RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/DSB/M/231 
5 June 2007 
 (07-2300) 
Dispute Settlement Body 
11 May 2007  
 
 
 
MINUTES OF MEETING 
 
Held in the Centre William Rappard  
on 11 May 2007  
 
Chairman:  Mr. Bruce Gosper (Australia) 
 
 
1. United States – Sunset reviews of anti-dumpi ng measures on oil country tubular goods 
from Argentina:  Recourse to Article 21.5 of the DSU by Argentina 
 
(a) Report of the Appellate Body (WT/DS268/AB /RW) and Report of the Panel (WT/DS268/RW) 
 1. The Chairman
 drew attention to the communication from the Appellate Body contained in 
document WT/DS268/22 transmitting the Appellate Body Report on:  "United States – Sunset 
Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina:  Recourse to 
Article 21.5 of the DSU by Argentina", which ha d been circulated on 12 April 2007 in document 
WT/DS268/AB/RW, in accordance with Article 17.5 of  the DSU.  He reminded delegations that the 
Appellate Body Report and the Panel Report pertai ning to this dispute had been circulated as 
unrestricted documents.  He recalle d that Article 17.14 of the DSU re quired that:  "An Appellate Body 
report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless 
the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to Members.  This adoption procedure is without prejudice to the right of Members to 
express their views on an Appellate Body report."  2. The representative of Argentina
 said that his country wished to thank the Panel, the Appellate 
Body and the respective Secretariats for their work in the settlement of the dispute concerning sunset 
reviews of anti-dumping measures on oil country tubular goods (OCTG) from Argentina. His  
country, once again, welcomed an outcome that was fa vourable to its interests in the field of products 
for the international oil industry, where it was one of  the main suppliers.  Thanks to the work of the 
Panel and the Appellate Body, it had been establis hed that the anti-dumping duties, applied by the 
United States to Argentina's exports of OCTG, were inconsistent with the United States' obligations 
under the Anti-Dumping Agreement.  In 2000, the su nset review by the US Department of Commerce 
(USDOC) had determined a likelihood of recurrence or continuation of dumping in respect of OCTG 
exports from Argentina, on the basis of the original  dumping margin and the decline in the volume of 
imports following the imposition of the order.  Conse quently, the order remained in force for a further 
five years.  In 2004, the Panel and the Appellate  Body Reports adopted by the DSB had established 
that this determination was not based on evidence and was, therefore, inconsistent with Article 11.3 of 
the Anti-Dumping Agreement.  3. Despite this, the United States had decided to maintain the measure and make a new 
determination under Section 129 of the Uruguay Ro und Agreements Act.  In December 2005, the 
USDOC had, once again, determined the likelihood of continuation or recurrence of dumping, this 
time on the basis of the decline in the volume of  imports and likely past dumping.  The Panel WT/DSB/M/231 
Page 2  
 
  established under Article 21.5 of the DSU, at the request of Argentina, had clearly established that 
neither of the two premises put forward by the USDOC was consistent with the Anti-Dumping Agreement and that the re-deter mination under Section 129, therefore, lacked a sufficient factual 
basis.  The Panel had most notably stated that "... the USDOC made a finding of likely dumping without making any effort to obtain information that  is essential to the core principle of dumping as a 
price-to-price comparison".  Moreover, with regard  to the volume analysis, the Panel, following 
precedent set by the Appellate Body, had found that the 2005 re-determination under Section 129 
failed to examine potential reasons that could have  triggered the decline in the volume of imports.  
According to the Panel, "this is not ... the kind of  determination that would be made by an unbiased 
and objective investigating authority.  The USDOC's  determination regarding the decline in the 
volume of imports lacks a sufficient factual basis." 
 4. The Panel had also found that, as in the origin al review, the United States had failed to 
observe the due process rights to which Argentina' s exporters were entitled under Article 6 of the 
Anti-Dumping Agreement.  None of these findings ha d been appealed by the United States and it had, 
therefore, been established that the 2005 re-det ermination against OCTG from Argentina, like the 
initial determination, had no legal basis consistent with the WT O.  Argentina wished to remind the 
DSB Members that the sequence of events in this dispute highlighted the way in which Argentina's 
rights as an exporter had been undermined by the United States' lack of compliance.  Although the 
DSB had established that the original anti-dumping determination of August 2000 was inconsistent 
with the Anti-Dumping Agreement and that during the 2005 re-determination under Section 129 the 
United States had not complied with the due pro cess rights and substantive guarantees set forth under 
that Agreement, in October 2006 the USDOC determined, once again, that the anti-dumping duties on OCTG from Argentina were to be extended by another five years, until 2011.  The adoption of the Panel and the Appellate Body Reports at the presen t meeting would firmly establish that the United 
States had wrongfully maintained a barrier against Ar gentina's exports for six years, despite the WTO 
having found on two occasions that the measure was unl awful.  As at the start of the proceedings, and 
in the light of the Reports to be adopted at th e present meeting, Argentina was convinced that the 
United States would be able to comply with  its obligations only by lifting the measure. 
 5. The representative of the United States
 said that his country wished to thank the Panel, the 
Appellate Body and the Secretariat for their work in  this dispute.  The United States was pleased that 
the Appellate Body had reversed the Panel's findi ng that the "waiver provisions" of US law were 
inconsistent with Article 11.3 of the Anti-Dumpi ng Agreement.  In a well-reasoned analysis, the 
Appellate Body had found that there was no evidence to support the Panel's conclusion that the statute 
allowing interested parties voluntarily to waive part icipation in a sunset review breached the Anti-
Dumping Agreement.  The Appellate Body had corr ectly concluded that the waiver provisions were 
not as such inconsistent with Article 11.3 b ecause the waiver provisions did not preclude US 
authorities from making a reasoned determination with a sufficient factual basis.  With respect to the scope of the measure taken to comply, the United States recognized the care with which the Appellate 
Body had articulated its findings.  The Appellate Body had emphasized that it based its findings on 
facts particular to this dispute;  i.e. the US  authorities' determinati on of likelihood of dumping 
consisted of two factual bases whic h operated together.  The United States was also pleased that the 
Appellate Body had rejected Argentina's appeals in this proceeding and was pleased that the Panel 
had rejected a number of procedural claims advan ced by Argentina.  Finally, the United States 
regretted the Panel's finding with respect to the pr oceeding at issue, which it had not appealed.  The 
United States intended to comply with its obligations  in this dispute.  However, Argentina's argument 
that a Member was legally obliged to revoke a sunset  review that was found to be WTO-inconsistent 
had been squarely, and repeatedly, rejected. 
 6. The representative of the European Communities
 said that the EC welcomed the Appellate 
Body Report which brought further clarity on th e rules applying to sunset reviews and on other 
important systemic issues.  The EC considered the introduction of sunset reviews to be a key  WT/DSB/M/231 
 Page 3 
 
 
  achievement of the Uruguay Round negotiations to  avoid never-ending measures.  Leaving excessive 
margin of manoeuvre to investigating authorities in  conducting sunset reviews risked to reduce them 
to a formalistic exercise, which did not correspond to their object and purpose.  In particular, the EC believed that the continuation of the duty should be the excep tion, and that in all cases the 
investigating authority had to base its decision on firm  evidentiary basis.  These principles had already 
been made clear by the Appellate Body in the case "US – Corrosion-Resistant Carbon Steel from 
Japan" (DS244).  In that case the Appellate Body had addressed specifically the issue of past dumping 
margins and import volumes, finding that they were  not always highly probative for the likelihood of 
continuation of dumping in a sunset review.  It ha d stated that a case-specific analysis of the factors 
behind the import trends remained necessary.  The EC, therefore, urged the United States to promptly 
comply with the Panel and the Appellate Body find ings on volume analysis and on the analysis of 
likelihood of past dumping.  The EC hoped that the voluminous case law on these issues would convince the United States to abandon its strict po licy guidelines that tried to substitute a reasoned 
and adequate analysis of each case with pre-determ ined scenarios resulting almost automatically in a 
finding of likelihood of continuation or recurrence of dumping.  There was no substitute for a fully 
fledged, objective and impartial investigation in all circumstances. 
 7. The representative of Hong Kong, China
 said that her delegation was of the view that the case 
under consideration, and the Appe llate Body's rulings, raised a number of generic issues which 
merited Members' close attention.  Among others, her delegation noted that the US "amended waiver 
provisions", which had been subject to challenge in  this dispute, might have put exporters in a 
disadvantageous position.  While Hong Kong, Chin a was still reflecting on the findings of the 
Appellate Body in this regard, it was concerned whet her in effect the burden of  proof had been shifted 
in a sunset review.  Her delegation was also concer ned about consequential e ffects of maintaining an 
overall balance of rights and oblig ations between the exporting a nd importing ends.  Also, it was 
disappointed that, while noting their systemic rele vance, the Appellate Body had chosen not to 
address the questions of whether, and on what basi s, an anti-dumping order may be maintained after 
its sunset review had been found to be inconsis tent with the Anti-Dumping Agreement.  In this 
connection, Hong Kong, China recalled that Article 1 of the Anti-Dumping Agreement had set out the 
fundamental principle that "[a]n anti-dumping measure  shall be applied only under the circumstances 
provided for in Article VI of GATT 1994 and pursuan t to investigations initiated and conducted in 
accordance with the provisions of [the Agreement] ".  Hong Kong, China looked forward to an early 
opportunity for the Appellate Body to comment on these important systemic issues. 
 8. The DSB took note
 of the statements, and adopted  the Appellate Body Report contained in 
WT/DS268/AB/RW and the Panel Report contained in  WT/DS268/RW, as modified by the Appellate 
Body Report. 
 
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