particular, to Articles 3.7, 19.1, and 21.3, 
which the Panel interpreted as requiring the United St ates "to bring Reviews 1, 2, 3, 7 and 8 'into 
conformity'", by the end of the reasonable period of time, by withdrawing, modifying or replacing 
them, "if they had not already expired".365 
137. Next, the Panel reviewed the United States ' argument that it had met its compliance 
obligations by eliminating the cash deposit rates esta blished by the periodic reviews that were found 
to be WTO-inconsistent in the original proceedings  and that there was nothing else that it needed to 
do to come into compliance.366  The Panel rejected this argumen t, noting that the United States had 
not explained how it had complied with the DS B's recommendations and rulings regarding the 
relevant importer-specific assessment rates.  The Pane l observed, in this regard, that the United States 
considered that "it was not required to implement in respect of the importer-specific assessment rates 
because they relate to import entries o ccurring before the expiry of the RPT."367  This argument was 
also rejected by the Panel, which reasoned: 
Thus, although the United States may be correct in asserting that 
"whenever the [ Anti-Dumping ] Agreement  specifies an applicable 
date for an action, the scope of  applicability is based on entries 
occurring on or after that date", the point is that the [ Anti-Dumping ] 
Agreement  does not specify any applicable date for implementation 
action.  Accordingly, the [ Anti-Dumping ] Agreement  does not require 
that the "scope of applicability" of implementation action be based on the date of import entry.
368 
138. Instead, the Panel determined the "scope  of applicability" of the United States' 
implementation obligations by reference to  Articles 3.7, 19.1, and 21.3 of the DSU.369  The Panel 
observed that "[t]here is no refere nce in those provisions to the date of import entry", instead finding 
                                                      
363Panel Report, para. 7.140 (re ferring to United States' first written submission to the Panel, para. 54). 
364Panel Report, para. 7.140.  The Panel did not consider it necessary to rely on Articles 13-15 of the 
ILC Draft Articles, which Japan ha d raised in its submission. ( Ibid., footnote 152 to para. 7.140 (referring to 
Japan's second written submission to the Panel, para. 149)) 
365Panel Report, para. 7.144. 
366Panel Report, para. 7.145 (re ferring to United States' first written submission to the Panel, para. 54). 
367Panel Report, para. 7.146. 
368Panel Report, para. 7.147 (quoting United States' first written submission to the Panel, para. 64). 
369Panel Report, para. 7.147 (quoting United States' first written submission to the Panel, para. 64).  WT/DS322/AB/RW 
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  that these provisions, taken collectively, prescribe that  the relevant date for implementation is the date 
of expiry of the reasonable period of time.370  Thus, the Panel stated: 
If a measure found to be WTO-inconsis tent is to be applied after the 
expiry of the RPT, that measure must have been brought "into 
conformity", irrespective of the date of entry of the imports covered 
by that measure.371 
139. After articulating this general standard, the Panel proceeded to a pply it to the specific 
measures before it.  The Panel held that the Unite d States was obliged to have brought the "importer-
specific assessment rates determined in Reviews 1, 2,  3, 7 and 8 (and subseque nt amendments thereto) 
'into conformity' with the cove red agreements by 24 December 2007 [that is, by the end of the 
reasonable period of time]".372  The Panel observed that this ha d not occurred because the importer-
specific assessment rates had not been withdrawn and continued to have legal effect after the 
expiration of the reasonable period of time "in the sense that they continued to provide authority for 
the collection of anti-dumping duties in respect of  the relevant (unliquidated) import entries".373  The 
Panel further noted that "the status of those [impor ter-specific assessment rates] has not changed since 
the original proceeding, in which they  were found to be WTO-inconsistent."374 
140. The Panel then reviewed the United States' ar gument that this approach creates inequality 
between retrospective and pr ospective anti-dumping systems.375  The United States asserted that, 
under a prospective system, implementation obligat ions can never affect the liquidation of anti-
dumping duties because liquidation occurs at the time of entry.  Thus, it is impossible that such entries 
could remain unliquidated at the expiry of the r easonable period of time, which would be the time by 
                                                      
370Panel Report, para. 7.148. 
371Panel Report, para. 7.148. 
372Panel Report, para. 7.149. (footnote omitted) 
373Panel Report, para. 7.149.  In support of this proposition, the Panel stated: 
We are guided in this regard by the Panel Report,  EC – Commercial Vessels , 
in which the panel required the European Communities to take action to implement the recommendations and rulings of the DSB with respect to 
WTO-inconsistent measures "to the extent that [they] continue to be 
operational". 
(Ibid., footnote 163 to para. 7.149 (referring to Panel Report, EC – Commercial Vessels , para. 8.4)) 
374Panel Report, para. 7.149. 
375In response, Japan argued that the implementation obligations under both prospective and 
retrospective assessment systems ar e the same.  This is because: 
... under a prospective assessment syst em, a periodic review found to be 
WTO-inconsistent could produce legal effects after the end of the RPT ... 
such review would have to be brought into conformity at the end of the 
RPT, even though the relevant (unliquidated) entries occurred before that date. 
(Panel Report, para. 7.151) WT/DS322/AB/RW 
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  when a Member would need to implement the DSB's recommendations and rulings.  The United 
States argued that this is saliently different fro m retrospective systems where liquidation of anti-
dumping duties can occur after the expiry of the reas onable period of time.  This makes it possible for 
implementation obligations to affect the liquidation of such duties.  According to the United States, such unequal treatment of retrospective anti-dumping systems, as compared to the treatment of prospective anti-dumping systems, is contrary to the Appellate Body's view that "[t]he Anti-Dumping 
Agreement  is neutral as between different systems for levy and collection of anti-dumping duties."
376  
The United States insisted that the correct parame ter by which a Member's compliance obligations 
should be defined is the date of entry, whic h would avoid any inequality between anti-dumping 
systems. 
141. The Panel found it unnecessary to examine the United States' argument because: 
... we do not consider that our task is to ensure that the 
implementation obligations under prospective and retrospective 
assessment systems are identical.  The fact is that the two systems are 
different, and it is presumably such differences that lead Members to choose one system over the other ... Having chosen one system over the other, Members must respect the consequences of that choice.
377 
142. The Panel gave three reasons as to why this appr oach was not, contrary to the allegations of 
the United States, at odds with the Appellate Body's view that "[t]he Anti-Dumping Agreement is 
neutral as between different systems for levy and collection of anti-dumping duties"378: 
First, we note that the Appellate Body's statement confirms the fact 
that prospective and retrospective assessment systems are indeed "different". Second, the Appellate Body's statement concerns the [Anti-Dumping ] Agreement , not the DSU. Third, the fact that the 
underlying differences between th e prospective and retrospective 
assessment systems may have practical consequences for how 
Members come into compliance with the recommendation and rulings of the DSB does not mean that the DSU favours one system over the other;  it is simply a reflection of those underlying differences.
379 
143. Finally, the Panel addressed the United Stat es' argument that the Panel should "not allow 
factors 'not provided for by the terms of' the covere d agreements, such as the rights of private parties 
                                                      
376Panel Report, para. 7.152 (quoting Appellate Body Report, US – Zeroing (Japan) , para. 163). 
377Panel Report, para. 7.152. 
378Panel Report, para. 7.152 (quoting Appellate Body Report,  US – Zeroing (Japan) , para. 163).  
379Panel Report, para. 7.152.  WT/DS322/AB/RW 
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  in domestic litigation, 'to add to or dimi nish the rights and obligations of Members'".380  The United 
States asserted that the sole reason that liquidation had not occurred before the end of the reasonable 
period of time was because of domestic litigation.  The Panel rejected this argument and found that 
the reasons why a Member finds itself in contin uing violation of its WTO obligations are not a 
relevant consideration under Articl es 3.7, 19.1, and 21.3 of the DSU.381  Rather, according to the 
Panel, those "provisions require universal complia nce by the end of the RPT, no matter the factual 
circumstances of any given case."382 
144. The Panel concluded that the United States h as failed to comply with the recommendations 
and rulings of the DSB regarding the importer-specifi c assessment rates determined in Reviews 1, 2, 
3, 7, and 8 that apply to entries covered by those Reviews that were, or will  be, liquidated after the 
expiry of the reasonable period of time and, conseque ntly, remains in violation of Articles 2.4 and 9.3 
of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994.383 
2. Reviews 4, 5, 6, and 9  
145. In the course of the Panel proceedings, the Un ited States requested a preliminary ruling that 
Reviews 4, 5, and 6 were not properly with in the scope of the Article 21.5 proceedings.384  The Panel 
rejected the United States' request and found that Reviews 4, 5, and 6 were sufficiently closely 
connected to the original dispute, such that they should be treated as measures "taken to comply" with 
the recommendations and rulings of the DSB.385  As noted earlier386, the Panel also rejected the United 
States' assertion that Review 9 was not properly within  the Panel's terms of reference.  The Panel then 
proceeded to examine Japan's claim that Reviews 4, 5, 6, and 9 are inconsistent with Articles 2.4 
and 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994, because the United 
States applied zeroing in each Review when calculating margins of dumping to determine cash 
deposit rates and importer-specific assessment rates.387 
146. The Panel considered the evidence submitted by Japan in support of its claim, beginning with 
the "standard zeroing line", a line of computer code , which Japan claimed was applied in Reviews 4, 
                                                      
380Panel Report, footnote 167 to para. 7.153 (referring to United States' second written submission to 
the Panel, para. 56). 
381Panel Report, para. 7.153. 
382Panel Report, para. 7.153. 
383Panel Report, para. 7.154.  The Panel did not consider it necessary to examine Japan's claims under 
Articles 17.14, 21.1, and 21.3 of the DSU. ( Ibid., para. 7.155) 
384Panel Report, para. 7.12. 
385Panel Report, para. 7.82. 
386See supra , Section IV. 
387Panel Report, paras. 7.156 and 7.157. WT/DS322/AB/RW 
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  5, 6, and 9.
388  The Panel also considered the USDOC Issues and Decision Memoranda for Reviews 4, 
5, 6, and 9.389  On the basis of this evidence, the Panel found that Japan had established a prima facie  
case that the United States applied zer oing in Reviews 4, 5, 6, and 9.390  It further noted that the 
United States did not deny that it a pplied zeroing in those determinations.391  The Panel disagreed 
with the United States that there was a need to provide evidence demonstrating that individual 
importer-specific assessment rates were affected by zeroing.  The Panel noted that the Appellate 
Body's findings in the original pr oceedings were not based on evidence that particular importers had 
sales with negative margins or that individual impor ter-specific assessment rates were affected by the 
application of zeroing procedures.392  The Panel, in any event, refe rred to evidence proffered by Japan 
establishing the quantitative impact of zeroing on the duty collection rates established in the Reviews, 
including calculations made by Japan of what th e exporter-specific margins of dumping and importer-
specific assessment rates in Reviews 4, 5, 6, and 9 would have been if the "standard zeroing line" of 
computer code had been switched off.  The Pane l rejected the United States' position that it was 
improper for Japan to rely on USDOC programs that had been revised by Japan so as to show the 
impact of zeroing on the relevant margins and assessment rates.393  Further, the Panel noted that, 
although the United States did not concede that the results obtained by Japan would be the results 
obtained by the USDOC if it had not employed zeroing, the absence of such concession was not 
equivalent to a rebuttal of Japan's evidence, or a de monstration that the results of Japan's calculations 
were somehow erroneous.394 
147. On this basis, the Panel rejected the United States' arguments agains t the evidence submitted 
by Japan to show that the relevant margins of dumping and assessment rates reflected zeroing.  It 
found that the United States had failed to rebut Japan's prima facie  case and, as a consequence, found 
that the exporter-specific margins of dumping and im porter-specific assess ment rates in Reviews 4, 5, 
6, and 9 were affected (in the sense of being inflated) by zeroing.395  In concluding that the application 
                                                      
388The Panel noted that this evidence had taken the form of computer program excerpts submitted as 
Panel Exhibits JPN-91.1.A, JPN-91.1.B, JPN-91.1.C, JPN-91.1.D, JPN-91.2.A, JPN-91.2.B, JPN-91.2.C, 
JPN-91.2.D, JPN-91.3.A, JPN-91.3.B, JPN-91.3.C, JPN-91.3.D, JPN-91.3.E, JPN-91.4.A, and JPN-91.4.B.  The 
Panel also noted that the Panel Exhibit JPN-91 series updates and supplements the Panel Exhibits JPN-42, JPN-43, and JPN-44 series. (Panel Report, para. 7.160 and footnote 173 thereto) 
389These documents are set forth in Panel Exhibits JPN-74, JPN-75, JPN-76, and JPN-67.B, 
respectively. (Panel Report, para. 7.161) 
390Panel Report, para. 7.161. 
391Panel Report, para. 7.161.  
392Panel Report, para. 7.162. 
393Panel Report, para. 7.164.  
394Panel Report, paras. 7.164 and 7.165 (referring to Appellate Body Report, US – Continued Zeroing , 
paras. 340 and 341). 
395Panel Report, para. 7.166.   WT/DS322/AB/RW 
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  of zeroing in the context of Reviews 4, 5, 6, and 9 is inconsistent with Ar ticles 2.4 and 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994, the Panel explained that it was guided by 
the adopted report of the Appellate Body in the original proceedings.396 
C. Claims and Arguments on Appeal 
148. As we have set forth in detail in Section II,  the United States appeals the Panel's findings 
concerning Reviews 1, 2, 3, 7, and 8 on two grounds.  First, the United States asserts that a 
determination that a WTO Member has failed to co mply with the DSB's recommendations and rulings 
may not be based on duties relating to entries made prior to the expiration of the reasonable period of 
time, even if liquidation of those duties occurs after the expiration of that period.397  Secondly, the 
United States submits that, even if the date of  liquidation was relevant for assessing compliance, 
liquidation actions that take place after the reasona ble period of time as a result of domestic litigation 
cannot provide a basis for a finding of non-compliance.398  Relying on the Appellate Body Report in 
US – Zeroing (EC) (EC – Article 21.5) , the United States further maintains that the liquidation actions 
that have been delayed as a result of domestic litig ation cannot be said to "derive mechanically" from 
the challenged periodic reviews, and therefore cannot be deemed to be WTO-inconsistent.399 
149. The United States also challenges the Pane l's finding that the United States acted 
inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the 
GATT 1994 by applying zeroing in the context of Reviews 4, 5, 6, and 9.400  The United States 
appeals this finding on the same two grounds that it app eals the findings relating to Reviews 1, 2, 3, 7, 
and 8.  In addition, the United States challenges the finding concerning Reviews 4, 5, and 6, on the 
grounds that these reviews had not had effects after the expiration of the reasonable period of time 
because "assessment of duties calcula ted in these reviews was enjoined prior to the conclusion of the 
RPT and continues to be enjoined".401 
150. Japan asserts that the Panel correctly rejected  the United States' argument that the relevant 
date for determining whether there has been comp liance is the date of entry of the merchandise 
subject to the anti-dumping duties.402  Moreover, Japan argues that "the United States' responsibility 
for its duty collection actions taken after the end of the RPT is not diminished, or otherwise altered, 
                                                      
396Panel Report, para. 7.168.  
397United States' appellant's submission, para. 87. 
398United States' appellant's submission, paras. 91-100. 
399United States' appellant's submission, para. 97. 
400United States' appellant's submission, para. 101. 
401United States' appellant's submission, para. 105. 
402Japan's appellee's submission, para. 238. WT/DS322/AB/RW 
Page 66  
 
  because of [United States] court conduct that  is attributable to the United States".
403  Japan also 
disagrees with the United States' submission that domestic judicial proceedings "sever" the 
mechanical link between th e assessment of liability in the periodic review and the liquidation actions, 
explaining that "judicial review does not alter e ither the manner by which [Customs] takes measures 
to collect duties, or the interaction between the USDOC and [Customs]".404 
151. As regards Reviews 4, 5, 6, and 9, Japan ass erts that the United States' appeal should be 
rejected to the extent that it is based on the same grounds as the appeal of the Panel's findings 
concerning Reviews 1, 2, 3, 7, and 8.  Japan oppo ses the United States' argument that Reviews 4, 5, 
and 6 have had no effects subseque nt to the expiration of the reasonable period of time, relying for 
support on the Panel's finding that the importer-sp ecific assessment rates determined in these Reviews 
"continued to have legal effect long after the adoption of the DSB's recommendations and rulings".405  
Japan additionally observes that Review 9 was adopted  after the expiration of the reasonable period of 
time "and, hence, began to apply, and produce legal effects, after that date".406 
152. The European Communities cons iders that the Appellate Body should uphold the Panel's 
findings concerning Reviews 1, 2, 3, 7, and 8 and Reviews 4, 5, 6, and 9.407  Mexico and Korea agree 
with the Panel that any measure taken after th e reasonable period of time must be brought into 
compliance, irrespective of the date of entry of the merchandise.408  Mexico and Korea do not 
consider that domestic judicial proceedings  provide a justification for non-compliance.409  Norway 
submits that the Panel correctly found that the United States has failed to comply with the DSB's 
recommendations and rulings with respect to Reviews 1, 2, 3, 7, and 8.410 
                                                      
403Japan's appellee's submission, para. 284. 
404Japan's appellee's submission, para. 293. 
405Japan's appellee's submission, para. 480 (quoting Panel Report, para. 7.79). 
406Japan's appellee's submission, para. 483. (emphasis omitted) 
407European Communities' third participant's submission, paras. 4 and 43. 
408Mexico's third participant's submission, para. 32;  Korea's third participant's submission, para. 28. 
409Mexico's third participant's submission, para. 39;  Korea's third participant's submission, paras. 31 
and 32. 
410Norway's third participant's submission, para. 31.  WT/DS322/AB/RW 
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  D. Analysis  
1. What Is the Scope and Timing of the Obligation to Comply with the DSB's 
Recommendations and Rulings?  
153. The United States' appeal concerns the oblig ation of WTO Members to comply with the 
DSB's recommendations and rulings.  The DSU contains several provisions that specifically address this obligation.  
154. The obligation to comply with the DSB's re commendations and rulings arises once the DSB 
has adopted a panel or Appellate Body report
411 that has concluded that a me asure is inconsistent with 
a covered agreement.  In accordance with Article  19.1, implementation requires that the Member 
concerned bring the WTO-inconsistent measure into conformity with the relevant covered 
agreement(s).  Article 3.7 of the DSU states that, "[ i]n the absence of a mutua lly agreed solution, the 
first objective of the dispute settleme nt mechanism is usually to secure the withdrawal of the measures 
concerned if these are found to be inconsistent with the provisions of any of the covered agreements."  
Although the "withdrawal" of the WTO-inconsiste nt measure could be understood as requiring 
abrogation of the measure, it has been accepted that  "alternative means of implementation may exist 
and that the choice belongs, in principle, to the Member".412  As the Appellate Body has explained, 
"the inconsistent measure to be withdrawn can be  brought into compliance by modifying or replacing 
it with a revised measure."413 
155. Under Article 21.5 of the DSU, disagreements "as to the existence or consistency with a 
covered agreement of measures taken to comply with the recommendations and rulings" must be 
resolved through recourse to WTO dispute settlement  procedures, and, wherever possible, must be 
referred to the original panel.  Article 21.5 h as been interpreted by the Appellate Body, in US – FSC 
(Article 21.5 – EC II) , to mean that, "in compliance proceedings , an Article 21.5 panel may have to 
examine whether the 'measures taken to comp ly' implement fully, or only partially, the 
recommendations and rulings adopted by the DSB".414  The Appellate Body has additionally 
explained that "[t]he requirements in Article 21. 5 to examine whether compliance measures exist and 
whether the measures taken to comply are consiste nt with the covered agreements ... suggest that 
                                                      
411Pursuant to Articles 16.4 and 17.14 of the DSU. 
412Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 173.  In its interpretation, the Appellate Body relied on the second sentence of Article 19.1 and on 
Article 21.3 of the DSU.  
413Appellate Body Report,  US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
footnote 367 to para. 173. 
414Appellate Body,  US – FSC (Article 21.5 – EC II) , para. 93. WT/DS322/AB/RW 
Page 68  
 
  substantive compliance is required".
415  This, in turn, requires that the implementing Member rectify 
the inconsistencies found in the original proceedin gs and that the implementing measure is not in 
other ways inconsistent w ith the covered agreements.416  
156. The timeframe within which compliance must be ef fected is addressed in Article 21, which is 
entitled "Surveillance of Implementation of Recomme ndations and Rulings".  Article 21.1 provides 
that "[p]rompt compliance with recommendations or ru lings of the DSB is essential in order to ensure 
effective resolution of disputes to the benefit of all Members."  The reference to "essential" 
underscores the importance of the obligation to comp ly with the DSB's recommendations and rulings.  
The reference to "prompt" compliance emphasizes the need for the timely implementation of DSB 
recommendations and rulings. 
157. The timing of implementation is also addressed in Article 21.3 of the DSU, which reads, in 
relevant part: 
At a DSB meeting held within 30 da ys after the date of adoption of 
the panel or Appellate Body repor t, the Member concerned shall 
inform the DSB of its intentions in respect of implementation of the 
recommendations and rulings of the DSB.  If it is impracticable to 
comply immediately with the recommendations and rulings, the Member concerned shall have a reas onable period of time in which to 
do so. (footnote omitted) 
According to this provision, implementation of th e recommendations and rulings of the DSB must be 
done "immediately", unless it is "impracticable" to  do so.  In other words, the requirement is 
immediate compliance.  However, Article 21.3 recognizes that immediate compliance may not always be practicable, in which case it foresees the possi bility of the implementing Member being given a 
reasonable period of time to comply.  An important c onsideration is that the reasonable period of time 
is not determined by the implementing Member itself.  Instead, the reasonable period of time may be proposed by the implementing Member and approved by the DSB, mutually agreed by the parties, or 
determined through binding arbitration.  This confir ms that the reasonable period of time is a limited 
exemption from the obligation to comply immediatel y.  As the Appellate Body has stated, "the 
                                                     
 
415Appellate Body Reports, US – Continued Suspension  and Canada – Continued Suspension , 
para. 308.  The United States indicated that "Article 21.5 must also be read in the context of provisions such as 
DSU Article 22.8", at least for purposes of ascertainin g whether a "measure taken to comply" exists. (United 
States' response to Panel Question 6, para. 14) 
416Appellate Body Reports, US – Continued Suspension  and Canada – Continued Suspension , 
para. 305.  WT/DS322/AB/RW 
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  obligation to comply with the recommendations and ru lings of the DSB has to be fulfilled by the end 
of the reasonable period of time at the latest".417 
158. Accordingly, the mandate of an Article 21.5 panel is to determine whether a WTO Member 
has implemented the DSB's recommendations and rulings fully and in a timely manner.  An 
Article 21.5 panel is not called upon to modify the reasonable period of time agreed or determined 
under Article 21.3.  A WTO Member will not have  met its obligation to implement the DSB's 
recommendations and rulings if measures taken to  comply are inconsistent with the covered 
agreements or if there is an omission in implem entation.  Moreover, Article 21.3 requires that the 
obligation to implement fully the DSB's recommendati ons and rulings be fulfilled by the end of the 
reasonable period of time at the latest and, conse quently, the WTO-inconsistent conduct must cease at 
the latest by that time. 
2. Is the Date of Importation the Re levant Parameter for Determining 
Compliance?  
159. Having set out above our general understanding of a WTO Member's obligation to comply 
with the DSB's recommendations and rulings, we turn  now to the first issue raised by the United 
States' appeal, that is, whether the obligation to comp ly applies also in respect of imports that entered 
the territory of the implementing WTO Member prior to the expiration of the reasonable period of time, when matters concerning tho se imports have not been fully settled by the end of the reasonable 
period of time. 
160. A similar issue was raised by the Un ited States in the recent appeal in US – Zeroing (EC) 
(Article 21.5 – EC) , where the Appellate Body stated: 
We also agree with the Panel's statement that "[t]o implement the 
DSB's recommendations and rulings, the United States was at least obligated, after 9 April 2007, to cease using the 'zeroing' methodology in the calculation of anti-dumping duties, not only with 
respect to imports entered after the end of the reasonable period of 
time, but also in the context of decisions involving the calculation of dumping margins made after the end of the reasonable period of time 
with respect to imports entered before  that date." ... We consider that 
measures that, in the ordinary course of the imposition of anti-
dumping duties, derive mechanically  from the assessment of duties 
would establish a failure to comply with the recommendations and rulings of the DSB to the extent that they are based on zeroing and 
                                                     
 
417Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 299. WT/DS322/AB/RW 
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  that they are applied after the end of the reasonable period of time.
418 
(original emphasis;  footnote omitted) 
Thus, the Appellate Body has found that ther e may be circumstances where a WTO Member's 
obligation to implement the recommendations and ru lings of the DSB applies in respect of conduct 
relating to imports that entered that Member's territo ry prior to the expiration of the reasonable period 
of time.419  Irrespective of the date on which the imports  entered the territory of the implementing 
Member, the WTO-inconsistencies must cease by the end of the reasonable period of time.  There will not be full compliance where the implementing Member fails to take action to rectify the WTO-inconsistent aspects of a measure that remains in fo rce after the end of the reasonable period of time.  
Likewise, actions taken by the implementing Member  after the end of the reasonable period of time 
must be WTO-consistent, even if those actions are in respect of imports that entered the Member's 
territory before the end of the reasonable period of  time.  Therefore, we agree with the Panel's 
statement that, "[i]f a measure found to be WTO-incons istent is to be applied after the expiry of the 
RPT, that measure must have been brought 'into conf ormity', irrespective of the date of entry of the 
imports covered by that measure".
420  Indeed, any conduct of the implementing Member that was 
found to be WTO-inconsistent by the DSB must ce ase by the end of the reasonable period of time.  
Otherwise, that Member would continue to act in  a WTO-inconsistent manner after the end of the 
reasonable period of time, contrary to Articles 3.7, 19.1, 21.1, 21.3, and 21.5 of the DSU.   
161. The measures at issue in the present case are periodic reviews of anti-dumping duty orders.  
The Panel explained that, in the United States' anti-dumping system, periodic reviews involve the 
determination of "importer-specific assessment rat es for previous entries imported during the review 
period" and "exporter-specific cash deposit rates th at will apply prospectively to future import 
entries".421  Where the importer-specific assessment rates or cash deposits rates determined by the 
implementing Member are found to be WTO-inconsis tent, that Member is under an obligation to 
rectify the inconsistencies.  In order to comply full y with this obligation, the inconsistencies must be 
rectified by the end of the reasona ble period of time.  Where the pe riodic reviews cover imports that 
entered the implementing Member's territory prior to  the expiration of the reasonable period of time, 
the WTO-inconsistencies may not persist after the reasonable period of time has expired.  Thus, for 
example, importer-specific assessment rates that were  found to be WTO-inconsistent may not remain 
in effect after the expiration of the reasonable period  of time.  In other words, the WTO-inconsistent 
                                                      
418Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 311. 
419We will henceforth refer to the respondent Member  subject to the obligation to comply with the 
DSB's recommendations and rulings as the "implementing Member". 
420Panel Report, para. 7.148. 
421Panel Report, para. 7.66.  WT/DS322/AB/RW 
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  conduct must cease completely, even if it is rela ted to imports that entered the implementing 
Member's territory before the reasonable period of ti me expired.  Otherwise, full compliance with the 
DSB's recommendations and rulings ca nnot be said to have occurred. 
162. In order to support its view that the date of entry is the relevant parameter for assessing 
compliance, the United States relies on Article VI and the interpretive Note to paragraphs 2 and 3 of 
Article VI (the " Ad Note") of the GATT 1994, and Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-
Dumping Agreement , which it considers to be relevant contex t.  According to the United States, these 
provisions "confirm[] that it is the legal regime in  existence at the time that an import enters the 
Member's territory that determines whether th e import is liable for the payment of antidumping 
duties".422 
163. We now examine whether these provisions support the position of the United States.  The first 
sentence of Article VI:2 of the GATT 1994 states that, "[i]n order to offset or prevent dumping, a 
Member may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product".  Article VI:6(a) provides that a WTO Member shall 
not levy an anti-dumping duty on the importation of any product of the territory of another WTO 
Member "unless it determines that the effect of the du mping ... is such as to cause or threaten material 
injury to an established domestic industry, or is su ch as to retard materially the establishment of a 
domestic industry."  The United States cons iders it particularly relevant that the Ad Note allows a 
WTO Member to require "reasonable security (bond or cash deposit) for the payment of anti-dumping 
… duty pending final determination of the facts in any case of suspected dumping".  We fail to see 
how these provisions support the view that the date of  entry is the relevant parameter for determining 
compliance.  These provisions do not address the issue of whether the implementing Member may leave a measure found to be inconsistent with the Anti-Dumping Agreement  and Article VI of the 
GATT 1994 in place unchanged after the end of the r easonable period of time, because that measure 
covered imports that entered the implementing Member's territory prior to the expiration of the 
reasonable period of time. 
164. As regards the provisions of the Anti-Dumping Agreement  cited by the United States, we note 
that Article 8.6 states that, where an undertaking is violated, definitive anti-dumping duties "may be 
levied in accordance with this Agreement on produc ts entered for consumption not more than 90 days 
before the application of such provisional measures,  except that any such re troactive assessment shall 
                                                     
 
422United States' appellant's submission, para. 67.  We address, in para. 172 infra , the general 
relationship between provisions of the Anti-Dumping Agreement  and the DSU, in the light of Article 1.2 of the 
DSU and Appendix 2 thereto.  WT/DS322/AB/RW 
Page 72  
 
  not apply to imports entered before the violation of the undertaking".
423  Article 10.1 establishes that 
provisional measures and anti-dumping duties shall a pply only to products entered after the decision 
to take such measures was taken (subject to exceptions).424  Article 10.6 stipulates that a definitive 
anti-dumping duty may be levied on products entered not  more than 90 days prior to the application of 
provisional measures if certain conditions are met.425  Article 10.8 stipulates that no duties can be 
levied retroactively pursuant to Article 10.6 on pr oducts entered prior to the date of initiation of the 
investigation.426  These provisions set forth precise time frames and conditions limiting retroactive 
application of provisional and definitive measures in the context of the initial imposition of anti-
dumping measures.  However, these provisions do not address a Member's compliance obligations after the DSB has adopted recommendations and rulings and the reasonable period of time for 
implementation has expired.  Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping Agreement  do not 
provide a textual basis for the argument that the determination of whether an implementing Member 
                                                     
 
423Article 8.6 of the Anti-Dumping Agreement  reads: 
Authorities of an importing Member may require any exporter from whom an undertaking has been accepted to  provide periodi cally information 
relevant to the fulfilment of such an undertaking and to permit verification 
of pertinent data.  In case of violation of an undertaking, the authorities of the importing Member may take, under this Agreement in conformity with 
its provisions, expeditious actions which may constitute immediate 
application of provisional measures using the best information available.  In 
such cases, definitive duties may be levied in accordance with this 
Agreement on products  entered for consumption not more than 90 days before the application of such provis ional measures, except that any such 
retroactive assessment shall not apply to imports entered before the violation 
of the undertaking. 
424Article 10.1 of the Anti-Dumping Agreement  provides: 
Provisional measures and anti dumping duties shall only be applied to 
products which enter for consumption after the time when the decision taken under paragraph 1 of Article 7 and paragraph 1 of Article 9, respectively, 
enters into force, subject to the exceptions set out in this Article. 
425Article 10.6 of the Anti-Dumping Agreement  states: 
A definitive anti dumping duty may be levied on products which were 
entered for consumption not more than 90 days prior to the date of 
application of provisional measures, when the authorities determine for the dumped product in question that: 
(i) there is a history of dumping which caused injury or that the 
importer was, or should have been , aware that the exporter practises 
dumping and that such dumping would cause injury, and 
(ii) the injury is caused by massive dumped imports of a product in a 
relatively short time which in light of the timing and the volume of the 
dumped imports and other circumstances (such as a rapid build up of 
inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti dumping duty to be applied, provided 
that the importers concerned have been given an opportunity to comment. 
426Article 10.8 of the Anti-Dumping Agreement  reads: 
No duties shall be levied retroactively pursuant to paragraph 6 on products 
entered for consumption prior to the date of initiation of the investigation.  WT/DS322/AB/RW 
 Page 73 
 
 
  has complied with the DSB's recommendations an d rulings should exclude actions or omissions 
relating to imports that entered that Member's territo ry before the end of the reasonable period of time. 
165. The United States argues further that disregarding the date of entry of the merchandise, for 
purposes of determining compliance with the DSB's recommendations and rulings, disadvantages WTO Members with retrospective anti-dumping systems.
427  Before the Panel, the United States 
submitted that, "since anti-dumping duties under a prosp ective system are collected, or liquidated, at 
the time of entry, there is in principle no possibility of entries remaining unliquidated at the end of any 
RPT."428  This is because, according to the United States, Members with prospective anti-dumping 
systems have no further obligations once the merc handise subject to anti-dumping duties enters their 
territory.  Therefore, the United States consider s that "inequality" between retrospective and 
prospective anti-dumping systems would be created if the date of entry is not used as the relevant 
parameter.429  The United States adds that this would be contrary to the Appellate Body's own 
statement that "[t]he Anti-Dumping Agreement  is neutral as between different systems for levy and 
collection of anti-dumping duties."430 
166. The United States' argument is difficult to reconc ile with the text of Article 9.3.2 of the Anti-
Dumping Agreement , which requires that WTO Members with prospective anti-dumping systems 
provide a mechanism allowing importers to request re funds of any duty paid in excess of the margin 
of dumping.431  Under Article 9.3.2, a WTO Member with a prospective anti-dumping system may be 
required to take administrative action subsequent to the entry of the merchandise if an importer 
requests a refund of any duty paid in excess of th e margin of dumping.  This has been acknowledged 
                                                      
427United States' appellant's submission, para. 11 and Section IV.B.2.   
428Panel Report, para. 7.150.  The Panel summarized the United States' arguments on this point as 
follows: 
We understand the United States to argue that, since anti-dumping duties 
under a prospective system are collected, or liquidated, at the time of entry, 
there is in principle no possibility of entries remaining unliquidated at the 
end of any RPT.  Even if the prospective anti-dumping duty were found to 
be WTO-inconsistent, the collection, or liquidation, of that duty would remain unaffected by the relevant Member's implementation obligations, 
since it would have occurred long before the end of the RPT.  Under a 
retrospective system, though, the collection of anti-dumping duties might 
not occur until after the expiry of the RPT.  If the relevant Member's 
implementation obligations were not restricted to the date of the import entry in respect of which collection is being made, those implementation 
obligations would affect the collection of the anti-dumping duty. 
429United States' appellant's submission, para. 61. 
430Appellate Body Report, US – Zeroing (Japan) , para. 163. 
431See Appellate Body Report, US – Zeroing (Japan) , para. 160. WT/DS322/AB/RW 
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  by Japan and the European Communities.
432  Like Article 9.3.1, which concerns retrospective anti-
dumping systems, Article 9.3.2 provides for strict ti me-limits on the duration of a refund procedure.  
Footnote 20, on which the United States re lies for its arguments on judicial delay433, and which 
applies to both Articles 9.3.1 and 9.3.2, recognizes that the observance of these time-limits "may not be possible where the product in question is subject to  judicial review proceedings."  Therefore, where 
actions or omissions relating to a refund proce dure are challenged both domestically and in WTO 
dispute settlement, delays in the completion of a re fund procedure until after the end of the reasonable 
period of time cannot be excluded.  Should such a refund procedure not be completed before the end 
of the reasonable period of time, a WTO Member with a prospective anti-dumping system would have compliance obligations in respect of that refund pr ocedure concerning past imports.  Such a Member 
would thus find itself in a situation similar to  that of an implementing Member applying a 
retrospective anti-dumping system.  This confirms that, under both retrospective and prospective anti-
dumping systems, entries made prior to the expiratio n of the reasonable period  of time also may be 
affected by compliance obligations.  As a conseq uence, we disagree with the United States that 
disregarding the date of entry of the mercha ndise for purposes of determining compliance would 
result in retrospective anti-dumping systems bei ng treated less favourably than prospective anti-
dumping systems. 
167. An additional concern raised by the United St ates is that failing to determine compliance by 
reference to the date of entry would amount to retro active relief, which, in the United States' view, is 
"at odds with the prospective nature of comp liance under the WTO dispute settlement system".
434  
The United States considers that such an approach r esults in retroactive relief because it concerns 
entries that occurred prior to the expiry of the reaso nable period of time.  As we explained earlier, the 
DSU requires cessation of all WTO-inconsistent conduct either immediately upon adoption of the 
DSB's recommendations and rulings or no later than upon expiration of  the reasonable period of time, 
                                                      
432See Japan's appellee's submission, para. 41.  In support of the proposition that WTO Members with 
prospective anti-dumping systems grant refunds to importers, the European Communities refers to the decision 
of the European Court of Justice in Ikea Wholesale Ltd v. Commissioners of Customs & Excise  (C-351/04 – 
27/9/07). (See European Communities' third participant's submission, para. 48;  see also Panel Exhibit US-A69)  
At the oral hearing, the European Communities explained that, in that case, importers were granted refunds on 
duties paid in the specific context of zeroing, following the decision in the Appellate Body Report in EC – Bed 
Linen  (Article 21.5 – India) .  The European Communities also directed our attention to the refund procedures 
that were undertaken in the context of the EC – Countervailing Measures on DRAM Chips case. (See European 
Communities' third participant's submission, para. 32)  The European Communities stated that refunds were 
granted with respect to imports that entered the European Communities prior to the expiry of the reasonable 
period of time and were calculated using a WTO-consistent methodology after the expiry of the reasonable 
period of time.  At the oral hearing, Korea confirmed that refunds had been granted in this case. 
433See infra , para. 175. 
434United States' appellant's submission, para. 5.  WT/DS322/AB/RW 
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  regardless of the date of importation.  There is no "retroactive relief" involved when a WTO 
Member's conduct is examined as of the end of th e reasonable period of time, which is the proper 
reference point.  As the Appellate Body stated in US – Zeroing (EC) (Article 21.5 – EC) , "the 
obligation to comply with the recommendations and ru lings of the DSB has to be fulfilled by the end 
of the reasonable period of time at the latest, and ... the WTO-inconsistency has to cease by the end of 
the reasonable period of time with prospective effect."435 
168. We note, finally, that Article 9 of the Anti-Dumping Agreement  covers the imposition and 
collection  of anti-dumping duties.436  Any actions taken to collect anti-dumping duties based on 
importer-specific assessment rates determined in a pe riodic review are also subject to the obligation 
set out in Article 9, including the obligation in paragraph 3 that "[t]he amount of the anti-dumping 
duty shall not exceed the margin of du mping as established under Article 2".437  Where a WTO 
Member has been found to have violated the Anti-Dumping Agreement  and the GATT 1994 by using 
zeroing in a periodic review, it fails to comply w ith the DSB's recommendations and rulings if it 
collects, subsequent to the expiration of the r easonable period of time, anti-dumping duties based on 
rates that were determined in the periodic revi ew using zeroing.  If it did so, the obligation in 
                                                      
435Appellate Body Report,  US – Zeroing (EC) (Article 21.5 – EC) , para. 299. (footnote omitted)  The 
Appellate Body also stated: 
... because compliance with the recomm endations and rulings of the DSB 
implies cessation of zeroing in the assessment of final duty liability, and in 
the measures that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically from the assessment of duties, whether the 
implementation is prospective or retroactive should not be determined by 
reference to the date when liability arises, but rather by reference to the time when final dumping duty liabilities are assessed or when measures that 
result mechanically from the assessment of duties occur.  We consider that 
the obligation to cease using zeroing in  the assessment of anti-dumping duty 
liability at the latest as of the end of the reasonable period of time "is 
eminently prospective in nature".  
(Ibid., para. 309 (footnote omitted)) 
436The title of Article 9 of the Anti-Dumping Agreement  is "Imposition and Collection of Anti-
Dumping Duties". 
437As Japan points out, the United States stated before the Panel that it "does not dispute that Article 9.3 
of the [Anti-Dumping] Agreement obliges WTO Members to ensure that the amount of antidumping duty 
collected not exceed the marg in of dumping established under Article  2 of the [Anti-Dumping] Agreement". 
(United States' second written submission to the Panel, para. 64 (quoted in Japan's appellee's submission, 
para. 242)) WT/DS322/AB/RW 
Page 76  
 
  Article 9.3 that "[t]he amount of the anti-dumpi ng duty shall not exceed the margin of dumping as 
established under Article 2" would not be respected.
438  
169. Therefore, we disagree with the United States' argument that "the determinative fact for 
establishing whether a Member has complied with th e DSB's recommendations and rulings is the date 
merchandise enters that Member's territory."439  We find, instead, that the DSU requires cessation of 
all WTO-inconsistent conduct immediately upon the adoption of the DSB's recommendations and 
rulings or no later than upon expiration of the reas onable period of time.  Consequently, in the case of 
periodic reviews of anti-dumping duty orders, the oblig ation to comply covers actions or omissions 
subsequent to the reasonable period of  time, even if they relate to im ports that entered the territory of 
a WTO Member at an earlier date.  
3. What Is the Relevance of Delays Resulting from Domestic Judicial 
Proceedings?  
170. The second issue raised by the United States' app eal relates to the specific reason for which 
collection of anti-dumping duties was delayed in r espect of the periodic reviews subject to these 
Article 21.5 proceedings.  The question is whether ac tions or omissions that occur after the expiration 
of the reasonable period of time due to domestic judicial proceedings are excluded from the implementing Member's compliance obligations.
440 
171. The United States has explained that, under its re trospective system, the determination of final 
liability (including the determination of importer-speci fic assessment rates) is  made by the USDOC in 
the context of a periodic review.441  Once final liability is determined, the USDOC sends liquidation
                                                      
438This is similar to what would occur if zeroing were allowed in periodic reviews, while being 
disallowed in the original anti-dumping determination.  As the Appellate Body explained in US – Stainless Steel 
(Mexico) : 
… a reading of Article 9.3 of the Anti-Dumping Agreement  that permits 
simple zeroing in periodic reviews would allow WTO Members to circumvent the prohibition of zeroing in original investigations that applies 
under the first sentence of Article 2.4.2 of the Anti-Dumping Agreement .  
This is because, in the first periodic re view after an original investigation, 
the duty assessment rate for each importer will take effect from the date of 
the original imposition of anti-dumping duties.  Consequently, zeroing 
would be introduced although it is not permissible in original investigations. 
(Appellate Body Report, US – Stainless Steel (Mexico) , para. 109) 
439United States' appellant's submission, para. 85. 
440The United States itself framed the issue as follows:  "a key question in this appeal is whether the 
United States failed to comply with the DSB's recommendations and rulings after the end of the RPT, because it 
liquidated entries after that date for which liquidation had been suspended due to judicial review". (United States' appellant's submission, para. 92) 
441United States' response to Panel Question 14, para. 27.  WT/DS322/AB/RW 
 Page 77 
 
 
  instructions to the United States Customs and Border  Protection ("Customs").  This will usually occur 
within 15 days of publication of th e final results of the periodic review.442  Where litigation is initiated 
before the USDOC has issued the liquidation in structions and a United States court enjoins 
liquidation, the USDOC will issue instructions to Customs ordering it not to liquidate the entries 
during the pendency of domestic litigation.443  Litigation may also be initiated after the issuance of 
liquidation instructions, provided that Customs has not  already liquidated the relevant entries.  If a 
United States court issues an injunction in this scenario, the USDOC will send instructions to 
Customs notifying it of the injunction and will requir e Customs to suspend liquidation of the entries 
until the conclusion of domestic litigation.  Upon  the conclusion of domestic litigation and the 
consequent lifting of any applicable injunctio ns, the USDOC will send instructions to Customs 
ordering liquidation of the entries in accordance wi th the court's decision and Customs will collect 
duties accordingly.444  The United States emphasizes that the "determination of final liability is 
separate and distinct from liquidation".445  It has also described liquidation—that is, the process of 
collection of anti-dumping duties—as a "ministerial act" because Customs "collects the antidumping duties based on [the USDOC's] determination" a nd Customs "does not have the authority to 
recalculate or otherwise revise these duties".
446 
172. According to the United States, the relevant provisions for purposes of deciding the question 
before us are Article 13 and footnote 20 to Article 9.3.1 of the Anti-Dumping Agreement .447  Japan, by 
contrast, refers to several provisions of the DSU that  it considers indicate the actions that a respondent 
Member must take to implement the DSB's recommendations and rulings.448  We note, in this regard, 
that neither provision of the Anti-Dumping Agreement  to which the United States refers is listed in 
Appendix 2 of the DSU as a special or additional ru le and procedure that would prevail in case of 
conflict, in accordance with Article 1.2 of the DSU.449  Accordingly, the rule in Article 1.2 is 
inapplicable in this case.  Therefore, both the Anti-Dumping Agreement  and the DSU should be taken 
into account in this dispute and should be interpre ted harmoniously.  We begin our analysis with the 
                                                      
442United States' response to Panel Question 17, para. 32. 
443United States' appellant's submission, para. 34. 
444United States' response to Panel Question 17, para. 32 ;  United States' response to questioning at the 
oral hearing. 
445United States' response to Panel Question 17, para. 32. 
446United States' response to Panel Question 14, para. 27. (footnote omitted) 
447United States' appellant's submission, paras. 95-100. 
448Japan's appellee's submission, paras. 175-186. 
449Japan argues that "there are no 'special or additional rules and procedures' in the Anti-Dumping 
Agreement  that justify excusing the United States from the requirement to 'bring [Reviews 1, 2, 3, 7 and 8] into 
conformity' with WTO law, under Article 19.1 of the DSU." (Japan's appellee's submission, para. 205 (original 
emphasis and square brackets)) WT/DS322/AB/RW 
Page 78  
 
  provisions of the Anti-Dumping Agreement  that the United States considers relevant to the issue raised 
on appeal, after which we will turn to the provisions of the DSU. 
173. Tribunals or procedures for the independent re view of certain administrative anti-dumping 
actions are required under Article 13 of the Anti-Dumping Agreement , which provides: 
Each Member whose national legislation contains provisions on 
anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia , of 
the prompt review of administ rative actions relating to final 
determinations and reviews of dete rminations within the meaning of 
Article 11.  Such tribunals or pro cedures shall be independent of the 
authorities responsible for the determination or review in question. 
174. The requirement in Article 13 of the Anti-Dumping Agreement to maintain tribunals or 
procedures for independent review of administ rative anti-dumping actions  applies to all WTO 
Members regardless of whether they operate a retr ospective or prospective anti-dumping system.  The 
participants agree that the independent review pr ocedures referred to in Article 13 apply to periodic 
reviews.
450  We share the view that the phrase "administr ative actions relating to final determinations" 
covers periodic reviews under retr ospective anti-dumping systems. 
175. We note that the obligation in Article 13 is ge neral in nature, requiring the maintenance of 
tribunals or procedures for the prompt review of  administrative anti-dumping actions.  Article 13 does 
not speak directly to the issue raised in the presen t appeal, as it contains no mention that judicial 
review procedures may excuse non-compliance with the DSB's recommendations and rulings by the 
end of the reasonable period of time.  The United States argues on appeal that "[a] Member that 
maintains a system that provides for judicial re view and judicial remedies for the review of 
administrative actions should not be subject to findings  that it failed to comply based on a delay that is 
a consequence of judicial review."451  As we understand it, the consistency with Article 13 of the 
United States' judicial review procedures of anti- dumping actions is not being challenged in these 
Article 21.5 proceedings.  What is being challenged is  the United States' failure to rectify, by the end 
of the reasonable period of time, the importer-speci fic assessment rates determined in the periodic 
reviews with the use of zeroing.  The fact that WTO Members are required to  maintain independent 
review procedures for administrative anti-dumpi ng actions does not exonerate them from the 
requirement to comply with the DSB's recommendati ons and rulings within the reasonable period of 
                                                      
450United States' response to questioning at the oral hearing;  Japan's response to questioning at the oral 
hearing.   
451United States' appellant's submission, para. 95.  WT/DS322/AB/RW 
 Page 79 
 
 
  time.452  We see no conflict between the obligation to maintain independent review procedures under 
Article 13 and the obligation to comply with the DSB's recommendations and rulings.  Accordingly, 
we do not consider that Article 13 provides s upport for the proposition that a WTO Member is 
excused from complying with the DSB's recommendations and rulings by the end of the reasonable period of time, where a periodic review has been challenged in that Member 's domestic courts and 
this has resulted in the collection of duties being delayed. 
176. The United States also relies upon footnote 20 to Article 9.3.1 of the Anti-Dumping 
Agreement , which provides that "[i]t is understood that th e observance of the time-limits mentioned in 
this subparagraph and in  subparagraph 3.2 may not be possibl e where the product in question is 
subject to judicial review proceedings."  The Un ited States considers that the text of footnote 20 
implies that "delay in liquidation until after the RPT as a result of judicial review should not serve as a 
basis to find that a Member has failed to comply  with the recommendations and rulings of the DSB, 
since but for judicial proceedings, the Member  would have liquidated prior to the RPT."
453 
177. Footnote 20 to Article 9.3.1 of the Anti-Dumping Agreement  expressly recognizes that 
domestic judicial proceedings may result in delays and that this may excuse exceeding the time-limits 
imposed under Articles 9.3.1 and 9.3.2 for the c onduct of periodic reviews and for refund procedures 
under retrospective and prospective systems.  Foot note 20 does not deal with compliance with the 
DSB's recommendations and rulings.  The fact that  the text of footnote 20 expressly limits its 
application to Articles 9.3.1 and 9.3.2 weighs ag ainst invoking footnote 20 to excuse delays in 
complying with obligations set out in other provis ions of the covered agreements, particularly the 
obligation to comply "promptly" with the DSB's re commendations and rulings, which is described as 
"essential" in Article 21.1 of the DSU.   
178. Turning to the DSU, we recall that Article 21.3 of the DSU requires immediate compliance 
with the DSB's recommendations and rulings, unl ess this is impracticable, in which case an 
implementing Member is allowed a "reasonable peri od of time" to do so.  The "reasonable period of 
time" is determined under one of the three optio ns provided in Article 21.3.  The purpose of 
                                                      
452There was a debate between the participants at the oral hearing about whether the United States' 
executive branch can take acti ons in connection with a periodic review that is the object of domestic litigation 
during the pendency of those domestic  judicial proceedings.  The United St ates indicated that the USDOC loses 
jurisdiction over a periodic review while it is under review by the United States courts.  Japan asserted that the 
USDOC can request that the court return (or "remand") the case back to it.  We note that whatever restrictions 
there are on the United States' executiv e branch taking actions during the pendency of domestic judicial 
proceedings would derive solely from United States law and not from the text of Article 13 of the Anti-Dumping 
Agreement .  Therefore, they would not provide a basis for delaying compliance with the DSB's 
recommendations and rulings beyond the end of the reasonable period of time. 
453United States' appellant's submission, para. 96. WT/DS322/AB/RW 
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  Article 21.5 proceedings is to assess whether an implementing Member has fully complied with the 
DSB's recommendations and rulings, and not to modi fy the reasonable period of time.  Moreover, the 
very text of Article 21.3 indicates that the "reasona ble period of time" is an exception to immediate 
compliance, thus implying that further delays would not be justified, whatever the circumstances.  In 
US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body stated th at the "implementing Member 
would be able to extend the reasonable period of time and delay complia nce depending on when it 
chooses to undertake final duty assessment" if the appr oach based on the date of entry, as advocated 
by the United States, was followed.
454  The Appellate Body also cauti oned there that "[s]uch a result 
would deprive of meaning the notion of 'reasonable period of time' in which a Member shall comply, 
as provided for in Article 21.3 of the DSU, and be contrary to the implementation mechanism of the 
DSU."455  The same rationale is applicable in respect  of delays in implementation due to domestic 
judicial proceedings.  Such delays in implemen tation cannot exonerate a Member from its compliance 
obligations and are not consistent with the overall objectives of "prompt" and "immediate" 
compliance in Articles 21.1 and 21.3. 
179. Relying on the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) , the United 
States argues further that, where liquidation is dela yed because of domestic judicial proceedings, it 
can no longer be said to "derive mechanically" from the periodic reviews challenged by Japan.456  
According to the United States, "judicial review severs any so-called 'mechanical' link between the 
assessment of liability in the original review determination and the li quidation instructions".457   
180. We recall that, in EC – Zeroing (EC)(Article 21.5 – EC) , the Appellate Body found that 
"measures that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically  
from the assessment of duties would establish a fa ilure to comply with the recommendations and 
rulings of the DSB to the extent that they are b ased on zeroing and that they are applied after the end 
of the reasonable period of time."458  Later in the same report, the Appellate Body stated that it was 
not expressing any opinion on the question, which it wa s not required to decide, "of whether actions 
to liquidate duties that are based on administrative re view determinations issued before the end of the 
reasonable period of time, and that have been dela yed as a result of judicial proceedings, fall within 
the scope of the implementation obligations" of the respondent Member.459 
                                                      
454Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 309. 
455Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 309. 
456United States' appellant's submission, paras. 94 and 97. 
457United States' appellant's submission, para. 97. 
458Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 311. (original emphasis) 
459Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 314.  WT/DS322/AB/RW 
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  181. As the European Communities observes460, the United States is reasoning a contrario  on the 
basis of the Appellate Body's ruling in US – Zeroing (EC) (Article 21.5 – EC) .  The premise 
underlying the United States' argument is that, if the liquidation actions do not mechanically derive 
from the challenged reviews, then such actions w ould be outside the scope of the United States' 
compliance obligations.  We do not read the Appellate Body's statements in US – Zeroing 
(EC)(Article 21.5 – EC)  as suggesting that, if the liquidation actions do not mechanically derive from 
the challenged reviews, then such actions would be  outside the scope of the implementing Member's 
compliance obligations.  Nor do we consider that such an a contrario  approach is warranted.  The 
emphasis in that case was on the fact that actions that somehow automatically derived from previous periodic reviews affected by zeroing would also be in breach if taken after the end of the reasonable 
period of time.  Liquidation that occurs after the reasonable period of time due to court proceedings, 
and does not derive mechanically from the peri odic review, but is somehow autonomous—as the 
United States claims is the case in the current proceedings—would also be impermissible if the use of zeroing had not been rectified.  Hence, we do not see why such actions—b e they "mechanically 
derived" or not from the challenged periodic revi ews—would be exempted from the United States' 
obligation to comply with the DSB's recommendations  and rulings by the end of the reasonable period 
of time. 
182. To support its argument that liquidation actions that are delayed as a result of judicial 
proceedings do not derive mechanically from th e challenged periodic reviews, the United States 
points out that "the timing of liquidation is  controlled by the independent judiciary and not the 
administering authority."
461  We note that a WTO Member "bears responsibility for acts of all its 
departments of government, including its judiciary."462  This is supported by Article 18.4 of the Anti-
Dumping Agreement , Article XVI:4 of the WTO Agreement , and Article 27 of the Vienna 
Convention .463  The judiciary is a state organ and even if an act or omission derives from a WTO 
Member's judiciary, it is nevertheless still attributab le to that WTO Member.  Thus, the United States 
cannot seek to avoid the obligation to comply with  the DSB's recommendations and rulings within the 
reasonable period of time, by relying on the ti ming of liquidation being "controlled by the 
                                                      
460European Communities' third participant's submission, para. 40. 
461United States' appellant's submission, para. 97. (original emphasis) 
462Appellate Body Report, US – Shrimp , para. 173.   
463Article 18.4 of the Anti-Dumping Agreement  requires each Member to "tak e all necessary steps, of a 
general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, 
the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as 
they may apply for the Member in question."  Article XVI:4 of the WTO Agreement  states that "[e]ach  Member 
shall ensure the conformity of its laws, regulations an d administrative procedures with its obligations as 
provided in the annexed Agreements."  Article 27 of the Vienna Convention  provides that a "party may not 
invoke the provisions of its internal law as ju stification for its failure to perform a treaty." WT/DS322/AB/RW 
Page 82  
 
  independent judiciary".  In any event, the periodic reviews, and the collection of duties after the 
reasonable period of time by the USDOC and Customs, are not judicial acts;  nor has Japan attributed 
the failure to comply to the United States courts.  We also note that the actions that follow the 
completion of judicial proceedings in the present case do not appear to be in any way different from the collection of duties in the absence of such  proceedings, such as w as the case in the scenarios 
examined in US – Zeroing (EC) (Article 21.5 – EC) . 
183. The United States argues further that liquidation is a "ministerial" act because Customs 
"collects the antidumping duties based on [USDOC's] determination" and Customs "does not have the 
authority to recalculate or otherwise revise these duties".
464  We note that the Panel record indicates 
that what occurred after the expiry of the reasonable period of time was not just the action of liquidation, that is, collection of anti-dumping duti es by Customs, but also the issuance of liquidation 
instructions by the USDOC to Customs to assess those anti-dumping duties.
465  In any event, defining 
the act of collection of anti-dumping duties as "minis terial" does not shield it from being subject to the 
disciplines of Article VI of the GATT 1994 and the Anti-Dumping Agreement , in particular, Article 9, 
which is entitled "Imposition and Collection of Anti- Dumping Duties".  Irrespective of whether an act 
is defined as "ministerial" or othe rwise under United States law, and irrespective of any discretion that 
the authority issuing such instructions or taking such action may have, the United States, as a Member 
of the WTO, is responsible for those acts in accord ance with the covered agreements and international 
law.466 
184. The United States also refers to the initiation of  domestic judicial proceedings by private 
parties and argues that "a finding that a Member  failed to comply because liquidation was suspended 
until after the RPT due to litigation would give priv ate litigants the ability to control compliance by 
Members operating retrospective antidumping systems."467  We note, however, that, regardless of 
whether court proceedings are initiated by private parti es, it is the court that decides whether or not to 
grant an injunction468 and private parties do not control the timing or content of the court's decisions.  
                                                      
464United States' response to Panel Question 14, para. 27. (footnote omitted)  The term "ministerial" is 
defined by Merriam Webster's Dictionary of Law as "relating to or being an act done after ascertaining the existence of a specified state of fact s in obedience to legal and esp. statutory mandate without exercise of 
personal judgment or discretion". ( Merriam Webster's Dictionary of Law , L.P.Wood (ed.) (Merriam-Webster 
Inc., 1996), p. 313) 
465See Panel Exhibits JPN-40.A, JPN-77, JPN-78, JPN-79, and JPN-80. 
466See Article 4 of the ILC Draft Ar ticles.  Japan has relied on the ILC Draft Articles in its appellee's 
submission, paras. 261-276. 
467United States' appellant's submission, para. 98. 
468The United States seems to acknowledge this when it argues that "the timing of liquidation is 
controlled by the independent judiciary and not the administering authority." (United States' appellant's 
submission, para. 97 (original emphasis))   WT/DS322/AB/RW 
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  Thus, we are not persuaded that the initiation by pr ivate parties of domestic judicial proceedings is 
relevant for determining the scope of the Un ited States' compliance obligations in this case.469 
185. In addition, the United States submits that the precise action to be taken once domestic 
litigation is completed will depend on the outcome of judicial review.  The United States does not 
allege that its courts would order the USDOC to rectify the use of zeroing.470  Rather, the United 
States asserted at the oral hearing that, as a result of  the decision of the domestic court, there could be 
circumstances where the USDOC would have to re calculate the importer-specific assessment rates 
without using zeroing, such as where all relevant e xport prices are below normal value.  This example 
is not to the point because zeroing does not manifest itself in such a case in which all export prices are 
below normal value.  Moreover, we note that dom estic litigation has been completed in relation to 
Reviews 1, 2, 3, 7, and 8 and there is no indica tion on the Panel record that the use of zeroing was 
corrected in any of these Reviews.471  In fact, the United States expressly stated before the Panel that 
"[a]ny results of the zeroing procedures employed in Review Nos. 1, 2, and 3 were not altered through 
the court-ordered reexaminations".472 
186. An additional concern would arise if the Un ited States' position concerning delays resulting 
from judicial review was accepted, because the requ irement to provide inde pendent review is not 
limited to anti-dumping measures.  For example, Ar ticle X:3(b) of the GATT 1994 requires that there 
be independent review of administrative de terminations dealing with customs matters.473  Article 23 
                                                      
469Therefore, we are not persuaded by the United States' submission that determining an implementing 
Member's obligations other than by the date of entry would give private parties "perverse incentives to manufacture domestic litigation and prolong liquidation" beyond the reasonable period of time. (See United 
States' appellant's submission, para. 99) 
470See infra , footnote 493.   
471This issue is also discussed in relation to Reviews 4, 5, and 6 at infra , para. 194. 
472United States' comments on Japan's responses to Panel Questions, para. 20.  Japan pointed out to the 
Panel that, for Reviews 1, 2, and 3, "instead of r ecalculating the margins and [importer-specific assessment 
rates] without  zeroing, the USDOC has actually amended the final results of the periodic reviews on the basis of 
calculations that included zeroing  with effect subsequent to (1) the adoption of the DSB's recommendations 
on 23 January 2007 and/or (2) the end of the RPT on 24 December 2007." (Japan's response to Panel 
Question 19(a), para. 35 (original emphasis)) 
473Article X:3(b) of the GATT 1994 provides: 
Each Member shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia , 
of the prompt review and correction of administrative action relating to 
customs matters.  Such tribunals or procedures shall be independent of the 
agencies entrusted with administrative enforcement and their decisions shall 
be implemented by, and shall govern th e practice of, such agencies unless an 
appeal is lodged with a court or tribunal of superior jurisdiction within the 
time prescribed for appeals to be lodged by importers;  Provided  that the 
central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the 
decision is inconsistent with establishe d principles of law or the actual facts. WT/DS322/AB/RW 
Page 84  
 
  of the Agreement on Subsidies and Countervailing Measures  (the " SCM Agreement ") requires that 
there be tribunals or procedures for indepe ndent review of certain countervailing duty 
determinations.
474  Article VI:2(a) of the General Agreement on Trade in Services  (the "GATS") calls 
for the establishment of tribunals or procedures for the review of administrative decisions affecting 
trade in services.475  Thus, exempting measures subject to domestic judicial proceedings from the 
obligation to comply with the DSB's recommendations  and rulings by the end of the reasonable period 
of time could potentially have c onsiderable implications for the effectiveness of WTO dispute 
settlement in areas beyond anti-dumping. 
187. Therefore, the fact that collection of anti-dumping duties is delayed as a result of domestic 
judicial proceedings does not provide a valid justif ication for the failure to comply with the DSB's 
recommendations and rulings by the end of the reasonable period of time.   
4. Reviews 1, 2, 3, 7, and 8  
188. Reviews 1, 2, 3, 7, and 8 were challenged by Japan in the original proceedings.  The 
Appellate Body found that the United States acted in consistently with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994 by applying zeroing procedures in those 
Reviews.476  In these Article 21.5 proceedings, the Panel found that the importer-specific rates 
determined in Reviews 1, 2, 3, 7, and 8 "had not been withdrawn" by the end of the reasonable period 
of time, but rather "continued to have legal effect ... in the sense th at they continued to provide the 
authority for the collection of anti-dumping duties in  respect of the relevant (unliquidated) import 
                                                      
474Article 23 of the SCM Agreement  states: 
Judicial Review 
Each Member whose national legislation contains provisions on 
countervailing duty measures shall maintain judicial, arbitral or 
administrative tribunals or pr ocedures for the purpose, inter alia , of the 
prompt review of administrative actions relating to final determinations and 
reviews of  determinations within the meaning of Article 21.  Such tribunals 
or procedures shall be independent of the authorities responsible for the determination or review in question, and shall provide all interested parties 
who participated in the administrativ e proceeding and are directly and 
individually affected by the administrative actions with access to review. 
475Article VI:2(a) of the GATS reads: 
Each Member shall maintain or institute as soon as practicable judicial, 
arbitral or administrative tribunals or procedures which provide, at the 
request of an affected service supplier,  for the prompt review of, and where 
justified, appropriate remedies for, administrative decisions affecting trade 
in services.  Where such procedures are not independent of the agency 
entrusted with the administrative deci sion concerned, the  Member shall 
ensure that the procedures in fact provide for an objective and impartial 
review. 
476Appellate Body Report, US – Zeroing (Japan) , para. 190(e).  WT/DS322/AB/RW 
 Page 85 
 
 
  entries".477  The Panel further found "the absence of any modification of those importer-specific 
assessment rates" and therefore concluded that "the status of those measures has not changed since the 
original proceeding, in which they were found to be WTO-inconsistent".478   
189. The United States does not appeal any of these findings.  Instead, the United States argues, 
first, that it had no compliance obligations in respect of Reviews 1, 2, 3, 7, and 8, because they cover 
merchandise imported into the United States before th e expiration of the reasonable period of time;  
and, secondly, that any liquidations pursuant to Revi ews 1, 2, 3, 7, and 8 would have occurred before 
the expiration of the reasonable period of time but for the fact that they were challenged in domestic judicial proceedings.  We have found above that both arguments of the United States are premised on 
an incorrect interpretation of the Anti-Dumping Agreement  and the DSU.
479  Consequently, we uphold  
the Panel's finding that "the United States has failed  to comply with the recommendations and rulings 
of the DSB regarding the importer-s pecific assessment rates determined  in Reviews 1, 2, 3, 7 and 8 
that apply to entries covered by those Reviews that were, or will be, liquidated after the expiry of the 
RPT".480  For the same reasons, we also uphold  the Panel's finding that "the United States remains in 
violation of Articles 2.4 and 9.3 of the [ Anti-Dumping ] Agreement , and Article VI:2 of the 
GATT 1994, in respect of those impor ter-specific assessment rates." 481 
5. Reviews 4, 5, and 6  
190. As regards Reviews 4, 5, and 6, the United Stat es additionally notes that liquidation of duties 
remained suspended as a result of pending judicial proceedings.482  Referring to the Appellate Body 
Report in US – Zeroing (EC) (Article 21.5 – EC) , the United States submits that Reviews 4, 5, and 6 
could not have provided a basis for a finding of inconsistency with Artic les 2.4 and 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994 at th e time of Japan's panel request.  The 
United States argues that, because "assessment of duties calculated in these reviews was enjoined 
prior to the conclusion of the RPT and continues to be enjoined", these Reviews "have had no post-
RPT effects of the kind that give rise to a finding of inconsistency".483 
                                                      
477Panel Report, para. 7.149. (footnote omitted)  The Panel understood "the United States to accept that 
importer-specific assessment rates form part of the me asures at issue in the original proceeding." ( Ibid., 
footnote 157 to para. 7.146)  The United States has not challenged this finding on appeal. 
478Panel Report, para. 7.149. (footnote omitted) 
479See supra , paras. 169 and 187. 
480Panel Report, paras. 7.154 and 8.1(a). 
481Panel Report, paras. 7.154 and 8.1(a)(i). 
482United States' appellant's submission, para. 101.   
483United States' appellant's submission, para. 105. WT/DS322/AB/RW 
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  191. Japan disagrees with the United States' assertion th at Reviews 4, 5, and 6 have had no effects 
after the end of the reasonable period of time.  It observes that the Panel made the following explicit 
finding on this point:  
[I]mporter-specific assessment rates determined in Reviews 4, 5 
and 6 continued to have legal eff ect long after the adoption of the 
DSB's recommendations and rulings.
484 
Japan also refers to the Panel's finding that Japan  demonstrated that some of the import entries 
covered by the importer-specific assessment rates de termined in Reviews 4, 5, and 6 had not been 
liquidated when the Article 21. 5 proceedings were initiated.485  Thus, Japan asserts that "[t]he 
assessment rates from these Reviews continue to have effects after the end of the RPT and will serve 
as the legal basis for duty collection measures to be taken, after that time, with respect to entries 
covered by these Reviews."486 
192. We recall that the United States has not appealed  the Panel's finding that Reviews 4, 5, and 6 
are "measures taken to comply" within the meaning of Article 21.5 of the DSU.487  Nor does the 
United States appeal the Panel's finding that "the  exporter-specific margins of dumping and importer-
specific assessment rates in Reviews 4, 5, [and] 6 … were affected (in the sense of being inflated) by 
zeroing".488   
193. Moreover, the United States does not allege on a ppeal that the exporter-specific margins of 
dumping and importer-specific assessmen t rates determined in Reviews 4, 5, and 6 with the use of 
zeroing have been rectified and brought into compliance with the DSB's recommendations and 
rulings.  In other words, the United States is not claiming that it has brought itself into compliance as 
regards the use of zeroing in Reviews 4, 5, and 6.  We stated above that the DSU requires WTO Members to comply fully with the DSB's recommend ations and rulings by th e end of the reasonable 
period of time.  In this case, compliance with the DSB's recommendations and rulings required the 
cessation of zeroing in the application of anti-dumpi ng duties by the end of the reasonable period of 
time.  This has not occurred given that, as the Pa nel found, "the exporter-specific margins of dumping 
and importer-specific assessment rates in Reviews 4, 5, [and] 6 … were affected (in the sense of being 
                                                     
 
484Panel Report, para. 7.79. (footnote omitted)  This finding was made in the context of the Panel's 
analysis of whether Reviews 4, 5, and 6 are "measures taken to comply" within the meaning of Article 21.5 of the DSU. 
485Panel Report, footnote 101 to para. 7.74, and footnote 102 to para. 7.75. 
486Japan's appellee's submission, para. 484. 
487Panel Report, para. 7.82. 
488Panel Report, para. 7.166.  WT/DS322/AB/RW 
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  inflated) by zeroing"489;  "Reviews 4, 5 and 6 continued to have  legal effect long after the adoption of 
the DSB's recommendations and rulings"490;  and some of the import entries covered by Reviews 4, 5, 
and 6 had not been liquidated when the reasonable period of time expired.491  Furthermore, we note 
that pursuant to Article 3.8 of the DSU, "where there is an infringement of the obligations assumed 
under a covered agreement, the action is considered prima facie to constitute a case of nullification or 
impairment."492  This means that there is a presumption th at a breach of the WTO agreements has an 
adverse impact on other Members.  Thus, we disagree with the United States that there is no basis to 
find that the application of zeroing in Reviews 4, 5, and 6 is inconsistent with the United States' 
obligations under the Anti-Dumping Agreement  and the GATT 1994.  Even if liquidation of the 
entries covered by Reviews 4, 5, and 6 had not taken place after the expiration of the reasonable 
period of time, the exporter-specific margins of  dumping and importer-specific assessment rates 
determined in these reviews remain in force and these rates continue to be inflated due to the use of 
zeroing.  Accepting the United States' argument would mean that, once domestic litigation is completed, anti-dumping duties improperly inflated by  the use of zeroing could be collected long after 
the end of the reasonable period of time.   
194. At the oral hearing, the United States submitted that, as a result of the decision of a United 
States domestic court, there could be circumstanc es where the USDOC might have to recalculate the 
rates determined in Reviews 4, 5, and 6 without using zeroing.  The United States, however, did not 
argue that its domestic courts would find the use of  zeroing to be illegal, under United States law, and 
therefore order the USDOC to rectify it.
493  Instead, the United States argued that there could be 
circumstances in which the court's decision relating to  a different issue could make the use of zeroing 
unnecessary because, for example, all the export sales we re below normal value.  That this factual 
scenario will arise is speculative.  Moreover, as explained above494, zeroing does not manifest itself in 
                                                      
489Panel Report, para. 7.166. 
490Panel Report, para. 7.79. (footnote omitted)  This finding was made in the context of the Panel's 
analysis of whether Reviews 4, 5, and 6 are "measures taken to comply" within the meaning of Article 21.5 of 
the DSU. 
491Panel Report, footnote 101 to para. 7.74, and footnote 102 to para. 7.75. 
492See also Appellate Body Report, EC – Bananas III , paras. 252 and 253 (quoting GATT Panel 
Report, US – Superfund , paras. 5.1.9 and 5.1.10);  and Appellate Body Report, EC – Bananas III (Article 21.5 – 
US), paras. 469 and 470). 
493The USDOC's Issues and Decision Memoranda have  emphasized that the United States Court of 
Appeals for the Federal Circuit has upheld the use of ze roing.  See, for example, the Issues and Decision 
Memorandum for Review 9, at pp. 8-10 ("in response to US – Zeroing (Japan) , the CAFC has repeatedly 
affirmed the permissibility of denying offsets in administrative reviews") (citing Corus Staal BV v. United 
States , 502 F.3d 1370, at 1374 (CAFC 2007);  and NSK Ltd. v. United States , 510 F.3rd 1375, at 1379-1380 
(CAFC 2007);  also citing Timken Co v. United States , 354 F.3d 1334 (CAFC 2004);  and Corus Staal BV v. 
United States , 395 F.3d 1343 (CAFC 2005), cert. denied, 126 S. Ct. 1023, 163 L. ed. 2d 853 (2006)) (Panel 
Exhibit JPN-67.B). 
494See supra , para. 185. WT/DS322/AB/RW 
Page 88  
 
  such a case in which all export prices are below norma l value.  In any event, the obligation of the 
United States was to comply with the DSB's recommendations and rulings by the end of the 
reasonable period of time at the latest, and not by  the end of any domestic judicial proceedings. 
195. Accordingly, we uphold
 the Panel's finding that "the application of zeroing in the context of 
Reviews 4, 5 [and] 6 ... is inconsistent  with Articles 2.4 and 9.3 of the [ Anti-Dumping ] Agreement , 
and Article VI:2 of the GATT 1994."495 
6. Review 9  
196. We recall that we have upheld the Panel's findi ng that Review 9 was properly within its terms 
of reference.496  The final results of Review 9 were pub lished after the expiration of the reasonable 
period of time.497  The Panel found that the exporter-sp ecific margins of dumping and importer-
specific assessment rates in Review 9 "were affect ed (in the sense of being inflated) by zeroing".498   
197. The United States does not appeal the Panel's finding that zeroing was used in Review 9.  
Besides challenging the Panel's conclusion concerni ng the inclusion of Review 9 in the terms of 
reference, the only argument that the United States puts forward in relation to Review 9 is that it 
covered imports that entered the United States prio r to the expiration of the reasonable period of 
time.499  We rejected this argument above.500  Thus, we uphold  the Panel's finding that the application 
of zeroing in the context of Review 9 is in consistent with Articles 2.4 and 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994.501 
VI. Article II of the GATT 1994 
A. Introduction 
198. Finally, we turn to the United States' appeal of the Panel's findings that certain liquidation 
actions taken by the United States are inconsistent w ith Articles II:1(a) and II:1(b) of the GATT 1994.   
199. The measures at issue consist of certain liqui dation instructions issued by the USDOC and 
certain liquidation notices issued by Customs.  The liquidation instructions are set forth in Panel 
                                                      
495Panel Report, paras. 7.168 and 8.1(b). 
496See supra , Section IV. 
497See supra , Section IV. 
498Panel Report, para. 7.166. 
499Review 9 covered imports for the period 1 May 2006 to 30 April 2007.  The reasonable period of 
time in this case expired on 24 December 2007. 
500See supra , para. 169. 
501Panel Report, paras. 7.168 and 8.1(b).  WT/DS322/AB/RW 
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  Exhibits JPN-40.A, and JPN-77 to JPN-80, and the liquidation notices are those in Panel Exhibits 
JPN-81 to JPN-87.  As summarized in the previous Section502, the United States has explained that 
liquidation instructions are issued by the USDOC af ter publication of the final results of a periodic 
review and instruct Customs to collect anti-dumping duties from importers at the rates determined in 
that periodic review.  To effect liquidation, Customs issues a liquidation notice to importers setting out the amount of definitive duties to be paid on each  entry.  Depending on whether the amount to be 
collected exceeds the amount of the cash deposit that was paid at the time of importation, a request for 
additional payment or a refund cheque  will also be sent to importers.  
200. The liquidation actions challenged by Japan pursu ant to Article II of the GATT 1994 relate to 
Reviews 1, 2, 7, and 8.  These four Reviews (al ong with seven others) were found, in the original 
proceedings, to be inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994.
503  Japan did not make claims pursuant to Article II of the 
GATT 1994 in the original proceedings. 
B. Article 21.5 Proceedings 
201. Before the Panel, Japan argued that certain li quidation actions relating to Reviews 1, 2, 7, 
and 8, taken by the United States after the expiration of the reasonable period of time, are inconsistent 
with Articles II:1(a) and II:1(b) of the GATT 1994, which require a Member to refrain from imposing 
duties or charges in excess of those set forth in  its Schedule of Concessions.  Japan explained that 
Article II:2(b) of the GATT 1994 permits a Member to impose anti-dumping duties in excess of these 
bound rates only if such duties are "applied consiste ntly with the provisions of Article VI" of the 
GATT 1994, as well as the Anti-Dumping Agreement .504  Japan asserted that the liquidation actions 
relating to Reviews 1, 2, 7, and 8 are not justif ied under Article II:2(b) b ecause these Reviews were 
found to be in violation of Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the 
GATT 1994.505  Therefore, these liquidation actions are inc onsistent with Articles II:1(a) and II:1(b) 
of the GATT 1994. 
202. The United States requested that the Article 21. 5 Panel exercise judicial economy, arguing 
that Japan's claims under Article II of the GATT 1994 we re "entirely derivative" of Japan's claims that 
                                                      
502See supra , para. 171. 
503Appellate Body Report,  US – Zeroing (Japan) , para. 190(e). 
504Panel Report, para. 7.195. 
505Panel Report, para. 7.195. WT/DS322/AB/RW 
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  the United States has acted inconsistently with the Anti-Dumping Agreement  and the GATT 1994.
506  
The United States also asserted that Japan's claims  were unfounded.  According to the United States, 
"the liability for anti-dumping duties, that Japan cl aims resulted in collection of duties above the 
bound rate, was incurred prior to the expiry of th e RPT, when the subject merchandise entered the 
United States and a cash deposit was paid."507  Moreover, the United States explained that "it was no 
longer collecting cash deposits pursuant to the admini strative reviews that were subject to the DSB's 
recommendations and rulings."508 
203. The Panel first examined whether Japan's clai ms pursuant to Article II of the GATT 1994 
were properly within the scope of the Article 21.5 proceedings.  It undertook this inquiry on its own 
initiative, noting that the United States had not raised a jurisdictional objection.509  The Panel 
considered the liquidation measures to be "sufficiently  closely connected to the original dispute" and, 
as a consequence, found them to be "measures taken to comply" within the meaning of Article 21.5 of 
the DSU.510  The Panel's reasoning was as follows: 
... the relevant liquidation measures are the means by which the 
United States collects the final anti-dumping duties assessed in the administrative reviews at issue in  the original proceeding.  Any 
WTO-inconsistency in those administrative reviews regarding the 
calculation of the margin of dumping established in the original 
dispute is necessarily carried over into the subsequent liquidation measures.
511 
204. Next, the Panel considered the United States' argument that Japan's Article II claims were 
"entirely derivative" of Japan's clai ms under Articles 2.4 and 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 and, therefore, that  it was unnecessary for the Panel to make findings 
in connection with those claims.  The Panel agreed  with the United States that Japan's claims were 
"derivative" of its claims under Articles 2.4 and 9.3 of the Anti-Dumping Agreement , because "[o]nly 
if the underlying anti-dumping measure is WTO-inc onsistent will the safe harbour provided for in 
                                                      
506Panel Report, paras. 7.196 and 7.201 (quoting Unite d States' first written submission to the Panel, 
footnote 116 to para. 70). 
507Panel Report, para. 7.197. 
508Panel Report, para. 7.197.   
509Panel Report, para. 7.199.  The Panel found support for this course of action in the Appellate Body's 
statement in US – 1916 Act  that "it is a widely accepted rule that an international tribunal is entitled to consider 
the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it." ( Ibid., footnote 211 to para. 7.199 (quoting Appellate Body Report, US – 1916 Act , 
footnote 30 to para. 54)) 
510Panel Report, para. 7.200.  The Panel's finding that the liquidation actions are "measures taken to 
comply" within the meaning of Article 21.5 of the DSU has not been appealed by the United States. 
511Panel Report, para. 7.200.  WT/DS322/AB/RW 
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  Article II:2(b) become unavailable."512  Nevertheless, the Panel decided that it was appropriate to rule 
on Japan's Article II claims, because they "raise an important point of contention between the parties 
regarding the right of the United States to continue  liquidating entries after the expiry of the RPT on 
the basis of liquidation measures issued pursuant to administrative reviews that have already been 
found to be WTO-inconsistent."513 
205. Turning to the text of Article II of the GATT 1994, the Panel observed that, under this 
provision, "the United States is generally preclude d from imposing on imports of ball bearings from 
Japan any customs duties or other charges in excess  of those provided for in the United States 
Schedule of Concessions."514  Pursuant to Article II:2(b), the United States may apply anti-dumping 
duties in excess of such bound rates provided that those duties are "applied consistently with the 
provisions of Article VI" of the GATT 1994, as implemented by the Anti-Dumping Agreement .515  
The Panel then noted that Japan had "submitte d evidence demonstrating that the cumulative 
liquidation amounts set forth in a series of [Customs] liquidation notices, issued pursuant to particular 
USDOC liquidation instructions, are well in excess of the bound rates for ball-bearing products set 
forth in the United States' Schedule of Concessions", and that this evidence was not challenged by the 
United States.516  The Panel proceeded to examine wh ether the "safe harbour" provided in 
Article II:2(b) applied to the liquidation actions ch allenged by Japan and found that it did not.  The 
Panel stated: 
In the present case, though, the safe harbour provided for in 
Article II:2(b) does not apply to the li quidation actions at issue in this 
proceeding, since those actions were taken pursuant to administrative reviews, and importer-specific assessment rates determined therein, that had been found to be WTO- inconsistent in the original 
proceeding.  In particular, the Appellate Body found that, in 
determining importer-specific assessment rates in inter alia  
Reviews 1, 2, 7 and 8, USDOC disregarded the results of comparisons for transactions where the export price exceeded the contemporaneous normal value, in vi olation of Article[s] 2.4 and 9.3 
of the [ Anti-Dumping ] Agreement , and Article VI:2 of the 
GATT 1994.  We recall that, in cases where administrative reviews are conducted, the liquidation notices and instructions are based entirely on the determinations made by USDOC in such reviews.  Since the underlying basis of the liquidation actions challenged by Japan was WTO-inconsistent, we conclude that anti-dumping duties 
collected pursuant to those liquida tion actions were not "applied 
                                                     
 
512Panel Report, para. 7.202. (footnote omitted)  
513Panel Report, para. 7.203. 
514Panel Report, para. 7.205. 
515Panel Report, para. 7.205. 
516Panel Report, para. 7.206. (footnotes omitted) WT/DS322/AB/RW 
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  consistently with the provisions of Article VI" of the GATT 1994, as 
implemented by the [ Anti-Dumping ] Agreement .
517 (footnotes 
omitted) 
Accordingly, the Panel found that the USDOC liquidation instructions and Customs liquidation 
notices challenged by Japan are inconsistent w ith Articles II:1(a) and II:1(b) of the GATT 1994.518 
C. Claims and Arguments on Appeal519 
206. The United States submits that the Panel erred in making a finding of violation of 
Articles II:1(a) and II:1(b) of the GATT 1994 with r espect to the USDOC liquidation instructions and 
Customs liquidation notices.  First, the United St ates argues that Japan's Article II claims are 
derivative of Japan's claims under Article 2.4 and 9.3 of the Anti-Dumping Agreement  and, as such, 
that "[i]t was entirely unnecessary [for the Panel] to make any Article II findings".520  The United 
States further contends that, if the Appellate B ody reverses the Panel's non-compliance findings in 
relation to Reviews 1, 2, 3, 7, and 8, then the Appellate Body must reverse the "derivative findings" 
that the United States violated Article II.521  Secondly, the United States asserts that the relevant date 
by which compliance is to be assessed is the date of entry of the merchandise and, because this occurred before the expiration of the reasonable period of time, there can be no finding of non-
conformity.
522  Thirdly, the United States submits that liquidation that occurred after the reasonable 
period of time cannot support a finding of non-comp liance, because its delay was due entirely to 
domestic judicial review.523 
207. Japan submits that the Panel properly found the United States to be in violation of 
Articles II:1(a) and II:1(b) of the GATT 1994.  Japan first argues that the USDOC liquidation 
instructions and Customs liquidation notices are "measu res taken to comply", and thus fall within the 
jurisdiction of the Panel.524  Next, Japan refutes the United Stat es' argument that Japan's claims under 
Article II are "entirely derivative" of its  claims under Articles 2.4 and 9.3 of the Anti-Dumping 
                                                      
517Panel Report, para. 7.207. 
518Panel Report, paras. 7.208 and 8.1(d). 
519Korea is the only third participant that has addresse d this aspect of the United States' appeal in its 
third participant's submission.  It asserts that the Panel' s analysis of Japan's Article II claims was "appropriate" 
and "necessary" to resolve the dispute, and submits that  the Appellate Body should reject the United States' 
argument that Japan's claim is "derivative" of its other claims. (Korea's third participant's submission, paras. 42 
and 44) 
520United States' appellant's submission, para. 107. (footnote omitted) 
521United States' appellant's submission, para. 107. 
 522United States' appellant's submission, para. 108.  
523United States' appellant's submission, para. 108. 
524Japan's appellee's submission, paras. 498-506.  Japan makes these submissions despite the United 
States not arguing that the liquidation actions are not measures taken to comply.  WT/DS322/AB/RW 
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  Agreement , stating that its Article II claims involve  "different measures, and different claims"525, that 
is, the consistency of the USDOC liquidation in structions and Customs liquidation notices with 
Article II.  Furthermore, Japan submits that the Un ited States has failed to cite  any provisions of the 
covered agreements that "shield[] measures that effe ct the collection or levy of import duties at WTO-
inconsistent rates from scrutiny under Article II of  the GATT 1994, if a related periodic review is 
challenged under separate WTO provisions."526 
D. Analysis 
208. Article II of the GATT 1994 provides, in relevant part: 
Article II 
Schedules of Concessions 
1. (a) Each Member shall accord to the commerce of the other 
Members treatment no less favourable than that provided for in the appropriate Part of the appr opriate Schedule annexed to this 
Agreement. 
 (b) The products described in Part I of the Schedule relating to any 
Member, which are the products of territories of other Members, 
shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of  those set forth and provided 
therein.  Such products shall also be exempt from all other duties 
or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date. 
... 
                                                     
 
525Japan's appellee's submission, paras. 517-521. 
526Japan's appellee's submission, para. 522.  Japan additionally asserts that the United States' final two 
arguments—that the relevant date for determining compliance is the date of entry of the merchandise, and that the duty collection measures would have occurred within the reasonable period of time but for domestic 
litigation—are jurisdictional in nature and are "explicitly directed towards [challenging] whether the Panel had a 
valid 'basis'— i.e., authority—to rule upon the 'consistency' of the duty collection measures." ( Ibid., para. 530 
(footnote omitted))  Japan argues that the Panel did have a valid legal basis to rule upon the consistency of the 
liquidation actions, because they ar e "measures taken to comply". ( Ibid., para. 534) WT/DS322/AB/RW 
Page 94  
 
  2. Nothing in this Article sha ll prevent any Member from imposing 
at any time on the importation of any product: 
... 
(b) any anti-dumping or counterva iling duty applied consistently 
with the provisions of Article VI;* 
209. The United States has not challenged the Panel's in terpretation of Article II and we need not 
engage in an extensive analysis of this provision.  We note that, in India – Additional Import Duties , 
the Appellate Body examined the relationship between  paragraphs 1(b) and 2 of Article II.  Although 
that appeal focused on paragraph 2(a) of Article II, the Appellate Body's remarks provide general 
guidance on the relationship betw een paragraphs 1(b) and 2: 
The chapeau of Article II:2, therefore, connects Articles II:1(b) 
and II:2(a) and indicates that the two provisions are inter-related.  Article II:2(a), subject to the conditions stated therein, exempts a charge from the coverage of Article  II:1(b).  The participants agree 
that, if a charge satisfies the conditions of Article II:2(a), it would not result in a violation of Article II:1(b).  Thus, we consider that, in the 
context of this case involving the application of duties that are 
claimed to correlate to certain internal taxes, Article II:1(b) and Article II:2(a) are closely related and must be interpreted together.
527 
(footnote omitted) 
The Panel understood Article II:2(b) as providing a "safe harbour" to Article II:1 to the extent that the 
anti-dumping duties are applied consistently with Article VI of the GATT 1994 and the Anti-Dumping 
Agreement .528  Thus, the Panel's approach is coherent with the Appellate  Body's interpretation of the 
relationship between Articles II: 1(b) and II:2(a) quoted above. 
210. On appeal, the United States does not contest that Japan's Article II claims were properly 
within the Panel's terms of reference, nor does it challenge the Panel's finding that the liquidation 
instructions and notices are "measures taken to comp ly" within the meaning of Article 21.5 of the 
DSU.529  The first ground of appeal raised by the Un ited States is that it was "unnecessary" for the 
Panel to have made a finding under Article II because  of the "derivative" nature of the claims.530  At 
the oral hearing, the United States clarified that it was not arguing that the Panel violated Article 11 of 
                                                      
527Appellate Body Report,  India – Additional Import Duties , para. 153. 
528Panel Report, para. 7.207. 
529Before the Panel, the United States did not disput e that Japan's Article II claims were within the 
Panel's terms of reference. (Panel Report, footnote 210 to para. 7.198)  Nor did the United States raise a 
jurisdictional objection before the Panel to the inclusion of the relevant liquidation instructions and notices in the Article 21.5 proceedings. ( Ibid., para. 7.199) 
530United States' appellant's submission, para. 107.  WT/DS322/AB/RW 
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  the DSU or otherwise erred by not exercising judicial economy.531  The United States explained that, 
instead, its argument is that the Appellate Body's  reversal of the Panel's findings relating to 
Reviews 1, 2, 7, and 8 would necessarily require a re versal of the Panel's findings under Article II of 
the GATT 1994.  Because we have upheld the Panel' s findings relating to Reviews 1, 2, 7, and 8532,  
the condition on which the United States' re quest is premised is not met.   
211. The United States additionally reiterates two of  the arguments that it makes in connection 
with the Panel's findings concerning Reviews 1 through  9, namely, that:  (i) the relevant date for 
determining compliance is the date of entry of the subject imports533;  and that (ii) liquidation would 
have occurred before the expiration of the reasona ble period of time but for the domestic judicial 
proceedings.534  We explained above, in Section V, why we do not consider that these arguments are 
based on a correct interpretation of the DSU and the Anti-Dumping Agreement .  Thus, these two 
arguments raised by the United States also do not  provide a basis to disturb the Panel's findings 
concerning Article II of the GATT 1994.   
212. For these reasons, we uphold  the Panel's finding that the United States is in violation of 
Articles II:1(a) and II:1(b) of the GATT 1994 with resp ect to certain liquidation actions taken after the 
expiry of the reasonable period of time, namely, w ith respect to the USDOC liquidation instructions 
set forth in Panel Exhibits JPN-40.A, and JPN-77 to JPN-80, and the Customs liquidation notices set forth in Panel Exhibits JPN-81 to JPN-87.
535 
VII. Findings and Conclusions 
213. For the reasons set out in this Report, the Appellate Body: 
(a) upholds  the Panel's findings, in paragraphs 7.107, 7.114, and 7.116 of the Panel 
Report, that Review 9 was properly with in the Panel's terms of reference;  
                                                      
531We note that the Appellate Body has previously stated that, "[a]lthough the doctrine of judicial 
economy allows  a panel to refrain from addressing claims beyond those necessary to resolve the dispute, it does 
not compel  a panel to exercise such restraint". (Appellate Body Report, Canada – Wheat Exports and Grain 
Imports , para. 133 (original emphasis; footnote omitted)) 
532See supra , Section V. 
533United States' appellant's submission, para. 108. 
534United States' appellant's submission, para. 108.  As noted above, the United States does not make 
this argument in relation to Review 9. (See supra , para. 197) 
535Panel Report, paras. 7.208 and 8.1(d). WT/DS322/AB/RW 
Page 96  
 
  (b) upholds
 the Panel's finding, in paragraphs 7.15 4 and 8.1(a) of the Panel Report, that 
the United States has failed to comply w ith the DSB's recommendations and rulings 
regarding the importer-specific assessment ra tes determined in Reviews 1, 2, 3, 7, 
and 8 that apply to entries covered by tho se Reviews that were, or will be, liquidated 
after the expiry of the reasonable period of time;  and also upholds  the Panel's 
finding, in paragraphs 7.154 and 8.1(a)(i) of the Panel Report, that the United States 
is in continued violation of its oblig ations under Articles 2.4 and 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994;   
(c) upholds  the Panel's finding, in paragraphs 7.168 and 8.1(b) of the Panel Report, that 
the United States has acted inconsistent ly with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 by applying zeroing in the 
context of Reviews 4, 5, 6, and 9;  and  
(d) upholds  the Panel's finding, in paragraphs 7.208 and 8.1(d) of the Panel Report, that 
the United States is in violation of Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain liquidation actions taken af ter the expiry of the reasonable period of 
time, namely, with respect to the USDOC li quidation instructions set forth in Panel 
Exhibits JPN-40.A, and JPN-77 to JPN-80,  and the Customs liquidation notices set 
forth in Panel Exhibits JPN-81 to JPN-87. 
214. To the extent that the United States has fail ed to comply with the recommendations and 
rulings of the DSB in the original dispute, the recommendations and rulings remain operative.  The 
Appellate Body recommends that the DSB request the United States to bring into conformity with its obligations under the Anti-Dumping Agreement and the GATT 1994 the measures found in this 
Report and in the Panel Report to be inconsistent with those Agreements.  WT/DS322/AB/RW 
 Page 97 
 
 
  Signed in the original in Geneva this 31st day of July 2009 by:  
 
   
_________________________ 
Giorgio Sacerdoti 
Presiding Member 
 
 
  
 _________________________ _________________________ 
 Lilia R. Bautista Yuejiao Zhang 
 Member Member 
 
   WT/DS322/AB/RW 
 Page 99 
 
 
  ANNEX I  
  
 
WORLD TRADE  
ORGANIZATION  WT/DS322/32 
22 May 2009 
 (09-2489) 
 Original:   English 
  
UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS  
 
Recourse to Article 21.5 of the DSU by Japan
 
 
Notification of an Appeal by the United States  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 20 May 2009 , from the Delegation of the United States, is 
being circulated to Members. 
_______________ 
 
 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the 
United States hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the report of the panel in United States – Measures Relating to Zeroing and Sunset 
Reviews;  Recourse to Article 21.5 of the DSU by Japan (WT/DS322/RW) ("Panel Report") and 
certain legal interpretations  developed by the panel. 
 1. The United States seeks review by the Appellate  Body of the panel's finding that Review 9 
was within the panel's terms of reference.  In par ticular, the United States seeks review of the panel's 
findings that Japan's panel request identified Review  9 as a specific measure at issue as required by 
DSU Article 6.2 and that Review 9 was within the panel's terms of reference even though Review 9 
was not in existence at the time of Japan's panel request.
1  These findings are in error and are based on 
erroneous findings on issues of law and related legal interpretations.  
2. The United States seeks review by the Appellate  Body of the panel's finding that the United 
States has failed to comply with the DSB's reco mmendations and rulings re garding importer-specific 
assessment rates determined in Reviews 1, 2, 3, 7, and 8 that apply to entries covered by those 
reviews that were, or will be, liquidated after th e expiry of the reasonable period of time ("RPT").2  
The United States also seeks review of the panel's re lated legal conclusion that the United States is in 
continued violation of its obligations  under Articles 2.4 and 9.3 of the Agreement on Implementation 
of Article VI of the General Agreement on Tariffs and Trade 1994 ("AD Agreement") and 
                                                      
1See, e.g. , Panel Report, paras. 7.100-7.116, 8.1(b). 
2See, e.g. , Panel Report, paras. 7.139-7.155, 8.1(a). WT/DS322/AB/RW 
Page 100  
 
  Article VI:2 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").
3  These 
conclusions are in error and are based on errone ous findings on issues of law and related legal 
interpretations.  
3. The United States seeks review by the Appellate Body of the panel's legal conclusion that the 
United States is in violation of Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain 
liquidation actions taken after the expiry of the RPT, namely with respect to liquidation instructions of 
the U.S. Department of Commerce set forth in E xhibits JPN-40A and JPN-77 to JPN-80 and the U.S. 
Customs and Border Protection liquidation notices set forth in Exhibits JPN-81 to JPN-87.4  T h i s  
conclusion is in error and is based on erroneous  findings on issues of law and related legal 
interpretations. 
4. The United States seeks review by the Appellate Body of the panel's legal conclusions with 
respect to Reviews 4, 5, and 6, as found at paras.  7.74 -7.83, 7.160-7.168, and 8.1(b) of the Panel 
Report.  These conclusions are in error and ar e based on erroneous findings on issues of law and 
related legal interpretations.5  
 
                                                      
3See, e.g. , Panel Report, paras. 7.154, 8.1(a)(i). 
4See, e.g. , Panel Report, paras. 7.204-7.208, 8.1(d). 
5Aside from the fact that Review 9 is not within th e terms of reference, the panel’s conclusions of law 
in paragraphs 7.160-7.168, and 8.1(b) with respect to Review 9 are also in error and are based on erroneous 
findings on issues of law and related legal interpretations.  WT/DS322/AB/RW 
 Page 101 
 
 
  ANNEX II  
  
O
RGANISATION MONDIALE   ORGANIZACIÓN MUNDIAL  
    DU COMMERCE   DEL COMERCIO  
 
WORLD TRADE ORGANIZATION  
 
APPELLATE BODY 
 
United States – Measures Relating to  Zeroing and Sunset Reviews 
 
Recourse to Article 21.5 of the DSU by Japan  
 
AB-2009-2 
 
Procedural Ruling  
 
1. On 29 May 2009, the Appellate Body Division h earing this appeal received separate requests 
from Japan and the United States to allow observation by the public of the oral hearing in the above appellate proceedings. The particip ants argued that nothing in the Understanding on Rules and 
Procedures Governing the Settlement of Disputes  (the "DSU") or the Working Procedures for 
Appellate Review  (the " Working Procedures ") precludes the Appellate Body from authorizing public 
observation of the oral hearing.  The participants al so relied on the rulings by the Appellate Body in 
four previous proceedings authorizing public observation of the oral hearing.
1  Both participants 
consider that public observation of the oral heari ngs in past cases has strengthened the credibility and 
legitimacy of the WTO dispute settlement system, and has allowed WTO Members to follow disputes 
more closely. 
2. Japan explained that its request was being ma de on the understanding that any information 
that it has designated as confidential in the docum ents it has filed in the compliance proceedings 
would be adequately protected in the course of the hearing.  The United States indicated that it did not anticipate referring
 to any information designated as confidential in its statements and responses to 
questions at the oral hearing.  Both partic ipants considered that their proposed modality2 for the 
observation of the hearing by the public, which accord s with the past practice of the Appellate Body, 
would allow for the protection of the informa tion that Japan has designated as confidential. 
3. On 2 June 2009, we invited the third participants to comment in writing on the requests of the 
participants.  We received comments on 8 June 200 9 from Korea, and on 9 June 2009 from China, the 
European Communities, Hong Kong, China, Mexico, Norway, the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu, and Thailand.  The European Communities, Norway, and the Separate Customs Territory of Taiwan, Pe nghu, Kinmen and Matsu expressed their s upport for the 
requests of the participants.  China, Hong Kong, China, Mexico, and Thailand expressed the view that 
the provisions of the DSU do not allow public hearings  at the appellate stage.  According to these 
third participants, the oral hearing forms part of th e proceedings of the Appellate Body and, therefore, 
                                                     
 
1These proceedings are:  US – Continued Suspension and Canada – Continued Suspension ; EC – 
Bananas III (Article 21.5 – Ecuador II)  and EC – Bananas III (Article 21.5 – US) ;  US – Continued Zeroing ;  and 
US – Zeroing (EC) (Article 21.5 – EC) . 
2Japan and the United States proposed simultaneous closed-circuit television broadcasting, with the 
transmission being turned off if the participants find it necessary to discuss issues that involve confidential 
information that Japan has submitted in th e course of these co mpliance proceedings. WT/DS322/AB/RW 
Page 102  
 
  is subject to the requirement of Article 17.10 of the DSU that "[t]he proc eedings of the Appellate 
Body shall be confidential."  They requested the A ppellate Body to treat their oral submissions as 
confidential should it decide to allow public observa tion of the oral hearing.  Although Korea did not 
object to the Appellate Body allowing public observa tion of the portions of the participants' and third 
participants' oral submissions that they wished to  make public, it noted its view that the DSU does not 
contain an explicit provision allowing public observa tion.  Korea requested the Appellate Body to 
treat its oral submissions as confidential. 
4. Similar requests to allow public observation of th e oral hearing have been made in previous 
appeals.
3  In acceding to these requests, the Appellate Body relied on the same reasoning, which was 
first developed in US – Continued Suspension  and Canada – Continued Suspension .  We note the 
following main aspects of the reasoning set out in the Procedural Rulings issued in those proceedings: 
(a) Article 17.10 must be read in context, par ticularly in relation to Article 18.2 of the 
DSU.  The second sentence of Article 18.2 expressly provides that "[n]othing in this Understanding shall preclude a party to a di spute from disclosing statements of its 
own positions to the public".  Thus, under Article 18.2, the parties may decide to 
forego confidentiality protection in respect of  their statements of position.  The third 
sentence of Article 18.2 states that "Membe rs shall treat as confidential information 
submitted by another Member to the panel or  the Appellate Body which that Member 
has designated as confidential."  This provi sion would be redundant if Article 17.10 
were interpreted to require absolute conf identiality in respect of all elements of 
appellate proceedings.  Accordingly, Artic le 18.2 of the DSU provides contextual 
support for the view that the confidentiality rule in Article 17.10 is not absolute, and 
has its limits.    
(b) The confidentiality requirement in Article 17.10 operates in a relational manner.  
There are different sets of relationships that are implicated in appellate proceedings, including: (i) a relationship between the participants and the Appellate Body;  
and (ii) a relationship between the third pa rticipants and the Appellate Body.  The 
requirement that the proceedings of the Appellate Body are confidential affords 
protection to these separate relationships and is intended to safeguard the interests of 
the participants and third participants a nd the adjudicative function of the Appellate 
Body, so as to foster the system of dis pute settlement under conditions of fairness, 
impartiality, independence and integrity.  In this case, the participants have requested 
authorization to forego confidentiality pr otection for their communications with the 
Appellate Body at the oral hearing.  The requests of the participants do not extend to any communications, nor touch upon the relati onship, between the third participants 
and the Appellate Body.  The right to confid entiality of third participants vis-à-vis the 
Appellate Body is not implicated by these requests.   
(c)  The DSU does not specifically provide for an  oral hearing at the appellate stage.  The 
oral hearing was instituted by the Appellate Body in its  Working Procedures.   
Pursuant to Rule 27 of the Working Procedures , the Appellate Body has the power to 
exercise control over the conduct of the oral hearing, including authorizing the lifting of confidentiality at the request of the pa rticipants as long as this does not adversely 
affect the rights and interests of the third pa rticipants or the integrity of the appellate 
process.  Even though Article 17.10 also applies to the relationship between third 
participants and the Appellate Body, the third participants cannot invoke 
Article 17.10 as it applies to their relations hip with the Appellate Body, so as to bar 
                                                     
 
3See supra , footnote 1.  WT/DS322/AB/RW 
 Page 103 
 
 
  the lifting of confidentiality protection in the relationship between the participants 
and the Appellate Body.  Likewise, author izing the participants' requests to forego 
confidentiality, does not affect the rights of third participants to preserve the 
confidentiality of their communica tions with the Appellate Body. 
(d)  Although the powers of the Appellate B ody are themselves circumscribed in that 
certain aspects of confidentiality are incapa ble of derogation—even by the Appellate 
Body—where derogation may undermine the ex ercise and integrity of the Appellate 
Body's adjudicative function4 such concerns do not arise in a situation where, 
following requests of the participants, the Appellate Body authorizes the lifting of the 
confidentiality of the participants' st atements at the oral hearing.  
(e)  The Appellate Body has fostered the ac tive participation of third parties in the 
appellate process in drawing up the Working Procedures and in appeal practice.  
However, the rights of third participants  are distinct from those of the main 
participants to a dispute.   
5. We note that public observation in these previous cases operated smoothly and that the rights 
of third participants who did not wish to have thei r oral statements made subject to public observation 
were fully protected. 
6. The requests for public observation of the oral hearing in this dispute have been made by the 
two participants, Japan and the United States.  As explained above, the Appellate Body has the power 
to authorize requests by the participants to lift c onfidentiality, provided that this does not affect the 
confidentiality in the relationship between the third pa rticipants and the Appellate Body, or impair the 
integrity of the appellate process.  
7. Japan stated that its request for an open heari ng does not and should not be deemed to forego 
confidentiality protection with respect to inform ation it has designated as confidential during the 
compliance proceedings in this dispute.  Japan not ed, in this respect, that the third sentence of 
Article 18.2 of the DSU explicitly provides that "Members shall treat as confidential information 
submitted by another Member to the panel or the Appellate Body which that Member has designated 
as confidential."  Japan therefore proposed that the Division hold an open hearing by means of simultaneous closed-circuit television broadcast, wi th the transmission being turned off should the 
Division or either of the participants find it n ecessary to address issues that involve confidential 
information that Japan has submitted in the c ourse of these compliance proceedings.  The United 
States also considered that this modality would allo w for the concerns raised by Japan to be addressed 
adequately.  We agree that this is an adequate way to protect confidential information in the context of 
a hearing that is open to public observation.  
8. For these reasons, the Appellate Body Division hearing this appeal authorizes the public 
observation of the oral hearing in these proceedi ngs on the terms set out below.  Accordingly, 
pursuant to Rule 16(1) of the Working Procedures , we adopt the following additional procedures for 
the purposes of this appeal: 
(a) The oral hearing will be open to public ob servation by means of simultaneous closed-
circuit television.  The closed-circuit tele vision signal will be shown in a separate 
                                                     
 
4For example, the situation contemplated in the sec ond sentence of Article 17.10, which provides that 
"[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the 
light of the information provided and the statements made". WT/DS322/AB/RW 
Page 104  
 
  room to which duly registered delegat es of WTO Members and members of the 
general public will have access.   
(b) Oral statements and responses to questions by the third participants that have 
indicated their wish to maintain the conf identiality of their submissions, as well as 
information that Japan has designated as c onfidential, will not be subject to public 
observation.   
(c) An appropriate number of seats will be reserved for delegates of WTO Members in 
the room where the closed-circuit broadcast will be shown. 
(d) Notice of the oral hearing will be provid ed to the general public through the WTO 
website.  WTO delegates and members of the general public wishing to observe the 
oral hearing will be required to register in advance with the WTO Secretariat. 
(e) Should practical considerations not allow si multaneous broadcast of the oral hearing, 
deferred showing of the video recording will be used as an alternative. 
 
Geneva, 11 June 2009  
__________