WT/DS331/R 
 Page B-1 
 
 
 
ANNEX B 
 
EXECUTIVE SUMMARY OF THE 
WRITTEN SUBMISSIONS OF THE 
THIRD PARTIES 
 
 
Contents Page 
Annex B-1 Executive Summary of the Thir d Party Submission of the European 
Communities – 4 September 2006 B-2 
Annex B-2 Executive Summary of the Third Party Submission of the 
United States – 4 September 2006 B-5 
Annex B-3 Executive Summary of the Third Party Submission of Japan – 
1 September 2006 B-10 
Annex B-4 Third Party Oral Statement of the European Communities  B-13 
Annex B-5 Third Party Oral Statement of the United States B-17 
Annex B-6 Third Party Oral Statement of Japan B-19 
 
 WT/DS331/R 
Page B-2  
ANNEX B-1 
 
THIRD PARTY STATEMENT OF THE EUROPEAN COMMUNITIES 
 
(4 September 2006) 
 
 
1. The European Communities, as a third party, is  making this submission owing to its general 
interest in the correct interpretation of the Anti- Dumping Agreement (AD Agreement).  In doing so, it 
will focus its remarks on certain issues, reserving the right to address others in its oral submission. 
2. Regarding the initiation of the investigation , the parties do not appear to disagree on the 
interpretation of Article 5.2, 5.3 and 5.8 of the AD Agreement, but rather, on the application of those 
provisions in the specific case at issue.  Guatemal a claims that the application for initiation of the 
investigation lacked, in four r espects, sufficient evidence of dump ing;  that it lacked sufficient 
evidence of injury in relation to the volume of impo rts;  and that the Ministry of the Economy (SE) 
failed to properly examine the accuracy and adequa cy of the evidence of dumping and injury in the 
application. 
3. To resolve these issues, the Eu ropean Communities considers the use of Articles 2 and 3 of 
the AD Agreement to interpret Article 5.2 and 5.3 (and the use of the former to interpret the latter), as 
was done in Guatemala – Cement II , to be correct, and suggests that the Panel should do likewise in 
this case. 
4. If the Panel were to reach the conclusion that the application for initiation lacked sufficient 
evidence of dumping and injury, the European Commun ities considers that there would be no need to 
assess whether the SE properly examined the accuracy  and adequacy of the evidence of dumping and 
injury in the application. 
5. Regarding the definition of the allegedly dumped product , ("product under consideration"), 
the parties agree on the fact that the definition in  both the application and the Initiating Resolution 
(pipes and tubes for conduction of a diameter of one  half to four inches, produced under a certain 
technical standard from hot-rolled sheet) was expanded on two occasions:  first, in the Preliminary Resolution, to include pipes and tubes of more than four and up to six inches in diameter, and second, in the Final Resolution, to include structural pipes and tubes of one half to four inches in diameter. 
6. The discrepancies essentially lie in the appreciation of these changes from the standpoint of 
various provisions of the AD Agreement.  It should be  noted in this connection that Article 5.2(ii) of 
the AD Agreement stipulates that the application must contain "a complete description of the 
allegedly dumped product", although it is true that  Article 5.2 of the AD Agreement provides that the 
application shall contain "such info rmation as is reasonably available to the applicant", and that in 
US – Softwood Lumber , the Panel pointed out that the AD Agreement contained no instructions for 
determining the "product under consideration". 
7. Nevertheless, the European Communities agre es with Guatemala on the importance of a 
proper definition of the product u nder consideration from the outset of the procedure, although, as 
Guatemala states, this does not preclude such minor  clarifications to the definition as may be 
necessary.  Guatemala includes in its submission a list, which the European Communities considers 
accurate, of the various implications of the defin ition of the product with respect to the different 
components and phases of an anti-dumping investigation:   definition of the like product, definition of 
the domestic industry and its level of support for the initiation of the investigation, and determination 
of dumping, injury, and causal link.  WT/DS331/R 
 Page B-3 
 
 
8. These implications have an impact on essentia l aspects of the investigation, on the 
identification by the interested parties (exporters, im porters and industry) of the information that they 
must or can supply, and on the investigating authority's examination.  The importance of these implications increases as the procedure advances.  Thus, a change in the definition of the product in 
the Preliminary Resolution, as occurred in this cas e, means that the information provided by the 
exporters or the foreign producers in their re ply to the questionnaires will be incomplete. 
9. The problem is more serious if, as also occu rred in the case at issue,  the change in the 
description of the product under consid eration is made in the Final Resolution, since we are now faced 
with a new problem:  the data on which the Final R esolution is based have not  been discussed in the 
course of the procedure, and will not be discussed, be cause the procedure has been finalized.  In other 
words, the authorities will have failed to comply with their obligation to inform the interested parties, 
prior to the adoption of the Final Determination, of the essential facts, as we shall see later on, and 
this, in its turn, results in the violation of the right s of the parties to defend their interests (Article 6.2 
of the AD Agreement). 
10. The parties differ on the consistency of the investigation period
, which ran from 1 July to 
31 December 2000, while the Initiating Resolution w as issued on 14 August 2001, i.e. seven and a 
half months later. 
11. The European Communities shares Guatemala's interpretation of the application of the 
teachings from Mexico – Rice  to the case at issue.  Although in  this case, the time elapsed was not 
fifteen months, but seven and a half months, a diffe rence of more than six months is too much to 
consider the investigation period as being representativ e, and is inconsistent with the obligation under 
Article 3.1 of the AD Agreement to carry out an objective examination based on objective evidence.  
We recall the statement of the Appellate Body that  more recent data are likely to provide better 
indications about current injury. 
12. At the same time, in this case we have all of the other factors to which the Panel in Mexico –
Rice attributed importance in its evaluation of the facts and that the Appellate Body listed in its report.  
Contrary to what Mexico has stated in this case, in Mexico – Rice , the suggestion that the 
investigation period proposed by the applicant was accepted "knowing that that period had been 
proposed because it allegedly reflected the maximu m penetration of exports " was not taken into 
account. 
13. Moreover, the European Communities considers th e fact that in this case a full examination 
was conducted of the information provided in the application for initiation, and that a request for 
additional information was made, to be irrelevant to the issue before us unless Mexico can 
demonstrate that from that examination it deduced that the information relating to the period of 
investigation conveyed indications as to current injury and constituted an appropriate basis for 
determining whether there was current inju ry, as stated by the Appellate Body in Mexico – Rice . 
14. The European Communities also ag rees with Guatemala's analysis  that in the present case, the 
use of information from the second half only  of the three years from 1998 to 2000 for the injury 
analysis was not objective and representative, and w as therefore inconsistent with the AD Agreement. 
15. The European Communities notes that there is no data whatsoever in the record to suggest 
that the selective use of the second half of each of three years rather than the complete years is 
justified by seasonal considerations or factors. 
16. As with respect to the previous issue, the teachings of the Appellate Body in Mexico – Rice  
are fully applicable to this case. WT/DS331/R 
Page B-4  
17. The European Communities also ag rees with Guatemala's analysis  that in the present case, the 
use of information relating to the factor s based on different sets of information
 from different 
companies within the domestic industry, as summari zed by Guatemala in the table appearing in its 
written submission, was not coherent, and conseque ntly, it was not objective and it was inconsistent 
with Article 3.1 of the AD Agreement. 
18. In its written submission, Mexico does not respond  to Guatemala's claims in this respect, but 
merely states that under Article 4.1 of the AD Agre ement, there are two ways of complying with the 
obligation to examine the domestic industry:  by examining the producers in their totality, or by 
examining a significant portion of the producers.  Ho wever, this is not what Guatemala claims:  it 
does not refer to the representativeness of the data, bu t rather, to their incoherent and arbitrary use. 
19. Guatemala points out that in violation of Artic le 6.9 of the AD Agreement, the SE failed to 
inform the interested parties of two essential facts :  the rejection, based on the verification visit, of the 
information on prices provided by the exporter and th e inclusion of structural pipes and tubes in the 
definition of the product under investigation. 
20. Although Mexico rejected the first claim, it did so through a generic reference to the 
Preliminary Resolution and the records of the hear ing, so that the European Communities was unable 
to conduct the necessary verification. 
21. At the same time, as already mentioned, the in clusion of structural pipes and tubes in the 
definition of the product under inv estigation took place in the Final Resolution, hence violating the 
Article 6.9 requirement that the authorities inform all interested parties of the essential facts under 
consideration "before a fina l determination is made". 
22. Although not very clearly, Guatemala states that c ontrary to the requirements of Article 6.5 of 
the AD Agreement, the SE failed to ass ess whether the confidential treatment  requested by the 
applicant of the invoice and price quotation attached to  the application was justified, and failed to ask 
the applicant for a non-confidential summary. 
23. Since it is unable to verify the content of the confidential information, the European 
Communities will refrain from examining this element,  concerning which Mexico merely pointed out 
that information expressed in numbers could not be summarized. 
24. Mexico further responds that "the justification for designating a piece of information as 
confidential is sufficient provided the investigati ng authority considers this to be the case".  The 
explanation is somewhat tautological, and fails to clarify where in the corresponding decision there is any explanation of the motives that would help to understand, and control, the reasons that led the 
investigating authority to the conclusion  that the information was confidential. 
25. Finally, it is unacceptable that a WTO Member sh ould consider, as Mexico suggests, that its 
domestic legislation on access to confidential inform ation in the hands of the administration can 
replace the obligations set forth in Article 6.5 of  the AD Agreement.  That Article requires the 
authorities to clarify whether a request for confidentia lity is warranted, and if it is not, and the supplier 
insists that it should not be disclosed, the author ities may disregard such information unless it can be 
demonstrated to their satisfaction from appropriate  sources that the information is correct.  This 
procedure cannot simply be replaced by another pro cedure such as the one set forth in Article 80 of 
Mexico's Foreign Trade Act, supplemented by  Article 147 of the Regulations thereto.  WT/DS331/R 
 Page B-5 
 
 
 
ANNEX B-2 
 
 
THIRD PARTY SUBMISSION OF THE UNITED STATES 
 
 
(4 September 2006) 
  INTRODUCTION  
 The United States makes this third party submissi on to provide the Panel with its view of the 
proper legal interpretation of certain provisions of the Agreement on Article VI of the General 
Agreement on Tariffs and Trade 1994  (the "AD Agreement") and the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (the "DSU") that are relevant to this dispute.  
The United States addresses in this submission the proper interpretation of:  (1) Article 5.2 of 
the AD Agreement;  (2) Articles 3.1, 3.2, 3.4, and 3.5 of the AD Agreement;  and (3) Article 19.1 of 
the DSU.  The United States also co mments on several aspects of the f actual record in this dispute. 
  Guatemala claims that Mexico breached Artic le 5.2 of the AD Agreement because it initiated 
an investigation based on an application that l acked sufficient evidence of dumping and injury.  
Specifically, regarding dumping, Guatemala argues that the evidence contained in the application 
concerning normal value – one sales invoice and on e price quote – was insufficient for purposes of 
initiation because:  (1) the invoice and price quote are not related to the exporter named in the 
application;  (2) the price quote is not an "actual"  sales price;  (3) the single sale represented by the 
invoice was compared to a multiple-month average expor t price;  and (4) evidence of prices for two 
models is not representative of the "fu ll range of products under investigation."
1  Regarding injury, it 
argues that the evidence in the application was insufficient because it included volume and price 
information for "all imports" entering the country unde r two tariff classifications, despite the fact that 
other imported pipes and tubes that also entered th e country under these tariff classifications had been 
"explicitly excluded from the investigation."2 
 
 Article 5.2 of the AD Agreement does not dictate that an application must contain a particular 
form or quantum of evidence regarding dumping or injury.  Rather, it requires that an application 
contain such information as is "reasonably available to the applicant."  What is "reasonably available" 
necessarily depends on the circumstances of each case.3 
 
 Thus, depending on the circumstances, an inv estigating authority may decide to initiate an 
investigation based on an application that contai ns home-market pricing information solely from a 
producer not identified in the application.  Article  5.2(iii) requires only that an application contain 
home-market price inform ation specific to "the product in question" ( i.e., the "allegedly dumped 
product" referred to in subparagraph (ii)). 
                                                      
1  See First Written Submission of  Guatemala, paras. 69-80. 
 
2  First Written Submission of Guatemala, para. 81. 
 
3 See United States – Hot-Rolled Steel (AB) , para. 84 ("The word 'reasonable' implies a degree of 
flexibility that involves consideration of all of the circumst ances of a particular case.  What is 'reasonable' in one 
set of circumstances may prove to be less than  'reasonable' in different circumstances."). WT/DS331/R 
Page B-6  
 
 Similarly, an investigating authority is not re quired to summarily reject an application based 
partially or solely on a price quote, as opposed to an "actual" price.  Article 5.2(iii) refers to 
"information on" prices, and a price quote provides "information on" prices.  If the drafters had intended to require nothing short of "actual" pri ces – regardless of the circumstances – they would 
have done so.
4  Nor is an investigating authority required to summarily reject an application (1) that 
only provides home-market pricing information with r espect to some, but not all, models or types of 
the product in question5 or (2) that provides information on the volume of the allegedly dumped 
imports using import data from tariff  classifications that are broader than the product in question.  
Again, the relevant question is whether more sp ecific or accurate information was "reasonably 
available" to the applicant.6 
 
 Guatemala claims that, "based on the specific circumstances of the investigation in question," 
Mexico breached Articles 3.1, 3.2, 3.4, and 3.5 of the AD Agreement because it selected a period of 
investigation that was too remote to allow for th e gathering of positive evidence to be used as the 
basis for an objective examination of injury  – in much the same way as occurred in Mexico – Rice .  
Mexico, on the other hand, attempts to distinguish this case from Mexico – Rice . 
  It is worth recalling that the Panel in Mexico – Rice  did not base its findings solely on the 
"temporal gap" between the period of investigation and the initiation of the investigation.  As the 
Appellate Body recognized:  
The Panel, as trier of the facts, gave weight to other factors:  (i) the period of 
investigation chosen by [Mexico's authorit y] was that proposed by the petitioner;  
(ii) Mexico did not establish that practical problems necessitated this particular period 
of investigation;  (iii) it was not established that updating the information was not possible;  (iv) no attempt was made to upda te the information;  and (v) Mexico did 
not provide any reason – apart from the allega tion that it is Mexico's general practice 
to accept the period of investigation submitted by the petition – why more recent information was not sought.  Thus, it is not  only the remoteness of the period of 
investigation, but also these other circumstan ces that formed the basis for the Panel to 
conclude that a prima facie  case was established.
7 
 Based on the submissions the United States has recei ved in this dispute, many of these "other 
circumstances" appear to be present in this  case in much the same way as they were in Mexico – Rice .  
Mexico acknowledges that, as in Mexico – Rice , the period of investigation chosen by its authority 
was that proposed by the petitioner8, and Mexico did not assert during th e investigation or in its First 
Written Submission that it was not possible to updat e the information.  Moreover, Mexico has not 
                                                      
4  See, e.g. , AD Agreement, Article 2.2.2 (requiring that, when constructing normal value for purposes 
of determining dumping, the amounts fo r administrative, selling, and general costs and for profits shall be based 
on "actual data"). 
 
5  See United States – Softwood Lumber AD Final (Panel) , paras. 7.121-7.123. 
 
6  See also  United States – Softwood Lumber AD Final (Panel) , para. 7.54 ("It seems to us that the 
'reasonably available' language was intended to avoi d putting an undue burden on the applicant to submit 
information which is not reasonably available to it.  It is not, in our view, intended to require an applicant to 
submit all information that is reasonably available to it. ... Th is is particularly true where such information might 
be redundant or less reliable than information contained in the application."). 
 
7  Mexico – Rice (AB) , para. 167. 
 
8  First Written Submission of Mexico, para. 164.  WT/DS331/R 
 Page B-7 
 
 
asserted that it attempted to update this information during the investigation.  It also has not provided 
any reason why more recent information was not sought. 
 Mexico makes three points in attemp ting to distinguish this case from Mexico – Rice :  (1) the 
gap between the end of the period of investigation and the initiation of the investigation was "only" 
eight months in this case, whereas it was 15 months in Mexico – Rice ;  (2) its authority performed a 
more thorough examination of the petition here, and that examination caused delay in the initiation of 
the investigation;  and (3) in Mexico – Rice , Mexico's authority accepted the period of investigation 
proposed by the petitioner knowing that that period reflected the maximum penetration of imports.9   
  With respect to Mexico's first point, the Unite d States appreciates that there is a difference 
between a 15-month gap between the period of invest igation and the initiation of an investigation and 
an eight-month gap.  The United States, recalls, however, that the Panel in Mexico – Rice considered 
not only this gap, but also the gap between the period of investigation and the imposition of final 
anti-dumping duties.  In Mexico – Rice , this gap was two years and nine months.  In this case, the gap 
is two years and thirteen days. 
 
 With regard to Mexico's second point, Mexi co has failed to explain why a more thorough 
review of a petition would justify lengthening th e gap between the period of investigation and 
initiation in this case.  Even if Mexico's author ity performed a more thorough examination of the 
petition
10, and that examination caused a delay in initia ting the investigation, Mexico could have 
established a more recent period of investigation to re flect the delay:  the period of investigation was 
not set in stone when it was proposed by the petitioner.  Moreover, notwithstanding Mexico's 
explanation that initiation in this dispute was de layed because its authority undertook a more thorough 
investigation than was undertaken in Mexico – Rice , in the Rice dispute there was a much longer delay 
between the filing of the petition (on 2 June 2000) and the initiation of the investigation 
(11 December 2000) than in this dispute (petition filed on 22 May 2001;  in vestigation initiated on 
24 August 2001). 
  With regard to Mexico's third point ( i.e., unlike in this dispute, the period proposed by the 
petitioner in Mexico – Rice was the period of maximum import pene tration), nothing in the Panel or 
Appellate Body reports suggests this was a factor in th e analysis of the "stale" period of investigation.  
The issue of seasonal differences in imports arose in Mexico – Rice  not in the context of a "stale" 
period of investigation but in the context of an incomplete period of investigation ( i.e., the six-month 
period of each year when imports of rice were at their peak).   As explained by the Appe llate Body, the Panel in Mexico – Rice  found that Mexico's injury 
analysis, which was based on data covering only six months of each of the three years examined, did 
not allow for an "objective examination," as requi red by Article 3.1 of the AD Agreement, for 
two reasons:    
[F]irst, whereas the injury analysis was selective and provided only a part of the 
picture, no proper justification was provided by Mexico in support of this approach;  and secondly, [Mexico's investigating authorit y] accepted the 'period of investigation 
proposed by the applicants because it a llegedly represented th e period of highest 
                                                     
 
9  First Written Submission of Mexico, para. 161.  Wh ile Mexico lays out four separate subparagraphs 
in paragraph 161, the points in the second and third subparagraphs appear to be the same. 
 
10  Mexico does not appear to argue that its authority examined the period of investigation proposed in 
this petition more closely than in the petition in Mexico – Rice .  Instead, it appears the authority's examination of 
the petition related to issues not relevant to that period.  See First Written Submission of Mexico, para. 164. WT/DS331/R 
Page B-8  
 
import penetration and would thus show the most negative side of the state of the 
domestic industry.'
11 
 In this case, while Mexico's authority accepted the six-month period proposed by the 
petitioner, there does not appear to be any evidence that this period represented the period of highest 
import penetration.  Guatemala appears to acknowle dge this in paragraph 259 of its First Written 
Submission. 
  Thus, the Panel in this case must determine, in  essence, whether an injury analysis that is 
based on data covering only six months of each of th e three years examined allows for an "objective 
examination" where the investigating authority chose the period proposed by the petitioner and 
provided no justification in support of examining onl y parts of years, but where there is no evidence 
that imports were higher during the six-month periods selected. 
  In the view of the United States, examining data relating to the whole year normally "would result in a more accurate picture of the 'state of th e domestic industry' than an examination limited to a 
six-month period."
12  While there may be circumstances in which there could be "convincing and 
valid reasons for examining only parts of years"13, an investigating authority cannot simply assume 
that the six-month periods proposed by a petitioner will provide an accurate picture of the state of the domestic industry.    Indeed, in most circumstances it would be di fficult to "demonstrate [ ] that the dumped 
imports are, through the effects of dumping, . . . causing injury"
14 by looking at six-month snapshots 
over a three-year period.  For example, while  dumped imports may increase and the domestic 
industry's condition may have deteriorated from the first half of the first year to the first half of the 
third, the condition of the industry may be due to  a natural disaster that destroyed most of the 
industry's production capacity in the second half of the first year.  But six-month snapshots would 
mistakenly suggest that the industry was injured by dumped imports, not by the natural disaster.  
  The burden should not fall on exporters and foreign producers to investigate what happened 
to the domestic industry during those months that ar e disregarded by the authority, in the hope of 
persuading the authority to investigate a continuous  period.  While the petitioners admitted in their 
petition in Mexico – Rice  that the six-month period reflected the period of highest import 
penetration,
15 it will not always be so easy for exporter s and foreign producers to discover the biases 
that may result from a discontinuous period of investigation.   As the Panel found in Mexico – Rice , Article 3.1 of the AD Agreement "impose[s] certain 
obligations on the . . . investigating authorities with regard to the comple teness of the data used as the 
basis for its determination."
16  The United States agrees with  Guatemala that an objective 
                                                      
11  Mexico – Rice (AB) , para. 176. 
 
12  Mexico – Rice (AB) , para. 183. 
 
13  Mexico – Rice (Panel) , para. 7.82. 
 
14  AD Agreement, Article 3.5. 
 
15  Mexico – Rice (Panel) , para. 7.83. 
 
16  Mexico – Rice (Panel) , para. 7.77. 
  WT/DS331/R 
 Page B-9 
 
 
determination cannot be based on an incomplete series of data unless the investigating authority 
provides a justified explanation for doing so.17 
  Guatemala requests that, if the Panel were to find in Guatemala's favor, the Panel should 
suggest that Mexico "immediately end the measure" at issue in this dispute.  The Panel should decline 
Guatemala's request and provide the recommendation set  forth in DSU Article 19.1 that Mexico bring 
its measure into conformity with its obl igations under the relevant agreements. 
  In general, panels have declined requests to  make suggestions under Article 19.1 of the DSU, 
and for good reason.  A Member generally has many options available to it to bring a measure into 
conformity with its WTO obligations.  As the Panel noted in US – Softwood Lumber ITC 
Investigation,  Article 21.3 of the DSU makes clear that "the choice of means of implementation is 
decided, in the first instance, by the Member concerned."
18   
  Guatemala asserts that the situation in th is dispute is analogous to the situation in Argentina – 
Poultry , where the Panel suggested repeal of the an ti-dumping measures in question because the Panel 
could not "perceive how Argentina could proper ly implement our recommendation without revoking 
the anti-dumping measure at issue in this dispute."
19  However, it is counterintuitive that a panel 
should provide guidance where guidance is needed least ( i.e., where there is only one "way"20 to 
implement the recommendations, and that way is clear).21 
 
 Moreover, in this particular case, it would be  difficult to square a suggestion that Mexico 
"immediately" end the measure with Article 21.3 of the DSU.  That provision recognizes that it may be impracticable to comply "immediately" and cr eates a process to determine a reasonable period of 
time to comply – after  the report has been adopted, and after  the Member concerned informs the DSB 
of its intentions in respect of implementation.  Article 21.3 also expresses a clear preference (a) for a 
reasonable period proposed by the Member concerned and approved by the DSB, (b) for a period of 
time "mutually agreed by the parties to the dispute"  and (c) as a last resort, a period of time 
determined through binding arbitra tion.  The Panel plays no role in  that process.  As a result, a 
suggestion from the Panel to "immediately" end the measure would insert the Panel inappropriately in 
the process to determine the time in which to comply.  
 
                                                     
 
17  First Written Submission of Guatemala, para. 257. 
 
18  US – Softwood Lumber ITC Investigation (Panel) , para. 8.8. 
 
19  Argentina – Poultry (Panel) , para. 8.7. 
 
20  Article 19.1 of the DSU refers to "ways" to implement the Panel's recommendations, not to a single 
"way." 
 
21  Guatemala also notes Mexico's  announced intentions regarding the implementation of the rulings 
and recommendations in Mexico – Rice  in support of its request.  In the view of the United States, however, a 
dispute involving a different measure and a different complaining party does not support a request for a 
suggestion under DSU Article 19.1, even though some of the claims in the two disputes are similar to one 
another. WT/DS331/R 
Page B-10  
 
ANNEX B-3 
 
 
THIRD PARTY SUBMISSION OF JAPAN 
 
 
(1 September 2006) 
  
I. CHANGES IN THE DEFINITION OF THE PRODUCT UNDER CONSIDERATION 
AND THEIR CONSISTENCY WITH ARTICLES 2 AND 3 
 
1. Mexico appears not to disagree that its i nvestigating authority changed the definition of 
the PUC, but it argues that the changes were not s ubstantial and were justified by the process of 
investigation.   
 
2. Under the AD Agreement , the authorities might be able to change the definition of the PUC 
during the course of the investigation.  However, this does not relieve Mexico of its obligation to 
make dumping and injury determinations pursuant to  the relevant provisions, in particular, Articles 2 
and 3 of the AD Agreement .  In this respect, Japan agrees with  Guatemala that the definition of 
the PUC has broad implication for the investiga tion, and changes to the PUC could affect the 
Panel's determination of whether the investigation a nd resulting measure at issue is consistent with the 
relevant provisions of the AD Agreement .  Japan finds support for this position in the Panel's analysis 
in Guatemala - Cement II  with respect to the claims raised by Mexico involving anti-dumping 
measures imposed by Guatemala on imports of cement from Mexico.  
3. As the Appellate Body observed, "[h]aving defined the product  as it did, [investigating 
authority] was bound to treat that product  consistently thereafter in accord ance with that definition."  
Thus Japan considers that, if and when investiga ting authorities change the definition of the products, 
they must conduct their examination concerning dum ping and injury based on such changed definition 
of the product (including the definition of the "like product"), in accordance with "the need for 
consistent treatment of a product in an anti-dumping investiga tion" as defined or redefined by the 
authorities. 
 4. Given that Guatemala and Mexico do not disagree that the definition of the PUC was 
changed, the Panel should make the necessary f actual findings as to precisely what these changes 
were, when and how they were made, and the conse quences of such changes in terms of the scopes of 
investigation for dumping and injury determinations  at issue.  Since chan ges in the definition of 
the PUC could have impact on the legitimacy (or WTO consistency) of inv estigations under review, 
the Panel should make these factual findings and car efully examine the consistency of any such 
changes with the AD Agreement , in particular Articles 2 and 3, based on such findings. 
 II. SELECTION OF THE PERIOD FOR INJURY ANALYSIS AND ITS CONSISTENCY 
WITH ARTICLE 3 
 
A. R
EMOTE PERIOD FROM THE INITIATION OF TH E INVESTIGATION FOR THE INJURY ANALYSIS  
 5. Japan believes that the Appellate Body in Mexico - Rice  has already shown useful guidelines 
in evaluating the consistency of a selection of a remote  period of data collection,  or a remote period of 
investigation, for injury analysis.  In that case, the Appellate Body agreed with the Panel below that 
"evidence that is not relevant or pertinent to the issue … is not 'positive evidence' " and that "relevance 
or pertinence must be assessed with respect  to the existence of injury by dumping at the time the  WT/DS331/R 
 Page B-11 
 
 
investigation takes place ."  The Appellate Body further explained that "[b]ecause the conditions to 
impose an anti-dumping duty are to be assessed with respect to the current situation , the 
determination of whether injury exists should be based on data that provide indications of the 
situation prevailing when the investigation takes place .  [...]  [M]ore recent data is likely to provide 
better indications about current injury ."  Thus, more recent data is more relevant and pertinent as to 
assessing "current injury," as observed by the Appellate Body. 
 6. In addition, the Appellate Body in Mexico - Rice  considered other factors to be relevant as 
follows "these temporal gaps were not the only ci rcumstances that the Panel took into account.  The 
Panel, as trier of the facts, gave weight to other factors:  (i) the period of investigation chosen by 
Economía was that proposed by the petitioner;  (ii)  Mexico did not establish that practical problems 
necessitated this particular period of investigati on;  (iii) it was not established that updating the 
information was not possible;  (iv) no attempt was made to update the information;  and (v) Mexico did not provide any reason - apart from the allegation that it is Mexico's general practice to accept the 
period of investigation submitted by the petitioner - why more recent information was not sought."  
While the Panel's assessment of these other factors in Mexico - Rice  relates to the specific 
circumstances of that case, Japan c onsiders that these other factors are highly relevant for the Panel's 
disposition of this issue in light of the similarity  between that case and the case at hand.  To begin 
with, it is apparent from Economía's the Notice of the Initiation on 13 March 2002 that, at least, 
factors (i) and (iii) thereof ar e also present in this case.  
 
7. As to other factors, Mexico raised four  factors, in paragraph 161 of its First Written 
Submission, intending to distinguish this investig ation from the investigation that was reviewed in 
Mexico - Rice  case.  Japan considers that as regards poi nt (a) thereof, an 8-month period from the 
initiation of the investigation, thus more than 24-month period from the completion of the investigation, may still raise doubts whether the pe riod reflects "the situation prevailing when the 
investigation takes place."  As regards point (c) ther eof, the scrutiny before in itiating an investigation 
that is required under Articles 5.2 and 5.3 of the AD Agreement  does not justify the authority's use of 
outdated information.  As regards point (d) thereo f, we question its relevance, because the Appellate 
Body in Mexico - Rice  took this factor into consideration in  examining the WTO consistency of the 
injury analysis limited to data relating to six-m onth period each year within a period of investigation 
for injury analysis, not in the cont ext of the Mexico's selection of a re mote period of investigation.  As 
regards point (b) thereof, we do not take a sp ecific position with regard to factual aspects. 
 8. While Mexico stresses the pertinence of the information in selecting the period for injury 
analysis rather than the contemporaneity, or up- to-dateness of the inform ation, the question still 
remains as to which period is more pertinent.  It  is not clear why the remote period would be more 
pertinent than the recent period.  Mexico's only proffe red justification is that information of the more 
recent period would be affected by the dumped imports.  In light of the Appellate Body's finding in Mexico - Rice  that Guatemala refers to, Japan request s the Panel to examine whether Mexico 
demonstrates that "the information relating to th e period of investigation convey indications as to 
current injury and constitute an appropriate basis fo r determining whether there was current injury, in 
spite of its remoteness." 
 
B. A
VAILABILITY OF PROCEEDINGS UNDER ARTICLES 9 AND 11 
 9. Furthermore, Japan has doubts about the ar gument advanced by Mexico concerning the 
availability of subsequent reviews of the dumpi ng and injury determination after the imposition of 
anti-dumping measures.  Mexico contends that cha nges in the circumstances which may occur at a 
later stage of the period of investigation or even th ereafter should be considered  in subsequent reviews 
under Articles 9 or 11 of the AD Agreement , relying on the following statement of the Appellate Body 
in EC - Tube or Pipe Fittings "[i]n our view, the Anti-Dumping Agreement  takes into account the 
possibility of such major changes occurring at a late stage of the POI, or even after the POI, not by WT/DS331/R 
Page B-12  
 
allowing investigating authorities to pick and choo se a subset of data or sub-periods of a POI 
according to their subjective considera tions, but by review mechanisms." 
 10. Mexico's reliance on this statemen t is misplaced.  First, unlike in EC - Tube or Pipe Fittings , 
the issue before the Panel in this case is not wh ether "major changes occurring at a late stage of 
the POI" justifies the use of remote period of inves tigation.  Second, the mere availability of a review 
to re-examine injury cannot substitute for complia nce with the obligations governing the initiation and 
conduct of an investigation, in pa rticular, the obligation to base injury determination "on data that 
provide indications of the situation prevailing when th e investigation takes place" or "current injury."  
Japan notes that in some cases, co mpliance with these obligations could lead to a decision not to 
impose anti-dumping duties, in which case there would be no review under Article 11 in the 
first place.  C. L
IMITED EXAMINATION OF INJURY TO SIX -MONTH PERIODS OF EACH YEAR  
 
11. The Appellate Body in Mexico - Rice  found that "the focus of an injury determination is the 
state of the 'domestic industry,'" and that "in our  view, examining data relating to the whole year 
would result in a more accurate picture of the 'state of the domestic industry'  than an examination 
limited to a six-month period."  The Appellate Body clarified that this does not mean that there is 
"a presumption that an injury analysis based on data  relating to only parts of years is not objective." 
 
12. On this issue, Japan also does not have a sp ecific position with regard to the factual aspects.  
However, given the Appellate Body's finding in Mexico - Rice , Japan considers that it would not be an 
objective examination require d under Article 3.1 of the AD Agreement  if the authorities consider only 
limited information out of a limited period of each year without "proper justification."  
13. In this regard, th e Appellate Body in Mexico - Rice  affirmed the Panel's finding that the 
combination of selective use of data in the injury  analysis with "the acceptance of a period of 
investigation proposed by the appli cants because it allegedly represented the period of highest import 
penetration  and would thus show the most negative si de of the state of the domestic industry" 
established "a prima facie  violation of Article 3.1."  On this issue, too, Japan does not take a specific 
position as to the factual aspects and recognizes that th e Panel's assessment of the relevant factors in 
Mexico - Rice  relates to the specific circumstances of that case.  However, in light of the similarity 
between the Rice case and this case, Japan considers it appropriate for the Panel to inquire as to 
whether the Mexican authorities accepted the peri od proposed by petitioner, knowing that the period 
chosen was allegedly a period of higher import penetration.  WT/DS331/R 
 Page B-13 
 
 
ANNEX B-4 
 
THIRD PARTY ORAL STATEMENT OF THE 
EUROPEAN COMMUNITIES  
 
 
(12 September 2006) 
 
  
Table of Cases Cited in this Oral Statement 
 
 
Short title Full case title and citation 
Argentina – Poultry Argentina – Definitive An ti-Dumping Duties on Poultry from Brazil, 
WT/DS241/R, Report of the Panel, adopted by the DSB on 
19 May 2003 
US – Softwood Lumber (Article 21.5 – Canada) United States – Final Dumping Determination on Softwood Lumber 
from Canada, WT/DS264/AB/RW, Report of the Appellate Body, 
adopted by the DSB on 1 September 2006 
US – Zeroing 
 United States – Laws, regulations  and methodology for Calculating 
Dumping Margins ("Zeroing"), WT/DS294/AB/R, Report of the Appellate Body, adopted by the DSB on 9 May 2006 
Guatemala – Cement II Guatemala – Definitive Anti-Dumping Measures on Grey Portland 
cement from Mexico, WT/DS156/R, Report of the Panel, adopted by 
the DSB on 17 November 2000 
Mexico – Rice Mexico – Definitive Anti-Dumping Measures on Beef and Rice , 
WT/DS295/AB/R, Report of the Appe llate Body, adopted by the DSB 
on 20 December 2005  
Mexico – Rice 
  Mexico – Definitive Anti-Dumping Measures on Beef and Rice, 
WT/DS295/R,  Report of the Panel, adopted by the DSB on 
20 December 2005, as modified by the Appellate Body, WT/DS295/AB/R 
 WT/DS331/R 
Page B-14  
 
1. INTRODUCTION 
 Mr Chairman, distinguished members of the Panel, 
 1. The European Communities would like to thank the Panel for this opportunity to make its 
third party oral submission, which is justified by th e EC's general interest in the correct interpretation 
of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 
1994 (Anti-Dumping Agreement) . 
2. In deference to the Panel and the parties, this  submission will be in Spanish which, it should 
be stressed, is a first for the European Communities at the World Trade Organization. 
3. To avoid wasting the Panel's time  or trying its patience, we woul d like to begin by referring to 
our written submission, whose arguments we shall not repeat.  Our oral statement will be confined to 
commenting on two issues raised in the written submissions of the other third parties:  the initiation of the original investigation, and the re quest for suggestions from the Panel. 
2. INITIATION OF THE ORIGINAL INVESTIGATION 
4. Regarding the written submission of the United States, the European Communities agrees that 
the use of the term "reasonably" in Article 5.2 of the Anti-Dumping Agreement  implies a degree of 
flexibility.
1  However, this does not mean that the investig ating authorities' discretion in that respect is 
"boundless".2  The Appellate Body has stated in this  connection that there is a correspondence 
between the concepts of "dumping" and "margin of dumping"3, and that "it is a unitary concept" 
which has the same meaning throughout Article VI of the GATT 1994 and the Anti-Dumping 
Agreement .4  Moreover, both the panels and the Appellate  Body have repeatedly pointed out that the 
concept of dumping refers to the margins of dum ping for specific exporters or foreign producers.5 
5. Accordingly, the European Communities would expect the information in an application 
submitted under Article 5.1 of the Anti-Dumping Agreement  relating to normal value, on the one 
hand, and export prices on the other, normally to refer to products from the same enterprise.  
Otherwise, given that circumstances can vary signi ficantly from one producer or exporter to another, 
it is questionable that an application could be sai d to contain any evidence of dumping.  In such 
circumstances, the application could at least be exp ected to include some explanation or indication of 
why the normal value demonstrated for producer or exporter X should be considered representative of 
the normal value for producer or exporter Y in respect of which export price evidence has been 
submitted, or vice versa.  In th e absence of such evidence or explanation, it is doubtful that the 
application would comply with the Article 5.2 require ment that it include evidence, with respect to a 
specific exporter or producer, of dumping. 
6. The above remarks are made without prejudice to the possibility – provided the 
"reasonableness" criterion is respected – that a compla int could be based on data relating to a different 
country or pertaining to a different producer or exporter. 
                                                      
1 US written submission, paragraphs 3 and 4. 
 
2 Report of the Panel, Mexico – Rice , paragraph 7.57, as upheld by the Report of the Appellate Body, 
Mexico – Rice , paragraphs 158 to 172. 
 
3 Report of the Appellate Body, US – Zeroing , paragraph 125. 
 
4 Report of the Appellate Body, US – Softwood Lumber  (Article 21.5 – Canada) , paragraph 89. 
 
5 Report of the Appellate Body, Mexico – Anti-Dumping Measures on Rice , paragraphs 215-221;  
Report of the Appellate Body, US – Zeroing , paragraph 129.  WT/DS331/R 
 Page B-15 
 
 
3. REQUEST FOR THE PANEL TO MAKE SUGGESTIONS 
7. Guatemala requests that in view of the magn itude and number of errors committed by the 
Ministry in conducting its investigation, the Panel suggest to Mexico that it apply the rulings and 
recommendations in this case not by re-conducting the investigation, but by terminating the measure 
at issue.6 
8. Mexico makes no arguments in this respect, but the United States proposes that the Panel 
decline Guatemala's request. 
9. The European Communities considers th at this calls for a few comments. 
10. To begin with, we note that certain panels ha ve already issued recommendations that the anti-
dumping measure at issue in a dispute be terminated, for instance in Argentina – Anti-Dumping Duties 
on Poultry7 and Guatemala – Cement II.8  The second of these two cases was an anti-dumping case 
between the same parties as in this dispute, alth ough in different procedural positions.  However, 
these panels provided concise justificat ions for the suggestions they made. 
11. For example, in paragraphs 8.6 a nd 8.7 of its report, the Panel in Argentina – Anti-Dumping 
Duties on Poultry  stated the following: 
We have determined that Argentina has ac ted inconsistently with its obligations 
under the AD Agreement in its imposition of anti-dumping duties on imports of 
eviscerated poultry from Brazil.  We have found these violations to be of a fundamental nature and pervasive. 
In light of the nature and extent of the viol ations in this case, we do not perceive how 
Argentina could properly implement ou r recommendation without revoking the anti-
dumping measure at issue in this dispute.  Accordingly, we suggest that Argentina 
repeal Resolution No. 574/2000 imposi ng definitive anti-dumping measures on 
eviscerated poultry from Brazil. 
12. Similar wording was used in Guatemala – Cement II . 
13. The European Communities does not believe that th e "pervasive" nature of certain violations 
is sufficient to justify a suggestion that an anti-dumpi ng measure be revoked.  In principle, there is no 
reason why a general violation, or even a major vi olation, cannot be remedied by means other than 
revoking the measure. 
14. On the other hand, it is possible that in the cas e of fundamental violations, i.e. those that 
affect the very essence of the measure, there may be no other remedy than to revoke the measure.  This is the European Communities'  understanding of what the Panel ultimately wished to say in 
Argentina – Poultry  when it added that "we do not perceive  how Argentina could possibly implement 
our recommendation without revoking the anti-dumping measure". 
15. However, the European Commun ities believes that it is up to each panel to explain exactly 
why it considers a violation to be "fundamental" in the sense that the only way of complying is to revoke the measure.  Since suggestions are not bind ing, they can only contribute to the rapid and 
                                                     
 
6 Written submission of Guatemala, paragraph 353 et seq. 
 
7 Report of the Panel Argentina – Poultry , paragraphs 8.3 to 8.7. 
 
8 Report of the Panel in Guatemala – Cement II , paragraph 9.6 WT/DS331/R 
Page B-16  
 
effective solution of disputes in accordance with th e objectives set forth in Article 3 of the Dispute 
Settlement Understanding if they are substantiated. 
16. In the European Communities' view, an example of a violation of the Anti-Dumping 
Agreement that can only be remedied by revoking the me asure is when the proceedings are initiated in 
violation of the Agreement, for in stance, because the Article 5.2 conditio ns are not respected.  In that 
case, there are no errors in the investigation, or even  in the measure, that can be resolved.  The error 
that needs to be rectified is the initiation itsel f.  Accepting a new complaint would lead to the 
institution of new anti-dumping proceedings without rectifying the error committed when the original 
investigation was initiated. 
17. In any case, the European Communities does not agree with the position of the United States 
that a panel suggestion would be contrary to a prin ciple that the United States considers to be implicit 
in Article 21.3 of the Dispute Settlement Unde rstanding.  That principle, according to the 
United States, is that it would be up to the affected  Member, in the first instance, to choose the means 
of implementation.  This is incorrect, since Article  19.1 of the DSU expressly permits panels to make 
suggestions. 
18. However, the European Communities agrees with  the United States that a suggestion should 
not specify that the measure must be ended "immediately".  The period of time needed to revoke is not a form or means of implementation, but is regulated by Article 21.3 of the DSU. 
 Mr Chairman, distinguished Members of the Pane l, this completes the oral submission of the 
European Communities.  We remain at your dis posal for any questions you may wish to raise. 
 
 Thank you for your attention. 
 
  WT/DS331/R 
 Page B-17 
 
 
 
ANNEX B-5 
  
THIRD PARTY ORAL STATMENT 
BY THE UNITED STATES 
 
 
(13 September 2006) 
 
 
Introduction  
 1. Thank you, Mr. Chairman, and members of the Pa nel.  It is a pleasure to appear before you 
today to present the views of the United States in this  proceeding.  The purpose of this oral statement 
is to highlight certain aspects of the US third-party submission and to comment on points raised by other third parties in their submissions.  Information in application
 
 
2. Guatemala questions the sufficiency of th e application and the Mexican Investigating 
Authority's decision to initiate based upon the inform ation in the application.  Article 5.2 of the 
Antidumping Agreement sets forth the evidence an  application "shall include," which includes 
"information on prices."  
 
3. Guatemala maintains that an application suppor ted by one invoice for galvanized tubing and a 
quotation for light-walled tubing is insufficient.  Wh ether this information was sufficient to establish 
the home-market price component of evidence of  dumping for purposes of initiation is a case- and 
fact-specific inquiry.  We note, however, that Artic le 5.2 provides that an application contain such 
information "as is reasonably available" to the a pplicant.  The phrase "reasonably available" is not 
defined in the Agreement.  More over, pricing, cost of producti on, and profitability information 
pertaining to foreign producers or domestic competitor s is likely difficult to obtain and, thus, may not 
normally be "reasonably available" to an applicant.    
4. Article 5.2(iii) also does not prescribe the pr ecise form of the information or evidence that 
must be submitted.  Nor does Article 5.2 specify the quantum of evidence that must be submitted.
1  
Rather, the plain language of Article 5.2(iii) simply  requires the application to contain "information 
on prices" at which the product in question is sold  when destined for consumption in the domestic 
market of the country of origin or export.  We th erefore disagree with Guatemala's argument that one 
invoice and quotation are necessarily  insufficient to initiate an inves tigation, or that an application 
must contain pricing information for a particular exporter.   
 
Product under consideration  
 
5. In addition to questioning the sufficiency of the application and the decision to initiate an 
investigation, Guatemala contests the various changes to the definition of the "product under 
consideration."  Mexico does not dispute that the definition was changed, but maintains that, as a 
factual matter, the changes were insignificant.    
                                                     
 
1  United States – Final Dumping Determination on Softwood Lumber from Canada , Panel Report, 
WT/DS264/R, adopted 31 Aug. 2004, para. 7.101 (applicant need not submit “all” information reasonably 
available). WT/DS331/R 
Page B-18  
 
6. The United States generally agrees with Japan's  observation in its third-party submission that 
the Antidumping Agreement permits changes to the de finition of the product under consideration, but 
the investigating authority must be cognizant of the broad implications of such changes.
2  F o r  
instance, the definition of the product under consid eration implicates the requisite threshold for 
industry support set forth in Article 5.4.  This th reshold could be rendered meaningless if an applicant 
could unilaterally and significantly alter the definition of the product.  That is, one could imagine an 
applicant first narrowly defining the product under c onsideration so that, at initiation, the applicant 
would account for a sufficiently large percentage of the domestic industry to justify initiation.  
Subsequently, the applicant could alter that product definition such that, if industry support were re-
examined subsequent to initiation, the applicant would no longer account for a significant percentage 
of the domestic industry.   
 7. The European Communities also recognizes that under certain situations, the definition of the 
product under consideration may change in minor and necessary ways.
3  A change to the definition of 
the product under consideration anno unced in a final determination is not necessarily inconsistent 
with Article 6.9 of the Anti-Dumping Agreement.  Article 6.9 requires that interested parties be 
informed of the essential facts under consideration  and not necessarily the conclusion an authority 
may ultimately draw from those facts.  That said, in order to provide parties a full opportunity "for the 
defence of their interests" under Article 6.2, they must be made aware of proposals for changes to the 
product under consideration and be afforded an opportunity to advocate their position on such 
proposals.   
 
8. As noted in Japan's third-party submission, Gu atemala and Mexico agree that the definition of 
the product under consideration changed, but disagree as to the signi ficance of the changes.4  In the 
view of the United States, the appropriate time  for definitively identifying the product under 
consideration will depend upon the circumstances of  the case.  The parties should, however, be 
afforded a reasonable opportunity to  address proposed significant changes.5   
 
Conclusion  
 
9. This concludes our presentation to the Panel.  Thank you for your attention. 
                                                      
2  Third Party Submission of Japan  at para. 5. 
 
3  Third Party Submission of the European Community  at para. 10. 
 
4  Third Party Submission of Japan  at para. 7. 
 
5  See, e.g., Anti-Dumping Agreement, Articles 6.1, 6.2, and 6.4. WT/DS331/R 
Page B-19 
 
 
ANNEX B-6 
  
THIRD PARTY ORAL STATEMENT 
OF JAPAN 
 
 
(12 September 2006) 
  
I. INTRODUCTION 
 
1. Mr Chairman and distinguished Members of th e Panel, Japan appreciates this opportunity to 
present its view as a third party.  Today, Japan will  not repeat its arguments set forth in its written 
submission.  Instead, it would like to focus on certain additional issues relating to (1) Guatemala's claim on Article 6.9 of the AD Agreement with re gard to the disclosure of the definition of the 
product under consideration (PUC) (paragraph 166 of  the Guatemala's First Written Submission), and 
(2) the Guatemala's request for specific suggestions  under Article 19.1 of the DSU (paragraph 353 of 
the Guatemala's First Written Submission).  
 
II. ARGUMENTS 
 1. The changes in the definition of the PUC in the final product and their consistency with 
Article 6.9 of the Agreement 
 2. The first issue relates to the lack of "disclosure" of "essential facts" under Article 6.9, as 
raised in the EC's written submission.  3. Let me read out the text of Article 6.9 one more time:  
 
 The authorities shall, before a final determination is made, inform  all interested 
parties of the essential facts  under consideration which form the basis for the 
decision whether to apply definitive measures.  Such disclosure  should take place in 
sufficient time for the parties to defe nd their interests.  (Emphasis added.) 
 
4. As Japan explained in its th ird party submission (at paragra phs 5 and 7), the definition of 
the PUC could have a substantial impact on th e scope and legitimacy of the anti-dumping 
investigation and resulting measures.  Accordingly, in Japan's view, facts that form the basis for 
determining the definition of the PUC would constitute  "essential facts [] whic h form the basis for the 
[final] decision."  In the present case, however, Mexican authorities do not seem to have identified or 
specified to all interested parties what essential facts are with regard to the final definition of the PUC, 
as the EC pointed out in paragraph 24 of its written submission.  5. Article 6.9 does not prescribe, in every detail,  the specific manner in which the authorities are 
to comply with its requirement of disclosing "the essential facts".  However, for the purpose of 
Article 6.9, the authorities cannot inform or disclose "essential facts" "in sufficient time" without 
explicitly notifying what cons ists of such "essential facts" so as to  let the interested parties be aware 
of such facts out of a massive amounts of "all inform ation" (Article 6.4) and enable them to "defend 
their interests."   In this case, the interested parties cannot have opportun ities to adequately defend 
their interests concerning such facts, if the aut horities merely imply the "essential facts" through 
simply asking interested parties comments on the de finitional factors of the product during the course 
of the investigation, without informing them of th e facts that form the basis for the change of the 
definition of the PUC, that is, the inclusion of structural pipes. WT/DS331/R 
Page B-20  
 
 6. Thus, Japan asks the Panel to decide on the Gu atemala's claims that Mexico failed to comply 
with the obligation under the Article 6.9 by not disclosing the essential facts concerning the definition 
of the PUC until the issuance of the final determination.  2. Guatemalan request to the Panel for sugg esting a revocation of a measure to implement 
recommendations  
 
7. In its third party submission, the United Stat es argues that the Panel should reject Guatemala's 
request to suggest the way to implement the recomme ndations pursuant to Article 19.1 of the DSU.  
Japan disagrees.  The panel has the authority to make suggestions under Artic le 19.1 where it deems 
appropriate, and in this case the Pa nel may well consider it appropriate  to suggest a revocation of the 
measure as a way to implement the recommendations.  8. First , the second sentence of Article 19.1 serves important objectives of the dispute settlement 
mechanism, i.e., to secure prompt and positive settlement of  disputes. These objectives are articulated 
in the various provisions of the DSU; for example, Article 21.1 says "[p]rompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes 
to the benefits of all Members." Articles 3.3, 3.4 and 3.7 also set forth these objectives in a slightly 
different manner.  To facilitate these objectives, pa nels are authorized under Article 19.1 to decide 
whether it is appropriate to suggest ways to implemen t and, if so, the specific ways to be suggested to 
the Member concerned.   
 9. In Japan's view, this provision contemplates th at, as a trier of facts and issues of law raised 
before them, panels are well positioned and equipped  to suggest specific ways to implement their 
recommendations and rulings. Moreover, nothing in  the text of the DSU precludes panels from 
exercising its discretion under Article 19.1 in cases where there are only one way to implement the 
recommendations.  Nor must panels restrain themselves from so doing simply because of the fact that the previous panels in other cases didn't make sugg estions under Article 19.1.  Japan does not disagree 
with the United States' observation that "[a] Member  generally has many options available to it to 
bring a measure into conformity with its WTO obligations."  However, Japan would also point out that the choice made by the Member concerned does not necessarily lead to the prompt and positive 
solution to the dispute. 
 10. Secondly , nothing in the DSU prevents the panel from suggesting a revocation of the measure 
as a way to implement under Article 19.1, while Japan also recognizes that the Member concerned 
will have a "reasonable period of time" "[i]f it is impracticable to comply immediately  with the 
recommendations" (Article 21.3 of the DSU, emphasis added).   
 11. The findings of the panels in the si milar cases are instructive. The panel in Guatemala – 
Cement I  found inconsistency with Artic le 5.3 of the AD Agreement and suggested the responding 
Member to revoke the measure on the ground that " the entire investigation rested on an insufficient 
basis, and therefore should never have been conducted " and that such violation cannot be cured 
afterward (WT/DS60/R, paragraph 8.6, emphasis added).  The panel in Guatemala – Cement II  also 
suggested a revocation "in the light of the nature an d extent of the violations in this case," including 
the violation of the initiation requirements (WT/DS156/ R, paragraph 9.6).  Thus, it is Japan's view 
that a revocation of the measure in dispute can be at least one of positive and effective ways to implement the recommendations and rulings depending,  of course, on the nature and extent of the 
violations and the specific circumstances of this case. 
 12. In the present case, Guatemala asks the Panel to suggest that Mexico revoke the measure at 
issue.  The alleged violations relate to the initiati on requirements of investigations and the nature and 
extent of such violations can be such that " the entire investigation … should never have been 
conducted " in the first place.  WT/DS331/R 
Page B-21 
 
 
 13. For all these reasons, Japan respectfully requ ests the Panel to consider, in exercising its 
discretion under Article 19.1, to suggest a revo cation of measures in question as a way in which 
Mexico implement the recommendations in order to  secure prompt and positive settlement of this 
dispute. 
 
III. CONCLUSION 
 
14. To conclude, Japan would like the Panel to car efully examine these issues mentioned in this 
statement, in addition to the arguments advanced in  its written submission.  Thank you, again, for 
your attention.