WORLD TRADE  
ORGANIZATION  WT/DS295/AB/R 
29 November 2005 
 (05-5638) 
 Original:   English 
  
 
     
 
    
 
   
MEXICO – DEFINITIVE ANTI-DUMPING MEASURES 
ON BEEF AND RICE 
 
Complaint with Respect to Rice  
 
  
AB-2005-6 
 
 
    
 
     
 
 
Report of the Appellate Body  WT/DS295/AB/R 
 Page i 
 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants and the Third Participants ..........................................................6  
A. Claims of Error by Mexico – Appellant......................................................................... 6 
1. Article 6.2 of the DSU ......................................................................................6  
2. Economía's Injury Determination .....................................................................8  
3. Economía's Dumping Determination..............................................................12  
4. The Foreign Trade Act....................................................................................15  
B. Arguments of the United States – Appellee.................................................................. 21 
1. Article 6.2 of the DSU ....................................................................................21  
2. Economía's Injury Determination ...................................................................22  
3. Economía's Dumping Determination..............................................................24  
4. The Foreign Trade Act....................................................................................27  
C. Arguments of the Third Participants............................................................................ 33 
1. China...............................................................................................................33  
2. European Communities...................................................................................35  
III. Issues Raised in This Appeal ................................................................................................... .37 
IV. Article 6.2 of the DSU ......................................................................................................... .....39  
V. Economía's Injury Determination .............................................................................................45  
A. The Period of Investigation and the Terms of Reference............................................. 45 
B. The Use of a Period of Investigation Ending in August 1999 and the Criterion 
of Positive Evidence..................................................................................................... 50 
C. The March–August Period........................................................................................... 56 
D. The Volume and Price Effects of the Dumped Imports................................................ 63 
1. Economía's Analysis.......................................................................................64  
2. The Panel's Reasoning and Mexico's Appeal .................................................65  
3. Analysis ..........................................................................................................68  
VI. Economía's Dumping Determination........................................................................................70  
A. The Application of the Anti-Dumping Measure to Farmers Rice and Riceland .......... 70 
B. The Margin of Dumping for Produ cers Rice and the Terms of Reference .................. 76 
C. The Margin of Dumping for the Exporters Not Investigated ....................................... 80 
1. Articles 12.1 and 6.1 of the  Anti-Dumping Agreement ..................................84  
2. Article 6.10 of the  Anti-Dumping Agreement ................................................87  
3. Article 6.8 of the  Anti-Dumping Agreement ..................................................88  WT/DS295/AB/R 
Page ii  
 
VII.
 The Foreign Trade Act.......................................................................................................... ....90  
A. Prelimina ry Issues ....................................................................................................... 91 
1. Prima Facie   Case...........................................................................................91  
2. The "Mandatory" or "Discretionary" Nature of the FTA Provisions..............93  
B. Article 53..................................................................................................................... .95 
C. Article 64..................................................................................................................... .98 
D. Article 68.................................................................................................................... 104 
1. Exporters with  De Minimis   Margins...........................................................104  
2. The "Representativeness" Requirement........................................................106  
E. Article 89D................................................................................................................. 110 
F. Article 93V ................................................................................................................. 113 
G. Articles 68 and 97...................................................................................................... 116 
1. Prima Facie   Case.........................................................................................116  
2. Interpretation of Treaty Provisions ...............................................................120  
VIII. Findings and Conclusions....................................................................................................... 124 
 
ANNEX I Notification of an Appeal by Mexico under Article 16.4 and Article 17 of the DSU 
and Rule 20(1) of the  Working Procedures for Appellate Review  
 ANNEX II Request for the Establishment of a Panel by the United States 
 ANNEX III Request for Consultations by the United States 
 
  WT/DS295/AB/R 
 Page iii 
 
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Argentina – Poultry Anti-
Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from 
Brazil , WT/DS241/R, adopted 19 May 2003 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161 
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 – 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  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Sardines  Appellate Body Report, European Communities – Trade Description of Sardines , 
WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3359 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Japan – Agricultural 
Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Apples  Appellate Body Report, Japan - Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, 6 June 2005 
Mexico – Corn Syrup  
(Article 21.5 – US)  Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU  
by the United States , WT/DS132/AB/RW, adopted 21 November 2001, DSR 
2001:XIII, 6675 
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 – Anti-Dumping Measures 
on Cement United States – Anti-Dumping Mea sures on Cement from Mexico , WT/DS281 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , WT/DS282 
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 WT/DS295/AB/R 
Page iv  
 
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 – Countervailing Measures 
on Certain EC Products  Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, adopted  
8 January 2003 
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access 
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea , 
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, 
DSR 2001:X, 4697 
US – Hot-Rolled Steel  Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled 
Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 as modified 
by Appellate Body Report, WT/DS184/AB/R, DSR 2001:X, 4769 
US – Offset Act  (Byrd Amendment
 ) Appellate Body Report, United States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003 
US – Offset Act  
(Byrd Amendment ) Panel Report, United States – Continued Dumping and Subsidy Offset Act of 
2000 , WT/DS217/R, WT/DS234/R, adopted 27 January 2003, as modified by 
Appellate Body Report, WT/DS217/AB/R, WT/DS234/AB/R 
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 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT /DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R , adopted 10 December 2003  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, adopted 
23 May 1997, DSR 1997:I, 323 
  WT/DS295/AB/R 
 Page v 
 
 
TABLE OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Application for Initiation " Solicitud de investigación antidumpi ng contra las importaciones de 
arroz blanco originarias de los Estados Unidos de América " 
("Application for initiation of an an ti-dumping investigation regarding 
imports of long-grain white rice from the United States"), 2 June 2000 
(Exhibit US-8 submitted by the United States to the Panel)  
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994 
DSB Dispute Sett lement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
Economía Ministry of Economy of Mexico 
Farmers Rice Farmers Rice Milling Company 
Final Determination  "Resolución final de la investigación antidumping sobre las 
importaciones de arroz blanco grano largo, mercancía clasificada en la 
fracción arancelaria 1006.30.01 de la Ta rifa de la Ley de los Impuestos 
Generales de Importación y Exportación, originarias de los Estados 
Unidos de América, independientemente del país de procedencia ", 
Diario Oficial , 5 June 2002, Second Section, pp. 1-47 (Exhibit US-6 
submitted by the United States to the Panel;  Exhibit MEX-1 submitted by Mexico to the Panel) 
FTA Foreign Trade Act of Mexico 
GATT 1994  General Agreement on Tariffs and Trade 1994   
Panel Report Panel Report, Mexico – Anti-Dumping Measures on Rice 
Preliminary Determination  "Resolución preliminar de la investigación antidumping sobre las 
importaciones de arroz blanco grano largo, mercancía clasificada en la 
fracción arancelaria 1006.30.01 de la Tarifa de la Ley del Impuesto General de Importación, originarias de los Estados Unidos de América, 
independientemente del país de procedencia ", Diario Oficial , 18 July 
2001, pp. 3-54 (Exhibit US-14 submitted by the United States to the Panel)  
Producers Rice Producer s Rice Mill, Inc. 
Riceland Riceland Foods, Inc. 
SCM Agreement Agreement on Subsid ies and Countervailing Measures 
SECOFI Ministry of Co mmerce and Industrial Development of Mexico 
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 23 May 
1969, 1155 UNTS 331; 8 International Legal Materials 679 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 
2005 
WTO World Trade Organization 
   WT/DS295/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Mexico – Definitive Anti-Dumping 
Measures on Beef an d Rice, Complaint 
with Respect to Rice  
 
Mexico,  Appellant 
United States,  Appellee 
 
China,  Third Participant 
European Communities,  Third Participant  
Turkey,  Third Participant 
  AB-2005-6 
  Present:  
 Lockhart, Presiding Member 
 Abi-Saab, Member  Taniguchi, Member  
 
 
I. Introduction 
1. Mexico appeals certain issues of law and legal in terpretations developed in the Panel Report,  
Mexico – Definitive Anti-Dumping Measures on Beef and Rice , Complaint with Respect to Rice  (the 
"Panel Report").1  The Panel was established to consider a complaint by the United States concerning 
the imposition of definitive anti-dumping duties by Me xico on imports of long-grain white rice from 
the United States2, as well as certain provisions of Mexican law relating to anti-dumping and 
countervailing duty proceedings. 
2. The Mexican Rice Council filed an anti-dumping petition on 2 June 2000 with the Ministry of 
Commerce and Industrial Development ("SECOFI"), Me xico's investigating authority at that time.3  
The investigation was initiated in December 2000 by the Ministry of Economy ("Economía")4, which 
                                                      
1WT/DS295/R, 6 June 2005. 
2In its request for consultations (WT/DS295/1, G/L/631, G/ADP/D50/1, G/SCM/D54/1, 23 June 2003 
(attached as Annex III to this Report )), the United States raised claims w ith respect to the anti-dumping measure 
on beef, the anti-dumping measure on long-grain white rice, certain provisions of the Foreign Trade Act of 
Mexico (the "FTA"), and one provision of the Federal Code of Civil Procedure.  The claims with respect to the 
anti-dumping measure on beef, however, were not includ ed in the request for the establishment of a panel 
(WT/DS295/2, 22 September 2003 (attached as Annex II to this Report)).  The Panel Report, therefore, did not 
examine the anti-dumping measure on beef.  (Panel Report, footnote 2 to para. 1.2) 
3Panel Report, para. 2.2.   
4Ibid., para. 2.3.  See also " Resolución por la que se acepta la solicitud de parte interesada y se declara 
el inicio de la investigación antidumping sobre las importaciones de arroz blanco grano largo, mercancía clasificada en la fracción arancelaria 1006.30.01 de la Tarifa de la Ley del Impuesto General de Importación, 
originarias de los Estados Unidos de América, independientemente del país de procedencia ", Diario Oficial , 
11 December 2000, First Section, pp . 4-26 (Exhibit US-1 submitted by the United States to the Panel).  WT/DS295/AB/R 
Page 2  
 
succeeded SECOFI as Mexico's investigating authority.
5  The notice of initiation, a copy of the 
petition and attachments thereto, and the investigatio n questionnaire were sent to the Government of 
the United States and to the two exporters that were specifically identified in the petition as the 
"exporters", Producers Rice Mill, Inc. ("Producer s Rice") and Riceland Foods, Inc. ("Riceland").6  
Two additional exporters, The Rice Company and Fa rmers Rice Milling Company ("Farmers Rice"), 
came forward following the initiation of the investig ation and before the pre liminary determination, 
and requested copies of the questionnaire.7   
3. The period of investigation for the purpose of the dumping determination was 1 March to 
31 August 1999.  For the purpose of the injury dete rmination, Economía collected data for the period 
March 1997 through August 1999, but based  its analysis on the data for 1 March to 31 August for the 
years 1997, 1998, and 19998 and issued its final affirma tive determination on 5 June 2002.9  
Economía found that Farmers Rice and Ricela nd had not been dumping during the period of 
investigation and consequently imposed a zero per cent duty on these exporters.  With respect to The 
Rice Company, Economía determined a dumping margin  of 3.93 per cent and imposed a duty in that 
amount.  Economía also imposed on the remain ing United States exporters of the subject 
merchandise, including Producers Rice, a duty of 10.18 per cent, calculated on the basis of the facts 
available.10  
4. Before the Panel, the United States raised claims with respect to  Economía's anti-dumping 
investigation on long-grain white rice, allegi ng that Economía's dumping determination was 
inconsistent with Article VI:2 of the  General Agreement on Tariffs and Trade 1994   (the 
"GATT 1994"), as well as Articles 1, 5.8, 6.1, 6.2, 6.4, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the  Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994   
                                                     
 
5As the Panel noted, the name of Mexico's investigating authority was changed from SECOFI to 
Economía, which completed the investigation on long-grain white rice from the United States. (Panel Report, 
footnote 4 to para. 2.2) 
6Panel Report, para. 2.4.  See also Notice to Producers Rice Mills, Inc . of the initiation of 
the  investigation, 11 December 2000 (Exhibit ME X-6 submitted by Mexico to the Panel);  Notice to 
Riceland  Foods, Inc . of the initiation of the anti-dumping investig ation on imports of long-grain white rice, 
11 December 2000 (Exhibit MEX-7 s ubmitted by Mexico to the Panel) ;  Notice of the initiation of the 
investigation communicated to the Government of the Unit ed States of America thr ough its Embassy in Mexico 
City, 11 December 2000 (Exhibit MEX-9 submitted by Mexico to the Panel). 
7Panel Report, para. 2.5. 
8Ibid., paras. 2.4 and 7.75. 
9"Resolución final de la investigación antidumping sobre las importaciones de arroz blanco grano 
largo, mercancía clasificada en la fracción arancelaria 1006.30.01 de la Tarifa de la Ley de los Impuestos 
Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de procedencia ", Diario Oficial , 5 June 2002, Second Section, pp. 1-47 (Exhibit US-6 submitted by the 
United States to the Panel;  Exhibit MEX-1 submitted by Mexico to the Panel).  
10Panel Report, para. 2.7.  WT/DS295/AB/R 
 Page 3 
 
 
(the " Anti-Dumping Agreement ") and Annex II thereto.11  The United States also alleged that 
Economía's injury determination w as inconsistent with Articles VI:2 and VI:6(a) of the GATT 1994, 
as well as Articles 1, 3.1, 3.2, 3.4, 3.5, 6.2, 6.8, and 12.2 of the  Anti-Dumping Agreement   and 
Annex II thereto.12  In addition, the United States claimed th at certain provisions of the Foreign Trade 
Act of Mexico (the "FTA")  and one provision of the Federal Code of Civil Pr ocedure are inconsistent, 
as such, with various provisions of the  Anti-Dumping Agreement   and the  Agreement on Subsidies 
and Countervailing Measures   (the " SCM Agreement ").13 
5. In the Panel Report, circulated to Members of  the World Trade Organization (the "WTO")  
on 6 June 2005, the Panel concluded that: 
(a) Economía's dumping determination is inconsistent with Artic les 5.8, 6.1, 6.8, 6.10, 
and 12.1 of the  Anti-Dumping Agreement   and paragraphs 1 and 7 of Annex II 
thereto14; 
(b) Economía's injury determination is inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of 
the  Anti-Dumping Agreement15; 
(c) Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the Anti-Dumping 
Agreement   and Article 12.1.1 of the  SCM Agreement16; 
(d) Article 64 of the FTA is inconsistent , as such, with Article 6.8 of the Anti-Dumping 
Agreement   and paragraphs 1, 3, 5, and 7 of Annex II thereto, and Article 12.7 of the 
SCM Agreement17; 
(e) Article 68 of the FTA is inconsistent, as such , with Articles 5.8, 9.3, and 11.2 of the 
Anti-Dumping Agreement   and Articles 11.9 and 21.2 of the  SCM Agreement18; 
                                                      
11Panel Report, para. 3.1(h)-(m). 
12Ibid., para. 3.1(a)-(g) and footnote 8 to para. 3.1. 
13The FTA provisions challenged by the United States  are Articles 53, 64, 68, 89D, and 93V, as well as 
Articles 68 and 97 read together.  The United States also  challenged Section 366 of the Federal Code of Civil 
Procedure. (Panel Report, para. 3.1(n)-(s)) 
14Ibid., para. 8.3. 
15Ibid., para. 8.1. 
16Ibid., para. 8.5(a). 
17Ibid., para. 8.5(b). 
18Ibid., para. 8.5(c). WT/DS295/AB/R 
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(f) Article 89D of the FTA is inconsiste nt, as such, with Article 9.5 of the Anti-Dumping 
Agreement   and Article 19.3 of the  SCM Agreement
19; 
(g) Article 93V of the FTA is inconsiste nt, as such, with Article 18.1 of the Anti-
Dumping Agreement   and Article 32.1 of the  SCM Agreement20;  and 
(h) Articles 68 and 97 of the FTA, read together, are inconsistent, as such, with 
Articles 9.3 and 11.2 of the  Anti-Dumping Agreement , and Article 21.2 of the  SCM 
Agreement .21 
6. The Panel further concluded that the United States had failed to make a  prima facie   case in 
two respects: (i) that Article 366 of the Federal Code of Civil Procedure is inconsistent with 
Articles  9.3, 9.5, and 11.2 of the  Anti-Dumping Agreement  and Articles 19.3 and 21.2 of the  
SCM Agreement ;  and (ii) that Articles 68 and 97 of the FTA, read together, are inconsistent with 
Article 9.5 of the Anti-Dumping Agreement   and Article 19.3 of the  SCM Agreement .22  With respect 
to the remaining claims of the United Stat es, the Panel exercised "judicial economy".23  The Panel 
therefore recommended that the Dispute Settlement Body (the "DSB") reques t Mexico to bring its 
measures into conformity with its obligations under the  Anti-Dumping Agreement   and the  SCM 
Agreement .24 
7. On 20 July 2005, Mexico notified the DSB of its intention to appeal certain issues of law 
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel, pursuant to 
Articles 16.4 and 17 of the  Understanding on Rules and Procedures Governing the Settlement of 
Disputes   (the "DSU"), and filed a Notice of Appeal 25 pursuant to Rule 20(1) of the  Working 
Procedures for Appellate Review (the " Working Procedures ").26  At the outset of the appeal, the 
participants asked to have all wr itten submissions made available to all participants in English and 
Spanish.  Following consultations with the partic ipants, the Appellate Body Division hearing the 
appeal issued a Working Schedule for the appeal, taking into account time periods for translation of 
                                                      
19Panel Report, para. 8.5(d). 
20Ibid., para. 8.5(e). 
21Ibid., para. 8.5(f). 
22Ibid. 
23Ibid., paras. 8.1, 8.2, 8.3(b) and (c), 8.4, and 8.5(b). 
24Ibid., para. 8.7. 
25WT/DS295/6 (attached as Annex I to this Report). 
26WT/AB/WP/5, 4 January 2005.  WT/DS295/AB/R 
 Page 5 
 
 
submissions estimated by the WTO Language Services and Documentation Division.27  G i v e n  
the time required for the translation of submissions, it was not possible to circulate this Report within 
90 days from the date the Notice of Appeal was filed.  The participants confirmed in writing 
their agreement to deem the Appellate Body Re port in this proceeding, issued no later than 
29 November 2005, to be an Appellate Body Repor t circulated pursuant to Article 17.5 of the DSU.28 
8. On 27 July 2005, Mexico filed an appellant's submission.29  On 6 September 2005, the United 
States filed an appellee's submission.30  China and the European Communities each filed a third 
participant's submission on 29 August 2005.31  On 5 October 2005, Turkey notified its intention to 
appear at the oral hearing as a third participant.32 
9. On 4 August 2005, Mexico filed a letter with th e Appellate Body Secretariat requesting that 
the Division modify the Working Schedule.  Mexico stated that the Working Schedule provided for 
"five calendar days" between the date Mexico w ould receive the translated appellee's and third 
participant's submissions, and the first day of the oral hearing, whereas the  Working Procedures   
provided normally for 10 to 15 days for that period.33  Mexico submitted that the other time periods 
provided in the Working Schedule corresponded to the time periods in a typical appeal, with 
additional time provided where necessary for translati on.  Mexico therefore requested that it be given 
"as much time as possible" in the period preceding th e oral hearing to ensure that both participants 
had "an equal opportunity to present their case".34 
                                                      
27Letter from the Director of the Appellate Body Secr etariat to the participants and third participants, 
dated 27 July 2005. 
28Letter from the Ambassador and Permanent Represen tative of Mexico to the WTO to the Director 
of  the Appellate Body Secretariat, dated 4 August 2005;  letter from the Senior Legal Advisor of the Permanent Mission of the United States to the WTO to th e Director of the Appellate Body Secretariat, dated 
4 August 2005. 
29Pursuant to Rule 21(1) of the  Working Procedures .  A courtesy English translation of Mexico's 
appellant's submission, prepared by the WTO Language Services and Documentation Division, was provided to 
the participants and third participants on 19 August 2005. 
30Pursuant to Rules 22 and 23(4) of the  Working Procedures .  A courtesy Spanish translation of the 
United States' appellee's submission, prepared by the WTO Language Serv ices and Documentation Division, 
was provided to the participants and third participants on 28 September 2005. 
31Pursuant to Rule 24(1) of the Working Procedures .  Courtesy Spanish translations of China's and the 
European Communities' third participant's submissi ons, prepared by the WTO Language Services and 
Documentation Division, were provided to the participants and third participants on 28 September 2005. 
32Pursuant to Rule 24(4) of the Working Procedures . 
33Letter from the Ambassador and Permanent Representative of Mexico to the WTO to the Director of 
the Appellate Body Secretariat, dated 4 August 2005.  The Working Schedule provided for Mexico to receive 
the translated appellee's and third participant's submissions on 30 September 2005, and the oral hearing to 
commence on 6 October 2005. 
34Ibid. WT/DS295/AB/R 
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10. The Appellate Body Division invited the United States and the third participants to comment 
on Mexico's request, stating its understanding that the request had been made pursuant to Rule 16(2) 
of the  Working Procedures .
35  The United States responded that, although it was not clear that the 
time period provided for in the Working Schedule w as "manifestly unfair", it "recognize[d] Mexico's 
point of view" and therefore would not object to  a "slight, further modification" of the Schedule.36  In 
its reply, the Division noted that "[i]n the light of [Mexico's] request", the WTO Language Services 
and Documentation Division had informed the Appe llate Body Secretariat that it would provide a 
translation of the United States' appellee's submission  two days earlier than scheduled, that is, eight 
days before the oral hearing.  The Division conc luded that, in these circumstances, maintaining the 
original Working Schedule "would not prejudice the ability of Mexico to defend its interests" and 
therefore declined Mexico's request.37 
11. The oral hearing in this appeal was held on 6 and 7 October 2005.  The participants and third 
participants (with the exception of Turkey) presen ted oral arguments and responded to questions 
posed by the Members of the Division hearing the appeal. 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by Mexico – Appellant  
1. Article 6.2 of the DSU  
12. Mexico appeals the Panel's finding that those claims set out in the United States' panel 
request, but not indicated in the request for cons ultations, do not fall outside the Panel's terms of 
reference.   
                                                      
35Letter from the Acting Director of the Appellate Body Secretariat to the participants and third 
participants, dated 8 August 2005.  Rule 16(2) of the Working Procedures  provides: 
In exceptional circumstances, where stri ct adherence to a time-period set out 
in these Rules would result in a manifest unfairness, a party to the dispute, a participant, a third party or a third participant may request that a division 
modify a time-period set out in these Rules for the filing of documents or 
the date set out in the working schedule for the oral hearing.  Where such a 
request is granted by a division, any modification of time shall be notified to 
the parties to the dispute, participants, third parties and third participants in a revised working schedule. 
36Letter from the Senior Legal Advisor for the Permanent Mission of the United States to the WTO to 
the Acting Director of the Appellate Body Secretariat, dated 10 August 2005.  No third participant filed any 
comment on Mexico's request. 
37Letter from the Acting Director of the Appellate Body Secretariat to the Ambassador and Permanent 
Representative of Mexico to the WTO, dated 11 August 2005.  WT/DS295/AB/R 
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13. Mexico argues that the inclusion in the United States' panel request of WTO legal provisions 
that did not form part of the request for consultati ons is inconsistent with Article 6.2 of the DSU.  
Pursuant to Article 4.4 of the DSU, the United St ates was required to indicate, in its request for 
consultations, the "legal basis" for its complaint,  including the provisions with which a measure is 
alleged to be inconsistent.  Pursua nt to Article 6.2 of the DSU, the United States was required not only 
to  indicate   the "legal basis" of its complaint in its pa nel request, but to do so in a manner "sufficient 
to present the problem clearly".  Thus, according to Mexico, the only difference between the request 
for consultations and the panel request is that the latter should contain a brief statement by the 
complaining party of the legal basis  already identified   in the former, in order to "present the problem 
clearly".  The "legal basis" itself, however, rema ins unchanged from the request for consultations to 
the panel request.  
14. Mexico submits that its interpretation of Ar ticles 4.4 and 6.2 of the DSU is based on the 
customary rules of treaty interpretation codified in Articles 31 and 32 of the  Vienna Convention on 
the Law of Treaties   (the " Vienna Convention ").38  Mexico points out that, in the light of Article 31 of 
the  Vienna Convention , the "ordinary meaning"39 of the term "legal basis" must be the same in both 
Article 4.4 and Article 6.2 of the DSU.  Mexico argues that, on the b asis of this "ordinary meaning", it 
is clear that an increase in the number of allegati ons of inconsistency with  WTO provisions cited in 
the panel request, compared with the request for consultations, does not alter the "legal" nature of 
such allegations, but does alter the "basis" of the complaining party's claims.  For example, Mexico 
explains that a panel request with claims resting on  two  articles of the GATT 1994 would not have 
the same "basis" as a request founded on  seven   articles of the GATT 1994.  Moreover, 
supplementary means of interpretation, as provided for in Article 32 of the  Vienna Convention , 
confirm the above interpretation.  Mexico points, in particular, to the fact that the requirement of a 
"legal basis" in panel requests—existing at the time of the 1988 Montreal Ministerial Conference 
during the Uruguay Round—was subsequently included, after the 1990 Brussels Ministerial 
Conference, as a requirement of requests for consultations.  
15. Mexico states that the Appellate Body has not yet considered the question whether the legal 
basis set out in the request for consultations can be  expanded in the panel request.  However, Mexico 
refers to the decision of the Appellate Body, in  US – Carbon Steel , that the legal basis of a complaint 
cannot be established at a stage later than the pane l request if that basis was not established in the 
panel request itself.  Mexico opines that the same prin ciple applies at an earlier procedural stage, as in 
                                                      
38Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
39Mexico's appellant's submission, para. 14 (" sentido corriente ") (quoting Article 31 of the  Vienna 
Convention ). WT/DS295/AB/R 
Page 8  
 
the present case, such that the lega l basis of a complaint cannot be included in a panel request if it was 
not included first in the request for consultations.   
16. Alternatively, if the Appellate Body upholds th e finding of the Panel, Mexico alleges that the 
legal grounds posited by the United States in its pane l request are not "sufficiently inter-related" to 
justify their inclusion in the panel request wit hout having been included in the request for 
consultations.
40   
17. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that the 
legal provisions alleged in the pane l request to have been violated need not be identical to those 
identified in the request for consultations.  Mexico  further requests the Appellate Body to find that 
those claims set out for the first time in the Unite d States' panel request were not properly before the 
Panel and, accordingly, to reverse the Panel's findings on those claims. 
2. Economía's Injury Determination  
(a) The Use of a Period of Investigation Ending in August 1999 
18. Mexico appeals the Panel's finding that the use of a period of investigation ending in 
August 1999 for purposes of the injury analysis is inc onsistent with Articles 3.1,  3.2, 3.4, and 3.5 of 
the  Anti-Dumping Agreement . 
19. Mexico submits that the Panel's finding re garding the remoteness of the period of 
investigation is beyond the terms of reference of th is dispute.  The scope of the dispute derives from 
the terms of reference and from the panel request s ubmitted by the United States.  The claim made by 
the United States in its panel request is that Mexico violated Article 5.1 of the  Anti-Dumping 
Agreement   by not examining recent data, because the pur pose of an anti-dumping investigation is to 
determine whether dumping is occurring at the present time.  Mexico alleges, however, that the Panel 
disregarded the United States' claim and "reconstructed" the argument differently.41  Instead of 
considering whether Mexico had violated Article 5.1,  the Panel decided, on the basis of other articles 
of the  Anti-Dumping Agreement , that the purpose of an anti-dumping investigation is to determine 
whether dumping is occurring at the present time, a nd that Mexico had examined a period that was 
not relevant for this determination, thereby br eaching Articles 3.1, 3.2, 3.4, and 3.5 of the  Anti-
Dumping Agreement . 
                                                      
40Mexico's appellant's submission, para. 25 (" los preceptos jurídicos no tienen la relación suficiente 
entre sí como para poder ser insertados en la solicitud de grupo especial sin estar incluidos en la solicitud de 
consultas "). 
41Ibid., para. 39 (" reconstruyó ").  WT/DS295/AB/R 
 Page 9 
 
 
20. Mexico contends that, even if the Panel had act ed consistently with the terms of reference 
applicable to the dispute, the Panel nevertheless erred because it required that the period of data 
collection and the investigation period be the sam e.  Mexico agrees with the Panel that the  Anti-
Dumping Agreement   contains no rule regarding the pe riod to be used for an anti-dumping 
investigation, and that the data on which an invest igation is based may relate to an earlier period.  
However, Mexico submits that these assertions contra dict the Panel's conclusion that there must be a 
real-time connection between the period of investig ation and the period of the collection of data.  
Indeed, if such a temporal connection existed, the investigation would have to proceed concurrently 
with the collection of related information, in wh ich case there would be no point in collecting data 
from an earlier period. 
21. Mexico also argues that the Panel mistakenly de termined that the purpose of an anti-dumping 
investigation is to offset dumping causing injury at  the present time.  According to the Panel, the 
purpose of an anti-dumping investiga tion is established by the use of verbs in the present tense, as in 
the expression "causing injury" in Articles 3.5 and 11.1 of the  Anti-Dumping Agreement   and 
Article VI:2 of the GATT 1994.  In Mexico's opinion , the fact that these Articles contain verbs in the 
present tense is not determinative, as several articles of the  Anti-Dumping Agreement   refer to the 
future, without their having to be interpreted in the narrow and literal sense.  Furthermore, according 
to Mexico, it is not possible to conduct an investig ation without using data from a previous period.  It 
follows, then, that the expression "causi ng injury" in Article 3.5 of the  Anti-Dumping Agreement   
must be interpreted in such a manner that it refers  to the situation where it can be assumed that, on the 
basis of data relating to a previous period, dumpi ng is still causing injury.  Lastly, Mexico observes 
that, if the purpose of Article 3.1 of the  Anti-Dumping Agreement   were to counteract dumping 
causing injury at the present time, the Article should provide so expressly, which clearly it does not. 
22. Thus, Mexico contends that Ec onomía correctly established the investigation period and acted 
in a manner consistent with Articles 3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping Agreement .  
Consequently, Mexico requests the Appellate Body to reverse the Panel's findings to the contrary.   
(b) The Use of Six-month Periods in the Injury Analysis 
23. Mexico appeals the Panel's findings that Mexico acted inconsistently with Articles 3.1 and 3.5 
of the  Anti-Dumping Agreement   because Economía limited its injury  analysis to only six months of 
the years 1997, 1998, and 1999.   
24. Mexico alleges that the Panel's findings of inc onsistency are based on presumptions that have 
not been demonstrated and, therefore, are unfounde d.  Mexico considers that comparing the periods 
March to August of 1997, 1998, and 1999 does not imply that the analysis was not objective and not WT/DS295/AB/R 
Page 10  
 
based on positive evidence.  According to Mexico, the Panel erred because it assumed that, as a rule, 
information should be analyzed for full years;  th is implies that if any WTO Member conducts an 
injury analysis using parts of a year, and compar es them, a presumption arises that its methodology is 
not objective, and the Member therefore bears the bur den of proving that its analysis is objective.  
Mexico contends that this presumption is flawed, because it amounts to assuming that the  Anti-
Dumping Agreement   contains obligations with regard to matters not mentioned in the Agreement.  
Finally, Mexico argues that, even though it did not  have to prove that its methodology was objective, 
it submitted arguments to this effect, but  the Panel "simply disregarded" them.
42 
25. Mexico recalls that Economía conducted the inju ry analysis by comparing the period March 
to August 1997 with the corresponding periods in 1998 and 1999.  For Mexico, it is incorrect to 
assume, as did the Panel, that such comparison show s "the most negative side of the state of the 
domestic industry"43, because the indicators for March to August of a particular year are compared 
with the indicators for March to August of the other two years, and not with the indicators for September to February.  Mexico s ubmits that using comparable periods for the injury analysis was 
proper, because it eliminated any distortions that might have occurred had it examined two different 
time periods for the dumping and injury phases of the investigation.  Mexico also alleges that the 
Panel's position that the period March to August show s "the most negative side of the state of the 
domestic industry" relies on an uncertain premise:  for Mexico, the percentage by which imports of 
long-grain white rice in the March to August peri ods of 1998 and 1999 exceeded imports during the 
rest of the year was "practically negligible", whereas, in 1997, imports from the United States were 
lower between March and August than during the rest of the year.
44 
26. In its reasoning, the Panel expressed the view that there were some similarities between the 
situation before it and that discussed by the Appellate Body in  US – Hot-Rolled Steel , where certain 
parts of the domestic industry were not examined by the investigating authority.45  Mexico argues that 
the Appellate Body Report in  US – Hot-Rolled Steel   is inapplicable because, in the case at hand, 
Economía undertook a comparison of the periods Ma rch to August 1997, 1998, and 1999, and no 
information was disregarded in a comparison that  involved "structurally equivalent periods".46 
                                                      
42Mexico's appellant's submission, para. 77 (" simplemente los desestimó "). 
43Panel Report, para. 7.85. 
44Mexico's appellant's submission, para. 83 (" prácticamente desestimable "). 
45Panel Report, para. 7.84. 
46Mexico's appellant's submission, para. 88(c) (" periodos estructuralmente iguales ").  WT/DS295/AB/R 
 Page 11 
 
 
27. Thus, Mexico contends that the use of a si x-month period from 1997, 1998, and 1999 in the 
injury analysis was consistent with Articles 3.1 and 3.5 of the  Anti-Dumping Agreement , and 
accordingly requests the Appellate Body to re verse the Panel's findings to the contrary. 
(c) The Examination of the Volume and Price Effects of Dumped 
Imports 
28. Mexico appeals the Panel's finding that, in its injury analysis, Economía acted inconsistently 
with Articles 3.1 and 3.2 of the  Anti-Dumping Agreement   by failing to conduct an objective 
examination, based on positive evidence, of the volume and price effects of dumped imports.  
29. Mexico alleges that, contrary to what was st ated by the Panel, Economía properly established 
the facts relating to the trends in the volume of du mped imports.  For Mexico, this is proved by the 
structure of the Final Determination issued by Ec onomía, in which all the background, considerations, 
findings, and elements of the determination are set ou t consistent with Mexico's  obligations under the  
Anti-Dumping Agreement . 
30. According to Mexico, the Panel simply su mmarized the final determination made by 
Economía, without providing any reasons  to substantiate its determina tion that Mexico had violated 
the  Anti-Dumping Agreement   in its examination of the volume of dumped imports.  Mexico argues 
that the fact that Economía used the methodology described in the final determination implies no 
violation of the  Anti-Dumping Agreement   because that Agreement im poses no specific obligation 
with respect to the methodology to be used  to determine the volume of dumped imports. 
31. Mexico also submits that the Panel's statement that "the investigating authority consistently 
chose to make assumptions which negativ ely affected the exporters' interests"47 is "biased"48 and not 
supported by legal reasoning.  Acco rding to Mexico, Economía conducte d an injury analysis based on 
positive evidence because it considered  all the available relevant in formation and did not have the 
possibility of collecting any further information than that used during the investigation.  
32. Thus, Mexico requests the Appellate Body to reverse the Panel's finding that it did not act 
consistently with Article s 3.1 and 3.2 of the  Anti-Dumping Agreement   based on Economía's 
examination of the volume of dumped imports and their effect on prices for like products in the 
domestic market.   
                                                      
47Panel Report, para. 7.112. 
48Mexico's appellant's submission, para. 108 (" de manera parcial "). WT/DS295/AB/R 
Page 12  
 
3. Economía's Dumping Determination
 
(a) The Application of the Anti-Dumping Order to Farmers Rice and 
Riceland 
33. Mexico appeals the Panel's finding that Mexico acted inconsistently with Article 5.8 of the  
Anti-Dumping Agreement   because Economía did not terminate the investigation in respect of the two 
exporters that were found not to have been dumpi ng, and by not excluding them from the application 
of the anti-dumping duty order. 
34. Mexico submits that the Panel's finding is based on an erroneous interpretation of Article 5.8.  
Mexico contends that, instead of analyzing the mean ing of the term "investigation", the Panel focused 
on the term "margin of dumping" in the second sentence of Article 5.8.  The Panel's analysis, Mexico 
argues, does not follow the interpretative approach required by the  Vienna Convention .  According to 
Mexico, had the Panel analyzed the term "inv estigation", it would not have inferred from its 
interpretation of the term "margin of dumping" that "Article 5.8 of the [ Anti-Dumping Agreement ] 
requires the termination of the investigation, a nd thus the exclusion from the anti-dumping order of 
any exporter or producer with a below  de minimis   margin of dumping."49  In Mexico's submission, a 
measure may be applied to those exporters;  what is not permitted is to apply a positive anti-dumping 
duty to them.  To this end, Mexico emphasizes that a distinction must be made between the definitive 
anti-dumping duties and the particular act of the authority through which the duties are imposed.  The definitive anti-dumping duties do not constitute in th emselves a measure, the me asure being the act of 
the authority through which the duties are imposed.  Mexico contends that the  Anti-Dumping 
Agreement   does not prevent exporters for whom a  de minimis   margin was determined from being 
covered by such a measure. 
35. According to Mexico, the main function of  anti-dumping procedures is to conduct an 
examination with respect to products, not expo rters.  This suggests that the scope of the 
"investigation" referred to in Article 5.8 specifica lly concerns the product, and not the enterprise 
exporting the product.  Mexico contends that Artic le 5.8 addresses whether there should be an anti-
dumping procedure where there is not sufficient eviden ce to initiate an investigation.  Accordingly, 
Mexico submits, Article 5.8 refers to the termin ation of the proceeding as a whole, not to the 
termination of the investigation in respect of indivi dual exporters.  Mexico also argues that the term 
"investigation", as used in Article 5.8, refers to a stage in any anti-dumping proceeding, and not to 
action concerning individual exporters.   
                                                     
 
49Panel Report, para. 7.144.  WT/DS295/AB/R 
 Page 13 
 
 
36. Mexico contends that the Panel "ignore[d]"50 the context of Article 5.8, in particular, 
Article 3.3 of the  Anti-Dumping Agreement .  According to Mexico, Article 3.3 confirms that the 
relevant margin of dumping under Article 5.8 is the margin established in rela tion to the imports from 
each Member.  Mexico further argues that the Pa nel's interpretation of Article 5.8 leads "to a 
manifestly absurd and unreasonable result" that w ould make the application of anti-dumping measures 
unmanageable.51 
37. Mexico also submits that, even if the  de minimis   margin of dumping had to be calculated for 
each individual exporter or producer, Mexico  did not act inconsistently with the Anti-Dumping 
Agreement   because Economía terminated its investig ation when it was satisfied that the United 
States' exporters had a dumping marg in of zero per cent.  Accordi ng to Mexico, Economía was unable 
to determine with certainty whether the dumping margin was  de minimis   until the final determination 
was made.  Mexico argues that, because Economía termin ated the investigation at  that stage in respect 
of Farmers Rice and Riceland, it complied with Article 5.8. 
38. Consequently, Mexico requests the Appellate Body  to reverse the Panel's finding that Mexico 
acted inconsistently with Article 5.8 of the  Anti-Dumping Agreement   in its anti-dumping 
investigation.  
(b) The Application of a Facts Available-based Dumping Margin to 
Producers Rice 
39. Mexico appeals the Panel's finding that Mexico act ed inconsistently with Article 6.8, read in 
the light of paragraph 7 of Annex II to the  Anti-Dumping Agreement , because Economía calculated a 
margin of dumping on the basis of the facts availa ble for Producers Rice, an exporter that did not 
export long-grain white rice to Mexico during the period of investigation.  
40. Mexico alleges that the Panel did not act in acco rdance with the terms of reference applicable 
to the dispute, arguing that the United States did not make a claim on the basis of Article 6.8 and 
Annex II, but, rather, rested its claim on Article 9.4 of the  Anti-Dumping Agreement .  Mexico 
contends that, as the Panel rejected the United St ates' contention that the margin of dumping should 
have been calculated in accordan ce with Article 9.4, the Panel should have found that the United 
States' argument was without merit and that, as a resu lt, Mexico did not act inconsistently with the  
Anti-Dumping Agreement .  For Mexico, the Panel exceeded its terms of reference in moving on to  
                                                      
50Mexico's appellant's submission, para. 126 (" ignor[ó] "). 
51Ibid., para. 129 (" un resultado manifiestamente absurdo e irrazonable "). WT/DS295/AB/R 
Page 14  
 
analyze whether Mexico calculated the margin of  dumping for Producers Rice in conformity with 
Article 6.8 and Annex II.   
41. Thus, Mexico requests the Appellate Body to reverse the Panel's finding that Mexico acted 
inconsistently with Article 6.8 of the  Anti-Dumping Agreement   in applying a margin of dumping to 
Producers Rice based on the facts available.   
(c) The Requirement that Economía Identify Exporters or Producers 
Covered by the Investigation 
42. Mexico challenges the Panel's findings that  Economía's treatment of non-investigated 
exporters and producers was inconsistent with Articles 6.1, 6.8, 6.10, and 12.1 of the  Anti-Dumping 
Agreement ,  and paragraph 1 of Annex II thereto.  Mexico's appeal focuses on the Panel's assessment 
that, under these provisions, the "known" producer s or exporters include those of whom an 
investigating authority should reasonably be cons idered to have had knowledge, and that an 
investigating authority should take steps to find out  who are the exporters or producers covered by the 
investigation. 
43. Mexico argues that, under Article 6.10, the inv estigating authority is obliged to determine 
individual margins of dumping for those exporters or producers whose existence has been notified, 
but is not obliged to determ ine individual margins for  all  firms.  Mexico submits that Economía 
complied with Article 6.10 by calculating individual  margins of dumping for all known exporters and 
producers that took part in the investigation.  As regards the exporters that were not investigated 
individually, Mexico contends that Economía met its obligations under the  Anti-Dumping Agreement   
by giving the United States' authorities public notification of initiation of the investigation, a copy of the request to initiate an investigation and the annexes thereto, as well as the questionnaire for 
exporters and foreign producers.  Mexico argues that  an investigating authority has no obligation to 
take steps to find out who are the exporters or fore ign producers.  For Mexico, the Panel's reasoning is 
flawed because the Panel made an  a priori   assumption that the diplomatic authorities of the 
exporting Member do not have any obligation to ma ke their exporters or producers aware of the 
investigation, whereas such obligation is stat ed in footnote 15 to Article 6.1.1 of the  Anti-Dumping 
Agreement .  Mexico adds that it complied with Articles 6.1 and 12.1 of the  Anti-Dumping Agreement   
because there is no provision in the  Anti-Dumping Agreement   that requires an investigating authority 
to take any action in order to identify each and every one of the foreign producers or exporters.  WT/DS295/AB/R 
 Page 15 
 
 
44. Mexico also contends that, under Article 6.8, Economía was entitled to calculate a margin of 
dumping based on the facts available for the export ers and producers that were not investigated, 
because it met its obligations under Articles 6.1 and 6. 10, and the exporters and producers that were 
not investigated did not provid e the necessary information.   
45. Consequently, Mexico requests the Appellate Body to reverse the Panel's findings of 
inconsistency with Articles 6.1, 6.8, 6.10, and 12.1 of the  Anti-Dumping Agreement ,  and paragraph 1 
of Annex II thereto. 
4. The Foreign Trade Act  
(a) Preliminary Issues 
46. Mexico submits that the Panel made two errors with respect to  each   of the United States' "as 
such" claims against the FTA:  (i) in ruling on th ese claims notwithstanding the United States' failure 
to establish a  prima facie   case;  and (ii) in concluding that  each of the challenged FTA provisions 
was "mandatory", notwithstanding that Article 2 of the FTA gives Economía discr etion to ensure that 
those provisions are interpreted cons istently with the WTO agreements. 
47. Mexico contends that the Panel ruled on the Un ited States' challenges to provisions of the 
FTA where the United States had failed to make a  prima facie   case of inconsistency with respect to 
any of the challenged provisions.  According to Mexico, the United States' submission of the texts of the relevant provisions was insufficient to make a  prima facie   case, because the United States was 
required, by virtue of the Appellate Body decision in  US – Carbon Steel , to also submit evidence 
relating to the  operation   of the FTA provisions.  Mexico submits that such evidence might have 
included application of the law by executive branch officials, interpretation by domestic courts, or 
opinions of legal experts.  In the absence of such evidence, Mexico argues, the Panel made the case of 
WTO-inconsistency for the United States with resp ect to the challenged provisions of the FTA. 
48. Mexico alleges that the United States' claims w ith regard to the contested provisions of the 
FTA rest on the assertion that those provisions  require   the investigating authority to act in a manner 
inconsistent with the provisions of the  Anti-Dumping Agreement   and the  SCM Agreement .  
Consequently, the Panel's task, according to Mexico , was to ascertain whether those provisions of the 
FTA are in fact mandatory, and, if so, whether th is results in an inconsistency with Mexico's 
obligations under the WTO agreements.  Mexico c ontends that, if the Panel had found that the 
provisions challenged by the United States are not mandatory, the Panel would necessarily have found the United States' claims to be without merit. WT/DS295/AB/R 
Page 16  
 
49. Mexico alleges that the Panel erred in its findings with regard to the FTA because it 
"disregarded"
52 Mexico's arguments concerning the rele vance of Article 2 of the FTA, which 
establishes that provisions of the FTA may not be app lied in a manner inconsistent with the provisions 
of international treaties or agreements entered into  by Mexico.  In the light of Article 2, Mexico 
submits that the provisions of the FTA do not  mandate   that the investigating authority act in a 
particular way, but, instead, give it discretion to act  in a manner consistent with the WTO agreements.  
Had the Panel properly considered Mexico's argument s relating to Article 2, Mexico argues, the Panel 
would have concluded that the ch allenged FTA provisions are "discre tionary" rather than "mandatory" 
and, consequently, that they are not inconsistent with the  Anti-Dumping Agreement   or the  SCM 
Agreement .   
50. In the light of the above, Mexico requests the A ppellate Body to find that the Panel erred in 
making findings on claims in the absence of a  prima facie   case, and in "disregarding" Mexico's 
arguments relating to Article 2 of the FTA.  Con sequently, Mexico further requests the Appellate 
Body to reverse the Panel's findings with resp ect to the challenged provisions of the FTA.  
(b) Article 53  
51. Mexico contends that the Panel erred in fi nding that the 30-day period for responding to 
questionnaires—provided for in Article 6.1.1 of the  Anti-Dumping Agreement   and Article 12.1.1 of 
the  SCM Agreement —is to be granted to  all  exporters without exception.  According to Mexico, 
these provisions contain no such obligation;  this time period applies only to those that have received 
the corresponding questionnaire from the investigating authority, that is, only to exporters to whom 
the questionnaire has been sent.  In this respect, Mexico argues that it would be "illogical"53 to grant 
the above-mentioned period whenever an exporter or  foreign producer not previously known to the 
investigating authority comes forward, because doing so would undoubtedly cause delays in the 
investigation proceedings beyond the time-limits prescribed by Article 5.10 of the  Anti-Dumping 
Agreement   and Article 11.11 of the  SCM Agreement . 
52. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that 
Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the  Anti-Dumping Agreement   and 
Article 12.1.1 of the  SCM Agreement . 
                                                      
52Mexico's appellant's submission, para. 195(d) (" desestimó "). 
53Ibid., para. 230 (" ilógico ").  WT/DS295/AB/R 
 Page 17 
 
 
(c) Article 64  
53. Mexico appeals the Panel's finding that Article 64 of the FTA is inconsistent, as such, with 
Article 6.8 of the  Anti-Dumping Agreement , paragraphs 1, 3, 5, and 7 of Annex II thereto, and 
Article 12.7 of the  SCM Agreement . 
54. Mexico argues that Article 6.8 of the  Anti-Dumping Agreement   and Article 12.7 of the  SCM 
Agreement   permit an investigating authority to calcu late margins of dumping or subsidization for 
parties that do not supply the n ecessary information.  According to Me xico, if an interested party did 
not appear in the investigation or did not export during  the period of investigation, this means that the 
exporter in question did not provide the informa tion necessary for determining whether there is a 
margin of dumping or subsidization.  Viewed in this light, Mexico argues, Article 64 is not WTO-
inconsistent because it provides for margins to be cal culated on the basis of the facts available where 
interested parties do not provide the necessary informa tion, including where interested parties do not 
appear in the investigation or do not e xport during the investigation period.   
55. Mexico argues that Article 64 is consistent  with paragraph 3 of Annex II to the  Anti-
Dumping Agreement   inasmuch as that paragraph establish es the obligation to take into account all 
verifiable information.  If an exporter does not pr ovide the necessary inform ation, however, there is 
no verifiable information to be taken into account, an d, thus, recourse to facts available in the absence 
of such information is not inconsistent with the stated obligation. 
56. Mexico argues that Article 64 is consistent  with paragraph 5 of Annex II to the  Anti-
Dumping Agreement   inasmuch as that paragraph provides th at the investigating authority shall not 
disregard information provided by the exporter, even if that information is not ideal in all respects.  
According to Mexico, paragraph 5 indicates that, in order for such information to be considered, it 
must be ideal in at least one respect.  Mexico contends that if an exporter does not provide the 
information needed to determine its dumping margin, the information cannot be said to be ideal in at 
least one respect, because the information is "totally lacking".54   
57. Mexico further argues that Article 64 is consiste nt with paragraphs 1 and 7 of Annex II to the 
Anti-Dumping Agreement .  Mexico submits that pa ragraph 1 provides that, if the interested party does 
not supply the information required, the investigati ng authority shall be free to make determinations 
on the basis of the facts available, including th ose contained in the petition.  Moreover, Mexico 
argues, paragraph 7 explicitly provides that, if an interested party does not cooperate and fails to 
submit relevant information, this could lead to a result that is less favourable  to the interested party 
                                                      
54Mexico's appellant's submission, para. 243(b) (" la inexistencia absoluta de información "). WT/DS295/AB/R 
Page 18  
 
than if it had cooperated.  Mexico contends that , as paragraph 7 expressly provides that there may be 
such a less-favourable result, there is no basis to reject the option of applying the highest margin 
calculated, as in Article 64, b ecause this result would fall under the category of less-favourable results 
that may be applied to an exporter or foreign produ cer that does not cooperate.  Therefore, in Mexico's 
submission, paragraphs 1 and 7 of  Annex II specifically contemplate the use of facts available as 
provided for in Article 64. 
(d) Article 68  
58. Mexico argues that the Panel erred in determ ining that, even though Article 5.8 of the  Anti-
Dumping Agreement   does not apply to reviews, Article 68 of  the FTA is inconsistent with it because 
the logical consequence of its exclusion is that fo reign producers or exporters may not be subject to 
review.  Mexico submits that the scope of Article 5.8 of the  Anti-Dumping Agreement   and 
Article 11.9 of the  SCM Agreement   is limited to the original investigation:  once the investigation 
has ended, Article 5.8 ceases to apply.  Because Arti cle 68 applies solely to events subsequent to the 
investigation—that is, to reviews—the provision bears no relation to the above-mentioned Articles 
and thus cannot properly be found to be inconsistent with them. 
59. Mexico also contends that Article 5.8 of the  Anti-Dumping Agreement   and Article 11.9 of 
the  SCM Agreement   make a clear reference to the moment at which an investigation should be 
terminated if the margin of dumping is  de minimis , namely, the moment at which the investigating 
authority determines that the said margin of dumping is  de minimis .  In this respect, Mexico explains 
that Economía is unable to determine with cer tainty whether the margin of dumping is  de minimis   
until the final determination of the investigation.  According to Mexico, Article 68 does not prevent 
Economía from terminating the investigation when it is sure of the amount of the dumping margin, 
that is, when it makes a final determination in the investigation concerned.  Thus, Mexico argues, in 
the case of exporters for whom a below- de minimis   duty has been established in the final 
determination, the investigation is properly termin ated at that time, consistent with the relevant 
provisions of the  Anti-Dumping Agreement   and the  SCM Agreement .   
60. In addition, Mexico alleges that the Panel erre d in finding that definitive measures may not be 
applied to exporters for whom a  de minimis   margin of dumping or subsidization has been 
determined.  According to Mexico, duties are not a measure as such, the measure being the action by 
the authority through which the duties are applied.   Investigating authorities may therefore apply 
definitive measures to those exporters provided th at they do not impose a positive anti-dumping or 
countervailing duty on them.  Indeed, this is consistent with the pr actice of Mexico, where exporters 
are included in the definitive measure—which estab lishes firms' dumping margins—but this does not  WT/DS295/AB/R 
 Page 19 
 
 
imply that, if their margins are  de minimis , an anti-dumping or countervailing duty will, in fact, be 
imposed on them. 
61. With regard to the element of "representativen ess" provided for in Article 68, Mexico asserts 
that there are no treaty provisions prohibiting the sh owing of a "representative" volume of export sales 
as a prerequisite to the calculation of a margin in reviews.  According to Mexico, the only obligation 
laid down by Articles 9.3 and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  SCM 
Agreement   is that the reviews be  initiated   by the investigating authority upon request of certain 
interested parties.  The text contains no guide lines, however, on how the reviews are to be  conducted .  
As Article 68 does not preclude the mandated  intitiation   of reviews, Mexico submits, it is not 
inconsistent with the aforementioned treaty provisions.  
62. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that 
Article 68 of the FTA is inconsistent, as such, with Articles 5.8, 9.3, and 11.2 of the  Anti-Dumping 
Agreement ,  and Articles 11.9 and 21.2 of the  SCM Agreement .  
(e) Article 89D  
63. In Mexico's view, the texts of Article 9.5 of the  Anti-Dumping Agreement   and Article 19.3 
of the  SCM Agreement   contain no prohibition on an agency requiring that exporters demonstrate a 
"representative" volume of export sales in order to r eceive a calculated margin in a review.  In the 
absence of such a prohibition, Mexico argues, it must  be considered that th e negotiators of those 
Agreements intended to permit agencies to impose su ch requirements.  As a result, Mexico submits, 
Article 89D of the FTA is not inconsistent  with Mexico's obligations under the  Anti-Dumping 
Agreement   and the  SCM Agreement . 
64. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that 
Article 89D of the FTA is inconsistent , as such, with Article 9.5 of the  Anti-Dumping Agreement   and 
Article 19.3 of the  SCM Agreement . 
(f) Article 93V  
65. Mexico argues that the Panel failed to comply  with its obligations under Article 11 of the 
DSU in finding that Article 93V of the FTA is in consistent, as such, with Article 18.1 of the  Anti-
Dumping Agreement   and Article 32.1 of the  SCM Agreement .  
66. Mexico submits that the specific measure that is  the subject of the United States' complaint is 
the  Spanish   text of the FTA, in this case, of Article 93V.  The Panel, however, based its finding 
exclusively on an  English   translation of the contested measu re, which does not reflect precisely the WT/DS295/AB/R 
Page 20  
 
meaning of the Spanish text of the article in questi on.  Specifically, Mexico contends that the Panel's 
reliance on the English translation led it to  conclude—incorrectly—that Article 93V  mandates   the 
imposition of fines in certain circumstances. 
67. Mexico also alleges that the Panel failed to an alyze those additional elements of Article 93V 
that indicate clearly that the provision is not mandatory.  According to Mexico, Article 93V expressly provides that fines shall be imposed only when Econom ía itself considers that the remedial effect of 
anti-dumping or countervailing duties is being undermined ;  and, even if Economía considers this to 
be the case, it is required to hear the arguments of the alleged offender and it may then conclude that 
the impact of the anti-dumping or countervailing dut ies has not been affected, in which case no fine 
would be imposed.  Thus, Mexico argues, it is "illogical"
55 to assume, as the Panel did, that Economía 
has no discretion to impose a fine. 
68. Accordingly, Mexico requests the Appellate Body to find that the Panel failed to comply with 
its obligations under Article 11 of the DSU and to re verse the Panel's finding that Article 93V of the 
FTA is inconsistent, as such, with Article 18.1 of the  Anti-Dumping Agreement   and Article 32.1 of 
the  SCM Agreement . 
(g) Articles 68 and 97  
69. Mexico argues that nothing in Article 68 of the FTA bears any relation to the prohibition 
alleged by the United States against the conduct of reviews while judicial proceedings are ongoing.  
Similarly, with respect to Article 97of the FTA, Mexico alleges that the provision does not prevent 
Economía from undertaking reviews as required by the  Anti-Dumping Agreement   and the  SCM 
Agreement .  According to Mexico, because neither of the challenged provisions contains the 
prohibition alleged by the United States, the Panel should have found that the United States had not 
made a  prima facie   case of inconsistency with respect to  either Article 68 or Article 97. 
70. Mexico further argues that Articles 68 and 97 of  the FTA are consistent with Articles 9.3 
and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  SCM Agreement , because those 
provisions require that reviews be gran ted upon request only once a duty becomes  definitive .  The 
Panel understood these provisions of the Agreements  to require reviews once duties have been 
imposed by a final determination following an investig ation.  Mexico submits that this interpretation 
is in error, however, because duties become definitive only upon the conclusion of judicial 
proceedings.  Mexico contends that this ensures le gal certainty for exporters, who are not required to 
pay the duties until the exporter has had an opportunity to exhaust its appeals of the definitive 
                                                      
55Mexico's appellant's submission, para. 283(c) (" ilógico ").  WT/DS295/AB/R 
 Page 21 
 
 
measure and the final liability of the exporter is th ereby established.  Because duties are not definitive 
before that point, and Articles 68 and 97 do not prevent reviews once judicial proceedings have 
concluded, Articles 68 and 97 are not inconsiste nt with Mexico's obligations under the  Anti-Dumping 
Agreement   or the  SCM Agreement .  
71. Consequently, Mexico requests the Appellate Body to reverse the Panel's finding that 
Articles 68 and 97 of the FTA are inconsistent, as such, with Articles 9.3 and 11.2 of the  Anti-
Dumping Agreement   and Article 21.2 of the  SCM Agreement . 
B. Arguments of the United States – Appellee 
1. Article 6.2 of the DSU  
72. The United States alleges that Mexico "mischar acterizes" the Panel's finding under Article 6.2 
of the DSU because the Panel made no findings on wh ether it was consistent with Article 6.2 of the 
DSU to include claims in a panel request that were  not included in the request for consultations.  
According to the United States, Mexico never made such an allegation, but argued instead that it was 
inconsistent with Articles 4.5 and 4.7 of the DSU to include claims for the first time in the panel 
request.  Nevertheless, the United States submits, even if Mexico had made that argument, the Panel 
would have rejected it based on th e same reasoning the Panel applied in rejecting Mexico's arguments 
under Article 4 of the DSU.   
73. The United States argues that it is well established that a panel's terms of reference are 
established by the panel request, not by the request for consultations.  The United States opines that 
"it would make little sense" to limit the legal claims that may be included in a panel request to those 
included in the request for consultations, because one  of the purposes of consultations is to foster a 
better understanding of the relevant measures and c oncerns of the various Members in order to 
promote a "satisfactory adjustment of the matter".56  The United States further notes that the Appellate 
Body found, in  Brazil – Aircraft ,  that there is no requirement to have a "precise and exact identity" 
between the  measures   included in the request for consultati ons and those in the panel request and, 
thus, the same logic would apply with respect to the  legal   basis of the complaint.57   
74. The United States submits that the DSU reflec ts the difference between panel requests and 
requests for consultations by providing different  requirements for each.  According to the United 
States, although the DSU requires that a panel request provide " a brief summary   of the legal basis of 
                                                      
56United States' appellee's submission, para. 28.  
57Ibid., para. 29 (referring to Appellate Body Report, Brazil – Aircraft , para. 132). WT/DS295/AB/R 
Page 22  
 
the complaint sufficient to present the problem clearly"
58, it requires that requests for consultations 
provide only " an indication   of the legal basis for the complaint".59  Finally, the United States 
contends that Mexico's practice in WTO dispute settlement proceedings indicates that it does not 
believe its own arguments on this issue.  
75. The United States requests the Appellate Body to uphold the Panel's finding that the United 
States' claims set out in the panel request, includ ing those not initially raised in the request for 
consultations, were properly with in its terms of reference. 
2. Economía's Injury Determination  
(a) The Use of a Period of Investigation Ending in August 1999 
76. The United States contends that Mexico's arguments on appeal regarding the use of a period 
of investigation ending in August 1999 provide "no basis" for reversing the Panel's finding on this 
issue.60  According to the United States, Mexico's argument—that the United States' claim on this 
issue was premised on an inconsis tency with Article 5.1 of the Anti-Dumping  Agreement —is a 
"transparently incorrect assertion".61  The United States argues that its panel request refutes this 
argument, because it contains no allegation of inconsistency with Article 5.1 of the  Anti-Dumping 
Agreement .  
77. In addition, the United States disagrees with  Mexico's argument that, because the  Anti-
Dumping Agreement   does not so state explicitly, it may not be concluded that the purpose of an anti-
dumping investigation is to offset dumping that is cau sing injury at the time of the investigation.  The 
United States submits that Mexico fails to account  for the language in Article VI of the GATT 1994 
providing that anti-dumping duties may be imposed "to offset or prevent" dumping.  Mexico also "disregard[s]" other textual evidence referred to by the Panel in reaching its conclusions, including the 
use of the present tense in the relevant provisions.
62   
78. As regards Mexico's assertion that the Panel failed to analyze the "applicability"63 of the data 
used by Economía, the United States argues that the Panel, in fact, did so and that Mexico ignores a 
series of the Panel's factual findings that support th e Panel's conclusion that Economía failed to make 
                                                      
58Article 6.2 of the DSU. (emphasis added) 
59Article 4.4 of the DSU. (emphasis added) 
60United States' appellee's submission, para. 44. 
61Ibid. 
62Ibid., para. 47. 
63Ibid., para. 49 (quoting Mexico's appellant's submission, para. 61 (" la aplicabilidad ")).  WT/DS295/AB/R 
 Page 23 
 
 
a determination of injury based on positive evidence and involving an objective ex amination.  Finally, 
with respect to Mexico's argument that the Pa nel should have found that  its interpretation was 
"permissible" under Article 17.6(ii) of the  Anti-Dumping Agreement ,  the United States maintains 
that it is not clear how Mexico's interpretation differs from the Panel's interpretation of the anti-
dumping provisions at issue.  
79. Consequently, the United States requests the Appellate Body to uphold the Panel's finding 
that Mexico acted inconsistently with Ar ticles 3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping  Agreement   
because Economía based its injury determination on a period of investigation that ended more than 
15 months before the initiation of the investigation.   
(b) The Use of Six-Month Periods in the Injury Analysis 
80. The United States agrees with the Panel's findi ng that Economía's decision to "ignore" half 
the injury data for each of the years in the period of investigation was inconsistent with Articles 3.1 
and 3.5 of the  Anti-Dumping Agreement .64  According to the United St ates, Mexico's arguments on 
this issue "mischaracterize" the Panel's legal finding s, "disregard" its factual findings, and provide "no 
basis" for reversing the Panel's conclusions.65  The United States observes that, whereas Economía 
established a three-year period of investigation and collected data for the entirety of that period, it 
disregarded half the data it had collected.  The United States submits that it established a  prima facie   
case that Economía's approach was inconsistent with Articles 3.1 and 3.5 of the  Anti-Dumping 
Agreement , and that Mexico failed to provide a convin cing and valid reason explaining its approach 
and thereby rebutting the  prima facie  case.   
81. The United States underscores that the Panel b ased its findings on Economía's own published 
determinations.  It adds that, as factual findings, these points are not  within the scope of appellate 
review.  According to the United States, the Appellate  Body should also reject the table submitted in 
paragraph 83 of Mexico's appellant's submission, because there is  no uncontroverted basis to conclude 
that the data in Mexico's table accurately reflect  the true level of imports  of long-grain white rice 
during the three-year period of investigation regarding injury.  
82. In the light of the above, the United States requ ests the Appellate Body to uphold the Panel's 
finding that Mexico acted inconsistently with Articles 3.1 and 3.5 of the  Anti-Dumping Agreement   
by limiting its injury analysis to only six months of the years 1997, 1998, and 1999.  
                                                      
64United States' appellee's submission, para. 53. 
65Ibid., para. 55. WT/DS295/AB/R 
Page 24  
 
(c) The Examination of the Volume and Price Effects of Dumped 
Imports 
83. According to the United States, the Panel co rrectly concluded as a matter of fact that 
Economía based its determination of import volumes and price effects on assumptions instead of 
facts.  The United States adds that the Panel explai ned at length why it so concluded and, therefore, 
why Economía's analysis was inconsistent w ith the requirements of Article 3 of the  Anti-Dumping 
Agreement .  The United States emphasizes that an inves tigating authority's ability to devise its own 
methodology for determining injury does not mean th at the investigating authority is free to use a 
methodology that results in an investigation that  is not objective and based on positive evidence.   
84. As regards Mexico's claim that the Panel's an alysis was "biased", the United States points out 
that Mexico has made no claims under Article 11 of  the DSU and, therefore, this claim should be 
rejected.
66  Finally, the United States disagrees with Me xico's assertion that it was not possible for 
Economía to collect additional information.  Acco rding to the United States, Economía could have 
gathered more accurate information if it had sen t its anti-dumping questionnaire to a greater number 
of exporters and if it had referred to the  pedimentos ("customs declarations").  
85. The United States requests the Appellate Body to uphold the Panel's finding that Mexico 
acted inconsistently with Articles 3.1 and 3.2 of the  Anti-Dumping Agreement   by failing to conduct 
an objective examination based on positive eviden ce of the volume and price effects of dumped 
imports as part of its injury analysis. 
3. Economía's Dumping Determination  
(a) The Application of the Anti-Dumping Order to Farmers Rice and 
Riceland 
86. The United States agrees with the Panel that the term "margin of dumping" in the second and 
third sentences of Article 5.8 refers to the  individual   margin of dumping of an exporter or producer, 
rather than a  country-wide   margin.  According to the United States, further support for the Panel's 
finding can be found in the third sentence of Artic le 5.8, because the term "export price" mentioned 
therein is inherently firm-specific, not country-wide. 
87. For the United States, none of Mexico's argumen ts provides a basis for reversing the Panel's 
finding that Mexico acted inconsiste ntly with Article 5.8 of the  Anti-Dumping Agreement .  The 
United States argues that Mexico failed to explai n why it believes the Pane l would have reached a 
different conclusion had it examined the meaning of  the term "investigation" and the phrase "shall be 
                                                      
66United States' appellee's submission, para. 76.  WT/DS295/AB/R 
 Page 25 
 
 
terminated promptly".  The United States also argu es that Mexico's attempt to distinguish between the 
imposition of a measure and the levying of duties is  incorrect, because such distinction would imply 
that an anti-dumping measure might be imposed in cases where all of the margins are below  
de minimis , or where the investigating authority reaches a negative determination of injury (as long as 
no duties are collected).   
88. According to the United States, neither Article 5.8 nor Article 1 of the  Anti-Dumping 
Agreement   can be construed to permit Members to in clude in the scope of an anti-dumping measure 
an exporter or producer that is investigated and found not to be dumping, because in such 
circumstances the exported products cannot be found to be dumped imports that are causing injury to 
the domestic industry.  Furthermore, the United States considers that Article 3.3 of the  Anti-Dumping 
Agreement , to which Mexico refers, is an injury prov ision that has nothing to do with the dumping 
determination.  In any event, the United States submits, Article 3.3 shows that when the drafters 
intended for a particular calculation to be done on a country-wide basis, they said so explicitly.   
89. The United States contends that an investiga ting authority can conduct a single investigation 
of multiple firms, and then terminate its investigatio n with respect to specific firms, by stating in its 
final determination that it will exclude from the meas ure those firms that were investigated and found 
not to be dumping.  Accordingly, the United States argues, Mexico is wrong in stating that the Panel's interpretation would lead to a manifestly absurd and unreasonable result.  Finally, the United States 
submits that Mexico's argument—that Economía acted consistently with Article 5.8 because it 
terminated the investigation with respect to Fa rmers Rice and Riceland as soon as it had concluded 
they had zero margins—is not credible, because Economía applied the anti-dumping measure to both 
firms. 
90. Accordingly, the United States requests the Appella te Body to uphold the Panel's finding that 
Mexico acted inconsistently with Article 5.8 of the Anti-Dumping Agreement by not terminating the 
investigation with respect to Farmers Rice and Riceland and by not excluding them from the 
application of the definitive anti-dumping measur e, notwithstanding that Economía found that 
Farmers Rice and Riceland were not dumping. 
(b) The Application of a Facts Available-based Dumping Margin to 
Producers Rice 
91. The United States submits that Mexico mak es the "perplexing" assertion that the United 
States never claimed that the facts available-based anti-dumping margin was inconsistent with Mexico's WTO obligations, and that the Panel, ther efore, exceeded its terms of reference in so WT/DS295/AB/R 
Page 26  
 
deciding.
67  The United States underscores that it specifically cited paragraph 7 of Annex II to the  
Anti-Dumping Agreement   in the panel request, and explained in its submissions to the Panel why it 
considered that the margin of dumping applied to Pr oducers Rice was inconsistent with paragraph 7 of 
Annex II. 
92. Accordingly, the United States requests the Appella te Body to uphold the Panel's finding that 
Mexico acted inconsistently with Article 6.8 of the  Anti-Dumping Agreement  and paragraph 7 of 
Annex II thereto in its application of a facts available-based dumping margin to Producers Rice.   
(c) The Requirement that Economía Identify Exporters or Producers 
Covered by the Investigation 
93. The United States agrees with the Panel's analys is of the scope of Article 6.10 of the  Anti-
Dumping Agreement .  According to the United States, the Pa nel correctly found that Economía acted 
inconsistently with  Article 6.10 "by 'remaining entir ely passive in the identification of exporters or 
producers interested in the investigation, and by not calculating an individual margin of dumping for 
each exporter or producer that was known or should reasonably have been known' to it."68  The United 
States adds that, contrary to what Mexico suggests, the Panel did not find that Article 6.10 requires an 
investigating authority to identify and calculate an individual margin of dumping for  every   exporter 
or producer of the subject merchandise.  
94. The United States also agrees with the Panel's conclusion that an investigating authority 
cannot apply the facts available to a particular e xporter or producer without first sending the exporter 
or producer a copy of its questionnaire and asking it to reply.  For the United States, Mexico's 
approach is wrong, because it focuses solely on the text of Article 6.8 and does not take into account 
other provisions of the  Anti-Dumping Agreement ,  such as Article 6.1 a nd paragraph 1 of Annex II 
thereto.  The United States submits that Economía fail ed to provide to all of the interested parties in 
the investigation the notice required by Article 6. 1 and, consequently, contrary to what Mexico 
suggests, Economía did not act consis tently with Article 6.1.3.  Accordingly, the United States argues, 
Economía could not apply a facts available-based ma rgin to the exporters or producers for whom it 
did not meet its obligations under Article 6.1. 
95. According to the United States, there is no textua l basis for Mexico's argument that it was the 
United States Government, and not Economía, that  had an obligation to identify and notify the 
exporters and producers that Economía was purporting to investigate.  The United States adds that 
footnote 15 to Article 6.1.1 of the  Anti-Dumping Agreement   does not create an independent 
                                                      
67United States' appellee's submission, para. 100. 
68Ibid., para. 108 (quoting Panel Report, para. 7.201).  WT/DS295/AB/R 
 Page 27 
 
 
obligation for the exporting government to iden tify exporters and producers covered by the 
investigation.  Finally, the United States submits that the Panel properly found that Economía acted 
inconsistently with Article 12.1 of the  Anti-Dumping Agreement   by failing to provide notice that it 
had initiated an investigation to each of the inter ested parties known to have an interest in the 
investigation.  
96. The United States, therefore, requests the Appella te Body to uphold the Panel's finding that 
Mexico acted inconsistently with Articles 6.1, 6.8, 6.10, and 12.1 of the  Anti-Dumping Agreement   
and paragraph 1 of Annex II thereto in its applica tion of a facts available-based dumping margin to 
the United States producers and exporters that it did not investigate. 
4. The Foreign Trade Act  
(a) Preliminary Issues 
97. The United States submits that, although Mexico  argues that the Panel failed to address 
Mexico's arguments concerning Article 2 of the FTA, Mexico concedes in its appellant's submission 
that the Panel did, in fact, address them.  Furt hermore, according to the United States, Mexico 
emphasized before the Panel that each of the ac tions required by the cha llenged FTA provisions was 
consistent with Mexico's WTO obligations.  In this  respect, the United States argues, Mexico fails to 
explain how Article 2 could "override the clear re quirements" of the challenged provisions, when 
Mexico sees no conflict between the pr ovisions and its WTO obligations.69 
98. The United States, therefore, requests the Appella te Body to uphold the Panel's finding that 
Article 2 of the FTA does not prevent the Panel from finding that other FTA provisions are 
inconsistent, "as such", with Mexico's WTO obligations.   
(b) Article 53  
99. According to the United States, the disagreement  between the parties regarding Article 53 of 
the FTA centred not on the meaning of Article 53, but  on the proper interpretation of Article 6.1.1 of 
the  Anti-Dumping Agreement   and Article 12.1.1 of the   SCM Agreement.   The United States agrees 
with the Panel that, pursuant to the plain language  of these treaty provisions, an exporter is entitled to 
a 30-day response time regardless of when it receives the questionnaire.  Mexico's interpretation—that 
these provisions require a 30-day response time  only  when an authority sends the questionnaire to an 
interested party at the  time of initiation   of the investigation—can be supported only by reading words 
into the provisions that are not there.   
                                                      
69United States' appellee's submission, para. 123. WT/DS295/AB/R 
Page 28  
 
100. In addition, the United States contends that, contra ry to Mexico's assertion, the panel report in  
Argentina – Poultry Anti-Dumping Duties   does not support Mexico's interpretation of the treaty.  
According to the United States, Mexico is "taking the  Argentina – Poultry Anti-Dumping Duties   
language out of context and ignor ing other language in that repor t which undermines its own position 
and plainly supports" the Panel's findings.
70   
101. Consequently, the United States requests the Appellate Body to uphold the Panel's finding 
that Article 53 of the FTA is inconsistent, as such, with Article 6.1.1 of the  Anti-Dumping Agreement   
and Article 12.1.1 of the   SCM Agreement.  
(c) Article 64  
102. The United States contests Mexico's argument th at the Panel should have found Article 64 of 
the FTA consistent with para graph 3 of Annex II to the  Anti-Dumping Agreement   because that 
paragraph requires investigating authorities to take info rmation into account only if it is "verifiable".  
The United States submits that Article 64 requires Economía to apply the highest facts available-
based margin to firms that did not appear in the investigation or did not export the subject merchandise during the period of investigation.  T hus, according to the United States, even if these 
firms submit "verifiable" information, Economía ma y not take it into account unless it results in the 
highest facts available-based margin. The United States argues that the failure to take such 
information into account, without regard to the eff ect it might have on the ultimate margin, renders 
Article 64 inconsistent with  paragraph 3 of Annex II. 
103. In addition, the United States disagrees with Me xico's argument that the Panel should have 
found Article 64 consistent with pa ragraph 5 of Annex II to the  Anti-Dumping Agreement   because 
that paragraph entitles an investigating authority to re ject information that is not ideal in at least one 
respect.  The United States submits that paragraph 5 does not authorize an investigating authority to 
disregard such information if the interested party that  submitted it acted to the best of its ability.  By 
requiring Economía to apply always the highest fa cts available-based marg in, Article 64 prevents 
Economía from considering whether a party has acted to  the best of its ability.  Therefore, the United 
States argues that Article 64 is inconsiste nt with paragraph 5 of Annex II.   
104. The United States further contends that the Pa nel correctly determined that Article 64 is 
inconsistent with paragraphs 1 and 7 of Annex II to the  Anti-Dumping Agreement .  The United States 
asserts that paragraph 1 requires the investigating aut hority to specify the information required and to  
                                                     
 
70United States' appellee's submission, para. 127 (referring to Mexico's appellant's submission, 
paras. 229 and 233(b), in turn quoting Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.145).  WT/DS295/AB/R 
 Page 29 
 
 
ensure that the interested party is aware that th e investigating authority may make a determination 
based on the facts available if the party fails to  supply the requested data.  Article 64, however, 
requires Economía to apply the highest fact available-based margin in  all  cases, even if the authority 
fails to provide the notice required by paragraph 1 of Annex II.  Regarding paragraph 7 of Annex II, 
the United States argues that it permits an investigating authority to base its findings on secondary sources—such as the petition—provided that the i nvestigating authority does so "with special 
circumspection", including by checking other, indepe ndent sources.  According to the United States, 
Article 64 is inconsistent with paragraph 7 of Annex II because it requires Economía to apply the 
highest facts available-based margin in  all  cases, thereby preventing Economía from exercising 
special circumspection.    
105. In view of the above, the United States requ ests the Appellate Body to uphold the Panel's 
finding that Article 64 of the FTA is incons istent, as such, with Article 6.8 of the  Anti-Dumping 
Agreement   and paragraphs 1, 3, 5, and 7 of Annex II thereto, and Article 12.7 of the  SCM 
Agreement . 
(d) Article 68  
106. The United States contends that the Panel co rrectly found that Article 68 of the FTA is 
inconsistent, as such, with Article 5.8 of the  Anti-Dumping Agreement   and Article 11.9 of the  
SCM Agreement  because it requires Economía to conduct re views of exporters and producers that 
were investigated and found not to be dumping or  receiving countervailable subsidies.  According to 
the United States, Mexico's arguments in response to  the Panel's findings are similar to the arguments 
it raised above with respect to Farmers Rice and Riceland
71, and are "similarly without merit".72 
107. The United States argues that, contrary to Mexico's assertion, the Panel addressed—and 
rejected—Mexico's argument that Article 5.8 of the  Anti-Dumping Agreement   cannot be the basis for 
a finding of inconsistency with respect to Article  68 of the FTA because Article 5.8 applies only to 
investigations.  As the Panel correctly found, if Article 5.8 requires an investigating authority to 
exclude a particular exporter from an anti-dumping measu re imposed at the end of an investigation, it 
necessarily follows that the investigating authorit y cannot subsequently subject that exporter to a 
review under the very measure from which it should have been excluded in the first instance.  The 
United States further argues that Article 17.4 of the  Anti-Dumping Agreement   is irrelevant to this 
issue, and that taking Mexico's argument on this prov ision to its "logical conclusion" would permit an 
investigating authority to impose an anti-dumping measure on exporters in cases where all of the 
                                                      
71See  supra , paras. 89-90.  
72United States' appellee's submission, para. 144. WT/DS295/AB/R 
Page 30  
 
margins are below  de minimis , or where the investigating author ity reaches a negative determination 
of injury, so long as no duties are collected.
73   
108. With respect to Articles 9.3 and 11.2 of the  Anti-Dumping Agreement   and  Article 21.2 of the  
SCM Agreement , the United States submits that the Panel correctly found that none of these WTO 
provisions permits an investigating authority to re quire an exporter to demonstrate, as a condition for 
obtaining a review, that its sales during the review  period were "representative".  According to the 
United States, the "primary basis" of Mexico's appe al of the Panel's finding is a "mischaracterization" 
of the relevant provisions of the  Anti-Dumping Agreement   and the  SCM Agreement .74  The United 
States submits that Mexico's argument—that the provi sions at issue require th e investigating authority 
to  initiate   reviews, but do not contain any obligation with respect to the  conduct   of those reviews—
"elevate[s] form over substance", because refusing to  complete a review of a firm that does not 
demonstrate a "representative" volume of sales is tantamount to refusing to initiate the review.75  
Furthermore, none of these provisions permits a Me mber to condition the conduct of a review on a 
showing of a "representative" volume of sales, and none  limits the obligations contained therein to the 
 initiation   of a review.  Therefore, the United States ar gues, an investigating authority cannot meet its 
obligation to "review" the need for the duty mere ly by initiating the review and then refusing to 
determine a re-calculated margin.  
109. In addition, the United States contends that Me xico "misunderstands" th e interaction between 
the customary rules of treaty interpreta tion and the requirements of Article 68.76  Although Mexico 
correctly notes that the fact that a treaty provisio n is silent on a specific issue must have some 
meaning, Mexico fails to recognize that the WTO provisions at issue are not silent but, instead, "quite explicit" with respect to the limited requirements that  an exporter or producer must meet in order to be 
entitled to reviews.
77 
110. Accordingly, the United States requests the Appella te Body to uphold the Panel's findings that 
Article 68 of the FTA is inconsistent, as such, with Articles 5.8, 9.3, and 11.2 of the  Anti-Dumping 
Agreement , and Articles 11.9 and 21.2 of the  SCM Agreement.  
                                                      
73United States' appellee's submission, para. 147. 
74Ibid., para. 152. 
75Ibid. 
76Ibid., para. 155. 
77Ibid.  WT/DS295/AB/R 
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(e) Article 89D  
111. According to the United States, the issue with r espect to Article 89D of the FTA is virtually 
identical to that in relation to Article 68 of the FTA.78  The United States submits that Mexico again 
"misunderstand[s]" the interaction between the cust omary rules of treaty interpretation and the FTA 
provision at issue.79  According to the United States, and contrary to Mexico's assertion, Article 9.5 of 
the  Anti-Dumping Agreement   and Article 19.3 of the  SCM Agreement   are not silent with respect to 
the requirements that an exporter or producer must meet  in order to be entitled to  an expedited review.  
Therefore, the United States submits, the Panel correctly found that these provisions do not permit an 
investigating authority to deny expedited reviews to exporters and producers that do not demonstrate a 
"representative" volume of exports during the review period.80  
112. The United States accordingly requests the Appella te Body to uphold the Panel's finding that 
Article 89D of the FTA is inconsistent , as such, with Article 9.5 of the  Anti-Dumping Agreement   and 
Article 19.3 of the  SCM Agreement .   
(f) Article 93V  
113. The United States contends that, although Mexico does not contest directly the Panel's 
conclusion that Article 93V of the FTA is a specif ic action against dumping or  subsidization, Mexico 
asserts that the Panel failed to comply with its obligations under Article 11 of the DSU because it 
analyzed neither the Spanish version of Article 93V  nor those parts of the provision that allegedly 
show that it is discretionary.  The United Stat es submits that "[n]either assertion has merit".81 
114. According to the United States, Mexico's argument that the Panel based its findings 
exclusively on the English version of Article 93V is "belied" by the fact that the English version of 
the Panel Report addresses both the Spanish text of Article 93V and its English translation.82  The  
United States further argues that the United States submitted the English translation of Article 93V 
drawn from Mexico's WTO notifications and that Mexico did not contest the accuracy of the  
                                                      
78See  supra , paras. 109-110. 
79United States' appellee's submission, para. 160. 
80Ibid., para. 159 (quoting Panel Report, para. 7.266). 
81Ibid., para. 164. 
82Ibid. (referring to Panel Report (in English and Spanish), para. 7.279 and footnote 229 thereto). WT/DS295/AB/R 
Page 32  
 
translation before the Panel.
83  The United States submits that Mexico has not explained how it would 
be inconsistent with Article 11 of the DSU for the Panel to examine the English version of Mexico's 
own WTO notification when Mexico never contested it. 
115. The United States contends that Mexico's alle gation that the Panel failed to examine other 
parts of Article 93V also lacks merit because the Pa nel Report explicitly sets out the text in question.  
Thus, there is no basis for Mexico's assertion that  the Panel overlooked it.  Moreover, according to the 
United States, the language proffered by Me xico simply confirms that Economía  must   impose a fine 
if it finds that the conditions in Article 93V are met.   Finally, the United States asserts that the fact 
that Economía has not, to date, imposed such a fine is  not meaningful in the light of Mexico's failure 
before the Panel to point to any case where Econom ía found that the conditions for imposing a fine 
were met, and yet decided not to impose one.  The United States therefore submits that the Panel 
correctly found that Article 93V provides for a specif ic action against dumping or  subsidization that is 
not provided for in Article 18.1 of the  Anti-Dumping Agreement   or Article 32.1 of the  SCM 
Agreement .   
116. The United States therefore requests the Appella te Body to uphold the Panel's finding that 
Article 93V of the FTA is inconsistent , as such, with Article 18.1 of the  Anti-Dumping Agreement   
and Article 32.1 of the  SCM Agreement .   
(g) Articles 68 and 97  
117. The United States contends that Mexico's assertion that Article 68 of the FTA bears no 
relation to the prohibition of reviews while judicial  review proceedings are ongoing, and that there is 
nothing in Article 97 of the FTA preventing Ec onomía from conducting reviews, is "remarkable"84, 
because the facts underlining the Panel's findings on this point were uncontested.  Furthermore, even 
if Mexico does now contest this understanding of  the challenged provisions, the Panel found, as a 
matter of fact, that Articles 68 and 97 work togeth er to preclude reviews while judicial proceedings 
are ongoing.  The United States submits that these factual findings are not properly a subject for appellate review as Mexico has not alleged that the Panel did not comply with Article 11 of the DSU 
in making those factual findings.  
                                                     
 
83United States' appellee's submission, para. 165 (referring to "Notification of Laws and Regulations 
under Article 18.5 and 32.6 of the Relevant Agreements, Communication from Mexico", 
G/ADP/N/1/MEX/1/Suppl.2, G/SCM/N/1/Mex/1/Suppl.1, G/SG/N/1/MEX/1/Suppl.1, 24 April, 2003, p. 14;  and "Notification of Laws and Regulations under Article 18.5 of the Agreement, Communication from Mexico", 
G/ADP/N/1/MEX/1, 18 May 1995, p. 12). 
84Ibid., para. 170.  WT/DS295/AB/R 
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118. Regarding Article 97, the United States agrees wi th the Panel that, contrary to Mexico's 
assertion, a product becomes subject to "definitive"  duties at the time that an anti-dumping or 
countervailing measure is imposed, and not only when the final liability for the duties is subsequently 
determined.  The United States argues that Article 11.2 of the  Anti-Dumping Agreement   further 
supports the Panel's finding because, when Article 11.2 is interpreted in the context of Article 11.1, it 
is clear that the term "imposition of the definitive duty" in Article 11.2 refers to the imposition of the 
anti-dumping or countervailing duty measure itself. 
119. The United States requests the Appellate Body to uphold the Panel's finding that Articles 68 
and 97 of the FTA are inconsistent, as such, with Articles 9.3 and 11.2 of the  Anti-Dumping 
Agreement   and Article 21.2 of the  SCM Agreement . 
C. Arguments of the Third Participants 
1. China  
(a) Article 6.2 of the DSU 
120. China submits that the Appellate Body has dete rmined that, contrary to Mexico's argument, 
there is no requirement of identity between a request  for consultations and a panel request.  In the 
absence of such a requirement, the relevant qu estion is whether the addition of certain WTO 
provisions in a panel request has "expanded the scope of the dispute".85  In this respect, China refers 
to the decisions of the Appellate Body in  Brazil – Aircraft   and  US – Certain EC Products , arguing 
that resolution of this issue requires the Appella te Body to examine whether new legal provisions 
added by the United States in the panel request ha ve changed the "essence" of, and are "separate" and 
"legally distinct" from, the measures and th e legal provisions expressed in the request for 
consultations.86  
(b) Economía's Injury and Dumping Determinations  
121. China submits that the alleged silence of the  Anti-Dumping Agreement   regarding the 
selection of the period of investigation for making an injury determination does not provide Mexico 
with "unfettered" discretion in selecting this period.87  China agrees with the Panel that the 
                                                      
85China's third participant' s submission, para. 7. 
86Ibid., para. 8 (quoting Appellate Body Report, Brazil – Aircraft , paras. 127, 130, and 132;  and 
Appellate Body Report, US – Certain EC Products , para. 75). 
87Ibid., para. 12.  WT/DS295/AB/R 
Page 34  
 
investigating authority, conducting a "selective" ex amination, bears the obligation to justify its 
conduct.
88   
122. China further agrees with the Panel that inv estigating authorities cannot remain "entirely 
passive" during the investigation and that, therefor e, "the term 'known' [in Article 6.10 of the  Anti-
Dumping Agreement ] cannot be construed in such an artificia lly contrived and solipsistic manner as to 
become a warrant for a passive investigative approach".89  China submits that the obligations for 
investigating authorities to identify known exporters and interested parties are not without limitation 
because, if investigating authorities are obligat ed to seek evidence ac tively from all sources 
available,  it is likely that "anti-dumping investig ations would, as a consequence, become totally 
unmanageable".90  
123. China also agrees with the Panel that Mexico  erred in applying a dumping margin, based on 
the facts available, to a United States producer that  did not export to Mexico during the period of 
investigation.  China submits, however, that this finding, based on Article 6.8 of the  Anti-Dumping 
Agreement   and Annex II thereto, should rest, rather, on Article 9.5 of the  Anti-Dumping Agreement .  
According to China, Article 9.5 expressly requires that no anti-dumping duties shall be levied on 
imports from exporters that did not export the pr oduct to the importing Member during the period of 
investigation.   
(c) The Foreign Trade Act 
124. China disagrees with Mexico's contention that , merely because a Member's legal system 
renders treaties "self-executing", its domestic laws—"no matter how inconsistent with the WTO 
agreements"—may not be challenged as such.91  China considers Mexico's reasoning "absurd"92 
because the same domestic law would face different  consequences under the WTO agreements based 
solely on the fact that it was enacted in two differe nt Members, with two different legal systems.  
China, therefore, submits that, notwithstanding Article  2 of the FTA, the Panel properly found that the 
"direct effect of the WTO [a]greements cannot shield" the domestic law from scrutiny by WTO 
panels.93 
                                                      
88China's third participant's submissi on, para. 13. (emphasis omitted) 
89Ibid., para. 26 (quoting Panel Report, para. 7.188).  
90Ibid., para. 21 (quoting Panel Report, US – DRAMS , para. 6.78).  
91Ibid., para. 33. 
92Ibid.  
93Ibid., para. 35 (referring to Panel Report, para. 7.224).   WT/DS295/AB/R 
 Page 35 
 
 
2. European Communities  
(a) Economía's Injury and Dumping Determinations  
125. The European Communities agrees with the Panel' s finding that Mexico acted inconsistently 
with the  Anti-Dumping Agreement   by choosing  to base its injury determination on a period of 
investigation that ended more than 15 months before the initiation.  The European Communities 
endorses the Panel's interpretation of Article 3.1 of the  Anti-Dumping Agreement ,  because it 
understands the Panel's characterization of Article 3. 1 as "an overarching provision" to mean that the 
obligations in Article 3.1 inform all of the other obligations set out in Article 3.  Moreover, the 
European Communities agrees with the Panel's unde rstanding that there must be a temporal 
connection between the data collected and the injury al leged to exist at the time of the investigation.  
126. The European Communities also agrees with the Panel's finding that Mexico acted 
inconsistently with the  Anti-Dumping Agreement   by limiting its injury analysis to only six months of 
the years 1997, 1998, and 1999.  The European Co mmunities argues that nothing in the text of 
Article 3.1 of the  Anti-Dumping Agreement   permits an investigating authority to disregard certain 
data in the injury investigation period;  when the Members sought to permit investigating authorities 
to disregard certain matters, they did so explicitl y.  According to the Eu ropean Communities, if a 
Member fails to explain properly why it disregards  certain data, a panel mu st conclude that the 
investigating authority did not act in a fair and even-handed manner.   
127. The European Communities furthermore agrees w ith the Panel's finding that Mexico acted 
inconsistently with the  Anti-Dumping Agreement   by failing to conduct an objective examination, 
based on positive evidence, of the volume and price effects of dumped imports.  The European Communities endorses the Panel's view that, where an  investigating authority consistently makes 
assumptions that negatively affect the exporter's inter ests, it does not behave in an objective, fair, and 
even-handed manner.  
128. The European Communities disagre es with the Panel's finding regarding Article 5.8 of the  
Anti-Dumping Agreement .  The European Communities argues that Article 5.8 imposes an obligation 
on an investigating authority to terminate a count ry-wide investigation only when the country-wide 
dumping margin is  de minimis .  In addition, it contends that the country-wide approach to the 
initiation of an original investigation is "common sense"
94, because an investigating authority has no 
real means of establishing, with complete certainty , the full list of export ers or producers in the 
exporting Member.  The  Anti-Dumping Agreement   imposes no obligation on an investigating 
                                                      
94European Communities' third participant's submission, para. 22. WT/DS295/AB/R 
Page 36  
 
authority to seek out actively that information.  Finally, the European Communities submits that the 
fact that the establishment of a country-wide margin of dumping is expressly associated in 
Article 3.3(a) with the  de minimis   rule in Article 5.8 demonstrates  that interpreting the term "margin 
of dumping" in Article 5.8 as referring to the count ry-wide margin of dumping constitutes the correct 
interpretation of that latter provision.  
129. The European Communities agrees with the Panel's finding that Article 9.4 of the  Anti-
Dumping Agreement   does not apply to situations other than sampling.  Also, the European 
Communities considers, as did the Panel, that an investigating authority would, in principle, be 
entitled to use the facts available in  the calculation of a margin of dumping for a producer that did not 
export during the period of investigation. 
130. The European Communities also agrees with th e Panel's "implicit finding that a residual duty 
may be imposed on unknown exporters, where appropriate, based on the facts available."
95  
Nevertheless, it disagrees with the Panel's conclusion that an investigating au thority is required to 
seek out actively the identity of export ers, other than those mentioned in the application, or those that 
come forward following the publication of the notice of initiation.  
(b) The Foreign Trade Act 
131. The European Communities does not support Mexi co's arguments as to the "discretionary" 
nature of the challenged provisions of the FTA and,  accordingly, agrees with the Panel's findings of 
inconsistency with respect to those provisions.  The European Communities submits that, although 
these provisions do not require the investigating authority in  all  cases to act in a WTO-inconsistent 
manner, or prevent the investigating authority in  all  cases from acting in a WTO-inconsistent 
manner, the Panel properly examined the cons istency of these provisions with the covered 
agreements, without framing its analysis in te rms of the "mandatory/discretionary" doctrine.96  Even 
had it done so, the European Communities argues, "a mechanistic application of that doctrine could 
not have averted a finding of inconsistency" with respect to those provisions.97   
                                                      
95European Communities' third participant's submission, para. 26. 
96Ibid., para. 29. 
97Ibid.  WT/DS295/AB/R 
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III. Issues Raised in This Appeal 
132. The following issues are ra ised in this appeal: 
(a) whether the Panel erred, under Article 6.2 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes   (the "DSU"), in finding that the 
claims in the United States' panel requ est which were not "indicat[ed]" in the 
consultations request did not fall outsi de the Panel's terms of reference; 
(b) with respect to the injury determination by the Ministry of Economy of Mexico 
("Economía"): 
(i) whether the Panel exceeded its terms of reference in concluding that 
Economía's use of a period of investigation ending in August 1999 was inconsistent with Articles 3.1,  3.2, 3.4, and 3.5 of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994   (the " Anti-Dumping Agreement "); 
(ii) whether the Panel erred in finding th at Economía's use of a period of 
investigation ending in August 1999 resulted in a failure to make a 
determination of injury based on " positive evidence", as required by 
Article 3.1 of the  Anti-Dumping Agreement , and that, as a consequence, 
Mexico acted inconsistently with Articl es 3.2, 3.4, and 3.5 of that Agreement; 
(iii) whether the Panel erred in finding that, in limiting the injury analysis to six 
months of the years 1997, 1998, and 1999, Economía failed to make a determination of injury that involved an "objective examination" as required 
by Article 3.1 of the  Anti-Dumping Agreement , and that, as a consequence, 
Mexico acted inconsistently with Article 3.5 of that Agreement;  and 
(iv) whether the Panel erred in finding that Economía's injury analysis with 
respect to the volume and price effect s of dumped imports was inconsistent 
with Articles 3.1 and 3.2 of the  Anti-Dumping Agreement ;   
(c) with respect to Economía's dumping determination: 
(i) whether the Panel erred in finding that Mexico did not terminate immediately 
the investigation in respect of Farmers Rice Milling Company ("Farmers Rice") and Riceland Foods, Inc. ("Riceland") because Economía did not WT/DS295/AB/R 
Page 38  
 
exclude them from the application of the definitive anti-dumping measure, as 
required by Article 5.8 of the  Anti-Dumping Agreement ; 
(ii) whether the Panel exceeded its terms of reference in concluding that 
Economía calculated a margin of dumping on the basis of facts available for Producers Rice, in a manner inconsistent with Article 6.8 of the  Anti-
Dumping Agreement  read in the light of paragraph 7 of Annex II to that 
Agreement;  and 
(iii) whether the Panel erred in finding that , with respect to the exporters that 
Economía did not investigate, Mexico ac ted inconsistently with Articles 6.1, 
6.8, 6.10, 12.1, and paragraph 1 of Annex II to the  Anti-Dumping Agreement ;  
and 
(d) with respect to the provisions of the Fo reign Trade Act of Mexico (the "FTA"): 
(i) whether the Panel erred in considering that a  prima facie   case had been 
made out concerning the consistency of  the challenged provisions of the FTA 
with Mexico's obligations under the  Anti-Dumping Agreement   and the 
Agreement on Subsidies and Countervailing Measures   (the " SCM 
Agreement "); 
(ii) whether the Panel erred by disregarding Article 2 of the FTA, or Mexico's 
argument in relation thereto, in concl uding that the challenged provisions of 
the FTA are mandatory measures; 
(iii) whether the Panel erred in finding that Article 53 of the FTA is inconsistent, 
as such, with Article 6.1.1 of the  Anti-Dumping Agreement   and 
Article 12.1.1 of the  SCM Agreement ; 
(iv) whether the Panel erred in finding that Article 64 of the FTA is inconsistent, 
as such, with Article 6.8 of the  Anti-Dumping Agreement ,  and paragraphs 1, 
3, 5, and 7 of Annex II thereto, and Article 12.7 of the  SCM Agreement ; 
(v) whether the Panel erred in finding that Article 68 of the FTA is inconsistent, 
as such, with Articles 5.8, 9.3, and 11.2 of the  Anti-Dumping Agreement ,  
and Articles 11.9 and 21.2 of the  SCM Agreement ;  WT/DS295/AB/R 
 Page 39 
 
 
(vi) whether the Panel erred in finding that Article 89D of the FTA is 
inconsistent, as such, with Article 9.5 of the  Anti-Dumping Agreement   and 
Article 19.3 of the  SCM Agreement ; 
(vii) whether the Panel, in its interpretati on of Article 93V of the FTA, failed to 
fulfil its obligations under Article 11 of the DSU;  and 
(viii) whether the Panel erred in finding that  Articles 68 and 97 of the FTA, read 
together, are inconsistent, as such, with Articles 9.3.2 and 11.2 of the  Anti-
Dumping Agreement , and Article 21.2 of the  SCM Agreement . 
IV. Article 6.2 of the DSU 
133. We begin our examination of Mexico's appeal  with its challenge under Article 6.2 of the 
DSU.  Mexico requested a preliminary ruling from the Panel that certain claims advanced by the 
United States were outside the Panel's terms of reference because, inter alia , the provisions with 
which the challenged measures were alleged to be inc onsistent in the request for the establishment of 
a panel differed from those identified in the request for consultations.98  The Panel rejected this 
request, finding, inter alia , that there is no need for "complete identity between the scope of the 
request for consultations and the requ est for establishment [of a panel]"99;  it is necessary only that 
consultations be held on the "matter" in dispute.   The Panel concluded that, because the additional 
provisions in the panel request were  "closely related" to those in th e request for consultations, and the 
challenged measures remained unchanged,  consultations had been held on the "matter" at issue in this 
dispute.100  
134. On appeal, Mexico argues that, although Article 6.2 of the DSU requires that the "legal basis" 
of the complaint be more fully explained in the pane l request than in the request for consultations, the 
"legal basis" in the panel request may not extend beyond that "indicat[ed]"101 in the request for 
consultations.102  In particular, Mexico submits that, where a measure is alleged in the  request for 
consultations   to be inconsistent with certain provis ions of the covered agreements, additional 
provisions may not form the basis of a llegations of inconsistency in the  panel request .  Mexico 
contends that the United States incl uded in its panel request provisions not identified in the request for 
consultations and, therefore, that the claims based  on those additional provisions were not within the 
                                                      
98Panel Report, para. 7.38. 
99Ibid., para. 7.41. 
100Ibid., para. 7.43. 
101Article 4.4 of the DSU. 
102Mexico's appellant's submission, paras. 14 and 16.   WT/DS295/AB/R 
Page 40  
 
Panel's terms of reference.  Mexico further argues, in  the alternative, that the legal bases set out in the 
panel request are not sufficiently related to those in dicated in the request for consultations, so as to 
fall within the Panel's terms of reference.
103 
135. We look first to the text of the relevant provi sions setting out the information that must be 
contained in requests for consulta tions and panel requests.  Article 4.4 of the DSU, dealing with 
requests for consultations, provides:  
... Any request for consultations shall be submitted in writing and 
shall give the reasons for the request, including identification of the 
measures at issue and an indication of the legal basis for the 
complaint . (emphasis added) 
Article 6.2 of the DSU, which deals with panel requests, provides: 
The request for the establishment of a panel … shall indicate whether 
consultations were held, identify the specific measures at issue and 
provide a brief summary of the  legal basis of the complaint   
sufficient to present the problem clearly. (emphasis added) 
136. The Appellate Body has previously explained th at the term "legal basis", which appears in 
both Article 4.4 and Article 6.2, refers to  the claims made by the complaining party.104  It does not 
follow from the use of the same term in both provision s, however, that the claims made at the time of 
the panel request must be identical to those indicated  in the request for consultations.  Indeed, instead 
of such a rigid approach, we consider that the di spute settlement mechanism,  which generally requires 
that a panel request be preceded by consultations105, allows for a measure of flexibility to Members in 
subsequently formulating compla ints in panel requests.   
137. The Appellate Body has observed that consultati ons serve a critical role in circumscribing the 
scope of a dispute:   
                                                      
103Mexico's appellant's submission, para. 25. 
104Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162. 
105We observe that, if the responding Member does not engage in consultations within 30 days of a 
request, the DSU permits a complaining Member to "proceed directly" to requesting the establishment of a panel 
to hear its complaint. (Article 4.3 of the DSU)  WT/DS295/AB/R 
 Page 41 
 
 
Through consultations, parties exchange information, assess the strengths and weaknesses of their respective cases,  narrow the scope 
of the differences between them   and, in many cases, reach a mutually 
agreed solution in accordance with the explicit preference expressed 
in Article 3.7 of the DSU.  More over, even where no such agreed 
solution is reached, consultations provide the parties an opportunity 
to  define and delimit the scope of the dispute   between them.
106 
(emphasis added) 
The Appellate Body has also emphasized this objectiv e of consultations in finding that, with respect 
to the  measures at issue , Articles 4 and 6 of the DSU do not "require a  precise and exact identity " 
between the request for consultations and the pa nel request, provided that the "essence" of the 
challenged measures had not changed.107     
138. In our view, the same logic applies with respect to the legal basis  of the complaint.  A 
complaining party may learn of additional inform ation during consultations —for example, a better 
understanding of the operation of a challenged meas ure—that could warrant revising the list of treaty 
provisions with which the measure is alleged to be  inconsistent.  Such a revision may lead to a 
narrowing of the complaint, or to a reformulati on of the complaint that takes into account new 
information such that additional provisions of the covered agreements become relevant.  The claims 
set out in a panel request may thus be expected to be shaped by, and thereby constitute a natural 
evolution of, the consultation process.  Reading the DSU, as Mexico does, to limit the legal basis set 
out in the panel request to what was indicated in the request for consultations, would ignore an 
important rationale behind the requirement to hold consultations—namely, the exchange of 
information necessary to refine the contours of the di spute, which are subsequently set out in the panel 
request.  In this light, we consider that it is not necessary that the provisions referred to in the request 
for consultations be identical to those set out in the panel request, provided that the "legal basis" in the 
panel request may reasonably be said to have evolved from the "legal basis" that formed the subject of 
consultations.  In other words, the addition of prov isions must not have the effect of changing the 
essence of the complaint.  
                                                      
106Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 54.  See also Appellate Body 
Report, India – Patents (US) , para. 94: 
All parties engaged in dispute settlement under the DSU must be fully 
forthcoming from the very beginning both as to the claims involved in a 
dispute and as to the facts relating to those claims.  Claims must be stated 
clearly.  Facts must be disclosed freely.  This must be so in consultations as well as in the more formal setting of panel proceedings.  In fact, the demands 
of due process that are implicit in th e DSU make this especially necessary 
during consultations.  For the claims th at are made and the facts that are 
established during consultations do much to shape the substance and the scope 
of subsequent panel proceedings. 
107Appellate Body Report, Brazil – Aircraft , para. 132. (original emphasis) WT/DS295/AB/R 
Page 42  
 
139. Based on this understanding, we turn now to c onsider whether the legal basis in the United 
States' panel request may reasonably be said to ha ve evolved from the legal basis indicated in its 
request for consultations, and that the essence of the complaint has not changed.  As an initial matter, 
we note that Mexico identifies 13 treaty provisions included by the United States in its panel request 
that Mexico says did not form part of the legal basis identified in the request for consultations.
108  Of 
these 13, the Panel exercised judicial economy in rela tion to claims under two provisions (Article 1 of 
the  Anti-Dumping Agreement   and Article VI:2 of the  General Agreement on Tariffs and 
Trade 1994   (the "GATT 1994"))109 and made no findings relating to two other provisions (Article 4.1 
of the  Anti-Dumping Agreement   and Article 12.5 of the  SCM Agreement ).  In other words, the Panel 
made no findings of inconsistency—and indeed, undert ook no analysis at all—with respect to four of 
the 13 claims that Mexico alleges on appeal were not properly identified by the United States in the 
request for consultations as part of the "legal basis" of the complaint.    
140. In the absence of any findings of inconsistency by  the Panel or an appeal by the United States 
on these four claims, we see no need to decide whethe r they were sufficiently identified as part of the 
"legal basis" for the complaint, b ecause doing so "would not serve 'to secure a positive solution' to this 
dispute".110  At the oral hearing, Mexico and the United States agreed with this approach.111  We 
therefore decline to examine whethe r these four claims evolved out of the "legal basis" indicated in 
the request for consultations.  The remaining provision s are considered in three categories of claims:  
(i)  Article 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  SCM Agreement ;  
(ii)  Article 18.1 of the  Anti-Dumping Agreement   and Article 32.1 of the  SCM Agreement ;  and 
(iii)  paragraphs 1, 3, 5, 6, and 7 of Annex II to the  Anti-Dumping Agreement . 
141. The first category of claims relates to the Unite d States' challenge to Articles 68 and 97 of the 
FTA.  In both the request for consultations and the panel request, the United St ates based its challenge 
on the fact that Economía was prevented from conduc ting reviews other than sunset reviews whilst an 
anti-dumping order was the subject of judicial proceedings.112  The United States alleged, in the 
request for consultations, that this was inconsiste nt with certain treaty provisions dealing generally 
                                                      
108Mexico's appellant's submission, para. 1. 
109See Panel Report, paras. 8.1(a)-(b) and 8.4(b)-(c). 
110Appellate Body Report, Japan – Apples , para. 215 (quoting Article 3.7 of the DSU). 
111Mexico's and the United States' responses to questioning at the oral hearing. 
112See Request for Consultations by the United States (attached as Annex III to this Report), p. 3: 
Article 366 of Mexico's Federal Code of Civil Procedure, in conjunction 
with Article 68 of the Foreign Trade Ac t, appears to be inconsistent with 
Articles 9 and 11 of the AD Agreement and Articles 19 and 21 of the SCM 
Agreement to the extent that the provisions prevent Mexico from conducting reviews of anti-dumping or countervailing duty orders  while a judicial 
review of the order is ongoing[.] (emphasis added)  WT/DS295/AB/R 
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with the duration and extent of anti-dumping a nd countervailing duty orders, including Article 11 of 
the  Anti-Dumping Agreement   and Article 21 of the  SCM Agreement .113  The treaty provisions added 
by the United States in its panel request—Article 11.2 of the  Anti-Dumping Agreement   and 
Article 21.2 of the  SCM Agreement —are the  principal  provisions  of those Agreements governing 
reviews (other than sunset reviews) of such or ders.  Given that the essence of the United States' 
complaint against Articles 68 and 97 of the FTA, when read together—in both the request for 
consultations and the panel request—relates to the c onduct of reviews other than sunset reviews, it 
appears to us that the legal basis in the panel re quest naturally evolved from the legal basis indicated 
in the request for consultations. 
142. The second category of provisions relates to the Un ited States' challenge to Article 93V of the 
FTA.  In its request for consultations, the United States alleged that Article 93V imposed duties on 
subject merchandise entered before the investigati ng authority's final determination, in a manner 
inconsistent with Articles 7 and 10.6 of the  Anti-Dumping Agreement   and Articles 17 and 20.6 of the  
SCM Agreement .114  These treaty provisions govern the application of provisional measures as well as 
duties levied on products entered prior to the date of  application of provisional measures.  In its panel 
request, the United States contended that these duties are inconsistent with two other treaty 
provisions, namely, Article 18.1 of the  Anti-Dumping Agreement   and Article 32.1 of the  
SCM Agreement .115  These latter treaty provisions require that "specific action against" dumping or 
                                                      
113The United States identified Article 11 (without specification of paragraph) of the  Anti-Dumping 
Agreement ,  as well as Article 11.1 of that Agreement, and Ar ticle 21 (without specification of paragraph) of the  
SCM Agreement ,  as well as Article 21.1 of that Agreement. (Request for Consultations by the United States 
(attached as Annex III to this Report)) 
114See Request for Consultations by the United States (attached as Annex III to this Report), p. 3: 
Article 93V ... appears to provide fo r the application of definitive 
anti-dumping or countervailing duties on products entered prior to the date 
of application of provisional measures (1) for longer than allowed under the 
AD and SCM Agreements, and (2) even if not all AD or SCM Agreement requirements for applying such duties are met.   
115Request for the Establishment of a Panel by the United States (attached as Annex II to this Report), 
WT/DS295/2, para. 2(e). WT/DS295/AB/R 
Page 44  
 
subsidization be taken only in acco rdance with the GATT 1994 and the  Anti-Dumping Agreement   or  
the  SCM Agreement .
116   
143. Duties  properly   imposed or levied on goods entered before a final determination—including 
provisional measures—are one type of "specific ac tion against" dumping or subsidization that  is 
permitted   by the  Anti-Dumping Agreement   and the  SCM Agreement .  The consultations held in this 
dispute with respect to Article 93V focused on the allegedly  improper   imposition or levying of 
duties on goods entered before the final determinati on.  A claim of WTO-inconsistent "specific action 
against" dumping or subsidization could reasonably have evolved from these consultations.  Thus, we 
are of the view that the claim set out in the pane l request represents a natural evolution of the claim 
indicated in the request for consultations. 
144. The final category of claims that Mexico conte nds was outside the Pane l's terms of reference 
relates to the United States' challenges under several paragraphs of Annex II to the  Anti-Dumping 
Agreement , entitled "Best Information Available in Terms of Paragraph 8 of Article 6".  All of the 
paragraphs in Annex II govern th e proper application of facts available in an anti-dumping 
investigation.  In its request fo r consultations, the United States did not refer explicitly to specific 
paragraphs of Annex II.  However, it did refer to Article 6.8 of the  Anti-Dumping Agreement   and 
Annex II thereto generally;  the use of "facts ava ilable" by Economía;  and "the manner in which 
Mexico determined anti-dumping margins for US expor ters that were not individually investigated", 
which included the use of facts available.117  Mexico does not contend that these issues were not part 
of the consultations held by the parties.  Thus, we consider that the legal basi s of the complaint in the 
panel request—namely, specific paragraphs of Annex II to the  Anti-Dumping Agreement —developed 
out of the legal basis indicated in  the request for consultations.   
                                                      
116In a previous case involving a challenge under Article 18.1 of the Anti-Dumping Agreement  and 
Article 32.1 of the SCM Agreement , the Appellate Body has stated: 
[T]he CDSOA has an adverse bearing on the foreign producers/exporters in 
that the imports into the United States  of the dumped or subsidized products 
(besides being subject to anti-dumping or countervailing duties) result in the 
financing of United States competitors—producers of like products—through the transfer to the latter of the duties collected on those exports.  
Thus, foreign producers/exporters have an incentive not to engage in the 
practice of exporting dumped or subsid ized products or to terminate such 
practices.  Because  the CDSOA has an adverse bearing on, and, more 
specifically, is designed and structured  so that it dissuades the practice of 
dumping or the practice of subsidization,  and because it creates an incentive 
to terminate such practices, the CDSOA is undoubtedly an action "against" 
dumping or a subsidy, within the meaning of Article 18.1 of the  Anti-
Dumping Agreement   and of Article 32.1 of the SCM Agreement . 
(Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 256) 
117Request for Consultations by the United States (attached as Annex III to this Report), pp. 2-3.    WT/DS295/AB/R 
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145. In the light of the above, we  uphold   the Panel's finding, in paragraph 7.43 of the Panel 
Report, that the claims in the United States' panel re quest that were not "indicat[ed]" in the request for 
consultations did not fall outside the Panel's terms of reference. 
V. Economía's Injury Determination 
A. The Period of Investigation and the Terms of Reference 
146. We examine, first, Mexico's allegation that the Panel did not act in conformity with its terms 
of reference in finding that Economía's use of a period of investigation e nding in August 1999 was 
inconsistent with the  Anti-Dumping Agreement .  
147. Economía examined data for a period of inv estigation covering Marc h to August 1999 for 
purposes of its dumping determination, and March to  August in 1997, 1998, and 1999 for purposes of 
its injury analysis.  The investigation was initiate d on 11 December 2000, 15 months after the end of 
the period of investigation.  Final anti-dumping me asures were imposed on 5 June 2002, just less than 
three years after the end of the period of investigation. 
148. According to the Panel, although the  Anti-Dumping Agreement   does not contain any specific 
rules concerning the period to be used for data co llection in an anti-dumping investigation, this does 
not mean that the investigating authority's discre tion in using a certain period of investigation is 
boundless.  The Panel was of the view that ther e is an "inherent real-time link" between the 
imposition of the measure and the conditions fo r application of the measure, namely, dumping 
causing injury.118  For the Panel, "the [ Anti-Dumping Agreement ] requires that the conditions for 
imposing anti-dumping measures, that dumped imports are causing injury, have to be present at the 
time of imposition of the measure, to the extent practically possible."119  The  Anti-Dumping 
Agreement   establishes a framework that allows Member s to take actions in order to rebalance the 
injurious situation that is created by dumping.  The Panel reasoned, accordingly, that injurious 
dumping should exist at the time of the imposition of  the anti-dumping duty, because the function of 
the anti-dumping duty is to "counterbalance[]" injurious dumping, and that anti-dumping duties 
imposed in the absence of current injurious dumping would not achieve the rebalancing contemplated 
by the  Anti-Dumping Agreement .120  Thus, for the Panel, it is necessary to base a determination of 
dumping causing injury on data that is pertinent or re levant with regard to th e current situation, taking 
into account the "inevitable delay" caused by th e practical need to conduct an investigation.121  The 
                                                      
118Panel Report, para. 7.58. 
119Ibid., para. 7.63. 
120Ibid., para. 7.61. 
121Ibid. WT/DS295/AB/R 
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Panel emphasized that, although it is well establis hed that the data on the basis of which the 
determination of dumping causing injury is made  may be based on a past period (the period of 
investigation), "this 'historical' data is being used to  draw conclusions about the current situation" and, 
therefore, "the more recent data is likely to be i nherently more relevant and thus especially important 
to the investigation."
122  For the Panel, "the data considered concerning dumping, injury and the 
causal link should include, to the extent possible, th e most recent information, taking into account the 
inevitable delay caused by the need for an investigation, as well as any practical problems of data 
collection in any particular case."123 
149. The Panel went on to analyze Economía's use of a period of investigation ending in 
August 1999.  The Panel noted that this period of investigation was suggested by the domestic 
industry in the application submitted on 2 June 20 00, and that the investigation was initiated six 
months later (on 11 December 2000).  The Panel al so observed that Economía accepted the period of 
investigation suggested by the petitioner, even tho ugh, at the time of initiation, that period had ended 
more than 15 months earlier.  The Panel underlined  that:  during the investigation, no attempt was 
made by Economía to update any of the informati on obtained from the interested parties to reflect 
what had occurred in the 15 months between the e nd of the period of investigation in August 1999 
and the start of the investigation in December 2000;   Mexico did not argue that practical problems 
necessitated this particular period of investigation or that updating the information was not possible;  
and Mexico did not provide any explanation as to why more recent information was not sought.  
150. Article 3.1 of the  Anti-Dumping Agreement  requires, inter alia , that the injury determination 
be "based on positive evidence".  In the Panel's view, ev idence that is not relevant or  pertinent with 
respect to the issue to be decided is not "pos itive evidence" within the meaning of Article 3.1.124  The 
15-month gap between the end of the period of inv estigation and the initiation of the investigation, 
according to the Panel, amounted to a "hiatus" su fficiently long as to impugn the reliability of the 
period of investigation to deliver, for the purposes of a determination, evidence that has the "requisite 
pertinence or relevance" to constitute  "positive evidence" in Article 3.1.125  Thus, according to the 
Panel, "given the passage of time and the uncertainty  about the factual situation in that relevant 
interim, the information lacks credibility and relia bility, thereby failing to meet the criterion of 
'positive evidence' pursuant to Article 3.1 of the [ Anti-Dumping Agreement ]."126  As a consequence of 
finding a violation of Article 3.1, the Panel found th at Mexico acted in breach of Articles 3.2, 3.4, 
                                                      
122Panel Report, para. 7.58. 
123Ibid. 
124Ibid., para. 7.55. 
125Ibid., para. 7.64. 
126Ibid.  WT/DS295/AB/R 
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and 3.5 of that Agreement when considering the volume and price effects of the dumped imports, all 
relevant factors affecting the state of the i ndustry, and the causal relationship between dumped 
imports and the alleged injury to the domestic industr y, respectively.  In the light of these findings, the 
Panel did not consider it necessary to examine the United States' claims of violati on of Article 1 of the  
Anti-Dumping Agreement   and Article VI of the GATT 1994.  
151. On appeal, Mexico contends that the Panel acted  inconsistently with its terms of reference 
because the Panel's reasoning was different from th e argument put forward by the United States.  
According to Mexico, the United States argued befo re the Panel that the purpose of an anti-dumping 
measure is to offset or prevent dumping that is currently causing or threatening to cause material 
injury, and that the legal basis for this contention was Article 5.1 of the  Anti-Dumping Agreement .  
Mexico submits that the United States argued before  the Panel that, by not examining recent data, 
Mexico acted in a manner inconsistent with Article 5.1 of the  Anti-Dumping Agreement   and that, as 
a result, Mexico violated Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, and 3.5 of the  Anti-
Dumping Agreement .127  Thus, Mexico argues, the Panel did not  act in conformity with its terms of 
reference because it did not address the questions raised by the United States' argument—including 
whether Mexico violated Article 5.1 of the  Anti-Dumping Agreement —but, rather, conducted an 
analysis that reconstructed in a manner different to the United States' reasoning.128  
152. It is well settled that the terms of reference of a panel define the scope of the dispute129 and 
that the claims identified in the request for the est ablishment of a panel establish the panel's terms of 
reference under Article 7 of the DSU.130  Panels are not permitted to address legal claims falling 
outside their terms of reference.131  In this case, the panel request does not mention Article 5.1 of the  
Anti-Dumping Agreement .  In other words, the United States ha d not made a claim before the Panel 
that Mexico had violated Article 5.1 of the  Anti-Dumping Agreement .132  Accordingly, the issue 
whether Mexico violated Article 5.1 fell outside th e scope of the dispute;  had the Panel made a 
finding under that provision, it would have exceeded its terms of reference.  By not addressing this 
issue, the Panel properly confined itself to the limits of its terms of reference.  We fail to see why it 
should be faulted for having done so.  
                                                      
127Mexico's appellant's submission, para. 36. 
128Ibid., paras. 37 and 39. 
129Appellate Body Report, US – Carbon Steel , para. 126. 
130Appellate Body Report, EC – Bananas III , para. 141. 
131Appellate Body Report, EC – Hormones , para. 156. 
132In response to questioning at the oral hearing, the United States confirmed that it did not make a 
claim under Article 5.1.  The United States, rather, indicated that it did reference Article 5.1 as evidence for the 
need to base a determination on the most recent available data. WT/DS295/AB/R 
Page 48  
 
153. Mexico emphasizes paragraphs 55, 56, and 57 of the United States' first written submission to 
the Panel.  It contends that the United States alle ged in these paragraphs that Article 5.1 of the  Anti-
Dumping Agreement   is the basis for maintaining that the purpose of an anti-dumping investigation is 
to determine whether dumping is taking place at th e present time, and that, consequently, Article 5.1 
obliged Mexico to consider a period that was as close as practicable to the date of initiation.
133  
Mexico adds that the United States argued that no t examining recent data automatically implied that 
Mexico was acting inconsistently with th e obligations under Article 5.1 of the  Anti-Dumping 
Agreement ,  and this consequently meant a violation of  Article VI of the GATT 1994 and Articles 1, 
3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping Agreement .134  
154. Paragraphs 55, 56, and 57 of the United States'  first written submission to the Panel read as 
follows: 
The purpose of an antidumping measure is not to punish exporters for 
past dumping practices.  Rather, it is to "offset or prevent" dumping 
that is presently causing or threaten ing to cause material injury to a 
domestic industry in the importing country. 
A Member is not offsetting or preventing injurious dumping if the 
dumping or injury has completely ceased or never existed.  Thus, in order to impose an antidumping measure, the investigating authority 
must examine, as part of its initial investigation pursuant to Article 5 
of the AD Agreement, a period of time that is as close to the date of initiation as practicable. 
Article 5.1 of the AD Agreement states that the purpose of a dumping 
investigation is to determine the "existence, degree and effect of any alleged dumping."  The ordinary meaning of the term "existence" is 
"[c]ontinued being: continuance in being."  Hence, the purpose of a 
dumping investigation is not to t est whether foreign exporters may 
have dumped at some point in the past, but whether dumping is occurring at the present time.  As such, to make this determination, the period subject to investigation must cover a period of time as 
close to the date of initiation as practicable.  Numerous provisions in 
Article VI and the AD Agreemen t support this interpretation, 
including, but not limited to: 
 Article VI of GATT 1994, which defines dumping and injury in 
the present tense ( e.g., dumping "is" causing or threatening to 
cause injury). 
 Article 2 of the AD Agreement, which defines "dumping" in the 
present tense ( e.g., "being" dumped and Export Price "is" lower 
than Normal Value). 
                                                     
 
133Mexico's appellant's submission, paras. 35-36.  
134Ibid., para. 36(c).   WT/DS295/AB/R 
 Page 49 
 
 
 The whole point of the examination pursuant to Article 3.4 of the 
AD Agreement is to examine the present "state" of the domestic industry;  not its condition durin g some remote time period. 
 Similarly, Article 3.5 establishes a test for causation that seeks to 
determine whether the dumpe d imports "are" causing or 
threatening to cause injury. 
 The "clearly foreseen" and "imminent" standards in Article 3.7 
suggest a period of investigation that is as recent as practicable. 
 The term "domestic industry" is de fined in Article 4 and used in 
many provisions of the AD Agreement, most notably Articles 3.4 
and 5.4.  In Article 5.4, the term  clearly refers to those producers 
in existence at the time the petition is filed.  Absent some contrary indication in the agreement, it follows that the "domestic industry" examined in Article 3.4 is the same set of producers – not a different set of producers who may have produced the like 
product in the past. 
 Article 5.8 of the AD Agreemen t describes the negligibility 
standard for both injury and the volume of imports in the present tense ( i.e., "is negligible"). (footnotes omitted) 
155. In our view, contrary to what Mexico suggests, the United States did not argue in 
paragraphs 55, 56, and 57 that Me xico breached Article 5.1 of the  Anti-Dumping Agreement .  The 
proposition advanced by the United States was that th e purpose of an anti-dumping investigation is to 
test whether dumping is occurring at the present time and that anti-dumping duties should respond to 
current dumping, not to dumping that occurred at some time in the past.  This specific question—
whether the purpose of an anti-dumping investigation is to determine whether dumping is occurring at 
the present time and whether the conditions for im posing anti-dumping measures have to be present at 
the time of imposition of the measure—was extensiv ely discussed by the Panel, in particular, in 
paragraphs 7.57 to 7.63 of the Panel Report.  The United States referred to Article VI of the 
GATT 1994 and provisions of the  Anti-Dumping Agreement ,  including Article 5.1 thereof, as 
arguments—not claims—to support its position that the purpose of a dumping investigation is to 
determine whether dumping is occurring at the present time.  However, the United States did not ask the Panel—in paragraphs 55, 56, and 57 or else where—to determine whether Mexico violated 
Article 5.1 of the  Anti-Dumping Agreement .  
156. Thus, we do not consider that the Panel rec onstructed or restructured the United States' 
argument regarding Economía's use of a period of in vestigation ending in August 1999, and that the 
Panel developed a legal reasoning di fferent from the United States' approach.  Indeed, even if it had 
done so, we would not necessarily find that the Pane l thereby acted improperly.  As the Appellate WT/DS295/AB/R 
Page 50  
 
Body indicated in  US – Certain EC Products , a panel is not obliged to limit its legal reasoning to 
arguments presented by the parties.
135  The Appellate Body also stated, in  EC – Hormones , that: 
... nothing in the DSU limits the fa culty of a panel freely to use 
arguments submitted by any of the parties—or to develop its own 
legal reasoning—to support its own findings and conclusions on the 
matter under its consideration.136 
157. Accordingly, we  find  that the Panel  did not exceed   its terms of reference in concluding, in 
paragraphs 7.65 and 8.1(a) of th e Panel Report, that Economía's use of a period of investigation 
ending in August 1999 was inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping 
Agreement .  
B. The Use of a Period of Investigation Ending in August 1999 and the Criterion of 
Positive Evidence 
158. We turn now to the issue whether the Panel erre d in finding that Economía's use of a period of 
investigation ending in August 1999 resulted in a failure to make a determination of injury based on 
positive evidence, as required by Article 3.1 of the  Anti-Dumping Agreement .  
159. The Panel found that, by choosing to base its determination of injury on a period of 
investigation that ended more than  15 months before the initiation of the investigation, Mexico failed 
to comply with the obligation to make a dete rmination of injury b ased on positive evidence.137  As a 
consequence, the Panel found that Mexico acted incons istently with Articles 3.1, 3.2, 3.4, and 3.5 of 
the  Anti-Dumping Agreement .  We have already set out above, in  paragraphs 148 to 150, the Panel's 
reasoning in this regard. 
160. Mexico challenges the Panel's findings regarding Economía's use of a period of investigation 
ending in August 1999.  This challenge is distin ct from that relating to the Panel's terms of 
reference.138  According to Mexico, the Panel erred in findi ng that there is an "inherent real-time link" 
between the investigation and the data on which it is based.139  Mexico alleges that this "real-time 
link" requirement is inconsistent with the option of using a past period as the period of 
investigation.140  Mexico also argues that the Panel contradicts itself because the Panel acknowledged 
that it is impossible that the period of investiga tion used for purposes of data collection coincide 
                                                      
135Appellate Body Report, US – Certain EC Products , para. 123. 
136Appellate Body Report, EC – Hormones , para. 156. 
137Panel Report, para. 7.65. 
138See supra , section V.A. 
139Mexico's appellant's submission, para. 41 (referring to Panel Report, para. 7.57). 
140Ibid., para. 43.  WT/DS295/AB/R 
 Page 51 
 
 
exactly with the time period in which the inv estigating authority conducts its investigation.141  F o r  
Mexico, the content of Article 3.1 of the  Anti-Dumping Agreement   does not focus on how remote the 
investigation period is, but on the applicability of the data used.142   
161. Mexico also argues that the Panel erred b ecause it considered that remoteness of the 
investigation period  per se   implied a violation of Article 3.1143, and that the Panel's finding of a 
violation of Article 3.1 was based exclusively on th e remoteness of the investigation period.  Mexico 
contends that, in the analysis under Article 3.1, th e Panel should have examined the scope of the data 
used and their applicability144;  it also should have assessed whether the information on which 
Economía's determination was based was adequate.145  According to Mexico, because the United 
States did not establish that the data relating to th e period of investigation were inappropriate, it did 
not make out a  prima facie   case of violation of Article 3.1 of the  Anti-Dumping Agreement .146 
162. The Panel considered that the recommendati on adopted by the Committee on Anti-Dumping 
Practices—the Recommendation Concerning the Pe riods of Data Collection for Anti-Dumping 
Investigations (the "Recommendation")147—provides useful support for the correct interpretation of 
the obligations found in the text of the  Anti-Dumping Agreement .148  According to Mexico, the 
Recommendation does not constitute a basis for finding  that a given period of investigation is 
inconsistent with the  Anti-Dumping Agreement ;  at best, it may provide some guidance.149  Finally, 
Mexico submits that, because the Panel had no le gal basis for finding that remoteness of the 
investigation period  per se   implies a violation of the  Anti-Dumping Agreement , the Panel should 
have found that Mexico's interpretation concerning the integration of the data collection period was 
permissible pursuant to Article 17.6(ii) of the  Anti-Dumping Agreement .150  
                                                      
141Mexico's appellant's submission, para. 44. 
142Ibid., para. 49. 
143Ibid., para. 57.  
144Ibid., para. 58. 
145Ibid., para. 55. 
146Ibid., para. 60. 
147G/ADP/6, adopted by the Committee on Anti-Dumping Practices on 5 May 2000. 
148Panel Report, para. 7.62. 
149Mexico's appellant's submission, paras. 63-64. 
150Ibid., paras. 66(d) and 67. WT/DS295/AB/R 
Page 52  
 
163. We begin our analysis with the text of Article 3.1 of the  Anti-Dumping Agreement , which 
sets forth the general requirement for making an injury determination: 
A determination of injury for purposes of Article VI of GATT 1994 
shall be based on positive evidence and involve an objective 
examination of both (a) the volume of the dumped imports and the 
effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on 
domestic producers of such products. 
Article 3.1 thus requires,  inter alia ,  that the injury determinati on be based on positive evidence. 
164. The Panel described "positive evidence" as evid ence that is relevant and pertinent with 
respect to the issue to be decide d, and that has the characteristics of being inherently reliable and 
creditworthy.
151  The Panel was of the view that, under th e positive evidence criterion of Article 3.1, 
the question whether the information at issue c onstituted "positive evidence"—that is to say, was 
relevant, pertinent, reliable, and creditworthy—h ad to be assessed with respect to the current 
situation.152   
165. We agree with the Panel that evidence that is not relevant or pertinent to the issue to be 
decided is not "positive evidence".  We  also agree with the Panel that relevance or pertinence must be 
assessed with respect to the existenc e of injury caused by dumping at the time the investigation takes 
place.  Under Article VI of the GATT 1994 and its "application" in the  Anti-Dumping Agreement153, 
the conditions for imposing an anti-dumping duty—in jury caused by dumping—should obtain at that 
time.  Article VI:2 of the GATT 1994 provides that  anti-dumping duties are imposed "to offset or 
prevent" dumping.  The term "offset" suggests th at the scheme established in Article VI of the 
GATT 1994, and applied through the provisions of the  Anti-Dumping Agreement ,  fulfils a corrective 
function:  Members are permitted to take correct ive measures in order to counter the injurious 
situation created by dumping.  Under the logic of this corrective scheme, the imposition of anti-
dumping duties is justified to the extent that they respond to injury caused by dumping.  To use the 
Panel's terminology, anti-dumping duties "c ounterbalance[]" injury caused by dumping.154  Because 
the conditions to impose an anti-dumping duty are to be  assessed with respect to  the current situation, 
                                                      
151Panel Report, para. 7.55. 
152Ibid., para. 7.61. 
153Article 1 of the  Anti-Dumping Agreement   states that the provisions of that Agreement "govern the 
application of Article VI of GATT 1994".  
154Panel Report, para. 7.61.  WT/DS295/AB/R 
 Page 53 
 
 
the determination of whether injury exists should be based on data that provide indications of the 
situation prevailing when the investigation takes place.155  
166. This, of course, does not imply that investig ating authorities are not allowed to establish a 
period of investigation that covers a past period.  We note that, contrary to what Mexico suggests, the 
Panel did not state that the  Anti-Dumping Agreement   requires a coincidence in time between the 
investigation and the data used therein.156  On the contrary, the Panel recognized that "it is well 
established that the data on the basis of which [the determination that dumped imports cause injury] is 
made may be based on a past period, known as the period of investigation."157  In order to determine 
whether injury caused by dumping ex ists when the investigation tak es place, "historical data" may be 
used.  We agree with the Panel, however, that more  recent data is likely to provide better indications 
about current injury.158   
167. We agree with Mexico that using a remote investigation period is not  per se   a violation of 
Article 3.1.159  In our view, however, the Panel did not set out such a principle, as its findings relate to 
the specific circumstances of this case.  The Pane l was satisfied that, in this specific case, a  prima 
facie   case was established that the info rmation used by Economía did not provide reliable indications 
of current injury and, therefore, did not meet the criterion of positive evidence in Article 3.1 of the  
                                                      
155We note that in response to questioning at the or al hearing, Mexico agreed that a determination of 
injury caused by dumping should be based on data that are pertinent or relevant with regard to the current 
situation. 
156Mexico's appellant's submission, para. 51. 
157Panel Report, para. 7.58.  The Panel also added that "the inevitable delay caused by the need for an 
investigation, as well as any practical problems of data collection in any particular case" should be taken into 
account. ( Ibid.) 
158Ibid.  
159Mexico's appellant's submission, para. 69. WT/DS295/AB/R 
Page 54  
 
Anti-Dumping Agreement .
160  The Panel arrived at this conclusion on the basis of several factors.  The 
Panel attached importance to the existence of a 15-month gap between the end of the period of 
investigation and the initiation of the investigation, and a gap of almost three years between the end of 
the period of investigation and the imposition of final anti-dumping dut ies.  However, these temporal 
gaps were not the only circumstances 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 investigation;  (iii) it was not established that updating the information was not possible;  (iv) no 
attempt was made to update the information;  a nd (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.161  Thus, it is not only the remoteness of the 
period of investigation, but also these other circ umstances that formed th e basis for the Panel to 
conclude that a  prima facie   case was established.  In the light of the general assessment of these 
other circumstances carried out by the Panel as trier of the facts, we accept that a gap of 15 months between the end of the period of investigation and the initiation of the investigation, and another gap 
of almost three years between the end of the peri od of investigation and the imposition of the final 
anti-dumping duties, may raise real doubts about th e existence of a sufficiently relevant nexus 
between the data relating to the period of investig ation and current injury.  Therefore, we have no 
reason to disturb the Panel's assessment that a  prima facie   case of violation of Article 3.1 was made 
out.   
                                                     
 
160We recall that a  prima facie   case is: 
... one which, in the absence of effective refutation by the defending party, 
requires a panel, as a matter of law, to rule in favour of the complaining 
party presenting the  prima facie   case. 
(Appellate Body Report, EC – Hormones , para. 104)   
 We also note that, in  US – Gambling , the Appellate Body stated: 
The evidence and arguments underlying a  prima facie   case ... must be 
sufficient to identify the challenged measure and its basic import, identify 
the relevant WTO provision and obligation contained therein, and explain 
the basis for the claimed inconsistency of the measure with that provision. 
(Appellate Body Report, US – Gambling , para. 141) 
 As the Appellate Body stated in  US – Wool Shirts and Blouses , the nature and scope of evidence 
required to establish a  prima facie   case "will necessarily vary from measur e to measure, provision to provision, 
and case to case." (Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323, at 335)  See 
also Appellate Body Report,  Japan – Apples , para. 159. 
161Panel Report, para. 7.64.  WT/DS295/AB/R 
 Page 55 
 
 
168. Mexico had the opportunity to rebut the  prima facie   case that the information on which 
Economía relied did not meet the criterion of  positive evidence in Article 3.1 of the  Anti-Dumping 
Agreement .  Thus, Mexico could have sought to show th at 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 injury, in spite of its remoteness.  Mexico did not do so.  In the 
absence of "an effective refutation", it appears to  us that it was not unreasonable for the Panel to 
conclude that the criterion of positive evidence set out in Article 3.1 of the  Anti-Dumping Agreement  
was not met.  
169. Mexico also argues that the Panel erred b ecause it based its finding that the period of 
investigation used by Economía was inconsistent with the  Anti-Dumping Agreement   on the 
Recommendation referred to above in paragraph 162, a non-binding document adopted by the 
Committee on Anti-Dumping Practices.  The Recommendation stipulates, inter alia , that the period of 
data collection should end as close to the date of  initiation of the investigation as is practicable.162  We 
disagree with Mexico's argument.  The Panel took care to recall that this Recommendation is a "non-
binding guide" that "does not add new obligations, nor detract from the existing obligations of 
Members under the [ Anti-Dumping Agreement ]".163  It appears to us that the Panel referred to the 
Recommendation, not as a legal basis for its findings , but simply to show that the Recommendation's 
content was not inconsistent with its own reasoning.  Doing so does not constitute an error of law.  In 
any event, we note that the Recommendation was not a decisive factor that led the Panel to conclude 
that the criterion of "positive evidence" in Article 3.1 was not met. 
170. We turn now to Mexico's argument that the Panel should have found that Mexico's 
interpretation concerning the "integration" of the data collection period164 was permissible pursuant to 
Article 17.6(ii) of the  Anti-Dumping Agreement .  This provision reads as follows:  
                                                      
162The Recommendation provides, in relevant part: 
The Committee recommends that with respect to original investigations to 
determine the existence of dumping and consequent injury – 
1. As a general rule: (a) the period of data collection for dumping investigations normally 
should be twelve months, and in any case no less than six months,  ending 
as close to the date of initiation as is practicable [.] 
(Panel Report, footnote 75 to para. 7.62) (footnote omitted; emphasis added) 
163Ibid., para. 7.62. 
164Mexico's appellant's submission, para. 67 (" la integración "). WT/DS295/AB/R 
Page 56  
 
[T]he panel shall interpret the rele vant provisions of the Agreement 
in accordance with customary rule s of interpretation of public 
international law.  Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' me asure to be in conformity with 
the Agreement if it rests upon one of those permissible 
interpretations. 
171. We have some difficulty with Mexico's argu ment.  The Panel had to decide whether the 
information relating to a period of investigati on ending in August 1999 c onstituted an appropriate 
basis for making a determination of injury.  The issue before the Panel centred on the manner in 
which Economía conducted the injury analysis, not the interpretation of a specific provision of the  
Anti-Dumping Agreement .  Furthermore, as we underlined above, the Panel expressed the view that 
the data on the basis of which a determination of injury caused by dumping is made may relate to a 
past period, to the extent this information is relevant with regard to the current situation.
165  It appears 
to us that the Panel's view is compatib le with Mexico's own reading of the  Anti-Dumping Agreement , 
according to which using data rela ting to a past period does not, per se , entail a violation of that 
Agreement.  For these reasons, we are of the view that Mexico's argument regarding Article 17.6(ii) 
of the  Anti-Dumping Agreement   is without merit. 
172. Accordingly, we  uphold   the Panel's finding, in paragra phs 7.65 and 8.1(a) of the Panel 
Report, that Economía's use of a period of investig ation ending in August 1999 resulted in a failure to 
make a determination of injury based on "positiv e evidence" as required by Article 3.1 of the  Anti-
Dumping Agreement .  As a result of this finding, we also  uphold   the Panel's finding, in 
paragraphs 7.65 and 8.1(a) of the Panel Report, that  by choosing this period of investigation, Mexico 
acted inconsistently with Articles 3.2, 3.4, and 3.5 of that Agreement.   
C. The March–August Period 
173. We turn now to the issue whether the Panel er red in finding that, in limiting the injury 
analysis to the March–August period of 1997, 1998, and 1999, Economía failed to make a 
determination of injury that involves an "objectiv e examination" as required by Article 3.1 of the  
Anti-Dumping Agreement . 
174. For the purposes of examining the injury to th e domestic industry, Economía collected data 
for a continuous period of three years covering 19 97, 1998, and 1999.  Howeve r, Economía limited its 
analysis to data for the months of March to Augus t of these years;  data from the period September to 
February of each of these years were disregarded.  In  the Panel's view, such an examination, made on 
                                                      
165Panel Report, paras. 7.58 and 7.61.  WT/DS295/AB/R 
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the basis of an incomplete set of data and character ized by the selective use of certain data for the 
injury analysis, could not be "objective" within the meaning of Article 3.1 of the  Anti-Dumping 
Agreement , unless a proper justification were provided.166  In this respect, the Panel noted that 
Mexico's only argument was that it was necessary to examine data relating only to the six months 
from March to August because this was also the si x-month period chosen for the analysis of the 
existence of dumping.  The Panel considered that this did not constitute a proper justification for 
ignoring half of the data concerning the state of the domestic industry.  For the Panel, the  Anti-
Dumping Agreement   does not require that "a period of investigation [for] the injury analysis should 
be chosen to fit the period of investigation fo r the dumping analysis in case the latter ... covers a 
period of less than 12 months."167   
175. The Panel also underscored that, in the petition submitted in June 2000, the domestic 
producers suggested that the six-month period of Ma rch to August should be used because it reflected 
the period of highest import penetration.168  Thus, according to the Panel, this period would show the 
most negative side of the state of the domestic industry.169  The Panel noted that, in its Preliminary 
Determination170, Economía stated that, in accordance with the information provided by the petitioner, 
"imports tend to be concentrated during the period from March to August every year, which 
corresponds to the investigated period proposed by the petitioner".171  The Panel explained that, 
although Economía was discussing the imports of pa ddy rice—the raw material for the production of 
the subject long-grain white rice—Economía neve rtheless "clearly accepted the link made between 
production of paddy rice and the imports of the fina l product which the applicant points out is mainly 
imported in the period March–August."172  Thus, the Panel noted that the Preliminary Determination 
referred to the petitioner's claim that the main impor t activity of the final product takes place within 
                                                      
166Panel Report, para. 7.81. 
167Ibid., para. 7.82. 
168Ibid., para. 7.83 (referring to the " Solicitud de investigación antidumping contra las importaciones 
de arroz blanco originarias de los Estados Unidos de América " ("Application for initiation of an anti-dumping 
investigation regarding imports of long-grain white ri ce from the United States"), 2 June 2000 (Exhibit US-8 
submitted by the United States to the Panel (the "Application for Initiation"), p. 34). 
169Panel Report, para. 7.85. 
170"Resolución preliminar de la investigación antidumping sobre las importaciones de arroz blanco 
grano largo, mercancía clasificada en la fracción arancelar ia 1006.30.01 de la Tarifa de la Ley del Impuesto 
General de Importación, originarias de los Estados Unidos de América, independientemente del país de 
procedencia ", Diario Oficial , 18 July 2001, pp. 3-54 (Exhibit US-14 submitted by the United States to the 
Panel) (the "Preliminary Determination"). 
171Ibid., para. 65.  
172Panel Report, para. 7.83. WT/DS295/AB/R 
Page 58  
 
the period March to August, during which period "paddy  rice is not harvested and for that reason this 
period adequately reflects the import activity."
173    
176. The Panel found that the injury analysis of Economía, which was based on data covering only 
six months of each of the three years examined, did not allow for an "objective examination", as 
required by Article 3.1 of the  Anti-Dumping Agreement , for two reasons:  first, 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,  Economía accepted the "period of investigation 
proposed by the applicants because it allegedly represented the period of hi ghest import penetration 
and would thus show the most negative side  of the state of the domestic industry".174  For these two 
reasons, the Panel considered that th e injury analysis was not based on  data that provided an "accurate 
and unbiased picture"175 and, therefore, was not "objective" within the meaning of Article 3.1.  As a 
consequence of a violation of Article 3.1 of the  Anti-Dumping Agreement , the Panel found that 
Mexico had acted inconsistently  with Article 3.5 of the  Anti-Dumping Agreement , which refers to the 
demonstration of a causal relationship between the dumped imports and the injury.  The Panel 
exercised judicial economy with respect to the United States' claims under Articles 1 (principles) 
and 6.2 (opportunity for defence) of the  Anti-Dumping Agreement .   
177. Mexico challenges the Panel's finding that Economía's injury analysis was not "objective" 
because it was based on data covering only six months  of each of the three years examined.  Mexico 
argues that, in making its findings, the Panel did not  rely on a legal basis, but only on assumptions.176  
Thus, according to Mexico, the assertions that Ma rch to August is the period of highest import 
penetration, and that this period s hows the most negative side of the state of the domestic industry, are 
unsubstantiated assumptions that reflect a "mere opinion".177  For Mexico, the Panel improperly 
assumed that there is a general rule according to which data relating to entire years have to be 
analyzed in an injury analysis.  Mexico submit s that the Panel thereby erred because such an 
assumption implies that, if an investigating authorit y were to use segments of years in its injury 
analysis, it would be presumed that the methodol ogy was not objective, and the responding Member 
would bear the burden of justifying that the agency's analysis was objective.178 
                                                      
173Panel Report, para. 7.83 (referring  to Preliminary Determination, supra , footnote 170, para. 64).  
174Ibid., para. 7.85. 
175Ibid., para. 7.79. 
176Mexico's appellant's submission, para. 71. 
177Ibid., paras. 73-74 (" una mera opinión "). 
178Ibid., para. 76.  WT/DS295/AB/R 
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178. Mexico also argues that the Panel erred in assu ming that the data relating to the March to 
August period for 1997, 1998, and 1999 showed the mo st negative side of the state of the domestic 
industry.  For Mexico, the methodology used by Ec onomía is not flawed because six-month periods 
with the same "structure" were compared.179  Mexico further submits that the information used by 
Economía does not constitute an "incomplete set of data"180 but, rather, is complete in that it allows a 
comparison of the relevant indicators for the do mestic industry with prior comparable periods.181  
Mexico adds that using comparable periods in the injury analysis constituted a proper methodology 
because "distortions" were avoided;  Economía was thus able to make a proper comparison between 
the data relating to the period of investigation and those pertaining to previous comparable periods.182  
Mexico reiterates that Economía used the March to  August period in 1997, 1998, and 1999 in order to 
avoid distortions in the comparis on between the period of investigation for purposes of the dumping 
determination and the period of investig ation for purposes of the injury analysis.183 
179. Mexico observes that, although in 1998 and 1999 lo ng-grain white rice imports were higher in 
the March to August period than in the rest of th e year, that was not the case in 1997, where long-
grain white rice imports were lower in the March to  August period than during the rest of the year.  
Mexico adds that the percentage by which imports  in the March to August periods of 1998 and 1999 
exceeded those during the rest of th e year was practically negligible.184  Accordingly, Mexico 
contends that the Panel's view that the March to  August period shows the most negative side of the 
state of the domestic industry rests upon a questionable premise.185  Mexico also contends that, 
contrary to what the Panel suggested, the dom estic production of long-grain white rice is not 
dependent on the production cycles of paddy rice b ecause, when there is a drop in domestic paddy 
rice production, the domestic producers of long-grai n white rice rely on imported paddy rice.  
Consequently, Mexico submits, domestic producti on of long-grain white rice remains constant 
throughout the year.186 
                                                      
179For Mexico, "the structur e is by definition the same if exactly  the same periods for each year are 
compared." (Mexico's appellant's submission, para. 81, " la estructura es por definición la misma si se comparan 
entre sí exactamente los mismos periodos de cada año .") 
180Panel Report, para. 7.81. 
181Mexico's appellant's submission, para. 81. 
182Ibid., para. 82. 
183Ibid. 
184Ibid., para. 83. 
185Ibid., paras. 83-84. 
186Ibid., para. 89. WT/DS295/AB/R 
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180. The Panel expressed the view that, under Article 3. 1, an injury analysis can be "objective" 
only "if it is based on data which provide an accura te and unbiased picture of what it is that one is 
examining".
187  This view is consistent with the Appellate Body's statement in  US – Hot-Rolled Steel   
regarding the requirement to conduct an "obj ective examination" under Article 3.1 of the  Anti-
Dumping Agreement :  
[A]n "objective examination" require s that the domestic industry, and 
the effects of dumped imports, be investigated in an unbiased manner, without favouring the interests of an y interested party, or group of 
interested parties, in th e investigation.  The duty of the investigating 
authorities to conduct an "objective examination" recognizes that the 
determination will be influenced by th e objectivity, or any lack thereof, 
of the investigative process.
188 (footnote omitted) 
Therefore, the question to be decided is whether th e Panel erred in finding that the data used by 
Economía in the injury analysis, which relate to the same six-month period in 1997, 1998, and 1999, 
did not provide an "accurate and unbiased picture" of the injury suffered by the domestic industry. 
181. We note that the Panel's finding is based not  only on Economía's selective use of the 
information gathered for the purpose of the injury analysis.  Indeed, in reaching the conclusion that 
the data used by Economía did not provide an "accu rate and unbiased picture", the Panel also relied 
on another factor:  the acceptance by Economía of the period of investigation proposed by the 
petitioner, knowing that the petitioner proposed that  period because it allegedly represented the period 
of highest import penetration.  It appears to us th at, in the specific circumst ances of this case, these 
two factors, considered together, were sufficient to make out a  prima facie   case that the data used by 
Economía did not provide an "accurate and unbiased picture".  
182. Mexico did not present an "effective refutation"189 of that  prima facie   case by providing a 
proper justification for the use of the March to August period.  The only explanation presented by 
Mexico, and reiterated on appeal, was that the pe riod of investigation for purposes of the dumping 
determination was March to August 1999, and that, therefore, it should be used in the injury analysis 
in order to avoid "distortions" in the comparison between the period of investigation for purposes of 
the dumping determination and the period of inv estigation for purposes of the injury analysis.190   
                                                      
187Panel Report, para. 7.79. 
188Appellate Body Report,  US – Hot-Rolled Steel , para. 193.  
189Appellate Body Report, EC – Hormones , para. 104. 
190Mexico's appellant's submission, para. 82. (" las distorsiones ")   WT/DS295/AB/R 
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183. In  US – Hot-Rolled Steel , the Appellate Body stated that, from the definition of injury 
provided in footnote 9 of the  Anti-Dumping Agreement191, "[i]t emerges clearly ... that the focus of an 
injury determination is the st ate of the 'domestic industry'."192  We fail to see how, in the present case, 
the use of data relating to the whole year, as oppo sed to the March to August period, would have 
introduced "distortions" of the assess ment of the "state of the domestic industry".  Rather, 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.  Moreover, the explanation put 
forward by Mexico implies that the dumping de termination and the injury determination are 
integrated.  This is not the case;  although injury a nd dumping must be linked by a causal relationship, 
these determinations are two separate operations re lying on distinct data seeking to determine 
different things.  Accordingly, we see no reason to disagree with the Panel that the explanation 
provided by Mexico with respect to Economía's choice of a limited period of investigation for 
purposes of the injury analysis was not a "proper justification"193 sufficient to refute the  prima facie   
case that the data used by Economía did not provide an "accurate and unbiased picture" of the state of 
the domestic industry.  We therefore agree with the Pa nel that the data used by Economía in the injury 
analysis, relating to the March to August period of 1997, 1998, and 1999, did not  provide an "accurate 
and unbiased picture" of the state of the domestic in dustry and, thus, did not result in an "objective 
examination" as required by Article 3.1 of the  Anti-Dumping Agreement . 
184. On appeal, Mexico's objections to the Panel's reasoning are not, in substance, different from 
the arguments it submitted before the Panel.  Mexi co argues that the proposition that the March to 
August period is the period of highest import pe netration is an unsubstantiated assumption that 
reflects a "mere opinion".194  We disagree.  In its reasoning, the Panel referred to the petitioner's 
position that the main import activity of long-grain white rice takes place within the March to August 
period—during which paddy rice is not harvested in  Mexico—and that, for this reason, this period 
adequately reflects the import activity.195  Making such a reference is not, in our view, making an 
unsubstantiated assumption that reflects a "mere opinion".   
                                                      
191Footnote 9 to Article 3 of the  Anti-Dumping Agreement   reads: 
Under this Agreement the term "injury" shall, unless otherwise specified, be 
taken to mean material injury to a domestic industry, threat of material 
injury to a domestic industry or material retardation of the establishment of 
such an industry and shall be interp reted in accordance with the provisions 
of this Article. 
192Appellate Body Report,  US – Hot-Rolled Steel , para. 189. 
193Panel Report, para. 7.81. 
194Mexico's appellant's submission, paras. 73-74. (" una mera opinión ") 
195Panel Report, para. 7.83 (referring to Application for Initiation, supra , footnote 168, p. 34;  and 
Preliminary Determination, supra , footnote 170, para. 64). WT/DS295/AB/R 
Page 62  
 
185. Nor can we accept Mexico's argument that the Panel created a presumption that an injury 
analysis based on data relating to only parts of years is not objective.  We note, first, that the Panel 
underscored that its "ruling should not be read as to imply that there could never be any convincing 
and valid reasons for examining only parts of years."
196  Secondly, the Panel's finding is not based 
exclusively on the fact that Economía was selective as regards the data it used in the injury analysis.  
It is the combination of this factor with a nother—"the acceptance of a period of investigation 
proposed by the applicants because it allegedly represented the period of hi ghest import penetration 
and would thus show the most negative si de of the state of the domestic industry"197—that led the 
Panel to consider that a  prima facie   violation of Article 3.1 had been established.  Mexico had an 
opportunity to refute the  prima facie   case by presenting a "proper justification" for the use of the 
March to August period;  however, it failed to do so. 
186. Mexico submits that the methodology used was not flawed because six-month periods with 
the same structure were compared.198  We agree with Mexico that it was not improper for Economía 
to make comparisons with previous years.  The Pa nel, however, did not find that Economía could not 
make comparisons with previous periods in the injury analysis.  The Panel discussed a different 
question, namely, whether Economía's methodology was flawed because segments of years were 
compared instead of full years.   
187. Mexico argues that, in 1997, long-grain white rice  imports were lower in  the March to August 
period than in the rest of the year, and that in 1998 and 1999, imports in the March to August period 
were higher than in the rest of the year by only a negligible amount.  Mexico also contends that the 
domestic production of long-grain white rice is inde pendent of the production cycles of paddy rice.  
On these bases, Mexico questions what it alleg es are the premises on which the Panel based its 
assertion that the period March to August shows the most negative side of the state of the domestic industry.
199  Mexico's allegations refer to facts concer ning import patterns of long-grain white rice and 
the relationship between the production of long-grain wh ite rice and that of paddy rice.  Contrary to 
what Mexico suggests, the Panel's reasoning was not  centred on an assessment of the import patterns 
of long-grain white rice or the relationship between the production of long-grain white rice and that of 
paddy rice.  On these questions of fact, the Pane l did not make any finding , because it considered it 
                                                      
196Panel Report, para. 7.82. 
197Ibid., para. 7.85. 
198Mexico's appellant's submission, para. 81.  
199Ibid., para. 84.  WT/DS295/AB/R 
 Page 63 
 
 
was unnecessary to do so.200  Rather, the Panel's position was based on the findings that Economía 
selected the same period of investigation as that put forward by the petitioner, and that the petitioner 
proposed this period because the months March to August allegedly represent the period of highest 
import penetration.201  As we mentioned above, we are of the view that the Panel did not err by taking 
into account this factor in its analysis.202   
188. For these reasons, we  uphold   the Panel's findings, in paragra phs 7.86 and 8.1(b) of the Panel 
Report, that, in limiting the injury analysis to th e March to August period of 1997, 1998, and 1999, 
Mexico failed to make a determination of injury that involves an "objective examination", as required 
by Article 3.1 of the  Anti-Dumping Agreement .  Accordingly, we also  uphold   the Panel's findings, in 
paragraphs 7.87 and 8.1(b) of the Panel Report, that, in limiting the injury analysis to the March to 
August period of 1997, 1998, and 1999, Mexico act ed inconsistently with Article 3.5 of that 
Agreement.  
D. The Volume and Price Effects of the Dumped Imports 
189. We move now to the issue whether the Panel erred in finding that Economía did not conduct 
an objective examination based on pos itive evidence in its analysis of  the volume and price effects of 
the dumped imports.  This issue concerns the me thodology used by Economía to determine the 
volume of the dumped imports and that used to de termine the price effects of the dumped imports.  
The Panel found that the use of these methodologies resulted in an injury analysis that was not 
consistent with the requirements under Articles 3.1 and 3.2 of the  Anti-Dumping Agreement   to 
conduct an objective examination based on positive ev idence of the volume and price effects of the 
dumped imports. 
                                                      
200Panel Report, para. 7.85.  Mexico's position that, in 1997, long-grain white rice imports were lower 
in the March to August period than in the rest of the year, and that, in 1998 and 1999, imports in this period were higher than in the rest of the year by only a negligible amount, is based on a table presented in 
paragraph 83 of Mexico's appellant's submission.  In response to questioning at the oral hearing, Mexico 
indicated that this table was submitted to the Panel, whereas the United States said that, before the Panel, it 
contested the validity of the information set out in the tabl e.  The Panel did not make any finding with respect to 
this table. 
201Panel Report, para. 7.85.  The petitioner's position is set out in the Application for Initiation, supra , 
footnote 168, p. 34 and in the Preliminary Determination, supra , footnote 170, para. 64.  Further to questioning 
at the oral hearing, Mexico recognized that, before Economía, the petitioner took the position that the main import activity of long-grain white ri ce in Mexico takes place within the March to August period, and that 
Economía accepted this position. 
202Supra , para. 181. WT/DS295/AB/R 
Page 64  
 
1. Economía's Analysis
 
190. Economía explains in the Final Determina tion how it established the volume of dumped 
imports of the subject product into Mexico.203  The Final Determinati on shows that Economía was 
confronted with the problem of dis tinguishing, first, the subject rice  imports (that is, "long-grain white 
rice") from imports of all types of rice, and, second ly, the imports of the subject product that were 
dumped into Mexico from those imports that were not  dumped.  The first problem arose from the fact 
that the tariff line under which long-grain white rice was imported (1006.30.01) at the time of the investigation also covered other types of rice, su ch as medium-grain and short-grain rice, as well as 
glazed or parboiled rice, which were  not part of the investigation. 
191. Economía had requested information about l ong-grain white rice exports from each of the 
four companies that participated in  the investigation.  One firm re plied that it had not exported during 
the period of investigation and, therefore, it did not provide any information.  Economía considered 
that the only company that provided correct inform ation for the whole period of investigation was 
Farmers Rice, whose exports increased by 303. 7 per cent in the 1998 March to August period, 
compared to the previous corresponding period, an d by 12.3 per cent during the investigated period 
in 1999, in relation to the previous corresponding period.
204  Economía considered that two other 
participating companies, The Rice Company and Ri celand, did not provide accurate information for 
the whole period of investigation, and decided, fo r that reason, not to use the information submitted 
by these two companies.  Instead, it established that the variation in volume of exports observed in the 
case of Farmers Rice was an acceptable indicator of the behaviour of the exports by Riceland and The 
Rice Company. 
192. Economía did not find a dumping margin for Farmers Rice and Riceland. 
193. For determining the volume of imports from co mpanies other than the four participating 
firms, Economía decided to use the methodology pr oposed by the petitioner:  rice imported below a 
certain price level was to be treated as the subject  product, long-grain white rice, while rice imported 
above that price was not.  Economía explained that it decided to use this methodology, even though 
the methodology failed to provide accurate info rmation for the years 1997 and 1998.  Economía 
sought to overcome this lack of accurate data for the years 1997 and 1998 by assuming that the share 
of imports of the subject product in the total imports of all types of rice during those years was the same as in the year 1999.  On this basis, Econom ía established that, as regards the companies other 
than the four participating companies, the inves tigated imports increased 8.6 per cent in the period 
                                                     
 
203Final Determination, supra , footnote 9, paras. 206-261.  
204Ibid., paras. 226-227.   WT/DS295/AB/R 
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March to August 1998, in relation to the same period in the previ ous year, and increased 3.4 per cent 
during the investigation period of March to Augus t 1999, in relation to the previous comparable 
period. 
194. Regarding the second problem of separating the volume of dumped subject imports from non-
dumped subject imports, Economía took the total volume of imports of the subject product and 
subtracted from that amount the imports from the expor ters that participated in the investigation and 
for which no dumping margin was found. 
195. With respect to the analysis of the evolution of  prices of the subject imports and their effects 
on domestic prices, Economía considered, first, that , as the price of all kinds of rice decreased during 
the investigation period, and as the export price of Farmers Rice also decreased, it was reasonable to 
conclude that the prices of the remaining imports, including the dumped imports, decreased.205  
Furthermore, Economía observed that, during the i nvestigation period, the dumped products were 
priced below the domestic product and that the pri ce of the dumped imports was lower than the prices 
of the domestic products in periods  previous to the investigated period.  As a result, Economía 
determined that this situation pr ovoked the decline in the prices of the domestic producers.  Also, 
Economía considered that the entry during the inv estigated period of imports at reduced prices from 
Argentina and the decline, in the same period, of the price of non-dumped imports from the United States, contributed to the decline in prices of th e domestic products.  Thus, Economía determined that 
the dumped imports from the United States contributed to pressure faced by the domestic producers to 
lower their prices during the investigated period.
206 
2. The Panel's Reasoning and Mexico's Appeal  
196. From reading Articles 3.1 and 3.2 of the Anti-Dumping Agreement  together, the Panel 
concluded that the basis for any evaluation as to the volume of dumped imports or the price effects of such imports had to be positive evidence, and that "t he word 'positive' means that the evidence must 
[have been] of an affirmative, objective and veri fiable character, and that it must be credible."
207  
Thus, for the Panel, the question before it was whether Economía had based its determination on 
information that is affirmative, objective, verifiable, and credible. 
                                                      
205Final Determination, supra , footnote 9,  para. 270.  
206Ibid., paras. 285 and 294-296.  
207Panel Report, para. 7.98. WT/DS295/AB/R 
Page 66  
 
197. As regards the analysis of the volume of the dumped imports, the Panel was of the view that 
the methodology used by Economía was flawed and r esulted in a determination that was not based on 
positive evidence.  For the Panel, the determinati on of the volume of dumped imports was based not 
on facts, but on a series of unsubstantiated assumptions made by Economía
208:  (i) as regards 
companies other than the four participating firms, ri ce sold below a certain price level was assumed to 
be long-grain white rice209;  (ii) during the years 1997 and 1998, the subject imports from companies 
other than the four participating firms were assume d to keep the same share in the total amount of 
imports of all types of rice from the United States as in the year 1999210;  and (iii) it was assumed that 
all examined firms' export volumes show a similar trend to that of the exporter that provided full 
three-year volume information, namely, Farmers Rice.211  The Panel was of the view that all these 
assumptions were unsubstantiated.  The Panel added that Economía a ppeared to have consistently 
chosen to make assumptions that negatively affected exporters' interests.212 
198. With regard to the analysis on the evolution of prices of the dumped imports and their effects 
on domestic prices, the Panel also found that Economí a's determination that dumped imports resulted 
in a decline in domestic prices was based on unsubstantiated assumptions and, accordingly, was 
inconsistent with Articles 3.1 and 3.2 of the  Anti-Dumping Agreement .  The Panel observed that 
Economía had compared three types of prices:  (a) export price of all types of rice (both subject rice and non-subject rice);  (b) export price of Farmers Rice, a producer with no margin of dumping;  and (c) the export price of the remaining imports, including the dumped imports.  According to the Panel, 
Economía had assumed that:  
... because the price of a broader category of rice – i.e. category (a) -- 
declined, and because the prices of one participating exporter of the 
subject product, who was not found to have been dumping, 
decreased, the third category of rice – (c) or "dumped imports" -- is a sub-set of the first category of rice, and this third category of rice must have declined also.
213 (footnote omitted)  
The Panel did not consider this to be a warranted assumption.   
                                                      
208Panel Report, para. 7.111. 
209Ibid. 
210Ibid. 
211Ibid., para. 7.112. 
212Ibid. 
213Ibid., para. 7.113.  WT/DS295/AB/R 
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199. For these reasons, the Panel found that Economía's injury analysis with regard to the volume 
and price effects of the dumped imports was inconsis tent with the requirements of Articles 3.1 and 3.2 
of the  Anti-Dumping Agreement   to conduct an objective examination based on positive evidence.  In 
the light of these findings, the Panel exercised judi cial economy as regards the United States' claim 
based on Article 6.8 of the  Anti-Dumping Agreement   (determinations on facts available) and 
Annex II (best information available) thereto. 
200. On appeal, Mexico challenges the Panel's findi ng that Economía did not conduct an objective 
examination based on positive evidence of the volume and price effects of the dumped imports, as 
required by Articles 3.1 and 3.2 of the  Anti-Dumping Agreement .  According to Mexico, Economía 
made an objective examination based on positive evid ence because, in its injury analysis, it relied on 
the information available to it, including the re levant data, and it eval uated this information 
correctly.214  Mexico adds that Economía's examina tion of the trends in the volume of dumped 
imports was based on facts properly established, as it appears from the structure of the Final Determination, in which all the background, considerations, findings, and elements of the 
determination consistent with Mexico's obligations under the  Anti-Dumping Agreement   were set 
out.
215  For Mexico, Article 3 of the  Anti-Dumping Agreement   does not impose any requirement on 
the methodology to be used and, therefore, the f act that Economía used the methodology described in 
the Final Determination does not imply any violation of the  Anti-Dumping Agreement .216  M e xi c o 
also submits that the Panel's statement that "the investigating authority consistently chose to make 
assumptions which negatively affected the exporters' interests"217, is not supported by legal 
reasoning.218  According to Mexico, Economía conducte d an injury analysis based on positive 
evidence because it considered all th e available relevant information219, and it was not possible to 
collect any more information than that used during the investigation.220 
                                                      
214Mexico's appellant's submission, para. 99. 
215Ibid., para. 100. 
216Ibid., para. 106. 
217Panel Report, para. 7.112. 
218Mexico's appellant's submission, paras. 108-109. 
219Ibid., para. 111. 
220Ibid., para. 110. WT/DS295/AB/R 
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3. Analysis
 
201. We begin our analysis with the text of Articles 3.1 and 3.2 of the  Anti-Dumping Agreement , 
which provide: 
Determination of Injury  
3.1 A determination of injury for purposes of Article VI of 
GATT 1994 shall be based on pos itive evidence and involve an 
objective examination of both (a) the volume of the dumped imports 
and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these 
imports on domestic producers of such products. 
3.2 With regard to the volume of the dumped imports, the 
investigating authorities shall cons ider whether there has been a 
significant increase in dumped imports, either in absolute terms or relative to production or consump tion in the importing Member.   
With regard to the effect of the dumped  imports on prices, the 
investigating authorities shall cons ider whether there has been a 
significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree  or prevent price increases, which otherwise would 
have occurred, to a significant degree.  No one or several of these 
factors can necessarily give decisive guidance. (footnote omitted)  
202. We agree with the Panel that it flows from read ing these two provisions together that the basis 
of any evaluation as to the volume of dumped imports or the price effects of such imports has to be 
positive evidence.
221  In this respect, the Appellate Body stated, in  US – Hot-Rolled Steel , that the 
term "positive evidence" in Article 3.1 relates "to the quality of the evidence that authorities may rely 
upon in making a determination" and that "[t]he word ' positive' means ... that the evidence must be of an 
affirmative, objective and verifiable character, and that it must be credible."222  We also observe that, in  
Thailand – H-Beams , the Appellate Body said that "Article 3.1 is an overarching provision that sets 
forth a Member's fundamental, substantive obligation"  with respect to the injury determination, and 
that this general obligation "informs the more de tailed obligations" in the remainder of Article 3.223  
Therefore, it appears to us that the Panel correc tly identified the question it had to address, namely, 
whether Economía based its determinations regardin g the volume of dumped imports and the effect of 
                                                      
221Panel Report, para. 7.98. 
222Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
223Appellate Body Report, Thailand – H-Beams , para. 106.  WT/DS295/AB/R 
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the dumped imports on prices in the domestic market  on information that has the quality of positive 
evidence.224 
203. In the methodology used to determine the volume of dumped imports, Economía relied on 
three assumptions, which we set out above.225  Its determination on the price effects of the dumped 
imports was also built upon the assumption that the e xport price of the dumped imports follows the 
same evolution as the export price of all types of rice (both subject rice and non-subject rice) and the 
export price of Farmers Rice, a firm that was found not to have a margin of dumping.226  All these 
assumptions were critical to Economía's reasoning and its determinations on the volume and the price 
effects of the dumped imports.   
204. Mexico is correct in asserting that Articles 3.1 and 3.2 do not prescribe a methodology that 
must be followed by an investigating authority in  conducting an injury analysis.  Consequently, an 
investigating authority enjoys a certain discreti on in adopting a methodology to guide its injury 
analysis.  Within the bounds of this discretion, it may be expected that an investigating authority 
might have to rely on reasonable assumptions or  draw inferences.  In doing so, however, the 
investigating authority must ensure that its dete rminations are based on "positive evidence".  Thus, 
when, in an investigating authority's methodol ogy, a determination rests upon assumptions, these 
assumptions should be derived as reasonable inferences from a credible basis of facts, and should be sufficiently explained so that their objectivity and credibility can be verified.  
205. In this case, the Panel found violati ons of Articles 3.1 and 3.2 of the  Anti-Dumping 
Agreement   because important assumptions on which Ec onomía was relying in its methodology were 
"unsubstantiated".
227  An investigating authority that uses a methodology premised on unsubstantiated 
assumptions does not conduct an examination based  on positive evidence.  An assumption is not 
properly substantiated when the investigating aut hority does not explain why it would be appropriate 
to use it in the analysis.  The assumptions on wh ich Economía relied in its methodology played an 
important role in its reasoning.  In the Final Determination, Economía di d not explain why these 
assumptions were appropriate and credible in the analysis of the volume and price effects of the 
dumped imports, or how they would contribute to providing an accurate picture of the volume and 
                                                      
224Panel Report, para. 7.110. 
225See  supra , para. 197. 
226Final Determination, supra , footnote 9, para. 270.  
227Panel Report, paras. 7.111-7.113. WT/DS295/AB/R 
Page 70  
 
price effects of the dumped imports.
228  We therefore agree with the Panel that the assumptions on 
which Economía was relying in its methodology  were not properly substantiated.   
206. Accordingly, we  uphold   the Panel's findings, in paragra phs 7.116 and 8.1(c) of the Panel 
Report, that Economía's injury analysis with r espect to the volume and price effects of dumped 
imports was inconsistent with the requi rements of Articles 3.1 and 3.2 of the Anti-Dumping 
Agreement   to conduct an objective examination based on positive evidence.  
VI. Economía's Dumping Determination 
A. The Application of the Anti-Dumping Measure to Farmers Rice and Riceland 
207. We now turn to issues relating to Economía's  dumping determination.  The first issue we 
examine is whether the Panel erred in finding that, by not excluding Farmers Rice and Riceland from 
the application of the definitive anti-dumping measure , Mexico acted inconsiste ntly with Article 5.8 
of the  Anti-Dumping Agreement .  These two exporters were found by  Economía not to have been 
dumping during the period of inv estigation, but were nevertheless covered by the anti-dumping 
measure. 
208. The Panel found that, by not excluding Farmers Rice and Riceland from the application of the 
definitive anti-dumping measure, Mexico did not terminate immediately the anti-dumping investigation with respect to these non-dumping export ers and, therefore, acted inconsistently with 
Article 5.8 of the  Anti-Dumping Agreement .  For the Panel, the second sentence of Article 5.8 
requires the immediate termination of the investig ation in respect of an exporter for which an 
individual margin of dumping of zero or  de minimis   is found.  This is a proper reading of Article 5.8 
because, the Panel reasoned, the term "margin of  dumping" in Article 5.8—as well as in the  Anti-
Dumping Agreement   in general—refers to the individual margin of dumping of an exporter or 
producer, rather than to a country-wide margin of dumping.
229  The Panel based this view on the fact 
that Article 6.10 of the  Anti-Dumping Agreement   provides that the authorities shall, as a rule, 
determine an individual margin of dumping for each  known exporter or producer of the product under 
investigation.  The Panel examined the rest of the Anti-Dumping Agreement   and found that there was 
nothing in that Agreement that contradicts the conclusion that the term "margin of dumping" is 
                                                      
228Final Determination, supra , footnote 9, paras. 228-229, 239, and 270.  The justification provided by 
Economía for resorting to assumptions was the lack of hard data.  This is  not a sufficient explanation because, 
by definition, assumptions are used in the absence of hard evidence, as surrogates for such data.  Instead, we would expect an investigating authority to substan tiate the reasonableness and credibility of particular 
assumptions.  
229Panel Report, para. 7.137.  WT/DS295/AB/R 
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company-specific, rather than country-wide.230  In particular, the Panel observed that "[a] number of 
references to the 'exporter or producer under i nvestigation' in Article 2, for example in 
Article[s]  2.2.1.1, 2.2.2, and 2.3 of the [ Anti-Dumping Agreement ], make explicit the generally 
accepted understanding that Article 2 of the [ Anti-Dumping Agreement ] prescribes the manner in 
which an individual margin of dumping for an expo rter or producer under investigation is to be 
determined."231  According to the Panel, "whenever the [ Anti-Dumping Agreement ] refers to the 
determination of a margin of dumping, it refers  to the margin of dumping determined for the 
individual exporter."232   
209. The Panel considered that Economía's calculation of individual margins of dumping for all 
exporters participating in the investigation was cons istent with the Panel's views.  The Panel also 
underscored that, in Article 5.8 of the  Anti-Dumping Agreement , the margin of dumping is juxtaposed 
with the volume of dumped imports and that, whereas it is expressly stipulated that the latter is to be 
examined on a country-wide basis, no such stipulation is made with regard to the margin of dumping.  For the Panel, this confirmed its view that the refe rence to the margin of dumping in Article 5.8 is a 
reference to the individual margin of dumping to  be determined on an exporter-specific basis.
233  
Accordingly, the Panel found that the investigation that is to be immediately terminated under the 
second sentence of Article 5.8 is the investigation in  respect of the individual exporter for which a 
zero or  de minimis   margin is established.234 
210. The Panel then addressed Mexico's argument that  the application of the anti-dumping order to 
Farmers Rice and Riceland was WTO-consistent because no duty in excess of the zero margin of 
dumping was imposed and that, as long as the requireme nt of Article 9.3 (amount of dumping duty) is 
respected, nothing in the Agreement prohibits th e inclusion of non-dumping exporters in an anti-
dumping measure.  The Panel rejected this argum ent on the ground that Articles 5.8 and 9.3 serve 
different purposes and that, accordingly, compliance with Article 9.3 does not constitute compliance 
with Article 5.8.  For the Panel, Article 5 of the  Anti-Dumping Agreement , entitled "Initiation and 
Subsequent Investigation", concerns the investiga tion to determine whether or not an exporter or 
producer may be subject to an anti-dumping order.  In  this context, the Panel reasoned, Article 5.8 of 
the  Anti-Dumping Agreement   requires the termination of the in vestigation, and thus the exclusion 
from the anti-dumping order, of any exporter or producer with a margin of dumping below  
de minimis .  The Panel contrasted this with Article 9.3,  which deals with the amount of the duty to be 
                                                      
230Panel Report, para. 7.138. 
231Ibid., para. 7.139. (footnote omitted) 
232Ibid., para. 7.140. 
233Ibid., para. 7.141. 
234Ibid., para. 7.140. WT/DS295/AB/R 
Page 72  
 
imposed and collected after it has been established th at a duty may be applied to a given exporter or 
producer.
235  Accordingly, the Panel found that, by not excluding from the application of the definitive 
anti-dumping measure two exporters that were found by  Economía not to have  been dumping, Mexico 
did not terminate immediately the investigation in resp ect of them and, thus, acted inconsistently with 
Article 5.8 of the  Anti-Dumping Agreement .  
211. On appeal, Mexico challenges this finding on the ground that the Panel did not interpret 
Article 5.8 correctly.  Mexico argues that, contra ry to the Panel's view, Article 5.8 requires the 
termination of the investigation when, for a give n country, the country-wide margin of dumping is  
de minimis .  Mexico contends that the Panel came to the erroneous conclusion that the term "margin 
of dumping" in Article 5.8 refers to the individu al margin of dumping of an exporter or producer, 
rather than to a country-wide margin of dum ping;  the Panel erred because it focused on the 
interpretation of the term "margin of  dumping" instead of analyzing, first, the term "investigation" and 
the phrase "an investigation shall be terminated prom ptly".  Mexico argues that the Panel's reasoning 
implies that, in anti-dumping procedures, the number of investigations should be equal to the number 
of exporters involved236, which would be inconsistent with th e text of Article 5.8 referring to the 
termination of "an investigation".  Mexico adds that the phrase "to justify proceeding with the case" in 
the first sentence of Article 5.8, as well as the phras e "[t]here shall be immediate termination" in the 
second sentence, confirms that the phr ase "an investigation shall be term inated promptly" refers to the 
procedure as a whole, and not to actions in respect of one exporter.237  For Mexico, the main purpose 
of anti-dumping procedures is to undertake a revi ew with regard to products, not exporters.238  Thus, 
the word "investigation", used in Ar ticle 5.8, refers to a stage in any anti-dumping procedure, and not 
to action with respect to an individual exporter.239 
212. Mexico also argues that the Panel erred in finding that Article 5.8 requires "the exclusion 
from the anti-dumping order of any exporter or producer with a below  de minimis   margin of 
dumping"240, because such a finding is based on the as sumption that definitive anti-dumping duties 
constitute a measure.  For Mexico, this assumption is incorrect:  definitive anti-dumping duties would 
not, in themselves, constitute a measu re;  the measure would consist, rather, of the act of the authority 
that imposes such duties.241  Mexico goes on to argue that nowhere in the  Anti-Dumping Agreement   
                                                      
235Panel Report, para. 7.144. 
236Mexico's appellant's submission, para. 124. 
237Ibid. 
238Ibid. 
239Ibid. 
240Panel Report, para. 7.144. 
241Mexico's appellant's submission, para. 124.  WT/DS295/AB/R 
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is it stated that it is not possible to apply a measure to exporters for whom a  de minimis   margin has 
been determined.242  
213. Mexico submits that Article 3.3 of the  Anti-Dumping Agreement   provides relevant context 
for interpreting Article 5.8, and that the Panel erre d by ignoring this provision.  Article 3.3 refers, 
inter alia , to the determination that "the margin of du mping established in relation to the imports from 
each country is more than  de minimis   as defined in paragraph 8 of Article 5".  Mexico underscores 
that Article 3.3 refers to a country-wide margin of  dumping, not to the individual margin of dumping 
of an exporter or producer.  Mexico also emphasizes that Article 5.8 is specifically mentioned in Article 3.3.  According to Mexico, Article 3.3 conf irms that the relevant margin of dumping is the 
margin of dumping established in relation to the imports from each country.
243 
214. Finally, Mexico contends that, in any event, it acted consistently with Article 5.8 because 
Economía was satisfied that the margin of dumpi ng for Riceland and Farmers Rice was zero per cent 
only at the stage of the final determination, and the investigation was terminated at that stage.244  
Mexico states that the second sentence of Article 5. 8 provides that the termination of the investigation 
takes place when the authority determin es that "the margin of dumping is  de minimis ".  Mexico 
explains that, with respect to Mexico's anti-dum ping regime, such a determ ination cannot be made 
before the final determination stage, because it is only at that moment that Economía is able to 
determine with certainty whether the margin of dumping is  de minimis .245  Mexico thus contends that, 
vis-à-vis   Riceland and Farmers Rice, it complied with  Article 5.8, because Economía was satisfied 
that their margin of dumping was zero per cent only when the final determination was made, and 
Economía terminated the investigation at that time.246  
                                                      
242Mexico's appellant's submission, para. 124. 
243Ibid., para. 128. 
244Ibid., para. 139. 
245Ibid., para. 141. 
246Ibid., para. 142. WT/DS295/AB/R 
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215. We begin our analysis with Article 5.8 of the  Anti-Dumping Agreement , which reads: 
An application under paragraph 1 shall be rejected and an 
investigation shall be terminated promptly as soon as the authorities 
concerned are satisfied that there is  not sufficient evidence of either 
dumping or of injury to justify proceeding with the case.  There shall be immediate termination in cases where the authorities determine that the margin of dumping is  de minimis , or that the volume of 
dumped imports, actual or potential, or  the injury, is negligible.  The 
margin of dumping shall be considered to be de minimis  if this 
margin is less than 2 per cent, e xpressed as a percentage of the export 
price.  The volume of dumped imports shall normally be regarded as negligible if the volume of dumped imports from a particular country 
is found to account for less than 3 per cent of imports  of the like 
product in the importing Member, unless countries which individually account for less than 3 per cent of the imports of the like product in the importing Member collectively account for more than 7 per cent of imports of the like product in the importing Member. 
216. The Panel's position—that the term "margin of  dumping" in Article 5.8 refers to the 
individual margin of dumping of an exporter or pr oducer rather than to a country-wide margin of 
dumping—is consistent with the use of the term "margins of dumping" in Article 2.4.2 of the  Anti-
Dumping Agreement
247, as stated by the Appellate Body in  US – Hot-Rolled Steel :  
"[M]argins" means the individual margin of dumping determined for 
each of the investigated exporters and producers of the product under investigation, for that particular product.
248 (footnote omitted) 
217. We also agree with the reasons provided by the Panel in support of its position, which are set 
out in paragraphs 7.137 to 7.142 of the Panel Report, and summarized in paragraph 208 above.  
Accordingly, we share the Panel's view that the second sentence of Article 5.8 requires the immediate 
termination of the investigation in respect of exporters for which an  individual   margin of dumping of 
zero or  de minimis   is determined.   
                                                      
247Article 2.4.2 of the  Anti-Dumping Agreement   provides: 
Subject to the provisions governing fa ir comparison in paragraph 4, the 
existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average 
normal value with a weighted average of prices of all comparable export 
transactions or by a comparison of no rmal value and export prices on a 
transaction-to-transaction basis.  A normal value established on a weighted 
average basis may be compared to prices of individual export transactions if 
the authorities find a pattern of export prices which differ significantly 
among different purchasers, regions or time periods, and if an explanation is 
provided as to why such  differences cannot be taken into account appropriately by the use of a weight ed average-to-weighted average or 
transaction-to-transaction comparison. 
248Appellate Body Report, US – Hot-Rolled Steel , para. 118.  WT/DS295/AB/R 
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218. Having said that, we agree with Mexico that, for the purposes of Article 5.8, there is one 
investigation and not as many investigations as ther e are exporters or foreign producers.  However, 
nothing in the Panel Report suggests to us that the Panel assumed differently.  The Panel's position 
was, rather, that there is a single investigation, and that Article 5.8 requires the "immediate termination" of this investigation  in respect of   the individual exporter or producer for which a zero or 
 de minimis   margin is established.
249   
219. The second sentence of Article 5.8 provides that th ere shall be "immediate termination" of the 
investigation where the authorities determ ine that the margin of dumping is  de minimis .  The issuance 
of the order that establishes anti-dumping duties—or  the decision not to issue an order—is the 
ultimate step of the "investigation" contemplated in Article 5.8;  in most cases, an investigation is 
"terminated" with the issuance of an order or a de cision not to issue an order.  This ultimate step 
necessarily follows the final determination.  In  the present case, the order establishing anti-dumping 
duties came  after   the final determination of a margin of dumping of zero per cent was made for 
Farmers Rice and Riceland, but the order nevert heless covered these exporters.  Given that the 
issuance of the order establishing anti-dumping duti es necessarily occurs after the final determination 
is made, the only way to terminate  immediately   an investigation, in respect of producers or exporters 
for which a  de minimis   margin of dumping is determined, is  to exclude them from the scope of the 
order.  Economía failed to do so, and, therefore, it did not terminate  immediately   the investigation in 
respect of Farmers Rice and Riceland, as required by Article 5.8 of the  Anti-Dumping Agreement .  
220. Regarding Mexico's arguments a bout the relevant context in Article 3.3 for interpreting the 
term "margin of dumping" in Article 5.8, in our op inion, Article 3.3 does not add to the analysis of 
Article 5.8.  First, Article 3.3 establishes conditions  for cumulation of the effects of the imports from 
more than one country, which is unrelated to the te rmination of an investigation under Article 5.8.  
Secondly, although, as Mexico pointed out, Article 3.3 refers to Article 5.8, this reference concerns 
uniquely the definition of a  de minimis   margin of dumping (defined in the third sentence of 
Article 5.8 as a margin of less than two per cent,  expressed as a percentage of the export price).  
Mexico's contention that the Panel erred in the in terpretation of Article 5.8 does not relate to the 
definition of " de minimis ".  Accordingly, we are of the view that the reference to Article 5.8 in 
Article 3.3 is not relevant to Mexico's argument under Article 5.8.  Thirdly, it is explicitly provided in 
Article 3.3 that "the margin of dumping [is] establis hed in relation to the imports from each country".  
It could be argued that this spec ific language was incorporated into  Article 3.3 to mark a departure 
from the general rule that the term "margin of dumpi ng" refers to the individu al margin of dumping of 
an exporter or producer.  In other words, although Me xico contends that Article 3.3 provides context 
                                                      
249Panel Report, para. 7.140. WT/DS295/AB/R 
Page 76  
 
to suggest that the Panel erred in its interpretation of Article 5.8, it could also be viewed as context 
that supports the Panel's interpretati on of Article 5.8, as no language simi lar to that of Article 3.3 ("the 
margin of dumping [is] established in relation to  imports from each country") can be found in 
Article 5.8.  Accordingly, we are of the view that , contrary to what Mexico argues, Article 3.3 does 
not provide useful context for interpreting the term "margin of dumping" in Article 5.8.  
221. For all these reasons, we  uphold   the Panel's findings, in paragraphs 7.145 and 8.3(a) of the 
Panel Report, that Mexico acted inconsistently with Article 5.8 of the  Anti-Dumping Agreement   
when it did not terminate immediately the inves tigation in respect of Farmers Rice and Riceland 
because Economía did not exclude them from the ap plication of the definitive anti-dumping measure, 
whereas these exporters were found by Ec onomía not to have been dumping.  
B. The Margin of Dumping for Produ cers Rice and the Terms of Reference 
222. We move now to the issue whether the Panel acted  in conformity with its terms of reference 
in finding that the margin of dumping was calculated in a manner inconsistent with Article 6.8 of the 
Anti-Dumping Agreement , read in the light of paragraph 7 of Annex II thereto. 
223. This issue concerns Economía's calculation of a margin of dumping for Producers Rice based 
on the facts available.  This firm did not export the subject product during the period of investigation.  It also responded to the questionnaire and fully co operated with Economía.  Mexico contends that, 
under the terms of reference, the Panel did not have the authority to assess whether, in applying a 
facts available-based dumping margin to Produ cers Rice, Economía acte d consistently with 
Article 6.8 of the  Anti-Dumping Agreement   and Annex II thereto, given that the Panel found that 
Mexico did not breach Article 9.4 of the  Anti-Dumping Agreement . 
224. The Panel addressed, first, the United States' claim that the anti-dumping duty for Producers 
Rice should have been determined on the basis of the methodology described in Article 9.4 of the 
 Anti-Dumping Agreement .  The Panel considered that Article 9.4 deals with "the very specific and 
defined situation of the use of a sample by the i nvestigating authority" in cases where the number of 
exporters, producers, importers, or types of products  involved is so large as to make impracticable the 
determination of an individual margin of  dumping for each known exporter or producer.
250  For this 
particular situation, the Panel added, Article 9. 4 provides a specific methodology with regard to the 
calculation of the anti-dumping duty for those interested parties that did not form part of the sample.
251  For the Panel, Article 9.4 does not appl y to situations other than cases involving 
                                                      
250Panel Report, para. 7.157. 
251Ibid., para. 7.158.  WT/DS295/AB/R 
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sampling.252  In this case, Economía did not resort to sampling.  The Panel therefore rejected the 
United States' claim relating to Article 9.4.253 
225. The Panel went on to examine the United States' claim that Economía acted in breach of 
Article 6.8 of the  Anti-Dumping Agreement   when resorting to the use of  facts available to calculate a 
duty rate for the non-shipping exporter, Producers Rice.  The Panel noted that Article 6.8 permits determinations to be made on the basis of the best information available, but only if certain conditions 
are met.
254  Some of those conditions are set out in Annex II to the  Anti-Dumping Agreement .255  For 
the Panel, the use of the term "best information" in Annex II means that information has to be not 
simply correct or useful  per se , rather, it must be the most fitting or most appropriate information 
available in the case at hand.  The Panel added that "[d]etermining that something is 'best' inevitably requires ... an evaluative, comparative assessment as the term 'best' can only be properly applied 
where an unambiguously superlative status obtains."
256  The Panel also underscored that paragraph 7 
of Annex II requires that, if the authorities ha ve to base their findings on information from a 
secondary source, they should do so with "special circumspection".257 
226. The Panel observed that Economía determined that  a margin based on the facts available had 
to be calculated for Producers Rice because it did not make any exports during the investigated 
period.  Assuming  arguendo   that Economía would be entitled to determine a margin based on the 
facts available, the Panel concluded that the manne r in which the facts available were used with 
regard to Producers Rice was not in accordance with  Article 6.8 or Annex II.  On the basis of an 
examination of the record, the Panel found:  
... no basis to consider that the au thority made any attempt to check 
the applicant's information against information obtained from other 
interested parties or undertook the evaluative, comparative 
assessment that would have enabled the authority to assess whether the information provided by th e applicant was indeed the  best  
information available."
258 (original emphasis)  
                                                      
252Panel Report, para. 7.158. 
253Ibid., para. 7.159. 
254Ibid., para. 7.166. 
255Annex II is entitled "Best Info rmation Available in Terms of Paragraph 8 of Article 6". 
256Panel Report, para. 7.166. 
257Ibid. (quoting para. 7 of Annex II). 
258Ibid., para. 7.167.  WT/DS295/AB/R 
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The Panel added that, in its view, Economía did not  use the applicant's information with "special 
circumspection" as required by  paragraph 7 of Annex II.
259  Accordingly, the Panel found that 
Economía calculated a margin of dumping on the basis of the facts available for Producers Rice in a 
manner inconsistent with Article 6.8 of the  Anti-Dumping Agreement ,  read in the light of paragraph 
7 to Annex II of the  Anti-Dumping Agreement .260 
227. Mexico does not challenge the substance of th e Panel's reasoning.  Rather, it contests the 
Panel's authority, under the terms of reference, to  make a finding regarding Article 6.8 of the  Anti-
Dumping Agreement   and Annex II thereto, given the Pa nel's finding on Article 9.4 of that 
Agreement.  According to Mexico, the United Stat es did not make two distinct claims—one on the 
basis of Article 9.4, and the other on the basis of Article 6.8 and Annex II—but a single claim centred on Article 9.4.  This single United States claim, according to Mexico, is that Economía was under an 
obligation to comply with the provisions of Article 9.4, and that Mexico violated the  Anti-Dumping 
Agreement   in calculating a margin of dumping for Produ cers Rice on the basis of the facts available, 
instead of applying the provisions of Article 9.4.
261  Mexico contends that the Panel disposed of the 
issue raised by the United States' claim in deciding th at Economía did not have to calculate the margin 
of dumping for Producers Rice according to the provi sions of Article 9.4.  For Mexico, this Panel 
finding resolved the issue, and the Panel exceeded its  terms of reference in analyzing whether Mexico 
calculated the margin of dumping for Producers Ri ce in conformity with Article 6.8 and Annex II.262   
228. We begin our analysis with the terms of refere nce of the Panel, which establish the scope of 
the dispute and the jurisdiction of the Panel: 
To examine, in the light of the relevant provisions of the covered 
agreements cited by the United St ates in document WT/DS295/2, the 
matter referred to the DSB by the United States in that document, and 
to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.
263 
                                                      
259Panel Report, para. 7.167. 
260Ibid., para. 7.168. 
261Mexico's appellant's submission, paras. 151-152. 
262Ibid., para. 155. 
263Panel Report, para. 1.2.  WT/DS295/AB/R 
 Page 79 
 
 
229. The Panel's standard terms of reference refer to document WT/DS295/2, the request for the 
establishment of a panel by the United States.  Pa ragraph 1(f) of the panel request reads as follows: 
On 5 June 2002, Mexico published in the Diario Oficial  its definitive 
antidumping measure on long-grain white rice.  This measure appears 
to be inconsistent with the following provisions of the AD 
Agreement and the GATT 1994: 
... 
(f) Articles 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of the AD 
Agreement, and paragraphs 1, 3, 5, 6, and 7 of Annex II of 
the AD Agreement, by applying the facts available to a US 
respondent rice exporter that was investigated and found to have no shipments during the period of investigation ... . 
230. The panel request refers to Article 6.8 a nd five paragraphs of Annex II to the  Anti-Dumping 
Agreement , as well as to Article 9.4 of that Agreement.  Thus, under its terms of  reference, the Panel 
had jurisdiction to decide whether Mexico acted in a manner inconsistent with Articles 6.8 and 9.4 of 
the Anti-Dumping Agreement , and paragraphs 1, 3, 5, 6, and 7 of Annex II thereto, "by applying the 
facts available to a [United States] respondent rice exporter that was investigated and found to have 
no shipments during the period of investigation". 
231. Furthermore, it appears from the United States' first written submission to the Panel that the 
United States made a distinct claim on the basis of Article 6.8 and Annex II,  in addition to   a claim 
based on Article 9.4.  In paragraph 171 of that submission, the United States claimed that, "[f]irst, 
Economía's application of a facts available ma rgin to Producers Rice breached Article 9.4."
264  
Arguments in support of this claim were developed in para graphs 171 to 173 of the United States' first 
written submission to the Panel.  The United States put forward a distinct claim in paragraph 174, 
alleging that "Economía's treatment of Producers Rice  also breached   Article 6.8 of the [ Anti-
Dumping Agreement ] and paragraphs 3, 5, 6 a nd 7 of Annex II." (emphasi s added)  Arguments in 
support of this claim were elaborated in paragraphs 174 to 183.  These arguments are different from and independent of those developed in paragrap hs 171 to 173—in support of the claim that 
"Economía's application of a facts available margin to Producers Rice breached Article 9.4."
265  
232. Neither the request for the establishment of a panel, nor the United States' first written 
submission to the Panel, supports Mexico's theory th at the United States' case was limited to a single 
claim centred on Article 9.4.  The terms of refe rence were broad enough to allow the Panel to 
examine whether the use of facts available to ca lculate the margin of dumping for Producers Rice 
                                                      
264United States' first written submission to the Panel, para. 171. 
265Ibid. WT/DS295/AB/R 
Page 80  
 
breached Article 9.4, as well as to consider whether the use of facts available was inconsistent with 
Article 6.8 (considered in combination with Annex II).  In its submissions to the Panel, the United 
States elaborated arguments on two distinct clai ms, one based on Article 9.4, and the other on 
Article 6.8 and Annex II.  Neither the terms of refe rence, nor the claims made by the United States 
before the Panel, prevented the Panel from analyzin g arguments relating to Article 9.4 as well as those 
relating to Article 6.8 and Annex II.  The Panel was entitled to examine claims under Article 9.4 as 
well as under Article 6.8 together w ith paragraph 7 of Annex II.  
233. Accordingly, we  find  that the Panel  did not exceed   its terms of reference in concluding, in 
paragraphs 7.168 and 8.3(b) of th e Panel Report, that Economía calculated a margin of dumping on 
the basis of the facts available for Producers Rice in a manner inconsistent with Article 6.8 of the  Anti-Dumping Agreement , read in the light of paragraph 7 of Annex II to that Agreement.  
C. The Margin of Dumping for the Exporters Not Investigated 
234. We move now to Mexico's appeal against th e Panel's findings in relation to Economía's 
calculation of a margin of dumping based on the fact s available for the United States exporters that it 
did not investigate.   
235. The application filed by the Mexican petiti oner referred to two Un ited States exporters, 
Producers Rice and Riceland.  Economía initiated the investigation and sent a notice of initiation as 
well as a questionnaire to each of the two exporters lis ted in the application and to the United States 
Embassy in Mexico City.  The notice of initiation stat ed that any interested party had a period of 30 
days to appear before Economía.  Two United Stat es exporters, The Rice Company and Farmers Rice, 
as well as an industry association, the USA Rice Fe deration, came forward on their own initiative and 
each completed a questionnaire.  Individual marg ins of dumping were assigned for all four United 
States exporters that participated in the investiga tion.  For all other United States exporters that did 
not come forward themselves and did not provide information, a residual margin of dumping was 
calculated based on the facts available.  These fact s available consisted of the information submitted 
by the petitioner.
266  The margin of dumping assigned to the exporters not investigated was 10.18 per 
cent.267 
                                                      
266Final Determination, supra , footnote 9, para. 138.   
267In comparison, Economía determined a margin of dumping of 3.93 per cent for The Rice Company 
and zero per cent for Farmers Rice and Riceland.  Economía calculated an individual margin of dumping based 
on the facts available for Producers Rice.  The margin  of dumping assigned for Producers Rice was also 10.18 
per cent.  (See Final Determination, supra , footnote 9, paras. 91, 113, 137, 138, and 157)   WT/DS295/AB/R 
 Page 81 
 
 
236. The Panel began its analysis with Article 6.10 of the  Anti-Dumping Agreement , which sets 
forth the general rule that "[t]he authorities sha ll determine ... an individual margin of dumping for 
each known exporter or producer concerned of the pr oduct under investigation." The Panel's analysis 
focused on the interpretation of the term "known e xporter or producer" in Article 6.10.  The Panel 
examined the context of this provision and considered  that it consisted of "the overarching obligation 
to conduct  an investigation   and ... the specific obligations on the authority to ensure that all 
interested parties are in formed of the information required of them and are given the opportunity to 
present all evidence to support their case."268  For the Panel, the notion of "investigation" implies that 
the investigating authority "has to play an active ro le in the search of the information it requires in 
order to make its determination."269  In addition, the Panel stated that the term "known" in Article 6.10 
cannot be construed in a manner that would transfor m it into "a warrant for a passive investigative 
approach", as such an interpretation would "effectively read out of the [ Anti-Dumping Agreement ] an 
important aspect of the obligation of an investigating authority regarding the conduct of an investigation."
270  On these bases, the Panel concluded that the term "known exporter or producer" in 
Article 6.10 refers to the exporters or producers of which "an objective and unbiased investigating 
authority properly establishing the facts and conducti ng an active investigation could have and should 
have reasonably been considered to have [obtained] knowledge."271 
237. The Panel then moved on to Articles 6.1, 6.1.3, and 12.1 of the Anti-Dumping Agreement .  
Article 6.1 requires that all interested parties be  given notice of the information required by the 
investigating authority, whereas Article 6.1.3 specifies that the full text of the application is to be 
provided to the known exporters.  Article 12.1 simila rly provides for a notification requirement with 
regard to all interested parties known to have an in terest in the investigation.  In analyzing these 
provisions, the Panel took an approach similar to that  it adopted for its analysis of Article 6.10.  The 
Panel opined that, in order to comply with the requi rement to ensure that all interested parties be 
given notice of the information required of them, the investigating authority, when conducting an 
investigation, cannot remain "entirely passive" in the identification of the interested parties, and must 
inform those interested parties of wh ich it can reasonably obtain knowledge.272 
238. According to the Panel, the requirement in Artic le 6.1 is fundamental to a correct application 
of Article 6.8, which concerns the use of facts av ailable by the investigating authority.  Article 6.8 
provides that, when an interested  party refuses access, to or does not provide necessary information 
                                                      
268Panel Report, para. 7.184. (original emphasis) 
269Ibid., para. 7.185. 
270Ibid., para. 7.188. 
271Ibid., para. 7.187. (footnote omitted) 
272Ibid., para. 7.192.  WT/DS295/AB/R 
Page 82  
 
within, a reasonable period, or significantly impede s the investigation, a determination may be made 
on the basis of the facts available.  The Panel re asoned that a determination cannot be made on the 
basis of the facts available if an interested party has not been properly notified and informed of the 
information it is required to subm it under Article 6.1, because "it cannot be argued to have refused 
access to or to otherwise have withheld necessary information or to have significantly impeded the 
investigation."
273  The Panel added that this is "evidenced also by the requirement in paragraph 1 of 
Annex II of the [ Anti-Dumping Agreement ]".274 
239. Turning to the facts of the case, the Panel stat ed that Economía could have deduced from the 
application that the listing in the application of  exporters or foreign producers was incomplete.275  The 
Panel expressed the view that Economía could have  obtained information about the rice industry in 
the United States through two industry associations me ntioned in the application, and that it would 
have been possible for Economía to identify all Unit ed States exporters by examining the so-called  
pedimentos   (customs declarations).276  The Panel added that information on United States exporters 
was also available from a number of public sources, such as a United States magazine about the rice 
industry, Rice Journal , a source mentioned in the application filed by the Mexican petitioner.277  The 
Panel also noted that, "[w]hile the investigating authority notified the US authorities of the initiation 
of the investigation as required by Article[s] 6.1.3 and 12.1 of the [ Anti-Dumping Agreement ], it did 
not request the assistance of the authorities in identifying US exporters or producers."278  For these 
reasons, the Panel concluded that  "an objective and unbiased investigating authority conducting an 
investigation in a reasonable manner should have made more of an e ffort to obtain knowledge of other 
US exporters."279   
240. Accordingly, the Panel found that Economía did not comply with Articles 6.1 and 12.1 of the  
Anti-Dumping Agreement   "as it failed to notify all interested parties known to have an interest in the 
investigation of the initiation of the investiga tion and of the informa tion required of them."280  I n  
addition, the Panel found that "by applying the fact s available in the calculation of a margin of 
dumping for the [United States] exporters or produ cers that were known or could reasonably have 
been known to the authority, Mexico acted in a ma nner which is inconsistent  with Article 6.8 and 
                                                      
273Panel Report, para. 7.194. 
274Ibid. 
275Ibid., paras. 7.197-7.198. 
276Ibid., para. 7.199. 
277Ibid. 
278Ibid. 
279Ibid. 
280Ibid., para. 7.200.  WT/DS295/AB/R 
 Page 83 
 
 
paragraph 1 of Annex II of the [ Anti-Dumping Agreement ]."281  As regards Article 6.10 of the  Anti-
Dumping Agreement , the Panel found that Mexico acted in breach of this provision "by remaining 
entirely passive in the identification of exporters or  producers interested in the investigation, and by 
not calculating an individual margin for dumping for each exporter or producer that was known or should reasonably have been known to the investigating authority."
282  The Panel exercised judicial 
economy with respect to the United States' claims concerning Article 6.6 (accuracy of information), 
Article 9.4 (duty applied to e xporters or producers not examined , and Article 9.5 (exporters or 
producers not exporting the product to the importing Member) of the  Anti-Dumping Agreement .  
241. Mexico challenges the Panel's findings that  Economía's treatment of non-investigated 
exporters and producers was inconsistent with Ar ticles 6.1, 6.8, 6.10, 12.1, and paragraph 1 of 
Annex II to the  Anti-Dumping Agreement .  Mexico's appeal focuses on the Panel's view that, under 
these provisions, the known producers or exporters incl ude those of which an investigating authority 
should have reasonably been consider ed to have knowledge, and that an  investigating authority should 
take steps to find out which are the exporters or producers covered by the investigation.   
242. Mexico argues that, under Article 6.10, the inv estigating authority is obliged to determine 
individual margins of dumping for those exporters or producers whose existence has been notified, 
but the investigating authority does not have to determine individual margins for all producers and 
exporters.  According to Mexico, there is no provision in the  Anti-Dumping Agreement   laying down 
such an obligation.283  Mexico argues that it complied with Article 6.10 by calculating individual 
margins of dumping for all known exporters or forei gn producers that took part in the investigation.284  
As regards the exporters that were not investigat ed individually, Mexico submits that it met its 
obligations under the  Anti-Dumping Agreement   by giving the United States authorities public 
notification of initiation of the investigation, a copy of the request to initiate an investigation and the 
annexes thereto, as well as the form to be completed by exporters and foreign producers.285  F o r  
Mexico, the Panel's reasoning is flawed because the Panel made an  a priori   assumption that the 
diplomatic authorities of the exporting Member do not have any obligation to make their exporters or 
producers aware of the investigation, whereas such an obligation exists and is stated in footnote 15 to 
Article 6.1.1 of the  Anti-Dumping Agreement .286  Mexico adds that it complied with Articles 6.1 
and 12.1 of the  Anti-Dumping Agreement   as there is no provision in the  Anti-Dumping Agreement   
                                                      
281Panel Report, para. 7.200. 
282Ibid., para. 7.201. 
283Mexico's appellant's submission, para. 167.  
284Ibid., para. 168. 
285Ibid., para. 169. 
286Ibid., para. 173. WT/DS295/AB/R 
Page 84  
 
that requires an investigating authority to take an y action in order to iden tify each and every one of 
the foreign producers or exporters.
287 
243. Mexico also contends that, under Article 6.8, Mexico was entitled to calculate a margin of 
dumping based on the facts available for the export ers and producers that were not investigated, 
because Mexico had met its obligations under Artic les 6.1 and 6.10, and the firms that were not 
investigated had failed to pr ovide the necessary information.288 
244. We divide our analysis in three parts.  Firs t, we examine whether the Panel erred in finding 
that Economía did not comply with Articles 6.1 and 12.1 of the  Anti-Dumping Agreement   because "it 
failed to notify all interested parties known to have an  interest in the investigation of the initiation of 
the investigation and of the information required of them."289  In the second part, we turn to the 
question whether the Panel erred in finding that Mexico acted in breach of Article 6.10 of the  Anti-
Dumping Agreement   "by not calculating an individual margin of dumping for each exporter ... that 
was known or should reasonably have been known to the investigating authority."290  Finally, we 
discuss in the third part whether the Panel was correct  in finding that, by applying the facts available 
in the calculation of a margin of dumping for th e United States exporters that were known or could 
reasonably have been known to Economía, Mexico  acted inconsistently with Article 6.8 and 
paragraph 1 of Annex II to the  Anti-Dumping Agreement .291  
1. Articles 12.1 and 6.1 of the  Anti-Dumping Agreement  
245. We begin our analysis with the text of Articles 12.1 and 6.1 of the  Anti-Dumping Agreement : 
Public Notice and Explanation of Determinations  
12.1 When the authorities are satisfied that there is sufficient 
evidence to justify the initiation of an anti-dumping investigation pursuant to Article 5, the Member or Members the products of which 
are subject to such investigation and other interested parties known to 
the investigating authorities to have an interest therein shall be notified and a public notice shall be given. 
                                                     
 
287Mexico's appellant's submission, para. 174. 
288Ibid., paras. 178 and 182. 
289Panel Report, para. 7.200. 
290Ibid., para. 7.201.  
291Ibid., para. 7.200.   WT/DS295/AB/R 
 Page 85 
 
 
Evidence  
6.1 All interested parties in an anti-dumping investigation shall 
be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.   
246. Article 12.1 provides that "interested parties know n to the investigating authorities to have an 
interest" in the investigation "sha ll be notified" of the initiation of the anti-dumping investigation.  We 
note that Article 6.11(i) defines "interested parti es" for the purposes of the Agreement to include "an 
exporter or foreign producer or the importer of a product subject to  investigation, or a trade or 
business association a majority of the members of whic h are producers, exporters or importers of such 
product".   
247. The Panel found that the term "interested par ties known to the investigating authorities" in 
Article 12.1 covers not only the expor ters known to the investigating authority, but also the exporters 
of which "it can reasonably obtain knowledge".
292  In our view, the extensive interpretation given by 
the Panel to this term is incorrect.  The text of Article 12.1 is not ambiguous:  the investigating 
authority is under the obligation to notify the initiation of the investigation to the exporters  known   to 
it at the time it is satisfied that there is sufficient ev idence to justify the initiation of the investigation.  
Nothing in the text of Article 12.1 suggests that th e notification requirement a pplies to importers other 
than those of which the investigating au thority had actual knowledge at that time. 
248. In this case, upon the initiation of the investig ation, Economía knew the exporters referred to 
in the application, Producers Rice and Riceland.   Economía sent a notice of initiation of the 
investigation to each of them.293  Economía thus notified the initiation of the investigation to the 
exporters known to it at that time, thereby complying with Article 12.1 of the  Anti-Dumping 
Agreement . 
249. We move now to Article 6.1 of the  Anti-Dumping Agreement .  Under this provision, "[a]ll 
interested parties in an anti-dumping investigation shall be given notice of the information which the 
authorities require".  This element of Article 6.1 s hould be read in the light of Article 6.1.3, which 
provides: 
                                                      
292Panel Report, para. 7.192. 
293Ibid., para. 7.197. WT/DS295/AB/R 
Page 86  
 
As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 5 to the know n exporters and to the authorities 
of the exporting Member and shall make it available, upon request, to other interested parties involved.  Due regard shall be paid to the 
requirement for the protection of confidential information, as 
provided for in paragraph 5. (footnote omitted) 
This provision requires investigation authorities to "provide the full text of the written application ... 
to the  known exporters ". (emphasis added)  We see no reason why there should be asymmetry 
between Articles 6.1 and 6.1.3.  In our view, ex porters that were given notice of the required 
information under Article 6.1 shoul d be understood to be the same exporters entitled to receive the 
text of the application under Article 6.1.3, namely, the "known" exporters.   
250. Thus, the explicit reference in Article 6.1.3 to "known exporters" supports the view that the 
exporters that shall be given notice of the requi red information under Article 6.1 are the exporters 
known to the investigating authority.  These expor ters include not only those referred to in the 
application, but also the exporters who might have made themselves known to the investigating 
authority following the issuance of the public notice required by Article 12.1 of the  Anti-Dumping 
Agreement , and those that otherwise might have become known to it subsequent to the notice of 
initiation. 
251. The Panel found that, under Article 6.1, the investigating authority has a duty to give notice of 
the required information to exporters of which "it can reasonably obtain knowledge".
294  As we 
explained above, Article 6.1 requires the investigatin g authority to give notice to the exporters known 
to it.  Extending the duty to give notice under Artic le 6.1 to exporters of which the investigating 
authority does not know, but of which it might ha ve obtained knowledge, would imply that, under 
Article 6.1, the investigating authority is subject to a duty to undertake an inquiry, which may be extensive, to identify the exporters.  We cannot find, in Article 6.1 or anywhere else in the  Anti-
Dumping Agreement , any legal basis for such an obligation,  which in some circumstances could be 
onerous.  Accordingly, in our view, Economía was not  obliged under Article 6.1 to give notice of the 
required information to exporters of which it di d not know but of which it could have obtained 
knowledge. 
252. In this case, Economía sent a questionnaire to each of the two exporters mentioned in the 
application, Producers Rice and Riceland.  Two other exporters, The Rice Company and Farmers 
Rice, as well as an industry association, the US A Rice Federation, came forward on their own 
initiative.  Economía also sent them each a questionn aire.  Thus, we are satis fied that Economía gave 
                                                     
 
294Panel Report, para. 7.192.   WT/DS295/AB/R 
 Page 87 
 
 
notice of the required information to all the e xporters of which it had actual knowledge, and that, 
accordingly, Mexico did not act incons istently with Article 6.1 of the  Anti-Dumping Agreement . 
253. For these reasons, we  reverse   the Panel's findings, in paragraphs 7.200 and 8.3(c) of the 
Panel Report, that, with respect to the exporters that Economía did not investigate, Mexico acted 
inconsistently with Articles 6.1 and 12.1 of the  Anti-Dumping Agreement .  
2. Article 6.10 of the  Anti-Dumping Agreement   
254. Article 6.10 reads as follows:    
The authorities shall, as a rule, determine an individual margin of 
dumping for each known exporter or producer concerned of the product under investigation.  In cases where the number of exporters, 
producers, importers or types of prod ucts involved is so large as to 
make such a determination imprac ticable, the authorities may limit 
their examination either to a reas onable number of interested parties 
or products by using samples which are statistically valid on the basis 
of information available to the auth orities at the time of the selection, 
or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated. 
255. The first sentence of Article 6.10 provides that the investigating authority "shall, as a rule, 
determine an individual margin of dumping for each  known exporter or producer   concerned of the 
product under investigation." (emphasis added)  Fo r the Panel, the term " known exporter or producer" 
refers not only to the exporters or foreign producer s of which the investigating authority knows, but 
also to those with which "an unbiased and objective investigating authority properly establishing the 
facts would be reasonably expected to have become conversant".
295  Again, we do not see in the  Anti-
Dumping Agreement   a legal basis for such an interpre tation of the term "known exporter or 
producer".  This interpretation is difficult to reco ncile with the ordinary meaning of the term:  a 
known exporter or producer is an exporter or prod ucer known to the investigating authority, not an 
exporter or producer of which it does not know, but shoul d have known.  In our view, the rule set out 
in the first sentence of Article 6.10 (determini ng an individual margin of dumping) covers the 
exporters or foreign producers of which the inv estigating authority knows at the time the calculation 
of the margins of dumping is made.  Under the fi rst sentence of Article 6.10, the investigating 
authority is not required to determine an indivi dual margin of dumping for exporters or foreign 
producers of whose existence it was unaware.  
                                                      
295Panel Report, para. 7.187. WT/DS295/AB/R 
Page 88  
 
256. In this case, Economía calculated individua l margins of dumping for the two exporters 
explicitly listed in the application, namely, Produ cers Rice and Riceland.  Economía also determined 
individual margins of dumping for the two exporte rs who came forward of their own initiative, 
namely, The Rice Company and Farmers Rice.  Thus , Economía acted consistently with the first 
sentence of Article 6.10 of the  Anti-Dumping Agreement ,  given that it determined an individual 
margin of dumping for each exporter of which it kne w at the time it calculated the dumping margins.  
257. Accordingly, we  reverse   the Panel's findings, in paragra phs 7.201 and 8.3(c) of the Panel 
Report, that, with respect to the exporters that Economía did not investigate, Mexico acted inconsistently with Article 6.10 of the  Anti-Dumping Agreement .  
3. Article 6.8 of the  Anti-Dumping Agreement
 
258. Article 6.8 reads as follows: 
In cases in which any interested party refuses access to, or otherwise 
does not provide, necessary informati on within a reasonable period or 
significantly impedes the investigation, preliminary and final determinations, affirma tive or negative, may be made on the basis of 
the facts available.  The provisions of Annex II shall be observed in 
the application of this paragraph. 
259. The last sentence of Article 6.8 provides that the provisions of Annex II shall be observed in 
the application of that paragraph.  In particular , under the second sentence of paragraph 1 of Annex II, 
the investigating authorities should "ensure" that an interested party is "aware" that, if the required 
information is not supplied within a reasonabl e time, "the authorities will be free to make 
determinations on the basis of facts available,  including those contained in the application for the 
initiation of the investigation by the domestic industry ." (emphasis added)
296  The second sentence of 
paragraph 1 of Annex II conditions  the use of facts from the petitioner's application on making the 
interested party "aware" that, if the information is not supplied by it within a reasonable time, the 
investigating authority will be free to resort to these facts available.  In other words, an exporter shall 
be given the opportunity to provide the information required by the investigating authority before the 
latter resorts to facts available that can be adverse to the exporter's interests.  An exporter that is 
                                                      
296The full text of paragraph 1 of Annex II reads as follows: 
As soon as possible after the initiation of the investigation, the investigating 
authorities should specify in detail the information required from any 
interested party, and the manner in which that information should be 
structured by the interested party in its response.  The authorities should also 
ensure that the party is aware that if  information is not supplied within a 
reasonable time, the authorities will be free to make determinations on the 
basis of the facts available, including those contained in the application for 
the initiation of the investigation by the domestic industry.  WT/DS295/AB/R 
 Page 89 
 
 
unknown to the investigating authority—and, therefore,  is not notified of the information required to 
be submitted to the investigating authority—is denied such an opportunity.  Accordingly, an 
investigating authority that uses  the facts available in the app lication for the initiation of the 
investigation against an exporter that was not gi ven notice of the information the investigating 
authority requires, acts in a manner inconsiste nt with paragraph 1 of Annex II to the  Anti-Dumping 
Agreement   and, therefore, with Artic le 6.8 of that Agreement. 
260. In this case, four United States exporters—Pr oducers Rice, Riceland, The Rice Company, and 
Farmers Rice—were given notice of  the information to submit to  Economía.  The United States 
exporters that Economía did not investigate were not notified of  the information it required.  
Notwithstanding this, Economía used facts availabl e contained in the application submitted by the 
petitioner against these uninvestigated exporters.297  As a result, Economía assigned to them a margin 
of dumping of 10.18 per cent, which was higher than  the margins individually calculated for The Rice 
Company (3.93 per cent), Farmers Rice (zero per cent), and Riceland (zero percent).298  In doing so, 
Economía acted in a manner inconsistent with paragraph 1 of Annex II to the  Anti-Dumping 
Agreement   and, therefore, with Artic le 6.8 of that Agreement. 
261. For these reasons, we  uphold   the Panel's findings, in paragr aphs 7.200 and 8.3(c) of the 
Panel Report that, by applying the facts availabl e contained in the application submitted by the 
petitioner in calculating the margin of dumping for United States exporters that Economía did not 
investigate, Mexico acted inconsistently  with paragraph 1 of Annex II to the  Anti-Dumping 
Agreement   and, therefore, with Article  6.8 of that Agreement.   
262. Finally, we address Mexico's argument that the Panel made an  a priori   assumption that the 
diplomatic authorities of the exporting Member do not have an obligation to make their exporters or 
producers aware of the investigation.  According to Me xico, such an obligation exists and is stated in 
footnote 15 to Article 6.1.1 of the  Anti-Dumping Agreement .299  Footnote 15 to Article 6.1.1 
provides:  
                                                      
297Final Determination, supra , footnote 9, para. 138.   
298An individual margin of dumping was calculated for Producers Rice;  however, this individual 
margin of dumping of 10.18 per cent was based on information submitted by the petitioner.  This information was the same as that on the basis of which the margin of dumping for exporters not investigated was 
determined.  (See Final Determination, supra , footnote 9, para. 138)  
299Mexico's appellant's submission, para. 173. WT/DS295/AB/R 
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As a general rule, the time-limit fo r exporters shall be counted from 
the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the date on which it 
was sent to the respondent or transmitted to the appropriate diplomatic representative of the exporting Member or, in the case of 
a separate customs territory Member of the WTO, an official 
representative of the exporting territory. 
263. Footnote 15 establishes a general rule for counting the time that exporters have for replying to 
the questionnaires sent to them.  Although this general rule refers to the date on which the 
questionnaire "was sent to the respondent or transmit ted to the appropriate diplomatic representative 
of the exporting Member", it does not provide any indication as to whether it is incumbent on the 
government of the exporting country to make the relevant exporters or producers aware of the 
investigation.  Accordingly, we cannot deduce from footnote 15 to Article 6.1.1, alone, an obligation 
for diplomatic authorities of the exporting Member to  make their exporters or producers aware of the 
investigation.  
264. In sum, we find that Economía was not under an obligation to give notice, under Articles 12.1 
and 6.1 of the  Anti-Dumping Agreement ,  to exporters of which it did not know.  We also find that 
Economía was not required, under Article 6.10 of the  Anti-Dumping Agreement , to determine an 
individual margin of dumping for exporters of whic h it did not know.  However, we find that with 
respect to United States producers or exporters that were not given notice of the required information, 
Economía was not allowed to calculate a margin of dumping on the basis of the facts available contained in the application submitted by  the petitioner.  Accordingly, we  reverse   the Panel's 
findings, in paragraphs 7.200 and 8.3(c) of the Pane l Report, that Mexico acted inconsistently with 
Articles 12.1 and 6.1 of the  Anti-Dumping Agreement .  We also  reverse   the Panel's findings, in 
paragraphs 7.201 and 8.3(c) of the Panel Report, that  Mexico acted inconsistently with Article 6.10 of 
the  Anti-Dumping Agreement .  However, we  uphold   the Panel's findings, in paragraphs 7.200 
and 8.3(c) of the Panel Report, that Mexico acted in consistently with paragra ph 1 of Annex II to the  
Anti-Dumping Agreement   and, therefore, with Article 6.8 of that Agreement.  
VII. The Foreign Trade Act 
265. The Panel found the following Articles of the FTA in consistent with certain provisions of the  
Anti-Dumping Agreement   and the  SCM Agreement :  Articles 53, 64, 68, 89D, 93V, as well as 
Articles 68 and 97, read together.  Mexico appeal s each of these findings of inconsistency.  We 
address below, first, Mexico's arguments that apply to the entirety of the Panel's analysis of the FTA 
provisions before turning to Mexico's claims of e rror with respect to each challenged provision of the 
FTA.   WT/DS295/AB/R 
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A. Preliminary Issues 
266. We discuss in this section two cross-cutting issues raised by Mexico that apply to all of the 
Panel's findings of inconsistency re lating to the FTA.  First, we consider Mexico's contention that the 
Panel erred in ruling on the consistency of the ch allenged provisions of the FTA because the United 
States had not made out a  prima facie   case of inconsistency.  Secondly, we consider Mexico's 
argument that the Panel erred in failing to recognize  that the challenged provisions of the FTA are 
"discretionary" measures that permit the investiga ting authority to apply them in a WTO-consistent 
manner.  
1. Prima Facie   Case  
267. Mexico contends that the United States failed to establish a  prima facie   case of 
inconsistency with respect to any of the challenge d provisions of the FTA.  Mexico submits that the 
text of each of these provisions is open to different interpretations and, accordingly, does not reveal a 
"clear obligation" for Economía to act in a certain manner.300  Therefore, in Mexico's view, the United 
States was required, in order to establish a  prima facie   case, to provide evidence as to the scope and 
application of these measures  in addition to   their text.  As the United States submitted only the text 
of the challenged provisions, Mexico argues, it did not establish its  prima facie   case, and the Panel 
was thereby not permitted to rule on those claims.301  
268. One element of a  prima facie   case that a complaining Member must present with respect to a 
measure challenged "as such" consists of evidence and arguments "sufficient to identify the challenged 
measure and its basic import".302  The evidentiary requirement of this element may be met by the text 
of the challenged measure alone.303   
                                                      
300Mexico's response to questioning at the oral hearing. 
301Mexico's appellant's submission, para. 189. 
302Appellate Body Report, US – Gambling , para. 141. 
303Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 263. WT/DS295/AB/R 
Page 92  
 
269. In this case, the United States submitted the text of each challenged provision of the FTA in 
support of its claims and argued in its submissions how it understood those provisions to operate.
304  A 
review of the challenged provisions indicates to us that the United States' proffered interpretation was 
adequately supported by the text so as  to satisfy the requirement for a  prima facie   case.305  In our view, 
the fact that the challenged provisi ons of the FTA may support multiple interpretations, an d that Mexico 
considers the United States' interpretation "incorrect"306, does not render insufficient the  prima facie   
case put forward by the United States ba sed on the language of the provisions.   
270. Moreover, we observe that, with two exceptions307, Mexico did not even contest before the 
Panel the interpretation of the FTA proposed by the Un ited States;  instead, Mexico limited its rebuttal 
of the United States' claims to contesting the applicability of the relevant WTO obligations.  With respect to each of the challenged provisions, the Pane l agreed with the United States' interpretation.
308  It 
appears, therefore, that the Panel found that th e text and the parties' common understanding of the 
provisions were sufficient to determine what those challenged provisions requi red of the investigating 
                                                      
304We note that, with respect to certain of these pr ovisions, the United States  also submitted evidence 
supporting its understanding of their operation.  In relation to Article 68 of the FTA, the United States submitted 
the notice of initiation of a review under Article 68, indicating that the showing by an exporter of a 
"representative" volume of exports wa s a prerequisite to such a review. (" Resolución por la que se declara el 
inicio de la revisión de la cuota compensatoria definitiv a impuesta a las importaciones de manzanas de mesa de 
las variedades Red Delicious y sus mutaciones y Golden Delicious, mercancía clasificada actualmente en la 
fracción arancelaria 0808.10.01 de la Tarifa de la Ley de los Impuestos Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de procedencia ", 
Diario Oficial , 21 October 2003, First Section, pp. 16-27 (Exhibit US-24 submitted by the United States to the 
Panel))  See also United States' respon se to Question 31 posed by the Panel, para. 76, Panel Report, p. B-22. 
In support of its claims against Articles 68 and 97, read together, the United States submitted a letter 
from Economía to a United States pro ducer, evincing the requirement that judicial proceedings be concluded 
before the review of an order may take place. (Exhibit US-20 submitted by the United States to the Panel)  See also Panel Report, para. 7.289. 
305The challenged provisions of the FTA, and the United States' and the Panel's interpretations of those 
provisions are set out in the Panel Report:  paras. 7.213, 7.216, 7.220, and 7.224-7.225, (Article 53);  
paras. 7.226-7.227, and 7.236-7.237 (Article 64);  paras. 7.243-7.244, 7.250-7.253, and 7.259 (Article 68);  
paras. 7.261, 7.264, and 7.266-7.267 (Article 89D);  paras. 7.270, 7.273, and 7.278- 7.279 (Article 93V);  and 
paras. 7.281, and 7.287-7.290 (Articles 68 and 97).   
306Mexico's appellant's submission, para. 192 (" una interpretación incorrecta "). 
307Mexico did assert before the Panel that:  (i) all the provisions of the FTA were "discretionary", by 
virtue of Article 2 of the FTA and Article 133 of the Mexican Constitution;  and (ii) Article 93V was 
"discretionary", on the basis of the opening language of that provision.  These allegations have also been raised 
on appeal and are addressed  infra , Sections VII.A.2 and VII.F. 
308The Panel found that the United States had failed to make out a prima facie  case with respect to 
Article 366 of the Federal Code of Civil Procedure.  In so  doing, the Panel did not reject an interpretation of that 
provision, but rather, determined that "the United States ha[d] not sufficiently explained which 'proceedings' this provision refers to and failed to provide sufficient arguments concerning the context of this provision the meaning 
and scope of which is not immediately clear to us." (Pan el Report, para. 7.298)  The United States does not appeal 
this finding.   WT/DS295/AB/R 
 Page 93 
 
 
authority.309  In these circumstances, we do not see on what basis the Panel may be said to have made 
the case for the United States.  Therefore, we  find  that the Panel  did not err   in considering that a  
prima facie   case had been made out concerning the consistency of  the challenged provisions of the 
FTA with Mexico's obligations under the  Anti-Dumping Agreement   and the  SCM Agreement .   
2. The "Mandatory" or "Discretionary" Nature of the FTA Provisions  
271. Mexico contends that the Panel erred in dete rmining that the FTA articles challenged by the 
United States require Economía to act in a way that is inconsistent with the  Anti-Dumping 
Agreement   and the  SCM Agreement .310  Mexico argued before the Panel that Article 2 of the FTA 
requires that the other provisions of the FTA not be  applied in a manner contrary to any international 
treaty signed by Mexico, in cluding the WTO Agreements.311  According to Mexico, the Panel 
"disregarded totally" this argument.312  Mexico submits that, had the other provisions of the FTA been 
properly understood in the light of Article 2, th e Panel would have concluded that these provisions 
give Economía discretion to act in a manner co nsistent with its obligations under the WTO 
Agreements, which "necessarily" would have led the Panel to dismiss the United States' claims.313  
Instead, argues Mexico, the Panel failed to  "undertake[] an impartial analysis"314 and "did not 
correctly analyze the meaning and scope of the articles of the FTA" in concluding that the FTA provisions at issue were mandatory.
315   
272. We cannot accept  Mexico's contention that the Panel "disregarded" Article 2 of the FTA, or 
Mexico's arguments relating to this provision, in  arriving at a conclusion on whether the challenged 
provisions of the FTA were mandatory.  In fact , the Panel asked Mexico questions specifically 
addressing Article 2 of the FTA.316  The Panel subsequently posed  additional questions after the 
second panel meeting, relating to the specific in teraction between Article  2 and the other FTA 
provisions.317  Following on these questions and responses, the Panel explicitly noted and responded 
                                                      
309The Panel's description of the challenged provisio ns is found in the Panel Report:  paras. 7.220 
and 7.225 (Article 53);  paras. 7.238-7.240 (Article 64);  paras. 7.251, 7.253, and 7.259 (Article 68);  
paras. 7.266 and 7.268 (Article 89D);  paras. 7.278-7.279 (Article 93V);  and para. 7.289 (Articles 68 and 97). 
310Mexico's appellant's submission, para. 195. 
311Ibid., paras. 211-212. 
312Ibid., para. 195(d) (" desestimó por completo el argumento de México "). 
313Ibid., para. 204(f) (" necesariamente "). 
314Ibid., para. 195(c) (" analizarla de manera imparcial "). 
315Ibid., heading to paras. 205-220 (" no analizó de forma adecuada el sentido y alcance de los artículos 
de la LCE "). 
316Question 30 posed by the Panel to Mexico during the Panel proceedings, and Mexico's response 
thereto, Panel Report, p. B-34. 
317Question 12 posed by the Panel to the United States during the Panel proceedings, Panel Report, 
p. C-11. WT/DS295/AB/R 
Page 94  
 
in the Panel Report to Mexico's argument that "any  domestic law has to be applied in a manner which 
is compatible with Mexico's international obligations."
318  Mexico acknowledges the Panel's response 
to its arguments, but contends that it constitut es "an incorrect and incomplete interpretation of 
Mexico's arguments".319  Although Mexico may disagree with the weight ascribed by the Panel to 
Article 2 of the FTA, we fail to see how this cons titutes "disregard[]" of Mexico's arguments.  
273. In any event, we are of the vi ew that this aspect of Mexico's appeal should have been more 
appropriately brought under Article 11 of the DSU.   Mexico's argument is premised on the Panel's 
purported failure to read the challenged provisions of the FTA in the light of  another   FTA provision 
that Mexico brought to the attention of the Panel.  Mexico alleges that the Panel "disregarded" this 
evidence and "made unsubstantiated findings" on the mandatory nature of the challenged provisions 
of the FTA "virtually without undertaking any relevant analysis".320  Mexico's claim of error, 
therefore, rests on the Panel's failure to conduct its analysis in a proper and im partial manner:  Mexico 
does not contest, on the merits, the Panel's decision rejecting the supposed import of Article 2 for the 
interpretation of the other provisions of the FTA.  
274. In this light, Mexico's claim on appeal appear s to be a traditional Article 11 claim challenging 
the Panel's failure to accord sufficient weight  to evidence submitted by one of the parties.321  It is well 
settled that an Article 11 claim—by definition, on e on which a panel could not have ruled—must be 
clearly discernible in a Notice of Appeal322 and explicitly articulated in an appellant's written 
submission.323  Mexico did not raise this claim under Artic le 11 of the DSU, either in its Notice of 
Appeal or in its appellant's submission.  Th erefore, we make no finding under that provision.324  
275. For these reasons, we  find  that the Panel  did not disregard   Article 2 of the FTA, or 
Mexico's argument in relation thereto, in concludi ng that the challenged provisions of the FTA are 
"mandatory" measures, requiring Economía to ta ke certain actions in given circumstances.  
                                                      
318Panel Report, para. 7.224. (footnote omitted)  See also footnote 203 to para. 7.224, and para. 7.225. 
319Mexico's appellant's submission, para. 217 (" una interpretación equivocada e incompleta de los 
alegatos de México "). 
320Ibid., para. 220 (" desestimó los argumentos de México en ta l sentido y sin realizar prácticamente 
ningún análisis al respecto, formuló constataciones que no tienen base alguna ").   
321The Appellate Body has consistently recognized the appreciation of the evidence as a matter falling 
within the discretion of the panel. (See,  for example, Appellate Body Report, Australia – Salmon , para. 267;  
Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 177;  Appellate Body Report, EC – 
Sardines , para. 300;  and Appellate Body Report, Japan – Apples , paras. 232-238) 
322Appellate Body Report, Japan – Apples , para. 127;  Appellate Body Report, US – Countervailing 
Measures on Certain EC Products , para. 74. 
323Appellate Body Report, US – Steel Safeguards , para. 498. 
324Mexico raises a distinct Article 11 claim in the context of its challenge to the Panel's finding on 
Article 93V of the FTA. (See  infra , Section VII.F)  WT/DS295/AB/R 
 Page 95 
 
 
B. Article 53  
276. Article 53 of the FTA provides: 
The interested parties shall submit their arguments, information and 
evidence in conformity with the applicable legislation, within a period of 28 days from the day following the publication of the initiating resolution. 
277. The Panel found as follows: 
We consider that Article 6.1.1 of the AD Agreement clearly provides 
that any exporter or foreign producer receiving a questionnaire shall 
be given 30 days for reply.  This 30-day rule does not make a 
distinction between those exporters that received a questionnaire at the time of initiation because they happened to be known to the applicant and were thus informed of the initiation, and those that make themselves known or the exis tence of which becomes known to 
the authorities and to which questionnaires are sent following 
initiation.  In our view, by using the date of publication of the 
initiation notice as the starting point for the time period for questionnaire responses, Article 53 of the Act effectively prevents Mexico from giving each exporter or foreign producer receiving a questionnaire 30 days to respond.  For that reason we consider 
Article 53 of the Act to be in consistent with the unequivocal 
requirement in Article 6.1.1 of the AD Agreement to provide for 30 days to respond to questionnaires. (footnote omitted) 
… 
... In addition, we consider that the requirement contained in 
Article 6.1.1 of the AD Agreement to provide for 30 days to respond 
to questionnaires is identical to that of Article 12.1.1 of the SCM Agreement. For the same reasons as set forth above, we therefore 
find that Article 53 of the Act is as such also inconsistent with Article 12.1.1 of the SCM Agreement.
325   
278. Mexico submits that the Panel's inte rpretation of Article 6.1.1 of the  Anti-Dumping 
Agreement   and Article 12.1.1 of the  SCM Agreement   is in error.  Mexico contends that the Panel 
interpreted the obligation in those provisions too broa dly, requiring that 30 days be provided to  each 
and every  exporter or foreign producer receiving a questionnaire.326  According to Mexico, the 
"ordinary meaning" of these provisions indicates that the 30 days need be provided only to those 
exporters and foreign producers to whom the investigating authority sends a questionnaire327, which, 
in Mexico's view, are the exporters and foreign producers made known to the investigating authority 
                                                      
325Panel Report, paras. 7.220 and 7.223.  
326Mexico's appellant's submission, para. 232(a). 
327Ibid., para. 233(b) (" sentido corriente "). WT/DS295/AB/R 
Page 96  
 
at the outset of an investigation.
328  Mexico suggests that such a read ing is also logical because, if an 
investigating authority were to provide 30 days to  every respondent that makes itself known to the 
agency, investigations could not be comple ted within the time-limits set out in the  Anti-Dumping 
Agreement   and the SCM Agreement .329 
279. We begin our analysis with the texts of the re levant provisions of th e covered agreements.  
Article 6.1.1 of the  Anti-Dumping Agreement   provides, in relevant part:  
Exporters or foreign producers receiving questionnaires used in an 
anti-dumping investigation shall be given at least 30 days for reply.15 
  
15 As a general rule, the time-limit for exporters shall be counted from the 
date of receipt of the questionnaire, wh ich for this purpose shall be deemed 
to have been received one week from the date on which it was sent to the 
respondent or transmitted to the appropriate diplomatic representative of the 
exporting Member or, in the case of a se parate customs territory Member of 
the WTO, an official representative of the exporting territory. 
Similarly, the relevant part of Article 12.1.1 of the  SCM Agreement   provides: 
Exporters, foreign producers or interested Members receiving 
questionnaires used in a countervailing duty investigation shall be 
given at least 30 days for reply.40   
  
40 As a general rule, the time-limit for exporters shall be counted from the 
date of receipt of the questionnaire, wh ich for this purpose shall be deemed 
to have been received one week from the date on which it was sent to the 
respondent or transmitted to the appropriate diplomatic representatives of 
the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory. 
280. These provisions explicitly require that an inves tigating authority provide at least 30 days for 
reply to  all  exporters and foreign producers receiving a qu estionnaire, to be counted, "[a]s a general 
rule", from the date of receipt of the questionnaire.  Article 6.1 of the Anti-Dumping Agreement  
provides for  all  interested parties in an anti-dumping investigation to receive a questionnaire from 
the investigating authority.330  As we observed above, this includ es not only those referred to in the 
                                                      
328Mexico's response to questioning at the oral hearing. 
329Mexico's appellant's submission, para. 233(c) (referring to Appellate Body Report, US – Hot-Rolled 
Steel , para. 73). 
330Article 6.1 of the Anti-Dumping Agreement  provides: 
All interested parties in an anti-dumpi ng investigation shall be given notice 
of the information which the authorities require and ample opportunity to 
present in writing all evidence which they consider relevant in respect of the investigation in question.  WT/DS295/AB/R 
 Page 97 
 
 
petition for anti-dumping duties, as Mexico argues, but also those that made themselves known to the 
investigating authority—further to the issuance of a public notice of initiation or otherwise—and 
those that the investigating authority might id entify as a result of some inquiry of its own.331  We are 
of the view that the same understanding applies to Article 12.1 of the  SCM Agreement .332  It follows, 
therefore, that the period of at least 30 days to re ply to questionnaires, provided for in Article 6.1.1 of 
the  Anti-Dumping Agreement   and Article 12.1.1 of the  SCM Agreement ,  must be extended to all 
such exporters and foreign producers,  whether known to the investigating authority at the outset of the 
investigation or at some point thereafter. 
281. We are not persuaded by Mexico's argument that such an interpretation of Article 6.1.1 of the  
Anti-Dumping Agreement   and Article 12.1.1 of the  SCM Agreement   is "illogical" on the ground that 
granting 30 days to exporters and foreign produ cers appearing after the notice of initiation would 
prevent the agency from complying with the time- limits for investigations set out in those 
Agreements.333  Mexico has not shown how providing 30 days  for reply to all exporters and foreign 
producers receiving a questionnaire would prevent an investigating authority from complying with the 
time-frames set out in those Agreements.  Those Ag reements contemplate, in the typical case, that 
exporters and foreign producers not identified in the petition will make themselves known to the 
investigating authority in the earlier stages of the proceeding—for example, s hortly after publication 
of the notice of initiation—rather than at some later stage.   
282. Having said that, we recognize that it is theore tically possible, as Mexico posits, that the 
notification of interest by an exporter or producer is at such a late stage in the proceeding that an 
investigating authority, seeking to comply with the time-limits provided for in the  Anti-Dumping 
Agreement   and the  SCM Agreement334, could not reasonably take into account information submitted 
by that respondent.  The Appellate Body has observe d, in this respect, that the due process rights in 
Article 6 of the Anti-Dumping Agreement —which include the right to 30 days for reply to a 
questionnaire—"cannot extend indefinitely" but, instead , are limited by the investigating authority's 
need "to 'control the conduct' of its inquiry and to 'carry out the multiple steps' required to reach a 
                                                      
331Supra , para. 250. 
332Article 12.1 of the  SCM Agreement   provides: 
Interested Members and all interested parties in a countervailing duty 
investigation shall be given notice of the information which the authorities 
require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question. 
333Mexico's appellant's submission, para. 233(c) (" ilógico "). 
334Article 5.10 of the Anti-Dumping Agreement ; Article 11.11 of the SCM Agreement . WT/DS295/AB/R 
Page 98  
 
timely completion" of the proceeding.
335  As such, the time-limits for completing an investigation 
serve to circumscribe the obligation in Article 6.1.1 to provide  all  interested parties 30 days to reply 
to a questionnaire.  In our view, the same may be  said with respect to the identical obligation in 
Article 12.1.1 of the  SCM Agreement .  Accordingly, we fail to see how the argument put forward by 
Mexico can constitute a legal basis supporting an interpretation of Article 6.1.1 of the  Anti-Dumping 
Agreement   and Article 12.1.1 of the  SCM Agreement  under which, contrary to the plain language of 
those provisions, only those exporters and foreign pr oducers known at the time of initiation must be 
provided 30 days to reply to the questionnaire. 
283. In the light of our understanding of the obligation in Article 6.1.1 of the  Anti-Dumping 
Agreement  and Article 12.1.1 of the  SCM Agreement , we turn to the challenged provision of the 
FTA.  The time period provided by Ar ticle 53 to reply to questionnaires336—28 working days337—is 
counted from "the publication of the initiating resolu tion".  As a result, a certain group of exporters 
and foreign producers—for example, those to whom questionnaires are sent  following   the notice of 
initiation, including those that may make themselves known to the investigating authority in response to the public notice of initiation—cannot be provide d 30 days to reply without having to request an 
extension from Economía.
338  We, therefore,  uphold   the Panel's findings, in paragraphs 7.223, 7.225, 
and 8.5(a) of the Panel Report, that Article 53 of th e FTA is inconsistent, as such, with Article 6.1.1 of 
the  Anti-Dumping Agreement   and Article 12.1.1 of the  SCM Agreement .  
C. Article 64  
284. Article 64 of the FTA provides: 
The Ministry shall determine a countervailing duty[339] on the basis of 
the highest margin of price discrimination or subsidization obtained from the facts available, in the following cases: 
                                                     
 
335Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 242 (quoting 
Appellate Body Report, US – Hot-Rolled Steel , para. 73, in turn quoting Panel Report, US – Hot-Rolled Steel , 
para. 7.54). 
336It is not contested by Mexico that the submission of information covered by Article 53 includes 
questionnaire responses of exporters and foreign producers.   
337Both parties agreed before the Panel that the 28 days  specified in Article 53 refers to "working days" 
("días habiles ") by virtue of Article 3 of the FTA. (Panel Report, para. 7.218 and footnote 201 thereto) 
338Before the Panel, Mexico argued that, under the FTA, Economía ma y authorize extensions to meet 
the 30-day requirement.  The Panel responded that "[e]xporters or fore ign producers recei ving questionnaires 
should not be forced to use the possibility of requesting extensions to obtain the time period of 30 days they are 
entitled to, without any showing of good cause." (Panel Repo rt, para. 7.222)  We agree with this response of the 
Panel and note that, in any event, Mexico does not press this argument on appeal.  
339The Panel observed that "the term 'countervailing duty ' referred to throughout the [FTA] is used to 
refer to both anti-dumping duties and countervailing duties." (Panel Report, footnote 206 to para. 7.236)  WT/DS295/AB/R 
 Page 99 
 
 
I. When the producers fail to app ear at the investigation;  or 
II. When the producers fail to provide the information in a 
proper and timely fashion, significantly  impede the investigation, or 
supply information or evidence that is incomplete, incorrect or does not derive from their accounts, th us preventing the determination of 
an individual margin of price discrimination or subsidization;  or 
III. When the producers have not exported the product subject to 
investigation during the investigation period. 
The facts available shall be underst ood to mean those substantiated 
by evidence and data provided by th e interested parties or additional 
parties in a proper and timely fashion, and by the information 
gathered by the investigating authority. 
285. The United States claimed that Article 64 was inconsistent with Article 6.8 of the  Anti-
Dumping Agreement , paragraphs 1, 3, 5, a nd 7 of Annex II thereto, and Article 12.7 of the  
SCM Agreement .  The Panel determined that Article 6.8 of the Anti-Dumping Agreement , and 
paragraphs 1, 3, 5, and 7 of A nnex II thereto, condition an investigating authority's reliance on the 
facts available on its use of whatever information is provided by the interested parties, where possible, 
and on its exercise of "special circumspection" when relying on secondary source information.
340  
Moreover, the Panel was of the view that the title of Annex II—"Best Information Available in Terms 
of Paragraph 8 of Article 6"—makes clear that in su ch instances, the agency is  to rely on the "best" 
information available, which requires on the part of  the agency "an inherently comparative evaluation 
of the 'evidence available'".341  The Panel understood Article 64 to  require Economía to assign the 
highest margin calculated from the facts available to  producers that do not appear or that did not 
export the subject merchandise during the period of i nvestigation, without consideration of whether 
other evidence on record might prove more accurate .  On this basis, the Panel found Article 64 
inconsistent with Article 6.8 of the  Anti-Dumping Agreement ,  paragraphs 1, 3, 5, and 7 of Annex II 
thereto, and Article 12.7 of the  SCM Agreement .342 
286. Mexico submits that these provisions of the  Anti-Dumping Agreement   and the  SCM 
Agreement   permit the use of facts available with resp ect to respondents that "do[] not provide" the 
information requested by the investigating authority.343  According to Mexico, such respondents 
include producers that do not appear in an investig ation or that do not export the subject merchandise 
                                                      
340Panel Report, para. 7.238. 
341Ibid., para. 7.166 (and later referred to in footnote 209 to para. 7.238). 
342Ibid., para. 7.242. 
343Mexico's appellant's submission, para. 245(e) (" no facilita la información requerida "). WT/DS295/AB/R 
Page 100  
 
during the period of investigation.
344  Mexico further observes that paragraph 7 of Annex II explicitly 
recognizes that respondents failing to provide necessary information may face higher margins than if 
they had cooperated with the investigation.345  In Mexico's view, because Article 64 permits 
Economía to use facts available when calculati ng margins for respondents that do not provide 
necessary information, it is consistent with the relevant provisions of the  Anti-Dumping Agreement   
and the  SCM Agreement .346   
287. We begin by reviewing the relevant provisions of the  Anti-Dumping Agreement   governing 
the use of facts available.  Article 6.8 provid es that an investigating authority may base its 
determinations on the basis of facts available where, inter alia , a respondent "does not provide … 
necessary information within a reasonable period", subject to the conditions set out in Annex II, 
entitled "Best Information Available in Terms of Paragraph 8 of Article 6".  Among these conditions 
is the obligation in paragraph 1 of Annex II to inform  the relevant respondent th at, if it fails to provide 
the necessary information, the agency  will resort to use of facts available.  Paragraph 3 obliges an 
investigating authority to "take[] into account" th e information supplied by a respondent, even if  
other   information requested has not been provid ed by the respondent and will need to be 
supplemented by facts available.  Similarly, para graph 5 prevents an investigating authority from 
rejecting the information supplied by a respondent, ev en if incomplete, where the respondent "acted to 
the best of its ability".  Finally, paragraph 7 mandate s, where an investigating authority relies on data 
from a secondary source to fill in gaps resulting from a respondent's failure to provide requested 
information, that the investigating authority ex amine such data "with special circumspection." 
288. From these obligations, we understand that an investigating authority in an anti-dumping 
investigation may rely on the facts available to calculate margins for a respondent that failed to 
provide some or all of the necessary information re quested by the agency.  In so doing, however, the 
agency must first have made the respondent aware th at it may be subject to a margin calculated on the 
basis of the facts available because of the respond ent's failure to provide necessary information.  
Furthermore, assuming a respondent acted to the best of  its ability, an agency must generally use, in 
the first instance, the information the respondent did provide, if any.   
289. With respect to the facts that an agency may use when faced with missing information, the 
agency's discretion is not unlimited.   First, the fa cts to be employed are expected to be the "best 
information available".  In this respect, we agree with the Panel's explanation: 
                                                      
344Mexico's appellant's submission, para. 245(e). 
345Ibid., para. 245(f). 
346Ibid., para. 245(c)-(e).  WT/DS295/AB/R 
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The use of the term " best  information" means that information has to 
be not simply correct or useful per se , but the most fitting or "most 
appropriate" information available in  the case at hand.  Determining 
that something is "best" inevita bly requires, in our view, an 
evaluative, comparative assessment as the term "best" can only be 
properly applied where an unambiguous ly superlative status obtains.  
It means that, for the conditions of Article 6.8 of the AD Agreement and Annex II to be complied with, there can be no better information 
available to be used in the partic ular circumstances.  Clearly, an 
investigating authority can only be in a position to make that 
judgement correctly if it has made an  inherently comparative 
evaluation of the "evidence available".
347 (original emphasis;  
footnote omitted)  
Secondly, when culling necessary information fro m secondary sources, the agency should ascertain 
for itself the reliability and accuracy of such info rmation by checking it, where practicable, against 
information contained in other independent sources at its disposal, including material submitted by 
interested parties.  Such an active approach is co mpelled by the obligation to treat data obtained from 
secondary sources "with special circumspection".  
290. We turn now to Article 12.7 of the  SCM Agreement .  The Panel based its finding of 
inconsistency with that provision on the reasoning it had developed with respect to the obligations in 
Article 6.8 of the  Anti-Dumping Agreement   and paragraphs 1, 3, 5,  and 7 of Annex II thereto.348  We 
observe, however, that there are important textual di fferences between the relevant provisions of the  
Anti-Dumping Agreement   and the  SCM Agreement —namely, the absence in the  SCM Agreement   of 
an equivalent  to Annex II to the  Anti-Dumping Agreement . 
291. Article 12.7 of the  SCM Agreement   provides: 
In cases in which any interested Me mber or interested party refuses 
access to, or otherwise does not provide, necessary information 
within a reasonable period or significantly impedes the investigation, preliminary and final determinations , affirmative or negative, may be 
made on the basis of the facts available. 
Like Article 6.8 of the  Anti-Dumping Agreement , Article 12.7 of the  SCM Agreement   permits an 
investigating authority, under certain circumstances,  to fill in gaps in the information necessary to 
arrive at a conclusion as to subsidization (or dumping) and injury.  As in the  Anti-Dumping 
Agreement , Article 12.7 prescribes the information that may be used for such purposes as the "facts 
available".  Unlike the  Anti-Dumping Agreement , the  SCM Agreement  does not expressly set out in 
an annex the conditions for determin ing precisely which "facts" might be "available" for an agency to 
                                                     
 
347Panel Report, para. 7.166.  
348Ibid., para. 7.242. WT/DS295/AB/R 
Page 102  
 
use when a respondent fails to provide necessary in formation.  This does not mean, however, that no 
such conditions exist in the  SCM Agreement .  
292. Turning to the context of Article 12.7, we ar e of the view that, like Article 6 of the  Anti-
Dumping Agreement , Article 12 of the  SCM Agreement   as a whole "set[s] out evidentiary rules that 
apply  throughout   the course of the … investigation, and provide[s] also for due process rights that 
are enjoyed by 'interested parties'  throughout  … an investigation".
349  In this respect, Article 12.1 
provides: 
Interested Members and all interested parties in a countervailing duty 
investigation shall be given notice of the information which the 
authorities require and ample opportunity to present in writing all 
evidence which they consider relevant  in respect of the investigation 
in question. 
This due process obligation—that an interested pa rty be permitted to present all the evidence it 
considers relevant—concomitantly requires the investig ating authority, where appropriate, to take into 
account the information submitted by an interested party.350   
293. Moreover, we note that Article 12.7 is intended to ensure that the failure of an interested party 
to provide necessary information does not hinder an agency's investigation.  Thus, the provision 
permits the use of facts on record solely for the pur pose of replacing information that may be missing, 
in order to arrive at an accurate subs idization or injury determination.   
294. In view of the above, we understand that rec ourse to facts available does not permit an 
investigating authority to use any information in wh atever way it chooses.  First, such recourse is not 
a licence to rely on only part of the evidence provi ded.  To the extent possible, an investigating 
authority using the "facts available" in a counterva iling duty investigation must take into account all 
the substantiated facts provided by an interested party, even if those facts may not constitute the 
complete information requested of that party.  Secondly, the "facts available" to the agency are 
generally limited to those that may reasonably replace th e information that an interested party failed to 
provide.  In certain circumstances, this may include information from secondary sources.  
                                                      
349Appellate Body Report, EC – Tube or Pipe Fittings , para. 138 (quoting Appellate Body Report,  
EC – Bed Linen (Article 21.5 - India) , para. 136). (emphasis added in  EC – Tube or Pipe Fittings ) 
350We note that the Appellate Body has found that the obligation in Article 6.1 of the Anti-Dumping 
Agreement —the counterpart to Article 12.1 of the SCM Agreement —is not satisfied where the investigating 
authority "disregard[s]" information submitted by an interested party. (Appellate Body Report, US – Oil 
Country Tubular Goods Sunset Reviews , para. 246)  WT/DS295/AB/R 
 Page 103 
 
 
295. This understanding of the limitations on an investig ating authority's use of "facts available" in 
countervailing duty investigations is  further supported by the simila r, limited recourse to "facts 
available" permitted under Annex II to the Anti-Dumping Agreement .  Indeed, in our view, it would 
be anomalous if Article 12.7 of the  SCM Agreement   were to permit the use of "facts available" in 
countervailing duty investigations  in a manner markedly different from that in anti-dumping 
investigations.  
296. We now consider the consistency of the cha llenged provision of the FTA with the above 
provisions of the  Anti-Dumping Agreement   and the  SCM Agreement .  The Panel understood 
Article 64 to mandate Economía to calculate the hi ghest possible margin on the basis of the facts 
available and apply that margin to, inter alia , foreign producers that do not appear in the investigation 
and to those that did not export the subject merchandise during the period of investigation.351  In other 
words, Article 64 appears to require the agency to  apply indiscriminately su ch a margin—the highest 
that could be calculated on the basis of the facts av ailable—to certain foreign producers or exporters.  
The provision so requires even in instances—such as the case of fore ign producers that do not appear 
in an investigation—where the producer is not sent a questionnaire and thus may not be informed of 
the consequences for its failure to provide requested information.   
297. Article 64 also does not on its face permit the agency to use  any  information that might be 
provided by a foreign producer or exporter, even if  incomplete, where the use of such information 
would result in a margin lower than the highest f acts available margin.  Nor does it allow the agency 
to engage in the "evaluative, comparative assessment"352 necessary in order to determine which facts 
are "best" to fill in the missing information.  Fu rthermore, Article 64 requires Economía to use those 
facts necessary to arrive at the hi ghest margin that can be calculate d, even if those facts, although 
"substantiated", might be deemed unreliable by the agency after exercising "special circumspection".  Thus, in all situations of incomplete informati on—including those of producers not appearing in the 
investigation and producers not exporting th e subject merchandise during the period of 
investigation
353—we read Article 64 as preventing Economía from engaging in the reasoned and 
selective use of the facts available directed by Article 6.8 of the  Anti-Dumping Agreement , Annex II 
thereto, and Article 12.7 of the  SCM Agreement . 
                                                      
351Panel Report, paras. 7.237-7.238. 
352See ibid., para. 7.166 (quoted supra , at para. 289). 
353Like the Panel, we assume  arguendo   that Article 6.8 and Annex II apply to the calculation of 
individual margins for non-shipping exporters, that is, those that did not export the subject merchandise during 
the period of investigation. (See Ibid., para. 7.241 and footnote 158 to para. 7.163) WT/DS295/AB/R 
Page 104  
 
298. In the light of the above, we  uphold   the Panel's findings, in pa ragraphs 7.242 and 8.5(b) of 
the Panel Report, that Article 64 of the FTA is inconsistent, as such, with Article 6.8 of the  Anti-
Dumping Agreement ,  paragraphs 1, 3, 5, and 7 of Anne x II thereto, and Article 12.7 of the  SCM 
Agreement . 
D. Article 68  
299. The Panel examined separately two different aspects of the United States' challenge to 
Article 68 of the FTA:  (i) relating to administrative reviews for exporters found in the investigation to 
have  de minimis   margins;  and (ii) relating to the "representativeness" requirement for respondents 
seeking an administrative review.  We an alyze these challenges in turn below. 
1. Exporters with  De Minimis   Margins
 
300. Article 68 of the FTA provides, with respect to exporters with  de minimis  margins: 
Final countervailing duties shall be reviewed annually at the request 
of a party or ex officio  by the Ministry at any time, as shall imports 
from producers for whom no positive margin of price discrimination 
or subsidization was determined in the investigation.  
301. The United States argued before the Panel that Ar ticle 68 is inconsistent  with Article 5.8 of 
the Anti-Dumping Agreement  and Article 11.9 of the SCM Agreement .  The Panel confirmed its 
finding, made in the context of evaluati ng the United States' "as applied" claims354, that Article 5.8 of 
the  Anti-Dumping Agreement   requires an investigating authority  to exclude, from the definitive anti-
dumping measure, exporters found not  to have been dumping above  de minimis   levels.  The Panel 
further observed that the "logical consequence" of su ch exclusion is that those exporters may not be 
subjected to administrative reviews or changed circumstances reviews.355  As Article 68 requires that 
such exporters be subject to such reviews upon re quest of an interested party, the Panel found 
Article 68 to be inconsistent  with Article 5.8 of the  Anti-Dumping Agreement   and, mutatis mutandis , 
Article 11.9 of the SCM Agreement .356 
302. Mexico alleges on appeal that the Panel e rred in interpreting Article 5.8 of the  Anti-Dumping 
Agreement   and Article 11.9 of the  SCM Agreement .  According to Mexico, by finding that 
Article 68—which deals exclusively with reviews— is inconsistent with these provisions, the Panel 
failed to recognize that the obligations containe d in these provisions are limited to original 
                                                      
354See Panel Report, para. 7.166.  
355Ibid., para. 7.251. 
356The Panel provided no further reasoning as to why its analysis under Article 5.8 of the  Anti-
Dumping Agreement   applies equally to Article 11.9 of the  SCM Agreement .   WT/DS295/AB/R 
 Page 105 
 
 
investigations.357  Mexico contends that Article 5.8 and Ar ticle 11.9 do not apply to  events subsequent 
to the original investigation, including reviews.358  Even if those provisions did apply, Mexico argues, 
they require only that the investigating authority not  levy duties   on the relevant respondents;  these 
provisions do not address the question whether those respondents may be included in the  definitive 
measure   at the end of an investigation.359  Thus, according to Mexico, because Article 68 does not 
require that duties be imposed on such respondents, this basis for the Panel's finding of inconsistency 
is erroneous.   
303. We begin with the relevant provisions of the  Anti-Dumping Agreement   and the SCM 
Agreement .  Article 5 of the Anti-Dumping Agreement  is titled "Initiation and Subsequent 
Investigation".  Paragraph 8 of Article 5 provides: 
An application under paragraph 1 shall be rejected and an 
investigation shall be terminated promptly as soon as the authorities 
concerned are satisfied that there is  not sufficient evidence of either 
dumping or of injury to justify proceeding with the case.  There shall be immediate termination in cases where the authorities determine that the margin of dumping is  de minimis , or that the volume of 
dumped imports, actual or potential, or the injury, is negligible.  
304. Article 11 of the  SCM Agreement   is also titled "Initiation and Subsequent Investigation".  
Paragraph 9 of Article 11  provides: 
An application under paragraph 1 shall be rejected and an 
investigation shall be terminated promptly as soon as the authorities 
concerned are satisfied that there is  not sufficient evidence of either 
subsidization or of injury to jus tify proceeding with the case.  There 
shall be immediate termination  in cases where the amount of a subsidy is  de minimis , or where the volume of subsidized imports, 
actual or potential, or the injury, is negligible.  
305. We have already indicated that the Panel was correct in finding that Article 5.8 of the  Anti-
Dumping Agreement   requires an investigating authority to terminate the investigation "in respect of" 
an exporter found not to have a margin above  de minimis , and that the exporter consequently must be 
excluded from the definitive anti-dumping measure.
360  An investigating authority does not, of course, 
impose duties—including duties at zero per cent— on exporters excluded from the definitive anti-
                                                      
357Mexico's appellant's submission, para. 259(b). 
358Ibid., para. 259(c). 
359Ibid., para. 259(d)-(g).  Mexico explains that incl usion of an exporter in the measure does not 
necessarily mean a duty will be levied on that particular respondent;  this is because such a respondent may be 
assigned a duty of zero. 
360Supra , paras. 216-218.  WT/DS295/AB/R 
Page 106  
 
dumping measure.  We therefore agree with the Panel that the "logical consequence"
361 of this 
approach is that such exporters cannot be subj ect to administrative and changed circumstances 
reviews, because such reviews examine, respectively, the "duty  paid"362 and "the need for the  
continued imposition   of the duty".363  Were an investigating authority to undertake a review of 
exporters that were excluded from the anti-dumping measure by virtue of their  de minimis   margins, 
those exporters effectively would be made subject  to the anti-dumping measure, inconsistent with 
Article 5.8.  The same may be said with respect to Article 11.9 of the  SCM Agreement .   
306. We now consider whether Article 68 of the FTA is consistent with these treaty provisions.  
The Panel found that Article 68 requires Economía to "review ... producers for which during the 
original investigation it was determined that they  had not been engaged in dumping practices or had 
not received any subsidies."364  As we have stated, such exporters  were to have been excluded from 
the anti-dumping measure, by virtue of Article 5.8 of the  Anti-Dumping Agreement , and from the 
countervailing duty measure, by virtue of Article 11.9 of the  SCM Agreement .  Excluding these 
exporters from anti-dumping or coun tervailing duty measures necessarily implies that they must also 
be excluded from administrative and changed circum stances reviews.  By requiring Economía to 
conduct a review for exporters with no margins and, by extension,  de minimis   margins, Article 68 is 
inconsistent with Article 5.8 of the  Anti-Dumping Agreement   and Article 11.9 of the  SCM 
Agreement . 
307. We therefore  uphold   the Panel's findings, in paragra phs 7.251 and 8.5(c) of the Panel 
Report, that Article 68 of the FTA is incons istent, as such, with Article 5.8 of the  Anti-Dumping 
Agreement and Article 11.9 of the  SCM Agreement .  
2. The "Representativeness" Requirement  
308. The Panel also examined the United States' cha llenge to another element of Article 68, which 
provides: 
The party requesting a review shall satisfy the Ministry that the 
volume of exports to Mexico during the review period is representative. 
The Panel understood this aspect of Article 68 to  require respondents, in order to obtain an 
administrative or changed circumstances review, to show that the volume of their exports to Mexico 
                                                     
 
361Panel Report, para. 7.251. 
362Article 9.3.2 of the Anti-Dumping Agreement . (emphasis added)   
363Article 11.2 of the Anti-Dumping Agreement ;  Article 21.2 of the SCM Agreement . (emphasis added)   
364Panel Report, para. 7.251.  WT/DS295/AB/R 
 Page 107 
 
 
during the period of review was "representative".365  The Panel noted that the only condition placed on 
requests for administrative reviews by Article 9.3.2 of the  Anti-Dumping Agreement , was that a 
respondent's request be supported by "evidence", which the Panel understood  to refer to evidence 
necessary to permit the investigating authority to  calculate a dumping margin.  The Panel further 
stated that, as Article 9.3.2 provides for administra tive reviews to determine the duties paid in excess 
of the dumping margin be refunded, the volum e of exports is "completely irrelevant".366  The Panel 
therefore concluded that Article 9.3 did not contem plate a prerequisite of showing a "representative" 
volume of export sales in order to obtain an administrative review.367 
309. With respect to Article 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  
SCM Agreement , the Panel similarly observed that the only requirements to be satisfied by a 
respondent requesting a changed circumstances revi ew under these provisions were that a reasonable 
period of time had elapsed since the imposition of th e duty, and that the request be substantiated by 
"positive information".368  The Panel was also of the view that this "positive information" related to 
the continued need for the duty and the likelihood of  continuation or recurrence of injury, but did not 
necessarily include the volume of e xports during the period of review.369  The Panel thus concluded 
that an investigating authority must conduct a changed circumstances review whenever the two 
requirements stated in the provisions had been satisfi ed, regardless of the "representative" nature of 
the respondent's exports.370 
310. Mexico contends that the Panel erred in its interpretation of Articles 9.3 and 11.2 of the  Anti-
Dumping Agreement , and Article 21.2 of the SCM Agreement .  According to Mexico, the "only 
obligation" in those provisions is that the investigating authority  initiate   a review371;  beyond 
initiation, however, the provisions "do[] not c ontain any guidelines on how [reviews] should be 
conducted or their outcome in the presence or absence of a particular element".372  In Mexico's view, 
Article 68 does not preclude the  initiation   of a review, but requires only a showing of 
"representative" export volumes in order for a responde nt to receive a re-calculated margin.  Viewed 
                                                      
365Panel Report, para. 7.253. 
366Ibid., para. 7.257. 
367Ibid. 
368Ibid., para. 7.258 (quoting Article 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  
SCM Agreement ). 
369Ibid., paras. 7.258-7.259. 
370Ibid., para. 7.258. 
371Mexico's appellant's submission, para. 264 (" la única obligación "). (underlining omitted) 
372Ibid., para. 264 (" No hay en su texto directriz alguna al respecto de cómo [los exámenes] deben 
llevarse a cabo ni del resultado que debe haber en presencia o ausencia de un determinado elemento "). 
(underlining omitted) WT/DS295/AB/R 
Page 108  
 
in this light, Mexico submits, Article 68 is not in consistent with the obligations in Articles 9.3 
and 11.2 of the  Anti-Dumping Agreement ,  or Article 21.2 of the  SCM Agreement .  
311. We begin our analysis by reviewing the WTO pr ovisions at issue.  Article 9.3 of the  Anti-
Dumping Agreement   provides: 
The amount of the anti-dumping duty shall not exceed the margin of 
dumping as established under Article 2. 
The sub-paragraphs of Article 9. 3—including, of particular releva nce here, sub-paragraphs 1 and 2—
specify in greater detail how investigating authorities are to comply with this more general obligation, 
namely, by providing for refunds to respondents wh ose duties have exceeded their dumping margins.  
Article 9.3.1 deals with such refunds for Members employing a  retrospective   system for the 
assessment and collection of anti-dumping duties, wh ereas Article 9.3.2 deals with those Members, 
such as Mexico, employing a  prospective   system. 
312. Article 9.3.2 provides: 
When the amount of the anti-dumping duty is assessed on a 
prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case 
more than  18 months, after the date on which a request for a refund, 
duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty.  The refund authorized should normally be made within 90 days of the above-noted  decision. 
We note, first, that this provision  mandates   a refund where an importer has paid duties in excess of 
the margin of dumping and the importer requests a re fund.  The refund of duties is conditioned solely 
on (i) the request being made by an importer of the product subject to the anti-dumping duty;  and (ii) the request having been "duly supported by evidence" .  Other than these requirements, we see no basis 
for an investigating authority to decline to affect the mandated refund.  Indeed, failure to do so would 
result in the importer having paid a duty in excess of  the dumping margin, contrary to Article 9.3. 
313. Article 11.2 of the  Anti-Dumping Agreement   governs reviews other than duty assessment 
reviews under Article 9.3, including changed circ umstances reviews.  Article 11.2 provides:    WT/DS295/AB/R 
 Page 109 
 
 
The authorities shall review the n eed for the continued imposition of 
the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a 
review.
21  Interested parties shall have the right to request the 
authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whet her the injury would be likely to 
continue or recur if the duty were removed or varied, or both.  If, as a result of the review under this pa ragraph, the authorities determine 
that the anti-dumping duty is no longer warranted, it shall be 
terminated immediately.  
  
 
 21 A determination of final liability for payment of anti-dumping duties, 
as provided for in paragraph 3 of Article 9, does not by itself constitute a review within the meaning of this Article. 
314. Article 11.2  requires   an agency to conduct a review, inter alia , at the request of an interested 
party, and to terminate the anti-dumping duty where the agency determines that  the duty "is no longer 
warranted".  The interested party has the right to request the authority to examine whether the 
continued imposition of the duty is necessary to offset  dumping, whether the injury would be likely to 
continue or recur if the duty were removed or vari ed, or both.  Article 11.2 conditions this obligation 
on  (i) the passage of a reasonable period of time sin ce imposition of the definitive duty;  and (ii) the 
submission by the interested party of "positive inform ation" substantiating the need for a review.  As 
the Panel correctly observed, this latter conditio n may be satisfied in a particular case with 
information not related to export volumes.373  Where the conditions in Article 11.2 have been met, the 
plain words of the provision make it clear that the agency has no discretion to refuse to complete a 
review, including consideration of whether the duty shoul d be terminated in the light of the results of 
the review.  We see no reason why the same unde rstanding does not apply in the context of 
                                                      
373Panel Report, para. 7.259. WT/DS295/AB/R 
Page 110  
 
countervailing duty investigations, in particular give n the identical language in Article 21.2 of the  
SCM Agreement
.374 
315. Although, as Mexico emphasizes, none of the above  provisions contains an express obligation  
not  to condition a review on a showing of "representative" volume of exports375, this does not mean 
that those provisions permit such a condition.  Rather , we consider that they require an investigating 
authority to undertake duty assessment reviews and changed circumstances reviews once the 
conditions set out in those provisions have been  satisfied.  In our view, these conditions are 
exhaustive;  thus, if an agency seeks to impose additional conditions on a respondent's right to a 
review, this would be inconsistent with t hose provisions.  This includes a showing of a 
"representative" volume of export sales, which Article 68 of the FTA imposes as an absolute 
requirement in every case before affording the respondent the right to a review or refund.376    
316. We, therefore,  uphold   the Panel's findings, in paragra phs 7.260 and 8.5(c) of the Panel 
Report, that Article 68 of the FTA is inconsiste nt, as such, with Articles 9.3 and 11.2 of the  Anti-
Dumping Agreement ,  and Article 21.2 of the  SCM Agreement . 
E. Article 89D  
317. Article 89D of the FTA provides:  
Producers of goods subject to a final countervailing duty[377] who 
exported no such goods during the pe riod under investigation in the 
proceedings that gave rise to such duty may request the Ministry to 
initiate a procedure for new exporters with a view to assessing individual margins of price discrimination, provided that: 
                                                     
 
374Article 21.2 of the SCM Agreement  provides: 
The authorities shall review the need for the continued imposition of the 
duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive 
countervailing duty, upon request by any interested party which submits 
positive  information substantiating the ne ed for a review.  Interested parties 
shall have the right to request the authorities to examine whether the 
continued imposition of the duty is necessary to offset subsidization, 
whether the injury would be likely to continue or recur if the duty were 
removed or varied, or both.  If, as a result of the review under this 
paragraph, the authorities determine that the countervailing duty is no longer warranted, it shall be terminated immediately. 
375Mexico's appellant's submission, para. 264. 
376See Panel Report, para. 7.259 ("Article 68 of the [FTA] requires  as a rule   that  each time   an 
interested party is unable to show that volume of expor ts during the review period was representative, such a 
review is to be denied." (original emphasis)). 
377See  supra , footnote 339.  WT/DS295/AB/R 
 Page 111 
 
 
I. Their exports to the national territory of the goods subject to countervailing duties were sub sequent to the period under 
investigation in the proceedings that gave rise to the countervailing duty.  The requesting party shall sa tisfy the Ministry that the volume 
of exports during the period of review is representative[.] 
318. Before the Panel, the United States asserted that Article 89D requires a producer to 
demonstrate that the volume of its exports during th e period of review was "representative", in order 
to be entitled to an expedited review.  According to the United States, this requirement constitutes a 
restriction on a respondent's right to an expedited re view that is not permitted by Article 9.5 of the  
Anti-Dumping Agreement   or Article 19.3 of the  SCM Agreement .
378   
319. The Panel found that Article 9.5 of the  Anti-Dumping Agreement   requires an investigating 
authority to conduct an expedited review for a new shipper, provided that (i) the requesting exporter 
had not exported the subject merchandise to the impor ting Member during the period of investigation;  
and that (ii) the exporter can show that it is not re lated to an exporter or foreign producer already 
subject to the anti-dumping duties.379  The Panel similarly found that Article 19.3 of the  SCM 
Agreement   requires an investigating authority to conduc t an expedited review at the request of an 
exporter, provided that the exporter (i) is subject to a definitive duty;  and (ii) was not examined 
during the original investigation for reas ons other than a refusal to cooperate.380  According to the 
Panel, Article 89D requires Economía to reject a re quest for an expedited review, not only where the 
above conditions have not been met, but also where the exporter fails to esta blish that the volume of 
exports during the period of review was "representa tive".  As this latter ground for denying requests 
for expedited reviews was not provided for in either Agreement, the Panel found Article 89D 
inconsistent with Article 9.5 of the  Anti-Dumping Agreement   and Article 19.3 of the  SCM 
Agreement .381 
320. Mexico argues that both provisions are "silent" on the question whether an investigating 
authority may consider the "representativeness" of the volume of exports as part of its decision to 
grant an expedited review.382  In Mexico's submission, this "silen ce" reflects the "deliberate intention" 
of negotiators to allow investigating authorities to  implement these reviews in a manner best suited to 
the structure of their respective anti-dumping and countervailing duty systems.383  Mexico contends  
                                                      
378Panel Report, para. 7.261. 
379Ibid., para. 7.266. 
380Ibid., para. 7.268. 
381Ibid., paras. 7.266 and 7.268. 
382Mexico's appellant's submission, para. 273 (" guarda[n] silencio "). 
383Ibid. ("la intención deliberada "). WT/DS295/AB/R 
Page 112  
 
that the "silence" of these provisions must therefor e be given meaning, which the Panel failed to do by 
finding therein an obligation that does not exist and,  consequently, finding Ar ticle 89D inconsistent 
with this purported obligation. 
321. We review, first, the text of the releva nt WTO provisions.  Article 9.5 of the  Anti-Dumping 
Agreement   provides: 
If a product is subject to anti-dumping duties in an importing 
Member, the authorities shall promptly carry out a review for the purpose of determining individual margins of dumping for any exporters or producers in the expor ting country in question who have 
not exported the product to the importing Member during the period 
of investigation, provided that th ese exporters or producers can show 
that they are not related to any of the exporters or producers in the exporting country who are  subject to the anti-dumping duties on the product.  Such a review shall be initiated and carried out on an 
accelerated basis, compared to normal duty assessment and review proceedings in the importing Member. ...   
We agree with the Panel that Article 9.5  requires   that an investigating authority carry out an 
expedited review of a new shipper for an exporter that (i) did not export the subject merchandise to 
the importing Member during the period of investigati on, and (ii) demonstrated that it was not related 
to a foreign producer or exporter already subject to anti-dumping duties.
 384 
322. Article 19.3 of the  SCM Agreement   provides: 
Any exporter whose exports are subj ect to a definitive countervailing 
duty but who was not actually investigated for reasons other than a refusal to  cooperate, shall be entitle d to an expedited review in order 
that the investigating authorities promptly establish an individual countervailing duty rate for that exporter. 
We also agree with the Panel that Article 19.3  requires   that an investigating authority carry out an 
expedited review for an exporter that  (i) is subject to a definitive c ountervailing duty;  and (ii) was not 
examined during the original investigation fo r reasons other than a refusal to cooperate.
 385 
323. We examine now the consistency of Article 89D with the above treaty provisions.  The Panel 
found that Article 89D permits Economía to conduct an e xpedited review provided that, inter alia , the 
respondent make a showing of a "representative" vol ume of exports to Mexico during the period of  
                                                      
384Panel Report, para. 7.266. 
385Ibid., para. 7.268.  WT/DS295/AB/R 
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review.386  By so requiring, Article 89D, like Article 68 of the FTA387, imposes a condition not 
provided for in the relevant provisions of the Agre ements.  As such, Article 89D prevents Economía 
from granting a review in instances where the conditi ons set out in the relevant WTO provisions have, 
in fact, been met by a respondent.   
324. For these reasons, we  uphold   the Panel's findings, in paragraphs 7.269 and 8.5(d) of the 
Panel Report, that Article 89D of the FTA is in consistent, as such, with Article 9.5 of the  Anti-
Dumping Agreement   and Article 19.3 of the  SCM Agreement .   
F. Article 93V  
325. In its first written submission to  the Panel, the United States quoted Article 93V of the FTA, 
in English, as follows: 
It shall be the responsibility of the Ministry to punish the following 
infringements: 
*  *  * 
(V) Importation, once the investigation is under way, of identical 
or like goods in significant quantities, as compared to total 
imports and domestic production,  within a relatively short 
period, when in the light of the timing and the volume of the imports and other circumstances such imports are considered likely to undermine the remedial effect of the countervailing 
duty:  by a fine equivalent to the amount resulting from the 
application of the final countervailing duty to the imports entered for up to five months following the date of initiation 
of the investigation.  This pe nalty shall only be applied once 
the Ministry has issued the resolution determining the final countervailing duties . ...
388 
326. The United States alleged before the Panel that, pursuant to Article 93V, a "clear, direct and 
unavoidable connection" exists between, on the on e hand, the constituent elements of dumping or 
subsidization and, on the other hand, the fines required to be imposed by Economía.389  As a result, 
the United States argued, Article 93V constitutes a "specific action against"390 dumping or 
                                                      
386Panel Report, para. 7.266. 
387See supra , para. 315.   
388United States' first written submission to the Panel, para. 268 (quoting  "Notification of Laws and 
Regulations under Article 18.5 of the Agreement: Communication from Mexico", G/ADP/N/1/MEX/1, 18 May 1995, p. 12;  and "Notification of Laws and Regulations under Article 18.5 and 32.6 of the Relevant 
Agreements: Communication from Mexico", G/ADP/N/1/MEX/1/Supp.2, 24 April 2003, p. 15).   
389Panel Report, para. 7.270 (quoting United States' fi rst written submission to the Panel, para. 271, in 
turn quoting Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 242, in turn quoting Panel 
Report, US – Offset Act (Byrd Amendment) , para. 7.21). 
390Article 18.1 of the Anti-Dumping Agreement  and Article 32.1 of the SCM Agreement . WT/DS295/AB/R 
Page 114  
 
subsidization and, therefore, is inc onsistent within Article 18.1 of the  Anti-Dumping Agreement   and 
Article 32.1 of the  SCM Agreement .  Mexico contended th at Article 93V did not require  Economía to 
impose certain fines but, instead, only  authorized   the agency to do so.  Th erefore, in Mexico's view, 
this provision was not inconsistent with the WTO Agreements.
391 
327. The Panel determined that Article 93V re quires Economía to impose fines on certain 
importers "only following a determination that th e constituent elements of dumping or subsidization 
are present".392  The Panel further found that Article 93V "threaten[ed]" to impose fines on any firm 
importing the product subject to an anti-dumping investigation.393  On these bases, the Panel 
concluded that Article 93V provides for a "specific action against" dumping or subsidization that is 
not provided for in the  Anti-Dumping Agreement   or the  SCM Agreement .394  In response to Mexico's 
assertion that Article 93V did not  require   Economía to impose fines, the Panel stated: 
We do not consider this argument to be convincing.  When a law like 
the Act provides that it "shall be the responsibility of the Ministry to 
punish the following infringements",229 it does more than just 
divid[e] competences among the government, but rather stipulates that fines are to be imposed in case the conditions of Article 93V of the Act are met and that it is up to the Ministry of Economy responsible also for the conduct of anti-dumping and countervailing 
duty investigations to impose such fines.
395 
   
 229 The Spanish original of the law reads: " Corresponde a la Secretaría  
sancionar las siguientes infracciones: ...".  
328. On appeal, Mexico argues that the Panel should have based its interpretation of Article 93V 
on the  Spanish   text of the provision, instead of relying on an inaccurate  English   translation.396  
Mexico contests, in particular, the opening phrase of the English translation, which provides that "[i]t 
shall be the responsibility" of Economía to impose fi nes in certain circumstances.  In Mexico's view, 
the Panel, based on this understa nding of Article 93V, erroneously c oncluded that Article 93V is a 
"mandatory" provision, requiring Economía to impose fines under certain conditions.397  Referring to 
the same phrase in Spanish—" [c]orresponde a la Secretaría sancionar las siguientes infracciones "—
                                                      
391Mexico's first written submission to the Panel, paras. 283-285. 
392Panel Report, para. 7.278. 
393Ibid. 
394Ibid. 
395Ibid., para. 7.279. 
396Mexico's appellant's submission, paras. 279 and 282. 
397Ibid., para. 283(d) (" la fracción V del artículo 93 de la LCE ["FTA"] es obligatoria ").  WT/DS295/AB/R 
 Page 115 
 
 
Mexico submits that the term " corresponde " is better translated as "to pertain" or "to belong".398  
According to Mexico, the Panel's failure to interpre t Article 93V in such manner, and thereby to find 
it discretionary, constitutes error under Article 11 of the DSU.  Had the Panel properly recognized the 
discretionary character of Article 93V, Mexico ar gues, the Panel could not have found that provision 
inconsistent with Mexico's oblig ations under the WTO Agreements.399 
329. We note, at the outset, that the claim of error on appeal is under Article 11 of the DSU.  
Article 11 of the DSU requires panels, inter alia , to "make an objective assessment of the matter 
before it, including an objective assessment of the facts of the case ".  Thus, the question before us is  not  necessarily whether we agree with the Panel's in terpretation of Article 93V, but, rather, whether 
the Panel committed an error, rising to the level of a failure to make an obj ective assessment, when it 
came to its conclusion on the meaning of that provision.   
330. Turning to the circumstances of this case, we observe that Article 93V was notified by 
Mexico to the WTO Anti-Dumping Committee in 1995 and in 2003, as required by Article 18.5 of the  
Anti-Dumping Agreement .
400  The English translation of Article 93V that was provided to the Panel by 
the United States was the official WTO translation of these notifications.401  Although Mexico argued 
in its submissions to the Panel that Article 93V was not mandatory—based in part on the opening 
language of Article 93402—Mexico never questioned the use of th ese official WTO translations as the 
basis for the Panel's examination.403  We do not see how the Panel can be said to have failed to make 
an objective assessment when it relied on an official WTO English translation of Mexico's law, to 
                                                      
398Mexico's appellant's submission, para. 282 (" el significado de 'corresponde' es 'tocar, pertenecer' "). 
399Mexico's opening statemen t at the oral hearing. 
400"Notification of Laws and Regulations under Article 18.5 of the Agreement: Communication 
from  Mexico", G/ADP/N/1/MEX/1, 18 May 1995, p. 12;  "Notification of Laws and Regulations under Article 18.5 and 32.6 of the Relevant Agreements: Communication from Mexico", G/ADP/N/1/MEX/1/Supp.2, 
24 April 2003, p. 15.  Article 18.5 of the Anti-Dumping Agreement  provides: 
Each Member shall inform the Committee of any changes in its laws and 
regulations relevant to this Agreement and in the administration of such 
laws and regulations. 
401See supra , para. 325.  The United States also provided the original Spanish text of this provision. 
(United States' first written submission to the Panel, footnote 207 to para. 268)  
402Mexico's first written submission to the Panel, para s. 283-284;  Mexico's second written submission 
to the Panel, paras. 236-237;  Mexico's opening statemen t at the first meeting with the Panel, paras. 88-90;  
Mexico's opening statement at the second  meeting with the Panel, para. 112.  
403Mexico's response to questioning at the oral hearing. WT/DS295/AB/R 
Page 116  
 
which Mexico itself raised no objection.  Therefore, we  find  that, in its interpretation of Article 93V 
of the FTA, the Panel  did not fail   to fulfil its obligations under Article 11 of the DSU.
404  
G. Articles 68 and 97  
331. Mexico raises two challenges to the Panel's an alysis of the United States' claims against 
Articles 68 and 97 of the FTA:  (i) Mexico alle ges that the United States failed to make a  prima facie   
case that these provisions are inconsistent with Articles 9.3 and 11.2 of the  Anti-Dumping Agreement , 
and Article 21.2 of the  SCM Agreement ;  and (ii) Mexico contests the Panel's interpretation of 
Articles 9.3 and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  SCM Agreement , in 
particular, the Panel's understandi ng that a product is subject to a definitive anti-dumping duty once 
the duty is imposed following the investigation, rather  than once judicial proceedings in relation to the 
anti-dumping order have concluded.  We a ddress these two challenges below in turn. 
1. Prima Facie   Case  
332. Article 68 of the FTA provides: 
Final countervailing duties[405] shall be reviewed annually at the 
request of a party ... as shall imports from producers for whom no positive margin of price discrimination or subsidization was determined in the investigation.... 
Article 97 of the FTA provides: 
Any interested party may, in respect of the resolutions and actions 
referred to in Article 94, paragra ph (V), choose to resort to the 
alternative dispute settlement mechan isms . . . .  If such mechanisms 
are chosen: 
II. Only the resolution issu ed by the Ministry as 
a result of the decision emanating from the alternative mechanisms shall be considered final. ... 
                                                     
 
404Article 93V, on its face, seeks to  address the possible dumping of subject merchandise taking place 
during the anti-dumping or countervailing duty investigation.  We note that, although the Panel found Article 
93V inconsistent with provisions of the  Anti-Dumping Agreement   and the  SCM Agreement , both Agreements 
provide a means for investigating authorities to address this concern, namely, through the imposition of provisional measures and duties on products entered prior to the date of application of provisional measures.  
(See Articles 7 and 10 of the  Anti-Dumping Agreement   and Articles 17 and 20 of the  SCM Agreement ) 
405Supra , footnote 339.  WT/DS295/AB/R 
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333. Mexico contends that Article 68 of the FTA "bears no relation whatsoever to [the] alleged 
prohibition" on the conduct of reviews while judicial proceedings are ongoing.406  Mexico similarly 
asserts that Article 97 of the FTA contains "not hing ... establishing that the Mexican authority is 
prevented or obliged to refrain from undertak ing reviews or examining anti-dumping or 
countervailing duties."407  Because neither provision results in the alleged prohibition, Mexico argues, 
the United States did not establish a  prima facie   case of inconsistency with Articles 9.3 and 11.2 of 
the  Anti-Dumping Agreement   and Article 21.2 of the  SCM Agreement .408 
334. We note, at the outset, that the United States su bmits that this aspect of Mexico's appeal 
should fail because the Panel found " as a matter of fact " that Articles 68 and 97 "work together to 
preclude reviews while judicial proceedings are ongoi ng", and that, therefore, Mexico's challenge to 
that interpretation should have been  brought under Article 11 of the DSU.409  However, Mexico is not 
challenging simply the Panel's  interpretation   of these provisions of the FTA;  rather, Mexico 
contends that these provisions, on their face, are insufficient to establish a  prima facie   case of 
inconsistency with the rele vant provisions of the  Anti-Dumping Agreement   and the  SCM Agreement , 
and that, therefore, the Panel should not have  ruled on these claims.  An appeal based on a 
complaining Member's failure to make out a  prima facie   case need not be raised exclusively under 
Article 11 of the DSU.410  We therefore decline the United Stat es' request to reject this aspect of 
Mexico's appeal for failure to bring the claim of error under Article 11 of the DSU. 
335. Turning to the merits of Mexico's  prima facie   challenge, we recall that the Appellate Body 
considered a similar challenge in  US – Gambling , where the responding Member argued on appeal 
that the complaining Member had failed to make a  prima facie   case of inconsistency with respect to 
particular measures identified in the panel requ est.  There, the Appellate Body observed that: 
                                                      
406Mexico's appellant's submission, para. 293 (" no tiene relación alguna con [la] supuesta 
prohibición "). (emphasis omitted) 
407Ibid., para. 297 (" la transcripción, en ninguna parte de l artículo se establece que la autoridad 
mexicana está impedida u obligada a no realizar revisiones o exámenes de los derechos antidumping o 
compensatorios ").  
408Ibid., paras. 294 and 297.  
409United States' appellee's submission, para. 171. (original emphasis) 
410See, for example, Appellate Body Report, US – Gambling , paras. 133-157;  and Appellate Body 
Report, Japan – Agricultural Products II , paras. 118-131. WT/DS295/AB/R 
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The evidence and arguments underlying a  prima facie   case ... must 
be sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and obligation contained therein, and explain the basis for the claimed inconsistency of the measure with that provision.
411 
336. The United States submitted the text of Artic les 68 and 97, describing their meaning as 
follows: 
Similarly, Article 68 of the Foreign Trade Act only allows for the 
review of "final" duties, and unde r Article 97 of the Foreign Trade 
Act, only determinations issued at  the end of a judicial proceeding 
(including a "binational panel" revi ew) can be considered "final."  
The preclusion of reviews applies not only to the exporters or producers that are plaintiffs in the j udicial action, but also to all other 
producers and exporters that are subject to the antidumping or 
countervailing duties (which, given Mexican practice, means every 
producer or exporter of the product in the country subject to the order).  On this basis, Mexico h as denied several requests by U.S. 
producers and exporters to obtain re views of the duties applied to 
their exports.
412 
The United States also submitted a letter from the inv estigating authority to a United States exporter, 
which denied the exporter a review on the basis of, inter alia , Articles 68 and 97.413 
337. With respect to the relevant WTO provisions a nd the allegations of in consistency, the United 
States argued: 
                                                      
411Appellate Body Report, US – Gambling , para. 141. 
412United States' first written submission to the Panel, para. 286. (footnote omitted) 
413The Panel provided an English translation of th e relevant parts of the letter from the Mexican 
investigating authority (Exhibit US-20 submitted by the United States to the Panel) as follows: 
[I]n conformity with Articles 68 of the FTA  and 99, 100 and 101 of the 
Regulation, in order to be able to request a review it is required that the 
determination subject of th e review be definitive, ... 
In this particular case, the final determination on bovine meat and edible 
offals, published in the Official Journal of 28 April 2000, is not of a 
definitive nature, as will be considered as final only the determination of the Secretaria which results from the d ecision taken by the mechanisms of 
alternative dispute resolution, in conformity with Article 97 II of the FTA .  
(Panel Report, para. 7.289 (emphasis added))  WT/DS295/AB/R 
 Page 119 
 
 
... Articles 11.2 of the AD Agreement  and 21.2 of the SCM 
Agreement each state that Members "shall" conduct reviews of definitive anti-dumping and countervailing duties, "upon request," after a reasonable period of time.  Although both provisions permit a 
Member to require the requesting part y to substantiate the need for a 
review, neither provision allows a Me mber to refuse a review on the 
grounds that the antidumping or countervailing duty measure is subject to judicial review.  By requiring Mexican authorities to refuse reviews on such grounds, Articles 68 and 97 of the Foreign Trade Act, and Article 366 of the [Federal Code of Civil Procedure], breach 
Article 11.2 of the AD Agreement  and Article 21.2 of the SCM 
Agreement. 
... Article 9.3.2 of the AD Agreement states that Members "shall" 
provide for "a prompt refund, upon request, of any duty paid in excess of the margin of dumping."  Mexico, however, asserts that 
Article 366, Article 68, and Article  97 preclude it from doing so.  For 
this reason, the provisions are in consistent with Article 9.3.2.
 414   
338. It is clear from the "evidence  and  legal argument"415 presented by the United States that its 
claim was based not  on Article 68  or  Article 97  in isolation  but, rather, on Article 68 read  
in  conjunction with   Article 97, which the United States argued resulted in a prohibition against 
reviews of anti-dumping or countervailing duty measures that were the subject of ongoing 
litigation.416  We are therefore of the view that the Un ited States sufficiently identified the challenged 
measures as Articles 68 and 97 of the FTA, when read  together;  set out its understanding of the 
relevant legal obligations in Articles 9.3.2 and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 
of the  SCM Agreement ;  and explained how, in its view, those measures fail to comply with these 
obligations.  Thus, the Panel did not err in consider ing that the United States had met the standard for 
a  prima facie   case, as that standard was set out in  US – Gambling , quoted above.  Accordingly, we 
see no merit in Mexico's argument that the United States did not make out a  prima facie   case with 
respect to Articles 68 and 97 of the FTA. 
                                                      
414United States' first written submission to the Panel, paras. 288-289. (footnote omitted) 
415Appellate Body Report, US – Gambling , para. 140 (quoting Appellate Body Report, US – Wool 
Shirts and Blouses , p. 16, DSR 1997:I, 323, at 336). (emphasis added in  US – Gambling ) 
416The Panel understood Mexico not to contest the Un ited States' characterizati on of these provisions: 
The United States argues that, in case a judicial review of the measure is 
requested, before a domestic or bi-national body, the challenged provisions 
require the authority to suspend all administrative, expedited and changed 
circumstances reviews.  In essence Me xico confirms that the provisions 
operate in this manner, but argues that this does not constitute a violation of 
any of the provisions alleged to have been violated.   
(Panel Report, para. 7.289) WT/DS295/AB/R 
Page 120  
 
2. Interpretation of Treaty Provisions
 
339. The Panel found that Articles 9.3 and 11.2 of the  Anti-Dumping Agreement , and Article 21.2 
of the  SCM Agreement , require an investigating authority, in cases where a product is subject to a 
definitive duty, to review the amount of, and/or  need for, continued imposition of such duties.417  The 
Panel therefore examined at what point a product is subject to a definitive duty so as to trigger an 
agency's obligation to conduct the reviews describe d in these provisions.  The term "duty" in these 
provisions, according to the Panel, "clear[ly]" refers  to the duties that a Member may impose at the 
end of an investigation meeting the conditions in the Agreements.418  The Panel further understood 
that Article 9 of the  Anti-Dumping Agreement   and Article 19 of the  SCM Agreement   make a "clear 
distinction" between the  imposition   and  collection   of a duty.419  Following from this distinction, the 
Panel stated that a product is "subject to a duty"  once a final determination has been made to  impose   
a duty on that product, even if such duty has not been  collected   yet because of ongoing judicial 
proceedings.  Thus, in the Panel's view, once a duty has been imposed following  an investigation, the 
agency may not refuse to conduct the reviews provided for in Articles 9.3 and 11.2 of the Anti-
Dumping Agreement   and Article 21.2 of the  SCM Agreement .  
340. Mexico argues that the Panel erred in its inte rpretation of Articles 9.3 and 11.2 of the  Anti-
Dumping Agreement  and Article 21.2 of the  SCM Agreement , and in its consequent finding of 
inconsistency with respect to Artic les 68 and 97 of the FTA.  Mexico submits that, so long as there is 
a procedure for challenging the relevant duty—fo r example, judicial review—such duty cannot be 
"definitive" and a product cannot be said to be "subject  to" it, because the court may declare the action 
of the investigating authority unlaw ful and thereby remove the duty.420  In this light, Mexico argues 
that it complies with the requirements of these trea ty provisions because it provides exporters an 
opportunity to request duty assessment and changed circumstances reviews as soon as judicial proceedings have concluded, that is, as soon as thos e duties become definitive.  Mexico asserts that 
nothing in the challenged provisions of the FTA prev ents the investigating authority from conducting 
such reviews. 
                                                     
 
417Panel Report, paras. 7.294-7.295. 
418Ibid., para. 7.295. 
419Ibid. 
420Mexico's appellant's submission, para. 298(c) (" firme ";  "no se esté sujeto a ").  WT/DS295/AB/R 
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341. We consider, first, the treaty provisions at issue.  Article 9.3 of the Anti-Dumping Agreement   
provides:   
9.3 The amount of the anti-dumping duty shall not exceed the 
margin of dumping as established under Article 2. 
… 
9.3.2 When the amount of the anti-dumping duty is 
assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.  A refund 
of any such duty paid in  excess of the actual margin 
of dumping shall normally take place within 12 months, and in no case more than  18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an 
importer of the product subject to the anti-dumping 
duty. … (footnote omitted;  emphasis added) 
342. Article 11.2 of the  Anti-Dumping Agreement   provides: 
The authorities shall review the n eed for the continued imposition of 
the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the 
definitive anti-dumping duty , upon request by any interested party 
which submits positive information substantiating the need for a 
review.  … (footnote omitted;  emphasis added) 
343. Similarly, in the countervailing duty context, Article 21.2 of the  SCM Agreement   provides: 
The authorities shall review the n eed for the continued imposition of 
the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the 
definitive countervailing duty , upon request by any interested party 
which submits positive  informati on substantiating the need for a 
review.  ... (emphasis added) 
344. As we observed in our previous discussion of Ar ticle 68 of the FTA, Articles 9.3.2 and 11.2 
of the  Anti-Dumping Agreement , and Article 21.2 of the  SCM Agreement , place certain conditions—
stated in those provisions themselves—on an agency's  granting of refunds requested by importers for 
duties paid in excess of dumping margins, and on an agency's review of anti-dumping and countervailing duties when requested by interested parties.
421  If those conditions are met, the 
investigating authority must undertake a duty assessme nt review and refund the excess duties paid, or 
carry out a review on the need for continued imposition of the duty.  Among the permissible 
                                                      
421See  supra , paras. 312 and 314.   WT/DS295/AB/R 
Page 122  
 
conditions an agency may place on a duty assessment  or changed circumstances review are the 
following:  (i) the product at issue is "subject to [an] anti-dumping duty", in the case of Article 9.3.2 
of the  Anti-Dumping Agreement ;  and (ii) a reasonable period of time elapses since the imposition of 
the "definitive [anti-dumping or countervailing] duty", in the case of Article 11.2 of the  Anti-
Dumping Agreement   and Article 21.2 of the  SCM Agreement .  Determining the consistency of 
Articles 68 and 97 with these treaty provisions requires us to identify the point at which an anti-
dumping or countervailing duty becomes "definitive", as well as the point at which a product may be 
said to be "subject to" an anti-dumping duty 
345. Article 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  SCM Agreement , 
referring to the "imposition of the definitive [an ti-dumping or countervailing] duty", suggest that a 
duty may be characterized as "definitive" at the time of its imposition.  Article 12.2.2 of the  Anti-
Dumping Agreement   and Article 22.5 of the  SCM Agreement   set out requirements for an 
"affirmative determination providing for the impos ition of a definitive duty".  These provisions 
indicate that a definitive duty is imposed subsequent to a final affirmative determination.  We are of 
the view, therefore, that a duty becomes "definitive" —and therefore satisfies one of the conditions to 
a review set out in Articles 9.3 and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 of the  
SCM Agreement —at the time of the investigating author ity's final affirmative determination.
422 
346. We find confirmation of this understanding in the fact that, with respect to duties imposed by 
an agency, the  Anti-Dumping Agreement   and the  SCM Agreement   both appear to employ the term 
"definitive" as a contrast to the term "provisi onal".  In this respect, Article 7 of the  Anti-Dumping 
Agreement   and Article 17 of the  SCM Agreement  authorize the use of "provisional measures", 
specifically including "provisional" duties423, following a  preliminary   affirmative determination by 
the investigating authority.424  Other provisions of the Agreements refer to "definitive" measures, 
including "definitive" duties, following a complete i nvestigation and a final a ffirmative determination 
made with respect to dum ping, injury, and causation.425  The Agreements therefore use the term 
"definitive" to distinguish duties imposed after a  final  determination (following an investigation) 
from "provisional" duties that may be imposed under certain conditions during the course of an 
investigation, namely, after a  preliminary   determination.  
                                                      
422Thus, we agree with the Panel's statement that "[t]he duties imposed by an authority following an 
investigation which resulted in an affirmative final determination are final or definitive anti-dumping or countervailing duties, even if the authorities decide[] to collect such duties only provisionally, and conditional 
upon the results of the judicial review proceedings." (Panel Report, para. 7.296) 
423Article 7.2 of the  Anti-Dumping Agreement ;  Article 17.2 of the  SCM Agreement. 
424Article 7.1(ii) of the  Anti-Dumping Agreement ;  Article 17.1(ii) of the  SCM Agreement.  
425See, for example, Article 9.1 of the  Anti-Dumping Agreement   and Article 19.1 of the  SCM 
Agreement .  WT/DS295/AB/R 
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347. Turning to Article 9.3.2 of the  Anti-Dumping Agreement , and the condition that the product 
be "subject to" an anti-dumping duty, we share the vi ew of the Panel that "a product is subject to a 
duty as soon as an investigation has been concluded and a final determination has been made deciding 
to impose anti-dumping or countervailing duties."426  In our view, this follows from the fact that 
imposition of a definitive duty occurs at the time of a final determination, and that an importer must 
pay anti-dumping duties to enter the subject me rchandise once the anti-dumping duties have been 
imposed. 
348. In the light of the above, we understand that Articles 9.3.2 and 11.2 of the  Anti-Dumping 
Agreement ,  and Article 21.2 of the  SCM Agreement , permit agencies to require that duties be  
imposed  on a product—in the sense that a final dete rmination be made, following an original 
investigation, with respect to the anti-dumping/ countervailing duty liability for entries of such 
product—as a condition of the right to a refund or re view of duties.  This condition is permitted by 
virtue of the proviso in Article 9.3.2 of the  Anti-Dumping Agreement   that the product at issue be 
"subject to [an] anti-dumping duty", and the proviso in Article 11.2 of the  Anti-Dumping Agreement   
and Article 21.2 of the  SCM Agreement   that a reasonable period of time elapse since the imposition 
of the "definitive [anti-dumping or countervailing] duty".  Where duties have been imposed, however, 
and the remaining conditions of th ese treaty provisions have been satis fied, an investigating authority 
is not permitted to decline a request for a duty assessment or changed circumstances review. 
349. We now examine the consistency of Article s 68 and 97 of the FTA with these treaty 
provisions.  The Panel understood Articles 68 and 97, when read together, to prevent Economía from 
conducting duty assessment or changed circumstan ces reviews with respect to anti-dumping and 
countervailing duties that are the subject of judi cial proceedings, including proceedings before 
binational panels of Chapter 19 of the Nort h American Free Trade Agreement (NAFTA).427  T h e  
reviews that are precluded by Articles 68 and 97 in clude reviews of duties that are "definitive" and 
that, therefore, govern the entries of the subject  merchandise because th ey have been imposed 
following an original investigation.  In other wo rds, these provisions appear to impose a condition on 
duty assessment and changed circumstances revi ews—that is, the completion of judicial 
proceedings—that is not provided for in Articles 9.3.2 and 11.2 of the  Anti-Dumping Agreement , or 
in Article 21.2 of the  SCM Agreement .  For this reason, we uphold  the Panel's findings, in 
paragraphs 7.297 and 8.5(f) of the Panel Report, that  Articles 68 and 97 of the FTA, read together, are 
inconsistent, as such, with Articles 9.3.2 and 11.2 of the  Anti-Dumping Agreement   and Article 21.2 
of the  SCM Agreement .   
                                                      
426Panel Report, para. 7.295. 
427Ibid., paras. 7.281 and 7.289-7.290. WT/DS295/AB/R 
Page 124  
 
VIII.  Findings and Conclusions 
350. For the reasons set out in this Report, the Appellate Body: 
(a) upholds
 the Panel's finding, in paragraph 7.43 of  the Panel Report, that the claims in 
the United States' panel request, which were not "indicat[ed]" in the request for 
consultations, did not fall outside the Panel's terms of reference; 
(b) with respect to Economía's injury determination: 
(i) finds  that the Panel did not exceed  its terms of reference in concluding, in 
paragraphs 7.65 and 8.1(a) of the Pa nel Report, that Economía's use of a 
period of investigation ending in August 1999 was inconsistent with 
Articles 3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping Agreement ; 
(ii) upholds  the Panel's findings, in paragraphs  7.65 and 8.1(c) of the Panel 
Report, that Economía's use of a peri od of investigation ending in August 
1999 resulted in a failure to make a determination of injury based on 
"positive evidence", as required by Article 3.1 of the  Anti-Dumping 
Agreement , and that, as a consequence, Mexico acted inconsistently with 
Articles 3.2, 3.4, and 3.5 of that Agreement; 
(iii) upholds  the Panel's findings, in paragraphs  7.86 and 8.1(b) of the Panel 
Report, that, in limiting the injury analysis to the March to August period 
of 1997, 1998, and 1999, Mexico failed to make a determination of injury 
that involves an "objective examination" , as required by Article 3.1 of the  
Anti-Dumping Agreement , and that, as a consequence, Mexico acted 
inconsistently with Article 3.5 of that Agreement;  and 
(iv) upholds  the Panel's findings, in paragra phs 7.116 and 8.1(c) of the Panel 
Report, that Economía's injury analysis with respect to the volume and price 
effects of dumped imports was inconsiste nt with Articles 3.1 and 3.2 of the  
Anti-Dumping Agreement ;   
(c) with respect to Economía's dumping determination: 
(i) upholds  the Panel's findings, in paragra phs 7.145 and 8.3(a) of the Panel 
Report, that Mexico did not terminate immediately the investigation in respect of Farmers Rice and Riceland because Economía did not exclude  WT/DS295/AB/R 
 Page 125 
 
 
them from the application of the definitive anti-dumping measure, and, 
therefore, acted inconsistently with Article 5.8 of the  Anti-Dumping 
Agreement ; 
(ii) finds  that the Panel did not exceed  its terms of reference in concluding, in 
paragraphs 7.168 and 8.3(b) of the Pane l Report, that Economía calculated a 
margin of dumping on the basis of the facts available for Producers Rice in a 
manner inconsistent with Article 6.8 of the  Anti-Dumping Agreement , read in 
the light of paragraph 7 of Annex II to that Agreement;   
(iii) reverses  the Panel's findings, in paragraphs  7.200, 7.201, and 8.3(c) of the 
Panel Report, that, with respect to the exporters that Economía did not 
investigate, Mexico acted inconsistently with Articles 6.1, 6.10, and 12.1 of 
the  Anti-Dumping Agreement ;  and 
(iv) upholds  the Panel's findings, in paragraphs  7.200 and 8.3(c) of the Panel 
Report, that, by applying the facts av ailable contained in the application 
submitted by the petitioner in calculating the margin of dumping for those 
United States exporters Economía did not investigate, Mexico acted 
inconsistently with paragr aph 1 of Annex II to the  Anti-Dumping Agreement   
and, therefore, with Article 6.8 of that Agreement;  and 
(d) with respect to the provisions of the Fo reign Trade Act of Mexico (the "FTA"): 
(i) finds  that the Panel did not err  in considering that a  prima facie   case had 
been made out concerning the consiste ncy of the challenged provisions of the 
FTA with Mexico's obligations under the  Anti-Dumping Agreement   and the  
SCM Agreement ; 
(ii) finds  that the Panel did not disregard  Article 2 of the FTA, or Mexico's 
argument in relation thereto, in concl uding that the challenged provisions of 
the FTA are mandatory measures; 
(iii) upholds  the Panel's findings, in paragraphs 7.223, 7.225, and 8.5(a) of the 
Panel Report, that Article 53 of the FTA is inconsistent, as such, with 
Article 6.1.1 of the  Anti-Dumping Agreement   and Article 12.1.1 of the  SCM 
Agreement ; WT/DS295/AB/R 
Page 126  
 
(iv) upholds
 the Panel's findings, in paragraphs  7.242 and 8.5(b) of the Panel 
Report, that Article 64 of the FTA is inc onsistent, as such, with Article 6.8 of 
the  Anti-Dumping Agreement ,  paragraphs 1, 3, 5, and 7 of Annex II thereto, 
and Article 12.7 of the  SCM Agreement ; 
(v) upholds  the Panel's findings, in paragraphs 7.251, 7.260, and 8.5(c) of the 
Panel Report, that Article 68 of the FTA is inconsistent, as such, with 
Articles 5.8, 9.3, and 11.2 of the  Anti-Dumping Agreement ,  and 
Articles 11.9 and 21.2 of the  SCM Agreement ; 
(vi) upholds  the Panel's findings, in paragraphs  7.269 and 8.5(d) of the Panel 
Report, that Article 89D of the FTA is inconsistent, as such, with Article 9.5 
of the  Anti-Dumping Agreement   and Article 19.3 of the  SCM Agreement ; 
(vii) finds  that, in its interpretation of Artic le 93V of the FTA, the Panel did not 
fail to fulfil its obligations under Article 11 of the DSU;  and 
(viii) upholds  the Panel's findings, in paragra phs 7.297 and 8.5(f) of the Panel 
Report, that Articles 68 and 97 of the FTA , read together, are inconsistent, as 
such, with Articles 9.3.2 and 11.2 of the  Anti-Dumping Agreement   and 
Article 21.2 of the  SCM Agreement . 
351. The Appellate Body recommends  that the Dispute Settlement Body request Mexico to bring 
its measures, found in this Re port and in the Panel Report as modified by this Report, to be 
inconsistent with the  Anti-Dumping Agreement   and the  SCM Agreement , into conformity with its 
obligations under those Agreements.  WT/DS295/AB/R 
 Page 127 
 
 
 
Signed in the original in Geneva this 10th day of November 2005 by:  
 
 
 
  
_________________________ 
John Lockhart 
Presiding Member 
 
 
 
 
 _________________________ _________________________ 
 Georges Abi-Saab Yasuhei Taniguchi 
 Member Member 
 WT/DS295/AB/R 
Page 128  
 
ANNEX I 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS295/6 
20 July 2005 
 (05-3306) 
 Original:   Spanish 
  
MEXICO – DEFINITIVE ANTI-DUMPING MEASURES  
ON BEEF AND RICE 
 
Complaint with Respect to Rice
 
 
Notification of an Appeal by Mexico  under Article 16.4 and Article 17 of  
the Understanding on Rules and Procedures Governing  
the Settlement of Disputes (DSU) and Rule 20.1 of  
the Working Procedures for Appellate Review  
   The following notification dated 20 July 2005 fro m the delegation of Mexico is circulated to 
Members. 
 
_______________ 
 
 Pursuant to Article 16 of the Understa nding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, Mexico 
wishes to notify its decision to appeal certain points of law covered in the final report of the Panel that 
examined the case Mexico – Definitive Anti-Dumping Measures on Beef and Rice (WT/DS295/R) and 
the corresponding legal interpretations, as outlined below.  1. Mexico seeks review by the Appellate Body of the Panel's finding that the request for 
establishment of a panel presented by the United Stat es was not inconsistent with Article 6.2 of the 
DSU.  This finding is based on points of law and err oneous legal interpretations , such as extension of 
the legal basis of the complaint
1 through acceptance that the pane l request should include 13 legal 
provisions that did not appear in the request for consultations. 
2. Mexico seeks review by the Appellate Body of  the Panel's findings and conclusions that 
Mexico's Ministry of the Economy acted inconsistent ly with Article 3.1, 3.2, 3.4 and 3.5 of the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 
(AD Agreement) in issuing its determination of in jury in the anti-dumping investigation on imports of 
long-grain white rice from the United States.  Mexico  holds that these findings and conclusions, as set 
forth below, lie outside the context established by the terms of reference applicable to this dispute, are 
in error and are based on misinterpretations of the cited Articles of the AD Agreement and of various Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its 
written submissions): 
                                                     
 
1 See paras. 7.38 to 7.45 and 7.49 of the Panel's report.  WT/DS295/AB/R 
 Page 129 
 
 
 (a) The findings in paragraphs 7.50 to 7. 65 of the final report of the Panel and the 
conclusion in paragraph 8.1(a) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Article 3.1, 3.2, 3.4 and 3.5 of the AD Agreement by basing its injury determin ation on a period of investigation which 
had ended more than 15 months before  the initiation of the investigation. 
 (b) The findings in paragraphs 7.66 to 7. 88 of the final report of the Panel and the 
conclusion in paragraph 8.1(b) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Ar ticle 3.1 and 3.5 of the AD Agreement by 
limiting its injury analysis to six months of the years 1997, 1998, and 1999. 
 
 (c) The findings in paragraphs 7.89 and 7. 117 of the final report of the Panel and the 
conclusion in paragraph 8.1(c) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Ar ticle 3.1 and 3.2 of the AD Agreement by 
failing to conduct an objective examinati on based on positive evidence of the price 
effects and volume of dumped imports as part of its injury analysis. 
 
3. Mexico seeks review by the Appellate Body of  the Panel's findings and conclusions that 
Mexico's Ministry of the Economy acted inconsistently  with Articles 5.8, 6.1, 6.8, 6.10 and 12.1, and 
paragraphs 1 and 7 of Annex II of the AD Agreement in issuing its determination of the margin of 
dumping in the anti-dumping investigation on imports of  long-grain white rice from the United States.  
Mexico holds that these findings and conclusions,  as set forth below, lie outside the context 
established by the terms of reference applicable to th is dispute, are in error and are based on incorrect 
interpretations of the aforementioned Articles a nd Annex of the AD Agreement and of various 
Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its 
written submissions): 
 (a) The findings in paragraphs 7.133 to 7. 145 of the final report of the Panel and the 
conclusion in paragraph 8.3(a) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Article 5.8 of the AD Agreement by not 
terminating the investigation on the United St ates exporters which, as the Panel notes, 
had exported at undumped prices, and by  not excluding those exporters from 
application of the definitive anti-dumping measure. 
 
 (b) The findings in paragraphs 7.146 to 7. 168 of the final report of the Panel and the 
conclusion in paragraph 8.3(b) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Artic le 6.8 and paragraph 7 of Annex II of the 
AD Agreement in its application of a facts available-based dumping margin to the exporter Producers Rice. 
 
 (c) The findings in paragraphs 7.169 to 7. 202 of the final report of the Panel and the 
conclusion in paragraph 8.3(c) of the report,  in which the Panel erred in determining 
that Mexico acted inconsistently with Artic les 6.1, 6.8, 6.10 and 12.1 and paragraph 1 
of Annex II of the AD Agreement in its application of a facts available-based dumping margin to United States producers a nd exporters that it allegedly did not 
investigate. 
 4. Mexico seeks review by the Appellate Body of  the Panel's findings and conclusions that 
Mexico's Foreign Trade Act (FTA) is inconsistent with Article s 5.8, 6.1.1, 6.8, 9.3, 9.5, 11.2 and 18.1, 
paragraphs 1, 3, 5 and 7 of Anne x II of the AD Agreement, and Articles 11.9, 12.1.1, 12.7, 19.3, 21.2 
and 32.1 of the Agreement on Subsidies and Count ervailing Measures (SCM Agreement).  Mexico 
holds that these findings and conclusions, as set fort h below, are in error and are based on incorrect 
interpretations of the aforementioned Articles of the AD and SCM Agreements and of various 
Appellate Body reports (some of wh ich were not considered at all although Mexico cited them in its 
written submissions): WT/DS295/AB/R 
Page 130  
 
 (a) The findings in paragraphs 7.213 and 7. 225 of the final report of the Panel and the 
conclusion in paragraph 8.5(a) of the repor t, in which the Panel determined that 
Article 53 of the FTA is inconsistent as su ch with Article 6.1.1 of the AD Agreement 
and Article 12.1.1 of the SCM Agreement.  The reason being that the Panel erred in 
determining that Article 53 of the FTA is  mandatory and misconstrued Articles 6.1.1 
and 5.10 of the AD Agreement and Articles 12.1.1 and 11.11 of the SCM Agreement. 
  (b) The findings in paragraphs 7.226 to 7. 242 of the final report of the Panel and the 
conclusion in paragraph 8.5(b) of the repor t, in which the Panel determined that 
Article 64 of the FTA is inconsistent as such  with Article 6.8 and paragraphs 1, 3, 5 
and 7 of Annex II of the AD Agreement a nd Article 12.7 of the SCM Agreement.  
The reason being that the Panel erred in de termining that Article 64 of the FTA is 
mandatory and misconstrued Article 6.8 and pa ragraphs 1, 3, 5 and 7 of Annex II of 
the AD Agreement and Article 12.7 of the SCM Agreement.  Furthermore, these findings are based on an erroneous interpretati on of Article 6.8 and paragraphs 1, 3, 5 
and 7 of Annex II of the AD Agreement a nd Article 12.7 of the SCM Agreement. 
  (c) The findings in paragraphs 7.243 to 7. 260 of the final report of the Panel and the 
conclusion in paragraph 8.5(c) of the repor t, in which the Panel determined that 
Article 68 of the FTA is inconsistent as su ch with Articles 5.8, 9.3 and 11.2 of the 
AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement.  The reason being 
that the Panel erred in determining that  Article 68 of the FTA is mandatory and 
misconstrued Articles 5.8, 9.3 and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement.  Furthermore, these findings are based on an erroneous legal interpretation of Articles 5.8, 9.3 and 11.2 of the AD Agreement and Articles 11.9 and 21.2 of the SCM Agreement. 
 
 (d) The findings in paragraphs 7.261 to 7. 269 of the final report of the Panel and the 
conclusion in paragraph 8.5(d) of the repor t, in which the Panel determined that 
Article 89D of the FTA is inconsistent as such with Article 9.5 of the AD Agreement 
and Article 19.3 of the SCM Agreement.  The reason being that the Panel erred in 
determining that Article 89D of the FTA is mandatory and misconstrued Article 9.5 
of the AD Agreement and Article 19.3 of th e SCM Agreement.  Furthermore, these 
findings are based on an erroneous legal interpretation of Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement. 
  (e) The findings in paragraphs 7.270 to 7. 280 of the final report of the Panel and the 
conclusion in paragraph 8.5(e) of the repor t, in which the Panel determined that 
Article 93V of the FTA is inconsiste nt as such with Article 18.1 of the 
AD Agreement and Article 32.1 of the SCM Agreement.  The reason being that the 
Panel erred in determining that Artic le 93V of the FTA is mandatory and 
misconstrued Article 18.1 of the AD Agreement and Article 32.1 of the SCM Agreement. 
 
 (f) The findings in paragraphs 7.281 to 7.299 of the final report of the Panel and the 
conclusion in paragraph 8.5(f) of the repor t, in which the Panel determined that 
Articles 68 and 97 of the FTA are inconsistent as such with Articles 9.3 and 11.2 of the AD Agreement and Article 21.2 of the SCM Agreement.  The reason being that 
the Panel erred in determining that Articles 68 and 97 of the FTA are mandatory and 
misconstrued Articles 9.3 and 11.2 of th e AD Agreement and Article 21.2 of the 
SCM Agreement. 
 5. Mexico seeks review by the Appellate Body of the Panel's findings and conclusions 
concerning paragraphs 7.270 to 7.280 of the fi nal report of the Panel and the conclusion in  WT/DS295/AB/R 
 Page 131 
 
 
paragraph 8.5(e) of the report, in which the Pa nel determined that Article 93V of the FTA is 
inconsistent as such with Article 18.1 of the AD Ag reement and Article 32.1 of the SCM Agreement.  
By misinterpreting Article 93 of the FTA, the Panel failed to make an objective assessment of the facts of the case. in breach of Article 11 of the DSU. 
6. Mexico seeks review by the Appellate Body of  the Panel's findings and conclusions that 
Mexico acted inconsistently with the provisions  of the AD and SCM Agreements and that this 
resulted in nullification or impairment of the be nefits accruing to the United States under those 
Agreements. 
_______________ 
 WT/DS295/AB/R 
Page 132  
 
ANNEX II 
 
 
WORLD TRADE  
ORGANIZATION  WT/DS295/2 
22 September 2003 
 (03-5043) 
 Original:   English 
  
MEXICO – DEFINITIVE ANTI-DUMP ING MEASURES ON BEEF AND RICE 
 
Request for the Establishment of  a Panel by the United States
 
   The following communication, dated 19 Sept ember 2003, from the Permanent Mission of the 
United States to the Chairman of the Dispute Settleme nt Body, is circulated pursuant to Article 6.2 of 
the DSU.  
_______________ 
 
 The United States considers that certain measures of the Government of Mexico are inconsistent with Mexico's commi tments and obligations under the General Agreement on Tariffs and 
Trade 1994  ("GATT 1994"), the Agreement on Implementation of Article VI of the  General 
Agreement on Tariffs and Trade 1994  ("AD Agreement"), and the Agreement on Subsidies and 
Countervailing Measures ("SCM Agreement").  In particular: 
 (1) On 5 June 2002, Mexico published in the Diario Oficial  its definitive antidumping measure 
on long-grain white rice.
1  This measure appears to be inconsis tent with the following provisions of 
the AD Agreement and the GATT 1994: 
 
 (a) Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4, 3.5, and 4.1 of the 
AD Agreement because Mexico based its in jury and causation analyses on only six 
months of data for each of the years exam ined; failed to collect or examine recent 
data; failed to properly evaluate the rele vant economic factors; failed to base its 
determination on a demonstration that the dumped imports are, through the effects of 
dumping, causing injury within the meani ng of the AD Agreement; and failed to base 
its injury determinations on positive eviden ce or to conduct objective examinations of 
the volume of dumped imports, the effect of those imports on prices in the domestic 
market of like products, and the impact of  the imports on domestic producers of those 
products; 
  (b) Article 5.8 of the AD Agreement, because Mexico failed to terminate the 
antidumping investigation after a negative pr eliminary determination of injury, and 
Articles 5.8 and 11.1 of the AD Agreement because Mexico failed to exclude certain 
                                                     
 
1 Resolución final de la investigación antidumping so bre las importaciones de ar roz blanco grano largo, 
mercancía clasificada en la fracción aran celaria 1006.30.01 de la Tarifa de la Ley de los Impuestos Generales de 
Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de 
procedencia, Diario Oficial, Segund a Sección 1 (5 de Junio de 2002).  WT/DS295/AB/R 
 Page 133 
 
 
respondent US exporters from the measure after negative final determinations of 
dumping; 
  (c) Articles 6.1, 6.2, and 6.4 of the AD Agreement, because Mexico, inter alia , failed to 
give all of the interested parties in the i nvestigation notice of the information that the 
authorities required or ampl e opportunity to present in writing all evidence which 
they considered relevant in respect of the antidumping investigation, failed to give all 
interested parties a full opportunity for the de fense of their interests, and failed to 
provide timely opportunities for the responde nt US exporters to see all information 
that was relevant to presentation of their cases, that was not confidential as defined in 
Article 6.5, and that the authorities used in their investigation; 
  (d) Article 6.8 of the AD Agreement, and paragr aphs 1, 3, 5, 6, and 7 of Annex II of the 
AD Agreement, by improperly rejecting in formation submitted by US exporters and 
applying the facts available in the evaluation of injury; 
 
 (e) Article 6.9 of the AD Agreement, beca use the investigating authorities, before the 
final determination was made, failed to in form the respondent US exporters of the 
essential facts under consideration which formed  the basis for the decision to apply a 
definitive measure; 
 
 (f) Articles 6.6, 6.8, 6.10, 9.3,  9.4, and 9.5 of the AD Agreemen t, and paragraphs 1, 3, 5, 
6, and 7 of Annex II of the AD Agreement, by applying the facts available to a US 
respondent rice exporter that was investigated  and found to have no shipments during 
the period of investigation; 
 
 (g) Articles 1, 6.1, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreement, and 
paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement, by applying the facts 
available in establishing the antidumping margins that it assigned to US exporters that were not individually investigated, and by doing so in an improper manner; 
  (h) Article 12.2 of the AD Agreement, because Mexico failed in its final determination in 
the rice investigation to set forth in su fficient detail the findings and conclusions 
reached on all issues of fact and law considered material or to provide all relevant information on the matters of fact and law and reasons which led to the imposition of 
final measures; and 
 
 (i) Article VI:2 of the GATT 1994, because Mexico levied an antidumping duty greater 
in amount than the margin of dumping.  
 (2) Certain provisions of Mexico's Foreign Trad e Act also appear to be inconsistent with 
Mexico's obligations under vari ous provisions of the AD Agreement and the SCM Agreement.  
Specifically: 
 
 (a) Article 53 of the Foreign Trade Act requi res interested parties to present arguments, 
information, and evidence to the investiga ting authorities within 28 days of the day 
after publication of the initiation notice.  This provision does not appear to permit the investigating authorities to grant extensions of the 28-day deadline.  Accordingly, the 
provision appears to be inconsistent with  Articles 6.1.1 and 12.1.1 of the AD and 
SCM Agreements, respectively, which speci fy that due consideration should be 
granted to extension requests and that such  requests should, upon cause shown, be 
granted whenever practicable; 
 WT/DS295/AB/R 
Page 134  
 
 (b) Article 64 of the Foreign Trade Act c odifies the "facts available" approach that 
Mexico applied in the rice investigation, as described in subpara graphs (f) and (g) of 
section (1) above.  This provision appears to be inconsistent with Articles 6.1, 6.6, 
6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreement, and paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement; and with Article s 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of 
the AD Agreement, paragraphs 1, 3, 5, 6,  and 7 of Annex II of the AD Agreement, 
and Articles 12.5, 12.7, and 19.3 of the SCM Agreement, to the extent that it requires the application of facts available rates to exporters with no shipments during the 
period of investigation; 
 
 (c) Article 68 of the Foreign Trade Act appears to require reviews of respondent 
exporters that were not assigned a positive ma rgin in an investigation, and appears to 
require that respondent exporters seeking re views demonstrate that their volume of 
exports during the period of review was "r epresentative."  This provision appears to 
be inconsistent with Articles 5.8 and 11. 1 of the AD Agreement (as described in 
subparagraph (b) of section (1) above), with Articles 9.3 and 11.2 of the AD 
Agreement, and with Articles 11.9, 21.1, and 21.2 of the SCM Agreement; 
  (d) Article 89D of the Foreign Trade Act appears to require that "new shippers" 
requesting expedited reviews demonstrate that  their exports were subsequent to the 
period of investigation and that the volume  of exports during the period of review 
was "representative."  This provision appears to  be inconsistent with Article 9.5 of the 
AD Agreement and Article 19.3 of the SCM Agreement; 
  (e) Article 93V of the Foreign Trade Act app ears to provide for the application of fines 
on importers that enter products subject  to antidumping and countervailing duty 
investigations while such investigations ar e underway.  This provision appears to be 
inconsistent with Article 18.1 of the AD Agreement and Article 32.1 of the SCM 
Agreement. 
 (3) Mexican officials have asserted that Article 366 of Mexico's Federal C ode of Civil Procedure 
and Articles 68 and 97 of the Foreign Trade Ac t prevent Mexico from conducting reviews of 
antidumping or countervailing duty orders while a judi cial review of the order is ongoing, including a 
"binational panel" review pursuan t to Chapter Nineteen of the North American Free Trade 
Agreement .  These provisions appear to be inconsistent with Articles 9.3, 9.5, and 11.2 of the 
AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement.  
 On 16 June 2003, the United States Government requested consultations with the Government 
of Mexico pursuant to Article 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU"), Article XXII:1 of the GATT 1994, Article 17.3 of the 
AD Agreement, and Article 30 of the SCM Agreemen t.  The United States and Mexico held such 
consultations on 31 July and 1 August 2003.  These cons ultations provided some helpful clarifications 
but unfortunately did not resolve the dispute. 
 
 Accordingly, the United States respectfully re quests, pursuant to Article 6 of the DSU, 
Article 17.4 of the AD Agreement, and Article 30 of  the SCM Agreement, that the Dispute Settlement 
Body establish a panel to examine this matter, with  the standard terms of reference as set out in 
Article 7.1 of the DSU.  The United States further as ks that this request for a panel be placed on the 
agenda for the next meeting of the Dispute Se ttlement Body to be held on 2 October 2003. 
 
_______________ 
  WT/DS295/AB/R 
 Page 135 
 
 
ANNEX III 
 
 WORLD TRADE  
ORGANIZATION  WT/DS295/1 
G/L/631 
G/ADP/D50/1 
G/SCM/D54/1 
23 June 2003 
 (03-3349) 
 Original:   English 
  
MEXICO – DEFINITIVE ANTI-DUMP ING MEASURES ON BEEF AND RICE 
 
Request for Consultations by the United States
 
  
 The following communication, dated 16 June 2003, from the Permanent Mission of the 
United States to the Permanent Mission of Mexico and to the Chairman of the Dispute Settlement 
Body, is circulated in accordance with Article 4.4 of the DSU. 
 
_______________ 
 
 My authorities have instructed me to request consultations with the Government of Mexico 
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes , Article XXII:1 of the General Agreement on Tariffs and Trade 1994  ("GATT 1994"), 
Article 17.3 of the Agreement on Implementation of Article VI of the  General Agreement on Tariffs 
and Trade 1994  ("AD Agreement"), and Article 30 of the Agreement on Subsidies and Countervailing 
Measures ("SCM Agreement"), with respect to Mexi co's definitive anti-dumping measures on beef 
and long grain white rice, published in the Diario Oficial  on 28 April 2000
1 and 5 June 20022 
respectively, as well as any amendments thereto or extensions thereof3 and any related measures4 and 
also with respect to certain provisions of Mexico 's Foreign Trade Act and its Federal Code of Civil 
Procedure.  These measures appear to be inconsiste nt with Mexico's obligations under the provisions 
of GATT 1994, the AD Agreement, and the SCM Agreement.  
                                                     
 
1 Resolución final de la investigación antidumping sobre las importaciones de carne y despojos 
comestibles de bovino, mercancía clasificada en las fracciones arancelarias 0201.10.01, 0202.10.01, 
0201.20.99, 0202.20.99, 0201.30.01, 0202.30.01, 0206.21.01, 0206.22.01 y 0206.29.99 de la Tarifa de la Ley 
del Impuesto General de Importación, originarias de lo s Estados Unidos de América, independientemente del 
país de procedencia, Diario Oficial, Segunda Sección  8 (28 de Abril de 2000). 
2  Resolución final de la investigación antidumping sobre las importaciones de arroz blanco grano 
largo, mercancía clasificada en la fracción arancelaria 1006.30.01 de la Tarifa de la Ley de los Impuestos 
Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente 
del país de procedencia, Di ario Oficial, Segu nda Sección 1 (5 de Junio de 2002). 
3 Including any further determinations made pursuant to court order or remand. 
4 These include, for example, the Resolución final de la investigación sobre elusión del pago de cuotas 
compensatorias impuestas a las importaciones de carne de bovino en cortes deshuesada y sin deshuesar, mercancía clasificada en las fracciones arancelarias 020 1.20.99, 0202.20.99, 0201.30.01, 0202.30.01 de la 
Tarifa de la Ley del Impuesto General de Importación, originarias de los Estados Unidos de América, 
independientemente del país de procedencia, Diario Oficial, Primera Sección 1 (22 de Mayo 2001). WT/DS295/AB/R 
Page 136  
 
 In particular, the United States believes that the anti-dumping measures on beef and rice are inconsistent with at least the following provisions:  
• Article 3 of the AD Agreement, because Mexico, inter alia , based its injury (or threat) and 
causation analyses on only six months of data for each of the years examined;  failed to 
collect or examine recent data;  failed in the beef investigation to evaluate all relevant 
economic factors and indices having a bearing on the state of the industry;  and failed to base 
its injury determinations on positive evidence or to conduct objective examinations of the 
volume of dumped imports, the effect of those imports on prices in the domestic market of like products, and the impact of the imports on domestic producers of those products; 
 
• Article 5.8 of the AD Agreement, because Mexi co failed to terminate the rice investigation 
after a negative preliminary determination of injury, and Articles 5.8 and 11.1 of the 
AD Agreement because Mexico failed to exclude  certain respondent US exporters from the 
beef and rice measures after negative final determinations of dumping; 
 
• Article 6 of the AD Agreement, because Mexico, inter alia , failed to provide respondent US 
exporters with ample opportunity to present in  writing all evidence which they considered 
relevant in respect of the anti-dumping investigati ons and failed to give all interested parties a 
full opportunity for the defense of their inte rests, and Article 6 and Annex II of the 
AD Agreement by improperly applying the facts available to a US respondent rice exporter that was investigated and found to have no shipments during the period of investigation; 
 
• Article 9 of the AD Agreement, in conjunction w ith Article 6, because of the manner in which 
Mexico determined anti-dumping margins for US  exporters that were not individually 
investigated; 
 
• Article 6 and 9 of the AD Agreement and Article VI of GATT 1994, because Mexico,  
inter alia , limited the application of the respondent-s pecific margins that it calculated in the 
beef investigation to selected grades of meat imported within 30 days of slaughter (applying 
"facts available" margins to the respondents' othe r shipments) and limited the application of a 
particular US respondent exporter's margin af ter conducting an "anti- circumvention review" 
that found the respondent was not  engaged in circumvention; 
 
• Articles 9 and 11 of the AD Agreement, because Mexico rejected requests by certain US 
respondent exporters to conduct reviews of the beef anti-dumping order;  and 
 
• Article 12 of the AD Agreement, because Mexico failed in its final de terminations in both 
investigations to set forth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material or to  provide all relevant information on the matters 
of fact and law and reasons which le d to the imposition of final measures. 
  In addition, the following provisions of Mexico's  Foreign Trade Act appear to be inconsistent 
with Mexico's obligations under the provisions  of the AD Agreement and the SCM Agreement: 
 
• Article 53, which requires interested parties to  present arguments, information, and evidence 
to the investigating authorities within 28 days  of the day after publication of the initiation 
notice.  This provision appears to be inconsiste nt with Articles 6.1.1 and 12.1.1 of the AD and 
SCM Agreements, respectively, which specify th at exporters/foreign producers shall be given 
at least 30 days to respond to questionnaires, a nd that, as a general rule, the 30 days are to be 
counted from the date of receipt of the questionnaire; 
  WT/DS295/AB/R 
 Page 137 
 
 
• Article 64, which codifies the "facts available" approach that Mexico applied in the rice and 
beef investigations, as described in the fourth  bullet above.  This provision appears to be 
inconsistent with Article 9 of the AD Agreem ent, in conjunction with Article 6; and with 
Article 6.8 of the AD Agreement and Article 12.7 of the SCM Agreement to the extent that it 
requires the application of facts available ra tes to exporters with no shipments during the 
period of investigation; 
 
• Article 68, which appears to require reviews of  respondent exporters that were not assigned a 
positive margin in an investigation, and appear s to require that respondent exporters seeking 
reviews demonstrate that their volume of exports during the period of review was "representative."  This provision appears to be inconsistent with Artic les 5.8 and 11.1 of the 
AD Agreement (as described in the second bullet above), with Article 9 of the 
AD Agreement, and with Articles 11. 9 and 21.1 of the SCM Agreement; 
 
• Article 89D, which appears to require that "new shippers" requesting expedited reviews 
demonstrate that their volume of exports duri ng the period of review was "representative."  
This provision appears to be inconsistent with Article 9.5 of the AD Agreement and 
Article 19.3 of the SCM Agreement, which re quire authorities to conduct reviews without 
regard to such a condition; and 
 
• Article 93V, which appears to provide for th e application of definitive anti-dumping or 
countervailing duties on products entered prior to  the date of application of provisional 
measures (1) for longer than allowed under the AD and SCM Agreements, and (2) even if not 
all AD or SCM Agreement requirements for a pplying such duties are met.  This provision 
appears to be inconsistent with Articles 7 a nd 10.6 of the AD Agreement and Articles 17 and 
20.6 of the SCM Agreement. 
  Finally, Article 366 of Mexico's Federal C ode of Civil Procedure, in conjunction with 
Article 68 of the Foreign Trade Act, appears to be inconsistent with Articles 9 and 11 of the 
AD Agreement and Articles 19 and 21 of the SCM Ag reement to the extent that the provisions 
prevent Mexico from conducting reviews of anti- dumping or countervailing duty orders while a 
judicial review of the order is ongoing, includ ing a "binational panel" review pursuant to 
Chapter Nineteen of the North American Free Trade Agreement . 
  Mexico's measures also appear to nullify or impair benefits accruing to the United States 
directly or indirectly under the cited agreements. 
  We look forward to receiving your reply to the present request and to fixing a mutually 
convenient date for consultations.   
__________