WORLD TRADE  
ORGANIZATION  WT/DS282/AB/R 
2 November 2005 
 (05-5145) 
 Original:   English 
  
 
     
 
    
 
    
 
UNITED STATES – ANTI-DUMPING MEASURES ON OIL 
COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO 
  
 
AB-2005-7 
    
 
    
 
  
Report of the Appellate Body  WT/DS282/AB/R 
 Page i 
 
 
 I.
 Introduction................................................................................................................... ..............1  
II. Arguments of the Participants  and Third Participants ................................................................5  
A. Claims of Error by Mexico – Appellant .........................................................................5  
1. Requirement to Establish a Causal Link in Sunset Reviews ............................5  
2. Cumulation in Sunset Reviews .........................................................................7  
3. Margins of Dumping in Sunset Reviews ..........................................................9  
4. The "Legal Basis" for Continuing Anti-Dumping Duties...............................10  
5. Mexico's Conditional Appeals........................................................................11  
(a) The "Standard" for USDOC Determinations in Sunset Reviews ......11  
(b) Article X:3(a) of the GATT 1994 ......................................................12  
B. Arguments of the United States – Appellee ..................................................................13  
1. Requirement to Establish a Causal Link in Sunset Reviews ..........................13  
2. Cumulation in Sunset Reviews .......................................................................15  
3. Margins of Dumping in Sunset Reviews ........................................................16  
4. The "Legal Basis" for Continuing Anti-Dumping Duties...............................17  
5. Mexico's Conditional Appeals........................................................................18  
(a) The "Standard" for USDOC Determinations in Sunset Reviews ......18  
(b) Article X:3(a) of the GATT 1994 ......................................................19  
C. Claims of Error by the United States – Appellant .......................................................19  
1. Consistency of the Sunset Policy Bulletin "As Such" ....................................19  
D. Arguments of Mexico – Appellee .................................................................................24  
1. Consistency of the Sunset Policy Bulletin "As Such" ....................................24  
E. Arguments of the Third Participants ............................................................................28  
1. Argentina ........................................................................................................28  
2. China...............................................................................................................29  
3. European Communities...................................................................................30  
4. Japan ...............................................................................................................31  
III. Issues Raised in this Appeal ................................................................................................... ..32 
IV. Causation in Sunset Reviews .................................................................................................... 34 
A. Introduction .................................................................................................................34  
B. Requirement to Establish a Causal Link Between Likely Dumping and Likely 
Injury in a Sunset Review .............................................................................................36  
C. Claims under Article 11 of the DSU ............................................................................42  
V. Cumulation in Sunset Reviews .................................................................................................44  
A. Introduction .................................................................................................................44  
B. Claims under Article 11 of the DSU ............................................................................45  
C. Whether the Panel Erred in Its Interpretation and Application of Article 11.3 
with Respect to Cumulation .........................................................................................46  
1. Was the Panel's Finding Regarding Consistency with Article 11.3 
Based Solely on Its Finding that Ar ticle 3.3 Does Not Apply to Sunset 
Reviews?.........................................................................................................46  
2. "Threshold Finding" Regarding Si multaneous Presence of Subject 
Imports............................................................................................................48  WT/DS282/AB/R 
Page ii  
 
3.
 Whether the USITC Had a Sufficient Factual Basis to Find that the Subject Imports Would Be Simultaneously Present in the Domestic Market.............................................................................................................49
 
4. The Standard Applied by the USITC..............................................................51  
5. Alleged Requirement to Identify a Time-frame within which Imports 
Would Be Simultaneously Present .................................................................53  
6. Applicability of Article 3.3 of the  Anti-Dumping Agreement ........................54  
VI. Margins of Dumping in Sunset Reviews ..................................................................................56  
VII. The "Legal Basis" for Continuing Anti-Dumping Duties.........................................................59  
VIII. Consistency of the Sunset Policy Bulletin "As Such" ..............................................................61  
A. The Panel's Articulation of the Standard .....................................................................61  
B. The Panel's Application of the Standard .....................................................................63  
IX. Mexico's Conditional Appeals ..................................................................................................6 9 
A. The "Standard" for USDOC Determinations in Sunset Reviews .................................69  
B. Article X:3(a) of the GATT 1994 .................................................................................70  
X. Findings and Conclusions....................................................................................................... ..71 
 
 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 Notification of an Other Appeal by the United States under Article 16.4 and 
Article 17 of the DSU and Rule 23(1) of the  Working Procedures for Appellate 
Review  
  WT/DS282/AB/R 
 Page iii 
 
 
TABLE OF CASES CITED IN THIS REPORT  
 
Short Title Full Case Title and Citation 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Canada – Wheat Exports and 
Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004 
Dominican Republic – Import 
and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 19 May 
2005 
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 – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005 
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 – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 1998, 
DSR 1998:V, 2031 
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 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular 
Goods (OCTG) from Mexico , WT/DS282/R, 20 June 2005 
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779 
US – Corrosion-Resistant Steel Sunset Review
  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004  
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 – Non-Rubber Footwear   GATT Panel Report , United States – Countervailing Duties on Non-Rubber 
Footwear from Brazil , adopted 13 June 1995, BISD 42S/208. 
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 WT/DS282/AB/R 
Page iv  
 
Short Title Full Case Title and Citation 
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 – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
  WT/DS282/AB/R 
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TABLE OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Anti-Dumping 
Agreement  Agreement on Implementation of Article VI  of the General Agreement on Tariffs 
and Trade 1994  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes   
GATT 1994 General Agreement on Tariffs and Trade 1994   
Hylsa Hylsa, S.A. de C.V.  
OCTG oil country tubular goods 
Panel Report Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular 
Goods (OCTG) from Mexico , WT/DS282/R, 20 June 2005 
SAA Statement of Administrative Action to the Uruguay Round Agreements Act, 
H.R. Doc. No. 103-316 (1994), reprinted in 1994 USCCAN 4040 (Exhibit  
MEX-26 submitted by Mexico to the Panel) 
SCM Agreement Agreement on Subsidies and Countervailing Measures  
SPB;  Sunset Policy 
Bulletin "Sunset Policy Bulletin", Policies Regarding the Conduct of Five-year ("Sunset") 
Reviews of Antidumping and Countervailing Duty Orders;  Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), p. 18871 
(Exhibit MEX-32 submitted by Mexico to the Panel) 
TAMSA Tubos de Acero de Mexico, S.A.  
Tariff Act Tariff Act of 1930 
USDOC United States Department of Commerce 
USITC United States International Trade Commission 
USITC's Sunset 
Determination Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico—
Investigation Nos. 701-TA-364, 731-TA-711, and 713-616 (Review):  Determination and Views of the Commission, USITC Publication 3434 (June 
2001) (Exhibit MEX-20 submitted by Mexico to the Panel) 
Working Procedures Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 2005 
WTO  World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing  the World Trade Organization   
 
  WT/DS282/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Anti-Dumping Measures on 
Oil Country Tubular Goods (OCTG) from Mexico 
 
Mexico – Appellant /Appellee  
United States – Appellant /Appellee  
 
Argentina – Third Participant  
Canada – Third Participant 
China – Third Participant  
European Communities – Third Participant  
Japan – Third Participant  
Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu – Third Participant 
  AB-2005-7 
  Present:  
 Ganesan, Presiding Member 
 Lockhart, Member  Taniguchi, Member    
  
I. Introduction 
1. Mexico and the United States each appeals cert ain issues of law and legal interpretations 
developed in the Panel Report:  United States – Anti-Dumping Measures on Oil Country Tubular 
Goods (OCTG) from Mexico  (the "Panel Report").
1  The Panel was established to consider a 
complaint by Mexico against the United States regarding, inter alia , the continuation of anti-dumping 
duties on oil country tubular goods ("OCTG") from Mexico following the conduct of a five-year or "sunset" review of those duties, as well as certain United States laws and procedures relating to such 
reviews.
2 
2. On 11 August 1995, the United States Department of Commerce (the "USDOC") issued an 
anti-dumping duty order on OCTG from Mexico, b ased on a dumping margin of 23.79 per cent for 
Tubos de Acero de Mexico, S.A.  ("TAMSA") and for "all other" Mexican producers, including Hylsa, 
S.A. de C.V.  ("Hylsa").3  The USDOC subsequently reduced  this margin to 21.70 per cent.4  On 3 July 
                                                      
1WT/DS282/R, 20 June 2005. 
2Panel Report, para. 2.1. 
3Ibid., para. 2.3. 
4Ibid., footnote 6 to para. 2.3 and para. 2.6;  Oil Country Tubular Goods From Mexico:  Notice of Panel 
Decision, Amended Order and Final Determination of Antidumping Duty Investigation in Accordance With 
Decision Upon Remand, United States Federal Register , Vol. 62, No. 25 (6 February 1997), p. 5612 (Exhibit 
MEX-2 submitted by Mexico to the Panel), at p. 5613. WT/DS282/AB/R 
Page 2  
 
2000, the USDOC initiated a sunset review of the order.
5  In its determination of the likelihood of 
continuation or recurrence of dumping6, the USDOC determined that re vocation of the order would be 
likely to lead to continuation or  recurrence of dumping at the rate of 21.70 per cent for TAMSA, 
Hylsa, and "all other" Mexican producers.7  In its determination of th e likelihood of continuation or 
recurrence of injury, the United States International Trade Commission (the "USITC") determined 
that revocation of the anti-dumping duty orders on OCTG (other than drill pipe) from Mexico and 
certain other countries would be likely to lead to cont inuation or recurrence of material injury within a 
reasonably foreseeable time.8  As a result of these determinations by the USDOC and the USITC, the 
USDOC did not revoke the order on OCTG  (other than drill pipe) from Mexico.9   
3. Before the Panel, Mexico challenged, under the  Agreement on Implementation of Article VI 
of the General Agreement on Tariffs and Trade 1994  (the " Anti-Dumping Agreement "), the General 
Agreement on Tariffs and Trade 1994  (the "GATT 1994"), and the Marrakesh Agreement 
Establishing the World Trade Organization  (the " WTO Agreement "), inter alia : 
(a) Sections 752(a)(1), 752(a)(5), and 752(c)(1 ) of the Tariff Act of 1930 (the "Tariff 
Act")10;  pages 889 to 890 of the Statement of Administrative Action11 (the "SAA");  
Section II.A.3 of the Sunset Policy Bulletin (the "SPB")12;  the "practice" of the 
                                                      
5Panel Report, para. 2.6. 
6In our discussion, we refer at times to the USDOC' s determination of the likelihood of continuation or 
recurrence of dumping as the "likelihood-of-dumping determination" and to the USITC's determination of the 
likelihood of continuation or recurrence of injury  as the "likelihood-of-injury determination".  
7Panel Report, para. 2.6;  Oil Country Tubular goods ("OCTG") From Mexico;  Final Results of Sunset 
Review of Antidumping Duty Order, United States Federal Register , Vol. 66, No. 47 (9 March 2001), p. 14131 
and Memorandum from Jeffrey May to Bernard Carreau, "Issues and Decision Memorandum for the Full Sunset 
Review of the Antidumping Duty Order on Oil Country Tubular Goods (OCTG) from Mexico; Final Results" (26 February 2001) (Exhibit MEX-19 submitted by Mexico to the Panel). 
8Panel Report, para. 2.7;  Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico:  
Determinations, United States Federal Register , Vol. 66, No. 132 (10 July 2001), p. 35997 and Oil Country 
Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico—Investigation Nos. 701-TA-364, 731-TA-711, 
and 713-616 (Review): Determination and Views of the Commission, USITC Publication 3434 (June 2001) 
(Exhibit MEX-20 submitted by Mexico to the Panel). 
9Panel Report, para. 2.8;  Continuation of Countervailing and Antidumping Duty Orders on Oil 
Country Tubular Goods From Argentina, Italy, Japan,  Korea and Mexico, and Partial Revocation of Those 
Orders From Argentina and Mexico With Respect to Drill Pipe, United States Federal Register , Vol. 66, 
No. 143 (25 July 2001), p. 38630 (Exhibit MEX-22 submitted by Mexico to the Panel), at p. 38631. 
10These provisions are codified in Sections 1675a(a)(1),  1675a(a)(5), and 1675a( c)(1) of Title 19 of the 
United States Code , respectively (Exhibit MEX-24 submitted by Mexico to the Panel). 
11Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 
(1994), reprinted in 1994 USCCAN 4040 (Exhibit MEX-26 submitted by Mexico to the Panel). 
12Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and Countervailing 
Duty Orders; Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), p. 18871 
(Exhibit MEX-32 submitted by Mexico to the Panel).  WT/DS282/AB/R 
 Page 3 
 
 
USDOC in such reviews;  and the "standard" applied by the USITC in such reviews;  
and 
(b) various aspects of the USDOC's likelihood-of-dumping determination and the 
USITC's likelihood-of-injury determination in the sunset review of anti-dumping duties on OCTG from Mexico.
13 
4. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO") on 
20 June 2005, the Panel made the following findings:  
(a) Claims regarding USDOC's sunset review  
8.1 With regard to claims regard ing the alleged inconsistency of 
the US statute, 19 U.S.C. § 1675a(c)(1)), the Statement of 
Administrative Action (SAA) (pages 889-890) and the Sunset Policy Bulletin (SPB) (section II.A.3), with Article 11.3 of the AD Agreement, we conclude the SPB, in section II.A.3, establishes an irrebuttable presumption that termination of the anti-dumping duty would be likely to lead to continuation or 
recurrence of dumping, and therefore is, in this respect, 
inconsistent, as such, with the obligation set forth in Article 11.3 of the AD Agreement to determine likelihood of continuation or recurrence of dumping. 
8.2 With regard to the determin ation of USDOC in the sunset 
review at issue in this dispute, we conclude that USDOC 
acted inconsistently with Article 11.3 of the AD Agreement in that its determination that dumping is likely to continue or 
recur is not supported by reas oned and adequate conclusions 
based on the facts before it.   
8.3 We make no findings concerning Mexico's claims under 
Articles 2 and 6 of the AD Agreement in the context of the 
USDOC sunset review at issue in this dispute. 
8.4 We conclude that claims re garding alleged in consistency of 
USDOC "practice" in sunset reviews are not within the Panel's terms of reference.   
(b) Claims regarding USITC's sunset review  
8.5 We conclude that the standard applied by USITC in 
determining whether termina tion of the anti-dumping duty 
would be likely to lead to continuation or recurrence of injury, is not inconsistent with Article 11.3 of the 
AD Agreement as such, or as applied in the sunset review at 
issue in this dispute. 
                                                     
 
13For further details of Mexico's claims, see Panel Report, para. 3.1. WT/DS282/AB/R 
Page 4  
 
8.6 We conclude that the relevant provisions of US law, 19 
U.S.C. §§ 1675a(a)(1) and (5) regarding the temporal aspect of USITC determinations of likelihood of continuation or 
recurrence of injury are not, as such, or as applied in the 
sunset review before us in th is dispute, inconsistent with 
Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1, and 11.3 of the 
AD Agreement. 
8.7 We conclude that the USITC did not act inconsistently with 
Article 11.3 of the AD Agreement in making its determination of likelihood of continuation or recurrence of 
injury in the sunset review at  issue in this dispute.   
8.8 We conclude that the USITC's determination in the sunset 
review at issue in this dispute is not inconsistent with Articles 3.3 and 11.3 of the Agreement because it involved a cumulative analysis. 
8.9 We make no findings regarding the remaining aspects of 
Mexico's claims under Articles 3.1, 3.2, 3.3, 3.4, 3.5, 3.7 and 3.8 of the AD Agreement. 
... 
(d) Other claims  8.13 We make no findings concer ning alleged inc onsistency with 
... Article X:3(a) of the GATT 1994 in the administration of 
US anti-dumping laws, regulations, decisions and rulings with respect to USDOC's conduct of sunset reviews of anti-dumping duty orders; 
8.14 We make no findings c oncerning asserted subsidiary 
violations of the provisions of Article VI of the GATT 1994, 
Articles 1 and 18 of the AD Agre ement, and Article XVI:4 of 
the WTO Agreement. 
5. On 4 August 2005, Mexico notified the Dispute Se ttlement Body (the "DSB") of its intention 
to appeal certain issues of law covered in the Pane l Report and certain legal interpretations developed 
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
14 pursuant to 
Rule 20(1) of the  Working Procedures for Appellate Review  (the " Working Procedures ").15  O n  
11 August 2005, Mexico filed an appellant's submission.16  On 16 August 2005, the United States 
notified the DSB of its intention to appeal certain  issues of law covered in the Panel Report and 
certain legal interpretations devel oped by the Panel, pursuant to Articles 16.4 and 17 of the DSU, and 
                                                      
14WT/DS282/6 (attached as Annex I to this Report). 
15WT/AB/WP/5, 4 January 2005. 
16Pursuant to Rule 21(1) of the  Working Procedures .  WT/DS282/AB/R 
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filed a Notice of Other Appeal17 pursuant to Rule 23(1) of the Working Procedures .  On 19 August 
2005, the United States filed an other appellant's submission.18  On 29 August 2005, the United States 
and Mexico each filed an appellee's submission.19  On the same day, Argen tina, China, the European 
Communities, and Japan each filed a third participant's submission20, and Canada and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen, and Matsu each notified the Appellate Body 
Secretariat of its intention to appear at  the oral hearing as a third participant.21 
6. The oral hearing in this appeal was held on 19 September 2005.  The participants and third 
participants presented oral arguments (with the exception of Canada and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen, and Matsu) and responded to questions posed by the Members 
of the Division hearing the appeal. 
 
II. Arguments of the Participants and Third Participants 
A. Claims of Error by Mexico – Appellant 
1. Requirement to Establish a Causal Link in Sunset Reviews  
7. Mexico argues that the Panel erred in fa iling to find that Article 11.3 of the  Anti-Dumping 
Agreement  requires investigating authorities to demonstrate the existence of a causal link between 
likely dumping and likely injury, even assuming,  arguendo , that Article 3.5 of the  Anti-Dumping 
Agreement  does not apply  to sunset reviews. 
8. Relying on Article VI:1 of the GATT 1994, Mexi co argues that "'dumping' must be the cause 
of the 'injury' before it can be 'condemned' through the use of anti-dumping measures."22  In addition, 
Mexico contends that Article VI:6(a) of the GA TT 1994 suggests that "[t]he causality requirement of 
Article VI:6(a) continues throughout the life of the anti-dumping measure."23  Citing the report of the 
GATT panel in  US – Non-Rubber Footwear , Mexico argues that "the requirement under 
Article VI:6(a) to determine a causal link betw een the dumping and injury is not a time-bound 
obligation that expires upon imposition of the orde r" and that "'further implementation of [the 
                                                      
17WT/DS282/7 (attached as Annex II to this Report). 
18Pursuant to Rule 23(3) of the  Working Procedures . 
19Pursuant to Rules 22(1) and 23(4) of the  Working Procedures , respectively. 
20Pursuant to Rule 24(1) of the  Working Procedures . 
21Pursuant to Rule 24(2) of the  Working Procedures . 
22Mexico's appellant's submission, para. 22. 
23Ibid., para. 24.  WT/DS282/AB/R 
Page 6  
 
order]'—including its continuation through—a sunset  review has to be done consistently with 
Article VI:6(a), which includes the re quirement to establish a causal link."
24   
9. According to Mexico, the reference in Article 11.1 of the Anti-Dumping Agreement to 
"dumping which is 'causing' injury" indicates "tha t a causal link is a precondition to an order being 
considered as 'necessary' under Article 11.1."25  In other words, "[u]nless th e dumping is 'causing injury,' 
then the order is not 'necessary,'  and cannot 'remain in force.'"26  Mexico argues, in this respect, that the 
Appellate Body Report in  US – Carbon Steel  suggests that, "in order for an anti-dumping duty to be 
considered as 'necessary' under Article 11.1, its purpose must be to 'counteract dumping which is 
causing injury.'"27 
10. Mexico further submits that "[t]he Panel's finding that the [USDOC's] likelihood of dumping 
determination with respect to Mexican OCTG impor ts was WTO-inconsistent necessarily meant that 
the [USITC's] likelihood of injury dete rmination was also WTO-inconsistent."28  According to 
Mexico, "a WTO-consistent determin ation of likely dumping is a legal predicate to a WTO-consistent 
determination of likely injury."29  Mexico argues that the panel report in  US – DRAMS   supports "the 
notion that a finding of likely dumping is a n ecessary predicate to a fi nding of likely injury".30  
Mexico adds that "[t]he DSB rulings in  US – Oil Country Tubular Goods Sunset Reviews , combined 
with the Panel's finding in [the present case], esta blish that there was no WTO-consistent basis for a 
finding of likely dumping for  any  Member that was included in the USITC's cumulative analysis."31 
11. Finally, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU by 
failing to address Mexico's argument regarding "the f undamental causation principles of Article VI of 
the GATT and the Anti-Dumping Agreement"32, which, Mexico contends, apply in the context of 
sunset reviews under Article 11.3, regardless of  the applicability of Article 3.5 of the  Anti-Dumping 
Agreement  to such reviews.  Mexico submits, in this regard, that the Panel erred in finding that 
"'Mexico did not explain or elaborate on' its causation claim".33  According to Mexico, "[t]he Panel 
                                                      
24Mexico's appellant's submission, para. 25 (quoting GATT Panel Report, US – Non-Rubber Footwear , 
para. 4.5). (footnote omitted) 
25Ibid., para. 32. 
26Ibid. 
27Ibid., paras. 33-34 (referring to Appellate Body Report, US – Carbon Steel , para. 70). 
28Ibid., para. 52.  
29Ibid., para. 54.   
30Ibid., para. 30 (referring to Panel Report, US – DRAMS , para. 6.28). 
31Ibid., para. 57. (original emphasis) 
32Ibid., para. 66.   
33Ibid., para. 45 (quoting Panel Report, para. 6.12).  WT/DS282/AB/R 
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record shows that, despite Mexico's repeated expl anation and elaboration, the Panel simply ignored 
[Mexico's] argument and failed to make any assessment of it."34  Mexico maintains that Article 11 of 
the DSU "does not allow Panels to ignore argume nts in this manner, and then claim that an 
insufficient explanation or elaboration ju stifies a decision not to assess the argument."35 
12. For these reasons, Mexico requests the Appellate Body to rule that the Panel erred in its 
interpretation and application of Artic les 1, 11.1, 11.3, and 18.1 of the  Anti-Dumping Agreement  and 
Article VI of the GATT 1994, and acted inconsisten tly with Article 11 of the DSU by failing to find 
that Article 11.3 of the  Anti-Dumping Agreement  requires investigating authorities to demonstrate 
the existence of a causal link betw een likely dumping and likely injury. 
2. Cumulation in Sunset Reviews  
13. Mexico argues that the Panel acted inconsistent ly with Article 11 of the DSU by not making 
findings with respect to Mexico's argument that, re gardless of the applicability of Article 3.3 of the 
Anti-Dumping Agreement  to sunset reviews, the USITC's likelihood-of-injury determination "failed 
to satisfy the requirements applicable to th e conduct of any cumulative injury assessment."36  Mexico 
submits that it "fully explained the lega l and factual basis to support its position"37 and refers, in this 
respect, to several explanations it provided to th e Panel, arguing that the Panel disregarded these 
explanations.  Mexico requests the Appellate Body "to address, complete the analysis, and rule in 
favor of Mexico's claims, on which the Panel declined to rule."38 
14. According to Mexico, the Panel "simply assu med" that, because Article 3.3 of the  Anti-
Dumping Agreement   "does not apply to sunset reviews, th e USITC's cumulative injury determination 
could not be inconsistent with Article 11.3".39  Mexico submits that the Panel erred because it 
"wrongly assumed that its findings regarding two of  Mexico's cumulation arguments were sufficient 
to address Mexico's separate and wholly independent  argument that was not linked to Article 3.3".40   
15. According to Mexico, the USITC was under an obligation to "ensure that cumulation was 
appropriate in light of the conditions of competition".41  To do so, the USITC was "required" to make 
                                                      
34Mexico's appellant's submission, para. 67. 
35Ibid. 
36Ibid., para. 73. 
37Ibid. 
38Ibid., para. 75.  
39Ibid., para. 77.  
40Ibid. 
41Ibid., p. 23, heading II.B.2.c.i. WT/DS282/AB/R 
Page 8  
 
"a threshold finding that the subject imports w ould be simultaneously present in the U.S. market".
42  
Mexico asks:  "[i]f the imports are not in the mark et together and competing against each other, what 
possible justification could exist to evaluate th e effects of the imports in a cumulative manner?"43  
Mexico contends that "nowhere in [the USITC's]  analysis is there positive evidence demonstrating 
that imports from Mexico, Argentina, Italy, Korea,  and Japan would be present in the United States 
market at the same time ... if the order were revoked."44   
16. Mexico further argues that the USITC "did  not apply the legal standard required by 
Article 11.3 in connection with its assess ment of likelihood of simultaneity"45, because the USITC 
"requir[ed] a demonstration that the imports 'would not' be simultaneously in the market".46  Mexico 
emphasizes that "the mere absence of contradictor y information is not positive evidence of what is 
likely to happen."47 
17. Mexico also argues that the USITC's likelihood- of-injury determination is inconsistent with 
Article 11.3 "because [the USITC] failed to identify a time-frame within which subject imports would 
be simultaneously present in the U.S. market and the corresponding likely injury would take place".48 
18. Moreover, Mexico contends that, having "decide d to cumulate Mexican imports with imports 
from the other four countries that were cumulated in the original investigation", the USITC "was 
required to do so consistently w ith the requirements of Article 3.3"49, regardless of whether that 
provision applies directly to sunset reviews.  Me xico finds support for its position in the Appellate 
Body Report in  US – Corrosion-Resistant Steel Sunset Review , where the Appellate Body stated that, 
"should investigating authorities choose to rely upon dumping margins in making their likelihood 
determination, the calculation of these margins mu st conform to the disciplines of Article 2.4."50 
19. Accordingly, Mexico requests the Appellate B ody to find that the Panel erred in its 
interpretation and application of the  Anti-Dumping Agreement  to the USITC's cumulative analysis 
and failed to make an objective assessment as require d under Article 11 of the DSU.  Mexico requests 
                                                      
42Mexico's appellant's submission, p. 23, heading II.B.2.c.i. 
43Mexico's second written submission to the Panel,  para. 192 (quoted in Mexico's appellant's 
submission, para. 82). (emphasis omitted) 
44Mexico's appellant's submission, para. 86.  
45Ibid., para. 94.  
46Ibid. 
47Ibid. (footnote omitted) 
48Ibid., p. 27, heading II.B.2.c.iv. 
49Ibid., para. 103. 
50Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127 (quoted in Mexico's 
appellant's submission, para. 101).  WT/DS282/AB/R 
 Page 9 
 
 
the Appellate Body to find that the USITC's likel ihood-of-injury determinati on is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement . 
3. Margins of Dumping in Sunset Reviews  
20. Mexico argues that the Panel exercised fals e judicial economy by "declining to decide 
Mexico's claims concerning th e margin likely to prevail".51  Mexico contends that "the Panel reasoned 
that, because the Anti-Dumping Agreement does no t require authorities to determine and report a 
margin likely to prevail, an authority's determina tion of a margin likely to prevail cannot contravene 
the Anti-Dumping Agreement."52  According to Mexico, by deciding not to examine Mexico's 
arguments, the Panel failed to make an objective assessment of the matter before it as required by 
Article 11 of the DSU. 
21. Mexico submits that the Panel erred in its interpretation of Articles 2 and 11.3 of the  Anti-
Dumping Agreement .  Citing the Appellate Body Report in  US – Corrosion-Resistant Steel Sunset 
Review53, Mexico argues that, when an investigating authority "uses a specific methodology that the 
Anti-Dumping Agreement does not require, the authority must not apply that methodology in a manner that otherwise conflicts with the Agreement."
54  Otherwise, according to Mexico, "the use of a 
WTO-inconsistent methodology in a sunset review would also render the determination inconsistent 
with Article 11.3."55  Mexico submits that "the Panel effectively reasoned that the United States is free 
to select any dumping margin for use in the [US DOC's] and [the USITC's] respective likelihood 
determinations, regardless of whether that margin  was calculated in accordance with the requirements 
of the Agreement, including with the disciplines of Article 2."56 
22. Mexico also argues that, "[p]ursuant to Articl es 1 and 18.3, any dumping margin used in the 
context of a sunset review must be the result of the application of the  Anti-Dumping Agreement, and 
it also must be consistent with the Agreemen t, including the requirements of Article 2."57  According 
to Mexico, the "margin of dumping likely to preva il" that the USDOC reported to the USITC resulted 
from an investigation initiated befo re the entry into force of the  WTO Agreement , and thus this 
                                                      
51Mexico's appellant's submission, para. 131.  
52Ibid., para. 132.  
53Ibid., para. 114 (referring to Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , 
para. 127). 
54Ibid., para. 115.  
55Ibid. 
56Ibid., para. 116. 
57Ibid., para. 121.  WT/DS282/AB/R 
Page 10  
 
margin could not be the result of the application of the  Anti-Dumping Agreement , as required by 
Article 18.3. 
23. Mexico observes that, "[d]uring the Panel pr oceedings, the United States claimed that the 
staff report appended to the USITC's sunset determination 'clearly addresses each of the factors enumerated in Article 3.4.'"
58  Mexico points out that those factors include the "magnitude of the 
margin of dumping".59  As Mexico sees it, the United States la ter retreated from this position, as it 
contended that "the [US]ITC did not rely on or ot herwise factor the reporte d likely margin into its 
analysis."60  Mexico argues that "the United States cannot have it both ways on this issue.  Either the 
[USITC] 'evaluated' the dumping margin ... and thus  must accept the logical legal consequences of 
this margin affecting its determination, or the [U SITC] 'did not rely on or otherwise factor the ... 
margin into its analysis'".61   
24. Mexico therefore requests the Appellate Body to find that the Panel failed to make an 
objective assessment under Article 11 of the DSU, becau se it declined to rule on Mexico's claim that 
the USDOC's determination of the margin likely to prevail and the USITC's use of that margin were 
inconsistent with Articles 1, 2, 11.3, and 18.3 of the  Anti-Dumping Agreement .  Mexico also requests 
the Appellate Body to rule that the United St ates acted inconsistently with these provisions. 
4. The "Legal Basis" for Continuing Anti-Dumping Duties  
25. Mexico argues that the Panel acted inconsistently  with Article 11 of the DSU by declining to 
make a finding that the United States had no lega l basis to impose anti-dumping duties on OCTG 
from Mexico after the five-year period set out in Article 11.3 of the  Anti-Dumping Agreement .  
Mexico requests the Appellate Body to make such a finding. 
26. Mexico maintains that Article 11.3 of the  Anti-Dumping Agreement  requires Members to 
terminate anti-dumping duties within five years of  their imposition unless:  (a) the Member has 
initiated a review before the expiry of the five-y ear period;  and (b) the authorities have properly 
determined that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.  Although the United States initiated a review within the relevant time period, the 
                                                     
 
58Mexico's appellant's submission, para. 128 (quo ting United States' first written submission to the 
Panel, para. 315). 
59Ibid. 
60Ibid. (quoting United States' response to Question 13 posed by the Panel at the first panel meeting, 
Panel Report, p. E-45). 
61Ibid., para. 129 (referring to United States' first written submission to the Panel, para. 315;  and 
quoting United States' response to Question 13 posed by the Panel at the first panel meeting, Panel Report,  
p. E-45).   WT/DS282/AB/R 
 Page 11 
 
 
Panel found that the USDOC's likelihood-of-dumpi ng determination was in consistent with the 
United States' WTO obligations.  Therefore, the United States has not fulfilled the requirements for 
invoking the exception in Article 11.3, and, in acco rdance with the Appellate Body's reasoning in 
US – Corrosion-Resistant Steel Sunset Review62, it must terminate immediately the anti-dumping 
duties on OCTG from Mexico. 
27. Mexico argues that it "specifically, and repeatedly"63 asked the Panel to find that the United 
States had no legal basis to continue imposing anti-dumping duties on OCTG from Mexico.  Mexico 
contends that, by not doing so, the Panel failed to make "such other findings as will assist the DSB in 
making the recommendations or in giving the rulings  provided for in the covered agreements", as 
required by Article 11 of the DSU.  Mexico asserts that the Panel had to make the finding requested by Mexico to enable the DSB to make "s ufficiently precise recommendations and rulings"
64 in 
relation to implementation.  Mexico adds that a panel's discretion to exercise judicial economy is 
limited.  
28. Mexico maintains that, for the United States to br ing its inconsistent measure into conformity 
with Article 11.3 of the  Anti-Dumping Agreement , it has no option but to terminate the anti-dumping 
duty order on OCTG from Mexico.  The initiation of a new sunset review of this order would be 
inconsistent with Article 11.3.  By analogy, Mexico  refers to the Appellate Body's agreement with the 
Panel in  US – Steel Safeguards  that the measures at issue in that  case had been "deprived of a legal 
basis".65  For these reasons, Mexico requests the Appellate  Body to find that the United States had no 
legal basis to continue imposing anti-dumping duties on OCTG from Mexico beyond the five-year 
period established in Article 11.3.   
5. Mexico's Conditional Appeals  
(a) The "Standard" for USDOC Determinations in Sunset Reviews 
29. In the event that the Appellate Body reverses the Panel's finding that Section II.A.3 of the 
SPB, as such, is inconsistent with Article 11.3 of the  Anti-Dumping Agreement , Mexico requests the 
Appellate Body to find that Section 752(c)(1) of th e Tariff Act, the SAA, and the SPB, "as such", are 
                                                      
62Mexico's appellant's submission, para. 137 (referring to Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 104). 
63Ibid., para. 136. 
64Appellate Body Report, US – Wheat Gluten , para. 180 (quoted in Mexico's appellant's submission, 
para. 140).  
65Appellate Body Report, US – Steel Safeguards , para. 511 (quoted in Mexico's appellant's submission, 
para. 136). WT/DS282/AB/R 
Page 12  
 
inconsistent with Article 11.3 becau se, "collectively and independently"
66, they establish a standard 
for USDOC determinations in sunset reviews th at is inconsistent with Article 11.3.   
30. According to Mexico, Article 11.3 of the  Anti-Dumping Agreement  precludes authorities 
from finding that the expiry of an anti-dumping duty would be likely to lead to continuation or recurrence of dumping unless the evidence shows that dumping would be likely or probable in those 
circumstances.  In contrast, United States la w directs the USDOC to make an affirmative 
determination where the likelihood of dumping is "less than, or other than, probable".
67  In particular, 
this is confirmed by the SAA, which allows the USDOC to make an affirmative determination where 
dumping is merely a possible outcome of revoking an anti-dumping duty order.   
31. Mexico suggests that the Panel "declined to ru le" on whether the Tariff Act, the SAA, and the 
SPB establish a standard that is c ontrary to Article 11.3 of the  Anti-Dumping Agreement .68  However, 
Mexico submits that the Panel record contains su fficient findings for the Appellate Body to complete 
the analysis of this issue.  In particular, the Panel found that the USDOC treats the existence of 
dumping and declining import volumes as conclusive evidence that the revocation of an anti-dumping 
duty order would be likely to lead  to continuation or recurrence of dumping.  Mexico emphasizes that 
the Panel based this finding on a "qualitative assessment" of the cons istent practice of the USDOC in 
sunset reviews. 
(b) Article X:3(a) of the GATT 1994 
32. In the event that the Appellate Body reverses the Panel's finding that Section II.A.3 of the 
SPB, as such, is inconsistent with Article 11.3 of the  Anti-Dumping Agreement , Mexico requests the 
Appellate Body to find that the United States has fa iled to administer its laws, regulations, decisions, 
and rulings in an impartial and reasonable manne r as required by Article X:3(a) of the GATT 1994. 
33. Mexico points out that sunset reviews by th e USDOC fall within the types of laws and 
regulations described in Article X:1 of th e GATT 1994 and, therefore, that the USDOC's 
administration of United States laws, regulations, deci sions, and rulings pertaining to sunset reviews 
is subject to Article X:3(a).  Mexico declares th at it has established a clear pattern of "biased and 
unreasonable"69 decision-making by the USDOC in administering these provisions.  The USDOC 
made an affirmative likelihood determination in all th e sunset reviews in which at least one domestic 
producer participated, and it treated historical dum ping margins and/or declining import volumes as 
                                                      
66Mexico's appellant's submission, para. 160. 
67Ibid. 
68Mexico's Notice of Appeal, para. 5(a) (referring to Panel Report, para. 6.6). 
69Mexico's appellant's submission, paras. 172 and 173.  WT/DS282/AB/R 
 Page 13 
 
 
determinative of likely dumping in all expedited and full sunset revi ews.  According to Mexico, the 
USDOC's systematic maintenance of anti-dumping duties beyond the five-year period set out in 
Article 11.3 of the  Anti-Dumping Agreement  damages the competitive position of foreign exporters.   
34. Mexico observes that the Panel d eclined to rule on Mexico's claim under Article X:3(a) of the 
GATT 1994.  However, Mexico submits that the Pa nel record contains sufficient findings for the 
Appellate Body to complete the analysis of this issu e.  In particular, Mexico maintains that the Panel 
conducted a thorough qualitative analysis of indivi dual sunset determinations by the USDOC and 
found that the USDOC has consistently based its affirmative likelihood dete rminations in sunset 
reviews solely on the scenarios set out in the SPB .  Mexico argues that th e Appellate Body needs 
merely to apply Article X:3(a) to these findings to conclude that the United States administers sunset 
reviews contrary to that provision. 
35. For these reasons, if the Appellate Body reverses the Panel's finding that the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement , Mexico asks the Appellate Body to 
find that the United States has acted inconsis tently with Article X:3(a) of the GATT 1994. 
B. Arguments of the United States – Appellee 
1. Requirement to Establish a Causal Link in Sunset Reviews  
36. The United States argues that the Appellate B ody should not consider Mexico's arguments 
regarding "causation" on appeal.  According to th e United States, Mexico could have formulated these 
arguments as claims in and of themselves before the Panel, but Mexico elected not to do so.  
Referring to the Appellate Body Report in  US – Oil Country Tubular Goods Sunset Reviews , the 
United States contends that, "[f]aced with an Appellate Body report that  considers Article 3—
including Article 3.5—inapplicable to sunset revi ews and with the Panel report that followed that 
reasoning, it appears that Mexico is trying to devise an alternative means to have the requirements of 
Article 3.5 read into sunset reviews."70 
37. According to the United States, Mexico’s a dditional arguments on causation merely confirm 
that a causation analysis under Article 3.5 of the  Anti-Dumping Agreement  is required in  original 
investigations .  Mexico’s arguments add nothing, howeve r, to support its assertion that "a similar 
analysis is required in addressing the  likelihood  of injury in  sunset reviews, and they certainly do not 
establish that the actual requirements of Article 3.5 apply in sunset reviews."71  The United States 
recalls that the Appellate Body has clarified that s unset reviews are separate and distinct from original 
                                                      
70United States' appellee's submission, para. 41.  
71Ibid., para. 42. (original emphasis) WT/DS282/AB/R 
Page 14  
 
investigations, and that the requirements for an original investigation cannot "be automatically 
imported" into a sunset review.
72  The United States contends, therefore, that Mexico’s reliance on 
substantive legal obligations that apply to original investigations does "not support its assertion that 
the AD Agreement or Article VI of GATT 1994 c ontain some sort of 'inherent' causation 
requirements for sunset reviews."73 
38. The United States argues that Article VI of  the GATT 1994 does not contemplate sunset 
reviews.  Rather than speaking of a determinati on of likelihood of continuation or recurrence of 
injury, Article VI refers only to a determination of injury.  In other words, there is no support for 
Mexico’s argument that Article VI of the GATT 1994 imposes independent or inherent causation 
requirements in sunset reviews.  Similarly, Me xico does not explain how Article 11.1 of the  Anti-
Dumping Agreement   creates, in Article 11.3, a causal requirement of the nature Mexico suggests.  
The United States emphasizes that the Appellate Body  has already made it clear that "neither a 
determination of dumping, nor a determination of injury, need  be made under Article 11.3."74   
39. Turning to Mexico's claim that the Panel acted inconsistently with Article 11 of the DSU, the 
United States recalls the ruling of the Appellate Body, in  Dominican Republic – Import and Sale of 
Cigarettes ,  that "there is no obligation upon a panel to  consider each and every argument put forward 
by the parties in support of their respective cases,  so long as it completes an  objective assessment of 
the matter before it, in accordance with Article 11 of the DSU."75  The United States submits that, 
therefore, "Mexico must show that the Panel’s fi ndings that Mexico had fa iled to substantiate its 
assertions were in error and prevented the Pa nel from making an objective assessment of the 
matter."76  According to the United States, Mexico has not done so.  Instead, the United States 
underscores that "[t]he Panel objectively concluded that Mexico did no more than make assertions 
about the relevance of Article VI of th e GATT 1994 and Article 11.1 of the Antidumping 
Agreement."77 
40. The United States further argues that "[t]here is  simply no basis" for Mexico's assertion that 
"the DSB rulings 'combined with the Panel’s findi ng in this case, establish that there was no WTO-
                                                      
72Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 359 (quoted in 
United States' appellee's submission, para. 42). 
73United States' appellee's submission, para. 42.   
74Ibid., para. 50 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 280). 
75Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 125 (quoted in 
United States' appellee's submission, para. 8). 
76United States' appellee's submission, para. 8. 
77Ibid., para. 16.  WT/DS282/AB/R 
 Page 15 
 
 
consistent basis for a finding of likely dumping for  any  Member that was included' in the USITC’s 
cumulative analysis."78  According to the United States, "Mexico’s proposition relies on new facts—
its chart in paragraph 57 [of Mexico's appellant's submission]—and therefore is beyond the scope of 
Appellate Body review."79  The United States notes that not all of the likelihood-of-dumping 
determinations to which Mexico refers have even been subject to WTO dispute settlement.  In 
addition, referring to Mexico's allegation that Mexi co had "developed this argument with sufficient 
elaboration for the Panel to have made a finding  and the Panel’s conclusion to the contrary is 
erroneous"80, the United States argues that Mexico did not  identify "where its request for such a 
finding is located or where the Panel denied to make such a finding".81 
41. For these reasons, the United States requests the Appellate Body to dismiss Mexico's appeal 
in relation to causation. 
2. Cumulation in Sunset Reviews  
42. The United States agrees with the Panel that Article 11.3 of the  Anti-Dumping Agreement  
does not prescribe a methodology for cumulation in sunset  reviews.  Further, the United States recalls 
that the Appellate Body found in  US – Oil Country Tubular Goods Sunset Reviews   that Article 3.3 of 
the  Anti-Dumping Agreement  does not apply to sunset reviews.  The United States emphasizes that, 
"if Article 3.3 does not apply, then neither do its conditions."82 
43. Regarding Mexico's allegation that the USITC applied a WTO-inconsistent standard in the 
course of conducting its likelihood-of-injury determin ation, the United States argues, first, that the 
Appellate Body has already found that "the 'likel y' standard of Article 11.3 applies to the overall 
determinations regarding dumping and injury;  it need  not necessarily apply to each factor considered 
in rendering the overall determ inations on dumping and injury."83  Therefore, according to the United 
States, there is no "likelihood of simultaneity" standard for cumulation of imports, as Mexico suggests.
84  Secondly, the USITC determination focused on the existence of simultaneity before and 
after the order was imposed.  In the absence of c ontrary evidence, it was reasonable for the USITC to 
                                                      
78United States' appellee's submission, para. 32 (quoting Mexico's appellant's submission, para. 57). 
(Mexico's emphasis) 
79Ibid. (footnote omitted) 
80Mexico's appellant's submission, para. 59 (quoted in United States' appellee's submission, para. 33). 
81United States' appellee's submission, para. 33.   
82Ibid., para. 22 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 301). 
83Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 323 (quoted in 
United States' appellee's submission, para. 60). 
84United States' appellee's submission, para. 60. WT/DS282/AB/R 
Page 16  
 
conclude that "simultaneous presence of the subj ect imports would continue if the order were 
revoked."
85  Thirdly, "the Appellate Body already consid ered this issue in connection with the exact 
same determination, noting that the USITC’s decision to cumulate, including its simultaneity 
determination, was not incons istent with Article 11.3."86   
44. In relation to Mexico's contention that the Panel should have found that the USITC 
determination was flawed, because the determinati on did not specify the time-frame within which 
subject imports would be simultaneously present in the United States market and within which injury 
would occur, the United States observes that th e Appellate Body has already explained that 
Article 11.3 of the  Anti-Dumping Agreement  "does not require an investigating authority to specify 
the timeframe on which it bases its determination of injury."87 
45. Turning to Mexico's claims under Article 11 of  the DSU, the United States agrees with the 
Panel that "Mexico failed to 'explain or elabor ate on its bare assertion that Article 11.3 somehow 
establishes "inherent" obligations for cumulati on independent of those in Article 3.3.'"88  The United 
States maintains that Mexico does not explain, even  in its appellant's submission, why conditions for 
cumulation exist "irrespective of the appli cability of Article 3.3" to Article 11.3.89 
46. Accordingly, the United States requests the Appe llate Body to dismiss Mexico's appeal in 
relation to cumulation. 
3. Margins of Dumping in Sunset Reviews  
47. The United States submits that the Panel correctly found that nothing in the  Anti-Dumping 
Agreement   requires investigating authorities to determine or consider a "margin likely to prevail" in 
the context of a likelihood-of-dumping determination.   The United States maintains that "reporting" of 
a margin likely to prevail is an element of United States law "that is not derived from any element" of 
the  Anti-Dumping Agreement .90 
48. The United States recalls that "[t]he Appellate B ody has recognized that there is 'no obligation 
under Article 11.3 for investigating authorities to calcu late or rely on dumping margins in determining 
                                                      
85United States' appellee's submission, para. 60. 
86Ibid. (referring to Appellate Body Report, US – Oil Country Tubula r Goods Sunset Reviews , paras. 
326 and 328-329). 
87Ibid., para. 62 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 364).  
88Ibid., para. 23 (quoting Panel Report, para. 6.19). 
89Ibid. (quoting Mexico's appellant's submission, para. 83). 
90Ibid., para. 67 (quoting Panel Report, para. 7.83).  WT/DS282/AB/R 
 Page 17 
 
 
the likelihood of continuation or recurrence of dumping.'"91  According to the United States, "[t]he 
Panel’s conclusion that nothing in the AD Agreement requires determination, or consideration, of a 
'margin likely to prevail'" in the context of a lik elihood-of-dumping determina tion is consistent with 
that finding.92 
49. The United States agrees with the Panel's conclu sion that, "[i]n a case such as this one, where 
the United States acknowledges that USDOC explicitl y relied solely on import volumes in making its 
determination, we consider that there can be no b asis for finding a violation of Article 2" of the  Anti-
Dumping Agreement .93  Because the Panel found that the USDO C "did not rely on the margin" in 
making its likelihood-of-dumping de termination, the rulings in the Appellate Body Report in US – 
Corrosion-Resistant Steel Sunset Review  to which Mexico refers are "simply inapposite".94 
50. Turning to Mexico's allegation that the Pa nel erred in failing to find that the USITC 
determination was also flawed as a result of the ma rgin likely to prevail determined by the USDOC, 
the United States submits that "it is not clear how the margin likely to prevail could render the USITC determination WTO-inconsistent wh en the Panel made a factual finding that the USITC did not 'use' 
the margin in question."
95 
51. The United States therefore requests the Appella te Body to dismiss Mexico's appeal in 
relation to margins of dumping. 
4. The "Legal Basis" for Continuing Anti-Dumping Duties  
52. The United States contends that the Panel did not  act inconsistently with Article 11 of the 
DSU in declining to make a finding that the Unite d States had no legal basis to impose anti-dumping 
duties on OCTG from Mexico after the five-year period set out in Article 11.3 of the  Anti-Dumping 
Agreement . 
53. The United States submits that Mexico's appeal conflicts with Members' rights in deciding 
how to implement recommendations and rulings of the DSB.  "Mexico has offered no logical or legal 
justification as to why Members cannot correct br eaches of so-called time-bound provisions as they 
do breaches of any other obligation."96  In response to Mexico's reliance on US – Steel Safeguards , the 
                                                      
91United States' appellee's submission, para. 69 (quoting Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 127). 
92Ibid. (quoting Panel Report, para. 7.83). 
93Panel Report, para. 7.82 (quoted in United States' appellee's submission, para. 70). 
94United States' appellee's submission, para. 70.  
95Ibid., para. 73. 
96Ibid., para. 80. WT/DS282/AB/R 
Page 18  
 
United States argues that, in that case, neither th e panel nor the Appellate Body suggested that the 
United States should terminate the measure, even though the Appellate Body  concluded that the 
measure had no legal basis. 
54. The United States disagrees with "Mexico's conten tion that the Panel abused its discretion in 
exercising judicial economy".
97  Panels may be said to exercise  judicial economy with respect to a 
claim, but the Panel ruled on Mexico's claim.  In  addition, the United States notes that the Panel 
explained its conclusion that it was unnecessary to make any further findings.98 
55. For these reasons, the United States requests the Appellate Body to dismiss Mexico's appeal 
regarding the absence of a specific finding by the Pa nel that the United States had no legal basis to 
continue to impose anti-dumping duties on OCTG from Mexico. 
5. Mexico's Conditional Appeals  
(a) The "Standard" for USDOC Determinations in Sunset Reviews 
56. The United States argues that the Appellate Body should dismiss Mexico's request that the 
Appellate Body rule on whether the Tariff Act, th e SAA, and the SPB establish a standard that is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
57. According to the United States, Mexico is mist aken in asserting that "the Panel 'declined to 
decide' this 'claim.'''99  The Panel stated that it had ruled on Mexico's claim regarding the Tariff Act, 
the SAA, and the SPB.100  The United States contends that Me xico's alleged "claim" regarding the 
standard established by these instruments is simply an "argument". 
58. The United States submits that, in any event,  the Appellate Body would be unable to 
"complete the analysis" of this issu e because it lacks a sufficient factual basis.  The Panel stated that it 
made no findings on this aspect of Mexico's argume nts.  The findings on which Mexico suggests the 
Appellate Body should rely are related to the SPB, not the Tariff Act or the SAA.  The United States 
adds that "the Panel did not find the SAA to be a measure in the first place".101  Finally, the United 
States maintains that the Panel's findings regarding the SPB are the very findings that the Appellate 
Body would have to overturn in order to reach this aspect of Mexico's appeal, given that it is 
                                                      
97United States' appellee's submission, para. 79. 
98Ibid., para. 76 (referring to Panel Report, para. 6.22). 
99Ibid., para. 83 (quoting Mexico's appellant's submission, paras. 157-158). 
100Ibid. (referring to Panel Report, para. 6.6). 
101Ibid., para. 84.  WT/DS282/AB/R 
 Page 19 
 
 
conditioned on the Appellate Body reversing the Pa nel's conclusions regarding the SPB.  Thus, the 
Appellate Body would not be in a position to  rely on them to complete the analysis. 
59. Accordingly, the United States requests the Appe llate Body to dismiss Mexico's conditional 
appeal regarding the standard established by the Tariff Act, the SAA, and the SPB. 
(b) Article X:3(a) of the GATT 1994 
60. Regarding Mexico's request that the Appellate Body rule that the United States has acted 
inconsistently with Article X:3(a) of the GA TT 1994, the United States argues that Argentina 
submitted, in  US – Oil Country Tubular Goods Sunset Reviews , essentially the same evidence and 
exactly the same argument that Mexico is submitting in  this dispute.  The United States contends that, 
"based on this evidence"102, the Appellate Body stated in that earlier appeal that "it would be 
impossible to conclude on the basis of the overall st atistics alone that the determinations were flawed 
due to lack of objectivity on the part of the USDOC."103  The United States also  argues that Mexico's 
appellant's submission does not conform with the A ppellate Body's earlier statement that the evidence 
offered in an Article X:3(a) claim must reflect the "gravity"104 of such a claim. 
61. The United States observes that the Panel made no findings on this issue.  In addition, the 
United States alleges that the only findings the Appe llate Body could use to complete the analysis 
under Article X:3(a) are the very findings the Appella te Body would have to overturn to reach this 
aspect of Mexico's appeal, given that it is cond itioned on the Appellate Body reversing the Panel's 
conclusions regarding the SPB.  Thus , the Appellate Body would not be  in a position to rely on them 
to complete the analysis. 
62. For these reasons, the United States requests th e Appellate Body to dismiss Mexico's 
conditional appeal regarding Ar ticle X:3(a) of the GATT 1994. 
C. Claims of Error by the United States – Appellant 
1. Consistency of the Sunset Policy Bulletin "As Such"  
63.  The United States contends that the Panel erred in finding that Section II.A.3 of the SPB, "as 
such", is inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
                                                      
102United States' appellee's submission, para. 87. 
103Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 219 (quoted in 
United States' appellee's submission, para. 87). 
104Ibid., para. 217 (quoted in United States' appellee's submission, para. 86). WT/DS282/AB/R 
Page 20  
 
64. The United States puts forward three main reasons for its claim that the Panel made a legal 
error in its finding of inconsistency with respect to the SPB:  (i) the Panel erred in allocating the 
burden of proof;  (ii) the Panel applied an improper standard;  and (iii) the Panel failed to make an 
objective assessment of the matter before it (includi ng an objective assessment of the facts of the 
case) as required by Article 11 of the DSU.  The Unit ed States also highlights the serious nature of an 
"as such" challenge, and the particular rigour require d in assessing such a cha llenge.  In addition, the 
United States did not have "a meaningful opportuni ty to rebut the evidence created and presented by 
the Panel"
105 until the interim review stage, and, even after the interim review, the Panel did not 
address all of the United States' comments on this  issue. The United States also argues that its 
opportunity for rebuttal was curtailed by the fact  that the Panel did not identify each specific 
determination it considered or how that  determination suppor ted its conclusion. 
65. First, in relation to the burden of proof, th e United States submits that the Panel erred in 
finding that Mexico had established a  prima facie  case that the SPB is inconsistent with Article 11.3 
of the  Anti-Dumping Agreement .  The United States alleges that the Panel made Mexico's case for it, 
instead of limiting itself to the evidence and argum ents that Mexico presented, which comprised the 
text of the SPB and the outcomes in previous sunset  reviews.  According to the United States, Mexico 
did not conduct a "qualitative assessment" of the USDOC determinations it presented, although the 
Appellate Body has held that such an assessment is required to establish inconsistency of the SPB 
with Article 11.3.106  Given that Mexico's argument involve d a mere statistical analysis of the 
outcomes in previous sunset reviews, it was not up to the Panel to make a "qualitative assessment" of 
its own accord.  
66. The United States points to the Appellate Body's decisions in  Canada – Wheat Exports and 
Grain Imports  and  US – Gambling  as demonstrating that a complainant must provide evidence and 
arguments, including an explanation of the measure's  inconsistency and the relationship between the 
evidence and its claims.  However, "Mexico simp ly provided factual information, and the Panel 
mined that information for facts supporting a lega l argument that Mexico did not even advance."107 
67. Secondly, in relation to the standard that the Panel applied in assessing this claim, the United 
States argues that the Appellate Body found, in  US – Corrosion-Resistant Steel Sunset Review ,  that it 
is not clear from the text of the SPB alone whet her it instructs the USDOC to treat dumping margins 
and import volumes as conclusive of the likelih ood of dumping under Article 11.3 of the  Anti-
                                                      
105United States' other appellant's submission, para. 3. 
106Ibid., paras. 13-14 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset 
Reviews , paras. 209 and 212). 
107Ibid., para. 19.  WT/DS282/AB/R 
 Page 21 
 
 
Dumping Agreement .  The Appellate Body's reasoning in  US – Oil Country Tubular Goods Sunset 
Reviews  suggests that a qualitative analysis of USDOC de terminations is requir ed to show whether 
the SPB directs the USDOC to treat certain scenario s as determinative of the likelihood of future 
dumping, even though other factors might show that the revocation of an order would not be likely to 
lead to continuation or recurrence of dumping.  Th e United States contends that the Panel failed to 
conduct an analysis of this kind. 
68. According to the United States, the Panel di d not have before it the underlying decision 
memorandum for each determination, nor did it exam ine all those determinations.  Moreover, the 
Panel failed to focus on the role of the SPB in  the USDOC determinations and whether the SPB 
caused the USDOC to make particular affirmativ e determinations.  Instead, the Panel simply 
conducted its own assessment as to whether the facts be fore the USDOC fit any of the scenarios in the 
SPB, regardless of whether the USDOC itself even id entified such a scenario as being relevant, let 
alone compelling a particular outcome.  Similarly, the United States indicates that, in assessing the USDOC's alleged disregard of evidence of other fa ctors, the Panel considered neither whether the 
SPB caused the USDOC to disregard such evidence,  nor whether such evidence had probative value 
outweighing that of any particular SPB scenario. 
69. The United States also refers to certain factua l deficiencies in the Panel's analysis.  The 
United States points out that the Panel reviewed only an unidentified "sampling"
108 of the 206 
determinations that the Panel identified as invol ving no or minimal participation by foreign 
respondents.  In addition, the United States indicates that the Panel did not consider whether evidence 
of other factors was presented in these sunset review s (which would be unlikely, given the incomplete 
participation of foreign respondents).   
70. In relation to the 15 cases in which the Panel concluded that dumping continued after the 
order was issued, the United States argues that th e Panel stated that the USDOC "appears to have 
considered"109 that scenario (a) applied, but the Pa nel did not examine whether the SPB was 
responsible for that outcome.  In any event, in  seven of these cases the US DOC received no evidence 
of other factors, so they cannot shed light on whether the SPB requires the USDOC to make an affirmative likelihood determination even when probative evidence might outweigh the scenarios of 
the SPB.  In five of the 15 cases, the Panel wa s unable to state definitively whether foreign 
respondents had alleged other factors,  or whether the USDOC had consid ered such factors.  The Panel 
stated that, in one particular preliminary determination
110, the USDOC said that it did not consider the 
                                                      
108Panel Report, para. 7.53 (quoted in United States' other appellant's submission, paras. 30 and 35) 
109Ibid., para. 7.56 (quoted in United States' other appellant's submission, para. 41). 
110Tab 89 of Exhibit MEX-62 submitted by Mexico to the Panel. WT/DS282/AB/R 
Page 22  
 
interested parties' arguments regarding other factor s.  However, in making this determination, the 
USDOC relied not only on the continuation of dumpi ng, but also on the decline in import volumes, 
and it made no reference to the SPB.  In addition, the respondent did not contend that it was 
introducing evidence of other factors.  The argum ents regarding other factors that the USDOC 
decided not to consider were ma de by domestic interested parties, in response to the respondent's 
suggestion that revocation of the order would not si gnificantly alter import volumes or prices.  Given 
that the current dumping margin for the exporte r that the respondent supplied was more than 
20 per cent, this suggestion by the respondent c ould not constitute probative evidence in favour of 
revoking the order.  As for the remaining three cases in this category
111, the Panel stated that the 
USDOC rejected the foreign responde nts' assertion of good cause to consider other factors.  In fact, 
according to the United States, the USDOC did consider  the evidence of other factors, but determined 
that its probative value was outweighed by the ev idence of continued dumping, low import volumes, 
and the relationship between the two. 
71. Turning to the four cases in which dumping had been eliminated and import volumes had 
declined significantly, the United States refers to the Panel's statement that, in one case112, the 
USDOC originally asserted that it was willing to co nsider additional evidence and arguments, but it 
later relied on declining import volumes in making an affirmative determination.  The United States 
declares that, in that case, the respondent did not take up the opportunity to provide additional 
evidence and arguments.  Even so, the USDOC st ill considered the evidence of other factors and 
concluded that it did not outweigh the probativ e value of the decline in import volumes. 
72. Thirdly, in relation to the Panel's alleged fa ilure to conduct an objective assessment pursuant 
to Article 11 of the DSU, the United States reitera tes many of its arguments regarding the Panel's 
allegedly flawed analysis of the USDOC determin ations submitted by Mexico.  The United States 
contends that the Panel:  failed to provide a "reasoned explanation"113 for its conclusion regarding its 
unidentified "sampling"114 of certain determinations;  misunde rstood the facts in certain individual 
cases, as already mentioned;  and "selectively cite d certain statements from the determinations while 
failing to acknowledge countervailing statements".115 
73. The United States also queries the Panel's analysis  of several other determinations.  The Panel 
did not explain its categorization of the cases, incl uding its conclusion that, in five cases, respondents 
                                                      
111Including Tab 78 of Exhibit MEX-62 submitted by Mexico to the Panel. 
112Ibid., Tab 165. 
113United States' other appellant's submission, para. 52. 
114Panel Report, para. 7.53 (quoted in United States' other appellant's submission, para. 52). 
115United States' other appellant's submission, para. 55.  WT/DS282/AB/R 
 Page 23 
 
 
discussed other factors without specifically asserting good cause.  As an example, in one of these five 
cases116, the only respondent that participated subm itted arguments relating to its own dumping 
margin.  It is not clear that such arguments involve d evidence of other factors and, in any event, the 
dumping margins of individual companies are not relevant to whether the revocation of an anti-dumping duty order is likely to lead to the continuation or recurrence of dumping.  In relation to certain other cases
117, the Panel stated that the USDOC rej ected the assertion that good cause existed 
to consider other factors.  In fact, in the cas es the Panel quoted, the United States insists that the 
USDOC did consider the probative value of the eviden ce of other factors, but did not find it to be 
overriding.   
74. With respect to two other cases, the United States notes that the Panel focu sed on the fact that 
the USDOC made a negative preliminary determ ination followed by an affirmative final 
determination.  The circumstances of the first case118 demonstrate that the USDOC does consider 
evidence of other factors.  For this reason, at  the preliminary stage, the USDOC accepted the 
respondent's argument that the elimination of  dumping and low import volumes should not be 
regarded as indicating that the revocation of the or der would be likely to lead to the recurrence of 
dumping, because the respondent had acquired a United States company that would supply the United 
States market in future without th e need for a significant volume of imports.  However, the respondent 
subsequently admitted that, if the order were revoke d, it would increase its import volume to pre-order 
levels.  On this basis, the USDOC rejected th e suggestion that this evidence of other factors 
demonstrated that the revocation of the order would not be likely to lead to continuation or recurrence 
of dumping. 
75. In relation to the second case in which th e USDOC made a negative preliminary 
determination and an affirm ative final determination119, the Panel referred to the USDOC's unusual 
cost-of-production analysis to support its final de termination.  In that case, the USDOC initially 
rejected the assertion by a domestic  interested party that good cause existed to consider cost-of-
production information.  Both parties then submitted information relating to the cost of production, 
and the USDOC therefore conducted an on-site ve rification and engaged in a cost-of-production 
analysis, which led to its affirmative determination.   The United States contends that this conclusion 
was based on the evidence revealed in the verification, and not the SPB. 
                                                      
116Tab 35 of Exhibit MEX-62 submitted by Mexico to the Panel. 
117Including  ibid., Tab 201. 
118Ibid., Tab 32. 
119Ibid., Tab 261. WT/DS282/AB/R 
Page 24  
 
76. The United States submits that the Panel's finding that the scenarios in the SPB are 
determinative contradicts its finding that the rele vant United States statute requires the USDOC to 
take into account other factors.  The Panel's finding that the SPB imposes a requirement on the 
USDOC that is contrary to statute is unsupporte d by evidence.  Further, the Panel disregarded 
statements by the USDOC (which issued the SPB) that  the scenarios in the SPB are not determinative.  
The Panel also focused on the USDOC's alleged m echanistic application of the SPB, rather than 
whether the SPB instructs the USDOC  to treat the three scenarios as determinative, in disregard of 
other factors.  Finally, the United States asserts  that the Panel lacked objectivity and had "an 
unsubstantiated preconception"
120 that the USDOC determinations were somehow flawed.  The 
United States supports this assertion by reference to  the Panel's "serious doubt s about the consistency 
of some of the decisions reviewed"121, and the Panel's suggestion th at these decisions might have 
included "some correct results".122 
77. On these three grounds, the United States requests the Appellate Body to reverse the Panel's 
finding that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .   
D. Arguments of Mexico – Appellee 
1. Consistency of the Sunset Policy Bulletin "As Such"  
78. Mexico argues that the Panel properly found that Section II.A.3 of the SPB, "as such", is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
79. Mexico rejects the three grounds of the United States' appeal, arguing that the Panel properly 
determined that Mexico established a  prima facie  case, applied the correct legal standard in 
evaluating the SPB under Article 11.3 of the  Anti-Dumping Agreement , and made an objective 
assessment as required by Article 11 of the DSU.   
80. In addition, in relation to the latter two grounds of appeal, Mexi co asks the Appellate Body to 
decline the United States' request that it revisit th e Panel's factual findings and reweigh the evidence 
that was before the Panel.  Previous decisions of the Appellate Body demonstrate that panels enjoy a 
margin of discretion as triers of fact and that the Appellate Body is not to second-guess a panel's 
assessment of the evidence before it.  Applying th is reasoning to the present case, the Appellate Body 
                                                      
120United States' other appellant's submission, para. 72. 
121Panel Report, footnote 85 to para. 7.63 (quoted in United States' other appellant's submission, 
para. 73). 
122Ibid., footnote 86 to para. 7.64 (quoted in United States' other appellant's submission, para. 72).   WT/DS282/AB/R 
 Page 25 
 
 
should not disturb the Panel's factual finding that  the USDOC regards the scenarios in the SPB as 
conclusive or determinative.  Th ese findings relate to the meaning and scope of a Member's municipal 
law, which—according to the United States' own positi on in previous disputes—is a question of fact 
falling outside the scope of appellate review.  Me xico contends that the Appellate Body "should 
accord deference to the Panel with resp ect to its factual findings on the SPB".123 
81. In relation to the United States' argument that Mexico failed to establish a  prima facie  case, 
Mexico submits that the Panel correctly applied the precedents contained in the Appellate Body 
Reports in  US – Corrosion-Resistant Steel Sunset Review  and  US – Oil Country Tubular Goods 
Sunset Reviews  in concluding that Mexico had established a  prima facie  case.  In particular, Mexico 
contends that the Panel correctly recognized, based on these precedents, that determinations in sunset 
reviews must:  be supported by "positive evidence" and a "sufficient factual basis"124;  be based on a 
"rigorous examination" leading to a "reasoned conclusion"125;  and not involve the "mechanistic 
application of presumptions".126   
82. Mexico indicates that the Panel specifically an d correctly concluded that Mexico had made a 
prima facie  case.  Contrary to the United States' reading, in  US – Oil Country Tubular Goods Sunset 
Reviews , the Appellate Body reversed the Panel's finding that the SPB was inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement  because the Panel had failed to comply with Article 11 
of the DSU, not because the complainant had failed to establish a  prima facie  case.  This is a critical 
distinction.  Therefore, the Appellate Body's ruling in  US – Oil Country Tubular Goods Sunset 
Reviews  does not support the United States' appeal on th is issue.  On the contrary, this ruling 
confirms that "the obligation to make out a  prima facie  case may be satisfied in certain cases simply 
by submitting the text of the measure or, particularly where the text may be unclear, with supporting materials".
127  In the present case, the Panel found that Mexico identified the measure at issue, 
explained how it operated, and explained the basis fo r the alleged inconsistenc y with Article 11.3 of 
the  Anti-Dumping Agreement .128  According to Mexico, this shows that the Panel properly 
determined that Mexico established a  prima facie  case. 
                                                      
123Mexico's appellee's submission, para. 63. 
124Ibid., para. 3 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 114;  and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 302). 
125Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 111 and 
113;  and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 302). 
126Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 178). 
127Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 263 (quoted in 
Mexico's appellee's submission, para. 36). 
128Mexico's appellee's submission, para. 29 (referring to Panel Report, para. 6.28). WT/DS282/AB/R 
Page 26  
 
83. Mexico states that the Panel was required to  conduct a qualitative analysis in fulfilling its 
functions under Article 11 of the DSU;  this wa s not something that Mexico was required to do in 
meeting its burden of proof as complainant.  In  any case, Mexico provided to the Panel its own 
"qualitative assessment" of every sunset review  conducted by the USDOC in the form of 
Exhibits MEX-62 and MEX-65.  The charts at the fr ont of these exhibits "simply could not have been 
prepared unless a qualitative analysis had already occu rred in order to properly characterize the basis 
for the [USDOC's] determination in each case".
129  In addition, Mexico argues that it analyzed many 
individual sunset reviews in the course of the Panel proceedings. 
84. In response to the United States' plea that it di d not have an adequate opportunity to respond 
to the "evidence created and presented by the Panel"130, Mexico maintains that Mexico presented the 
evidence in question, comprising determinations of  an agency of the United States government, with 
its first submission to the Panel.  Therefore, the United States had an opportunity to rebut the 
evidence, but it chose not to do so as part of its litig ation strategy.  For example, Mexico argues that 
the United States could have responded to the evid ence:  in its first or second submissions;  in 
response to questions posed by the Panel;  upon the invitation of the Panel to comment on the 
Appellate Body decision in  US – Oil Country Tubular Goods Sunset Reviews ;  or in an interim 
review meeting that it could have requested under Article 15.2 of the DSU. 
85. Mexico disagrees with the United States' contenti on that the Panel failed to apply the correct 
standard in assessing the consistency of the SPB with Article 11.3 of the  Anti-Dumping Agreement .  
The Panel did not "shoehorn" the sunset review s or engage in an "outcomes" analysis.131  The United 
States mischaracterizes the Panel's analysis and wr ongly contests the Panel's factual assessment of the 
individual sunset reviews.   
86. According to Mexico, the United States cha llenges the Panel's statement that, in one 
preliminary determination132, the USDOC said that it did not consider the interested parties' arguments 
regarding other factors.  Responding to the United St ates' contention that this was not due to the SPB, 
Mexico argues that the USDOC relied on Section II.A. 3 of the SPB in the first sentence of the same 
paragraph.  Mexico submits that, contrary to the United States' arguments, respondents did introduce 
evidence of other factors in that case, and, even if th ey had not, it would not change the fact that the 
SPB determined the result.  Mexico also refers to the United States' suggestion that, in one case in 
                                                      
129Mexico's appellee's submission, para. 40. (emphasis omitted) 
130United States' other appellant's submission, para. 3 (quoted in Mexico's appellee's submission, 
para. 48). 
131Mexico's appellee's submission, para. 86 (quoting United States' other appellant's submission, 
paras. 9 and 39). 
132Tab 89 of Exhibit MEX-62 submitted by Mexico to the Panel.  WT/DS282/AB/R 
 Page 27 
 
 
which the USDOC rejected argum ents that good cause existed to consider other factors133, the 
USDOC did consider the evidence of other factors,  but found the evidence of continued dumping and 
low import volumes more probative.  Mexico responds that, in fact, the USDOC strictly followed the 
SPB, despite the dramatic fall in the dumping margin and without taking account of the evidence of other factors.  Finally, with respect to another case
134, Mexico challenges the United States' suggestion 
that the USDOC relied on decreased import volumes (t he third SPB scenario).  Mexico alleges that 
the USDOC relied on continued dumping margins (the  first SPB scenario), despite the existence of 
zero or  de minimis  dumping margins in each administrative review. 
87. In relation to the United States' claim that the Panel failed to make an objective assessment as 
required by Article 11 of the DSU, Mexico disput es the United States' representations about several 
individual sunset reviews.  Beginni ng with the United States' criticis m of the Panel's "sampling" of 
expedited sunset reviews, Mexico responds th at the United States' position during the Panel 
proceedings was that these sunset reviews were not relevant because they were not contested.  Mexico 
disagrees that these reviews were not relevant.  Even where respondent interested parties do not 
participate, the USDOC is obliged to seek out releva nt information, which it failed to do, as evidenced 
by the Panel's sampling.  
88. Mexico also refutes the United Stat es' contention that, in one review135, the respondent did not 
introduce evidence of other factors;  Mexico lists sev en other factors identified by the respondents in 
that review.  In relation to another case136, Mexico disagrees with the United States' suggestion that 
the respondents' arguments related simply to the existence of  de minimis  dumping margins;  Mexico 
states that the respondent in that case submitted arguments about import volumes and its ability to 
supply the United States market without dumping.  In response to the United States' argument that the 
USDOC weighed the probative value of evidence of other factors in determining whether good cause 
had been shown in another sunset review137, Mexico maintains that the USDOC relied solely on the 
third SPB scenario in making its determinati on.  In relation to another sunset review138, Mexico 
contests the United States' contention that the r espondents did not submit additional evidence.  In 
another case139, the United States contends that the USDOC  relied on the respondent's admission that 
revocation of the order would be likely to lead to dumping.  However, Mexico submits that the 
                                                      
133Tab 78 of Exhibit MEX-62 submitted by Mexico to the Panel. 
134Ibid., Tab 165. 
135Ibid., Tab 89. 
136Ibid., Tab 35. 
137Ibid., Tab 201. 
138Ibid., Tab 165. 
139Ibid., Tab 32. WT/DS282/AB/R 
Page 28  
 
USDOC dismissed the respondent's explanation for the decline in import volumes, even though it had 
accepted that explanation during the preliminar y stage and the evidence and arguments were 
unchanged.  Finally, Mexico rebuts the United States' argument that the USDOC based one 
affirmative likelihood-o f-dumping determination
140 on evidence of below-cost sales;  Mexico argues 
that "[e]vidence of sales below cost in the home  market cannot constitute evidence that an exporter 
would be likely to dump in the United States".141  In any event, Mexico does not regard this case as 
directly relevant to its claim, as none of the SPB criteria was present. 
89. Mexico also responds to the United States' arguments regarding a lleged inconsistency 
between the Panel's findings regarding the Tariff Act,  the SAA, and the SPB.  According to Mexico, 
even assuming that the Panel is correct that the Ta riff Act is consistent with Article 11.3 of the  Anti-
Dumping Agreement , that does not mean that the SPB conflic ts with the Tariff Act or changes its 
meaning.  The SPB simply goes beyond the require ment in the Tariff Act that the USDOC consider 
dumping margins and import volumes, in that the SPB establishes conclusive scenarios based on dumping margins and import volumes.  
90. For these reasons, Mexico requests the Appellate  Body to confirm the Panel's finding that 
Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
E. Arguments of the Third Participants 
1. Argentina
 
91. In relation to Mexico’s appeal regarding causa tion in sunset reviews, Argentina agrees with 
Mexico that investigating authorities may not determ ine that the expiry of a duty would be likely to 
lead to continuation or recurrence of injury under Article 11.3 of the  Anti-Dumping Agreement  
without establishing a causal link between the likely injury and dumped imports.  Even if Article 3.5 of the  Anti-Dumping Agreement  does not apply to sunset reviews under Article 11.3, causation is a 
fundamental requirement for anti-dumping duties, as reflected in Article VI of the GATT 1994 and in 
Articles 1, 3.5, 11.1, 11.3, and 18.1 of the  Anti-Dumping Agreement .  Therefore, according to 
Argentina, the United States was not entitled to  continue the anti-dumping duties on OCTG from 
Mexico beyond five years without establishing the existence of a causal link in the sunset review.  Argentina also contends that the USITC's likelihood- of-injury determination in the sunset review at 
issue was rendered WTO-inconsistent by virtue of  the fact that the Panel found that the USDOC's 
                                                     
 
140Tab 261 of Exhibit MEX-62 submitted by Mexico to the Panel. 
141Mexico's appellee's submission, para. 117.  WT/DS282/AB/R 
 Page 29 
 
 
likelihood-of-dumping determination was in consistent with Article 11.3 of the  Anti-Dumping 
Agreement . 
92. Concerning Mexico’s appeal as to the legal b asis for continuation of the anti-dumping duties 
on OCTG from Mexico, Argentina agrees with Mexico that the Panel erred in declining to find that 
the continuation of the anti-dumping duty order on OCTG from Mexico lacks a legal basis.  As the 
Panel found that the USDOC's likelihood-of-dum ping determination was inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement , the United States has not fulfilled the conditions of 
Article 11.3  for continuing to impose anti-dumping duties on OCTG from Mexico.  Accordingly, the 
United States should immediately terminate the anti-dumping duty order on OCTG from Mexico. 
93. In response to the United States' appeal in c onnection with the SPB, Argentina agrees with 
Mexico that Mexico established a  prima facie  case and that the Panel did not make Mexico's case for 
it.  In particular, Mexico identified the measure at issue (the SPB);  explained the meaning of the SPB;  
and argued that the SPB, as such, is inc onsistent with Article 11.3 of the  Anti-Dumping Agreement  
because it requires a "mechanistic application" of certain scenarios without a "reasoned analysis" of other factors.
142  Mexico also provided substantial evid ence supporting this argument in the form of 
exhibits attached to its submissions.  In eval uating Mexico's evidence and arguments, the Panel 
followed the Appellate Body's guidance in  US – Oil Country Tubular Goods Sunset Reviews .  
Accordingly, Argentina supports Mexico's conten tion that the Appellate Body should dismiss the 
United States' claim that the Panel acted inconsis tently with Article 11 of the DSU and uphold the 
Panel's finding that the SPB, as such, is in consistent with Article 11.3 of the  Anti-Dumping 
Agreement . 
2. China  
94. China agrees with Mexico that Article 11.3 of the  Anti-Dumping Agreement  requires 
investigating authorities to examin e whether the expiry of the duty would be likely to lead to 
continuation or recurrence of injury caused by dum ped imports or likely dumped imports.  Although 
the text of Article 11.3 imposes no causation requi rement explicitly, a finding of causation is 
necessary in order for the investigating authorities to conduct an objective exam ination.  As regards 
the USITC’s determination in the sunset review at issue, China finds it difficult to understand how the 
USITC could make a WTO-consistent likelihood-of -injury determination, given that the USDOC’s 
likelihood-of-dumping determination was inconsistent with Article 11. 3.  China adds that, although 
the Panel correctly found that Article 11.3 does not  prescribe any particular method for the likelihood-
of-injury determination, the Panel did not provide an  adequate explanation for its conclusion that the 
                                                      
142Argentina's third participant's submission, para. 18. WT/DS282/AB/R 
Page 30  
 
USITC’s likelihood-of-injury determination w as consistent with Article 11.3 of the Anti-Dumping 
Agreement . 
95. In relation to the United States' appeal concer ning the SPB, China agrees with Mexico that the 
Panel was correct in finding that the SPB is  inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .  First, the Panel correctly concl uded that Mexico had established a  prima facie  case and 
discharged its burden of proof.  Mexico submitted to the Panel extensive evidence and arguments 
regarding the meaning of Section II.A.3 of the SPB, including evidence of the USDOC’s "consistent 
application" of Section II.A.3.
143  Secondly, the Panel properly analyzed Mexico's evidence, 
conducting a "qualitative assessment"144 in accordance with the Appellate Body's guidance in  US – 
Oil Country Tubular Goods Sunset Reviews .  Thirdly, the Panel made an objective assessment of the 
matter before it and provided reasone d explanations for its conclusion that the SPB is inconsistent 
with Article 11.3 of the  Anti-Dumping Agreement .  In doing so, according to China, the Panel 
focused on the decision-making process of the USDOC, and not solely on the outcomes of sunset reviews. 
3. European Communities
 
96. The European Communities argues that imposing a causation requirement in sunset reviews, 
together with the non-attribution requirements that go with causation, "might be pushing the 
possibilities of prospective determ inations beyond reasonable limits".145  The European Communities 
also contends that the use of the present tense in  Article VI of the GATT 1994 and certain provisions 
of the Anti-Dumping Agreement does not provide a sufficient basis to read a causation requirement 
into Article 11.3 of the Anti-Dumping Agreement .  Accordingly, the European Communities "would 
not generally support this part of Mexico's appeal".146 
97. In response to Mexico's appeal as to cu mulation in sunset reviews, the European 
Communities submits that Article 11.3 of the  Anti-Dumping Agreement  does not prohibit 
investigating authorities from conducting a cumulative analysis of injury in a sunset review.  
However, the European Communities agrees with Mexico  that, if such an analysis is conducted, the 
                                                      
143China's third participant' s submission, para. 5. 
144Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 209 (quoted in 
China's third participant' s submission, para. 11.). 
145European Communities' third participant's submission, para. 9. 
146Ibid., para. 11.  WT/DS282/AB/R 
 Page 31 
 
 
conditions set out in Article 3.3 of the  Anti-Dumping Agreement  must be fulfilled, either at the time 
of the sunset review or "at least within the reasonably foreseeable future".147   
98. In relation to the United States' appeal regarding the SPB, the European Communities 
contends that the question is not whether the SPB mandates or instructs the USDOC to adopt a certain 
course of action in every case, but whether the SPB is consistent with the Anti-Dumping Agreement .  
The European Communities agrees with Mexico th at, in answering this question, the Panel was 
correct to consider past USDOC determinations.  The European Communities adds that, if the SPB is 
not intended to determine the outcomes of sunset re views, as the United States suggests, it is not clear 
why the United States cannot simply amend the SPB to clarify this. 
4. Japan  
99. Japan agrees with Mexico that an investigating authority cond ucting a sunset review pursuant 
to Article 11.3 of the  Anti-Dumping Agreement  may not determine that the expiry of the duty would 
be likely to lead to continuation or recurrence of  injury without establishing that the likely injury 
would be caused by likely dumping.  This flows from the overarching obligation in Article 11.1 of the 
Anti-Dumping Agreement , which makes clear that a Member may maintain an anti-dumping duty 
"only as long as and to the extent necessary to coun teract dumping which is causing injury".  The 
obligation under Article 11.1 for a Member to establish a causal link between dumping and injury 
"applies to the finding of 'injury' under Article 11.3".148  This is also consistent with the basic 
principles of Article VI of the GATT 1994, which the  Anti-Dumping Agreement  implements.  In 
particular, Japan argues that Articles VI:1 and VI :6(a) of the GATT 1994 confirm the necessity of a 
causal relationship between dumping and injury, whic h extends to sunset reviews under Article 11.3 
of the  Anti-Dumping Agreement  as well. 
100. Japan also agrees with Mexico that the Panel co rrectly concluded that th e SPB is inconsistent 
with Article 11.3 of the  Anti-Dumping Agreement .  Mexico presented evidence and arguments to the 
Panel to substantiate its claim.  This took the form of Exhibits MEX-62 and MEX-65, as well as the 
legal argument that this evidence shows that the SPB  attributes determinative or  conclusive weight to 
the factors of historical dumping margins and import volumes.  Therefore, the Panel properly found 
that Mexico had established a  prima facie  case of inconsistency.  According to Japan, it was then for 
                                                      
147European Communities' third participant's submission, para. 14. 
148Japan's third participant's submission, para. 11. WT/DS282/AB/R 
Page 32  
 
the Panel to assess the ev idence in accordance with Article 11 of  the DSU, which it did by conducting 
a "qualitative assessment" of Mexico's evidence and arguments.
149 
101. Japan maintains that, contrary to the United States' arguments, in  US – Oil Country Tubular 
Goods Sunset Reviews , the finding of the Appellate Body was not that Argentina had failed to 
establish a  prima facie  case, but that the Panel had erred in its analysis of Argentina's evidence.  In 
the present dispute, the Panel applied the correct st andard in assessing the consistency of the SPB with 
Article 11.3 of the  Anti-Dumping Agreement .  Even assuming that the Panel committed factual errors 
in assessing the SPB (which Japan disputes), these would not be of the egregious kind necessary to create an error under Article 11 of the DSU.  Accord ingly, Japan supports Mexico’s request that the 
Appellate Body uphold the Panel’s finding that the SPB is inconsistent with Article 11.3 of the  Anti-
Dumping Agreement . 
 
III. Issues Raised in this Appeal 
102. The following issues are ra ised in this appeal: 
(a) in relation to causation: 
(i) whether there is a requirement to est ablish the existence of a causal link 
between likely dumping and likely injury, as a matter of legal obligation, in a 
sunset review determinati on under Article 11.3 of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994  (the " Anti-Dumping Agreement ") and whether, therefore, the 
United States International Trade Commission (the "USITC") was required to demonstrate such a link in making its likelihood-of-injury determination
150 in 
the sunset review at issue in this dispute;  and  
(ii) whether the Panel acted inconsistently with Article 11 of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes  (the "DSU") 
in its assessment of Mexico's arguments in this regard; 
                                                      
149Japan's third participant's submission, para. 22. 
150In our discussion, we refer at times to the USITC's determination of the likelihood of continuation or 
recurrence of injury as the "likelihood-of-injury determination".  WT/DS282/AB/R 
 Page 33 
 
 
(b) in relation to cumulation: 
(i) whether the Panel erred in finding that the USITC's decision to conduct a 
cumulative assessment of imports in making its likelihood-of-injury 
determination was not in consistent with Articles 3.3 and 11.3 of the  Anti-
Dumping Agreement ;  and 
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in its 
assessment of Mexico's arguments in this regard; 
(c) in relation to dumping margins: 
(i) whether the Panel acted inconsistently with Article 11 of the DSU in not 
addressing Mexico's claims under Article 2 of the  Anti-Dumping Agreement ;  
(ii) whether the likelihood-of-dumping determination151 of the United States 
Department of Commerce (the "USDOC") was inconsistent with  
Article 11.3 of the Anti-Dumping Agreement because the USDOC  
determined a likely dumping margin inc onsistently with Article 2 of the  
Anti-Dumping Agreement ;  and 
(iii) whether the USITC's likelihood-of-injur y determination was inconsistent 
with Article 11.3 of the  Anti-Dumping Agreement  because the USITC relied 
on a likely dumping margin that was determined inconsistently with Article 2 of the  Anti-Dumping Agreement ;  
(d) whether the Panel acted inconsistently with  Article 11 of the DSU in declining to 
make a specific finding that the United Stat es had no legal basis to continue the anti-
dumping duties on oil country tubular goods ("OCTG") from Mexico beyond the five-year period established by Article 11.3 of the  Anti-Dumping Agreement ; 
(e) in relation to the Sunset Policy Bulletin (the "SPB")
152: 
(i) whether, in assessing the consistency of the SPB, "as such", with Article 11.3 
of the  Anti-Dumping Agreement , the Panel failed to make an objective 
                                                      
151In our discussion, we refer at times to the USDO C's determination of the likelihood of continuation 
or recurrence of dumping as the "likelihood-of-dumping determination". 
152Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and 
Countervailing Duty Orders;  Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), 
p. 18871 (Exhibit MEX-32 submitted by Mexico to the Panel). WT/DS282/AB/R 
Page 34  
 
assessment of the matter, including an objective assessment of the facts of the 
case, as required by Article 11 of the DSU;   
(ii) whether the Panel erred in finding that Section II.A.3 of the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement ;  and 
(iii) whether the Panel erred in stating that Mexico had established a  prima facie 
case that the SPB, as such, is inconsistent with Article 11.3 of the  Anti-
Dumping Agreement ;  and 
(f) if the Appellate Body reverses the Panel's finding that Section II.A.3 of the SPB is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement : 
(i) whether the Tariff Act of 1930 (the "Tariff Act"), the Statement of 
Administrative Action (the "SAA")
153, and the SPB, "collectively and 
independently"154, establish a standard that is inconsistent with Article 11.3 of 
the  Anti-Dumping Agreement ;  and 
(ii) whether the USDOC administers United States laws and regulations on 
sunset reviews in a uniform, impartial, and reasonable manner in accordance 
with Article X:3(a) of the General Agreement on Tariffs and Trade 1994  
(the "GATT 1994"). 
 
IV. Causation in Sunset Reviews 
A. Introduction 
103. Mexico argued before the Panel that the USIT C's likelihood-of-injury determination with 
respect to the anti-dumping duty order on OCTG from Mexico was inconsistent with several 
provisions of Article 3 of the  Anti-Dumping Agreement .  Based on its analysis, the Panel found that 
"the obligations set out in Article 3 are not directly applicable in sunset reviews."155  
                                                      
153Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 
(1994), reprinted in 1994 USCCAN 4040 (Exhibit MEX-26 submitted by Mexico to the Panel). 
154Mexico's appellant's submission, para. 160. 
155Panel Report, para. 7.117. (footnote omitted)  WT/DS282/AB/R 
 Page 35 
 
 
104. The Panel also concluded that: 
While Mexico did make arguments  concerning alleged failure to 
establish a causal link between likely dumping and likely injury, these were, in our view, based on Article 3.5, which we found did not apply in sunset reviews.  Mexico did not explain or elaborate on its bare assertion that Article 11.1 of the AD Agreement and Article VI of GATT 1994 establish "inherent" cau sation requirements, parallel 
to but independent of those in Article 3.5.  In the absence of any 
basis for such findings, we did not consider it necessary to address this aspect of Mexico's argument.
156   
105. Mexico challenges the Panel's interpretation of Article 11.3 of the  Anti-Dumping Agreement 
and its failure to address the "inherent" causation requirements under that Article.  Referring to the 
underlying principles in Articles 1, 3, 11.1, and 18.1 of the  Anti-Dumping Agreement   and Article VI 
of the GATT 1994, Mexico argues that, even  assuming that Article 3.5 of the  Anti-Dumping 
Agreement   (dealing with causation) does not apply directly  to sunset reviews, there is an "inherent" 
obligation to establish a causal link between likely dumping and likely injury in a sunset review 
determination under Article 11.3 of the  Anti-Dumping Agreement .157 
106. The United States contends that Mexico's relian ce on substantive legal obligations that apply 
to original investigations does "not support its ass ertion that the AD Agreement or Article VI of 
GATT 1994 contain some sort of 'inherent' ca usation requirements for sunset reviews."158  The United 
States recalls in this respect that the Appellate Body  has previously clarified that sunset reviews are 
separate and distinct from original investigati ons, and that the requirements for an original 
investigation cannot "be automatically imported" into a sunset review.159   
                                                      
156Panel Report, para. 6.12.  
157Mexico's appellant's submission, para. 38.  Mexico clarified at the oral hearing that it does not appeal 
the Panel's finding that Article 3 of the  Anti-Dumping Agreement  does not, as such, apply to sunset reviews.  
158United States' appellee's submission, para. 42.    
159Ibid. (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 359). WT/DS282/AB/R 
Page 36  
 
B. Requirement to Establish a Causal Link Be tween Likely Dumping and Likely Injury in 
a Sunset Review  
107. We begin our analysis with the text of Article 11.3 of the  Anti-Dumping Agreement : 
Notwithstanding the provisions of para graphs 1 and 2, any definitive 
anti-dumping duty shall be terminated  on a date not later than five 
years from its imposition … unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry 
within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. ... (footnote omitted) 
108. On its face, Article 11.3 does not require investig ating authorities to establish the existence of 
a "causal link" between likely dumping and likely inju ry.  Instead, by its terms, Article 11.3 requires 
investigating authorities to determine whether the  expiry of the duty   would be likely to lead to  
continuation or recurrence of dumping and injury .  Thus, in order to continue the duty, there must be 
a nexus between the "expiry of the duty", on th e one hand, and "continuation or recurrence of 
dumping and injury", on the other hand, such that the former "would be likely to lead to" the latter.  
This nexus must be clearly demonstrated.
160  In this respect, we furthe r note that, under Article 11.3 of 
the  Anti-Dumping Agreement , the termination of the anti-dumping duty at the end of five years is the 
rule and its continuation beyond that period is the "exception".  
109. Although Article 11.3 is silent as to whether i nvestigating authorities are required to establish 
the existence of a "causal link" between likely du mping and likely injury, this "silence does not 
exclude the possibility that the requirement w as intended to be included by implication."161  W e  
therefore proceed to examine whet her there is a requirement to establish a causal link between likely 
dumping and likely injury in a sunset review under Article 11.3 flowing from other provisions of the  
Anti-Dumping Agreement  and Article VI of GATT 1994. 
110. We start with Article VI of the GATT 1994, as the  Anti-Dumping Agreement   implements 
that provision in respect of anti-dumping measures.  This is clear from Article 1 of the  Anti-Dumping 
Agreement , which states that "[a]n anti-dumping me asure shall be applied only under the 
circumstances provided for in Article VI of GATT 1994" .  It further stipulates that the provisions of 
                                                      
160The use of the word "likely" in Article 11.3 shows that "an affirmative likelihood determination may 
be made only if the evidence demonstrates that dumping [and injury] would be probable if the duty were 
terminated—and not simply if the evidence suggests that such a result might be possible or plausible." 
(Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111) 
161Appellate Body Report, US – Carbon Steel , para. 65.  The Appellate Body said in that case that "the 
task of ascertaining the meaning of a treaty provision with respect to a spec ific requirement does not end once it 
has been determined that the text is silent on that requirement." ( Ibid.)  WT/DS282/AB/R 
 Page 37 
 
 
the  Anti-Dumping Agreement  "govern the application of Article VI of GATT 1994 in so far as action 
is taken under anti-dumping legi slation or regulations". 
111. Paragraph 1 of Article VI of the GATT 1994 st ates that dumping "is to be condemned if it 
causes or threatens material  injury to an established industry in the territory of a Member or materially 
retards the establishment of a domestic industry".  Pa ragraph 2 of Article VI provides that, "[i]n order 
to offset or prevent dumping", a Member may levy on a dumped product an anti-dumping duty not 
exceeding the margin of dumping.  Paragraph 6(a) further stipulates that no anti-dumping duty shall 
be levied unless the importing Member "determines th at the effect of the dumping ... is such as to 
cause or threaten material injury to an established dom estic industry, or is such as to retard materially 
the establishment of a domestic industry."  T hus, Article VI of the GATT 1994 establishes the 
fundamental principle that there must be a causal link between dumping and injury to a domestic 
industry, if an anti-dumping duty is to be levied on a dumped product.  It further establishes that the 
purpose of an anti-dumping duty is to counteract dumping that causes injury. 
112. Several provisions of the  Anti-Dumping Agreement   confirm and reinforce this fundamental 
principle.  Article 3, entitled "Determination of Injury", states in paragraph 1 that: 
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 . (emphasis added) 
In evaluating the impact of the dumped imports on the domestic industry, pa ragraph 5 of Article 3 
stipulates that "[i]t must be demonstrated that  the dumped imports are, through the effects of 
dumping, ... causing injury" to the domestic industry within the meaning of the  Anti-Dumping 
Agreement .  Article 3.5 further requires that inves tigating authorities examine any known factors 
other than the dumped imports "which at the same  time are injuring the domestic industry", and that 
the "injuries caused by these other factors ... not be attributed to the dumped imports."  
113. Article 5 of the  Anti-Dumping Agreement , which deals with "Initiation and Subsequent 
Investigation", lays down in paragraph 2 that an  application by the domestic industry for initiation  
of an investigation by competent authorities sh all include evidence (not simple assertions) of 
"(a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by [the  Anti-
Dumping Agreement ] and (c) a causal link between the dumped  imports and the alleged injury."  
Sub-paragraph (iv) of paragraph 2 further stipulates that the application by the domestic industry must 
include, inter alia , information on "the consequent impact of  the imports on the domestic industry, as WT/DS282/AB/R 
Page 38  
 
demonstrated by relevant factors and indices havi ng a bearing on the state of the domestic industry, 
such as those listed in paragraphs 2 and 4 of Article 3."  Paragraph 8 of Article 5 requires rejection of 
an application by the domestic industry and terminati on of the investigation if there is not sufficient 
evidence either of dumping or of injury, or if the injury is found to be "negligible". 
114. Article 9 of the  Anti-Dumping Agreement , which deals with the "Imposition and Collection 
of Anti-Dumping Duties", states in paragraph 1 that "[i]t is desirable that ... the [anti-dumping] duty 
be less than the [full] margin [of dumping] if such lesser duty would be adequate to remove the injury 
to the domestic industry." 
115. We now turn to the provisions of the  Anti-Dumping Agreement  that deal with the "review" 
of anti-dumping duties that have been levied after an original investigation.  Article 11.1 of the 
Agreement establishes an overarching principle for "duration" and "review" of anti-dumping duties in 
force.
162  It provides that "[a]n anti-dumping duty shall remain in force only as long as and to the 
extent necessary to counteract dumping which is cau sing injury."  This principle applies during the 
entire life of an anti-dumping duty.  If, at any point in  time, it is demonstrated that no injury is being 
caused to the domestic industry by the dumped import s, the rationale for the continuation of the duty 
would cease.163   
116. Following the principle of Article 11.1, Article 11.2 provides, in part: 
Interested parties shall have the right to request the authorities 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 varied, or both.  If, as a result of 
the review under this paragraph, the authorities determine that the 
anti-dumping duty is no longer warra nted, it shall be terminated 
immediately. 
117. It is clear from Article VI of the GATT 1994 and the above-mentioned provisions of the  
Anti-Dumping Agreement , and indeed from the design and structure of that Agreement as a whole, 
that the Anti-Dumping Agreement  deals with counteracting injurious dumping and that an anti-
dumping duty can be imposed and maintained  only  if the dumping (as properly established) causes 
injury to the domestic industry.  Absent injury to  the domestic industry, the rationale for either 
                                                     
 
162See Appellate Body Report, US – Carbon Steel , para. 70.  Although the Appellate Body's reasoning 
in that case related to the interpretation of Article 21.1 of the Agreement on Subsides and Countervailing 
Measures  (the " SCM Agreement "); we consider that it applies, mutatis mutandis , to the interpretation of 
Article 11.1 of the  Anti-Dumping Agreement , given that these provisio ns are almost identical. 
163Under this broad principle, however, we recognize that, in a sunset review determination under 
Article 11.3, it could be properly determined that there may be a likelihood of recurr ence of injury if the duty 
expires.  We further note that, under Article 11.3, an anti-dumping duty may continue even though there is no 
injury at the time of the review.  WT/DS282/AB/R 
 Page 39 
 
 
imposing the duty in the first place, or maintaining it at any time after its imposition, does not exist.164  
A causal link between dumping and injury to the domestic industry is thus fundamental to the 
imposition and maintenance of an anti-dumping duty under the  Anti-Dumping Agreement.  
118. We therefore agree with Mexico that this fundame ntal principle is expressed in Article VI of 
the GATT 1994 and in various provisions of the  Anti-Dumping Agreement .  The United States does 
not question this principle  per se .  However, this does not mean that a causal link between dumping 
and injury is required to be established anew in  a "review" conducted under Article 11.3 of the  Anti-
Dumping Agreement .  This is because the "review" contemplated in Article 11.3 is a "distinct" process 
with a "different" purpose from the original investigation.165 
119. The Appellate Body has underlined that "[t]he nature of the determina tion to be made in a 
sunset review differs in certain essential respects fro m the nature of the determination to be made in 
an original investigation", and that "[t]he di sciplines applicable to original investigations cannot , 
therefore , be automatically imported  into review processes."166 
120. As the Appellate Body has explained in  US – Oil Country Tubular Goods Sunset Reviews : 
Original investigations require an investigating authority, in order to 
impose  an anti-dumping duty, to make a determination of the 
existence of dumping in accordance wi th Article 2, and subsequently 
to determine, in accordance with Article 3, whether the domestic 
industry is facing injury or a threat thereof at the time  of the original 
investigation.  In contrast , Article 11.3 requires an investigating 
authority, in order to  maintain  an anti-dumping duty, to review an 
anti-dumping duty order that has already been established—following the prerequisite determin ations of dumping and injury—so 
as to determine whether that orde r should be continued or revoked.
167  
121. An anti-dumping duty comes into existence fo llowing an original investigation that has 
established a causal link between dumping and injury to the domestic industry in accordance with the 
requirements of Article 3 of the  Anti-Dumping Agreement , including, in particular, the requirement 
that the injury caused by any other known factor not be attributed to dumping.  In contrast, when a "review" takes place under Article 11.3, and it is determined that the "expiry of the duty" would 
"likely ... lead to continuation or recurrence of du mping and injury", it is reasonable to assume that, 
                                                     
 
164We recognize that, in a sunset review determination under Article 11.3, it could be properly 
determined that there may be a likelihood of recurrence of injury if the duty expires.  
165Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 359. 
166Ibid., paras. 328 and 359 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , paras. 106-107;  and Appellate Body Report, US – Carbon Steel , para. 87). (emphasis added)  
167Ibid., para. 279. (original italics;  underlining added) WT/DS282/AB/R 
Page 40  
 
where dumping and injury continues or recurs, the causal link between dumping and injury, 
established in the original investigation, w ould exist and need not be established anew. 
122. We envisage a variety of circumstances that may exist when a review under Article 11.3 is 
conducted.  For instance, dumping may have continued throughout the life of the anti-dumping duty order and the domestic industry may no t have recovered despite the existence of the duty.  In such a 
case, the injury may continue or may even be aggr avated if the duty is terminated.  There may be 
other cases where dumping is continuing, with signif icant import volumes and dumping margins, but 
the domestic industry may have recovered by the time of the review because of the effect of the anti-
dumping duty.  It may be, however, that, if the duty is revoked, the injury may recur.  There may be yet other cases where the dumping may have ceased, with or without imports also having ceased, and 
the domestic industry also may have recovered by th e time of the review.  In such cases, convincing 
evidence will be needed to establis h that revocation of the duty would be likely to lead to both 
recurrence of imports (if imports had ceased) and of dumping, as well as recurrence of injury to the domestic industry.  In the types of cases indicat ed above, there may be further variations in 
circumstances, such as, for ex ample, when the dumping or im ports ceased during the intervening 
period;  the magnitude of dumped imports;  dumping margins and the price effects if dumping is 
continuing;  the extent to which the domestic i ndustry has recovered;  and the relative shares of 
imports and domestic production in the market. 
123. As we stated earlier, in a sunset review de termination under Article 11.3, the nexus to be 
demonstrated is between "the expiry of the duty"  on the one hand, and the likelihood of "continuation 
or recurrence of dumping and injury" on the other hand.
168  We note that Article 11.3, in fact, 
expressly postulates that, at the time of a sunset review, dumping and injury, or either of them, may have ceased, but that expiration of the duty may be likely to lead to "recurrence of dumping and 
injury".  Therefore, what is ess ential for an affirmative determinat ion under Article 11.3 is proof of 
likelihood of continuation or recurrence of dumping a nd injury, if the duty e xpires.  The nature and 
extent of the evidence required for such proof will vary with the facts and circumstances of the case 
under review.  Furthermore, as the Appellate Body  has emphasized previously, determinations under 
Article 11.3 must rest on a "sufficient factual basis"  that allows the investigating authority to draw 
"reasoned and adequate conclusions".
169  These being the requirements for a sunset review under 
Article 11.3, we do not see that the requirement of establishing a causal link between likely dumping and likely injury flows into that Article from other provisions of the GATT 1994 and the  
                                                     
 
168See supra , para. 108. 
169See, for example, Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , 
para. 311.  WT/DS282/AB/R 
 Page 41 
 
 
Anti-Dumping Agreement .  Indeed, adding such a requirement w ould have the effect of converting the 
sunset review into an original inv estigation, which cannot be justified. 
124. Our conclusion that the establishment of a causal link between likely dumping and likely 
injury is not required in a sunset review determ ination does not imply that the causal link between 
dumping and injury envisaged by Article VI of the GATT 1994 and the  Anti-Dumping Agreement  is 
severed in a sunset review.  It only means that re -establishing such a link is not required, as a matter 
of legal obligation, in a sunset review.  
125. For these reasons, we are unable to agree with Me xico that there is a requirement to establish 
the existence of a causal link between likely dumping and likely injury, as a matter of legal obligation, 
in a sunset review determination under Article 11.3, and that, therefore, the USITC was required to 
demonstrate such a link in making its likelihood-of-inj ury determination in the sunset review at issue 
in this dispute. 
126. Mexico further argues that "[t]he Panel's finding that the [USDOC's] likelihood of dumping 
determination with respect to Mexican OCTG impor ts was WTO-inconsistent necessarily meant that 
the [USITC's] likelihood of injury dete rmination was also WTO-inconsistent."170  According to 
Mexico, "a WTO-consistent  determination of likely dumping is a legal predicate to a WTO-consistent 
determination of likely injury."171  Mexico posits that, "[a]s there was no WTO-consistent 
determination of likely dumping of OCTG fro m Mexico, the [USITC's] determination was 
concomitantly WTO-inconsistent."172   
127. Mexico offers no textual support for this cl aim.  We recognize that a WTO-consistent 
likelihood-of-dumping determinati on and a WTO-consistent determin ation of likelihood-of-injury are 
two pillars on which a WTO-consistent  sunset review determination unde r Article 11.3 rests.  If either 
of them is flawed, the sunset review determination w ould be inconsistent with Article 11.3.  But, if the 
likelihood-of-dumping determinati on is flawed, it does not follow that the likelihood-of-injury 
determination is  ipso facto  flawed as well.  The two inquiries are separate, regardless of whether 
they are carried out by the same or different aut horities in a Member's administrative system.  If an 
affirmative likelihood-of-dum ping determination is  later  found to be flawed, we fail to see why this 
should lead  automatically  to the conclusion that the likelihood-of-injury determination must also be 
regarded as flawed.  However, if a likelihood- of-injury determination rests upon a likelihood-of-
                                                      
170Mexico's appellant's submission, para. 52.  
171Ibid., para. 54.   
172Ibid. WT/DS282/AB/R 
Page 42  
 
dumping determination that is later found to be flawed, the former de termination may also be found to 
be WTO-inconsistent, after a pr oper examination of the facts of that determination.   
128. Mexico further argues that the rulings of th e Dispute Settlement Body (the "DSB") in  US – 
Oil Country Tubular Goods Sunset Reviews , "combined with the Panel's finding in [the case at hand], 
establish that there was no WTO-consistent basis for a finding of likely dumping for  any  Member 
that was included in the USITC's cumulative analysis."
173  The United States submits that Mexico's 
proposition relies on new facts and is therefore be yond the scope of Appellate Body review.  The 
United States adds that "not all of the likelihoo d of dumping determinations  Mexico references have 
even been subject to WTO dispute settlement."174 
129. We observe, first, that the DSB rulings in  US – Oil Country Tubular Goods Sunset Reviews  
cannot, in and of themselves, "establish" that there was no WTO-consistent basis for the USITC's 
likelihood-of-injury determination in the case be fore us now, even though there may be factual 
similarities between the two cases.175  More importantly, however, as we have explained above, 
Mexico's premise for this assertion, namely, that "a WTO-consistent determ ination of likely dumping 
is a legal predicate to a WTO-consis tent determination of likely injury"176, is not legally tenable. 
130. We turn next to Mexico's claim under Article 11 of the DSU with respect to causation.   
C. Claims under Article 11 of the DSU 
131. On appeal, Mexico submits that the Panel fa iled to conduct an "objective assessment of the 
matter" under Article 11 of the DSU by failing to address Mexico's argument that the "inherent" and 
"fundamental causation principles" of Article VI of the GATT 1994 and the  Anti-Dumping 
Agreement   apply to sunset reviews as well, regardless of the applicability of Article 3.5 to sunset 
reviews.177  Mexico submits that "[t]he Panel record shows that, despite Mexico's repeated 
explanation and elaboration, the Panel simply igno red [Mexico's] argument and failed to make any 
assessment of it."178  Mexico maintains that Article 11 of th e DSU "does not allow Panels to ignore 
                                                      
173Mexico's appellant's submission, para. 57. (original emphasis) 
174United States' appellee's submission, para. 32.   
175See Mexico's appellant's submission, table at para. 57.  
176Ibid., para. 54.   
177Ibid., para. 66.   
178Ibid., para. 67.  WT/DS282/AB/R 
 Page 43 
 
 
arguments in this manner, and then claim that an insufficient explanation or elaboration justifies a 
decision not to assess the argument."179 
132. The United States refers to the ruling of the Appellate Body in  Dominican Republic – Import 
and Sale of Cigarettes   and argues that "Mexico must show that the Panel's findings that Mexico had 
failed to substantiate its assertions were in e rror and prevented the Panel from making an objective 
assessment of the matter."180  According to the United States, Me xico has not done so.  The United 
States submits that "[t]he Panel objectively conclude d that Mexico did no more than make assertions 
about the relevance of Article VI of th e GATT 1994 and Article 11.1 of the Antidumping 
Agreement."181 
133. Mexico points to three passages in the Panel reco rd in which it allegedly provided arguments 
regarding its claim that the USITC was required to  establish the existence of a causal link between 
likely dumping and likely injury irrespective of the app licability of Article 3.5.  First, Mexico refers to 
a passage in its first written submission to the Panel.182  Secondly, it points to a passage in its closing 
statement following the first meeting with the Panel.183  Finally, Mexico points to its comments in 
response to the Panel's questioning on the re levance of the Appellate Body Report in  US – Oil 
Country Tubular Goods Sunset Reviews .184  In these passages, there are assertions, but we see no 
explanation or elaboration by Mexico that the cau sal link must be established in a sunset review 
irrespective of the applicability of Article 3.5, which the Panel found di d not apply to sunset 
reviews.185  We are, therefore, not convinced that the Pa nel erred in concluding that Mexico "did not 
explain or elaborate on its bare assertion that Artic le 11.1 of the AD Agreement and Article VI of the 
GATT 1994 establish 'inherent' causation requirements,  parallel to but independent of those in 
Article 3.5".186   
134. In any event, as the Appellate Body has stated in  Dominican Republic – Import and Sales of 
Cigarettes , "there is no obligation upon a panel to consider each and every argument put forward by 
                                                      
179Mexico's appellant's submission, para. 67.  
180United States' appellee's submission, para. 8 (referring to Appellate Body Report, Dominican 
Republic – Import and Sale of Cigarettes , para. 125). 
181Ibid., para. 16. 
182Mexico's appellant's submission, para. 42 (referring  to Mexico's first written submission to the Panel, 
para. 241).   
183Ibid., para. 43 (quoting Mexico's closing statement at the first meeting of the Panel).  
184Ibid., para. 46 (quoting Mexico's response to the Panel's request for comments on Appellate Body 
Report, US – Oil Country Tubular Goods Sunset Reviews ). 
185Panel Report, para. 7.117. 
186Ibid., para. 6.12 (quoted in Mexico's appellant's submission, para. 45). WT/DS282/AB/R 
Page 44  
 
the parties in support of their respective cases, so  long as it completes an objective assessment of the 
matter before it, in accordance with Article 11 of the DSU."
187  Moreover: 
So long as it is clear in a panel report that a panel  has reasonably 
considered a claim , the fact that a particular argument relating to that 
claim is not specifically addressed in the "Findings" section of a 
panel report will not, in and of itself, lead to the conclusion that that panel has failed to make the "objective assessment of the matter before it" required by Article 11 of the DSU.
188 (emphasis added) 
135. Based on our review of the Panel record, we ar e of the view that the Panel did "reasonably 
consider Mexico's claim", and that the Panel was not  under an obligation to address specifically in its 
findings Mexico's argument regarding "inherent" cau sation requirements, particularly when the Panel 
had reason to conclude that Mexico had not explai ned or elaborated upon its bare assertion in this 
respect.  
136. For all these reasons, we  find  that the Panel did not act incons istently with Article 11 of the 
DSU in its assessment of Mexico's arguments on causation.  
 
V. Cumulation in Sunset Reviews 
A. Introduction 
137. In its likelihood-of-injury determination, the USITC found that revocation of the anti-
dumping duty orders on OCTG from Argentina, Italy,  Japan, Korea, and Mexico would be likely to 
lead to a continuation or recurrence of injury.  In other words, the USITC based its determination that 
injury would be likely to continue or recur on the effects of imports from all the sources, and not only 
the effects of the imports from Mexico.  Mexico challenged the USITC's decision to conduct a 
cumulative assessment in the sunset review at issue.   
138. The Panel began its analysis by observing that "the text of Article 11.3 does not mention 
cumulation at all" and that other provisions of the  Anti-Dumping Agreement  also contain no "direct 
guidance on this matter".189  Referring to the Appellate Body Report in  US – Oil Country Tubular 
Goods Sunset Reviews , the Panel found that "the silence of the AD Agreement on the question of 
cumulation in sunset reviews is pr operly understood to mean that cu mulation is permitted in sunset 
                                                      
187Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes , para. 125 (footnote 
omitted). 
188Appellate Body Report, EC – Poultry , para. 135.  
189Panel Report, para. 7.147.   WT/DS282/AB/R 
 Page 45 
 
 
reviews."190  The Panel also found that cumulation, when  used in sunset reviews, does not need to 
satisfy the conditions of Article 3.3 of the  Anti-Dumping Agreement , because that provision "on its 
face establishes conditions for the use of cumulative analysis which apply only in original anti-
dumping investigations."191  As a result, the Panel concluded th at the USITC's cumulative analysis in 
the sunset review at issue was not incons istent with Articles 3.3 and 11.3 of the  Anti-Dumping 
Agreement .   
139. Mexico challenges this conclusion of the Panel on several grounds192, including that the Panel 
disregarded certain of Mexico's arguments and based its conclusion solely on its finding that 
Article 3.3 does not apply to sunset reviews.  We address these allegations of error in turn below, 
beginning with Mexico's assertion that the Panel act ed inconsistently with Article 11 of the DSU. 
B. Claims under Article 11 of the DSU 
140. In response to comments submitted by Mexico at the interim review stage of the Panel 
proceedings, the Panel stated that: 
Mexico requests that we make uns pecified changes to the report, 
asserting that the Panel "failed to address Mexico's third cumulation 
argument".  In this context, Mexico maintains that the Panel failed to 
make legal or factual findings regarding "inherent obligations" 
governing cumulation. ... While it is true that Mexico requested a 
finding in this regard, we found that Article 3.3 did not apply in 
sunset reviews, and that the re quirements regarding cumulation in 
that provision therefore did not apply.  Mexico did not explain or 
elaborate on its bare assertion that Article 11.3 somehow establishes "inherent" obligations for cumulation independent of those in Article 3.3.  In the absence of any basis for such findings, we did not 
consider it necessary to address this aspect of Mexico's argument.
193 
141. On appeal, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU by 
not making findings with respect to Mexico's argument that, regardless of the applicability of Article 3.3 to sunset reviews, "the USITC likely inju ry determination failed to satisfy the requirements 
applicable to the conduct of an y cumulative injury assessment."
194  Mexico submits that it "fully 
                                                      
190Panel Report, para. 7.148 (referring to Appellate Body Report, US – Oil Country Tubular Goods 
Sunset Reviews , para. 294).  
191Ibid., para. 7.150. (original emphasis;  footnote omitted) 
192See Mexico's appellant's submission, para. 70.  
193Panel Report, para. 6.19.  
194Mexico's appellant's submission, para. 73.  We refer to this argument below as Mexico's "third 
cumulation argument", which is the term that Mexico used  before the Panel.  In response to questioning at the 
oral hearing, Mexico further clarified that its thir d cumulation argument was that, as the USITC chose to 
cumulate, it was required to comply with the obligations set forth in Article 3.3 of the Anti-Dumping Agreement .   WT/DS282/AB/R 
Page 46  
 
explained the legal and factual basis to support its position" and refers, in th is respect, to several 
explanations it allegedly provided to the Panel, ar guing that these explanations were disregarded by 
the Panel.
195   
142. The United States, in contrast, submits that the Panel was correct in concluding that "Mexico 
had failed to 'explain or elaborate on its bare  assertion that Article 11.3 somehow establishes 
"inherent" obligations for cumulation i ndependent of those in Article 3.3.'"196  The United States adds 
that Mexico does not explain, even in its appella nt's submission, why conditions for cumulation exist 
"irrespective of the applicability of Article 3.3" to Article 11.3.197 
143. Based on our reading of the Panel record, we believe that the Panel "reasonably considered" 
Mexico's claim regarding cumulation and that it was not under an obligation to  address specifically in 
its findings Mexico's argument regard ing inherent cumulation requirements.198  As in the case of 
Mexico's allegation with regard to causation, we see no reason to disturb the Panel's conclusion that 
"Mexico did not explain or elaborate on its bare  assertion that Article 11.3 somehow establishes 
'inherent' obligations for cumulation i ndependent of those in Article 3.3."199  We are therefore not 
persuaded that the Panel acted inconsistently with Article 11 of the DSU in its assessment of Mexico's 
arguments on cumulation. 
C. Whether the Panel Erred in Its Interpreta tion and Application of Article 11.3 with 
Respect to Cumulation 
1. Was the Panel's Finding Regarding C onsistency with Article 11.3 Based 
Solely on Its Finding that Article 3.3 Does Not Apply to Sunset Reviews?  
144. We turn now to Mexico's allegation that the Pane l erred in its interpretation and application of 
Article 11.3 of the  Anti-Dumping Agreement   with respect to cumulation.  
145. Mexico contends that the Panel "simply assume d" that, "because ... Article 3.3 does not apply 
to sunset reviews, the USITC's cumulative injury determination c ould not be inconsistent with 
Article 11.3."200  Mexico submits that the Panel erred b ecause it "wrongly assumed that its findings 
regarding two of Mexico's cumulation arguments we re sufficient to address Mexico's separate and 
                                                      
195Mexico's appellant's submission, para. 73 and footnote 52 thereto. 
196United States' appellee's submission, para. 23 (quoting Panel Report, para. 6.19). 
197Ibid. (quoting Mexico's appellant's submission, para. 83). 
198See  supra , para. 134.  
199Panel Report, para. 6.19.  
200Mexico's appellant's submission, para. 77.   WT/DS282/AB/R 
 Page 47 
 
 
wholly independent argument that was not linked to Article 3.3."201  In addition, Mexico submits that 
"the Panel did not evaluate Mexico's arguments in terms of the requirements of Article 11.3."202 
146. We observe, first, that the Panel did not "simply assume" that, "because ... Article 3.3 does 
not apply to sunset reviews, the USITC's cumulativ e injury determination co uld not be inconsistent 
with Article 11.3."203  Rather, the Panel found that the text of Article 11.3 of the  Anti-Dumping 
Agreement   does not speak to whether cumulation is permitted beyond the context of original 
investigations and noted that other provisions of the  Anti-Dumping Agreement   contain no "direct 
guidance" on this matter.204  The Panel then disagreed with Mexi co's view that "to allow cumulation 
in sunset reviews ... would be inconsistent w ith the plain meaning and object and purpose of 
Article 11.3."205  The Panel further emphasized that "the silence of the AD Agreement on the question 
of cumulation in sunset reviews is properly understo od to mean that cumulation is permitted in sunset 
reviews."206  In its analysis of Article 11.3 of the  Anti-Dumping Agreement , the Panel also addressed 
and rejected Mexico's argument that the reference in that provision to " any  anti-dumping duty", in the 
singular, indicates an intent not to authorize cumula tion in sunset reviews.  In the Panel's view, the 
reference in Article 11.3 to " any  anti-dumping duty" has "both singular and plural meanings", and it 
could therefore apply to an anti-dumping measure covering more than one country.207  The Panel also 
found no support for Mexico's assertion that the object and purpose of "the sunset provisions, or the AD Agreement as a whole, suggests that cumulation is prohibited."
208  The Panel stated that, "[e]ven 
assuming Mexico were correct in asserting that the object and purpose of Article 11.3 is to 'ensure that 
anti-dumping measures would not continue in perpetui ty', a cumulative analysis does not vitiate that 
object and purpose."209 
147. In the light of this extensive reasoning by the Panel, we do not agree with Mexico that the 
Panel "simply assumed" that, "because ... Article 3.3 does not apply to sunset reviews, the USITC's 
cumulative injury determination could no t be inconsistent with Article 11.3."210  We also do not agree 
with Mexico's assertion that "the Panel did not evaluate Mexico's arguments in terms of the 
                                                      
201Mexico's appellant's submission, para. 77.  
202Ibid. 
203Ibid. 
204Panel Report, para. 7.147.  
205Ibid. 
206Ibid., para. 7.148.  
207Ibid., para. 7.149 (original emphasis) (referring to The New Shorter Oxford English Dictionary , 
L. Brown (ed.) (Clarendon Press, 1993).  
208Ibid.  
209Ibid.  
210Mexico's appellant's submission, para. 77.  WT/DS282/AB/R 
Page 48  
 
requirements of Article 11.3."
211  Clearly it did.  The Panel's analysis is based on the text of that 
provision, including its context and the object and purpose of the  Anti-Dumping Agreement . 
2. "Threshold Finding" Regarding Simu ltaneous Presence of Subject Imports  
148. Mexico suggests that the USITC was under a sep arate obligation to "ensure that cumulation 
was appropriate in light of the conditions of competition".212  To do that, the USITC was, in Mexico's 
view, "required" to make "a threshold finding th at the subject imports would be simultaneously 
present in the U.S. market".213  According to Mexico, the Panel erred in declining "to examine and 
make a finding on this issue".214   
149. The United States argues that Mexico "fails to identify where Mexico requested such a 
finding, or where the Panel declined to make such a finding."215  In any event, the Panel found that the  
Anti-Dumping Agreement   "simply does not prescribe a methodology for cumulation in sunset 
reviews".216  Hence, according to the United States, "Me xico's contention that the Panel erred in 
failing to determine whether a sunset review under Article 11.3 requires a threshold finding of any 
kind is just wrong."217  According to the United States, "[t] he Panel implicitly found that no such 
thresholds exist."218 
150. Mexico offers no textual support for its propos ition that the USITC was required, in making 
its sunset review determination,  to set out a "threshold finding"219 regarding the simultaneous 
presence of subject imports.  On its face, Article 11. 3 makes no mention of such a "threshold finding".  
The immediate context of Article 11.3, in paragraphs 1, 2, 4, and 5 of Article 11, also does not reveal 
any such requirement.  Even Article 3.3, which is "the only provision in the  Anti-Dumping 
Agreement  that specifically addresses the practice of cumulation"220 in an original investigation, does 
not require investigating authorities to make  a threshold finding regarding cumulation. 
                                                      
211Mexico's appellant's submission, para. 77.  
212Ibid., p. 23, heading II.B.2.c.i. 
213Ibid. 
214Ibid., para. 85.  
215United States appellee's submission, para. 57.  
216Ibid., para. 58.  
217Ibid. 
218Ibid. 
219Mexico's appellant's submission, para. 85.  
220Appellate Body Report, EC – Tube or Pipe Fittings , para. 108.   WT/DS282/AB/R 
 Page 49 
 
 
151. As the Appellate Body stated in  US – Corrosion-Resistant Steel Sunset Review : 
... Article 11.3 does not expressly prescribe any specific methodology 
for investigating authorities to use in making a likelihood determination in a sunset review.  Nor does Article 11.3 identify any particular factors that authorities must take into account in making such a determination.
221 (footnote omitted) 
152. Given that Article 11.3 does not prescribe any pa rticular methodology to be followed by an 
investigating authority in conducting a sunset revi ew, we fail to see why the USITC was required, 
under that provision, to follow the specific step of making a "threshold finding" on the simultaneous 
presence of subject imports before resorting to cumulation. 
153. This is not to say that it is never necessar y for an investigating authority, performing a 
cumulative analysis of injury caused by imports fro m all sources, to examine whether imports are "in 
the market together and competing against each other".222  In order to arrive at a reasoned and 
adequate conclusion, an examination of whether im ports are in the market together and competing 
against each other may, in certain cases, be need ed in a likelihood-of-injury determination where an 
investigating authority chooses to cumulate the impor ts from several countries.  But the need for such 
an examination flows from the particular facts and circumstances of a given case and not from a legal requirement under Article 11.3. 
3. Whether the USITC Had a Sufficient Fact ual Basis to Find that the Subject 
Imports Would Be Simultaneously Present in the Domestic Market    
154. Mexico contends that "nowhere in [the US ITC's] analysis is there positive evidence 
demonstrating that imports from Mexico, Argentina, Italy, Korea, and Japan would be present in the 
United States market at the same time ... if the order were revoked."223  According to Mexico, 
information from the time of the original inves tigation "cannot replace the need for a prospective 
analysis of what is likely to happen if the order were revoked."224  Moreover, in Mexico's view, "the 
fact that imports may have been simultaneously presen t in the U.S. market at the time of the original 
investigation is not positive evidence that such impor ts would be likely to be simultaneously present 
in the U.S. market in the event of revocation of the order."225 
                                                      
221Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 123. 
222Mexico's second written submission to the Panel,  para. 192 (quoted in Mexico's appellant's 
submission, para. 82). 
223Mexico's appellant's submission, para. 86.  
224Ibid., para. 87 (referring to Appellate Body Report,  US – Carbon Steel , para. 88). 
225Ibid. WT/DS282/AB/R 
Page 50  
 
155. The United States argues that Mexico's "conclu sion does not withstand the application of 
logic."
226  According to the United States, "[i]f imports  were simultaneously present before the order 
and imports were simultaneously present after the or der, it is unclear how Mexico arrives at the 
conclusion that imports would  not  be simultaneously present if the order were revoked."227   
156. As we have stated above, an investigating authority is  not  required, under Article 11.3 of the  
Anti-Dumping Agreement , to make a separate threshold findi ng regarding simultaneous presence of 
imports.  We also note that "simultaneous presence" was only one of several factors that the USITC 
examined in deciding to conduct a cumulative ass essment of imports.  As we understand it, the 
USITC's decision to cumulate was based mainly on an analysis of four factors:  (i) whether subject imports from any of the subject countries were lik ely to have an adverse impact on the domestic 
industry;  (ii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico, and the domestic 
like products, are fungible;  (iii) whether the imports from Argentina, Italy, Korea, Japan, and Mexico, 
and the domestic like products, would likely be sold through similar channels of distribution if the 
orders were revoked;  and (iv) wh ether the imports from all the subject countries and the domestic like 
products would be sold in the same geographic mark ets and simultaneously be present in the market if 
the orders were revoked. 
157. With respect to simultaneous presence and sales in the same geographic market, the USITC 
found that "[e]vidence gathered ... indicates that most large distributors are headquartered in the 
Houston, Texas, area, though they may have s upply depots in other parts of the country."
228  T h e  
USITC further found that "[t]here is some divisi on of distribution by geographic area, but most 
distributors sell nationwide."229  Moreover, "[i]mporters simila rly reported selling throughout the 
continental United States."230  We fail to see why the USITC could not rely on this information in the 
context of examining the appropriate ness of cumulating subject imports. 
158. Mexico suggests that the United States did not conduct "a prospective analysis of what is 
likely to happen if the order were revoked".231  We disagree.  In our view, the information collected 
by the USITC to support its conclusion regard ing simultaneous presence of imports, which we 
                                                      
226United States appellee's submission, para. 27.  
227Ibid. (original emphasis) 
228Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico—Investigation 
Nos. 701-TA-364 and 731-TA-711 and 713-616 (Review):  Determination and Views of the Commission, 
USITC Publication 3434 (June 2001) (Exhibit MEX-20 s ubmitted by Mexico to the Panel) (the "USITC's 
Sunset Determination"), p. 13. (footnote omitted) 
229USITC's Sunset Determination, p. 13. 
230Ibid. 
231Mexico's appellant's submission, para. 87 (referring to Appellate Body Report, US – Carbon Steel , 
para. 88).  WT/DS282/AB/R 
 Page 51 
 
 
acknowledge relates to  current  market conditions, is relevant as a basis to draw reasoned conclusions 
regarding likely  future  market conditions and to determine "wha t is likely to happen if the order were 
revoked." The fact that the USITC referred, for inst ance, to data showing that most distributors and 
importers sell "nationwide", does not, taken alone, mean that the USITC's assessment was not "prospective".
232  We recall the Appellate Body's finding in  US – Oil Country Tubular Goods Sunset 
Reviews  that "[a] sunset review determination, alth ough 'forward-looking', is to be based on existing 
facts as well as projected facts."233  As we see it, in this case, the USITC conducted such a prospective 
analysis based on inferences drawn from the evidence on the record.   
159. For all these reasons, we do not agree with Me xico that the USITC's approach "does not 
reflect a prospective analysis, based on positive evid ence, of whether imports from the five cumulated 
countries were likely to be simultaneously present in the market in the event of termination" of the 
anti-dumping duty order.234  As the Appellate Body found in  US – Oil Country Tubular Goods Sunset 
Reviews , "it does not follow from the fact that sunset reviews evaluate likelihood  of injury that an 
investigating authority will not have an evidentia ry basis for considering whether cumulation is 
appropriate in a given case."235 
4. The Standard Applied by the USITC  
160. Regarding the standard applied by the US ITC for determining simultaneous presence of 
imports in the domestic market, Mexico points to the following USITC findings: 
Nothing in the record of these review s suggests that if the orders are 
revoked subject imports and the domestic like product  would not be 
simultaneously   present in the domestic market. 
Therefore , we conclude that there likely would be a reasonable 
overlap of competition   between the subject imports and the domestic 
like product, and among the subject imports themselves, if the orders are revoked.
236 (emphasis added by Mexico;  footnote omitted) 
161. According to Mexico, these statements demonstr ate that the USITC "did not apply the legal 
standard required by Article 11.3 in connection w ith its assessment of likelihood of simultaneity."237  
                                                      
232Mexico's appellant's submission, para. 87. 
233Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 299. (footnote 
omitted) 
234Mexico's appellant's submission, para. 91.   
235Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 299. (original 
emphasis) 
236Mexico's appellant's submission, para. 93 (quoting USITC's Sunset Determination, p. 14).  
237Ibid., para. 94.  WT/DS282/AB/R 
Page 52  
 
In Mexico's view, "[b]y requiring a demonstration that the imports 'would not' be simultaneously in 
the market, the [USITC] used a standard that is in consistent with Article 11.3 of the  Anti-Dumping 
Agreement."
238  Mexico adds that "the mere absence of contradictory information is not positive 
evidence of what is likely to happen."239 
162. Referring to the Appellate Body Report in  US – Oil Country Tubular Goods Sunset Reviews , 
the United States argues that there is no "likelihood of simultaneity" standard, as Mexico suggests.240  
The United States adds that the USITC determinati on focused on the existence of simultaneity before 
and after the order was imposed, and, in the absen ce of contrary evidence, it was reasonable for the 
USITC to conclude that "simultaneous presence of the subject imports would continue if the order 
were revoked."241   
163. Mexico has misunderstood the Appellate Body Report in  US – Oil Country Tubular Goods 
Sunset Reviews .  In that case, the Appellate Body found that "the 'likely' standard of Article 11.3 
applies to the overall determinations regarding du mping and injury" and that "it need not necessarily 
apply to each factor considered in rendering th e overall determinations  on dumping and injury."242  
Even assuming, arguendo , that it might apply to the USITC's "assessment of likelihood of 
simultaneity"243, we do not agree with Mexico that the USITC used a standard that is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement   "[b]y requiring a demonstra tion that the imports 'would 
not' be simultaneously in the market".244  Although the USITC made reference to the fact that nothing 
in the Panel record indicates that the products w ould not be simultaneously present, it cited other 
reasons as well.  As noted above, the USITC found, inter alia , that "[e]vidence gathered ... indicates 
that most large distributors are headquartered in the Houston, Texas, area, though they may have supply depots in other parts of the country" and that, although "[t]here is some division of distribution 
by geographic area, ... most distributors sell nationwide."
245  The USITC further observed that 
"[i]mporters similarly re ported selling throughout the continental United States."246   
                                                      
238Mexico's appellant's submission, para. 94.  
239Ibid. (footnote omitted) 
240United States' appellee's submission, para. 60 (referring to Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 323). 
241Ibid. 
242Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 323 (quoted in 
United States' appellee's submission, para. 60). 
243Mexico's appellant's submission, para. 94.  
244Ibid. 
245USITC's Sunset Determination, p. 13.   
246Ibid.  WT/DS282/AB/R 
 Page 53 
 
 
164. We understand Mexico to argue that the USIT C's ultimate conclusion was based on no more 
than the USITC's analysis of "simultaneous presence".  As noted earlier, this does not appear to be the 
case.247  Instead, as we understand it, the USITC used  its analysis of "fungibility", "channels of 
distribution", and "simultaneous presence" to suppor t its ultimate conclusion that "there likely would 
be a reasonable overlap of competition between the subject imports and the domestic like product" if 
the orders were revoked.248  The USITC based this analysis on  data relating to current market 
conditions and on inferences it drew from that data.  We do not, therefore, agree with Mexico that the 
USITC had only a "mere absence of contradictory information" upon which to rely.249 
5. Alleged Requirement to Identify a Ti me-frame within which Imports Would 
Be Simultaneously Present  
165. We turn next to Mexico's contention that th e USITC's likelihood-of-injury determination is 
inconsistent with Article 11.3 "because [the USIT C] failed to identify a time-frame within which 
subject imports would be simultaneously present in the U.S. market and the corresponding likely 
injury would take place."250   
166. On its face, Article 11.3 does not establish a re quirement for an investigating authority to 
specify the time-frame within which the "simu ltaneous presence" of subject imports and the 
corresponding likely injury would occur.  As the Appellate Body found in  US – Oil Country Tubular 
Goods Sunset Reviews , "the mere fact that the timeframe of an  injury analysis is not presented in a 
sunset review determination is not suffi cient to undermine that determination."251  The Appellate 
Body noted in that case that a determination of lik elihood-of-injury "can be properly reasoned and rest 
on a sufficient factual basis even though the timefra me for the [likelihood-of-injury] determination is 
not explicitly mentioned."252  As long as a likelihood-of-injury determination rests on a sufficient 
factual basis, the mere fact that an investiga ting authority does not specify the time-frame within 
which the "simultaneous presence" of subject imports  and the corresponding injury would be likely to 
occur, does not, in our view, undermine that determination.  Therefore, we do not agree with Mexico that the USITC's likelihood-of-injury determinati on is inconsistent with Article 11.3 of the  Anti-
Dumping Agreement   because the USITC did not indicate the time period that it considered to be 
applicable for its likelihood-of-injury determination.   
                                                     
 
247Supra , para. 156 . 
248USITC's Sunset Determination, p. 14. 
249Mexico's appellant's submission, para. 86.  
250Ibid., p. 27, heading II.B.2.c.iv.   
251Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 364.  
252Ibid. WT/DS282/AB/R 
Page 54  
 
6. Applicability of Article 3.3 of the  Anti-Dumping Agreement
 
167. We now return to the merits of the "third cumulation argument" of Mexico.253  Mexico argues 
that, having "decided to cumulate Mexican imports with imports from the other four countries that 
were cumulated in the original investigation", the USITC "was required to do so consistently with the 
requirements of Article 3.3", regardless of whethe r that provision "appl[ies] directly to sunset 
reviews".254  Mexico purports to find support for its position in the Appellate Body Report in  US – 
Corrosion-Resistant Steel Sunset Review , where the Appellate Body stated that, "should investigating 
authorities choose to rely upon dumping margins in making their likelihood determination, the 
calculation of these margins must conform to the disciplines of Article 2.4."255  We understand 
Mexico to suggest that what is relevant for cal culation of dumping margins is also relevant for 
determination of injury.  
168. The United States refers to the finding of the Appellate Body in  US – Oil Country Tubular 
Goods Sunset Reviews   that Article 3.3 of the  Anti-Dumping Agreement  does not apply to sunset 
reviews.  The United States emphasizes that, "if Article 3.3 does not apply, then neither do its conditions."
256   
169. Article 3.3 of the  Anti-Dumping Agreement   provides, in relevant part, that: 
Where imports of a product from more than one country are 
simultaneously subject to anti-dumping investigations, the investigating authorities may cumu latively assess the effects of such 
imports only if they determine that ... a cumulative assessment of the 
effects of the imports is appropriate in light of the conditions of competition between the imported pr oducts and the conditions of 
competition between the imported products and the like domestic 
product. 
170. The Appellate Body has previously found that Ar ticle 3.3 "speaks to the situation '[w]here 
imports of a product from more than one  country are simultaneously subject  to anti-dumping 
investigations '"
257;  that the "text of Article 3.3 plainly limits its applicability to original 
                                                      
253See  supra , footnote 194. 
254Mexico's appellant's submission, para. 103 (quoting Panel Report, para. 7.150). 
255Ibid., para. 101 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 127). 
256United States' appellee's submission, para. 22 (referring to Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 301). 
257Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 294. (emphasis 
added)  WT/DS282/AB/R 
 Page 55 
 
 
investigations"258;  and that "the conditions of Article  3.3 do not apply to likelihood-of-injury 
determinations in sunset reviews."259  Moreover, the Appellate Body has observed that "original 
investigations and sunset reviews are distinct processes with different purposes.  The disciplines 
applicable to original investigations cannot, th erefore, be automatically imported into review 
processes."260  It is clear from these statements that Article 3.3 does not apply  per se  in sunset 
reviews under Article 11.3. 
171. We do not, however, suggest that, when an au thority chooses to cumulate imports in a 
likelihood-of-injury determination under Article 11.3, it is never necessary for it to determine whether 
such a cumulative assessment is appropriate in the li ght of the conditions of competition in the market 
place.  In particular cases, a cumulative assessment of the effects of the imports may be found to be inappropriate and, therefore, inconsistent with th e fundamental requirement that a determination rest 
on a sufficient factual basis and reasoned and adequate conclusions.
261  However, this fundamental 
requirement derives from the obligations under Article 11.3 itself, and not from the conditions specified in Article 3.3. 
172. Referring to the Appellate Body Report in  US – Corrosion-Resistant Steel Sunset Review , 
Mexico argues that, having "decided to cumulate Me xican imports with imports from the other four 
countries that were cumulated in the original investigation", the USITC "was required to do so consistently with the requirements of Article 3.3".
262  We note, however, that the Appellate Body 
found in  US – Oil Country Tubular Goods Sunset Reviews   that the "text of Article 3.3 plainly limits 
its applicability to original investigations"263;  and that "the conditions of Article 3.3 do not apply to 
likelihood-of-injury determinations in sunset reviews."264  The fact that an investigating authority has 
not undertaken all the analyses detailed in Article 3.3 is not, by itself, sufficient to undermine a 
determination under Article 11.3.   
173. In the light of these considerations, we  uphold   the Panel's findings, in paragraphs 7.150, 
7.151, and 8.8 of the Panel Report, that the US ITC's decision to conduct a cumulative assessment of 
                                                      
258Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 301.   
259Ibid., para. 302.   
260Ibid., para. 359 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
paras. 106-107;  and Appellate Body Report, US – Carbon Steel , para. 87). (footnote omitted) 
261See Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 284.   
262Mexico's appellant's submission, para. 103, and footnote 80 to para. 101 (referring to Appellate Body 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 127). 
263Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 301.   
264Ibid., para. 302.   WT/DS282/AB/R 
Page 56  
 
imports in making its likelihood- of-injury determination was not inconsistent with Articles 3.3 
and 11.3 of the  Anti-Dumping Agreement .   
 
VI. Margins of Dumping in Sunset Reviews 
174. Having found that the USDOC's likelihood-of-dum ping determination was inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement
265, the Panel exercised judicial economy with regard to 
Mexico's claims against that determination under Ar ticle 2 of that Agreement.  The Panel added that, 
"in any event, as it is clear that USDOC did not rely on historical dumping margins in this case, but solely on import volumes, we would not have made any findings concerning Article 2 even if we had 
reached a different conclusion on the adequacy of USDOC's consideration of the evidence."
266  In this 
respect, the Panel referred to th e Appellate Body Report in  US – Corrosion-Resistant Steel Sunset 
Review , where the Appellate Body  stated that: 
... investigating authorities did not have to "calculate or rely on 
dumping margins in determining th e likelihood of continuation or 
recurrence of dumping.  However, should investigating authorities 
choose to rely upon dumping margins in making their likelihood 
determination, the calculation of these margins must conform to the 
disciplines of Article 2.4."267 
175. The Panel further explained that: 
... with respect to Mexico's claims  concerning the margin of dumping 
reported to the USITC as the margin likely to prevail, we recall that ... USDOC did not rely on this margin  in making its determination of 
likelihood of continuation or recurre nce of dumping.  We can find no 
provision of the AD Agreement, and Mexico has cited none, that 
requires such "reporting" of a margin likely to prevail—this appears 
to be an element of US law that is not derived from any element of 
the AD Agreement.  Therefore, we do not consider it either necessary or appropriate to address Mexico's  claims under Articles 2 and 6 of 
the AD Agreement regarding the margin of dumping reported to the 
USITC.
268   
176. On appeal, Mexico argues that the Panel acted inconsistently with Article 11 of the DSU in 
exercising judicial economy with regard to Mexico's claims under Article 2 of the  Anti-Dumping 
Agreement .  Mexico alleges that, in doing so, "the Panel reasoned that, because the Anti-Dumping 
                                                      
265Panel Report, para. 7.80.  
266Ibid., para. 7.81.  
267Ibid., para. 7.82 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 127). 
268Ibid., para. 7.83.   WT/DS282/AB/R 
 Page 57 
 
 
Agreement does not require authorities to determin e and report a margin likely to prevail, an 
authority's determination of a margin likely to prevail cannot contravene the Anti-Dumping 
Agreement."269   
177. The United States agrees with the Panel's conclusion that the  Anti-Dumping Agreement   does 
not require investigating authorities to determine or  consider a "margin likely to prevail" in the 
context of a likelihood-of-dumping determination.  In this respect, the United States notes that "[t]he 
Appellate Body has recognized that there is ' no obligation under Article 11.3 for investigating 
authorities to calculate or rely on dumping margins in determining the likelih ood of continuation or 
recurrence of dumping.'"270  Accordingly, the United States agrees  with the Panel that, "[i]n a case 
such as this one, where the United States acknowledg es that USDOC explicitly relied solely on import 
volumes in making its determination, ... there can be no basis for a finding of violation of Article 2" of 
the  Anti-Dumping Agreement .271 
178. In our view, the Panel did not commit an erro r of law in deciding to exercise judicial 
economy with regard to the issue of whether the US DOC determination was cons istent with Article 2, 
as it had already found that determination to be inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .  In  Canada – Wheat Exports and Grain Imports , the Appellate Body found that the 
practice of judicial economy "allows a panel to re frain from making multiple findings that the same 
measure is  inconsistent  with various provisions when a single, or a certain number of findings of 
inconsistency, would suffice to resolve the dispute."272  Mexico has not explained why an additional 
finding on Mexico's claim under Article 2 of the  Anti-Dumping Agreement   is necessary to resolve 
the dispute.273  And we find no such need.274 
179. In any event, we note that Mexico's argument s are premised on the assumption that the United 
States "used" a dumping margin in the cont ext of the sunset review at issue.275  Thus, Mexico submits, 
for instance, that the USDOC's "reliance on a flawed  margin for purposes of its likelihood of dumping 
determination, and its reporting of a flawed marg in of dumping likely to prevail to the [USITC], 
                                                      
269Mexico's appellant's submission, para. 132.  
270United States' appellee's submission, para. 69 (quoting Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 127). 
271Panel Report, para. 7.82 (quoted in United States' appellee's submission, para. 70). 
272Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 133. (original emphasis;  
footnote omitted) 
273See Appellate Body Report, Australia – Salmon , para. 223. 
274For the same reason, we also do not find it n ecessary to consider Mexico's arguments, in 
paras. 119-126 of its appellant's submission, related to Articles 1 and 18.3 of the  Anti-Dumping Agreement .  
275Mexico's response to questioning at the oral hearing.  See also Mexico's appellant's submission, 
para. 120. WT/DS282/AB/R 
Page 58  
 
tainted both the [USDOC's] and the [USITC's] likelihood determinations."
276  Although the USDOC 
"calculated" dumping margins for OCTG, the Panel found that "it is clear that USDOC  did not rely  
on historical dumping margins ... , but solely on import volumes"277 in making its determination of 
likelihood of continuation or recurre nce of dumping in the sunset review at issue.  Hence, we do not 
see how a margin that the USDOC did not "rely upon" could taint the USITC's and the USDOC's 
determinations in the context of the OCTG sunset review at issue. 
180. Moreover, the Panel's finding that the USDOC did  not  rely on historical dumping margins is 
a factual finding.  No reason was given to us why we should "interfere" 278 with this finding by the 
Panel.  Nor has Mexico pointed to any evidence in the Panel record to suggest that the USITC relied 
on or otherwise factored in the margin of dumping likely to prevail that was reported to it by the USDOC.  Also, the Panel Report contains no factual findings regarding this issue.  
181. As a separate matter, we refer to Mexico's ch aracterization of the finding in paragraph 127 of 
the Appellate Body Report in  US – Corrosion-Resistant Steel Sunset Review .  According to Mexico, 
the Appellate Body clarified in that appeal that , when an investigating authority "uses a specific 
methodology that the Anti-Dumping Agreement does not require, the authority must not apply that 
methodology in a manner that otherwis e conflicts with the Agreement."
279  In fact, the Appellate Body 
found in  US – Corrosion-Resistant Steel Sunset Review  that, "should investigating authorities  
choose to rely upon  dumping margins [in the context of a sunset review determination], the 
calculation of these margins must conform to the disciplines of Article 2.4."280  Thus, the Appellate 
Body Report in  US – Corrosion-Resistant Steel Sunset Review  does not stand for the proposition that 
a WTO-inconsistent methodology used  for the calculation of a dumping margin will, in and of itself, 
taint a sunset review determinati on under Article 11.3.  The only way the use of such a methodology 
would render a sunset review dete rmination inconsistent with Artic le 11.3 is if the investigating 
authority  relied upon  that margin of dumping to support its likelihood-of-dumping or likelihood-of-
injury determination. 
182. In our view, it has not been established that the Panel acted inconsistently with Article 11 of 
the DSU in not addressing Mexico's claims under Article 2 of the  Anti-Dumping Agreement .  
                                                      
276Mexico's appellant's submission, para. 125.   
277Panel Report, para. 7.81. (emphasis added) 
278See Appellate Body Report, EC – Bed Linen  (Article 21.5 – India) , para. 170. 
279Mexico's appellant's submission, paras. 114-115 (referring to Appellate Body Report, US – 
Corrosion-Resistant Steel Sunset Review , para. 127).  
280Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127. (emphasis added)  WT/DS282/AB/R 
 Page 59 
 
 
VII. The "Legal Basis" for Continuing Anti-Dumping Duties 
183. The Panel found, in paragraphs 7.80 and 8.2 of the Panel Report, that the USDOC acted 
inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in its review of the anti-dumping 
duty order on OCTG from Mexico.  The United Stat es has not appealed this finding.  However, 
Mexico argues that the Panel did not fulfil its obligations under Article 11 of the DSU because it 
failed to find, in addition to its findings in paragr aphs 7.80 and 8.2 of the Panel Report, that "the 
United States had no legal basis to continue its  anti-dumping measure on OCTG from Mexico beyond 
its scheduled expiration date, i.e., five years from its imposition."281  Mexico requests that we make 
such a finding.282  In response to questioning at the oral hearing, Mexico clarified that it does not 
request us to make a suggestion regarding impl ementation pursuant to the second sentence of 
Article 19.1 of the DSU. 
184. As we understand it, the finding that Mexico asked  the Panel to make, a nd is requesting us to 
make, is another way of stating that the United Stat es acted inconsistently w ith Article 11.3 of the  
Anti-Dumping Agreement , with the added consequence that the anti-dumping duty order at issue must 
therefore be terminated immediately.  In our view, it was within the Panel's discretion to decide whether or not to adopt the formulation proposed by Mexico in making its findings. 
185. Mexico contends that, if a Member has acted  inconsistently with Article 11.3 of the  Anti-
Dumping Agreement  in conducting a sunset review of an anti-dumping duty, the Member has no 
choice but to terminate the duty immediately.
283  According to Mexico, if a new sunset review is 
undertaken in such a case, it would necessarily entail a further inconsistency with Article 11.3 because 
that provision imposes a five-year time-lim it on the continuation of anti-dumping duties.284  
Therefore, Mexico submits that, upon adoption of th e Panel Report, the only way for the United States 
to implement the recommendations and rulings of the DSB regarding the anti-dumping duties on OCTG from Mexico would be to te rminate those duties immediately.
285 
186. Mexico is correct that Article 11.3 of the  Anti-Dumping Agreement  imposes an obligation on 
Members to terminate anti-dumping duties at the e nd of five years, except where they choose to 
conduct a sunset review as envisaged by that pr ovision, or, having conducted such a review, they 
determine that the expiry of the duty would be likel y to lead to continuation or recurrence of dumping 
                                                      
281Mexico's appellant's submission, para. 134 (referring to Panel Report, para. 6.22). 
282Ibid., para. 146.   
283Ibid., para. 139. 
284Ibid., para. 142. 
285Ibid., para. 145. WT/DS282/AB/R 
Page 60  
 
and injury.  The Appellate Body elaborated on these requirements in  US – Corrosion-Resistant Steel 
Sunset Review , as Mexico indicates in its submission.
286   
187. The fact that the USDOC acted inconsistently with the requirements of Article 11.3 in its 
likelihood-of-dumping determina tion does not necessarily imply that the underlying anti-dumping 
duties must be terminated immediately.  The mere fact that Article 11.3 sets a temporal limit for termination of an anti-dumping duty, in the abse nce of a review leading to a WTO-consistent 
determination under that Article fo r its continuation, does not affect the other provisions of the DSU 
governing the implementation of the recommendations and rulings of the DSB, including, inter alia , 
the means of implementation and the reasonable period of time accorded to the implementing 
Member for implementation.   
188. Mexico submits that, in declining to make a finding regarding the absence of a legal basis for 
the anti-dumping duties on OCTG from Mexico, the Pa nel failed to make "such other findings as will 
assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements", as required by Article 11 of the DSU.
287  Mexico asserts that the Panel had to make the 
finding requested by Mexico to enable the DSB to make "sufficiently precise recommendations and 
rulings" in relation to implementation.288  In this context, Mexico relies, in particular, on the Appellate 
Body Report in  EC – Export Subsidies on Sugar .289  
189. The facts of the present appeal are quite different from those in  EC – Export Subsidies on 
Sugar .  First, the Appellate Body's finding of non- compliance with Article 11 of the DSU in that 
dispute related to the obligation of panels to make a recommendation under Article 4.7 of the  
Agreement on Subsidies and Countervailing Measures  (the " SCM Agreement ") regarding the time 
period for withdrawal of a prohibited subsidy.290  T h e   Anti-Dumping Agreement   has no provision 
similar to Article 4.7 of the  SCM Agreement  that panels must follow.  The applicable provision in the 
present dispute regarding suggestions for implementa tion is the second sentence of Article 19.1 of the 
                                                      
286Mexico's appellant's submission, para. 137 (quoting Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 104). 
287Ibid., para. 140. 
288Ibid., paras. 140 and 145 (quoting Appellate Body Report, US – Wheat Gluten , para. 180).  
289Ibid., para. 141 (quoting Appellate Body Report, EC – Export Subsidies on Sugar , paras. 328 
and 331). 
290Article 4.7 of the  SCM Agreement   provides: 
If the measure in question is found to be a prohibited subsidy, the panel  
shall   recommend that the subsidizing Member withdraw the subsidy 
without delay.  In this regard, the panel shall specify in its recommendation 
the time period within which the measure must be withdrawn. (emphasis 
added)  WT/DS282/AB/R 
 Page 61 
 
 
DSU291, which Mexico does not rely on in this appeal, and which, in any event, does not oblige panels 
to make such a suggestion.  Secondly, the panel's error in  EC – Export Subsidies on Sugar  was in 
wrongly exercising judicial economy—that is, failing to  rule on a claim before it.  The Panel in the 
present dispute did not exercise judicial economy with respect to Mexico's claim that the USDOC acted inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in the sunset review of the 
anti-dumping duty order on OCTG from Mexico.  On  the contrary, as noted above, the Panel upheld 
Mexico's claim of inconsistency.
292 
190. For these reasons, we  find  that the Panel did not fail to comply with Article 11 of the DSU in 
declining to make a specific finding that the Unite d States had no legal basis to continue the anti-
dumping duties on OCTG from Mexico beyond the five-year  period established by Article 11.3 of the  
Anti-Dumping Agreement . 
 
VIII.  Consistency of the Sunset Policy Bulletin "As Such" 
191. The United States appeals the Panel's finding, in paragraphs 7.64 and 8. 1 of the Panel Report, 
that Section II.A.3 of the SPB is, as such , inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .  The United States contends that the Panel failed to apply the correct standard in its 
assessment of the consistency of the SPB, as such, w ith Article 11.3, and, in doing so, the Panel also 
failed to "make an objective assessment of the matter  before it, including an objective assessment of 
the facts of the case", as required by Article 11 of the DSU.  The United States also submits, as part of 
its appeal, that the Panel erred in stating, in pa ragraph 6.28 of the Panel Report, that Mexico had 
established a  prima facie   case that the SPB is, as such, inconsistent with Article 11.3.   
A. The Panel's Articulation of the Standard 
192. We begin our analysis by examining the standard  articulated and applied by the Panel.  Based 
on its own analysis, and relying upon the Reports of the Appellate Body in  US – Carbon Steel , US – 
Corrosion-Resistant Steel Sunset Review ,  and  US – Oil Country Tubular Goods Sunset Reviews , the 
                                                      
291Article 19.1 of the DSU provides: 
Where a panel or the Appellate Body concludes that a measure is 
inconsistent with a covered agreement, it shall recommend that the  
Member concerned bring the measure into  conformity with that agreement.  
In addition to its recommendations, the panel or Appellate Body  may  
suggest ways in which the Member  concerned could implement the 
recommendations. (emphasis added;  footnotes omitted) 
292Panel Report, paras. 7.80 and 8.2. WT/DS282/AB/R 
Page 62  
 
Panel articulated the standard that it would a pply in assessing the consistency of the SPB, as such, 
with Article 11.3 of the  Anti-Dumping Agreement   in these terms: 
(a) in relation to the requirements of Article 11.3: 
... Article 11.3 requires that a like lihood determination in a sunset 
review be based on a sufficient factual basis, taking into consideration the circumstances of the case at issue, and cannot be 
based on presumptions that establish a priori conclusions in certain 
factual situation[s]  without the possibility of consideration of all the 
facts and circumstances .  ... [I]f certain evidentiary factors are treated 
as determinative or conclusive, we would conclude that they create 
an irrebuttable presumption , and thus that the relevant provisions are 
inconsistent with Article 11.3 of the AD Agreement.
293 (emphasis 
added) 
(b) in relation to the "qualitative assessment": 
... it seems clear that we must undertake a qualitative assessment of 
the evidence concerning USDOC's sunset review determinations. ... 
We cannot just look at the statistics to determine if, as a matter of 
fact, the scenarios in the SPB are consistently treated by USDOC as 
determinative or conclusive ... . 
... it is not consistency in the outcomes of US sunset reviews, but 
rather consistency in the process of decision-making, and the bases 
on which the decisions were reached, that are relevant to our assessment.  The fact that in each  of 232 of the sunset review 
determinations put before us in evidence, USDOC made an 
affirmative determination of likelih ood of continuation or recurrence 
of dumping is not sufficient in itself to demonstrate that the scenarios set out in the SPB are determinative or conclusive.
294 (footnote 
omitted) 
... it is essential to examine concre te examples of cases where the 
likelihood determination of con tinuation or recurrence of dumping 
was based solely on one of the scenarios of Section II.A.3 of the 
SPB, even though the probative value of other factors might have outweighed that of the identified scenario.  Such an examination requires a qualitative assessment of the likelihood determinations in 
individual cases.
295 
193. The parties are broadly in agreement that the Pane l’s articulation of the standard to be applied 
is substantially consistent with pr evious Appellate Body rulings, except that the United States is of the 
                                                      
293Panel Report, para. 7.27.  See also Panel Report, paras. 7.25-7.26. 
294Ibid., paras. 7.49-7.51. 
295Ibid., para. 7.49 (quoting, as guidance, Appellate Body Report, US – Oil Country Tubular Goods 
Sunset Reviews , para. 209).  WT/DS282/AB/R 
 Page 63 
 
 
view that the Panel should also have stressed , following previous Appellate Body rulings, these 
elements:  whether the probative value of other f actors might have outweighed that of the factual 
scenarios in Section II.A.3 of the SPB, and whether it is the SPB that "required" the USDOC to arrive 
at the determinations it did in individual cases.296  Having said that, the United States asserts that it is 
in the  application   of the standard that the Panel failed to make an objective assessment of the matter, 
including an objective assessment of the facts of the case. 
B. The Panel's Application of the Standard 
194. We begin our analysis with the text of the SPB in  issue in this dispute.  Section II.A.3 of the 
SPB provides: 
II. Sunset  Reviews in Antidumping Proceedings  
A. Determination of Likelihood of  Continuation or Recurrence of 
Dumping  
... 
3. Likelihood of Continuation or Recurrence of Dumping 
... 
[T]he Department normally will determine that revocation of an 
antidumping order or termination of a suspended dumping 
investigation is likely to lead to continuation or recurrence of 
dumping where— 
(a) dumping continued at any level above  de minimis  after the 
issuance of the order or th e suspension agreement, as 
applicable; 
(b) imports of the subject merchandise ceased after issuance of 
the order or the suspension ag reement, as applicable; or 
(c) dumping was eliminated after the issuance of the order or the 
suspension agreement, as applicable, and import volumes for the subject merchandise declined significantly.  
The Department recognizes that, in the context of a sunset review of 
a suspended investigation, the da ta relevant to the criteria under 
paragraphs (a) through (c), above, ma y not be conclusive with respect 
to likelihood.  Therefore, the Department may be more likely to entertain good cause arguments under paragraph II.C in a sunset review of a suspended investigation.
297 
                                                      
296United States' response to questi oning at the oral hearing. 
297We note that "Mexico does not challenge the 'goo d cause' aspects of US law". (Panel Report, 
footnote 48 to para. 7.34;  and confirmed by Mexico in response to questioning at the oral hearing) WT/DS282/AB/R 
Page 64  
 
195. At the outset, we note Mexico's argument that the Panel's conclusions and findings in 
paragraphs 7.53 to 7.64 of the Panel Report, in making its " qualitative assessment" of how the 
USDOC perceives the factual scenarios of the SPB, ar e "factual findings".  Mexico also argues that 
the United States had ample opportunity to rebut the evidence adduced by Mexico  at the Panel stage, 
but chose not to do so, and that, therefore, these "f actual findings" are outside the scope of appellate 
review.
298  We disagree.  The Panel's conclusions and findi ngs in paragraphs 7.53 to 7.64 of the Panel 
Report involve a "legal characterization of ... facts"299 in the Panel's determin ation of the consistency 
of the SPB, as such, with the requirements of Article 11.3 of the  Anti-Dumping Agreement .  They are, 
therefore, subject to our review. 
196. Before we proceed to review the Panel’s applica tion of the standard it articulated, we consider 
two matters that, in our view, are important for examining the "qualitative ass essment" carried out by 
the Panel.  First, the Appellate Body emphasized in  US – Oil Country Tubular Goods Sunset 
Reviews   that, in making a "qualitative assessment" of  individual determina tions, a panel must 
determine whether the factual scenarios of the SP B are regarded as "determinative/conclusive" and 
"mechanistically applied" by the USDOC "to the exclus ion of other factors", or "in disregard of other 
factors", or "even though the probative value of ot her factors might have outweighed that of the 
identified scenario."300  The relevance and probative value of other factors, and the USDOC's 
treatment of them—whether the USDOC ignored them  or did not treat them objectively—are crucial 
for a "qualitative assessment" of individual determinations.  
197. Secondly, each of the three factual scenarios of  the SPB comprises variations depending, in 
particular, on the duration and magnitude of dumping,  and the trends in volume of imports, with or 
without dumping (including cessation of imports), af ter the issuance of the anti-dumping duty order.  
Such variations will determine whet her it is a case of likelihood of  continuation   of dumping or a  
recurrence   of dumping, and this, in turn, may have a b earing on the nature and extent of evidence 
required for an objective determination and w ho bears the onus of introducing the evidence. 
198. For example, under scenario (a), dumping may have continued during the entire period 
between the issuance of the anti-dumping duty order and the time of the sunset review, possibly with 
significant import volumes and dumping margins.  A lternatively, dumping may have continued for a 
substantial period after the issuance of the orde r and may have ceased only a short time before the 
sunset review was undertaken.  In such cases,  unless the respondent party adduces evidence and 
explains how its pricing behaviour will change or why its imports will cease or not recur, it may be 
                                                      
298Mexico's appellee's submission, paras. 48-54 and 59-63.  
299Appellate Body Report, EC – Hormones , para. 116. 
300Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 209 and 212.   WT/DS282/AB/R 
 Page 65 
 
 
open for an objective investigating authority to conclu de that dumping is likely to continue or recur if 
the duty is revoked.  
199. In contrast, if the dumping had ceased soon afte r the issuance of the order, and there was no 
dumping or there were no imports for a substantial pe riod before the sunset review, the investigating 
authority will need credible evid ence to come to the conclusion that dumping will "recur" if the anti-
dumping duty order is revoked.  A respondent party may have the res ponsibility to introduce relevant 
evidence in its favour, but the investigating authority also has a duty to seek information to ensure that 
its determination rests on a sufficient evidentiary foundation.  An affirma tive determination cannot 
rest merely on a presumption, as envisaged under sce nario (b) or (c), that the cessation of dumping or 
of imports was due  solely   to the anti-dumping duty order. 
200. Likewise, scenario (c) also could have many vari ations within it.  This  scenario deals with 
situations where imports continue, but without dum ping, and an affirmative determination under this 
scenario is therefore a determination that dumping  will "recur" if the anti-dumping duty order is 
revoked.  The underlying presumption in scenario (c) is that, if import volumes had declined significantly, it was due solely to the anti-dumping dut y order, and that, if the order were revoked, the 
company concerned would resort to dumping to increase its import volumes.  Such a presumption 
cannot be the sole basis for a determination of "r ecurrence" of dumping.  A company's strategy and 
ability to increase or decrease its exports to part icular markets depend on a variety of market 
conditions, such as, in particular, the opportunities available in different markets and the competitive 
conditions in the market place.  Therefore, unless a ll relevant factors are taken into account, there may 
not be an objective evaluation in such cases of th e causes of the variations in import volumes in the 
importing Member's market.  
201. Thus, the factual scenarios of the SPB must not be mechanistically applied.  The responding 
parties do have a responsibility to submit informati on and evidence in their favour, particularly about 
their pricing behaviour, import volumes, and dumping ma rgins.  But the investigating authority has a 
duty to seek out information on relevant factors and evaluate their probative value in order to ensure 
that its determination is based not on presump tions, but on a sufficient factual basis.  
202. Keeping these considerations in mind, we turn  to a review of the "qualitative assessment" of 
the USDOC determinations by the Panel as contained in paragraphs 7.53 to 7.63 of the Panel Report.  
We agree with the Panel that "[t]he fact that in each of 232 of the sunset review determinations put 
before us in evidence, USDOC made an affirmativ e determination of likelihood of continuation or WT/DS282/AB/R 
Page 66  
 
recurrence of dumping is not sufficient in itself to demonstrate that the scenarios set out in the SPB 
are determinative or conclusive."
301 
203. In paragraph 7.53 of the Panel Report, the Pane l considered 206 sunset reviews that were 
"expedited" because "foreign respondent parties either  did not participate at all, or did not fully 
participate in the proceedings".302  These constituted the bulk of the 232 cases in which the USDOC 
made affirmative determinations.  The Panel review ed "a sampling" of these 206 cases and stated that, 
"in each of those we considered, USDOC's final a ffirmative determination ... was based on one of the 
three affirmative scenarios."303  The Panel Report does not reveal the size of the sample, which 
individual determinations it reviewed, which of the factual scenarios were involved, or whether other 
factors ought to have been taken into account in an y of them.  More importantly, the Panel merely 
speculated that "there may well have been other fact s that might [have been] relevant or probative [in 
these 206 cases], but they were not before  USDOC, and thus were not addressed."304  Therefore, even 
in respect of the "sampling" of cases that the Panel reviewed, the Panel Report does not reveal whether the USDOC excluded or disregarded eviden ce or factors that might have outweighed the 
probative value of the factual scenarios of the SPB.  Nor does the Panel's analysis indicate whether, in 
those cases, the USDOC wrongly relied on one of the scenarios in the SPB, despite the evidence 
before it.  It is quite possible that a numbe r of these 206 cases were cases where the dumping had 
continued for the entire life of the anti-dumping duty order or for a substantial period after the 
issuance of the order.  In such cases, unless the resp ondent interested parties had adduced evidence to 
show that the dumping would not continue or recu r, the USDOC could well have had reason to make 
an affirmative determination.  We simply do not know.  In respect of these 206 cases, the Panel 
Report does not reveal that the USDOC's affirmativ e determinations, although based on one of the 
factual scenarios, were made in disregard or to  the exclusion of other factors because of the SPB. 
204. Leaving out five determinations  of "suspended" investigations , which the Panel considered 
irrelevant to its task, the Pa nel proceeded to examine the re maining 21 of the 232 affirmative 
determinations.
305  In paragraphs 7.56 to 7.59 of the Panel Report, the Panel addressed 15 of these 
cases in which, according to it, the "USDOC  appears   to have considered that scenario (a) of the SPB 
applied—that is, dumping continued after the imposition of the order at a level above  de minimis ."306  
                                                      
301Panel Report, para. 7.51. (footnote omitted)  In paragraph 7.52 of the Panel Report, the Panel 
explained that, of the 306 cases covered by Exhibits MEX-62 and MEX-65, it did not take into account 74 cases in which the USDOC revoked the anti-dumping duty order due to a lack of domestic industry participation.   
302Ibid., para. 7.53. 
303Ibid. 
304Ibid. 
305Ibid., paras. 7.54-7.55. 
306Ibid., para. 7.56. (emphasis added)  WT/DS282/AB/R 
 Page 67 
 
 
In seven of these cases, the Pa nel stated that "there  appears   to have been no arguments or 
information put before USDOC by respondent intere sted parties concerning other factors which might 
be relevant".307  However, the Panel did not explain the facts of these cases, including matters such as 
the period in which dumping continued, and the trends in the volume of imports and dumping 
margins.  Nor does the Panel's anal ysis reveal whether other factor s ought to have been taken into 
account by the USDOC on its own initiative.  
205. In five other cases, the Panel c oncluded that foreign respondents " appear   to have made 
arguments concerning the relevance of the scen arios and other evidence" and the "USDOC  may  have 
considered the existence of facts f itting scenario (a) as determinative."308  The Panel stated that, in one 
case, the USDOC indicated that it had not consider ed arguments regarding other factors because it 
had based its results on the continuation of dumping.  However, in relation to the other four cases, the 
Panel did not explain whether the USDOC took in to account the arguments submitted by foreign 
respondents, or whether it properly evaluated those arguments or simply followed the SPB scenarios 
to the exclusion of other evidence.   
206. In the remaining three of the 15 "scenario  (a)" cases, the Panel found that the USDOC 
rejected foreign respondents' arguments that good cause existed to consider other factors.309  
However, this alone does not demonstrate that the SPB instructs the USDOC to treat dumping 
margins and import volumes as conclusive of the lik elihood of dumping, to the exclusion of other 
factors.  In order to determine whether the USDOC  made a final affirmative determination in these 
three cases due to the SPB, it would have been necess ary for the Panel to have analyzed the USDOC's 
reasoning, in the light of the specific facts of the cases and the arguments of the foreign respondents.  
The Panel Report contains no such analysis.  The Pa nel also stated, in rela tion to these three cases, 
that "the consistent  results   of these decisions are troubling, as is the unwillingness of USDOC to 
actually undertake an analysis of evidence ot her than evidence of import volumes and dumping 
margins submitted in sunset reviews."310  Yet, as the Panel itself noted311, the significance for its 
analysis of the determinations of the USDOC lies  not in their results, but whether the USDOC is 
required to make an affirmative determination when one  of the factual scenarios of the SPB is present.   
                                                      
307Panel Report, para. 7.57. (emphasis added) 
308Ibid., para. 7.58. (emphasis added) 
309Ibid., para. 7.59. 
310Ibid. (emphasis added) 
311Ibid., para. 7.51. WT/DS282/AB/R 
Page 68  
 
207. In paragraph 7.60 of the Panel Report, the Pane l turned to four cases in which the "USDOC  
appears   to have considered that scenario (c) of the SPB applied".
312  The Panel noted that the 
USDOC rejected the arguments of foreign respondent s in each case, but the Panel did not evaluate 
whether the USDOC did so solely because of the SPB,  or on the basis of a reasoned assessment of the 
evidence before it.  The Panel d escribed as "troubling" the following statement of the USDOC in one 
of these cases:  "Since we are basing our likelihood determination on the elim ination of dumping at 
the expense of exports, it is not necessary to consider other factors".313  In relation to another case, the 
Panel stated that, "despite an asserted willingness in  the preliminary phase to consider additional 
evidence and arguments, USDOC made a final affirm ative determination of likelihood, relying on a 
decline in import volumes, as set out in one of the SPB scenarios."314  Although the Panel found the 
outcome of these cases troubling because affirmative de terminations were made, the Panel's analysis 
does not reveal that the evidence before the USDO C was insufficient to lead to an affirmative 
determination, or that the SPB required the USDOC to  make affirmative determin ations in the face of 
contrary evidence. 
208. Finally, in paragraph 7.62 of the Panel Repor t, the Panel addressed two cases in which the 
USDOC made a negative preliminary determination followed by an affirmative final determination.315  
In relation to one of these cases, the Panel stated that "scenario (c)  appeared   to be relevant".316  In 
relation to the other, the Panel said that the USDOC  made a final affirmative determination based on 
continued dumping, "as suggested by SPB scenario (a)".317  The Panel's analysis does not reveal the 
nature of the evidence and arguments submitted to the USDOC at the preliminary and final stages and 
the USDOC's assessment thereof.  The fact that the USDOC's final determinations differed from its 
preliminary determinations does not, without more, su ggest that the SPB establis hes scenarios that are 
determinative or conclusive. 
209. In summary, having reviewed the 232 determina tions in the aforesaid manner in paragraphs 
7.53 to 7.63 of the Panel Report, the Panel concl uded that the "USDOC has consistently based its 
determinations in sunset reviews exclusively on th e scenarios, to the disregard of other factors."318  
But, as we have explained above, the Panel's an alysis does not reveal that the affirmative 
                                                      
312Panel Report, para. 7.60. (emphasis added) 
313Ibid. (quoting Memorandum from Jeffrey May to Robert LaRussa, "Issues and Decision Memo for 
the Sunset Review of Pure Magnesium from Canada; Preliminary Results" (18 February 2000) (Tab 201 of 
Exhibit MEX-62 submitted by Mexico to the Panel, pp. 6-7)). 
314Ibid. (footnote omitted) 
315Ibid., para. 7.62. 
316Ibid. (emphasis added) 
317Ibid. (referring to Tab 261 of Exhibit MEX-62 submitted by Mexico to the Panel). 
318Ibid., para. 7.63. (footnote omitted)  WT/DS282/AB/R 
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determinations, in the 21 specific cases reviewed by it319, were based  exclusively on the scenarios to 
the disregard of other factors .  Nor does the Panel's review of these cases reveal that the USDOC's 
affirmative determinations were based solely on the SPB scenarios, when the probative value of other 
factors might have outweighed that of the identifie d scenarios.  Accordingly, we conclude that the 
Panel did not conduct a "qualitative assessment" of th e USDOC's determination such that the Panel 
could properly conclude that the SPB requires the USDOC to treat the factual scenarios of 
Section II.A.3 of the SPB as determinative or conclusive. 
210. For these reasons, we find that, in assessing the consistency of the SPB, as such, with 
Article 11.3 of the  Anti-Dumping Agreement , the Panel failed to make an objective assessment of the 
matter, including an objective assessment of the facts of the case, as required by Article 11 of the DSU.  Accordingly, we  reverse  the Panel's finding, in paragraphs 7.64 and 8.1 of the Panel Report, 
that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .   
211. Having reached this conclusion, we do not address the Panel's statement, in paragraph 6.28 of 
the Panel Report
320, that Mexico had established a  prima facie   case that the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement .  As a result of our reversal of the 
Panel's finding that Section II.A.3 of the SPB, as su ch, is inconsistent with Article 11.3 of the  Anti-
Dumping Agreement ,  that statement is moot and of no legal effect.  
 
IX. Mexico's Conditional Appeals 
A. The "Standard" for USDOC Determinations in Sunset Reviews 
212. As we have reversed the Panel's finding th at Section II.A.3 of the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement , we consider Mexico's request that we 
find that Section 752(c)(1) of the Tariff Act 321, the SAA, and the SPB, as such, are inconsistent with 
Article 11.3 because, "collectively and independently"322, they establish a "standard" for USDOC 
                                                      
319The Panel also reviewed a "sampling" of 206 cases, and decided that five cases were not relevant to 
its task, as mentioned above in paragraphs 203-204. 
320This paragraph appears in the "Interim Review" section of the Panel Report. 
321This provision is codified in Section 1675a(c)(1) of Title 19 of the United States Code  (Exhibit 
MEX-24 submitted by Mexico to the Panel). 
322Mexico's appellant's submission, para. 160. WT/DS282/AB/R 
Page 70  
 
determinations in sunset reviews that  is inconsistent with Article 11.3.
323  Mexico argues that the 
Panel "declined to rule" on this "claim".324   
213. The Panel found that Section 752(c)(1) of the Tari ff Act, by itself, is not inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement .325  Mexico does not appeal this finding  per se .  The 
Panel regarded the SAA as confirming its reading of the Tariff Act.326  The Panel did not address the 
WTO-consistency of the SAA "standing alone", because Mexico "made no independent claims 
concerning the SAA", and it did not present "arguments  regarding violation of any provision of the 
AD Agreement by the SAA, separate from the argumen ts regarding the overall  alleged inconsistency 
of US law."327  Finally, the Panel found that Section II.A.3 of the SPB, as such, is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement   because it "establishes an irrebuttable  presumption  
that termination of the anti-dumping duty would be likely to lead to continuation or recurrence of 
dumping".328     
214. We have reversed the Panel's finding that S ection II.A.3 of the SPB is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement .  In these circumstances, we see no merit in Mexico's 
contention that the Tariff Act, the SAA, and the SPB, "collectively and independently", establish a 
standard that is inconsiste nt with Article 11.3 of the Anti-Dumping Agreement .   
B. Article X:3(a) of the GATT 1994 
215. As we have reversed the Panel's finding th at Section II.A.3 of the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement , we consider Mexico's request that we 
find that the United States has failed to administer its laws, regulations, deci sions, and rulings in an 
impartial and reasonable manner as require d by Article X:3(a) of the GATT 1994.329  M e x i c o  
contends that Exhibits MEX-62 and MEX-65 submitte d by Mexico to the Panel demonstrate "a clear 
and undeniable pattern of bi ased and unreasonable decision making by the [USDOC] in its 
administration of the laws, regulations, decisions , and rulings pertaining to sunset reviews."330 
                                                      
323Mexico's appellant's submission, paras. 158 and 160. 
324Mexico's Notice of Appeal, para. 5(a) (referring to Panel Report, para. 6.6).  Mexico does not appeal 
the Panel's conclusion that Mexico's cl aim against the "practice" of the USDOC, as such, fell outside its terms of 
reference. (Mexico's response to questioning at the oral hearing;  Panel Report, paras. 7.21 and 8.4) 
325Panel Report, paras. 7.64 and 7.66. 
326Ibid., para. 7.38. 
327Ibid., footnote 49 to para. 7.35. 
328Ibid., para. 8.1. (emphasis added)  See also Panel Report, paras. 7.64 and 7.67. 
329Mexico's Notice of Appeal, para. 5(b);  Mexico's appellant's submission, para. 167. 
330Mexico's appellant's submission, para. 172.  WT/DS282/AB/R 
 Page 71 
 
 
216. Article X:3(a) of the GATT 1994 provides: 
Each Member shall administer in a uniform, impartial and reasonable 
manner all its laws, regulations, d ecisions and rulings of the kind 
described in paragraph 1 of this Article. 
217. Article X:1 of the GATT 1994 refers to "[l] aws, regulations, judicial decisions and 
administrative rulings of general application, made effective by any Member".   
218. In our view, an assessment of the USDOC's de terminations for the purpose of determining 
whether the USDOC administers United States laws and regulations on sunset reviews in a uniform, 
impartial, and reasonable manner in accordance wi th Article X:3(a) of the GATT 1994 entails an 
inquiry much different from that involved in dete rmining whether the SPB instructs the USDOC to 
treat certain scenarios as conclusive or determ inative contrary to Article 11.3 of the  Anti-Dumping 
Agreement .  Therefore, in the absence of any consideration by the Panel of this claim, we are not in a 
position to rule on it.   
 
X. Findings and Conclusions 
219. For the reasons set forth in this Report, the Appellate Body: 
(a) in relation to causation: 
(i) finds  that there is no requirement to establish the existence of a causal link 
between likely dumping and likely injury, as a matter of legal obligation, in a 
sunset review determinati on under Article 11.3 of the  Anti-Dumping 
Agreement  and that, therefore, the USITC was not required to demonstrate 
such a link in making its likelihood-of-injury determination in the sunset review at issue in this dispute;  and 
(ii) finds
 that the Panel did not act inconsiste ntly with Article 11 of the DSU in 
its assessment of Mexico's arguments in this regard;   
(b) in relation to cumulation: 
(i) upholds  the Panel's findings, in paragraphs 7.150, 7.151, and 8.8 of the Panel 
Report, that the USITC's decision to conduct a cumulative assessment of imports in making its likelihood-of-injur y determination was not inconsistent 
with Articles 3.3 and 11.3 of the  Anti-Dumping Agreement ;  and WT/DS282/AB/R 
Page 72  
 
(ii) finds
 that the Panel did not act inconsiste ntly with Article 11 of the DSU in 
its assessment of Mexico's arguments in this regard; 
(c) in relation to dumping margins: 
(i) finds  that the Panel did not act inconsiste ntly with Article 11 of the DSU in 
not addressing Mexico's claim under Article 2 of the  Anti-Dumping 
Agreement ;  and 
(ii) finds  it unnecessary to rule on Mexico's claim relating to Article 2 of the  
Anti-Dumping Agreement ; 
(d) finds  that the Panel did not act inconsistently  with Article 11 of the DSU in declining 
to make a specific finding that the United St ates had no legal basis to continue the 
anti-dumping duties on OCTG from Mexico beyond the five-year period established 
by Article 11.3 of the  Anti-Dumping Agreement ; 
(e) in relation to the SPB: 
(i) finds  that, in assessing the consistency of the SPB, as such, with Article 11.3 
of the  Anti-Dumping Agreement , the Panel failed to make an objective 
assessment of the matter, including an objective assessment of the facts of the 
case, as required by Article 11 of the DSU; 
(ii) reverses  the Panel's finding, in paragraphs 7.64 and 8.1 of the Panel Report, 
that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3 of the 
Anti-Dumping Agreement ;  and 
(iii) finds  that the Panel's statement, in para graph 6.28 of the Panel Report, that 
Mexico had established a  prima facie  case that the SPB, as such, is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement , is moot and 
of no legal effect;  and 
(f) having reversed the Panel's finding that Secti on II.A.3 of the SPB is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement : 
(i) finds  no merit in the argument that the Tariff Act, the SAA, and the SPB, 
"collectively and independently", establish a standard that is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement ;  and  WT/DS282/AB/R 
 Page 73 
 
 
(ii) finds  that it is not in a position to rule on Mexico's claim that the USDOC 
does not administer United States laws and regulations on sunset reviews in a 
uniform, impartial, and reasonable manner in accordance with Article X:3(a) 
of the GATT 1994. 
220. As there is no appeal from the Panel's finding that the USDOC's likelihood-of-dumping 
determination in the sunset review at issue in this  dispute was inconsistent with Article 11.3 of the 
Anti-Dumping Agreement , we do not make any  additional   recommendation regarding that finding.  
Given that we have not found in this Report that th e United States acted inconsistently with any of its 
WTO obligations, we make no recommendation to the DSB pursuant to Article 19.1 of the DSU in this regard.  
 
 
  Signed in the original in Geneva this 18th day of October 2005 by:  
 
 
   
_________________________ 
A.V. Ganesan 
Presiding Member 
 
 
 
  
 _________________________ _________________________ 
 John Lockhart Y asuhei Taniguchi 
 Member Member WT/DS282/AB/R 
Page 74  
 
Annex I
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS282/6 
10 August 2005 
 (05-3559) 
 Original:   Spanish 
 
 
 
UNITED STATES – ANTI-DUMPING MEASURES ON OIL 
COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO 
 
Notification of an Appeal by Mexico under Ar ticle 16.4 and Article 17 of the Understanding  
on Rules and Procedures Governing th e Settlement of Disputes (DSU) and  
Rule 20(1) of the Working Procedures for Appellate Review   
   The following notification dated 4 August 2005,  from the delegation of Mexico, is being 
circulated to Members.  
_______________ 
 
 
 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , 
Mexico notifies its decision to appeal to the A ppellate Body certain issues of law covered in the 
Report of the Panel on United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico (WT/DS282/R) (the "Panel Report") and cer tain legal interpre tations developed 
by the Panel in this dispute. 
1. Mexico seeks review by the Appellate Body of the Panel's failure to find that the Sunset 
Review Determination of the US  International Trade Commission ("USITC") in OCTG from Mexico 
was inconsistent with the Anti-Dumping Agreem ent and Article VI of the GATT 1994 because the 
USITC did not establish the required causal link be tween the likely dumping and the likely injury.1  
The Panel's conclusions on this issue are in erro r, and are based on erroneous findings on issues of 
law and related legal interpretations: 
a. By failing to find that a WTO-consistent de termination of likely dumping is a legal 
predicate to a WTO-consistent determinati on of likely injury, the Panel erred in its 
interpretation and application of Articles 1, 3, 11.1, 11.3 and 18.1 of the Anti-Dumping 
Agreement and Article VI of the GATT 1994, and failed to comply with its obligation 
under Article 11 of the DSU to make an objective assessment of the matter before it.2 
b. Although the Panel found that the Sunset Revi ew Determination of the US Department 
of Commerce ("USDOC") was inconsistent with Article 11.3 of the Anti-Dumping 
                                                      
1Panel Report, paragraph. 8.7. 
2Panel Report, paragraphs.  6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138, 
7.143, 7.144, 8.7.  WT/DS282/AB/R 
 Page 75 
 
 
Agreement3, it failed to find that the USITC Sunset Review Determination was also 
WTO-inconsistent.  The Panel dismissed Mexico's claim that the Anti-Dumping Agreement and the GATT 1994 established inhe rent causation requirements, parallel to 
but independent of those in Article 3.5.
4  The Panel incorrectly interpreted Articles 1, 3, 
11.1, 11.3, and 18.1 of the Anti-Dumping Agreement and Article VI of the GATT 
1994.  The Panel also failed to comply with  its obligation under Article 11 of the DSU 
to make an objective assessment of the matter before it.5 
c. The Panel failed to apply the rulings adopt ed by the Dispute Settlement Body in United 
States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods 
from Argentina  (DS268).6  The DSB rulings in DS268, combined with the Panel's 
rulings in this case,  establish that there is no WTO-consistent basis for a finding of 
likely dumping for any  of the reviews of the WTO Members included in the USITC's 
cumulative likelihood of injury analysis.  The Panel in the pres ent case erroneously 
failed to find that the USITC lacked a WTO- consistent basis for its  determinations on 
likely injury, likely price effects or likely impact.7  The Panel thus erred in interpreting 
and applying Articles 1, 3, 11.1, 11.3, and 18.1 of the Anti-Dumping Agreement and 
Article VI of the GATT 1994.  The Panel also failed to comply with its obligation under Article 11 of the DSU to make an objective assessment of the matter before it.
 8 
2. Mexico seeks review by the Appellate Body of the Panel's failure to find that the Sunset 
Review Determination of the USITC was WTO-inconsistent because the USITC failed to comply with the conditions for a WTO-consistent likelihood of injury analysis.
9  Although the Panel 
recognized that "Mexico requested a finding regardi ng its 'third cumulation argument' (regarding the 
evidentiary basis for the USITC's determination th at imports would be simultaneously present in the 
US market)10, the Final Report contains no explanation of  why it was appropriate for the Panel not to 
rule on Mexico's claim.11  The Panel erred in interpreting and applying Articles 1, 11.3, and 18.3 of 
the Anti-Dumping Agreement, and failed to comply  with its obligation under Article 11 of the DSU 
and Article 17.6 of the Anti-Dumping Agreement to  make an objective assessment of the matter 
before it.12  Mexico respectfully requests the Appellate Body to address, complete the analysis, and 
rule in favor of Mexico on the following issues of law and related legal inte rpretations, on which the 
Panel declined to rule: 
                                                      
3Panel Report, paragraph. 8.2. 
4Panel Report, paragraph. 6.12. 
5Panel Report, paragraphs. 6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138, 
7.143, 7.144, 8.7. 
6See United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , DS282, Request of the Panel for Comments on the Appellate Body's Report in US-OCTG 
from Argentina , DS268, Nov. 22, 2004;  see also  Panel Report, Annex E-14, Annex E-15. 
7Panel Report, paragraph. 8.7. 
 8Panel Report, paragraphs. 6.12, 6.14, 7.113, 7.114, 7.115, 7.117, 7.121, 7.122, 7.123, 7.130, 7.138, 
7.143, 7.144, 8.7. 
 9Panel Report, paragraphs. 8.5, 8.7, 8.8. 
 10Panel Report, paragraph. 6.19;  see also  Panel Report, paragraph. 3.1 (16th bullet) ("irrespective of 
the applicability of Article 3.3 to Article 11.3, the USIT C failed to satisfy the requirements inherent in the 
conduct of any cumulative injury assessment;  the USITC failed to ensure that cumulation was appropriate in 
light of the conditions of competition between imported OCTG, and between imported OCTG and the domestic 
like product, which findings required a threshold finding that the imports would be simultaneously present in the US market"). 
 
11Panel Report, paragraphs. 6.19, 7.150, and 7.151. 
12Panel Report, paragraphs. 6.19, 7.150, 7.151, 8.5, 8.7, 8.8. WT/DS282/AB/R 
Page 76  
 
a. The Panel erroneously concluded that the US ITC's analysis of the cumulated imports 
for purposes of its likelihood of injury dete rmination was consistent with Article 11.3 
exclusively because it determined that Ar ticle 3.3 of the Anti-Dumping Agreement 
does not apply to Article 11.3 reviews.
13 
b. The Panel failed to find that the USIT C's Sunset Review Determination was 
inconsistent with US obligations un der the Anti-Dumping Agreement because: 
(i) The likelihood of injury determinati on lacked a sufficient factual basis and 
could not result in an objective examin ation of whether the subject imports 
were likely to be simultaneously present in the domestic market for purposes of determining the likelihood of injury; 
(ii) The USITC failed to ensure that cumulation was appropriate in light of the 
conditions of competition between im ported OCTG, and between imported 
OCTG and the domestic like product, which findings required a threshold 
finding that the subject imports would be simultaneously present in the US market; 
(iii) The USITC employed a WTO-inconsistent standard in the cumulative 
likelihood of injury analysis
14;  and 
(iv) The USITC's determination did not  identify any time-frame within which 
the subject imports would be simulta neously present in the US market 
during which time the corresponding likely injury would occur. 
c. The Panel erroneously disregarded certain of Mexico's arguments supporting its claim 
regarding the WTO-inconsistency of the USIT C's sunset review determination based on 
an erroneous finding that Mexico had faile d to develop and elaborate its arguments.15 
d. The Panel also erroneously disregarded Mexico's separate claim that even assuming 
arguendo  that the USITC was neither prohib ited from, nor required to, conduct a 
cumulative injury assessment, because it decide d to undertake cumulative analysis, then 
the USITC was obliged to make sure that th e inherent conditions necessary to cumulate 
were satisfied.16 
3. Mexico seeks review by the Appellate Body of the Panel's failure to comply with its 
obligation under Article 11 of the DSU to make an objective assessment of the matter before it, and its 
error in the interpretation and application of Articles 1, 2, 11.3, and 18.3 of the Anti-Dumping Agreement regarding Mexico's claims related to th e USDOC's determination of the "margin likely to 
prevail."
17  Specifically: 
a. The Panel erred in failing to find that the USDOC's determination of the "margin likely 
to prevail" for OCTG from Mexico violated  Articles 2 and 11.3 because the margin was 
                                                      
13Panel Report, paragraphs. 7.150, 7.151, 8.8. 
14Panel Report, paragraph. 8.5. 
15Panel Report, paragraph. 6.19. 
16See Panel Report, paragraphs. 7.150, 7.151, 8.8;  see also  Panel Report, paragraph. 3.1 (15th bullet) 
("in the alternative, assuming arguendo , that a cumulative injury analysis is  permitted in sunset reviews, USITC 
violated Articles 11.3 and 3.3 because USITC failed to apply the requirements of Article 3.3 in this case"). 
17Panel Report, paragraphs. 6.10 , 6.11, 7.78, 7.81, 7.83, 8.3.  WT/DS282/AB/R 
 Page 77 
 
 
not calculated in accordance with the requirements of Article 2, and was used as an integral part of the determ ination under Article 11.3; 
b. The Panel failed to find that the "margin lik ely to prevail" determined by the USDOC 
was a pre-WTO margin that was not the result of the application of the provisions of the Anti-Dumping Agreement and was therefore inconsistent with Articles 1, 2, 11.3, 
and 18.3 of the Agreement;  and 
c. The Panel failed to find that the USITC's u se of the WTO-inconsistent "margin likely to 
prevail" for purposes of its likelihood of injury analysis rendered its likelihood 
determination inconsiste nt with Article 11.3. 
4. Mexico seeks review by the Appellate Body of the Panel's failure to make a specific finding 
that the United States had no legal basis to conti nue its anti-dumping measure on OCTG from Mexico 
beyond the maximum five year period established by Article 11.3 of the Anti-Dumping Agreement.  
The Panel's conclusions on this issue are in erro r, and are based on erroneous findings on issues of 
law and related legal interpretations.  The err oneous findings of the Panel include the Panel's 
conclusions that "[o]ur decision not to make  any suggestion regarding implementation, and 
specifically not to suggest immediate termination of  the measure, fully disposed of Mexico's request, 
and no further findings are necessary."
18  In making this determination, the Panel erred in interpreting 
and applying Article 11.3. 
5. In the event of appeal by the United States and reversal by the Appellate Body on any of the 
conclusions reached by the Panel regarding the USDOC's Sunset Policy Bulletin (SPB), Mexico 
respectfully requests the Appellate Body to address,  complete the analysis, and rule in favor of 
Mexico on the following claims, on which the Panel declined to rule: 
a. Mexico's claim that the US statute, the US Statement of Administrative Action (SAA), 
and the SPB violate Article 11.3 of the An ti-Dumping Agreement as such.  The Panel 
considered that it was not "obliged to make findings in this context with respect to each 
aspect of Mexico's arguments in support of its claim."19 
b. Mexico's claim that United States failed to administer in an impartial and reasonable 
manner US anti-dumping laws, regulations, deci sions and rulings with respect to the 
USDOC's sunset reviews of anti-dumping duty or ders, in violation of Article X:3(a).  
Having found that the relevant portions of th e SPB were inconsistent with Article 11.3, 
the Panel stated that it did not need to address this claim.20 
 
_______________ 
 
                                                      
18Panel Report, paragraphs. 6.22.  See also  paragraph. 8.18. 
19Panel Report, paragraph. 6.6. 
20Panel report, paragraphs. 7.67, 8.13. WT/DS282/AB/R 
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Annex II
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS282/7 
19 August 2005 
 (05-3686) 
 Original:   English 
 
 
 
UNITED STATES – ANTI-DUMPING MEASURES ON  
OIL COUNTRY TUBULAR GOODS (OCTG) FROM MEXICO 
 
Notification of an Other Appeal by the United States  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU)  
and Rule 23(1) of the Working Procedures for Appellate Review   
   The following notification dated 16 August 2005,  from the delegation of the United States, is 
being circulated to Members. 
_______________ 
 
 Pursuant to Rule 23 of the Working Procedures for Appellate Review , the United States 
hereby notifies its decision to appeal to the Appellate  Body certain issues of law covered in the Report 
of the Panel on  United States – Anti-dumping Measures on O il Country Tubular Goods (OCTG) from 
Mexico (WT/DS282/R) ("Panel Report") and certain legal interpretations developed by the Panel in 
this dispute. 
1. The United States seeks review by the Appellate  Body of the Panel’s legal conclusion that the 
Sunset Policy Bulletin is inconsis tent with Article 11.3 of the Agreement on Implementation of 
Article VI of the General Agreem ent on Tariffs and Trade 1994  ("Anti-Dumping Agreement").  This 
conclusion is in error and is base d on erroneous findings on issues of  law and related interpretations, 
including: 
(a) The Panel failed to apply the correct burden of proof.1  Although elsewhere in the 
report the Panel correctly articulated the standard for burden of proof and making a 
prima facie  case2, the Panel failed to apply that standard in evaluating whether 
Mexico made a prima facie case with respect to the Sunset Policy Bulletin.3  T h e  
Panel also misapplied the Appellate Body’s analysis in United States – Sunset 
Reviews of Anti-Dumping Measures on O il Country Tubular Goods from Argentina  in 
concluding that Mexico had made a prima facie case.4 
                                                      
1See, e.g., Panel Report, paras. 6.26-6.28, 8.1. 
2Panel Report, para. 7.8. 
3Panel Report, paras. 6.28, 7.49 and 7.64, footnote 85. 
4Panel Report, para. 6.27.  WT/DS282/AB/R 
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(b) The Panel failed to apply the correct sta ndard in evaluating whether the Sunset Policy 
Bulletin is inconsistent with Article  11.3 of the Anti-Dumping Agreement.5 
2 The United States seeks review by the Appe llate Body, pursuant to Article 11 of the 
Understanding on Rules and Procedures Go verning the Settlement of Disputes ("DSU"), of the 
finding that the Sunset Policy Bulletin is inconsis tent "as such" with the obligation set forth in 
Article 11.3 of the Antidumping Agreement.6  The Panel failed to make an objective assessment of 
the matter before it, including a failure to make  an objective assessment of the facts of the case, 
contrary to Article 11 of the DSU.  For example, the United States noted that the Panel had failed to 
identify other factors that formed the basis for Commerce’s determination in Sugar and Syrups from 
Canada7, but the Panel simply dismissed the consid eration of other factors as "subsidiary".8  T h e  
Panel also selectively quoted statements from the sunset determinations it analyzed, ignoring 
exculpatory statements found in the same determinations.9  The Panel’s analysis was also 
contradictory10 and unsupported by the facts.11 
__________ 
 
 
                                                      
5Panel Report, paras. 7.55, 7.61, 7.63, footnote 86. 
6Panel Report, para. 8.1. 
7U.S. Comments on Interim Report, para. 8. 
8Panel Report, para. 6.35. 
9See, e.g., paras. 6.35, 7.60.  See U.S. Comments on Interim Report, paras. 6 and 8-9, Panel Report, 
para. 6.29. 
10Panel Report, paras. 7.38, 7.40, 7.58, and 7.63. 
11Panel Report, paras. 7.45, 7.55, and 7.61.