WORLD TRADE  
ORGANIZATION   
WT/DS427/2 
9 December 2011 
 
 (11-6426) 
 Original:   English 
  
 
CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES  
ON BROILER PRODUCTS FROM THE UNITED STATES 
 
Request for the Establishment of a Panel by the United States 
 
  The following communication, dated 8 December 2011, from the delegation of the United States to the Chairperson of the Dispute Settl ement Body, is circulated pursuant to Article 6.2 
of the DSU. 
 
_______________ 
 
  On September 20, 2011, the United States requ ested consultations with the People's Republic 
of China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"), Article XXIII:1 of the General Agreement on Tariffs 
and Trade 1994 ("GATT 1994"), Article 30 of the Agreement on Subsidies and Countervailing 
Measures  ("SCM Agreement") (to the extent that Article 30 incorporates Article XXIII of the 
GATT 1994), and Article 17.3 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 ("AD Agreement") with respect to China's measures imposing 
anti-dumping duties and countervailing duties on broiler products from the United States.
1  T h e  
United States and China held such consultati ons on 28 October 2011.  Unfortunately, these 
consultations were unsuccessful in resolving this dispute.     The United States considers that China's me asures imposing anti-dumping and countervailing 
duties on broiler products from the United States, as se t forth in Ministry of Commerce of the People's 
Republic of China ("MOFCOM") Notice No. 8 [2010], Notice No. 26 [2010], Notice No. 51 [2010], 
and Notice No. 52 [2010], including any and all annex es, are inconsistent with China's commitments 
and obligations under the following provisions of the AD Agreement, SCM Agreement, and 
GATT 1994:  Calculation of Antidumping Margins  
 
1. Articles 2.2 and 2.2.1.1 of the AD Agreement be cause MOFCOM failed to calculate costs on 
the basis of the records kept by the US producer s under investigation.  MOFCOM also failed to 
properly allocate production costs. 
2. Article 2.4 of the AD Agreement because in  calculating Respondents' dumping margins, 
including that of Respondent Keystone, MOFCOM precluded a fair comparison between the export 
price and normal value by improperly a pplying certain costs and expenses.  
                                                      
1 WT/DS427/1. WT/DS427/2 
Page 2 
 
 
  3. Article 6.8 of the AD Agreement including Annex II because MOFCOM improperly applied 
facts available in determining the duty rate applicab le to "other U.S. companies that neither filed a 
registration nor submitted a response" that were not investigated.   
Explanation of Antidumping Determinations  
4. Article 12.2.1 of the AD Agreement  because MO FCOM failed to make available to the US 
respondents sufficiently detailed explanations fo r the preliminary determination on dumping and 
injury, and did not refer to matters of fact a nd law that determined whether the respondents' 
arguments were being accepted or  not.  MOFCOM did not make ava ilable to the US respondents the 
calculations used to determine the dumping margins in the preliminary determination, nor the data it 
relied upon in order to make the calculations. 
5. Article 12.2.2 of the AD Agreement because MO FCOM failed to make available to the US 
respondents all relevant information on the matters of fact and law and reasons that led to the 
imposition of final measures, including, but not limite d to, the reasons for the acceptance or rejection 
of arguments made by the exporters.  MOFCOM di d not make available to the US respondents the 
calculations used to determine the dumping margins in the final determination, nor the data it relied 
upon in order to make the calculations. 
6. Article 12.2 of the AD Agreement because MOFC OM did not sufficiently detail the findings 
and conclusions reached on all issues  of fact and law it considered material, including, but not limited 
to, the rejection of the respondents' reported costs as unreasonable, the calculations used to determine 
the respondents' preliminary and final dumping margins, the calculation of the duty rates applicable to 
"other US companies that neither filed a registra tion statement nor submitted a response" that were 
not investigated, and the data underlying the aforementioned calculations.   
7. Article 6.9 of the AD Agreement because MOFCOM failed to disclose the essential facts 
under consideration which formed the basis for its determinations, thus im pairing the respondents' 
ability to defend their interests. 
Calculation of Countervailing Duties 
 
8. Article 12.7 of the SCM Agreement because MO FCOM improperly applied facts available in 
determining the countervailing duty ra te applicable to "other U.S. companies that neither filed a 
registration nor submitted a response" that were not investigated.   
9. Article VI:3 of the GATT 1994 and Article 19. 4 of the SCM Agreement because MOFCOM 
levied countervailing duties on imported US broiler products in excess of the amount of the subsidy 
found to exist, including by improperly calculating the subsidy rates by failing to properly allocate the 
subsidy in relation to subject merchandise.   
Explanation of Countervailing Duty Determinations 
 10. Article 22.3 of the SCM Agreement because MOFCOM did not sufficiently detail the 
findings and conclusions reached on all issues of fa ct and law it considered material, including, but 
not limited to, the calculations used to determine th e respondents' preliminary and final subsidy rates, 
the calculation of the duty rates applicable to "other  U.S. companies that neither filed a registration 
statement nor submitted a response" that were  not investigated, and the data underlying the 
aforementioned calculations.   
11. Article 22.4 of the SCM Agreement because MO FCOM failed to provide in sufficient detail 
explanations for the preliminary determination on the existence of a subsidy and injury, and did not  WT/DS427/2 
 Page 3 
 
 
  refer to the matters of fact and law that led to  arguments being accepted or rejected.  MOFCOM did 
not make available to the respondents or the US government the calculations of subsidy rates in the preliminary determination, nor th e data it relied upon in order to make its calculations. Further, 
MOFCOM did not provide material information with  respect to its calculation of the duty rates 
applicable to "other U.S. companies that neith er filed a registration statement nor submitted a 
response" that were not investigated, nor to MOFCOM's use of facts available. 
12. Article 22.5 of the SCM Agreement because MOFCOM failed to make available all relevant 
information on the matters of fact and law and reas ons that led to the imposition of final measures, 
including the reasons for the acceptance or rejection of relevant arguments or claims made by the 
United States and the exporters.  MOFCOM did not  make available for the respondents or the US 
government the calculations of subsidy rates in the final determination, nor the data relied upon in 
order to make its calculations.  Further, MOFCOM did not provide material information with respect 
to its calculation of the duty rates applicable to "o ther U.S. companies that neither filed a registration 
statement nor submitted a response" that were not investigated, nor its use of facts available.  
13. Article 12.8 of the SCM Agreement because MO FCOM failed to disclose the essential facts 
under consideration which formed the basis for its determinations, thus im pairing the respondents' 
ability to defend their interests. 
Injury Determination: Price Effects Analysis 
 
14. Articles 3.1 and 3.2 of the AD Agreement and Ar ticles 15.1 and 15.2 of the SCM Agreement, 
because in its analysis of the price effects of impor ts under consideration, Ch ina did not discharge its 
obligations to determine whether there had been  significant price undercutting by the allegedly 
dumped imports or whether the effect of such imports was to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree.  In particular: 
(a) China failed to account for different pr oduct mixes among subject imports and the 
domestic like product; 
(b) China failed to account for different leve ls of trade for subject import and like-
product pricing data; and  
(c) China's findings that the dumped and subsid ized imports had significant price effects 
failed to reflect an objective examination of  the evidence in the record and/or are 
unsupported by positive evidence. 
15. Article 3.5 of the AD Agreement and Artic le 15.5 of the SCM Agreement because 
MOFCOM's causation analysis relied on erroneous price effects findings and failed to take all 
relevant evidence concerning price effects into account. 
16. Article 12.2 of the AD Agreement and Artic le 22.3 of the SCM Agreement because 
MOFCOM did not disclose its methodology for adjusti ng import prices to reflect their different level 
of trade or explain its rejection of respondent arguments concerning price effects.   
17. Article 6.4 of the AD Agreement and Article 12.3 of the SCM Agreement because MOFCOM 
failed to provide interested parties with any op portunity to see MOFCOM's methodology for adjusting 
import prices to reflect their different level of trade. WT/DS427/2 
Page 4 
 
 
  Injury Determination: Impact of Subject Imports 
 
18. Articles 3.1 and 3.4 of the AD Agreement and Articles 15.1 and 15.4 of the SCM Agreement 
because China's findings that the dumped and subsid ized imports negatively impacted the domestic 
industry were unsupported by positive evidence and fa iled to reflect either an objective examination 
of the record evidence or an evaluation of all relevant economic factors and indices having a bearing on the state of the industry. 
Injury Determination: Causation 
 19. Articles 3.1 and 3.5 of the AD Agreement and Articles 15.1 and 15.5 of the SCM Agreement 
because: 
(a) China's causal link analysis relied on findings that did not reflect an objective 
examination of the record and/or are unsupported by positive evidence; 
(b) China failed to examine all relevant evidence; 
20. Articles 3.2 and 3.4 of the AD Agreement and Articles 15.2 and 15.4 of the SCM Agreement 
because China's causation analysis was not b ased on evidence that the effects of dumped and 
subsidized imports are what caused injury within the meaning of those Agreements. 
Injury Determination: Definition of the Domestic Industry 
 
21. Article 4.1 of the AD Agreement and Article 16.1 of the SCM Agreement because China 
improperly defined the domestic indus try.  In particular, China improperly limited the definition of 
the domestic industry to domestic enterprises supporting the antidumping and countervailing duty 
investigations.   
22. Article 3.1 of the AD Agreement and 15.1 of  the SCM Agreement because China failed to 
conduct a proper investigation or objective examinati on of the volume of the dumped imports and the 
effect of the dumped imports on prices in the domes tic market for like products or the consequent 
impact of these imports on domestic producers of such products. 
Evidentiary Issues 
 
23. Articles 6.4 and 6.5.1 of the AD Agreemen t, and Articles 12.3 and 12.4.1 of the SCM 
Agreement because China failed to  require the applicant to provide, adequate, non-confidential 
summaries of allegedly confidential information.  China's treatment of confidential information did 
not allow the interested parties to obtain a reasonable understanding of the substance of the 
confidential information prior to the preliminary and final determinations, such that they could 
prepare presentations on the basis of this informa tion.  There was no indication that the information 
could not be summarized and no reasons were provi ded as to why summarization was not practicable.   
24. Article 6.2 of the AD Agreement because MOFCOM failed to grant interested parties a full 
opportunity for the defence of their interests, among other things, by denying a request for a hearing 
by the United States. 
25. Articles 12.2, 12.2.1, and 12.2.2 of the AD Agre ement and Articles 22.3, 22.4, and 22.5 of the 
SCM Agreement because China failed to provide in sufficient detail a ll relevant information on the 
matters of fact and law and reasons which led to the imposition of final measures, including the 
reasons for the acceptance or rejection of relevant arguments or claims.    WT/DS427/2 
 Page 5 
 
 
   
 In view of the claims set forth above, the United States considers that China has also acted 
inconsistently with Article VI of the GATT 1994, Article 1 of the AD Agreement, and Article 10 of 
the SCM Agreement, which only permit anti-dumpi ng or countervailing duty measures to be applied 
under the circumstances provided for in Article  VI of the GATT 1994 and conducted in accordance 
with the AD Agreement and the SCM Agreement.     These measures also appear to nullify or impair  the benefits accruing to the United States 
directly or indirectly under the cited agreements.  
 
 Therefore, 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.  
 
  
__________