WORLD TRADE  
ORGANIZATION  WT/DS294/AB/RW 
14 May 2009 
 (09-2362) 
 Original:   English 
  
 
     
 
    
 
 
UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR  
CALCULATING DUMPING MARGINS ("ZEROING") 
 
RECOURSE TO ARTICLE 21.5 OF THE DSU BY 
THE EUROPEAN COMMUNITIES 
   
AB-2009-1 
 
 
  
 
    
 
  
Report of the Appellate Body 
 WT/DS294/AB/RW 
 Page i 
 
 
   
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Participants and the Third Participants ........................................................10  
A. Claims of Error by the European Communities – Appellant ....................................... 10 
1. Panel Composition..........................................................................................10  
2. The Panel's Terms of Reference .....................................................................12  
3. The Scope of the United States' Compliance Obligations ..............................16  
4. The Subsequent Sunset Reviews ....................................................................21  
5. The Non-Existence of Measures between 9 April and 
23 April/31 August 2007 ................................................................................23  
6. The Arithmetical Error in the Section 129 Determination in Case 11............23  
7. The "All Others" Rates Calculated in  the Section 129 Determinations 
in Cases 2, 4, and 5 .........................................................................................26  
8. The European Communities' Re quest for a Suggestion..................................29  
B. Arguments of the United States – Appellee.................................................................. 30 
1. Panel Composition..........................................................................................30  
2. The Panel's Terms of Reference .....................................................................31  
3. The Scope of the United States' Compliance Obligations ..............................34  
4. The Subsequent Sunset Reviews ....................................................................38  
5. The Non-Existence of Measures between 9 April and 
23 April/31 August 2007 ................................................................................40  
6. The Alleged Arithmetical Error in the Section 129 Determination in Case 11............................................................................................................40
 
7. The "All Others" Rates Calculated in  the Section 129 Determinations 
in Cases 2, 4, and 5 .........................................................................................42  
8. The European Communities' Re quest for a Suggestion..................................43  
C. Claims of Error by the United States – Other Appellant ............................................. 44 
1. The Panel's Terms of Reference (Cases 1 and 6)............................................44  
2. The United States' Compliance Obligations (Cases 1 and 6) .........................46  
D. Arguments of the European Communities – Appellee ................................................. 48 
1. The Panel's Terms of Reference (Cases 1 and 6)............................................48  
2. The United States' Compliance Obligations (Cases 1 and 6) .........................51  
E. Arguments of the Third Participants............................................................................ 53 
1. India ................................................................................................................53  
2. Japan ...............................................................................................................53  
3. Korea...............................................................................................................60  
4. Mexico ............................................................................................................63  
5. Norway ...........................................................................................................63  
6. Separate Customs Territory of Ta iwan, Penghu, Kinmen  and Ma tsu...............66  
7. Thailand ..........................................................................................................66  
III. Issues Raised in This Appeal ................................................................................................... .66 WT/DS294/AB/RW 
Page ii  
 
  IV.
 Introduction to the United States' System for the Imposition and Assessment of 
Anti-Dumping Duties............................................................................................................ ....69  
V. Panel Composition.............................................................................................................. ......72  
VI. The Panel's Terms of Reference ...............................................................................................75  
A. "Amendments" to the Original Measures at Issue ....................................................... 77 
B. Close Nexus Analysis ................................................................................................... 82 
1. Scope of Compliance Proceedings und er Article 21.5 of the DSU ................82  
2. Application of Article 21.5 of the DSU by the Panel .....................................86  
3. The European Communities' Appeal  of the Panel's "Close Nexus" 
Analysis ..........................................................................................................90  
(a) Timing................................................................................................90  
4. The United States' Other Appeal of the Panel's "Close Nexus" Analysis.......96  
(a) Nature ................................................................................................96  
(b) Effects..............................................................................................100  
5. Separate Opinion...........................................................................................105  
C. "Omissions" or "Deficiencies" in the United States' Implementation........................ 110 
VII. The Scope of the United States' Compliance Obligations ......................................................115  
A. The Panel's Findings ................................................................................................. 116 
B. Claims and Arguments on Appeal.............................................................................. 119 
C. Analysis...................................................................................................................... 120 
VIII. Specific Cases Covered by the A ppeal and the Other Appeal................................................129  
A. Case 1: Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands ....... 130 
B. Case 6: Stainless Steel Wi re Rod from Sweden ......................................................... 134 
C. Case 31: Ball Bearings and Part s Thereof from the United Kingdom ...................... 137 
D. Cases 18 through 24 and 27 through 30.................................................................... 140 
IX. The Subsequent Sunset Reviews ............................................................................................142  
A. The Panel's Findings ................................................................................................. 142 
B. Claims and Arguments on Appeal.............................................................................. 144 
C. Analysis...................................................................................................................... 146 
1. Sunset Reviews in Cases 2, 3, 4, 5, and 19...................................................147  
2. Completing the Analysis...............................................................................151  
X. The Non-Existence of Measures between 9 April and 23 April/31 August 2007...................156  WT/DS294/AB/RW 
 Page iii 
 
 
  XI. The Alleged Arithmetical Error in the Section 129 Determination in Case 11 ......................160  
A. The Panel's Findings ................................................................................................. 160 
B. Claims and Arguments on Appeal.............................................................................. 161 
C. Analysis...................................................................................................................... 163 
XII. The "All Others" Rates Calculated in the Section 129 Determinations in  
Cases 2, 4, and 5 .............................................................................................................. .......168  
XIII. The European Communities' Re quest for a Suggestion..........................................................175  
XIV. Findings and Conclusions....................................................................................................... 177 
 
ANNEX I Notification of an Appeal by the European Communities, WT/DS294/28 
ANNEX II Notification of an Other Appeal by the United States, WT/DS294/29 
ANNEX III Procedural Ruling by the Appellate Body of 4 March 2009 
to allow public observation of the oral hearing WT/DS294/AB/RW 
Page iv  
 
  CASES CITED IN THIS REPORT 
 
Short title Full case title and citation 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measur es on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body 
Report WT/DS121/AB/R, DSR 2000:II, 575 
Australia – Automotive 
Leather II  
(Article 21.5 – US)  Panel Report, Australia – Subsidies Provided to Producers and Exporters of 
Automotive Leather – Recourse to Article 21.5 of the DSU by the United States , 
WT/DS126/RW and Corr.1, adopted 11 February 2000, DSR 2000:III, 1189 
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Australia – Salmon  (Article 21.5 – Canada)
  Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5 of the DSU by Canada , WT/DS18/RW, adopted 
20 March 2000, DSR 2000:IV, 2031 
Canada – Aircraft  
(Article 21.5 – Brazil)  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft – Recourse by Brazil to Article 21.5 of the DSU , WT/DS70/AB/RW, 
adopted 4 August 2000, DSR 2000:IX, 4299 
Canada – Autos  Appellate Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, 
DSR 2000:VI, 2985 
Canada – Continued Suspension Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R, adopted 14 November 2008 
Canada – Periodicals  Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473) 
Chile – Price Band System (Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina , WT/DS207/AB/RW, adopted 22 May 2007 
China – Auto Parts  Panel Reports, China – Measures Affecting Imports of Automobile Parts , 
WT/DS339/R, WT/DS340/R, WT/DS342/R and Add.1 and Add.2, adopted 
12 January 2009, as upheld (WT/DS339/R) , and as modified (WT/DS340/R, WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R, 
WT/DS340/AB/R, WT/DS342/AB/R 
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting Asbestos 
and Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, 
DSR 2001:VII, 3243 
EC – Bananas III   
(Article 21.5 – Ecuador)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador , 
WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, 803 
EC – Bananas III   
(Article 21.5 – Ecuador II) / 
EC – Bananas III   
(Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 
/ European Communities – Regime for the Importation, Sal e and Distribution 
of Bananas – Recourse to Article 21.5 of the DSU by the United States , 
WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008 WT/DS294/AB/RW 
 Page v 
 
 
  Short title Full case title and citation 
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, DSR 2003:III, 965  
EC – Bed Linen  
(Article 21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by 
India , WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 2003:IV, 1269  
EC – Chicken Cuts Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, 
adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157 
EC – Commercial Vessels Panel Report, European Communities – Measures Affecting Trade in 
Commercial Vessels , WT/DS301/R, adopted 20 June 2005, DSR 2005:XV, 
7713 
EC – Sardines  Panel Report, European Communities – Trade Description of Sardines , 
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate 
Body Report WT/DS231/AB/R, DSR 2002:VIII, 3451 
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , WT/DS146/R, 
WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827 
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports  
of Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 
Korea – Various Measures on 
Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 
2001, DSR 2001:I, 5 
Mexico – Corn Syrup  
(Article 21.5 – US)  Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the 
DSU  by the United States , WT/DS132/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, 6675 
US – Anti-Dumping Measures 
on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil 
Country Tubular Goods (OCTG) from Mexico , WT/DS282/AB/R, adopted 
28 November 2005, DSR 2005:XX, 10127 
US – Certain EC Products  Panel Report, United States – Import Measures on Certain Products from the 
European Communities , WT/DS165/R and Add.1, adopted 10 January 2001, as 
modified by Appellate Body Report WT/DS165/AB/R, DSR 2001:II, 413 
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 
2008 
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009 
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, DSR 2004:I, 3  
US – Countervailing Measures 
on Certain EC Products (Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning Certain 
Products from the European Communities – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS212/RW, adopted 27 September 
2005, DSR 2005:XVIII, 8950 WT/DS294/AB/RW 
Page vi  
 
  Short title Full case title and citation 
US –  Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise 
Subject to Anti-Dumping/Countervailing Duties , WT/DS345/R, adopted 1 
August 2008, as modified by Appellate Body Report WT/DS343/AB/R, 
WT/DS345/AB/R 
US – FSC  
(Article 21.5 – EC)  Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Articl e 21.5 of the DSU by the European 
Communities , WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55 
US – FSC  
(Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales 
Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW2, adopted 14 March 2006, DSR 2006:XI, 
4721 
US – Gambling  
(Article 21.5 – Antigua  and Barbuda) Panel Report, United States – Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services – Recourse to Article 21.5 of the DSU by Antigua and Barbuda , WT/DS285/RW, adopted 22 May 2007 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain  
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 
2001, DSR 2001:X, 4697 
US – Hot-Rolled Steel  Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled 
Steel Products from Japan , WT/DS184/R, adopted 23 August 2001 modified 
by Appellate Body Report WT/DS184/AB/R, DSR 2001:X, 4769 
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Car bon Quality Line Pipe from Korea , 
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403 
US – Oil Country Tubular 
Goods Sunset Reviews  
(Article 21.5 – Argentina) Appellate Body Report, 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 , WT/DS268/AB/RW, adopted 11 May 
2007 
US – Section 129(c)(1) URAA  Panel Report, United States – Section 129(c)(1) of the Uruguay Round 
Agreements Act , WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 2581 
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, 2755 
US – Shrimp  
(Article 21.5 – Malaysia)  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
 and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia , 
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481 
US – Shrimp  
(Article 21.5 – Malaysia)  Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp 
Products – Recourse to Article 21.5 of the DSU by Malaysia , WT/DS58/RW, 
adopted 21 November 2001, as upheld by Appellate Body Report WT/DS58/AB/RW, DSR 2001:XIII, 6529 
US – Shrimp (Thailand) / 
US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond Directive for Merchandise Subject 
to Anti-Dumping/Countervailing Duties , WT/DS343/AB/R, 
WT/DS345/AB/R, adopted 1 August 2008 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R, WT/DS345/AB/R WT/DS294/AB/RW 
 Page vii 
 
 
  Short title Full case title and citation 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada – 
Recourse by Canada to Article 21.5 of the DSU , WT/DS257/AB/RW, adopted 
20 December 2005, DSR 2005:XXIII, 11357 
US – Softwood Lumber IV 
(Article 21.5 – Canada) Panel Report, United States – Final Countervailing Duty Determination with 
Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 [of the DSU] , WT/DS257/RW, adopted 20 December 2005 , as 
upheld by Appellate Body Report WT/DS257/AB/RW, DSR 2005:XXIII, 
11401 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008 
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, 
DSR 2003:VII, 3117  
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Upland Cotton (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008 
US – Upland Cotton 
(Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – Recourse to 
Article 21.5 of the DSU by Brazil , WT/DS267/RW and Corr.1, adopted 20 June 
2008, as modified by Appellate Body Report WT/DS267/AB/RW 
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 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006, and Corr.1, DSR 2006:II, 417 
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 9 May 
2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 
2006:II, 521 
US – Zeroing (EC) (Article 21.5 – EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the 
DSU by the European Communities , WT/DS294/RW, circulated to WTO 
Members 17 December 2008 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007 
 WT/DS294/AB/RW 
Page viii  
 
  ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Description 
Ad Note  Interpretive Note to paragraphs 2 and 3 of Article VI of the GATT 
1994  
Anti-Dumping Agreement Agreement on Implementati on of Article VI of the General Agreement 
on Tariffs and Trade 1994  
Cases 1 through 31 As listed in the Annex to the European Communities request for the 
establishment of a panel pursuant to Article 21.5 of the DSU, WT/DS294/25, annexed to th e Panel Report, Annex A-1 
Customs  United States Customs and Border Protection  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes  
GATT 1994 General Agreement on Tariffs and Trade 1994  
ILC Draft Articles Draft Articles on Responsibility of States for internationally wrongful 
acts, adopted by the International Law Commission at its fifty-third session (2001), annexed to the Un ited Nations General Assembly 
Resolution A/RES/56/83 (29 January 2002) 
NSK NSK Bearings Europe Ltd. 
original panel Panel in the original US – Zeroing (EC)  proceedings 
original panel report Report of the panel in the original US – Zeroing (EC)  proceedings 
Panel Panel in these US – Zeroing (EC) (Article 21.5 – EC)  proceedings  
Panel Report Report of the Panel in these US – Zeroing (EC) (Article 21.5 – EC)  
proceedings  
Section 129  Section 129 of the Uruguay Round Agreements Act, Public Law 
No. 103-465, 108 Stat. 4836, United States Code , Title 19, 
Section 3538 (2000) 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures  
subsequent reviews The subsequent administ rative, changed circumstances, and sunset 
reviews adopted in relation to the 15  original investigations and the 16 
administrative reviews at issue in th e original proceedings challenged 
by the European Communities in  these Article 21.5 proceedings 
Tariff Act  United States Tariff Act of 1930, Public Law No. 1202-1527, 46 Stat. 
741, United States Code , Title 19, Chapter 4, as amended  
TKAST ThyssenKrupp Acciai Speciali Terni S.p.A. and ThyssenKrupp AST 
USA  
URAA Uruguay Round Agreements Act 
USDOC United States Department of Commerce 
USITC United States International Trade Commission WT/DS294/AB/RW 
 Page ix 
 
 
  Abbreviation Description 
Vienna Convention Vienna Convention on the Law of Treaties , done at Vienna, 
23 May 1969, 1155 UNTS 331;  8 In ternational Legal Materials 679 
Working Procedures  Working Procedures for Appellate Review , WT/AB/WP/5, 4 January 
2005  
WTO World Trade Organization 
WTO Agreement Marra kesh Agreement Establishing the World Trade Organization  
  WT/DS294/AB/RW 
 Page 1 
 
 
  WORLD TRADE ORGANIZATION  
APPELLATE BODY 
  
United States – Laws, Regulations and 
Methodology for Calculating Dumping 
Margins ("Zeroing") 
 
Recourse to Article 21.5 of the DSU by the 
European Communities  
 European Communities, Appellant/Appellee  
United States, Other Appellant/Appellee  
 India, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
Mexico, Third Participant  
Norway, Third Participant  
Separate Customs Territo ry of Taiwan, Penghu,  
     Kinmen and Matsu, Third Participant  
Thailand, Third Participant   AB-2009-1 
 
 Present:   Oshima, Presiding Member  Bautista, Member 
 Hillman, Member 
 
  
I. Introduction 
1. The European Communities and the United States each appeals certain issues of law and legal 
interpretations develope d in the Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recou rse to Article 21.5 of the DSU by the European 
Communities
 1 (the "Panel Report").  The Panel was established pursuant to Article 21.5 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ( t h e  " D S U " )  t o  
consider a complaint by the European Communities concerning the existence and consistency with the 
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 
(the " Anti-Dumping Agreement ") and the General Agreement on Tariffs and Trade 1994  (the "GATT 
1994") of measures taken by the United States to co mply with the recommendations and rulings of the 
Dispute Settlement Body (the "DSB") in the original proceedings in US – Zeroing (EC) .2 
2. The original proceedings concerned the use of  the so-called "zeroing" methodology by the 
United States Department of Commerce (the "USD OC") when calculating margins of dumping in the 
context of various anti-dumping proceedings.  The or iginal panel found that the United States' zeroing 
                                                      
1WT/DS294/RW, 17 December 2008. 
2The recommendations and rulings of the DSB resulted from the adoption on 9 May 2006, by the DSB, 
of the Appellate Body Report, WT/DS294/AB/R, and the Panel Report, WT/DS294/R, in US – Zeroing (EC).   
In this Report, we refer to the panel that considered the original complaint brought by the European 
Communities as the "original panel" and to its report as the "original panel report".  WT/DS294/AB/RW 
Page 2  
 
  methodology, as it relates to original investigations
3, "is a norm which, as such, is inconsistent with 
Article 2.4.2 of the [Anti-Dumping] Agreement. "4  The original panel also found that the United States 
acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement by applying "model zeroing"5 
in 15 specific original investigations.6  The original panel also found that the use of "simple zeroing"7 
in 16 specific administrative reviews8 was not inconsistent with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, 
and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and 
Article XVI:4 of the Marrakesh Agreement Establishi ng the World Trade Organization  (the " WTO 
Agreement ").9   
                                                      
3In this Report, we use the term "original investigations" to refer to investigations within the meaning 
of Article 5 of the Anti-Dumping Agreement.   
4Original Panel Report, paras. 7.106 and 8.1(c).  The original panel also found that other measures 
challenged by the European Commun ities, such as the "Standard Zeroing Procedures", Sections 731, 
751(a)(2)(A)(i)-(ii), 771(35)(A)-(B), and 777(A)(d) of the United States Tariff Act of 1930 (Public Law 
No. 1202-1527, 46 Stat. 741, United States Code , Title 19, Chapter 4, as amended) (the "Tariff Act"), and 
Section 351.414(c)(2) of the USDOC Regulations, were not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 5.8, 
9.3, 11.1, 11.2, 11.3, and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994, and 
Article XVI:4 of the WTO Agreement . (See ibid., paras. 7.69, 7.291, 7.294, and 8.1(b), (g), and (f))  
5Before the original panel, the European Communities used the term "model zeroing" to describe a 
methodology whereby an investigating authority compares  the weighted average normal value and the weighted 
average export price for each model of the product un der investigation, and treats as zero the results of 
model-specific comparisons where the weighted averag e export price exceeds the weighted average normal 
value when aggregating comparison results for the purposes of calculating a margin of dumping for the product 
under investigation. (See Original Panel Report, paras. 2.3 and 2.10) 
6See Original Panel Report, paras. 7.32 and 8.1(a).  The original panel reasoned that, when a margin of 
dumping is calculated on the basis of multiple averaging by model type, Article 2.4.2 requires that the margin of 
dumping for the product in question reflect the results of  all such comparisons, in cluding weighted average 
export prices that are a bove the normal value for individual models. (See  ibid ., para. 7.31)  The original 
investigations challenged by the European Communities before the original panel were listed in Panel 
Exhibits EC-1 th rough EC-15. (See  ibid., paras. 2.6 and footnote 119 to para. 7.9)  The original panel exercised 
judicial economy in relation to the Eu ropean Communities' claims under Articles 1, 2.4, 3.1, 3.2,  3.5, 5.8, 9.3, 
and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GAT T 1994, and Article XVI:4 of the 
WTO Agreement . (See  ibid., para. 8.2)   
7Before the original panel, the European Communities used the term "simple zeroing" in administrative 
reviews to describe a methodology whereby an investigating authority compares the prices of individual export transactions against monthly weighted  average normal values and treats as zero the results of comparisons 
where the export price exceeds th e monthly weighted average normal value when aggregating comparison 
results. (See Original Panel Report, paras. 2.5 and 2.12) 
8In this Report, we use the term "administrative review" to describe the "periodic review of the amount 
of anti-dumping duty" as required in Section 751(a) of the Tariff Act.  That provision requires the USDOC to 
review and determine the amount of any anti-dumping duty at least once during each 12-month period beginning on the anniversary of the date of publication of an anti-dumping duty order if a request for such a 
review has been received.  The administrative review s challenged by the Europe an Communities before the 
original panel were listed in Panel Exhibits EC-16 through EC-31. (See Original Panel Report, para. 2.6 and footnote 202 to para. 7.110)   
9See Original Panel Report, paras. 7.223, 7.284, 7.288, and 8.1(d), (e), and (f).  The original panel 
reasoned, inter alia , that Articles 2.4 and 2.4.2 did not expressly prohibit the use of zeroing in asymmetric 
comparisons between weighted averag e normal value and export prices  for individual transactions. (See  ibid ., 
paras. 7.223 and 7.284)  WT/DS294/AB/RW 
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  3. On appeal, the Appellate Body upheld, on the basi s of modified reasoning, the original panel's 
finding that the zeroing methodology, as it relates to original investigations in which the weighted 
average-to-weighted average comparison methodology is used to calculate margins of dumping, is 
inconsistent, as such, with Article 2.4.2 of the Anti-Dumping Agreement.10  However, the Appellate 
Body reversed the original panel's finding that the United States did not act inconsistently with Articles 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the 
16 administrative reviews at issue, and found instead  that the use of zeroing in those administrative 
reviews was inconsistent  with those provisions.
11  The Appellate Body stated that the terms 
"dumping" and "margins of dumping" in  Article VI of the GATT 1994 and the Anti-Dumping 
Agreement  apply to the product under investigation as a whole, and that, under Article 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994, margins of dumping are established for 
foreign producers or exporters.12  The Appellate Body reasoned that Article 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994 require inves tigating authorities to ensure that the total 
amount of anti-dumping duties collected on entries of a product from a given exporter shall not exceed the margin of dumping for that exporter or  foreign producer as established under Article 2 of 
the Anti-Dumping Agreement .
13  The Appellate Body held that, "i f a margin of dumping is calculated 
on the basis of multiple comparisons made at an intermediate stage, it is only on the basis of 
aggregating all these intermediate results that an  investigating authority can establish margins of 
dumping for the product as a whole" and, therefore, "the margins of dumping with which the assessed 
anti-dumping duties have to be compared under Article 9.3 of the  Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 are foreign producers'  or exporters' margins of dumping that reflect 
the results of all of the multiple comparisons carried  out at an intermediate stage of the calculation."14  
According to the Appellate Body, the USDOC acted in consistently with this requirement because, by 
disregarding the results of comparisons for which the export price of specific transactions exceeded 
the contemporaneous average normal value, it asses sed anti-dumping duties in excess of the exporters' 
                                                      
10See Appellate Body Report, US – Zeroing (EC) , paras. 222 and 263(b).  
11See Appellate Body Report, US – Zeroing (EC) , paras. 135 and 263(a)(i).  The Appellate Body also 
declared "moot, and of no legal effect " the original panel's finding on Article VI:1 of the GATT 1994;  declined 
to rule on the European Communities' claim and declared "moot, and of no legal effect" the original panel's findings under the first sentence of Article 2.4 of the Anti-Dumping Agreement ;  upheld the original panel's 
finding that zeroing is not an impermissible allowance or adjustment under Article 2.4, third to fifth sentences, 
of the Anti-Dumping Agreement ;  declined to rule on the European Communities' conditional appeal under 
Article 2.4.2 of the Anti-Dumping Agreement ;  upheld the original panel's finding that the United States did not 
act inconsistently with Articles 11.1 and 11.2 of the Anti-Dumping Agreement ;  and considered it was not 
necessary to rule on whether the zeroing methodology, as applied in the administrative reviews at issue, was inconsistent with Articles 1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement . 
(See ibid., paras. 135, 147, 159, 164, 169, 172, and 263(a)(iii)-(vii))   
12See Appellate Body Report, US – Zeroing (EC) , paras. 126 and 129. 
13See Appellate Body Report, US – Zeroing (EC) , para. 130.  
14Appellate Body Report, US – Zeroing (EC) , para. 132. WT/DS294/AB/RW 
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  margins of dumping.
15  However, the Appellate Body found that it could not complete the analysis to 
determine whether the zeroing methodology, as it relat es to administrative reviews, is inconsistent, as 
such, with Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4 of the Anti-Dumping Agreement , 
Articles VI:1 and VI:2 of the GATT 1994, and Article XVI:4 of the WTO Agreement .16 
4. On 9 May 2006, the DSB adopted the original  panel and Appellate Body reports.  The 
reasonable period of time for the United States to implement the recommendations and rulings of the 
DSB, mutually agreed by the parties pursuant to Article 21.3(b) of the DSU, was 11 months, expiring 
on 9 April 2007.17 
5. On 27 December 2006, the United States announced that it would terminate the use of "model 
zeroing" in original investigations in which the margins of dumping are determined on the basis of 
weighted average-to-weighted average comparisons of export prices and normal value.  This 
modification became effective on 22 February  2007.  On 1 March 2007, the USDOC initiated 
proceedings pursuant to Section 129 of the Uruguay Round Agreements Act18 (the "URAA") covering 
12 of the 15 original investigations at issue in the original proceedings.19  On 9 April 2007, the 
USDOC issued Section 129 determinations in whic h it recalculated, without zeroing, the margins of 
dumping for 11 of the original investigations at issue in the original proceedings.  The results of those 
Section 129 determinations became effective two weeks later, on 23 April 2007.  The Section 129 
determination in the remaining case was issued on 20 August 2007, effective 31 August 2007.  The 
recalculation without zeroing of the margins of dumping for the exporters concerned led to the 
revocation of two of the rema ining 12 anti-dumping duty orders.20  The remaining 10 original anti-
dumping duty orders were revoked for the exporters  or producers for which the USDOC found zero or 
de minimis  margins, whereas, for other exporters or produ cers, duties were either reduced or increased 
as a result of the recalculation.  In addition, the US DOC issued, in the ordinary course, administrative 
review determinations with respect  to anti-dumping duty orders relating to the original investigations 
at issue in the original proceedings.  The US DOC continued to apply zeroing when calculating 
margins of dumping in those administrative reviews.21  
                                                      
15See Appellate Body Report, US – Zeroing (EC) , para. 133.  
16See Appellate Body Report, US – Zeroing (EC) , paras. 228 and 263(c)(ii).  
17WT/DS294/19.  
18Section 129 of the Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 4836, United 
States Code , Title 19, Section 3538 (2000). 
19Three of the 15 anti-dumping duty orders underlying the original investigations challenged by the 
European Communities had been previously revoked. 
20See Panel Report, para. 3.1(b)(i). 
21See Panel Report, para. 3.1(c).   WT/DS294/AB/RW 
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  6. With respect to the 16 administrative reviews at  issue in the original proceedings, the United 
States considered that the cash deposit rates calcul ated in those proceedings—with the exception of 
one exporter—were no longer in effect because they had been superseded by subsequent 
administrative reviews.  Consequently, "no further action was taken by the United States in order to 
implement the DSB recommendations and rulings in  respect of these administrative review[s]."22 
7. Sunset reviews23 were also conducted with respect to some of the measures at issue in the 
original proceedings.  On 7 March 2007, following negative determinations by the United States 
International Trade Commission (the "USITC") of the likelihood of continuation or recurrence of 
injury, the USDOC revoked anti-dumping duty orders in  four Cases where the original determinations 
had been challenged in the original proceedings.  Twelve sunset review determinations issued in 
relation to the measures at issue in the original proceedings resulted in  the continuation of the relevant 
anti-dumping duty order.24  
8. On 13 September 2007, the European Communities requested that the matter of compliance 
with the recommendations and rulings of the DSB in US – Zeroing (EC) be referred to the original 
panel pursuant to Article 21.5 of the DSU.25  On 25 September 2007, the DSB established the 
Article 21.5 panel.  In an exchange of views rela ting to the composition of the compliance panel, the 
Secretariat of the World Trade Organization (the "WTO") indicated to the parties that two members of the original panel were not available to serve on the compliance panel.
26  In a letter to the WTO 
Secretariat dated 1 October 2007, the European Communities expressed the view that, as the 
remaining panelist was available, he should not  be excluded from serving on the compliance panel.27   
On 28 November 2007, the European Communities re quested the Director-General of the WTO to 
determine the composition of the panel.  On 30 N ovember 2007, the Director-General established the 
composition of the Panel by appointing three new panelists. 
9. The European Communities made claims in relation to certain of the Section 129 
determinations adopted by the United States to im plement the recommendations and rulings of the 
DSB.28  In addition, the European Communities challenged in these Article 21.5 proceedings 
                                                      
22Panel Report, para. 3.1(d).  
23In this Report, we use the term "sunset review" to describe the review of an anti-dumping duty order 
at the end of five years, as required by Section 751(c) of the Tariff Act and Article 11.3 of the Anti-Dumping 
Agreement .  Article 11.3 requires the USDOC to conduct a revi ew to determine, five years after the date of 
publication of an anti-dumping duty order, whether revocation of the anti-dumping duty order would likely lead 
to continuation or recurrence of dumping and material injury.  
24See Panel Report, para. 3.1(e).   
25WT/DS294/25.  
26Panel Report, para. 5.64. 
27Panel Report, para. 5.64. 
28See Panel Report, para. 3.2(a) (referring to Cases 2, 3, 4, 5, and 11).  WT/DS294/AB/RW 
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  subsequent administrative reviews, changed circumstances reviews
 29, and sunset reviews adopted in 
relation to the 15 original investigations and the 16 administrative reviews at issue in the original 
proceedings (the "subsequent reviews")30, as well as liquidation and asse ssment instructions and final 
liquidation of duties resulting from those subsequent reviews.31  The European Communities further 
challenged related omissions and deficiencies in the United States' implementation of the DSB's recommendations and rulings.
32  The European Communities also claimed that the Panel composition 
was not consistent with Articles 21.5 and 8.3 of the DSU.   
10. Before the Panel in these Article 21.5 proceed ings, the European Communities claimed that 
the United States failed to comply with the reco mmendations and rulings of the DSB, and acted 
inconsistently with Articles 2.1, 2.4, 2.4.2, 9.3, and 11.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994, when, after the en d of the reasonable period of time, the United 
States:  
(a) extended the measures at issue in the origin al proceedings pursuant to sunset review 
determinations that relied on margins of dumping calculated with zeroing;  
(b) continued to collect anti-dumping duties and established new cash deposit rates based 
on zeroing with respect to the measures at issue in the original proceedings and 
subsequent reviews;  
(c) failed to revoke fully the anti-dumping duty orders underlying the original 
investigations at issue in the original proceedings;  
(d) continued to collect duties based on zeroing in relation to the 16 administrative 
reviews at issue in the original proceedings  and in subsequent administrative reviews, 
and continued to rely on margins of dumping calculated with zeroing in sunset 
reviews subsequent to those administrative reviews;  and 
                                                      
29In this Report, we use the term "changed circumstances review" to describe the review of a final 
affirmative dumping determination or su spension agreement, as required by Section 751(b) of the Tariff Act.  
That provision requires the USDOC to review a final dumping determination or a suspension agreement based 
upon a request by an interested party demonstrating th at changed circumstances warrant a review of such a 
determination.  
 30In the Annex to its request for the establishment of a panel under Article 21.5 of the DSU, the 
European Communities identified 31 "Cases".  In relatio n to each of these Cases, it also identified reviews 
subsequent to the 15 original investigations (Cases 1 through 15) and the 16 administrative reviews (Cases 16 
through 31) at issue in the original proceedings.  For eas e of reference, we will use the same numbering system 
in this Report to facilitate identification of the 31 Case s and the various proceedings at issue, as listed in the 
panel request attached to the Panel Report as Annex A-1, pp. A-7 to A-16. (See Panel Report, footnote 34 to 
para. 3.1) 
31See Panel Report, para. 3.2(b) and (c).    
32See Panel Report, para. 3.2(d).   WT/DS294/AB/RW 
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  (e) failed to take any measure to comply with the DSB's recommendations and rulings 
between the end of the reasonable period of time (9 April 2007) and the date on 
which the Section 129 determinations b ecame effective (23 April and 31 August 
2007).33   
11. The European Communities also claimed that the determination of the "all others" rate and an 
arithmetical error in the Section 129 determinati ons adopted by the United States to implement the 
recommendations and rulings of the DSB were inconsiste nt with Articles 2, 3.1, 3.2, 3.5, 5.8, 6.8 and 
Annex II, 9.3, 9.4, 11.1, and 11.2 of the Anti-Dumping Agreement and Articles VI:1 and VI:2 of the 
GATT 1994.34  The United States requested the Panel to re ject these claims and to find that the United 
States had fully complied with the DSB's recommenda tions and rulings in the original proceedings.  
12. The Panel Report was circulated to WTO Me mbers on 17 December 2008.  The Panel found, 
inter alia , that: 
(b) With respect to the EC general cl aims of failure, by the United States, 
to fully implement the recommendations and rulings of the DSB in the original dispute: 
(i) The United States has failed to comply with the 
recommendations and rulings of the DSB in the original dispute and has acted inconsistently with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 
1994 by determining, after the end of the reasonable period 
of time, the amount of anti-dumping duty to be assessed 
based on zeroing in the 2004-2005 administrative review in case 1 ( Hot Rolled Steel from the Netherlands ) and issuing 
assessment instructions pursuant to that determination and by determining, after the end of the reasonable period of time, the amount of anti-dumping duty to be assessed based on 
zeroing in the 2004-2005 administrative review in case 6 
(Stainless Steel Wire Rod from Sweden ) and issuing 
assessment instructions pursuant to that determination.  
(ii) The United States has failed to comply with the 
recommendations and rulings of the DSB in the original 
dispute by continuing to apply to imports of NSK cash 
deposit rates established in the 2000-2001 administrative review in case 31 ( Ball Bearings from the United Kingdom ), 
a measure which was found to be inconsistent with Articles 9.3 of the Anti-Dumping Agreement  and VI:2 of the 
GATT 1994 in the original dispute. 
                                                     
 
33Panel Report, para. 4.1(a)-(f). 
34See Panel Report, para. 4.1(g)-(i). WT/DS294/AB/RW 
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  (iii) The United States has not failed to comply with the 
recommendations and rulings of the DSB in the original dispute by taking actions to liquidate anti-dumping duties calculated with zeroing pursuant to final duty assessment determinations made before th e end of the reasonable period 
of time (including pursuant to subsequent administrative 
reviews listed in the Annex to the EC Article 21.5 panel request).  
(iv) The United States has not failed to comply with the 
recommendations and rulings of the DSB in the original 
dispute by determining, prior to the end of the reasonable 
period of time, the amount of anti-dumping duty to be assessed based on zeroing in the 2005-2006 administrative review determination in case 1 ( Hot Rolled Steel from the 
Netherlands ).  
(v) The United States has not failed to comply with the 
recommendations and rulings of the DSB in the original dispute and has not acted inconsistently with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement  and Article VI:2 of 
the GATT 1994 by establishing a new cash deposit rate based on zeroing in the 2004-2005 administrative review 
determination in case 6 ( Stainless Steel Wire Rod from 
Sweden ) because due to the revocation of the measure in 
question, no cash deposit requirement was actually imposed. 
(vi) Having found that none of the sunset reviews with respect to 
which the European Communities makes claims and which 
are within our terms of reference had, by the time of the 
establishment of the Panel, resulted in the continuation of the concerned anti-dumping orders, we make no findings in 
respect of the claims of the European Communities that the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement  as a result of having relied on 
margins of dumping calculated with zeroing in the context of 
sunset reviews involving measures challenged in the original dispute.  
(vii) We make no findings with respect to the EC claim that the 
United States violated Articles 21.3 and 21.3(b) of the DSU 
by failing to take any measure to comply between 9 April 
and 23 April/31 August 2007. 
(c) With respect to the EC claims that certain US measures taken to 
comply are inconsistent with the US obligations under the covered agreements: 
(i) Having found that the claim of the European Communities 
with respect to the Section 129 determination in case 11 
(Stainless Steel Sheet and Strip in Coils from Italy ) 
concerning the calculation error is not properly before us, we 
make no findings on the consiste ncy of that determination  WT/DS294/AB/RW 
 Page 9 
 
 
  with Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994 . 
.... 
(iii) With respect to cases 2, 4 and 5  (Stainless Steel Bar from 
France, Italy and the United Kingdom ), the United States did 
not act inconsistently with Article 9.4 of the Anti-Dumping 
Agreement  in the establishment of "all others" rates in the 
Section 129 determinations in these cases. We make no findings regarding the EC claims under Article 6.8 and Annex II of the Anti-Dumping Agreement  in respect of these 
same measures.
35 
13. On 13 February 2009, the European Communiti es notified the DSB, pursuant to Articles 16.4 
and 17 of the DSU, of its intention to appeal certa in issues of law and legal interpretations developed 
in the Panel Report and filed a Notice of Appeal 36, pursuant to Rule 20 of the Working Procedures for 
Appellate Review 37 (the " Working Procedures ").  On 20 February 2009, the European Communities 
filed an appellant's submission.38  On 25 February 2009, the United States notified the DSB, pursuant 
to Article 16.4 of the DSU, of its intention to ap peal certain issues of law and legal interpretations 
developed in the Panel Report a nd filed a Notice of Other Appeal 39, pursuant to Rule 23(1) and (2) of 
the Working Procedures .  On 2 March 2009,  the United States  filed an other appellant's submission.40  
On 10 March 2009, the United States and the Eu ropean Communities each filed an appellee's 
submission.41  On 26 February 2009, Japan file d a third participant's submission42;  on 10 March 
2009, Korea and Norway each filed a third participant's submission43 and India, Mexico, the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Ma tsu, and Thailand each no tified its intention to 
appear at the oral hearing and to make an opening statement.44 
14. On 16 and 19 February 2009, respectively, the European Communities and the United States 
requested the Appellate Body Division hearing this appeal to authorize public observation of the oral 
hearing.  Both participants relied on the r easoning of the Appellate Body in previous cases 45 to 
authorize public observation of the oral hear ing, and expressed a preference for simultaneous 
                                                      
35Panel Report, para. 9.1. 
36WT/DS294/28 (attached as Annex I to this Report). 
37WT/AB/WP/5, 4 January 2005. 
38Pursuant to Rule 21 of the Working Procedures . 
39WT/DS294/29 (attached as Annex II to this Report). 
40Pursuant to Rule 23(3) of the Working Procedures . 
41Pursuant to Rules 22 and 23(4) of the Working Procedures .   
42Pursuant to Rule 24(1) of the Working Procedures.  
43Pursuant to Rule 24(1) of the Working Procedures.  
44Pursuant to Rule 24(2) of the Working Procedures.  
45US – Continued Suspension / Canada –  Continued Suspension ;  EC – Bananas III (Article 21.5 – 
Ecuador II)  /  EC – Bananas III (Article 21.5 – US) ;  US – Continued Zeroing . WT/DS294/AB/RW 
Page 10  
 
  closed-circuit television broadcast to a separate ro om.  On 20 February 2009, the Division invited the 
third participants to comment in writing on the re quests of the European Communities and the United 
States, as well as the specific logistical arrangeme nts proposed in the requests.  Comments were 
received on 2 March 2009 from India, Japan, Korea, Mexico, Norway, the Separate Customs Territory 
of Taiwan, Penghu, Kinmen and Ma tsu, and Thailand.  Japan, Norway, and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Mats u expressed support for the requests of the 
participants.  India, Mexico, and Thailand expressed  the view that the provisions of the DSU do not 
allow public hearings at the appellate stage.  Kore a shared these concerns, but did not object to the 
public observation of the oral hearing.  On 4 March 2009, the Division issued a Procedural Ruling in which it authorized the public observation of the oral hearing and adopted additional procedures on 
logistical arrangements in accordance with Rule 16(1) of the Working Procedures .
46  Notice of the 
opening of the hearing to public observation and regi stration instructions were provided on the WTO 
website.   
15. The oral hearing in this appeal was held on 23-24 March 2009.  The participants and third 
participants were given the opportunity to present oral arguments and respond to questions posed by 
the Division hearing the appeal.  Public observa tion took place via simultaneous closed-circuit 
television broadcast to a separate room.47 
II. Arguments of the Participants  and the Third Participants 
A. Claims of Error by the European Communities – Appellant 
1. Panel Composition  
16. The European Communities alleges that the Panel failed to comply with the "basic 
requirements of due process" and failed to ensure the "proper exercise of its judicial function" by not 
addressing the European Communities' claim that th e Panel was composed in a manner inconsistent 
with Articles 8.3 and 21.5 of the DSU.48  The European Communities submits that, because panels, 
and ultimately the Appellate Body, have the aut hority and the obligation to rule on the correct 
interpretation of the DSU, defects that could ari se during panel composition are subject to judicial 
review.  Therefore, the Panel could not have a voided the substance of the European Communities' 
                                                      
46The Procedural Ruling is attached as Annex III to this Report.   
47Pursuant to the additional procedures adopted by the Division, India, Korea, Mexico, and Thailand 
each requested that its oral statements and responses to  questions remain confiden tial and not be subject to 
public observation.   
48European Communities' appellant's submission, para. 25.  The European Communities believes that 
the Panel also acted inconsistently with Articles 1.1, 3.2, 3.3, 7.2, 11, 12.7, 19.2, and 23.1 of the DSU.  WT/DS294/AB/RW 
 Page 11 
 
 
  claim under Articles 8.3 and 21.5 of the DSU by characterizing it as a question of "application"49 of 
the DSU by the Director-General.  
17. According to the European Communities, th e United States unlawfully withdrew, in the 
context of the compliance proceedings, the consent it  provided pursuant to Article 8.3 of the DSU in 
the original proceedings to the appointment of pa nelists that are nationals of the parties.  The 
European Communities maintains that the United St ates' erroneous interpretation of the DSU was 
followed by the WTO Director-General, and ultimatel y by the Panel, because there would have been 
no basis for the application of Article 8.7 of th e DSU in relation to the panelist for which an 
agreement existed pursuant to Article 8.3.  For th e European Communities, the Panel erred in finding 
that Article 8.7 applies "whenever ther e is no agreement between the parties"50, because the 
disagreement between the parties related to the corr ect interpretation of Article 8.3.  Instead of 
presupposing the absence of an agreement under Ar ticle 8.3, the Panel should have addressed the 
question of whether or not the United States could withdraw unilatera lly its agreement under 
Article 8.3. 
18. The European Communities requests the Appellate  Body to find that the composition of the 
Panel in this case was inconsistent with Ar ticles 8.3 and 21.5 of the DSU.  The European 
Communities maintains that its claim raises systemic implications that concern the integrity of the 
dispute settlement system, because the Panel's approach  would imply that panels can be composed in 
a way that would allow losing parties to "unilate rally sack panellists that have found against them 
half-way through the proceedings".51  The European Communiti es observes that compliance 
proceedings and original proceedings relate to a "continuum of events"52, and that, under Article 21.5 
of the DSU, it remained "possible"53 for the original panel, consisting of the remaining panelist 
together with two new appointees, to deal with th e matter.  According to the European Communities, 
once a panelist has engaged in the dispute, he or  she must be protected throughout the proceedings 
from pressure from either party.  The European Communities finds contextual support for its position 
                                                      
49European Communities' appellant's submission, pa ra. 26 (quoting Panel Report, para. 8.16).  
50European Communities' appellant's submission, pa ra. 29 (quoting Panel Report, para. 8.17).   
51European Communities' appellant's submission, para. 39. (emphasis omitted) 
52European Communities' appellant's submission, pa ra. 40 (referring to Appellate Body Report, Mexico 
– Corn Syrup (Article 21.5 – US) , para. 121;  Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – 
Canada) , para. 90;  Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina) , para. 136;  
Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 87;  Appellate Body Report, US – Upland Cotton 
(Article 21.5 – Brazil) , para. 397;  Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – 
Bananas III (Article 21.5 – US) , para. 258;  and Appellate Body Reports, US – Continued Suspension and 
Canada – Continued Suspension , para. 342). 
53European Communities' appellant's submission, para. 41.  In the European Communities' view, one of 
these new panelists could be a citizen of the United States , because the agreement under Article 8.3 refers to the 
nationality of parties to a dispute, not to individuals. WT/DS294/AB/RW 
Page 12  
 
  in Article 8.6 of the DSU, pursu ant to which the parties shall not oppose panelists other than for 
compelling reasons, and in Article 21.5 of the DSU,  which provides that a panel shall circulate its 
report within 90 days (which is a result easier to achieve with the same panelists).  The European 
Communities also considers that its position is cons istent with the object and purpose of the DSU, 
which includes the prompt and effective settlement of disputes by independent panelists resulting in 
binding panel reports. 
19. The European Communities disagrees with the Pa nel's statement that, if it had come to the 
conclusion that it was improperly constituted, it woul d necessarily have to decline its jurisdiction to 
address the other claims in this dispute.  In any event, the European Communities requests the 
Appellate Body to refrain from making any conseque ntial finding that the Panel had no jurisdiction to 
examine and rule on its other claims.  The European Communities considers that it has the right in this 
specific case, and with respect to this specific issu e of consequential findings, to "partially waive or 
relinquish"
54 its rights under the DSU, and it exercises that ri ght in this appeal.  In the event that the 
Appellate Body should find that the Panel had no jurisdiction to examine and rule on any of the 
European Communities' other claims in this dis pute, the European Communities would withdraw the 
entirety of its appeal on the question of panel composition. 
2. The Panel's Terms of Reference  
20. The European Communities argues that the Panel er red in excluding, in response to a request 
by the United States for a preliminar y ruling, from its terms of refere nce the subsequent reviews that 
were issued before  the adoption of the DSB's recommendations and rulings in the original 
proceedings.  The European Communities urges the A ppellate Body to reverse this finding, and to 
find instead that all the subsequent reviews listed in the European Communities' panel request fell 
within the Panel's terms of reference under Article 21.5 of the DSU, because they were:  (i) amendments to the original investigations a nd administrative reviews at issue in the original 
proceedings;  (ii) omissions or deficiencies in the United States' implementation of the DSB's recommendations and rulings;  and, in  the alternative, those reviews (iii) had a "close nexus" to those 
DSB rulings. 
21. First, the European Communities maintains that th e Panel erred in finding that the subsequent 
reviews did not fall under its terms of reference be cause they were "amendments" to the measures at 
issue in the original proceedings.  The Europ ean Communities argues that the Panel improperly 
narrowed the context in which the term "any amendm ents" was used in the original proceedings by 
                                                     
 
54European Communities' appellant's submission, para. 50.  WT/DS294/AB/RW 
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  focusing on the manner in which the European Commun ities framed its claims in its original panel 
request.  The European Communities maintains further that an examination of how the measures at 
issue had been clarified in the course of the orig inal proceedings (including in its panel request, 
submissions to the panel, descriptive part of the panel report, interim and final panel report, and 
Appellate Body report) indicates that "any amendm ents" to the 15 original investigations and the 
16 administrative reviews at issue in that dispute would be covered by the DSB's recommendations 
and rulings.  The European Communities adds that the use of the term "any" by the panel and the 
Appellate Body indicates the "broad coverage"55 of the measures at issue in the original proceedings.  
Furthermore, the ordinary meaning of the te rm "amendment" indicates that any "changes or 
modifications"56 to the measures at issue are included.  In this respect, the European Communities 
notes that the subsequent administrative and sunset  reviews listed in its Article 21.5 panel request 
modified the measures at issue either by assessing duties and imposing new cash deposit rates based 
on zeroing, or by extending the life of anti-dumping measures on the basis of margins of dumping calculated with zeroing.   
22. Secondly, the European Communities argues that  the Panel erred in failing to examine its 
claim that subsequent administrative and sunset re views fell within the Panel's terms of reference as 
"omissions" or "deficiencies"
57 in the United States' implementation of the DSB's recommendations 
and rulings.  In declining to address the European  Communities' claim in this respect on the grounds 
that "any 'omission' or 'deficiency' of the United St ates in the form of a subsequent review would be 
captured in the ['close nexus'] analysis"58, the Panel disregarded the "conditional order of the legal 
claims"59 raised by the European Communities.  This  is because the European Communities' claim 
that subsequent reviews fell within the Panel's term s of reference in the light of their "close nexus" to 
the original measures at issue was made in the altern ative, subject to the condition that the Panel reject 
its main claims that subsequent reviews fell within the Panel's terms of reference either as 
"amendments" to the original measures at issue, or as "omissions" or "deficiencies" in the United 
States' implementations of the DSB's recommenda tions and rulings.  The European Communities 
contends that panels are "in principle bound by the sequencing order of the legal claims made by the 
complaining party"60 because this forms part of their manda te.  Therefore, the European Communities 
submits that the Panel failed to comply with its mandate under Article 11 of the DSU in declining to 
                                                      
55European Communities' appellant's submission, para. 71. (emphasis omitted) 
56European Communities' appellant's submission, para. 72. (emphasis omitted) 
57European Communities' appellant's submission, para. 79. 
58European Communities' appellant's submission, pa ra. 75 (quoting Panel Report, para. 8.86).  
59European Communities' appellant's submission, para. 79. (emphasis omitted) 
60European Communities' appellant's submission, para. 79.  WT/DS294/AB/RW 
Page 14  
 
  examine its claim that any omissions and deficien cies by the United States in connection with the 
original measures at issue and subsequent review s fell within the Panel's terms of reference. 
23. Moreover, the European Communities argues that the Panel exercised false judicial economy 
in finding that the United States' omissions would be "captured" in its analysis of whether the subsequent reviews could fall within  its terms of reference by virt ue of their close nexus to the 
original measures at issue.  According to the European Communities, the only "omission" by the 
United States that the Panel addressed in its "clo se nexus" analysis was th e continued imposition of 
cash deposits at rates calculated with zeroing after th e end of the reasonable period of time.  However, 
the European Communities' challenge in this regard  also encompassed other omissions by the United 
States that were not addressed by the Panel's "close  nexus" analysis.  More specifically, the European 
Communities challenged omissions by the United Stat es in the form of actions to assess and collect 
duties after  the end of the reasonable period of time with respect to unliquidated entries made before  
that date, and the United States' failure to r ecalculate, without zeroing, margins of dumping upon 
which United States authorities would rely in maki ng their likelihood-of-dumping determinations in 
the subsequent sunset reviews at issue.  Conseque ntly, the Panel's analysis  only partially addressed 
omissions and deficiencies in the United States ' implementation of the DSB's recommendations and 
rulings.  According to the European Communities, each of the omissions by the United States fell 
within the Panel's terms of reference because "t he necessary 'measure taken to comply' [did] not 
exist."
61  
24. Finally, the European Communities submits that  the Panel erred in excluding the subsequent 
reviews that were issued before  the adoption of the DSB's recommendations and rulings from its 
terms of reference, for the reason that they did not have a sufficiently close nexus, in terms of timing , 
with the original measures at issue and the DS B's recommendations and rulings.  The European 
Communities considers that the fact that a measure pre-dates the adoption of the DSB's 
recommendations and rulings cannot be  determinative of the question wh ether it falls within the scope 
of compliance proceedings.  The European Communities emphasizes that compliance does not 
necessarily occur by virtue of actions that  take place after the adoption of the DSB's 
recommendations.  Rather, a Member may withdraw a measure within the meaning of Article 3.7 of 
the DSU, or bring it into conformity with its ob ligations under Article 19.1 of the DSU, at any time 
after the establishment of the panel and before the a doption of the panel or Appellate Body reports.  
The European Communities adds that the "inherent limits"62 of the claims that may be submitted to an 
                                                      
61European Communities' appellant's submission, para. 81 (referring to Appellate Body Report, US –
Softwood Lumber IV (Article 21.5 – Canada) , para. 67).    
62European Communities' appellant's submission, para. 90.   WT/DS294/AB/RW 
 Page 15 
 
 
  Article 21.5 panel should not allow circumvention of a WTO Member's implementation obligations, 
and should not undermine the effective resolution of disputes.  For this reason, the European 
Communities suggests that the effects of a measure are the relevant factor in determining whether 
such measure may be examined in proceedings under Article 21.5 of the DSU.63  By contrast, factors 
such as the timing, direction, or intention of a measure cannot limit the scope of compliance proceedings, because they could be used by WTO Members to circumvent their compliance 
obligations.   
25. In the European Comm unities' view, the Panel's finding that the timing  of subsequent 
measures may undermine their close nexus with th e DSB's recommendations and rulings ignores the 
fact that successive determinations of different ty pes are made in a single trade remedy proceeding.  
In this sense, subsequent reviews form part of a "continuum of events"
64 that is largely determined by 
the provisions of the Anti-Dumping Agreement .  According to the European Communities, "giving 
relevance to the timing of the subsequent measu res to break the close connection with the DSB 
recommendations and rulings in the original dispute ignores  the fact that those successive 
determinations of different typ es are made in the context of a single trade remedy proceeding , 
involving the imposition, assessment and collection of  anti-dumping duties on imports of a particular 
subject product, from the same country."65  Therefore, determinations made in subsequent reviews 
under the same anti-dumping duty order are cl osely connected for th e purposes of assessing 
compliance with the DSB's recommendations and rulings, regardless of their timing.  According to the 
European Communities, the United States confirmed th is link when it claimed before the Panel that 
the existence of such subsequent reviews "imple mented" the DSB's recommendations and rulings or 
constituted "withdrawal" of the measur es found to be WTO-inconsistent.66  The European 
Communities adds that, because the United States'  actions to collect cash deposits and assess and 
liquidate entries based on zeroing took place after the end of the reasonable period of time, and fell 
within the Panel's terms of reference as omissions in the United States' implementation obligations, it 
is immaterial whether those actions  were based on determin ations that pre-date the adoption of the 
DSB's recommendations and rulings.   
                                                      
63European Communities' appellant's submission, paras.  91 and 92 (referring to Appellate Body Report, 
US – Softwood Lumber IV (Article 21.5 – Canada) , paras. 65 and 66;  and Appellate Body Report, US – Upland 
Cotton (Article 21.5 – Brazil) , para. 238).   
64European Communities' appellant's submission, para. 93. 
65European Communities' appellant's submission, para. 93 (original emphasis) (referring to Appellate 
Body Report, US – Continued Zeroing , para. 181).  
66European Communities' appellant's submission, para. 94 (quoting United States' first written 
submission to the Panel, paras. 96 and 102).  WT/DS294/AB/RW 
Page 16  
 
  3. The Scope of the United States' Compliance Obligations
 
26. The European Communities argues th at the Panel erred in rejecting its claims that certain 
actions or omissions by the United States based on zeroing after the end of the reasonable period of 
time were inconsistent with the United States' obligations to comply immediately with the 
recommendations and rulings of the DSB, and with Articles 9.3 and 11.3 of the Anti-Dumping 
Agreement , Article VI:2 of the GATT 1994, and Article 21.5 of the DSU.  The European 
Communities requests the Appellate Body to modify or reverse these findings, and to find that the 
United States acted inconsistently with these provi sions by continuing to assess and collect duties and 
to  impose cash deposit rates based on zeroing after the end of the reasonable period of time, on the 
basis of determinations ma de before that date.   
27. The European Communities explains that rulings contained in reports adopted by the DSB are 
not treaty-making by the WTO Members but, rather, constitute judicial activity aimed at clarifying, 
interpreting, and applying the cove red agreements, which are binding since their entry into force.  
Accordingly, neither Article 28 of the Vienna Convention on the Law of Treaties 67 (the " Vienna 
Convention "), nor specific provisions of the covered agreements that speak to inter-temporal law 
issues or general considerations about inter-temporal law are releva nt to a consideration of the 
temporal reach of DSB rulings.  Article 28 provides that a new treaty does not apply to any act that 
took place or any situation that ceased to exist befo re its entry into force.  Article 28 is silent, 
however, on continuing situations, which, in the European Communities' view, implies that a new 
treaty applies immediately to a continuing situati on.  For the European Communities, a ruling of 
inconsistency contained in a re port adopted by the DSB creates "a presumption of inconsistency going 
forward ", which applies " from the date on which the measure came into existence  to the date on 
which the measure is withdrawn or amende d so as to remove the inconsistency."68  Thus, the 
European Communities distinguish es the temporal effects of rulings  by the DSB, which establish that 
a measure is WTO-inconsistent from the date of its  adoption, from the temporal scope of the DSB's 
recommendations , which require Members to bring that measu re into conformity by the end of the 
reasonable period of time.  In this regard, the Eu ropean Communities adds that the reasonable period 
of time is the time considered necessary for a Memb er to operate its legislative or administrative 
procedures, rather than a "transitional period"69, after which any implementing measure must be 
effective.  
                                                      
67Done at Vienna, 23 May 1969, 1155 UNTS 331;  8 International Legal Materials 679. 
68European Communities' appellant's submission, para . 135 (original emphasis) (referring to European 
Communities' response to Panel Question 32). 
69European Communities' appellant's submission, para. 143.   WT/DS294/AB/RW 
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  28. Turning to the administrative reviews concluded after  the end of the reasonable period of time 
(9 April 2007), and in particular the 2004-2005 administrative review concluded on 22 June 2007 in 
Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands  (Case 1), the European 
Communities underscores that the temporal scope of th at administrative review is a factual element of 
United States municipal law that is not in disput e between the parties.  The European Communities 
also asserts that a major flaw in the United States' position is "to construe the DSB rulings and 
recommendations as if they were legislative activity  on an equal footing with treaty making by the 
WTO Members, whereas in fact th ey constitute judicial activity, clarifying, interpreting and applying 
the covered agreements."70  By applying an administrative review determination based on zeroing to 
"continuing situations"71 after the end of the reasonable period of time, the United States did not 
immediately comply with its obligation not to use zeroing.  Thus, whereas the European Communities 
agrees with the Panel's ultimate finding that the United States failed to comply with the DSB's 
recommendations and rulings by issuing assessment instructions based on zeroing following the 2004-2005 administrative review in Case 1, it cont ests the underlying reasoning.  For the European 
Communities, these assessment inst ructions are inconsistent, not because they are consequent upon 
the results of the administrative review, but becau se no action may be taken after the end of the 
reasonable period of time based on zeroing.  Furthe rmore, the European Co mmunities argues that the 
final liquidation of duties following the 2004-2005 admi nistrative review in Case 1 also constitutes a 
failure to comply, because it was based on zeroing after the expiry of the reasonable period of time, 
and the Panel erroneously omitted to make any finding in this respect.
72 
29. Next, the European Communities addresses assessmen t instructions or final liquidations that 
take place after  the end of the reasonable period of time  in relation to the measures found to be 
WTO-inconsistent in the original panel proceed ings.  The European Communities argues that any 
assessment instructions or final liquidations rela ting to these measures issued or occurring after the 
end of the reasonable period of time must not be based on zeroing.  The European Communities 
rejects the view that it is the municipal law in for ce at the date of entry that determines the amount to 
be assessed, irrespective of whether or not such muni cipal law is WTO-consistent, and irrespective of 
the obligations flowing from the DSU.  For the Eu ropean Communities, if a measure found to be 
WTO-inconsistent is to continue to  be applied or have effects beyo nd the end of the reasonable period 
of time, this may only be done in  a WTO-consistent manner.   
                                                      
70European Communities' appellant's submission, para. 147. (emphasis omitted) 
71European Communities' appellant's submission, para. 148. 
72The European Communities suggests that the same argument applies, mutatis mutandis , to the 
2004-2005 administrative review in Stainless Steel Wire Rod from Sweden (Case 6). (See European 
Communities' appellant's submission, para. 188) WT/DS294/AB/RW 
Page 18  
 
  30. Moving to cases where subsequent administrative reviews take place before  the end of the 
reasonable period of time, but assessment instructions are issued or final liquidation occurs after  that 
date, the European Communities notes that its argume nts in this respect are not entirely dependent 
upon the existence of municipal judicial proceedi ngs, because this situation may also result from a 
lapse of time between the results of the admi nistrative review and the issuance of assessment 
instructions.  The European Communities' view is  based on the principle that immediate compliance 
by the end of the reasonable period of time precludes any action or omission involving zeroing after 
that date, regardless of whether those actions are or relate to administrative reviews, assessment instructions, or any other type of action.  For th e European Communities, the Panel erred in assuming 
that assessment instructions are entirely "consequent"
73 upon administrative reviews.  In this respect, 
the European Communities observes that, whereas the calculations in  the administrative review are 
expressed as exporter-specific calculations, assessme nt instructions are importer-specific.  
Furthermore, zeroing might be reintroduced at the collection stage as customs authorities might receive instructions to collect duties on a tran saction-by-transaction basis (disregarding those 
transactions where export price exceeded normal value). 
31. The European Communities subm its that several interpretative considerations provide 
"overwhelming support"
74 for the principle that immediate compliance by the end of the reasonable 
period of time precludes all actions or omissions base d on zeroing after that date.  Thus, the European 
Communities points to the requirements in Articles 19.1 and 21.3 of the DSU that "Members must 
comply immediately  following the end of the reasonable period of time."75  The European 
Communities also maintains that several provisions of the Anti-Dumping Agreement  support its 
approach to compliance, which seeks to preserve the rights of exporters and importers, at no detriment 
to the domestic industry, and is opposed to a logic that would result in "using a 'transitional period' to 
perpetuate an unlawful  situation".76  Relying on the context provided by Articles 1, 5.9, and 18.1 of 
the Anti-Dumping Agreement , the use of the term "applied" in Article 1 of the Anti-Dumping 
Agreement , the reference in Articles 8.1, 9.1, 10.4, 11.2, 11.3, 12.2.1, 12.2.2, and 18.3 of the Anti-
Dumping Agreement  to the terms "impose" and "imposition", the use of the term "levy" in 
Article VI:2 of the GATT 1994 and the definiti on of this term in footnote 12 of the Anti-Dumping 
Agreement , and the language of Article 9 of the Anti-Dumping Agreement that refers to the imposition 
and collection of anti-dumping duties, the European Communities contends that the Anti-Dumping 
Agreement  disciplines all actions taken by WTO Members against dumping.  Such actions include 
                                                      
73European Communities' appellant's submission, pa ra. 167 (quoting Panel Report, para. 8.208).  
74European Communities' appellant's submission, para. 168. 
75European Communities' appellant's submission, para. 169. (original emphasis) 
76European Communities' appellant's submission, para. 170. (original emphasis)  WT/DS294/AB/RW 
 Page 19 
 
 
  both "the full range of actions by which anti-dum ping duties might be imposed, assessed and finally 
collected", and "the moment when the anti-dumping duty is finally collected."77  For the European 
Communities, it follows that those actions for collec ting duties are, logically, relevant for assessing 
compliance with the DSB's recommendations and rulings as well as the covered agreements.78  The 
European Communities contends that its views are al so supported by statements of the United States 
in the panel proceedings in US – Section 129(c)(1) URAA , where the United States indicated that 
United States municipal law does not preclude the WT O-consistent treatment of unliquidated entries 
that occurred before the end of the reasonable period of time.79  
32. For the European Communities, its  analysis is not affected by the possibility that assessment 
instructions (or final liquidations) might be delayed as a result of judicial proceedings.  The European 
Communities underscores that there is an obligation in Article 13 of the Anti-Dumping Agreement  to 
provide for adequate judicial review of de terminations, and that footnote 20 of the Anti-Dumping 
Agreement  recognizes the possibility that assessment pro ceedings be delayed as a result of judicial 
proceedings.  According to the European Communitie s, WTO Members are not allowed to circumvent 
compliance with DSB recommendations and rulings by shielding the result of their domestic litigation 
proceedings from their obligations under the WT O agreements.  Thus, the European Communities 
contends that, regardless of whether there is do mestic litigation, the anti-dumping duties that are 
collected after the end of the reasonable period of time duties must not reflect the zeroing methodology.  
33. Applying the principles outlined above to the sp ecific Cases before the Panel, the European 
Communities requests the Appellate Body to modi fy the Panel's reasoning in relation to the 
2004-2005 administrative reviews in Certain Hot-Rolled Carbon Steel  Flat Products from the 
Netherlands (Case 1) and Stainless Steel Wire Rod from Sweden  (Case 6).  Specifically, the European 
Communities seeks review of the Panel's findi ng that assessment instructions are entirely 
"consequent" upon administrative reviews, and requ ests a specific finding with respect to final 
liquidations occurring after the end of the reasonabl e period of time.  With respect to the 2005-2006 
administrative review in Case 1, the European Co mmunities contends that the Panel also erred in 
                                                     
 
77European Communities' appellant's submission, para. 172. 
78The European Communities finds additional contextual support in Article 7.2 of the Anti-Dumping 
Agreement (which provides that withholding appraisement may constitute an appropriate provisional measure) 
for its position because, when such a pr ovisional measure is taken, the amount of the final liability is determined 
at the moment of final liquidation and, therefore, this action is "necessarily regulated by the disciplines of the 
Anti-Dumping Agreement ". (European Communities' appellant's submission, para. 179)   
79European Communities' appellant's submissi on, para. 180 (referring to Panel Report, US – 
Section 129(c)(1) URAA , para. 6.42). WT/DS294/AB/RW 
Page 20  
 
  finding that the United States did not fail to bring its measures into conformity by issuing assessment 
instructions on 16 April 2007, and by liquid ating the relevant duties on 23 April 2007.  
34. Furthermore, the European Communities argues th at the Panel erred in failing to address the 
specific Cases for which anti-dumping duty orders rema in in place, which permits the United States to 
continue to apply duties or cash deposit rates based on zeroing after the end of the reasonable period 
of time in relation to 12 of the 16 administrative re views at issue in the or iginal proceedings.  The 
European Communities observes that  the Panel conducted a specific analysis of Case 31 and made 
findings of inconsistency in relati on to cash deposits applied after th e expiry of the reasonable period 
of time, and correctly observed that anti-dumping duty orders in four Cases had been revoked.  
However, the Panel did not examine the remaining 11 Cases
80 for which anti-dumping duty orders 
remain in place, on the grounds that it did not have  before it any substantive arguments or supporting 
materials in relation to these Cases that would ha ve allowed it to make an y additional substantive 
findings.  Relying on statements, arguments, and claims in the compliance panel request, its written 
submissions and oral statements before the Pane l, and its replies to the Panel's questions, the 
European Communities asserts that "the Panel had enough  evidence to conclude that the United States 
continued collecting duties and establishing or ma intaining cash deposits based on zeroing after the 
expiry of the reasonable period of time."81  On this basis, the Eur opean Communities requests the 
Appellate Body to reverse these findings, complete th e analysis, and to find that, with respect to these 
11 Cases and to Case 31, the United States has failed to comply with the DSB's recommendations and 
rulings, and continues to act in a WTO-inconsistent  manner, by continuing to maintain duties or cash 
deposit rates based on zeroing after the expiry of the reasonable period of time.  The European 
Communities also requests the Appellate Body to fi nd that the Panel's failure to address these Cases 
constitutes a violation of Article 11 of the DSU.    
35. As a separate matter, the European Communities claims that the Panel erred in its treatment 
of the "domino theory"82 advanced by the European Communities that, once an anti-dumping duty 
order was revoked pursuant to a Section 129 dete rmination (because in the absence of zeroing, no 
dumping was found), the United States was not entitled, after the end of the reasonable period of time, 
to conduct administrative reviews based on zeroing, or to take other actions based on zeroing, in 
relation to that revoked order.  For the Europ ean Communities, a measure cannot be understood to 
have been withdrawn if its effects are still in place.  The European Communities considers, as the 
relevant Section 129 determinati ons imply, that once the legal basis of the anti-dumping measures 
                                                      
80These were Cases 18, 19, 20, 21, 22, 23, 24, 27, 28 , 29, and 30.  
81European Communities' appellant's submission, para. 195. 
82European Communities' appellant's submission, para. 198.  WT/DS294/AB/RW 
 Page 21 
 
 
  disappeared the United States was no longer allowe d to take subsequent  actions (including 
administrative reviews) based on zeroing after the expiry of the reasonable period of time. 
4. The Subsequent Sunset Reviews  
36. The European Communities claims that the Panel erred in finding that the European 
Communities did not demonstrate that the United States had failed to comply with the DSB's recommendations and rulings in the subsequent sunset review proceedings at issue, because "the 
results of those sunset reviews had not yet material ised at the time when the Panel was established 
(i.e., 25 September 2007)."
83  The European Communities also clai ms that the Panel, in so doing, 
failed to fulfil its duties pursuant to Article 11 of  the DSU.  The European Communities requests the 
Appellate Body to reverse the Panel's findings and to find instead that, by relying in the sunset review 
proceedings on margins calculated in prior proceed ings with the use of zeroing, the United States 
failed to comply with the DSB's recommendations a nd rulings in the original proceedings and acted 
inconsistently with Articles 2.1,  2.4, 2.4.2, and 11.3 of the Anti-Dumping Agreement . 
37. The European Communities argues that "the fact  that continuation orders had not yet been 
published with respect to some subsequent sunset  reviews at the time the Panel was established 
does not  mean  that the USDOC's dumping determinations ma de in the context of those sunset review 
proceedings are irrelevant  for assessing the US compliance with the DSB recommendations and 
rulings in the original dispute."84  In this respect, the European  Communities notes that, because of 
those positive determinations of likelihood of r ecurrence of dumping by the USDOC relying on 
dumping margins based on zeroing, the original me asures were extended beyond the expiry of the 
reasonable period of time and some remained in place at the date of the establishment of the Panel, 
contrary to the United States' obligations under the Anti-Dumping Agreement  and the DSB's 
recommendations and rulings in the original proceedings. 
38. According to the European Communities, the relevant action that should serve to assess 
compliance by the United States is the final determination by the USDOC of the likelihood of dumping, rather than the publication of the conti nuation order.  The European Communities notes that 
even the Panel "took into account the date of the pu blication of the USDOC's final determinations as 
the relevant action  by the United States (rather than the pub lication of the continuation order) to bring 
some subsequent sunset reviews within its terms of reference."
85  The European Communities 
                                                      
83European Communities' appellant's submission, para. 111. 
84European Communities' appellant's submission, para. 112. (original emphasis) 
85European Communities' appellant's submission, pa ra. 113 (original emphasi s) (referring to Panel 
Report, para. 8.124). WT/DS294/AB/RW 
Page 22  
 
  contends that, "if such action is considered a meas ure taken to comply falling within the scope of the 
compliance proceeding, Articles 11 and 21.5 of the DSU require panels to examine its consistency 
with the DSB recommendations and rulings and the covered agreements, and make the findings 
provided for in the covered agreements."
86 
39. The European Communities further submits that, pursuant to Article 11.3 of the Anti-
Dumping Agreement , the anti-dumping duty may remain in force pending the outcome of a sunset 
review so that, during sunset review proceedings, im ports are still subject to duties/cash deposits.  The 
European Communities contends that, when the Pane l was established, the original measures were 
kept in effect and "the United States was requi ring cash deposits based on zeroing because the United 
States had extended the duration of the sunset re view proceedings pursuant to [the] USDOC's 
determinations which relied on dum ping margins based on zeroing."87 
40. The European Communities therefore concludes th at the failures by the United States in these 
sunset review proceedings had already materialized at the date of the establishment of the Panel and 
had allowed the United States to extend the life of th e original measures found to be in violation of 
Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement  and the DSB's recommendations and 
rulings.  The European Communities further cont ends that, in Case 19, the USITC had already 
confirmed on 7 September 2007, before  the date of the establishment of  the Panel, that the original 
order would remain in place.  Regarding Cases 2, 3, 4, and 5, the European Communities argues that, 
the fact that the sunset review proceedings resulte d in the revocation of the original anti-dumping duty 
order with effect as of 7 March 2007, does not change  the fact that imports occurring after the end of 
the reasonable period of time were subject to cash deposit requirements based on zeroing until the revocation of the original order. 
41. Finally, the European Communities contends that the Panel acted inconsistently with 
Article 11 of the DSU because it did not address the claim that, by keeping in place certain aspects of 
the measures at issue in the original proceedings  (that is, the dumping margins based on zeroing), the 
United States failed to comply with the DSB's recommendations in the original proceedings.   
42. In particular, regarding Case 19, the European Communities contends that, in carrying out its 
determination of the likelihood of recurrence of  dumping, the USDOC relied on the same dumping 
margin based on zeroing calculated in the original investigation and in the administrative review, and 
that such a determination could not constitu te a proper foundation for the continuation of 
                                                     
 
86European Communities' appellant's submission, para. 113. (italics removed) 
87European Communities' appellant's submission, para. 116.  WT/DS294/AB/RW 
 Page 23 
 
 
  anti-dumping duties under Article 11.3 of the Anti-Dumping Agreement .  Therefore, contrary to the 
Panel's conclusion, the European Communities cons iders that a finding on this separate claim is 
necessary to solve the dispute. 
5. The Non-Existence of Measures between 9 April and 23 April/31 August 
2007  
43. The European Communities submits that the Panel disregarded its mandate and erred in 
failing to make findings regarding the non-existen ce of measures taken to comply between 9 April 
and 23 April/31 August 2007.  The European Commun ities requests the Appellate Body to find that 
the Panel erred in this respect, and to complete th e analysis and find that the United States violated 
Articles 19.1, 21.3, and 21.3(b) of the DSU in not  putting into effect measures taken to comply 
between 9 April and 23 April/31 August 2007.   
44. For the European Communities, in rejecting its  claim on the basis of judicial economy, the 
Panel acted in a manner inconsistent with its obliga tions under Article 11 of the DSU.  The fact that a 
WTO Member did not act within a particular period of time following the expiry of the reasonable 
period of time is an independent measure or, in th is case, omission subject to different claims that 
must be examined separately from other claims concerning other measures taken to comply.  The 
European Communities argues that, in  failing to rule on this omission, the Panel failed to examine a 
matter that was part of its mandate, and "abused"88 the concept of judicial economy, as the Panel 
provided only a partial resolution to the matter at issue.  The European Co mmunities considers that 
measures that have expired before the request for panel establishment are measu res at issue within the 
meaning of Article 6.2 of the DSU and, thus, form  part of the terms of reference of a compliance 
panel.  According to the European Communities, it  was not for the Panel to examine the practical 
implications of the requested finding as to the ob ligations of the United St ates, because the European 
Communities was entitled to obtain the findings it co nsidered necessary to reso lve the dispute.  The 
European Communities adds that Article 21.3 of  the DSU implies that WTO Members have the 
obligation to bring their WTO-inconsistent meas ures into conformity with their obligations 
immediately after the adoption of the recommendations and rulings of the DSB, or, should a reasonable period be agreed between the parties to the dispute, at the end of such a period at the latest. 
6. The Arithmetical Error in the Section 129 Determination in Case 11
 
45. The European Communities submits that the Pa nel erred in finding that the European 
Communities' claims in respect of an alleged arith metical error in the Section 129 determination in 
                                                      
88European Communities' appellant's submission, para. 218. WT/DS294/AB/RW 
Page 24  
 
  Case 11 were not properly before it.  The Eur opean Communities requests the Appellate Body to 
reverse this finding, complete the analysis, and fi nd that the United States, by failing to correct the 
arithmetical error in the calculation of the margin of dumping in the Section 129 determination in 
Case 11, failed to comply with the DSB's recommenda tions and rulings, and acted  inconsistently with 
Articles 2, 5.8, 6.8, 9.3, 11.1, and 11.2 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 
1994, for the following reasons. 
46. Initially, the European Communities contends  that the arithmetical error was an " integral 
part"
89 of the measure taken to comply by the United St ates, and thus falls within the scope of these 
compliance proceedings.  The European Communiti es notes that the United States consciously took 
the decision to calculate TKAST's90 dumping margin without zeroing on the basis of the same data set 
as the one used in the original investigation, whic h contained the arithmetical error.  Moreover, "the 
USDOC extended the duration of the Section 129 proceeding by four  additional months precisely  
because it was considering the allegations made by th e interested parties, including the clerical error 
in question."91  Thus, for the European Communities, the fact that the United States explicitly dealt 
with the issue of the clerical error and deci ded to keep it for the dumping calculation in the 
Section 129 determination concerned, implied that  the error became part of the "measure taken to 
comply" in the present case.  In this regard, th e European Communities argu es that the arithmetical 
error "cannot be separated " from the re-determination of dumping without zeroing made by the 
United States in the Section 129 determination concer ned, considering that "both the data set and the 
comparison methodology operate toge ther and are the bases underlying a single inquiry : the dumping 
calculation."92  The European Communities recalls that, in US – Oil Country Tubular Goods Sunset 
Reviews (Article 21.5 – Argentina) and in EC – Bed Linen (Article 21.5 – India) , the Appellate Body 
considered relevant the fact that the particular aspect in question operated together with the other 
aspects of the measure taken to comply with respect  to the same subject matter to determine whether 
they constituted an integral part of the measure taken to comply.93 
47. Alternatively, the European Co mmunities claims that the arithmetical error fell within the 
scope of this compliance proceeding because of its particularly close relationship to the 
re-determination of dumping carried out in the Sect ion 129 determination concerned.  The European 
                                                      
89European Communities' appellant's submission, para. 248. (original emphasis) 
90ThyssenKrupp Acciai Speciali Terni S.p.A. and ThyssenKrupp AST USA (a manufacturer/exporter 
of stainless steel sheet and strip in coils from Italy). 
91European Communities' appellant's submission, para. 249. (original emphasis)   
92European Communities' appellant's submission, para. 253. (original emphasis)  
93European Communities' appellant's submission, para. 255 (referring to Appellate Body Report, US – 
Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , paras. 146 and 148, in turn referring to 
Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 86).   WT/DS294/AB/RW 
 Page 25 
 
 
  Communities maintains that, should the Appellate Body find that the arithmetical error was an 
integral part of the "measure taken to comply ", the European Communities considers that the 
Appellate Body would not need to examine this alternative claim. 
48. The European Communities contends that the arith metical error contained in the data set has a 
particularly close relationship to the re-determi nation of dumping without zeroing, in view of its 
nature , effects , and timing .  The exclusion of such an error from the scope of this compliance 
proceeding would lead to circumvention by the Unit ed States of its obligations in the light of the 
covered agreements.  According to the European  Communities, both the arithmetical error and the 
zeroing methodology affect the calculation of the dump ing margin, and it is not possible to isolate one 
of these elements from the rest of the dumping marg in calculation in the Section 129 determination.  
The European Communities notes that, in order to  comply with the DSB's recommendations and 
rulings, the United States recalculated the margin  of dumping without zeroing;  however, because of 
the arithmetical error, a positive margin of dumping was obtained and the United States kept in place 
a measure inconsistent with the Anti-Dumping Agreement  that would otherwise have been terminated. 
49. Furthermore, the European Communities claims that the Panel erred in finding that the 
European Communities was precluded from raising cl aims against the arithmetical error in these 
compliance proceedings.  The Eur opean Communities considers that a Member is not prevented from 
raising new claims before a compliance panel ag ainst unchanged aspects of the original measure, 
provided that such claims were not examined by  the original panel.  The European Communities 
contends that allowing a Member to raise such  new claims "does not provide the complaining 
Member with a second ch ance to make its case"94, because the finality of the report adopted by the 
DSB in the original proceedings "was limited  to the particular claims on zeroing and the specific 
aspects of the measure dealing with the comparison methodology"95 and did not relate to the particular 
arithmetical error in question.  The European Co mmunities also dismisses concerns raised by the 
Panel in relation to "the principles of fundamental fairness and due process"96, because in the present 
case the United States had sufficient notice of the European Communities' claim concerning the 
arithmetical error, given that it was mentioned in the European Communities' compliance panel 
request.  Moreover, the United States could not assume that the aspect of the measure taken to comply 
at issue was WTO-consistent, as there was no such finding in the original proceedings. 
                                                      
94European Communities' appellant's submission, para. 272.  
95European Communities' appellant's submission, para. 276. (original emphasis) 
96European Communities' appellant's submission, para. 277. (italics removed) WT/DS294/AB/RW 
Page 26  
 
  50. For the European Communities, the Panel mis understood the Appellate Body's statement in 
US – Upland Cotton (Article 21.5 – Brazil)  that "[a] complaining Member ordinarily would not be 
allowed to raise claims in an Article 21.5 proceed ing that it could have pu rsued in the original 
proceedings, but did not."
97  According to the European Communitie s, this statement by the Appellate 
Body should be read in the light of the statements  made in the preceding paragraphs, which led to the 
conclusion that, if one issue was not resolved on th e merits in the original proceedings, a new claim 
against the same aspect of the measure coul d be brought in compliance proceedings.   
51. The European Communities adds that allowing a Member to raise new claims against an 
unchanged aspect of an original measure in the meas ure taken to comply would also be consistent 
with the purpose of Article 21.5 of the DSU.  In this respect, the European  Communities notes that an 
implementing measure should rectify the inconsis tencies found in the DSB's recommendations and 
rulings, and not be otherwise inc onsistent with the covered agre ements.  Preventing new claims 
against unchanged aspects of original measures that  are WTO-inconsistent would provide Members 
with a mechanism allowing them to circumvent thei r obligations resulting from a particular dispute.  
The European Communities further notes that the Panel's finding would require the European 
Communities to bring the claim against the arithme tical error in the same measure (that is, the 
Section 129 determination concerned) in separate di spute settlement proceedings, with the result that 
the United States would benefit from an additi onal period of time to comply with its WTO 
obligations.  The European Communities suggests furthe r that the Panel's findings on this issue raise 
significant systemic concerns, because they imply th at complaining Members would have to raise all 
possible legal claims against a measure at the very  beginning of dispute settlement proceedings, even 
consequential claims, rather than choosing the main  claims for a finding of WTO-inconsistency, as 
the European Communities has done in th e original proceedings in this case. 
7. The "All Others" Rates Calculated in  the Section 129 Determinations in 
Cases 2, 4, and 5  
52. The European Communities claims that the Pane l erred in finding that the United States did 
not act inconsistently with Article 9.4 of the Anti-Dumping Agreement  in the establishment of the 
                                                      
97European Communities' appellant's submission, para. 279 (quoting Appellate Body Report, US – 
Upland Cotton (Article 21.5 – Brazil) , para. 211).  According to the Euro pean Communities, the Appellate Body 
observed, in that case, that:  (i) when a Member failed to make a prima facie  case in the original proceeding, that 
Member cannot bring the same claim against an element of the measure that remained unchanged since the 
original proceedings in an Article 21 .5 proceeding;  and (ii) when an as pect of a measure in the original 
proceeding has been found to be WTO-consistent expressly, the same claim cannot be brought against an 
unchanged aspect of that measure in an Article 21.5 proceeding;  however, (iii) when a claim has not been resolved in the original procedure (f or example, because the Appellate B ody could not complete the analysis—
or because of judicial economy), the same claim can be brought in  an Article 21.5 proceeding. ( Ibid., para. 281)  WT/DS294/AB/RW 
 Page 27 
 
 
  "all others" rates in the Section 12 9 determinations in Cases 2, 4, and 5 and in failing to examine its 
claims under Article 6.8 and Annex II of the Anti-Dumping Agreement .  The European Communities 
requests the Appellate Body to reverse these findings, complete the analysis, and find that the United 
States acted inconsistently with Articles 9.4 and 6.8 and Annex II of the Anti-Dumping Agreement in 
calculating the "all others" rates in the Section 129 determinations in Cases 2, 4, and 5, for the 
following reasons.   
53. First, the European Communities ar gues that the Panel erred in finding that the existence of a 
lacuna in Article 9.4 of the Anti-Dumping Agreement precludes a finding that Article 9.4 prohibits the 
use of zero, de minimis , or "facts available" dumping margins in the calculation of the "all others" rate 
in cases where all the margins of dumping for selected exporters and producers fall into one of these 
categories.  In the European Communities' view, the Panel misinterpreted the Appellate Body's 
finding in US – Hot-Rolled Steel , where the Appellate Body did not address the lacuna in Article 9.4 
but, rather, found that the United States acted inc onsistently with Article 9.4 by using a methodology 
that included margins based on facts available in the calculation of the "all others" rate.  The European 
Communities submits that the facts in US – Hot-Rolled Steel are "identical"98 to those in the present 
dispute, because all the margins of dumping calculate d for the selected exporters in that dispute were 
partially based on facts available.  Yet, the fact  that the USDOC did not have other margins of 
dumping from investigated exporters and producers fro m which to derive the ceiling provided for in 
Article 9.4, did not preclude the Appellate Body fr om finding in that case that the United States acted 
inconsistently with that provision by basing the "all others" rate on a methodology that included 
margins established using facts available.99  Although the Appellate Body did recognize the existence 
of a lacuna in Article 9.4, it confirmed that "[ t]his appeal does not raise the issue of how that lacuna  
might be overcome on the basis of the present text of the Anti-Dumping Agreement "100 and, therefore, 
did not address that question.  According to th e European Communities, the Panel should have 
proceeded similarly in this dispute.  
54. Secondly, the European Communities argues that, correctly interpreted, Article 9.4 of the 
Anti-Dumping Agreement  requires investigating authorities to disregard margins of dumping based on 
facts available when calculating the "all others" rate , even in cases where a ll margins established for 
the selected exporters/producers fall under the prohibiti on contained in that provision.  This is because 
the purpose of Article 9.4 is to prevent exporters w ho were not asked to cooperate in the investigation 
                                                      
98European Communities' appellant's submission, paras. 316 and 324.  
99European Communities' appellant's submission, para. 319 (referring to Appellate Body Report, US – 
Hot-Rolled Steel , para. 129).  
100European Communities' appellant's submission, paras. 319 and 321 (quoting Appellate Body Report, 
US – Hot-Rolled Steel , para. 126).  WT/DS294/AB/RW 
Page 28  
 
  from being prejudiced by gaps or shortcomings in  the information supplie d by the investigated 
exporters.
101  Consequently, any methodology that includes margins based on facts available in the 
calculation of the "all others" rate, alone or in comb ination with other margins, must be inconsistent 
with Article 9.4.   
55. In addition, the Panel's statement that the European Communities' interpretation would be 
"internally inconsistent" ignores the context of Artic le 9.4.  According to the European Communities, 
Article 9.4 provides an exception to the general rule in  Article 6.10 that a margin of dumping must be 
established for each individual exporter.  The inves tigating authority's discretion not to investigate 
individually all exporters is lim ited by the ceiling provided for in Article 9.4, which mandates the 
exclusion of zero, de minimis , and "facts available" margins from the calculation of the "all others" 
rate.  By contrast, the Panel's interpretation of  Article 9.4 implies that there is no obligation 
whatsoever when all margins for the selected exporters are either zero, de minimis , or based on facts 
available.  In the European Communities' view, th is interpretation could lead to abuses, as the 
"all others" rate would be exclusively a function of  the exporters that the investigating authority 
chooses to investigate. 
56. Thirdly, the European Communities submits th at "the fact that Article 9.4 of the Anti-
Dumping Agreement  refers to a 'ceiling' and does not provide any specific methodology for the 
calculation of a margin of dumping to be applied to non-investigated [exporters or producers] does not 
exclude the possibility that the requirement to excl ude certain types of margins when calculating 'all 
others' rates was intended  to be included by implication."102  In support of this contention, the 
European Communities refers to the negotiating history of Article 9.4, which suggests that the drafters 
intended to include the prohibition to use certain types of margins in the provision, at least by implication.
103  
57. Turning to the claims it raised under Article 6.8 and Annex II of the Anti-Dumping 
Agreement , the European Communities submits that the Panel erred in rejecting these claims on the 
basis that they were dependent on the European Communities' claim under Article 9.4.  The European 
Communities considers that Article 6.8 and Annex II provide an independent basis for a finding of 
                                                      
101European Communities' appellant's submission, pa ra. 326 (referring to Appellate Body Report, US – 
Hot-Rolled Steel , para. 123).  
102European Communities' appellant's submission, para. 333. (original emphasis) 
103The European Communities refers to the negotiating history of Article 9.4 of the Anti-Dumping 
Agreement , and also draws an analogy between this case and US – Corrosion-Resistant Steel Sunset Review , 
where the Appellate Body found that the fact that Article 11.3 of the Anti-Dumping Agreement does not require 
the use of any specific methodology in a sunset revi ew did not imply that investigating authorities could 
disregard the disciplines of Article 2.4 of that Agreement. (European Communities' appellant's submission, 
paras. 334 and 335)  WT/DS294/AB/RW 
 Page 29 
 
 
  inconsistency where the "all others" rate is not inconsistent with Article 9.4.  According to the 
European Communities, the Panel's finding is "contradictory"104 because, on the one hand, the Panel 
concluded that Article 9.4 contai ns no prohibition and therefore does not provide a legal basis for a 
finding of inconsistency and, on the other hand, it concluded that a particular methodology is not 
inconsistent with that provision.  In the European  Communities' view, if Article 9.4 does not regulate 
an issue, it cannot be concluded that a particular  situation is consistent with that provision. 
58. Moreover, the European Communities submits  that Article 6.8 and Annex II of the Anti-
Dumping Agreement  provide an independent basis for a finding of inconsistency where the 
establishment of the "all others" rate falls under the alleged lacuna in Article 9.4.  The European 
Communities submits that Article 6.8 and Annex II ar e the provisions that regulate the establishment 
of the "all others" rate in these circumstances because these provisions limit the application of 
margins of dumping based on facts available, wh ich are "less favourable" to the "exceptional 
circumstance" where the interested party did not "cooperate".105  Exporters or producers falling under 
the "all others" category are "known" exporters  or producers that "decided to 'cooperate'"106, but from 
which no further information was requested.  Th erefore, in the Europ ean Communities' view, 
Article 6.8 and Annex II prohibit the use of marg ins of dumping based on facts available in the 
calculation of the "all others" rate. 
8. The European Communities' Request for a Suggestion  
59. The European Communities requests the Appellate  Body to issue a suggestion to the United 
States, pursuant to Article 19.1 of the DSU, on how to implement the DSB's recommendations and 
rulings.  The European Communities requests the A ppellate Body to suggest to the United States, 
including the United States' administrative authoriti es and independent judicial authorities, "that they 
forthwith take all necessary steps of a general or par ticular character to ensure the conformity of all 
the measures at issue and all the measures taken to comply with the Anti-Dumping Agreement , the 
GATT 1994 , the DSU  and the rulings and recommendations of  the DSB in the original proceeding, 
with full effect not later than the end of the reas onable period of time, such that any and all actions, 
including administrative reviews, assessment instructions and final liquidations after that date are not 
based on zeroing, and are revised as necessary to achieve that result".107 
                                                      
104European Communities' appellant's submission, para. 339. 
105European Communities' appellant's submission, para. 346.  
106European Communities' appellant's submission, para. 348. 
107European Communities' appellant's submission, para. 351. WT/DS294/AB/RW 
Page 30  
 
  B. Arguments of the United States – Appellee 
1. Panel Composition
 
60. The United States argues that the  Panel correctly rejected the European Communities' claim 
that it was improperly composed, in violation of Ar ticles 8.3 and 21.5 of the DSU.  The United States 
observes that the European Communities' appeal does not "fundamentally pertain"108 to the 
substantive dispute between the European Communiti es and the United States.  Rather, it appears to 
be grounded on "a concern about the func tioning of the WTO as an institution".109  Nonetheless, the 
concern raised by the European  Communities does not necessarily bri ng that matter within the scope 
of review by a panel or the Appellate Body.  In this regard, the United States observes that, under 
Article 11 of the DSU, "the function of panels is  to assist the DSB in discharging its responsibilities 
under the [DSU] and the covered agreements."  Ho wever, during the panel composition process, the 
European Communities had recourse to the Director-Gener al of the WTO, rather than to the DSB.    
61. In addition, the United States argues that th e European Communities' claim on the panel 
composition did not fall within the Panel's jurisdiction.   For the United States, it is difficult to see how 
the composition of the Panel could fall within its te rms of reference, as panel composition invariably 
follows panel establishment.  This is particularly  the case in proceedings under Article 21.5 of the 
DSU, which are limited to resolving a "disagreem ent as to the existence or consistency with the 
covered agreements of measures take n to comply with the recommendations and rulings" of the DSB.   
62. Moreover, according to the United States, an im properly composed pane l would not have the 
authority to make findings on the merits of the European Communities' claims, including on claims 
related to its own composition;  it would have no  authority to issue a report and there would be no 
basis for an appeal.  In any event, the United St ates argues that the European Communities failed to 
demonstrate any violation of the DSU.  The Unite d States observes that two of the three original 
panelists were not availa ble, and therefore recourse to "the original panel " was not "possible" within 
the meaning of Article 21.5 of the DSU.110  Article 21.5 does not discipline the process of panel 
composition when recourse to the original panel is not possible, and therefore the European 
Communities requested—and the United States agreed—tha t the Director-General compose the panel.   
63. With respect to the European Communities' waiver of its alleged DSU rights and its 
conditional withdrawal of the appeal in the event of success, the United States asserts that it also has 
                                                      
108United States' appellee's submission, para. 154.  
109United States' appellee's submission, para. 154.  
110United States' appellee's submission, para. 157. (original emphasis)  WT/DS294/AB/RW 
 Page 31 
 
 
  due process rights in the composition of the panel, and that the European Communities is not in any 
position to waive the rights of another WTO Member.  The United States further disputes the 
European Communities' allegation that the f acts underlying the panel composition process are 
"uncontested".111  For the United States, the only truly uncontest ed fact is that the parties turned to the 
Director-General to appoint the panelists.  Th e United States emphasizes that the European 
Communities "did not have the permission"112 to disclose confidential communications about this 
issue, and that the Panel took account of the United States' objections in this regard by deleting all 
references to the alleged statements by the United States from the Panel's final report.   
2. The Panel's Terms of Reference   
64. The United States argues that the Panel was corr ect in making the preliminary finding that the 
subsequent reviews that were completed before  the adoption of the DSB's recommendations and 
rulings did not fall within the Panel's terms of re ference under Article 21.5 of the DSU.  The United 
States requests the Appellate Body to uphold this finding, because these subsequent reviews were 
not (i) "amendments" to the original investigations and administrative reviews at issue in the original 
proceedings, or (ii) "omissions" or "deficiencies" in the United States' implementation of the DSB's 
recommendations and rulings;  nor were they ( iii) sufficiently connected to these compliance 
proceedings.     
65. First, the United States contends that the Pane l properly rejected the European Communities' 
argument that the subsequent reviews were covere d by the DSB's recommendations and rulings as 
"amendments" to the original measures at issue.  The Panel correctly concluded that it would not be 
"tenable" to describe assessment and other types of  reviews as "merely clarifying" the terms of the 
original investigations and administrative re views at issue in the original proceedings.113  In 
subsequent administrative reviews, the USDOC ex amines different imports, over a different time 
period, than it did in the original investigation or in a prior administrative review.  Similarly, sunset 
reviews are distinct from original investigations and administrative reviews because they determine 
whether the expiration of an anti-dumping duty would likely lead to the continuation or recurrence of 
dumping.  Therefore, the Panel correctly concl uded that subsequent determinations are not 
amendments to, or modifications of, the original i nvestigations and administrative reviews at issue in 
the original proceedings. 
                                                      
111United States' appellee's submission, para. 159 (quoting European Communities' appellant's 
submission, para. 10, in turn quoting Panel Report, para. 8.10).   
112United States' appellee's submission, para. 159 (q uoting United States' second written submission to 
the Panel, para. 7 and footnote 5 thereto). 
113United States' appellee's submission, para. 24 (quoting Panel Report, para. 8.84).  WT/DS294/AB/RW 
Page 32  
 
  66. The United States underscores that the Panel w as correct in concluding that reference to 
"amendments" in the European Communities' original  panel request referred to "amendment[s] of the 
specific measure listed to correct for ministerial errors"
114 and does not refer to any subsequent 
review.  The United States notes that the Europ ean Communities' original panel request treats 
subsequent reviews as separate measures, rather th an amendments to the original measures.  The 
United States adds that the USDOC provides inter ested parties the opportunity to comment on alleged 
ministerial errors in its determinations, and corr ects any such errors by publishing an "amended" 
determination.  Thus, because references to "ame ndments" in the European Communities' original 
panel request have a very precise meaning in the context of this dispute, the recommendations and 
rulings of the DSB could not have broadened the scope  of the measures covered by those rulings.     
67. Secondly, the United States submits that th e Panel correctly rejected the European 
Communities' claim that the subsequent reviews fell within the Panel's terms of reference as 
"omissions" or "deficiencies" in the United Stat es' implementation of the DSB's recommendations and 
rulings.  The Panel was correct in noting that th e European Communities had not substantiated its 
claim before the Panel, as the European Communiti es indicated in response to the Panel's questioning 
that the subsequent reviews constituted "evide nce of the US omissions and deficiencies"115 in 
implementing the DSB's recommendations and rulings, rather than omissions and deficiencies which themselves fell within the Panel's terms of referen ce.  Having found that none of the subsequent 
reviews constituted "amendments" to the original me asures at issue, the Panel was also correct in 
concluding that none of the subsequent reviews "implicated"
116 the question of whether a measure 
taken to comply "existed" within the meaning of Article 21.5 of the DSU, and properly decided to 
move on to consider the question of whether the sub sequent reviews themselves  should be regarded as 
"measures taken to comply".  In any event, the United States undersco res that the Panel examined the 
alleged "substantive 'omissi ons' or 'deficiencies'"117 in its substantive analysis.  
68. The United States argues further that the Europ ean Communities is incorrect in arguing that 
the Panel was bound by the "sequencing order of the legal claims"118 raised by the European 
Communities.  According to the United States, the precedents cited by the European Communities do 
                                                      
114United States' appellee's submission, para. 27 (quoting Panel Report, para. 8.76). 
115United States' appellee's submission, para. 33 (quo ting European Communities' responses to Panel 
Questions, para. 33). (emphasis omitted) 
116United States' appellee's submission, para. 34.  
117United States' appellee's submission, para. 35.  
118United States' appellee's submission, para. 36 (quoting European Communities' appellant's 
submission, para. 79).    WT/DS294/AB/RW 
 Page 33 
 
 
  not support this proposition.119  The United States submits that, in any event, the Panel did address the 
European Communities' claims in the order proposed .  The United States further suggests that the 
European Communities failed to substantiate its clai m that the Panel failed to comply with its mandate 
under Article 11 of the DSU in structuring its analysis. 
69. Thirdly, the United States submits that the Panel correctly excluded from its terms of 
reference the subsequent reviews that were concluded before the adoption of the DSB's 
recommendations and rulings as not havi ng a sufficient nexus in terms of timing  with these 
compliance proceedings.  Initially, the United States underscores that reviews pre-dating the DSB's recommendations and rulings are not "measures taken to comply" with such rulings, but are rather 
reviews undertaken and completed at the request of interested parties or as required by domestic law 
pursuant to the provisions of the Anti-Dumping Agreement .
120  The United States acknowledges that 
compliance can be achieved through events occurring prior to the adoption of the DSB's 
recommendations and rulings, for example, where a challenged measure is withdrawn prior to 
adoption.  However, in this dispute, the United St ates is not relying on any of the measures identified 
by the European Communities to assert compliance.  Additionally, even though measures other than 
those declared to be "taken to comply" may also  be examined in an Article 21.5 proceeding where 
such measures "potentially circumvent implementa tion or undermine measures officially taken to 
comply"121, the United States observes that the European  Communities failed to demonstrate that any 
of the reviews completed prior to the adoption of the DSB's recommendations and rulings had the 
effect of "circumventing" or "undermining" the co mpliance declared to have been achieved by the 
United States.  In this regard, the Panel appropria tely found that the subsequent reviews were so 
remote in time that they could not have had the necessary effects to bring them within the scope of 
these compliance proceedings.  The United States also  notes that, to the extent that the European 
Communities is challenging "positive actions"122 taken by the United States after the end of the 
reasonable period of time, the European Commun ities has failed to demonstrate any connection 
between the alleged "omissions" in the form of li quidation of duties and the relevant subsequent 
review that would sufficiently demonstrate that those reviews circumvented or undermined compliance.  
                                                     
 
119United States' appellee's submission, para. 36.  The United States makes reference, in footnote 46, to 
Appellate Body Report, US – Shrimp , para. 120;  and Panel Report, EC – Sardines , paras. 7.14-7.19.   
120United States' appellee's submission, para. 40.  
121United States' appellee's submission, para. 42 (quoting Panel Report, para. 8.116).  
122United States' appellee's submission, para. 44 (r eferring to European Communities' appellant's 
submission, para. 96).  WT/DS294/AB/RW 
Page 34  
 
  70. Finally, in the event that the Appellate Body finds that the Panel wrongly excluded any 
reviews from the scope of these proceedings, the Un ited States contends that the Appellate Body 
should reject the European Communities' request to  complete the analysis and find those reviews 
inconsistent with the relevant provisions of the DSU, the Anti-Dumping Agreement , and the 
GATT 1994.  According to the United States, th e European Communities failed to provide any 
argumentation relating to these allege d inconsistencies, and failed to point out the factual findings by 
the Panel or undisputed facts in the Panel record  that would enable the Appellate Body to do so. 
3. The Scope of the United States' Compliance Obligations
 
71. The United States argues that the Panel correctly  rejected the European  Communities' claims 
that the United States failed to comply with the DSB's recommendations and rulings, and acted 
inconsistently with Articles 9.3 and 11.3 of the Anti-Dumping Agreement  and Article VI:2 of the 
GATT 1994, by taking "actions or  omissions" based on zeroing after  the end of the reasonable period 
of time.  
72. The United States submits that an anti-dumping duty is a border measure and that, in disputes 
involving border measures, compliance is achieved when the measure is withdrawn or brought into compliance with respect to entries of goods after the end of the reasonable period of time.
123  The 
United States contends that it brought itself into compliance with the recommendations and rulings of 
the DSB by withdrawing the border measures, or by implementing new WTO-consistent border 
measures, to future entries subject to the 31 measures that were the subject of the DSB's 
recommendations and rulings in the original proceed ings.  Accordingly, the United States rejects the 
European Communities' view that the DSB's reco mmendations and rulings encompass the liquidation 
of entries after the end of the reasonable period of time, when the entries were made before or during 
the reasonable period of time, if for any reason thos e entries remained unliquidated at the end of the 
reasonable period of time.   
73. For the United States, the fact that Article 21.3 of the DSU may provide a Member with a 
reasonable period of time to bring itself into co mpliance with DSB recommendations and rulings does 
not imply that the Member is not subject to the underlying obligation during that period.  The United 
States refers to a previous statement of the Appella te Body that "remedies in WTO law are generally 
understood to be prospective in nature."124  The United States agrees that Article 28 of the Vienna 
Convention  is inapplicable to the present dispute because DSB recommendations and rulings do not 
                                                      
123United States' appellee's submission, paras. 62 and 72. 
124United States' appellee's submission, para. 66 (quoting Appellate Body Report, US – Upland Cotton 
(Article 21.5 – Brazil) , footnote 494 to para. 243).  WT/DS294/AB/RW 
 Page 35 
 
 
  create new obligations.  The United States considers that the reasonable period of time allows a 
Member sufficient time to bring its measure in to compliance with its obligations without being 
required to provide compensation or being subject  to the suspension of concessions.  The United 
States reasons that recommendations and rulings by the DSB do not create an obligation to comply with the covered agreements, as that obligation alread y exists in the covered agreements themselves.  
Rather, it is the right to a remedy against a br each of the covered agreements (in the sense of 
compensation or suspension described in Article 22. 1 of the DSU) that arises only after a Member 
fails to comply with the DSB's recommendations a nd rulings within the reasonable period of time.  
Thus, according to the United States, a Member is not "permitted"
125 to breach the covered 
agreements during the reasonable period of time.  In stead, that Member is merely not subject to the 
remedies contemplated in Article 22 of the DSU for such breaches.  
74. The United States argues that, in disputes involvi ng border measures, it has been consistently 
recognized that compliance is achieved when the measure is withdrawn or brought into compliance 
with the DSB's recommendations and rulings with r espect to entries of goods after the end of the 
reasonable period of time.  According to the United States, this is the approach that the European 
Communities took to implementation of the recommendations and rulings of the DSB in the EC – 
Chicken Cuts  dispute, as the European Communities asserted compliance in that dispute by removing 
the border measure for entries taking place after the end of the reasonable period of time.126  A similar 
conclusion was reached by the compliance panel in EC – Bananas III (Article 21.5 – Ecuador) , where 
the panel found that, in order to comply with th e DSB's recommendations and rulings, the European 
Communities did not have to correct its past breaches of the General Agreement on Trade in Services  
with regard to licenses that were allocated before th e end of the reasonable period of time.  Rather, the 
European Communities had to ensure that licenses al located after the end of the reasonable period of 
time were allocated in a WTO-consistent way.127  According to the United States, the practice of the 
DSB and individual WTO Members is that complia nce with DSB recommendations and rulings with 
respect to WTO-inconsistent border measures is a ccomplished by withdrawing the border measure, or 
by applying a WTO-consistent border measure with respect to future entries of goods.128  According 
to the United States, nothing in the Anti-Dumping Agreement  suggests that a different rule would 
apply when the border measure in question is an anti-dumping duty.  Moreover, this practice suggests 
                                                      
125United States' appellee's submission, para. 71.  
126United States' appellee's submission, para. 73 (referring to Appellate Body Report, EC – Chicken 
Cuts, para. 347(c)). 
127United States' appellee's submission, para. 74 (referring to Panel Report, EC – Bananas III 
(Article 21.5 – Ecuador) , para. 6.105). 
128The United States submits that previous panel reports do not suggest otherwise. (United States' 
appellee's submission, paras. 75-77 (referring to Panel Report, EC – Commercial Vessels , para. 8.4;  and Panel 
Report, India – Autos , paras. 7.204 and 7.253)) WT/DS294/AB/RW 
Page 36  
 
  that actions to enforce or collect duties applied to imports occurring prior to the end of the reasonable 
period of time do not undermine compliance achieved by the elimination of the border measure.  In 
the United States' view, withdrawal of WTO-incons istent border measures with respect to future 
entries constitutes compliance with the DSB's re commendations and rulings, even if domestic 
procedures with respect to final collection of duties on entries prior to the reasonable period of time are not complete.  The United States considers that the European Communities' approach to 
implementation raises serious systemic concerns, be cause it would allow private parties to make use 
of domestic procedures to delay liquidation of duti es, thereby obtaining retroactive application of 
DSB recommendations and rulings to entries made prior to the end of the reasonable period of time. 
75. According to the United States, the European Communities fails to recognize that the DSB's 
recommendations and rulings, as applied to the 31 individual measures, are limited to the measures 
that were found to be inconsistent  in the original proceedings.  Th e United States recalls that, in the 
original proceedings, the European Communities sought—but did not obtain—a finding that zeroing in administrative reviews was inconsistent, as such, with the covered agreements.  The United States 
emphasizes further that the European Communitie s presupposes the existence of the "unlawful 
zeroing methodology"
129, when the Appellate Body in the original proceedings was unable to 
complete the analysis as to whether such zeroing methodology in administrative reviews was 
inconsistent, as such, with the covered agreements.  
76. The United States argues further that its im plementation obligations do not extend to 
administrative reviews completed after the end of the reasonable period of time, but cover entries 
made prior to that date.  For the United States, the Panel's approach to implementation disadvantages 
Members using retrospective duty systems, because such Members would need to bring past entries 
into compliance with the DSB's recommendations  and rulings, whereas Members using prospective 
duty assessment systems would not.  Furthermore, the United States considers that the requirement to 
bring into conformity with the DSB's recommenda tions and rulings any duty assessment proceeding 
(in a retrospective system) or dut y refund proceeding (in a prospective system) for entries made prior 
to the end of the reasonable period of time would imply a retroactive remedy. 
77. Moreover, the United States contends that the Pa nel correctly held that the United States did 
not fail to comply with the DSB's recommendations and rulings by finally liquidating duties on entries 
made before the end of the reasonable period of time.  The United States argues that nothing in the Anti-Dumping Agreement  or the DSU suggests that the status of past entries as "liquidated" or 
                                                     
 
129United States' appellee's submission, para. 83 (quoting European Communities' appellant's 
submission, para. 148).   WT/DS294/AB/RW 
 Page 37 
 
 
  "unliquidated" is relevant to the scope of a Memb er's compliance obligations.  For the United States, 
the question of whether a Member has come into compliance with DSB recommendations and rulings 
with respect to duties it imposes on a particular merchandise should be evaluated by examining the 
Member's treatment of that merchandise on the date  of entry, because that date is when liability 
attaches to the imports in question.130  In this respect, the United States underscores the Panel's finding 
that, if implementation obligations do not attach to  final decisions made prior to the end of the 
reasonable period of time, those obligations shoul d not further depend on when the actual collection 
takes place.  In addition, the Panel correctly c oncluded that implementation obligations should not 
depend on the fact that the mere act of collecting du ties by the authorities is delayed due to actions of 
private parties for reasons wholly unrelated to the dispute at hand.  The United States adds that DSB 
recommendations and rulings do not serve as a basis for the reimbursement of duties131, and reiterates 
that, to ensure a "level playing field"132 among Members with retrospective systems, prospective 
ad valorem  systems, and prospective normal value system s, prospective implementation requires that 
duties levied on imports occurring on or after the date  of implementation be ma de consistently with 
the DSB's recommendations and rulings. 
78. The United States also suggests that the Panel correctly declined to make findings with 
respect to 11 of the 16 administrative reviews at issue in the original proceedings for which 
anti-dumping duty orders remain in place.  The Un ited States argues that the European Communities 
failed to identify any evidence or any particular  measure in which a margin of dumping was 
calculated using zeroing and which wa s being used by the United States as the basis for a cash deposit 
rate for any anti-dumping duty order at the time of Panel establishment.  However, the United States 
objects to the Panel's inference that, if the United States were applying cash deposit rates calculated in 
subsequent administrative reviews using zeroing, this  would constitute a failure to comply with the 
DSB's recommendations and rulings in this dispute.133  The United States characterizes this statement 
as purely "hypothetical"134, given the European Communities' failu re to adduce any evidence in this 
regard.  Accordingly, the United States considers th at the Panel's statement is "without legal effect".135  
                                                      
130United States' appellee's submission, paras. 92 and 95 (referring to Panel Reports, China – Auto 
Parts , para. 7.184;  Appellate Body Report, US – Line Pipe , para. 129;  and Panel Report, US – Certain EC 
Products , para. 6.106). 
131The United States adds that even the European Co mmunities' municipal law r ecognizes the principle 
that DSB recommendations and rulings do not serve as a basis for the reimbursement of duties. (United States' 
appellee's submission, para. 97 (referring to Case C-351-04, Ikea Wholesale Ltd. v. Commissioners of Customs 
and Excise , Judgment of the Court of Justice of 27 September 2007, Second Chamber [2007] ECR I-7723 
(Panel Exhibit US-34))) 
132United States' appellee's submission, para. 98. 
133United States' appellee's submission, para. 106 (referring to Panel Report, para. 8.218). 
134United States' appellee's submission, para. 106.  
135United States' appellee's submission, para. 106.  WT/DS294/AB/RW 
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  Nevertheless, should the A ppellate Body reverse the Panel's finding that the European Communities 
failed to substantiate its claim in relation to cash deposit rates, the United States contends that the 
recommendations and rulings of the DSB do not cover cash deposit rates, because a cash deposit is 
not an anti-dumping duty but, rather, a security. 
79. The United States also posits that the Panel corr ectly declined to make separate findings with 
respect to the European Communities' "domino th eory" arguments, in particular, the European 
Communities' assertion that the United States has not withdrawn the original measures at issue when 
it takes any "positive act" after the end of the reasonable period of time on the basis of those measures.
136  For the United States, the Panel acted corr ectly in refusing the European Communities' 
request to issue an advisory opinion  as to what types of acts, in gene ral, the United States may or may 
not take in order to comply with the DSB's recommendations and rulings.  The United States explains 
that a panel acting under Article 21.5 of the DSU is not called upon to opine generally about the 
recommendations and rulings of the DSB independently of the identification of specific instances in 
which measures (including omissions) are relevant to  the question of the existence or consistency of 
measures taken to comply.   
80. Finally, the United States argues that the Appellate Body should reject the European 
Communities' request to complete the analysis w ith respect to a number of claims and measures, 
including those relating to assessment instructions or  liquidation after the end of the reasonable period 
of time, because the European Communities failed to  identify the factual findings by the Panel or 
undisputed facts in the Panel record that would enable the Appellate Body to do so.  
4. The Subsequent Sunset Reviews  
81. The United States requests the Appellate Body to  reject the European Communities' claim 
that all subsequent sunset reviews listed in its panel request fell within  the Panel's terms of reference.  
The United States submits that none of the subseque nt sunset reviews—neither those that the Panel 
found to be within its terms of reference, nor  those excluded by the Panel from its terms of 
reference—are in fact within the scope of these compliance proceedings.  The United States argues 
that the DSB's recommendations and rulings in the or iginal proceedings were limited to 15 original 
investigations and 16 administrative reviews, and there were no recommendations and rulings 
regarding determinations made in sunset reviews;  therefore, there was no question as to the existence 
of measures taken to comply with respect to sunset reviews. 
                                                      
136United States' appellee's submission, para. 111 (re ferring to European Communities' appellant's 
submission, paras. 198-202).  WT/DS294/AB/RW 
 Page 39 
 
 
  82. The United States also contends that the sunset  reviews "have no sufficient 'close connection' 
or 'nexus' to either the measures at issue in the original dispute or to the DSB's recommendations and 
rulings that would bring those determinations w ithin the jurisdiction of the compliance Panel."137  The 
United States points out that the analysis in sunset reviews is different from the analysis in original 
investigations and administrative reviews, because sunset reviews determine whether the expiration of 
an anti-dumping duty would be likely to lead to the continuation or recurrence of dumping and injury, 
not duty existence or liability.  The United States also argues that sunset reviews are required by 
Article 11.3 of the Anti-Dumping Agreement ;  they are not made in view of the DSB's 
recommendations and rulings.  Finally, the United St ates claims that 11 of the 16 sunset reviews 
challenged by the European Communities cannot possi bly be regarded as closely connected to the 
determinations originally challenged, or to the DSB's recommendations and rulings, because they 
were completed prior to the adoption of  the DSB's recommendations and rulings. 
83. Regarding those sunset reviews that the Panel f ound to be within its terms of reference, the 
United States requests the Appellate Body to uphold the Panel's finding that the European Communities failed to demonstrate that the USDO C determinations it challenged had caused the 
continuation of the orders at the time the Panel was established.  The United States argues that, "[a]s a 
matter of logic, measures that have not been take n at the time of panel establishment cannot form the 
basis of a claim of inconsistency."
138  The United States notes that sunset reviews under its domestic 
laws have several components, which include the final likelihood-of-dumping determination by the 
USDOC and the determination by the USITC of whether the revocation of the anti-dumping duty 
order would likely lead to a continuation or recurre nce of material injury.  The United States points 
out that sunset reviews are not based solely on the determination by the USDOC, and argues that a 
determination by the USDOC of likelihood of dumping alone is insufficient to find a violation.  The 
United States further contends that this is illustrate d by the fact that, for five of the orders for which 
the Panel found a sunset review to fall within its terms of reference, four were ultimately revoked. 
84. The United States also contends that, if an initial sunset review results in the revocation of the 
order, such revocation is effective on the fifth-year  anniversary date of the anti-dumping duty order, 
so that any security in the form of cash deposits that are provided for entries on or after that date, 
pending the sunset review, is refunded with inter est if the sunset review results in revocation. 
                                                      
137United States' appellee's submission, para. 51. 
138United States' appellee's submission, para. 57. WT/DS294/AB/RW 
Page 40  
 
  85. Finally, the United States contends that the European Communities failed to demonstrate any 
interest in pursuing this claim in respect of Cases 2,  3, 4, and 5, considering that, following the sunset 
reviews in these Cases, the anti-dumping duty orders were revoked. 
5. The Non-Existence of Measures between 9 April and 23 April/31 August
 
2007  
86. According to the United States, the Panel co rrectly rejected the European Communities' 
request for a finding that the United States has faile d to comply with the recommendations and rulings 
of the DSB in certain Cases by not taking any me asures between the end of the reasonable period of 
time and the date on which the Sec tion 129 determinations entered in to force.  The United States 
considers that, as there was no disagreement within the meaning of Article 21.5 of the DSU that the 
United States did not implement the Section 129 de terminations before 23 April/31 August 2007, the 
European Communities' request was not within the scope of these compliance proceedings.  The 
United States further considers that the findings requested by the European Communities would have 
been of little relevance to the effective resolution of  the dispute.  In any event, the United States 
argues that the Panel was correct to find that the United States did not breach Article 21.3 of the DSU, 
because Article 21.3 does not impose an obligation on the Member concerned;  rather, Article 21.3 
provides the implementing Member with the right to a reasonable period of time should immediate 
compliance be impracticable.  In any event, ther e being no "disagreement" within the meaning of 
Article 21.5 as to the existence of the Section 129 de terminations at issue as of the date of Panel 
establishment, there is no basis for the Appellate Bo dy to disturb the Panel's stance on this issue. 
6. The Alleged Arithmetical Error in the Section 129 Determination in Case 11  
87. The United States considers that the Panel corr ectly found that the European Communities' 
claim regarding the alleged arithmetical e rror in the Section 129 determination in Stainless Steel Sheet 
and Strip in Coils from Italy  (Case 11) was not properly before it.  Contrary to the European 
Communities' allegation, the USDOC never acknowledge d in either the original investigation or 
during the Section 129 proceeding in this Case that  an arithmetical error had been made.  Moreover, 
the United States does not acknowledge, as the Eur opean Communities claims  it does, that the 
dumping margin would have been negative if the USDOC had corrected the alleged calculation error 
in the Section 129 proceeding, in addition to eliminating zeroing. 
88. The United States argues further that the alleged error is "separable"139 from the measure 
taken to comply.  In this respect, the United St ates submits that, in recalculating the margin of 
                                                      
139United States' appellee's submission, para. 130.  WT/DS294/AB/RW 
 Page 41 
 
 
  dumping in the Section 129 determination, in  accordance with the DSB's recommendations and 
rulings, the USDOC changed only the language that  caused the computer program to disregard non-
dumped comparisons.  The USDOC then re-ran the program and calculated the revised margin of 
dumping, while making no other changes to the comput er program.  The United States is of the view 
that, having recalculated the margin of dumping without zeroing, it complied with the DSB's recommendations and rulings. 
89. The United States also contends that the alleged arithmetical error is an aspect of the original 
measure that is unchanged, and, even if it became an  integral part of the measure taken to comply, as 
the European Communities contends, the Panel prope rly found that the European Communities' claim 
was not within the scope of these proceedings.  The United States also agrees with the Panel that to 
allow the claims by the European  Communities against the alleged arithmetical error would "unfairly" 
allow complaining Members a "second chance" to pursue claims they could have pursued in the 
original proceeding, and would thus present "fundamental due process concerns".
140  According to the 
United States, "[a] Member is provided a 'second chance '—that is, a second opportunity —if it is 
permitted to raise a claim in a compliance proceeding that, as a legal and practical matter, it could 
have raised before the original panel, but did not."141  The United States contends that, if the European 
Communities was permitted to raise claims against the alleged arithmetical error in the Article 21.5 
proceedings, it would be given another opportunity to raise a claim it should and could have raised in 
the original proceedings.  The United States also agrees with the Panel that the United States was 
entitled to assume that this aspect of the original  measures was WTO-consistent, "given the absence 
of a finding of violation [in this r espect] in the origin al [panel] report".142 
90. The United States further suggests that to a llow the claims by the European Communities 
against the alleged arithmetical error would be "at odds with the nature of Article 21.5 proceedings, 
including the abbreviated time periods set out in Article 21.5"143 and with the fact that no second 
reasonable period of time is available if the Member concerned is found not to have complied with the 
DSB's recommendations and rulings.  In this r espect, the United States recalls that compliance 
proceedings exist for a limited purpose, and not in or der to examine new claims that could have been 
raised, but were not, in the initial dispute, as doi ng so could "raise unwarranted litigation difficulties 
for the responding Member".144  The United States believes that the Panel correctly declined to 
                                                      
140United States' appellee's submission, para. 134 (referring to Panel Report, paras. 8.240 and 8.241). 
141United States' appellee's submission, para. 136. (original emphasis) 
142United States' appellee's submission, para. 139 (referring to Panel Report, para. 8.240, in turn 
referring to Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) , 
paras. 7.75 and 7.76). 
143United States' appellee's submission, para. 137. 
144United States' appellee's submission, para. 138. WT/DS294/AB/RW 
Page 42  
 
  examine this claim, because the alleged error w as not a failure to implement DSB recommendations 
and rulings, or a measure taken to comply;  nor did it call into question or otherwise affect the 
existence of a measure taken to comply. 
91. Finally, the United States contends that the Panel's findings are supported by considerations 
of orderly administration.  The United States argue s that the alleged arithmetical error, like other 
determinations by the USDOC, was subject to judici al review in the United States, and the responding 
parties sought judicial review of precisely this alleged ministerial error and failed to succeed in 
overturning the USDOC's determination.  Acco rding to the United States, the Section 129 
determination should not become an opportunity for one  interested party to raise new claims of error 
that would otherwise have been untimely, as this would undermine the orderly administration of anti-dumping proceedings.  In the view of the United States, these considerations support the 
USDOC's decision not to reopen the Section 129 proceed ing to consider new issues not relevant to the 
implementation of the DSB's recommendations and rulings. 
7. The "All Others" Rates Calculated in  the Section 129 Determinations in 
Cases 2, 4, and 5  
92. The United States contends that the Panel was co rrect in finding that the United States did not 
violate Articles 9.4 and 6.8 and Annex II of the Anti-Dumping Agreement in the calculation of the 
"all others" rates in Cases 2, 4, and 5, and requ ests the Appellate Body to uphold this finding.  
93. The United States first observes that the sunset reviews in Cases 2, 4, and 5 resulted in the 
revocation of the underlying anti-dumping duty orders , effective 7 March 2007.  As a result, the 
United States refunded all cash deposits collected subsequent to 7 March 2007, including on imports 
subject to the "all others" rates challenged by th e European Communities.  Therefore, the United 
States submits that the European Communities has no "articulable interest" in pursuing these claims 
and is seeking no more than an "advisory opinion".145 
94. The United States points out that Article 9.4 mere ly provides that the "all others" rate "shall 
not exceed" the weighted average margin of dumping fo r the investigated exporters or producers, and 
restricts the use of zero, de minimis , or margins based on facts availa ble in the calculation of that 
ceiling.  The United States disagrees with the Eu ropean Communities' assertion that Article 9.4 
prohibits the use of margins based on facts available in the calculation of the "all others" rate in all 
circumstances.  Rather, the United States agrees with  the Panel that this prohibition extends only to 
the ceiling provided for in Article 9.4, and that  Article 9.4 provides no methodological guidance on 
                                                      
145United States' appellee's submission, para. 144.   WT/DS294/AB/RW 
 Page 43 
 
 
  the calculation of the "all others" rate.  According to the United States, where all margins of dumping 
are zero, de minimis , or based on facts available, a ceiling cannot be determined pursuant to 
Article 9.4.  Given that this situation is not addr essed in Article 9.4, the prohibition contained therein 
does not apply.  Nevertheless, a Member may still apply anti-dumping duties to the non-investigated 
exporters or producers in an amount based on the r esults of investigated exporters or producers.  
However, since Article 9.4 establishes no ceiling in this instance, there is no applicable prohibition. 
95. The United States emphasizes that Article 9.4 is s ilent as to the situation that arises in this 
dispute, and notes that, in US – Corrosion-Resistant Steel Sunset Review , the Appellate Body 
"declined to read into the s ilence of the treaty text obligations that were not there".146  Similarly, in 
this case, the Appellate Body should not find an obligation where the WTO agreements do not 
provide for one.  In addition, the United States argu es that Article 9.4 establishes that the "all others" 
rate cannot be arbitrary.  The United States characterizes as "reasonable"147 the methodology it 
developed to establish the "all ot hers" rate in these Cases, because it was based on the results of 
exporters and producers that had been investigated.   
96. The United States also underscores that the Eu ropean Communities does not offer "plausible 
alternatives"148 to the Panel's interpretation of Article 9.4.  Although the European Communities 
acknowledges that Article 9.4 does not discipline s ituations where all margins of dumping for the 
investigated exporters or producers are zero, de minimis , or based on facts available, the European 
Communities does not provide an answer to the qu estion of how the "all others" rate should be 
calculated in those circumstances.  The outcome of the European Communities' interpretation of 
Article 9.4 is that Members do not have a basis fo r calculating the "all others" rate in cases where a 
Member limits the investigation pursuant to Article  6.10, and all investigated exporters and producers 
have zero, de minimis , or "facts available" margins of dumping. 
8. The European Communities' Request for a Suggestion  
97. Finally, the United States argues that the Appella te Body should reject entirely the European 
Communities' request for a suggestion in this disput e.  The United States considers that the suggestion 
sought by the European Communities "merely restate[s] the findings or rulings that the EC is seeking 
in this appeal", and therefore "would provide no 'u seful guidance and assistance' in implementing such 
                                                      
146United States' appellee's submission, para. 149 (referring to Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 123).  
147United States' appellee's submission, para. 150.  
148United States' appellee's submission, para. 151.  WT/DS294/AB/RW 
Page 44  
 
  rulings".
149  The United States also considers that the European Communities' request for a suggestion 
would extend the Panel's findings to "an indeterminate set of future measures"150, none of which 
would fall within the Panel's terms of reference. 
C. Claims of Error by the United States – Other Appellant 
1. The Panel's Terms of Reference (Cases 1 and 6)  
98. The United States argues that the Panel erred in finding that the 2004-2005 administrative 
reviews in Certain Hot-Rolled Carbon Steel Fl at Products from the Netherlands  (Case 1) and 
Stainless Steel Wire Rod from Sweden  (Case 6) fell within the Panel's terms of reference under 
Article 21.5 of the DSU by virtue of their close nexus with the original measures at issue and the 
DSB's recommendations and rulings.  The United Stat es requests the Appellate Body to reverse this 
finding and to declare without legal effect the Pane l's finding that the United States failed to comply 
with the DSB's recommendations and rulings and act ed inconsistently with Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 in those two specific administrative reviews. 
99. The United States distinguishes the fact s of this case from the facts in US – Softwood 
Lumber IV (Article 21.5 – Canada) , where the panel and Appellate Body found significant that (i) the 
administrative review at issue resulted in a cash depo sit rate that superseded the revised cash deposit 
rate established in the Section 12 9 determination and (ii) a particul ar aspect of the analysis in the 
administrative review was made "in view of"151 the DSB's recommendations and rulings in the 
original proceedings in relation to that type of  analysis.  The United States emphasizes that, by 
contrast, the DSB's recommendations and rulings w ith respect to Cases 1 and 6 in this dispute 
concerned only the original investigations in t hose Cases, and that it has taken measures to comply 
with those rulings by issuing Section 129 dete rminations in which the underlying anti-dumping duty 
orders have been revoked.  
100. Because the margins of dumping resulting from the recalculation in the Section 129 
determinations in Cases 1 and 6 were zero or de minimis , the United States revoked the anti-dumping 
duty orders in those Cases, effective 23 April 2007.  As a result, no potential anti-dumping duty 
liability arose, nor were any cash deposits required, on entries made on or after that date.  By contrast, 
the 2004-2005 administrative reviews in Cases 1 and 6 applied to entries that occurred prior to the end 
                                                      
149United States' appellee's submission, para. 161 (quoting Appellate Body Reports, EC – Bananas III 
(Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , para. 325).  
150United States' appellee's submission, para. 161.  
151United States' other appellant's submission, para. 58 (quoting Appellate Body Report, US – Softwood 
Lumber IV (Article 21.5 – Canada) , para. 84).   WT/DS294/AB/RW 
 Page 45 
 
 
  of the reasonable period of time, and indeed be fore the adoption of DSB's recommendations and 
rulings;  they were not measures the United Stat es took to comply with the DSB's recommendations 
and rulings.  Therefore, the United States stresse s that, because the 2004-2005 administrative reviews 
in Cases 1 and 6 did not establish a new cash deposit rate  that applied for future entries, given that the 
underlying anti-dumping duty order had been revoked, they "had no effect whatsoever  on the 
continued validity and effect of the measure taken to comply"152, in the form of the relevant 
Section 129 determinations.    
101. According to the United States, the purpose of th e "nexus-based test" is to determine whether 
measures that are not declared to  be "measures taken to comply" are nonetheless "closely connected" 
to those measures so that they should be reviewed by the compliance panel in order to avoid "circumvention" of a Member's implementation obligations.
153  Thus, according to the United States, 
"[w]here the declared measure taken to comply  achieves compliance, but that compliance is 
'negat[ed]' by another measure, it is appropriate to  consider the latter measure in an Article 21.5 
proceeding in order to resolve the disagreemen t as to the 'existence ... of measures taken to 
comply'"154 within the meaning of Article 21.5 of the DSU.  In this dispute, however, the results of the 
2004-2005 administrative reviews in Cases 1 and 6 did not have any effect on the United States' 
declared measures taken to comply in the form of two Section 129 determinations, because no cash deposit rates resulted from those determinations.  A ccording to the United States, this is the case 
irrespective of whether those determinations were  themselves consistent with Articles 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994.  
102. In addition, the United States submits that, in terms of their nature , successive administrative 
reviews under the same anti-dumping duty orders  will "generally have ... some connection"
155 in terms 
of their nature with the original anti-dumping i nvestigation, because they will usually involve the 
same type of merchandise exported from the same  country.  Thus, a closer connection with the 
declared measure taken to comply must exist in orde r for a subsequent review to fall within the scope 
an Article 21.5 proceeding.  In the United Stat es' view, the DSB's recommendations and rulings 
related exclusively to the use of zeroing in specified  original investigations, and none of the Appellate 
Body's "as applied" findings in relation to the use of zeroing in administrative reviews related to the 
two specific administrative reviews at issue in Cases 1 and 6;  nor did the Appellate Body make an "as 
such" finding regarding the use of zeroing in admini strative reviews in the original proceedings.   
                                                      
152United States' other appellant's submission, para. 63. (original emphasis)   
153United States' other appellant's submission, para. 66 (referring to Appellate Body Reports, EC – 
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , para. 245).  
154United States' other appellant's submission, para. 73.  
155United States' other appellant's submission, para. 76.  WT/DS294/AB/RW 
Page 46  
 
  103. Turning to the Panel's analysis of the nexus, in terms of effects , between the two specific 
administrative reviews and the original measures at  issue, the United States submits that the Panel 
erred in finding that the use of zeroing in tho se reviews "allows for the assessment of anti-dumping 
duties at a rate that is based on zeroing ... despite  alleged implementing action to eliminate such 
zeroing".
156  For the United States, the Panel incorrec tly treated zeroing as "a unitary phenomenon"157, 
despite the fact that the DSB's recommendations a nd rulings with respect to zeroing in original 
investigations "are not identical"158 to those made with respect to zeroing in assessment reviews, in 
terms of coverage and legal conclusions.   
104. Finally, the United States argues that the timing of the 2004-2005 administrative reviews in 
Cases 1 and 6 was insufficient to justify their incl usion in the scope of the compliance proceedings, 
because administrative reviews that modify measu res taken to comply with DSB recommendations 
and rulings will always be issued after the a doption of those recommendations and rulings.   
2. The United States' Compliance Obligations (Cases 1 and 6)  
105. The United States claims that the Panel erred in finding that the United States failed to 
comply with the DSB's recommendations and rulings, a nd acted inconsistently with Article 9.3 of the 
Anti-Dumping Agreement  and Article VI:2 of the GATT 1994, by  making determinations and issuing 
assessment instructions based on zeroing in  the 2004-2005 administrative reviews in Certain Hot-
Rolled Carbon Steel Flat Products from the Netherlands  (Case 1) and Stainless Steel Wire Rod from 
Sweden  (Case 6).  The United States urges the Appellate Body to reverse this finding and to find 
instead that the United States did not act inconsistently with Articles 9.3 of the Anti-Dumping 
Agreement and Article VI:2 of the GATT 1994 in those two specific administrative reviews.  
106. With respect to Case 1, the United States asser ts that it complied with the recommendations 
and rulings of the DSB by providing "offsets" when  it recalculated the margin of dumping in the 
Section 129 determination and revoking the anti-dum ping duty order, effective 23 April 2007.  The 
United States also underscores that, as a result of a subsequent determination by the USDOC in a 
sunset review, the revocation of the anti-dumpi ng duty order became effective 29 November 2006, 
and cash deposits made on imports occurring on or afte r that date have been refunded with interest.  
With respect to Case 6, the United States contends  that it also complied with the recommendations 
and rulings of the DSB by providing "offsets" for non-dumped sales in the recalculation of the margin 
of dumping in the Section 129 determination.  As a result of this Section 129 determination, the 
                                                      
156United States' other appellant's submission, para. 79 (quoting Panel Report, para. 8.108).  
157United States' other appellant's submission, para. 84.  
158United States' other appellant's submission, para. 80.   WT/DS294/AB/RW 
 Page 47 
 
 
  anti-dumping duty order was revoked, effective 23 Apr il 2007, and any entries occurring on or after 
that date were not subject to anti-dumping dutie s.  Therefore, in the United States' view, the 
termination of the anti-dumping duty orders in Cases 1 and 6 with respect to entries occurring on or 
after 23 April 2007 constitutes "withdrawal" of those measures within the meaning of Article 3.7 of 
the DSU, insofar as future imports of the produc ts concerned will no longer incur any anti-dumping 
duty liability upon entry into the United States.  For the United States, anti-dumping and 
countervailing duty measures are border measures and,  accordingly, eliminating a WTO-inconsistent 
anti-dumping or countervailing duty measure at the bor der with respect to a ll future entries will 
achieve compliance.   
107. The United States submits that the DSB made "as applied" recommendations and rulings in 
the original proceedings with resp ect to the use of weighted average-to-transaction comparisons in 
certain individually identified assessm ent reviews that did not relate to Cases 1 and 6.  The United 
States considers that the Panel conflated original  investigations and assessment reviews, which are 
distinct proceedings that serve different purposes.  Whereas, pursuant to Article 5.1 of the Anti-
Dumping Agreement , the purpose of the original investigation is "to determine the existence, degree 
and effect of any alleged dumping" , the purpose of an assessment review is to determine the final 
amount of the anti-dumping duties consistent with Article 9.3 of the Anti-Dumping Agreement .  
According to the United States, the recommendati ons and rulings of the DSB concerning Cases 1 
and 6 were limited to the use of zeroing in the origin al investigations at issue, and the United States 
has complied with these recommendations and rulings by recalculating the margins challenged in the 
original investigations at issue and withdrawing th e orders in accordance with the results of those 
recalculations. 
108. The United States observes that the 2004-2005  administrative reviews in Cases 1 and 6 
covered entries made before  the end of the reasonable period of time, even though they were 
concluded after  that date.  Therefore, in finding that the United States failed to comply with the 
recommendations and rulings of the DSB in the or iginal proceedings by using zeroing in these two 
2004-2005 administrative reviews, the Panel provi ded an "impermissible, retroactive relief"159 that 
extended the implementation obligations to past entr ies.  However, the Unite d States submits that the 
date of entry , rather than the date of final determination and collection of dumping duties, is 
determinative of whether relief is "retroactive" or "prospective" in the context of anti-dumping duties.  
In the view of the United States, textual elements of Articles VI:2 and VI:6(a) of the GATT 1994, as well as the interpretive Note to paragraphs 2 and 3 of Article VI of GATT 1994 (the " Ad Note"), 
                                                     
 
159United States' other appellant's submission, para. 42. WT/DS294/AB/RW 
Page 48  
 
  confirm that it is the legal regime in existence at the time of importation that determines whether the 
importer is liable for payment of anti-dumping duties.  The United States adds that Articles 8.6, 10.1, 
10.6, and 10.8 of the Anti-Dumping Agreement show that "whenever the [ Anti-Dumping Agreement ] 
specifies an applicable date for an action, the scope of applicability is based on entries occurring on or 
after that date."
160  The United States considers that it "has acted consistently with the principle of 
prospective implementation, as understo od in the antidumping duty context."161   
109. In addition, the United States argues that a pplying implementation obligations to future 
entries only is not unique to retrospective duty asse ssment systems.  Such a principle would also 
govern implementation in prospective duty assessment systems, as there is no obligation to refund 
anti-dumping duties assessed on importations occurring pr ior to the end of the reasonable period of 
time under such systems.  Therefore, the United St ates posits that recognizing the date of entry as 
determinative of a Member's implementation obligation would maintain neutrality between 
retrospective and prospective duty assessment systems.   
D. Arguments of the European Communities – Appellee   
1. The Panel's Terms of Reference (Cases 1 and 6)  
110. The European Communities requests the Appellate  Body to uphold the Panel's findings that 
the 2004-2005 administrative reviews in Cases 1 a nd 6 and respective assessment instructions fell 
within the Panel's terms of reference under Artic le 21.5 of the DSU, for the following reasons. 
111. First, the European Communities disputes th e United States' argument that the DSB's 
recommendations and rulings applied exclusively to th e original investigations in Cases 1 and 6.  The 
European Communities emphasizes that, in the orig inal proceedings, it challenged the original 
investigations in Cases 1 and 6, including "a ny amendments and their assessment instructions".162  
Thus, the 2004-2005 administrative reviews in Cas es 1 and 6 and respective assessment instructions 
were covered by the DSB's recommendations and rulings  and, as such, fell within the Panel's terms of 
reference.  
112. Secondly, the European Communities reiterates th at the 2004-2005 administrative reviews in 
Cases 1 and 6 fell within the Panel's terms of re ference as "omissions" or "deficiencies" in the 
                                                      
160United States' other appellant's submission, para. 48;  see also paras. 46 and 47.  The United States 
also refers to the reasoning of the panel in EC – Bananas III (Article 21.5 – Ecuador)  in support of its argument. 
(Ibid., para. 50) 
161United States' other appellant's submission, para. 51. 
162European Communities' appellee's submission, para. 10.   WT/DS294/AB/RW 
 Page 49 
 
 
  United States' compliance.  The European Commun ities disagrees with the United States' claim to 
have achieved "full and complete compliance"163 in these Cases, and underscores that the fact that the 
United States failed to stop making determinations, and continues to collect duties based on zeroing 
with respect to the original measu res at issue, indicates that the necessary "measures taken to comply" 
do not exist. 
113. Thirdly, the European Communities argues th at the 2004-2005 administrative reviews in 
Cases 1 and 6 undermined the measures taken to comply by the United States and circumvented 
compliance with the DSB's recommendations and ru lings.  According to the European Communities, 
a compliance panel may examine measures on the basi s of the close connection of those measures 
either with the declared "measure taken to comply",  the measure at issue in the original proceedings, 
and/or the DSB's recommendations and rulings.  Thus, the United States is incorrect in suggesting that 
the "close-nexus test" applies exclusively to measur es that undermine the declared "measure taken to 
comply".  Rather, the Panel correctly held that the relevant inquiry is whether a closely connected measure "undermines or circumvents compliance"
164 with the DSB's recommendations and rulings so 
as to fall within the scope of compliance proceedin gs.  The key issue for the European Communities 
is whether the implementing Member complie d or undermined compliance with the DSB's 
recommendations and rulings, and not whether th e implementing Member has undermined its own 
declared "measure taken to comply".  In these pro ceedings, the Panel correctly concluded that actions 
taken by the United States in the context of the subsequent reviews at issue "negat[ed]"165 the 
measures taken to comply, and therefore circumvented compliance with the DSB's recommendations 
and rulings.166   
114. In addition, the European Communities submits that the administrative reviews in question 
affected the measures taken to comply by the Unite d States, because they prov ided the basis for the 
assessment of duties calculated w ith zeroing despite the fact that the underlying anti-dumping duty 
orders had been previously revoked because the recalculation of the margins in the Section 129 
determinations led to the conclusion that, in C ases 1 and 6, no dumping would have been found absent 
zeroing.  Thus, according to the European Communities, the 2004- 2005 administrative reviews in 
Cases 1 and 6 and respective assessment instructions  "negated the compliance asserted to have been 
                                                      
163European Communities' appellee's submission, para. 11 (quoting United States' other appellant's 
submission, paras. 30, 31, and 62; and United States' first written submission to the Panel, para. 95).  
164European Communities' appellee's submission, para. 16.  
165European Communities' appellee's submission, para. 17.  
166The European Communities believes that the Panel correctly relied on previous panel and Appellate 
Body reports in Australia – Automotive Leather II (Article 21.5 – US) , Australia – Salmon (Article 21.5 – 
Canada) , and US – Softwood Lumber IV (Article 21.5 – Canada)  in making these conclusions. WT/DS294/AB/RW 
Page 50  
 
  achieved by the withdrawal of the original measures".
167  The fact that the underlying anti-dumping 
duty orders were revoked, and that  cash deposits were no longer requi red for imports made on or after 
23 April 2007, does not mean that the effects of those measures no longer exist.  Rather, Cases 1 
and 6 illustrate that determinations made in subsequent assessment reviews based on zeroing may 
continue to nullify and impair the benefits of th e European Communities even after the revocation of 
those anti-dumping duty orders.       
115. Fourthly, the European Communities contends th at the Panel correctly applied the "nexus-
based test" with respect to the 2004-2005 administra tive reviews in Cases 1 and 6 by examining the 
nature , effects , and timing .  As regards the links, in terms of nature , between those reviews and the 
DSB's recommendations and rulings, the Panel correctly identified the issue of zeroing as the element closely connecting the subsequent administra tive reviews and the DSB's recommendations and 
rulings.  The European Communities agrees with the Pa nel that successive determ inations of different 
types are made in the context of a single trade remedy  proceeding, form part of a continuum of events, 
and are thus all measures inextricably linked.  Where findings were made under different legal 
provisions, they were premised on the same fundamental obligations under the Anti-Dumping 
Agreement , flowing from the definition of the term "mar gin of dumping" under that Agreement.  In 
addition, the European Communities rejects the United States' assertion that the Panel erred in treating 
zeroing as "a unitary phenomenon, allegedly exis ting in both original investigations and 
administrative reviews".
168  The European Communities stress es that, according to the Appellate 
Body, "'zeroing' under different comparison methodologies and in different stages of anti-dumping 
proceedings simply reflect[s] different manifestations of a single rule or norm."169  Referring to the 
Appellate Body's statement in the original proceedings  that "the central focus of this appeal is the 
issue of zeroing, both as it relates to original investigations and administrative reviews"170, the 
European Communities emphasizes that the Appellat e Body made it clear that, in the original 
proceedings, the use of zeroing in original inves tigations and administrative reviews amounted to a 
single issue that led to the same WTO-inconsistent r esult, whether applied in original investigations or 
subsequent administrative reviews. 
116. With respect to the links, in terms of effects , between the 2004-2005 administrative reviews in 
Cases 1 and 6 and the DSB's recommendations and rulings, the European Communities disputes the 
                                                      
167European Communities' appellee's submission, para. 18.  
168European Communities' appellee's submission, para. 27  (referring to United States' other appellant's 
submission, paras. 78 and 84).   
169European Communities' appellee's submission, para. 27 (referring to Appellate Body Report, US – 
Zeroing (Japan) , para. 88).  
170European Communities' appellee's submission, para. 28 (quoting Appellate Body Report, US – 
Zeroing (EC) , para. 164). (emphasis added by the European Communities omitted)  WT/DS294/AB/RW 
 Page 51 
 
 
  United States' allegation that cash deposits were the only element that connected those measures.  
Rather, the Panel correctly observed that assessmen t rates calculated in administrative reviews may 
also affect a Member's implementation of the DS B's recommendations and rulings.  For the European 
Communities, the use of zeroing in subsequent de terminations would make  implementation with 
respect to original investigations meaningless, si nce this would inflate again the cash deposits and 
duties to be collected, contrary to the Anti-Dumping Agreement .  According to the European 
Communities, the application of zeroing in the 2 004-2005 administrative reviews in Cases 1 and 6 
"perpetuate[s] the WTO-inconsistent anti-dumpi ng measure[s] beyond the end of the reasonable 
period of time"171 and affects the United States' compliance with the DSB's recommendations and 
rulings. 
117. Moreover, the European Communities dis putes the United States' argument that timing  alone 
was insufficient to establish that the 2004-2005 administrative reviews in Cases 1 and 6 bore a 
sufficiently close connection with the DSB's r ecommendations and rulings, because administrative 
reviews following Section 129 determinations made in order to achieve compliance will always be 
issued after the adoption of those recommendati ons and rulings of the DSB.  The European 
Communities reiterates that timing  was one of the factors taken into  account by the Panel in its "close-
nexus" analysis, but it was not decisive.  The Eur opean Communities agrees with the Panel that the 
fact that the USDOC "expressly declined"172 to implement the DSB rulings with respect to 
administrative reviews in the Section 129 determinat ions, "supports inclusion of these measures in the 
scope of this [compliance] proceeding".173  In addition, the European  Communities emphasizes that 
the 2004-2005 administrative reviews in Cases 1 and 6 were concluded after the adoption of the 
DSB's recommendations and rulings and, indeed, a few months after the adoption of the Section 129 
determinations.  The European Communities furthe r argues that the USDOC's explicit refusal to 
extend the Section 129 determinations to entries co vered by the subsequent administrative reviews 
suggests that these reviews are interconnected. 
2. The United States' Compliance Obligations (Cases 1 and 6)  
118. The European Communities requests the Appellate Bo dy to reject the United States' appeal of 
the Panel's findings that the 2004-2005 administrative reviews in Cases 1 and 6 are WTO-inconsistent 
and constitute a failure to comply with the rulings  and recommendations of the DSB.  The European 
Communities argues that the United States' submissi ons regarding the revocation of the original 
                                                      
171European Communities' appellee's submi ssion, para. 34. (emphasis omitted) 
172European Communities' appellee's submi ssion, para. 35. (emphasis omitted) 
173European Communities' appellee's submission, para. 35 (referring to Panel Report, para. 8.123). WT/DS294/AB/RW 
Page 52  
 
  orders are irrelevant to the question whether the two administrative reviews are WTO-consistent and 
comply with the rulings and recommendations of th e DSB.  Furthermore, the European Communities 
emphasizes that it is not seeking a retroactive reme dy;  rather, various United States actions and 
omissions after the expiry of the reasonable peri od of time are WTO-inconsistent and constitute a 
failure to comply with the DSB's recommendations and rulings.  For the European Communities, the 
provisions of the GATT 1994 and the Anti-Dumping Agreement  to which the United States refers 
confirm that it is the WTO legal regime in existen ce at the time a measure is adopted (and imports 
occur) that determines the Memb ers' WTO rights and obligations.
174  The European Communities 
submits that all these provisions set out obligations that bind all WTO Members;  they are treaty obligations and not "compliance obligations", a term that does not appear in Article 19.1 of the DSU.  
The European Communities considers that the provisions of the GATT 1994 and the Anti-Dumping 
Agreement  to which the United States refers provide no support for the proposition that measures 
relating to imports occurring before the expiry of the reasonable period of time need not be 
WTO-consistent.   
119. The European Communities also rejects the United States' argument that the Panel's approach 
unfairly disadvantages retrospective duty assessment systems.  The European Communities considers 
that nothing in its submissions or in the Panel's fi ndings is inconsistent with the proposition that the 
amount finally collected in response to a given dumping behaviour should not in principle vary 
according to which type of collection system is u sed.  The European Commun ities submits that it is a 
well-established principle that, whilst there may be some minor technical or procedural differences, 
the retrospective and prospective duty assessment  systems are for all essential purposes the same.  
According to the European Co mmunities, the United States omit s to address the "backward-looking 
aspect"
175 of the prospective duty assessment system—that is, the refund proceedings under 
Article 9.3.2 of the Anti-Dumping Agreement .  The European Communities emphasizes that all the 
pertinent WTO obligations must be complied with by the end of the reasonable period of time, even if 
the goods in question entered before the end of this period.  The Eur opean Communities is of the view 
that prospective duty assessment systems do require a WTO-consistent remedy for certain goods that 
enter before the end of the reasonable period of time, while the United States appears to be seeking 
special protection from DSU remedies for such entr ies under its retrospective system.  The European 
Communities adds that it is merely seeking an eff ective process to enforce its rights under the covered 
agreements, and that the United States should not be permitted to frustrate these efforts. 
                                                      
174European Communities' appellee's submission, para. 43  (referring to United States' other appellant's 
submission, paras. 43-51, where the United States  refers to Articles VI :2 and VI:6(a) and the Ad Note to 
Article VI:2 and 3 of the GATT 1994, and Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping Agreement ). 
175European Communities' appellee's submission, para. 49.  WT/DS294/AB/RW 
 Page 53 
 
 
  E. Arguments of the Third Participants 
1. India  
120. Pursuant to Rule 24(2) of the Working Procedures , India chose not to submit a third 
participant's submission.  India's statement at the oral hearing focused on the decision by the 
Appellate Body to allow the public observation of the oral hearing, on the scope of the Panel's 
jurisdiction under Article 21.5 of the DSU, and on  the establishment of the "all others" rate under 
Article 9.4 of the Anti-Dumping Agreement . 
2. Japan  
121. Japan agrees with the European  Communities that the Panel erre d in finding that the United 
States did not fail to comply with the DSB's recommendations and rulings by applying zeroing in subsequent reviews that were issued under the same anti-dumping duty order as the measures found to 
be WTO-inconsistent in the original proceedings.   
122. First, Japan argues that the Panel erred in excluding from its terms of reference the 
subsequent reviews that were concluded before the adoption of the DSB's recommendations and 
rulings.  Japan submits that Article 21.5 of the DS U covers any measure that may result in achieving 
or undermining compliance, irrespective of its timing .  Properly interpreted in the context provided to 
it by Articles 3.7 and 19.1 of the DSU, Article 21.5 requires actions that result in "the elimination of 
the WTO-inconsistency in the original measure."
176  Whether a measure achieves this result does not 
depend on the timing or purpose of such measure, because nothing precludes a WTO Member from achieving compliance by a measure "taken in advance of, and without regard to"
177, the DSB's 
recommendations and rulings.  Therefore, an implem enting Member must be able to offer measures 
pre-dating the adoption of the DSB's recommendations  and rulings as a defence to a claim that no 
compliance measures "exist".  However, Article 21. 5 requires a panel to review those measures for 
consistency with the covered agreements.  In finding that timing  is one the relevant factors in 
assessing whether a measure is one "taken to comply", the Appellate Body did not indicate either that 
this factor is determinative, or that measures pre-dating the adoption of the DSB's recommendations 
and rulings cannot be "measures taken to comply".178  According to Japan, Article 21 of the DSU 
generally contemplates events post-dating the a doption of the DSB's recommendations and rulings 
because the process of "sur veillance" can only begin  after  the adoption of those recommendations.  
                                                      
176Japan's third participant's submission, para. 107.  
177Japan's third participant's submission, para. 108.  
178Japan's third participant's submission, para. 113 (referring to Appellate Body Report, US – Softwood 
Lumber IV (Article 21.5 – Canada) , para. 77).  WT/DS294/AB/RW 
Page 54  
 
  Nevertheless, Article 21 "does not prescribe that 'measures taken to comply' must come into 
existence after such recommendations and rulings are made."
179   
123. Japan suggests further that the Panel's position that timing  is determinative makes the 
implementing Member's intent decisive.  However,  the Appellate Body found that compliance panels 
are not limited to reviewing measures that " have the objective of achieving [] compliance."180  
Therefore, a measure may be "taken to comply" even if it was not adopted with the purpose of 
achieving compliance.  The Panel itself recognized this  elsewhere in its reasoning, when it rejected 
the United States' argument that subsequent re views issued after the adoption of the DSB's 
recommendations and rulings were not "taken to comply" because they were not adopted "in view 
of"181 those recommendations.  Conversely, if a measure need not move " in the direction of "182 
compliance to be considered a measure "taken to comply", a measure that "moves away from 
compliance, or that reinforces non-compliance"183, can also fall within the scope of Article 21.5 
review, even though there was no intent to comply.  Thus, Japan posits that measures that undermine 
or circumvent compliance may fall within the scope of Article 21.5 proceedings even if taken before 
the adoption of the DSB's recommendations and rulings. 
124. Moreover, Japan underscores that the United Stat es itself asserted that it had brought its 
WTO-inconsistent measures into conformity by vi rtue of compliance measures that pre-dated the 
adoption of the DSB's recommendations and rulings.  Before the Panel, the United States argued that 
it had achieved compliance with the DSB's recomme ndations and rulings by revoking certain of the 
original measures at issue and by issuing administrative reviews that "superseded"184 the original 
measures.  Of the 18 revocation notices and subse quent administrative reviews identified by the 
United States, 17 were issued before  the adoption of the DSB's recommendations and rulings.  Thus, 
although the United States argued that subsequent ad ministrative reviews were not measures "taken to 
comply" with the DSB's recommendations and rulings by virtue of their timing, it simultaneously 
claimed to have achieved compliance because the or iginal measures had been superseded by those 
reviews.  In Japan's view, in order to assert the "existence" of measures taken to comply, the United 
States declared certain measures as "taken to comply", even though all but one of them were taken 
prior to the adoption of the DSB's recommendations and rulings.  
                                                      
179Japan's third participant's submission, para. 115. (original emphasis)   
180Japan's third participant's submission, para. 119 (quoting Appellate Body Report, US – Softwood 
Lumber IV (Article 21.5 – Canada) , para. 67 (original emphasis)).  
181Japan's third participant's submission, para. 121 (referring to Panel Report, paras. 8.122 and 8.123).   
182Japan's third participant's submission, para. 123 (quoting Appellate Body Report, US – Softwood 
Lumber IV (Article 21.5 – Canada) , para. 67 (original emphasis)). 
183Japan's third participant's submission, para. 123.  
184Japan's third participant's submission, para. 132 (referring to Panel Exhibit US-17).   WT/DS294/AB/RW 
 Page 55 
 
 
  125. In addition, Japan argues that the Panel erred in failing to assess the consistency with the 
covered agreements of the subsequent review s that pre-dated the adoption of the DSB's 
recommendations and rulings.  Where subsequent ad ministrative reviews are offered as evidence of 
the "existence" of "measures taken to comply", these measures necessarily fall within the scope of the 
compliance proceedings, regardless of the date of th eir adoption.  In these circumstances, Article 21.5 
of the DSU required the Panel to review those meas ures for consistency with the covered agreements, 
and its failure to do so constitutes legal error.  Un der a harmonious interpretation of Articles 3.7, 19.1, 
and 21.5 of the DSU, the United States was entitled to  rely on measures taken before the adoption of 
the DSB's recommendations and rulings to assert that  it had achieved compliance.  However, the same 
harmonious interpretation of those pr ovisions required the Panel to c onsider the consistency of those 
declared measures with the covered agreements.  Even if those measures are not regarded as 
"declared" measures taken to comply, they enjoy a particularly close relationship to the original 
measures and the DSB's recommenda tions and rulings in terms of nature  and effects , and can 
"circumvent"185 the compliance obligations of the United St ates.  Japan notes that subsequent reviews 
concern the same anti-dumping duty order, the sam e products, exported from the same country, and  
involve the same zeroing procedure.  Therefore, i rrespective of the date on which those circumventing 
measures were adopted, they are "measures take n to comply" that must be examined under 
Article 21.5 of the DSU for consistency with the covered agreements .  In Japan's view, timing  alone is 
not of decisive importance, but is rather  one factor to consider together with nature  and effects .  In 
this dispute, weighing these factors together sugg ests that the subsequent reviews are "measures taken 
to comply" within the meaning of Article 21.5 of the DSU. 
126. Secondly, Japan supports the European Communiti es' claim that the Panel made serious legal 
errors in finding that the United States was not obl iged to bring the assessmen t rates in the original 
administrative reviews into conformity with its WT O obligations, with prospective effect from the 
end of the reasonable period of time.  Japan argues that these errors stem from the Panel's incorrect 
interpretation and application of Ar ticle 19.1 of the DSU.  More sp ecifically, Japan asserts that the 
Panel erred in failing to identify the "measures" covered by the DSB's recommendations and rulings 
as the original administrative reviews.  Japan e xplains that both Articles 3.7 and 19.1 of the DSU 
indicate that the subject of the DSB's recommendations  and rulings is a "specific measure at issue" 
that the panel and/or Appellate B ody found to be inconsistent with the covered agreements.  However, 
in this dispute, the Panel failed to define the DS B's recommendations and rulings by reference to the 
16 administrative reviews at issue in the original pr oceedings.  Instead, the Panel stated that the DSB's 
                                                      
185Japan's third participant's submission, paras. 146 and 151 (quoting Panel Report, para. 8.109 
(emphasis omitted)).  WT/DS294/AB/RW 
Page 56  
 
  recommendations and rulings "concerned the calculation of margins of dumping "
186 in the original 
reviews, and that the recommendations and rulings  therefore required that the calculation of the 
margins of dumping be WTO-consistent in new admi nistrative reviews adopted after the end of the 
reasonable period of time.  Although the Pane l had not stated it expressly, it "essentially"187 treated 
the calculation of the margins of dumping using zeroing as a "measure" that must be brought into conformity by the end of the reasonable period of time, thereby failing to identify the 16 original 
administrative reviews as the subject of the DSB' s recommendations and rulings.  The Panel further 
found that the use of zeroing had to "cease"
188 by the end of the reasonable period of time.  By 
incorrectly identifying the measure at issue, the Panel incorrectly assessed the actions required by the 
United States during the implementation period.  A ccording to Japan, the Panel should have focused 
on the fact that the specific measures found to be WT O-inconsistent in the original proceedings were 
the 16 original administrative reviews.  Those were  the measures within the meaning of Article 17.4 
of the Anti-Dumping Agreement  that the United States was required to bring into conformity by the 
end of the reasonable period of time. 
127. Japan further submits that the Panel erred in finding that the measures covered by the DSB's 
recommendations and rulings were solely  the administrative reviews adopted after  the end of the 
reasonable period of time.  Japan explains that the Panel found that the date of determination in an 
administrative review is the relevant date in deci ding whether an administrative review is covered by 
the DSB's recommendations and rulings.  According to  Japan, this interpretation by the Panel reduces 
Articles 3.7, 19.1, and 21.3 of the DSU to inutilit y, and eviscerates the object and purpose of the 
dispute settlement system, since it implies that no  implementation obligations ever apply to the 
original measures covered by the DSB's rulings.  As a consequence, the WTO-inconsistency in an 
original measure is never removed and, after the end of the reasonable period of time, the 
implementing Member remains free to enforce an or iginal measure already found to be inconsistent 
with the covered agreements, by collecting excessi ve anti-dumping duties, without facing suspension 
of concessions to offset the ongoing nullification or  impairment.  Japan asserts that, under the Panel's 
approach, the reasonable period of time ceases to serve as a time for the adoption of measures to comply with the DSB's recommendations and rulings, but instead is transformed into a time for the 
implementing Member to adopt new WTO-inconsistent measures.  Ja pan further contends that the 
Panel's findings nullify the protection afforded by Article 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994.  By considering that  the date of determination under Article 9.3.1 is 
                                                     
 
186Japan's third participant's submission, para. 256 (emphasis added) (quoting Panel Report, 
paras. 8.175 and 8.180)  
187Japan's third participant's submission, para. 259 (quoting Pane Report, para. 8.175). 
188Japan's third participant's submission, para. 259.  WT/DS294/AB/RW 
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  decisive, the Panel in essence reduced Article 9.3 to an obligation that imposes disciplines on one 
single day—the date of the Article 9.3.1 determinati on.  In Japan's view, the Panel overlooked that the 
chapeau of Article 9.3 establishes an "overarching"189 obligation limiting the amount of the duties 
collected. 
128. Additionally, Japan holds the view that the Panel erred in finding that the continuing legal 
effects of the administrative reviews at issue in  the original proceedings do not compel the United 
States to bring these measures into conformity wi th its WTO obligations.  Japan explains that, 
although the Panel found that the date of determina tion is the relevant date, it also stated that an 
original administrative review would have to be "amended"190 if it continued to produce legal effects 
after the end of the reasonable period of time.  Japan concurs with the Panel's statement that a Member must, in order to implement the DSB's r ecommendations and rulings, "ensure that actions it 
undertakes after the end of the reasonable period of time are consistent with its obligations under the 
DSB."
191  However, the Panel failed to apply this appr oach to the assessment rates established in the 
original measures by finding that an original admini strative review need not be revised to ensure that 
duty collection measures taken after the end of th e reasonable period of time are WTO-consistent.  
The only supporting reason the Panel gave is that the continuing legal effects of administrative 
reviews after the end of the reasonable period of ti me are "due to actions on the part of private 
parties".192  Japan disagrees with these statements and cont ends that they are not actions by private 
parties, but instead are acts of th e United States' courts, taken on the basis of United States law and 
therefore attributable to the United States under WTO law.  Further, Japan submits that a decision by 
a United States court to issue an injunction is take n after determining "that there is a likelihood of 
success on the merits"193, a legal standard that forms part of th e United States' municipal law.  Japan 
further notes that, although the Panel found that the assessment rates need not be brought into 
conformity, despite the fact that they have ongoing legal effects after the end of the reasonable period 
of time, the Panel reached a different conclusion with respect to cash deposit rates, by stating that they 
must be WTO-consistent after  the end of the reasonable period of time, even if the rates were 
established before  that date.  In Japan's view, the Panel' s distinction between assessment reviews and 
cash deposit rates cannot be reconciled with its  interpretation of the relevant provision. 
                                                      
189Japan's third participant's submission, para. 290 (quoting Appellate Body Report, US – Stainless 
Steel (Mexico) , para. 102). 
190Japan's third participant's submission, para. 296 (quoting Panel Report, para. 8.169). 
191Japan's third participant's submission, para. 296 (quoting Panel Report, footnote 820 to para. 8.218). 
(emphasis added by Japan omitted) 
192Japan's third participant's submission, para. 302 (quoting Panel Report, para. 8.192). 
193Japan's third participant's submission, para. 305. (footnote deleted)   WT/DS294/AB/RW 
Page 58  
 
  129. Furthermore, Japan argues that the Panel's fi nding that the original administrative reviews 
need not to be brought into conformity when they have continuing legal effects is wrong, because it 
allows the United States to adopt new WTO-incons istent measures after the end of the reasonable 
period of time on the basis of the original administrative reviews.  In Japan's view, these new measures will give rise to a continued violation of Article 9.3 of the Anti-Dumping Agreement  and 
Article VI:2 of the GATT 1994 through the collecti on of anti-dumping duties in excess of the correct 
margin of dumping;  and violation of Articles II: 1(a) and II:1(b) of the GATT 1994, not justified by 
Article II:2(b), through the collection of import duti es in excess of the bound tariff.  Japan asserts that, 
where a measure found to be WTO-inconsistent will provide a basis for new measures after the end of 
the reasonable period of time, implementation ac tion is necessary to eliminate the original 
inconsistency in order to ensure that the new measures are themselves WTO-consistent, and thereby 
to terminate the nullification or impairment. 
130. Moreover, Japan contends that the Panel made cert ain legal errors in its analysis of Article 28 
of the Vienna Convention .  Japan observes that the Panel started its analysis with the proposition that 
the DSU only provides for "prospective" and not "r etrospective" remedies, and then decided upon a 
meaning for these terms "by analogy"
194 with Article 28 of the Vienna Convention .  However, the 
Panel admitted that the terms "retrospective" and "pro spective" do not feature in the DSU as such.  By 
analogy to Article 28, the Panel held that a "ret rospective remedy" consists of applying the DSB's 
rulings and recommendations to "an act or a fact 'which took place' or a 'situation which ceased to 
exist' before the date of expiry of the reasonable period of time".195  This analysis became the 
foundation of the Panel's findings on the temporal scope  of the implementation obligation.  In Japan's 
view, the Panel erred by giving effect to non-treaty labe ls instead of fulfilling its task to give effect to 
the wording in the covered agreements.  According to Japan, rules of treaty interpretation do not apply 
to non-treaty labels;  there is no text, context, a nd object and purpose by which to interpret non-treaty 
language.  Furthermore, Japan argues that the Pane l's conception of retrospective remedies, based 
upon an improper analogy with Article 28 of the Vienna Convention , is at odds with the phrase "bring 
the measure into conformity", which the Panel sh ould have interpreted.  For Japan, this phrase 
connotes "transformative action"196 by the implementing Member to change the original measure from 
a state of non-conformity with WTO law into a state of conformity.  In its Report, the Panel excluded 
the measures at issue in the original proceedings from the scope of implementation, because they were 
past acts adopted before the end of the reasona ble period of time.  The Panel found that the 
                                                      
194Japan's third participant's submission, paras. 348, 352, and 358. 
195Japan's third participant's submission, para. 252 (quoting Panel Report, para. 8.169). 
196Japan's third participant's submission, para. 366.  WT/DS294/AB/RW 
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  United States was not required "to revisit"197 the original measures, or to "recalculate"198 the 
assessment rates in those measures.  However, Japan asserts that the fact that an original measure is 
"revised" during the implementation period does no t mean that WTO dispute settlement imposes a 
retrospective remedy;  the measure must be revi sed with prospective effect from the end of the 
reasonable period of time.  In Japan's view, the Unite d Stated is not required to repay inflated duties 
that were collected before the end of the reasona ble period of time following original administrative 
reviews, since these were completed in the past .  However, where the United States had not yet 
collected the duties by the end of the reasonable peri od of time, it must revise its original measure and 
consequent actions, occurring after the end of the r easonable period of time, in order to make that 
measure WTO-consistent.  Japan refers to Artic les 13, 14, and 15 of the 2001 Draft Articles on 
Responsibility of States for internationally wrongful acts199 (the "ILC Draft Articles") in support of its 
contention that Article 19.1 of the DSU requires the United States to bring the administrative reviews 
at issue in the original proceedings into conformity  with its WTO obligations when they continue to 
produce legal effects after the end of the reasona ble period of time in order to prevent new or 
continuing WTO-inconsistencies. 
131. Lastly, Japan asserts that its interpretation of Article 19.1 of the DSU places retrospective and 
prospective duty collection systems on an "equal footing"200 in terms of implementation obligations, 
and does not create inequalities as the United States suggests.  Under Japan's interpretation, the 
implementation of the DSB's recommendations and ru lings operates in exactly the same way in both 
systems.  Both systems allow for an administrativ e review to take place, pursuant to Articles 9.3.1 
and 9.3.2 of the Anti-Dumping Agreement , and that review determines the definitive amount of duties 
due.  Similarly, both systems provide for a refund in the event that the duties co llected at the time of 
importation exceed the margin of dumping.  Japan expl ains further that, if a panel or the Appellate 
Body finds that an administrative review is inconsis tent with Article 9.3, the review will have to be 
brought into conformity with WTO law if it conti nues to produce legal effects after the end of the 
reasonable period of time.  Japan notes that this situation could arise under both systems. 
                                                      
197Japan's third participant's submission, para. 367 (quoting Panel Report, para. 8.193). 
198Japan's third participant's submission, para. 367 (quoting Panel Report, para. 8.191). 
199Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the 
International Law Commission at its fifty-third session (2001).   The text of the ILC Draft Articles is annexed to 
the United Nations General Assembly Resolution A/RES/56/83 (29 January 2002). 
200Japan's third participant's submission, para. 248 (quoting Panel Report, para. 8.191). WT/DS294/AB/RW 
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  3. Korea
 
132. In Korea's view, the Panel adopted a fairly m echanistic approach and failed to capture the 
"reality" and "particular context"201 of this dispute by considering the timing  of the subsequent 
reviews to be critical, and determining th at only those subsequent reviews decided after the adoption 
by the DSB of the original panel and Appellate Body reports fell within its terms of reference.  Korea 
submits that the Panel erred by placing too much emphasis on the temporal element of the subsequent reviews.  In addition, Korea contends that the Pa nel failed to provide any detailed explanation as to 
why reviews subsequent to the original investiga tions and administrative reviews at issue in the 
original proceedings that were rendered before  the adoption of the reports by the DSB should be 
treated differently from those that were decided afte r adoption by the DSB.  According to Korea, the 
Panel's rigid focus on timing constitutes a legal error that violates Article 21.5 of the DSU. 
133. For Korea, timing  is not the most critical element in addressing this particular issue:  the 
controlling element should be "substance" as opposed to "form".
202  Korea argues that effects of the 
subsequent reviews that were decided before  the adoption of the reports by the DSB could reasonably 
continue to exist effectively (or exert influence) after  adoption.  Arguably, the impact of these 
subsequent reviews continues to persist, as th e cash deposit rates calculated from these reviews 
continue to affect future entries covered by the same anti-dumping duty order.  Korea contends that 
the Panel disregarded this continuing effect, and su bmits that the subsequent reviews with resulting 
effects after the adoption of the original panel and Appellate Body reports by the DSB fell within the 
Panel's terms of reference.203 
134. Furthermore, according to Korea, the Panel shoul d have taken into consideration the context 
of this particular dispute.  Korea reiterates in par ticular that each of the subsequent reviews does not 
exist as an insulated measure, but instead is a c ontinuing process that administers a particular anti-
dumping duty order established as a result of an anti-dumping investigation.  Korea argues that the Panel's decision is not entirely consistent  with the Appellate Body's decision in US – Continued 
Zeroing , where the Appellate Body endorsed the con cept of a single trade remedy proceeding, 
involving the imposition, assessment, and collection of anti-dumping duties on imports of a particular 
                                                     
 
201Korea's third participant' s submission, para. 17.  
202Korea's third participant' s submission, para. 20. 
203Korea refers to situations where zeroing is used  in an administrative review decided before the 
adoption of the DSB rulings, and, as a re sult, cash deposits distorted by zeroing are applied to future entries, and 
such entries remain unliquidated after the end of the re asonable period of time. (Korea's third participant's 
submission, paras. 20-22)    WT/DS294/AB/RW 
 Page 61 
 
 
  product from the same country.204  Korea asserts that, in this dispute, it can also be argued that the 
subsequent reviews where decisions were taken before the adoption by the DSB of the original reports 
form part of "a string of successive proceedi ng pertaining to the same antidumping duty order".205 
135. As its second point, Korea holds the view that  the Panel erred by failing to recognize that 
subsequent reviews also constitute "omission or deficiencies" on the part of the implementing 
Member and, therefore, fell within the Panel's terms of reference.  According to Korea, the refusal of 
the Panel to review the claim independently of its  substantive analysis of whether compliance had 
been achieved constitutes a legal error. 
136. In Korea's view, after the end of the reasonabl e period of time, not only affirmative action by 
the implementing Member to keep an WTO-inc onsistent measure in place, but also "simple 
inaction"206 to take a necessary measure to rectify th e WTO-inconsistency, constitutes a failure to 
comply with the DSB's recommendations and rulings.  It is this failure, be it in the form of affirmative 
action or inaction, that fell under the Panel's terms of reference.  Korea refers to Article 2 of the ILC 
Draft Articles207, which illustrates that there is no differe nce as to the legal effect between an 
affirmative action and an omission of a state when it comes to the determination of the existence of an 
internationally wrongful act resulting in state responsibility.  
137. Korea observes, as shown by evid ence in the Panel record, that the United States continued to 
apply zeroing in subsequent reviews after the end of the reasonable period of time.  Therefore, in 
Korea's view, the United States failed to implemen t the DSB's recommendations and rulings in due 
course.  According to Korea, if the omission is "obvious"208, as the Panel acknowledged in its Report, 
the subsequent reviews that provide evidence of "omissions" and "deficiencies" by the implementing 
Member should be covered by the Panel's terms of reference.  
138. With respect to establishment of the "all others" rate, Korea supports the European 
Communities' claim that the increases in the "all ot hers" rates are unreasonable and inconsistent with 
Articles 9.4 and 6.8 and Annex II of the Anti-Dumping Agreement .  According to Korea, the Panel's 
conclusion that Article 9.4 does not contain a specif ic rule to calculate an "all others" rate in a 
                                                      
204Korea's third participant's s ubmission, para. 25 (referring to Appellate Body Report, US – Continued 
Zeroing , paras. 181, 185, and 190). 
205Korea's third participant's submission, para. 26 (quoting Appellate Body Report, US – Continued 
Zeroing , para. 191). 
206Korea's third participant' s submission, para. 29. 
207Supra , footnote 199. 
208Korea's third participant' s submission, para. 32.  WT/DS294/AB/RW 
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  particular anti-dumping proceeding "is almost tantamount to the statement that an investigating 
authority of a Member retains almost unbridle d discretion in applying an 'all others' rate."
209 
139. In contrast to the Panel's finding, Korea contends that Article 9.4 of the Anti-Dumping 
Agreeme nt does provide for specific rules for the calculati on of the "all others" rate.  In Korea's view, 
Article 9.4 unequivocally states two things:  first, an  "all others" rate should be related to the rates 
assigned to the exporters and producers individually investigated, and these rates set a ceiling for the 
"all others" rate;  sec ondly, the use of zero, de minimis , or "facts available" margins in the calculation 
of an "all others" rate is prohibited.  Therefore, even if Article 9.4 does not specify what to do in a 
situation where there are no margins other than zero, de minimis , or based on facts available, what the 
two guidelines in Article 9.4 collectively stand for is that any calculation of an "all others" rate should 
be "reasonable".210 
140. Furthermore, Korea argues that it is appropriate for a WTO panel to assess the 
"reasonableness" of an allegedly WTO-inconsistent measure that involves a WTO provision that contains a lacuna.  Since the drafters of an ag reement could not possibly set out all the details 
necessary to resolve a particular dispute, and since a panel enjoys certain discretion, Korea deems it 
appropriate for a panel to apply a reasonable interp retation and render a reasonable decision to fill the 
lacuna in the text of the provision.  Korea argues th at this proposition is supported by the requirement 
in Article 11 of the DSU that a panel make an obj ective assessment of the matter before it.  Korea 
asserts that the Panel, however, failed to analyze whether the "all others" rate is reasonable in the 
present case, and instead found that no specific rules exis t in this area:  this "should not be translated 
into providing a carte blanche  to an investigating authority."
211  Therefore, in Korea's view, the Panel 
failed to fulfil its obligation under Article 11 of the DSU. 
141. In addition, Korea contends that the Pane l's decision not to consider the European 
Communities' claims of violation of Article 6.8 and Annex II of the Anti-Dumping Agreement , 
because they were dependent on the claim of viola tion of Article 9.4, was misplaced.  In Korea's 
view, the "facts available" standard cannot readily be resorted to by an investigating authority for the 
purpose of merely facilitating the calculation process.  Article 6.8 and paragraphs  3 and 6 of Annex II 
of the Anti-Dumping Agreement  clearly set out conditions that need to be fulfilled before an 
investigating authority can apply the "facts availabl e" standard.  These provisions make it clear that 
the Anti-Dumping Agreement  does not provide unrestricted liberty to an investigating authority 
                                                      
209Korea's third participant' s submission, para. 36  
210Korea's third participant' s submission, para. 39. 
211Korea's third participant' s submission, para. 43.  WT/DS294/AB/RW 
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  whenever it encounters less than optimal informat ion from a foreign respondent.  Korea contends, 
however, that the Panel simply allowed an investig ating authority to use adverse facts available as 
"data of convenience".212 
4. Mexico  
142. Pursuant to Rule 24(2) of the Working Procedures , Mexico chose not to submit a third 
participant's submission.  Mexico's statement at th e oral hearing focused on the "nexus-based test" to 
determine whether subsequent reviews are within  the scope of Article 21.5 proceedings, on the 
temporal scope of the implementation obligations, and on the establishment of the "all others" rate 
under Article 9.4 of the Anti-Dumping Agreement . 
5. Norway  
143. Regarding the issue of the jurisdiction of the Panel, Norway argues that the Panel should have 
found that all subsequent reviews challenged by the European Communities in this dispute are 
"measures taken to comply" that fell within the scope of its juri sdiction under Article 21.5 of the 
DSU. 
144. Norway submits that the Panel erred in finding that the timing  of the subsequent reviews was 
the decisive factor with regard to its jurisdiction, and not just one of the optional factors that "may" be 
taken into consideration in the "nexus-based" analysis, listed on an equal footing with nature  and 
effects .  
145. Norway agrees with the Europ ean Communities that subsequent reviews fell within the 
Panel's jurisdiction as (i) "amendments" to the original  measure, (ii) "omissions" or "deficiencies" in 
the United States' implementation of the DSB's recommendations and rulings, or alternatively 
(iii) "measures taken to comply", because they have  a sufficiently close nexus with the measures at 
issue and the DSB's recommendations and rulings in the original proceedings.  According to Norway, 
the fact that subsequent reviews are "amendme nts" to the original measure follows from the 
description of the measures at issu e in the original proceedings, wh ich included "any amendments".  
Each administrative review must be considered  a continuum within one single anti-dumping duty 
order.  If this were not the case, then the Unite d States could circumvent its WTO obligations by 
enacting successive measures. 
                                                      
212Korea's third participant' s submission, para. 46. WT/DS294/AB/RW 
Page 64  
 
  146. Norway also agrees with previous panel and Appe llate Body reports that it is for the panel, 
and not for the Member alone, to determine what constitutes a "measure taken to comply" within the 
meaning of Article 21.5 of the DSU.
213  Norway contends that the United States cannot make the 
argument that subsequent reviews are not "measur es taken to comply" while, at the same time, 
presenting them as evidence of compliance.  
147. Norway asserts that the focus of the complian ce process, in the context of the DSU, in 
particular Articles 3.7 and 19.1, is the end resu lt of the measure at issue, namely, to achieve 
consistency with a Member's WTO obligations.  A ccording to Norway, the important point is not 
when a subsequent review is decided, bu t whether or not it achieved compliance.  
148. Norway notes that the Appellate Body has previously rejected the timing  of a measure as a 
factor justifying its exclusion from the scope of the proceeding214, and that the United States has 
recognized that "compliance need not necessarily occur subsequent to the DSB recommendation and 
rulings, as a WTO Member might modify or remove measures at issue after establishment of a panel but prior to adoption of the pa nel or Appellate Body report".
215  According to Norway, "[b]y making 
timing the determinative element in respect of the scope of Article 21.5, the Panel in essence 
designates the [M]ember's  intent  as the acid test."216  However, Norway emphasizes that the Appellate 
Body has previously held that the scope of a pane l's jurisdiction is not confined to measures that 
"move in the direction of, or have the objective of achieving, compliance".217  Finally, Norway states 
that requiring the European Communities to initia te new panel proceedings to challenge dumping 
determinations in measures that supersede the orig inal ones would go against the aim of Article 21.5 
of the DSU and result in the anticipatory circum vention of Members' compliance obligations.  
149. With respect to the issue of th e establishment of the "all others" rate, Norway submits that the 
Panel erred in concluding that Article 9.4 of the Anti-Dumping Agreement  imposes no obligations on 
Members in a situation where all margins of inv estigated exporters or producers are either zero, 
de minimis , or calculated using facts available.  In pa rticular, Norway argues that the Panel erred 
                                                      
213Norway's third participant's submission, para. 23 (referring to Appellate Body Report, US – 
Softwood Lumber IV  (Article 21.5 – Canada) , para. 73;  Appellate Body Report, EC – Bed Linen (Article 21.5 – 
India) , para. 78;  Panel Report, Australia – Automotive Leather II (Article 21.5 – US) , para. 6.4;  and Panel 
Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10(22)). 
214Norway's third participant's submission, para  27 (referring to Appellate Body Report,  US – Softwood 
Lumber IV  (Article 21.5 – Canada) , para. 88). 
215Norway's third participant's submission, para 27 (quoting Panel Report, US – Gambling (Article 21.5 
– Antigua and Barbuda) , para. 5.11). 
216Norway's third participant's submission, para. 28. (original emphasis) 
217Norway's third participant's submission, para. 29 (quoting Appellate Body Report, US – Softwood 
Lumber IV  (Article 21.5 – Canada) , para. 67 (original emphasis omitted)).   WT/DS294/AB/RW 
 Page 65 
 
 
  because it did not interpret Article  9.4 in accordance with the Vienna Convention , but merely made 
references to the difficulties of inv estigating authorities in such cases. 
150. Norway emphasizes that trade restrictions cannot  be imposed at will by a Member, but only in 
accordance with the provisions of the WTO covered agreements.  Referring to Articles 1 and 18.1 of the Anti-Dumping Agreement , Norway argues that Members do not enjoy the discretion to fill lacunae 
at will, and that doing so would be c ontrary to the object and purpose of the WTO Agreement  to 
provide a rules-based multilateral trading system.  In Norway's opinion, any anti-dumping measure 
must be in full conformity with Article VI of the GATT 1994 and the Anti-Dumping Agreement . 
151. Turning to the text of Article 9.4 of the Anti-Dumping Agreement , Norway observes that 
Article 9.4 is an exception to the general principle set forth in Article 6.10, first sentence, that each 
exporter or producer has the right to its own indivi dual margin.  The "all others" rate as provided for 
by Article 9.4 applies to exporters or producers that  were not asked by the investigating authorities to 
participate in the investigation.  Norway stresses that the decision no t to investigate these exporters or 
producers, and to provide them with an individual ma rgin, was taken by the investigating authority.  
Therefore, those exporters or producers are not at fault.  
152. Norway further explains that Article 9.4 set s forth the weighted average of the dumping 
margins calculated for investigated exporters or producers as the maximum ceiling for the "all others" 
rate.  Norway points out that Article 9.4 pr ovides that margins that are either zero, de minimis , or 
calculated using facts available should be disregarde d in calculating the weighted average margin of 
dumping.  Thus, in a situation where all margins are either zero, de minimis , or calculated using facts 
available, none of those margins can be used to calculate the average dumping margin for purposes of 
setting the "all others" rate.  According to Norway, th e Panel made a legal error in concluding that in 
such a situation "it was a 'free for all' for the investigating authorities to impose the margin it saw 
fit."
218  In Norway's view, this conclusion is contrary to Article 9.4 of the Anti-Dumping Agreement .  
Norway maintains that duties can be imposed only wh ere the Agreement specifically allows for it, and 
where there is no legal basis to impose a measure, it cannot be imposed.  Norway asserts that the 
investigating authorities have no credible basis to draw conclusions as to the possible dumping 
behaviour of non-investigated exporters or produ cers, since there are no margins available for the 
calculation of the "all others" rate.  According to Norway, two options are available to investigating 
authorities in such cases:  (i) to exempt all non-inv estigated exporters or producers from the measure;  
or (ii) to extend the investigation by including more exporters or producers within the sample of 
investigated exporters/producers su ch that it is representative. 
                                                      
218Norway's third participant's submission, para. 50.  WT/DS294/AB/RW 
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  153. Based on the above, Norway submits that, in a s ituation where all margins of the investigated 
exporter or producers are either zero, de minimis , or calculated using facts available, Article 9.4 of the 
Anti-Dumping Agreement  requires Members not to apply anti-dumping measures against non-
investigated exporters or producers. 
6. Separate Customs Territory of Taiwan, Penghu, Ki nmen and Matsu
 
154. Pursuant to Rule 24(2) of the Working Procedures , the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu chose not to submit a third participant's submission.  At the oral hearing, the opening statement of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
focused on the relationship between the United States' anti-dumping system and the scope of 
Article 21.5 proceedings. 
7. Thailand
 
155. Pursuant to Rule 24(2) of the Working Procedures , Thailand chose not to submit a third 
participant's submission.  Thailand's statement at th e oral hearing focused on the scope of the Panel's 
jurisdiction under Article 21.5 of the DSU, and on the temporal scope of implementation obligations. 
III. Issues Raised in This Appeal   
156. The following issues are ra ised in this appeal. 
(a) Whether the Panel erred in refraining from ruling on the European Communities' 
claim that the Panel was improperly composed. 
(b) Whether the Panel erred in finding that certain administrative and sunset reviews 
issued under the same anti-dumping duty or ders as the measures at issue in the 
original proceedings fell within the Panel's terms of reference under Article 21.5 of 
the DSU.  In particular, whether the Panel erred:  
(i) in finding that certain subsequent revi ews did not fall within its terms of 
reference as "amendments" to the measures at issue in the original 
proceedings; 
(ii) in finding that the subsequent reviews that pre-dated the adoption of the 
recommendations and rulings of the DS B did not fall within its terms of 
reference, because they did not have  a sufficiently "close nexus" with the 
original measures at issue and the recommendations and rulings of the DSB;   WT/DS294/AB/RW 
 Page 67 
 
 
  (iii) in finding that the 2004-2005 administrative reviews in Certain Hot-Rolled 
Carbon Steel Flat Products from the Netherlands  (Case 1) and Stainless Steel 
Wire Rod from Sweden (Case 6) fell within its terms of reference, in the light 
of their close nexus with the original measures at issue and the recommendations and rulings of the DSB;  and  
(iv) in failing to address the European Comm unities' claim that the subsequent 
reviews fell within its terms of reference as "omissions" or "deficiencies" in 
the United States' implementation of th e recommendations and rulings of the 
DSB, and in so doing, acted inconsistently with Article 11 of the DSU. 
(c) Whether the Panel erred by not extending th e United States' compliance obligations 
to actions consequent to the assessmen t of duties, including the collection or 
liquidation of duties occurring after the end of the reasonable period of time related to 
administrative review determinati ons completed before that date. 
(d) Whether the Panel erred in its examination of specific subsequent administrative 
reviews and consequent actions to coll ect anti-dumping duties when it evaluated 
whether the results of these reviews or these actions establish failures to comply with 
the recommendations and rulings of the DSB;  in particular: 
(i) regarding Certain Hot-Rolled Carbon Steel Flat Products from the 
Netherlands  (Case 1), whether the Panel erred in its analysis of the 
2004-2005 administrative review, the rescission of the 2005-2006 
administrative review, as well as consequent assessment instructions and liquidation instructions; 
(ii) regarding Stainless Steel Wire Rod from Sweden  (Case 6), whether the Panel 
erred in its analysis of the 2004-2005 administrative review, as well as 
consequent assessment instructions  and liquidation instructions; 
(iii) regarding Ball Bearings and Parts Thereof from the United Kingdom  
(Case 31), whether the Panel erred in refraining from making a specific finding with respect to the assessment after the end of the reasonable period 
of time of duty liability for imports of an exporter;  and WT/DS294/AB/RW 
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  (iv) with respect to Stainless Steel Plate in Coils from Belgium  (Case 18), Certain 
Pasta from Italy (Cases 19 and 20), Stainless Steel Sheet and Strip in Coils 
from Italy  (Cases 21 and 22), Granular Polytetrafluoroethylene Resin from 
Italy (Cases 23 and 24), Stainless Steel Sheet and Strip in Coils from 
Germany  (Cases 27 and 28), Ball Bearings and Parts Thereof from France  
(Case 29), and Ball Bearings and Parts Thereof from Italy  (Case 30), whether 
the Panel erred in refraining from maki ng additional substantive findings on 
the grounds that the European Communities did not substantiate its claims. 
(e) With respect to the subsequent sunset revi ews relating to the measures at issue in the 
original proceedings: 
(i) whether the Panel erred in finding th at the European Communities had not 
demonstrated that the United States failed to comply with the 
recommendations and rulings of the DSB in the subsequent sunset review 
proceedings in Stainless Steel Bar from France, Germany, Italy, and the 
United Kingdom  (Cases 2, 3, 4, and 5) and Certain Pasta from Italy  
(Case 19), because the results of those sunset reviews had not yet 
materialized at the time the Panel was established; 
(ii) whether the Panel acted inconsistently with Article 11 of the DSU in not 
addressing the European Communities' claim that the United States failed to 
comply with the recommendations and rulings of the DSB in the original 
proceedings given that certain aspects of the measures at issue in the original 
proceedings remained in place;  and 
(iii) in the event the Appellate Body reverses the Pane l's findings in 
subparagraphs (i) and (ii) above and the Panel's findi ngs that certain sunset 
reviews did not fall within its terms of re ference, whether, by relying, in all 
the sunset review proceedings menti oned in the Annex to the European 
Communities' request for the establishment of a panel under Article 21.5 of the DSU, on margins calculated in prior proceedings using zeroing, the 
United States acted inconsistently with Articles 2.1, 2.4, 2.4.2, and 11.3 of 
the Anti-Dumping Agreement  and Articles 19.1 and 21.3 of the DSU and 
failed to comply with the recommendations and rulings of the DSB in the original proceedings.  WT/DS294/AB/RW 
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  (f) Whether the Panel erred in declining to make  findings with respect to the claims of 
the European Communities regarding the non- existence of measures taken to comply 
between 9 April 2007 and 23 April/31 August 2007. 
(g) Whether the Panel erred in finding that th e European Communities' claim regarding 
an alleged arithmetical error in the Section 129 determination in Stainless Steel Sheet 
and Strip in Coils from Italy  (Case 11) was not a claim that the European 
Communities could properly make in the c ontext of these Article 21.5 proceedings.  
(h) Whether the Panel erred in finding that the United States did not act inconsistently 
with Article 9.4 of the Anti-Dumping Agreement when calculating the "all others" 
rates in the Section 129 determinations in Stainless Steel Bar from France, Italy, and 
the United Kingdom  (Cases 2, 4, and 5), and in failing to address the European 
Communities' related claim under Article 6.8 and Annex II of the Anti-Dumping 
Agreement . 
IV. Introduction to the United States' System for the Imposition and Assessment of Anti-
Dumping Duties 
157. Because this dispute concerns the use of zer oing by the United States when determining anti-
dumping duties, we consider it useful to provide a brief overview of the United States' retrospective 
system for the imposition and assessment of anti-dumping duties.219  This overview is based on the 
description contained in the Panel Report and the origin al panel report, as clarified by the participants 
during the course of these appellate proceedings. 
158. The first stage of the system is the "original investigation" for the imposition of anti-dumping 
duties.  The United States Department of Commerc e (the "USDOC") conducts an investigation to 
determine whether dumping by one or more exporters  has occurred during a given period of time (the 
"period of investigation") and, if so, what the initia l margin of dumping is for each exporter.  This is 
done by calculating an individual weighted average dumping margin for each known exporter and producer.
220  The USDOC then issues a Notice of Final Determination of Sales at Less than Fair 
Value, setting out its assessment of the existence and level of dumping.  The United States International Trade Commission (the "USITC") then determines whether the relevant United States 
industry is materially injured or threatened with material injury by reason of the dumped imports.  If 
                                                     
 
219See Panel Report, paras. 2.4-2.9.  See also Original Panel Report, paras. 2.1-2.5. 
220United States' other appellant's submission, para 11 (referring to Section 777A of the United States 
Tariff Act of 1930 (Public Law No. 1202-1527, 46 Stat. 741, United States Code , Title 19, Chapter 4, as 
amended (the "Tariff Act")) (Panel Exhibit US-3)). WT/DS294/AB/RW 
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  the USDOC finds that dumping existed during the pe riod of investigation and the USITC finds that 
the domestic industry was materially injured or thr eatened with material injury by reason of the 
dumped imports, the USDOC issues a Notice of Antidumping Duty Order and imposes "a cash 
deposit of the estimated amount of antidumping duties at the time of importation"
221, equivalent to the 
individual weighted average dumping margin for eac h exporter individually examined.  In addition, 
the Notice of Antidumping Duty Order sets out an "all- others" rate applicable to exporters that were 
not individually examined in those cases in whic h the number of exporters was too large to make 
determining individual margins for each practicable. 
159. In order to determine the existence of dump ing and the individual weighted average dumping 
margin for each exporter investig ated, the USDOC normally groups the exports into specific models 
or varieties of the product where each grouping or model contains only those varieties of the product 
at issue that are virtually identical in physical characteristics.  The weighted average-to-weighted 
average comparison between the normal value and th e export price is then made within each such 
averaging group.  In the past, if the export price exceeded the normal value for one or more of the models being compared, the dumped amount for that m odel was considered to be zero.  This practice 
has been referred to as "model zeroing".  The Panel found, as a factual matter, that the United States 
abandoned the practice of model zeroing in original investigations in which the weighted average-to-
weighted average comparison methodology is used as from 22 February 2007.
222  In other words, in 
aggregating model-specific comparisons, the USDO C currently takes into account all the results 
regardless of whether the weighted average export price is above or below the weighted average 
normal value for each model.  If the individual we ighted average dumping margin for a particular 
exporter thus calculated is zero, or below de minimis levels, that exporter is not found to be dumping 
and the investigation is terminated in relation to  it.  If, however, the weighted average dumping 
margin is above de minimis  levels, the exporter is found to be dumping and is liable for payment of 
anti-dumping duties. 
160. The second stage of the United States' system is the assessment of the final liability for anti-
dumping duties for specific entries of the subject product by individual importers.  The United States' system of duty assessment operates on a retrospectiv e basis under which liability attaches at the time 
of entry, but duties are not actually assessed at that time.  Instead, the United States collects at the 
time of entry cash deposits in the amount dete rmined for each exporter during the original 
investigation stage of the process.  Subsequently , once a year during the anniversary month of the 
                                                     
 
221United States' other appellant's submission, para 10 (referring to United States Code , Section 
1673e(a)(3) (Panel Exhibit US-1)). 
222Panel Report, para. 3.1(a).  WT/DS294/AB/RW 
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  anti-dumping duty order, interested parties—including importers, domestic interested parties, foreign 
producers and exporters—may request the USDOC to conduct a periodic review ("administrative 
review") to determine the final amount of anti- dumping duties owed on entries that occurred during 
the previous year, as well as to determine a new cash deposit rate for future entries.  If no review is 
requested, the cash deposits made on the entries dur ing the previous year are automatically assessed 
as the final duties.  The results of this "assessment  review" are published in a Notice of Final Results 
of Antidumping Duty Administrative Reviews. 
161. When calculating the magnitude of any margin of dumping for the purpose of assessing an 
importer's final liability for paying anti-dumping duti es and any future cash deposit rates, the United 
States normally uses the average-to-transaction methodol ogy and applies what has been referred to as 
"simple zeroing".  Under this methodology, when comparing the monthly weighted average normal 
value with the price of each individual export tr ansaction, the USDOC considers the amount by which 
the normal value exceeds the export price to be the "dumped amount" for that transaction.  If the 
export price exceeds the normal value, the dumped amount for that export transaction is considered to be zero.  The "duty assessment rate" for each importer is then determined by aggregating the results of 
each comparison for which the average normal value exceeds the export price.
223  The same zeroing 
methodology is also reflected in the going-forward cash deposit rate for all future entries of the 
subject merchandise from the exporter concerned. 
162. Once the Notice of Final Results of Antidumpi ng Duty Administrative Reviews is published, 
the USDOC communicates the results of its determin ation to the United States Customs and Border 
Protection ("Customs") by issuing "assessment instruc tions".  The instructions inform Customs of the 
"assessment rate", and thus the final amount of an ti-dumping duty to be paid by each importer on all 
entries made during the relevant period.224  Customs then instructs the United States ports of entry to 
"liquidate" the relevant entries of subject imports at the established rates.225  When Customs liquidates 
an entry, the importer of record (or its authori zed customs broker) generally receives a notice of the 
liquidation.  For each entry made, the importer receiv es either:  (i) only a notice, if the cash deposit 
amount collected at entry is the same as the amount due  at liquidation;  (ii) a notice and an invoice, if 
the cash deposit amount collected at entry is less than the amount due at liquidation;  or (iii) a notice 
                                                      
223The USDOC includes the value of all import transactions in the denominator of the fraction used to 
calculate the importer's liability, but the results of the comparisons for which export  prices exceed the average 
normal value are excluded from the numerator of  that fraction. (See Panel Report, para. 2.6) 
224United States Code of Federal Regulations , Title 19, Section 351.212(b). 
225See Panel Report, para. 2.7.  WT/DS294/AB/RW 
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  and a refund cheque, if the cash deposit amount coll ected at entry is more than the amount due at 
liquidation.
226  
163. Five years after publication of an anti-dumping duty order, the USDOC and the USITC 
conduct a "sunset review" to determine respectively whether revocation of the order would be likely 
to lead to a continuation or recurrence of dumpi ng, and the continuation or  recurrence of material 
injury.227  The anti-dumping duty order is revoked unless both the USDOC and the USITC make 
affirmative "likelihoo d" determinations.228 
V. Panel Composition 
164. We address first the issue of whether the Panel erred in refraining from ruling on the 
European Communities' claim that the Panel was improperly composed. 
165. In the original proceedings, the European  Communities and the United States agreed, on 
27 October 2004, that Mr. Crawford Falconer, Mr . Hans-Friedrich Beseler, and Mr. William Davey 
would compose the panel.  This panel was chaired by Mr. Falconer.  Mr. Beseler is a national of a 
country that is a member of the European Communities and Mr. Davey is a national of the United States.  Mr. Beseler and Mr. Davey were allowed to serve on the original panel as agreed by the 
parties under Article 8.3 of the DSU.
229 
166. On 13 September 2007, the European Communities requested the establishment of a panel 
pursuant to Article 21.5 of the DSU concerning the alleged failure of the United States to implement 
the recommendations and rulings of the DSB in th e original proceedings.  At its meeting on 
25 September 2007, the DSB decided, in accordance with Article 21.5, to refer this matter, if possible, 
to the original panel.  Article 21.5 provides that compliance disputes should be decided "through 
recourse ... wherever possible ... to the original pane l".  In an exchange of views relating to the 
composition of the compliance panel, the WTO Secretariat indicated to the parties that two members of the original panel, Mr. Falc oner and Mr. Davey, were not ava ilable to serve on the compliance 
panel.
230  In a letter to the WTO Secretariat date d 1 October 2007, the European Communities 
expressed the view that, as Mr. Beseler was available, he should not be excluded from serving on the 
compliance panel.231  On 28 November 2007, the European Communities requested the 
                                                      
226See Panel Report, footnote 7 to para. 2.7.  
227Panel Report, para. 2.8.   
228Panel Report, para. 2.9.  
229Original Panel Report, para. 1.5. 
230Panel Report, para. 5.64. 
231Panel Report, para. 5.64.  WT/DS294/AB/RW 
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  Director-General of the WTO to determine the co mposition of the compliance panel under Article 8.7 
of the DSU.  On 30 November 2007, the Direct or-General appointed Mr. Felipe Jaramillo as 
chairperson of the Panel, and Ms. Usha Dwarka-Ca nabady and Mr. Scott Gallacher as the two other 
members of the Panel.232  
167. The European Communities requested the Pane l to find that it was improperly composed 
under Articles 8.3 and 21.5 of the DSU.  According to the European Communities, the Panel had an 
inherent jurisdiction to rule on the question of wh ether it was properly composed, as well as the duty 
to examine this issue ex officio  by providing a proper interpretation of the DSU.233   
168. Addressing the European Communities' claim, the Panel underscored that Article 8.7 of the 
DSU establishes that, whenever there is no agreem ent between the parties, the ultimate power to 
compose the panel rests with the Director-General.234  According to the Panel, there is no provision of 
the DSU that would give it the authority to make a fi nding or ruling with respect to the application, by 
the Director-General, of the provisions of th e DSU regarding panel composition contained in 
Article 8.7.235  The Panel pointed out that, should it agree with the contentions of the European 
Communities, it would have to conclude that it had no jurisdiction to examine and rule on the 
European Communities' other claims in this dispute.236  In the light of these considerations, the Panel 
refrained from ruling on the substance of the claim of the European Communities with respect to its 
composition. 
169. On appeal, the European Commun ities alleges that the Panel acted inconsistently with the 
basic requirements of due process and the full exerci se of the judicial function by failing to address 
properly its claim that the Panel was composed in a manner inconsistent with Articles 8.3 and 21.5 of 
the DSU.237  The European Communities submits th at, because panels, and ultimately the 
                                                      
232Panel Report, para. 1.6.  None of these panelists are nationals of any of the parties to the dispute. 
233Panel Report, para. 8.9. 
234Panel Report, para. 8.17. 
235Panel Report, para. 8.16.  Article 8.7 of the DSU stipulates: 
If there is no agreement on the panelists within 20 days after the date of the 
establishment of a panel, at the request of either party, th e Director-General, 
in consultation with the Chairman of the DSB and the Chairman of the 
relevant Council or Committee, shall determine the composition of the panel 
by appointing the panelists whom th e Director-General considers most 
appropriate in accordance with any rele vant special or additional rules or 
procedures of the covered agreement or covered agreements which are at 
issue in the dispute, after consulting w ith the parties to the dispute.  The 
Chairman of the DSB shall inform th e Members of the composition of the 
panel thus formed no later than 10 days  after the date the Chairman receives 
such a request. 
236Panel Report, para. 8.13. 
237European Communities' appellant's submission, para. 25. WT/DS294/AB/RW 
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  Appellate Body, have the authority and the obliga tion to rule on the correct interpretation of the 
DSU
238, defects that could arise during panel compositi on are subject to judicial review by them.239  
The European Communities requests the Appellate Body to complete the analysis and to find that the 
Panel's composition in this case was inconsiste nt with Articles 8.3 and 21.5 of the DSU.240     
170. The United States responds that the  European Communities' claim on the Panel's composition 
did not fall within the Panel's jurisdiction.  The United States argues that Article 21.5 does not 
discipline the process of panel composition when rec ourse to the original panel is not possible.  
Moreover, according to the United States, an im properly composed pane l would not have the 
authority to make findings on the merits of the European Communities' claims, including on claims 
related to its own composition.   
171. Before examining the European  Communities' appeal, we address first a preliminary matter 
that was brought by the United States at the oral hearing concerning Exhibit EC-62, an exchange of 
e-mails.  Exhibit EC-62 was submitted to the Ap pellate Body as an attachment to a document 
reflecting the opening statement made by the Europ ean Communities at the oral hearing.  The United 
States objected to the submission of Exhibit EC-62 and claimed that it is a new piece of evidence that 
cannot be considered in the appellate proceed ings.  The European Communities responded that 
Exhibit EC-62 had already been transmitted to the A ppellate Body as part of the record of the Panel 
proceedings because, under Rule 25(2) of the Working Procedures for Appellate Review , "[t]he 
complete record of the panel proceeding includes ... the correspondence relating to the panel dispute 
between the panel or the WTO Secretariat and the par ties to the dispute or the third parties".  Having 
examined the record of the Panel proceedings, tran smitted to the Appellate Body under Rule 25(1) of 
the Working Procedures , we have found that it does not contain the exchange of e-mails referred to in 
Exhibit EC-62.  Accordingly, we conclude that E xhibit-62 is new evidence that cannot be considered 
at the appellate stage. 
172. On the substance of the European Communitie s' appeal, we note that, on 28 November 2007, 
the Director-General was requested to determ ine the composition of the compliance panel under 
Article 8.7 of the DSU.  In our view, Article 8.7 confers on the Director-General the discretion to compose panels, which was properly exercised in this case.  We therefore find that the Panel did not 
err in refraining, in paragraphs 8.17 and 9.1(a) of the Panel Report, from making a finding on whether 
                                                     
 
238European Communities' appellant's submission, para. 25. 
239European Communities' appellant's submission, paras. 31 and 32. 
240European Communities' appellant's submission, para. 37.  WT/DS294/AB/RW 
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  it was improperly composed.  In the light of this conclusion, we do not consider it necessary to 
address the other arguments made by the parties on this matter. 
VI. The Panel's Terms of Reference  
173. We turn next to the issues raised on appeal  by the European Communities and by the United 
States in its other appeal relating to the Panel's fi ndings on whether certain subsequent administrative, 
changed circumstances, and sunset reviews (colle ctively, the "subsequent reviews") following the 
15 original investigations and the 16 administrative reviews at issue in the original proceedings fell 
within the Panel's terms of reference under Article 21.5 of the DSU.  
174. Before the Panel, the United States made a re quest for a preliminary ruling on the grounds 
that certain claims made by the European Comm unities in relation to the subsequent reviews (and 
respective assessment instructions) were not within th e Panel's terms of reference.  The United States 
argued that the recommendations and rulings of th e DSB covered only the 15 original investigations 
and the 16 administrative reviews that were at i ssue in the original proceedings.  Therefore, 
determinations made in the context of administrativ e, changed circumstances, and sunset reviews that 
followed those specific measures were not "measures taken to comply" with the recommendations and 
rulings of the DSB within the meaning of Article 21.5 of the DSU.241 
175. The European Communities responded that all of the subsequent reviews listed in its request 
for the establishment of a panel under Article 21.5 fell within the Panel's terms of reference either as 
"amendments " to the original investigations and admini strative reviews at issue in the original 
proceedings, or as " omissions " or " deficiencies " in the United States' implementation of the 
recommendations and rulings of the DSB.  Alternat ively, the European Co mmunities argued that the 
subsequent reviews fell within the Panel's terms of reference in th e light of the close nexus that 
existed between those subsequent reviews, the meas ures at issue in the original proceedings, and the 
recommendations and rulings of the DSB.242 
176. The Panel rejected the European  Communities' claim that the s ubsequent reviews fell within 
its terms of reference as "amendments" to the original measures at issue.243  The Panel did not rule on 
whether the subsequent reviews fell within its term s of reference as "omissions" or "deficiencies" in 
the United States' implementation obligations244, and found that only the subsequent reviews that 
came into effect after the adoption of the DSB's recommendations and rulings had a sufficiently close 
                                                      
241Panel Report, paras. 8.18 and 8.33.  
242Panel Report, para. 8.59.  
243Panel Report, para. 8.80.  
244Panel Report, para. 8.86.  WT/DS294/AB/RW 
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  nexus with the original measures at issue and th e recommendations and rulings of the DSB so as to 
fall within its terms of reference under Article 21.5.
245  As a result of these findings, of the 
56 subsequent reviews challenged by the Europ ean Communities, the Panel concluded that only 
nine administrative reviews and five sunset revi ews fell within its terms of reference.     
177. On appeal, the European Communities claims that the Panel erred in so ruling.  In particular, 
the European Communities argues that the Panel erred:  (i) in finding that the subsequent reviews did 
not fall within its terms of reference as "amendments" to the original measures at issue;  (ii) in finding 
that the subsequent reviews that pre-dated  the adoption of the recommendations and rulings of the 
DSB did not fall within its terms of reference beca use they did not have a sufficiently close nexus 
with the original measures at i ssue and the recommendations and ruli ngs of the DSB;  and (iii) in 
failing to address the European Communities' claim th at the subsequent reviews fell within the scope 
of the compliance proceedings as "omissions" or "deficiencies" in the United States' implementation 
of the recommendations and rulings of the DSB.  The European Communities requests the Appellate 
Body to reverse these findings and to find instead th at all the subsequent re views listed in its panel 
request fell within the Panel's terms of re ference under Article 21.5 of the DSU.   
178. In its other appeal, the United States claims that the Panel erred in finding that the 2004-2005 
administrative reviews in Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands  
(Case 1) and Stainless Steel Wire Rod from Sweden  (Case 6) (both issued after the end of the 
reasonable period of time) had a sufficiently close ne xus with the original measures at issue and the 
recommendations and rulings of the DSB so as to fa ll within the Panel's terms of reference.  The 
United States requests the Appellate Body to reverse this finding and to declare without legal effect 
the Panel's finding that the United States failed to comply with the DSB's recommendations and 
rulings and acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of 
the GATT 1994 in respect of those two specific administrative reviews. 
179. We examine below the participants' allegations of  error in turn.  We begin in Section A with 
the European Communities' appeal of the Panel's finding that the subsequent reviews did not fall 
within its terms of reference under Article 21.5 of the DSU as "amendments" to the measures at issue 
in the original proceedings.  In Section B, we  address the European Communities' and the United 
States' challenges against different aspects of the Panel's findings that certain of the subsequent 
reviews had a sufficiently close nexus with th e original measures at issue and with the 
recommendations and rulings of the DSB so as to fall  within its terms of reference under Article 21.5 
of the DSU.  Finally, in Section C, we turn to  the European Communities' appeal of the Panel's 
                                                      
245Panel Report, paras. 8.115 and 8.121.   WT/DS294/AB/RW 
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  decision not to rule on the European Communities' cl aim that the subsequent reviews fell within the 
Panel's terms of reference as "omi ssions" or "deficiencies" in the United States' implementation of the 
recommendations and rulings of the DSB.    
A. "Amendments" to the Original Measures at Issue 
180. The European Communities' first ground of a ppeal raises the question of whether the 
references in the original panel and Appellate Body reports and in  the European Communities' panel 
request in the original proceedings to "any amendm ents" to the original measures at issue encompass 
any subsequent reviews enacted in the context of the anti-dumping duty orders covered in the original 
proceedings.  Before the Panel, the European Communities claimed that the recommendations and 
rulings of the DSB in the original proceedings also covered amendments to the 15 original 
investigations and the 16 administrative reviews at is sue in those proceedings, and that the subsequent 
reviews listed in its panel request under Article 21.5 fe ll within the Panel's terms of reference as such 
"amendments".246    
181. The Panel rejected the European  Communities' argument and reas oned that references by the 
original panel and the Appellate Body to "amendment s" could not be read so broadly as to encompass 
any subsequent determinations issued under the re levant anti-dumping duty orders in the form of 
subsequent reviews.247  Rather, the Panel read the references to "amendments" to the original 
measures at issue as referring to either corrections of clerical errors in the specific determinations 
covered in the original proceedings, or to amendmen ts to those specific determinations as a result of 
litigation in United States courts.248   
182. In addition, the Panel noted that the manner in which the European  Communities framed its 
claims before the original panel indicated that its challenge focused on specific original investigations 
and administrative reviews, including various "aspec ts" of those determinations, but did not include 
any subsequent determinations issued by the US DOC in the context of the same anti-dumping duty 
order.249  In this respect, the Panel noted that the Eu ropean Communities' panel request in the original 
proceedings identified successive administrative re views issued under the same anti-dumping duty 
order as separate and distinct measures, and not as "amendments" to other measures listed in the panel 
request.250  
                                                      
246Panel Report, para. 8.61.  
247Panel Report, para. 8.71.  
248Panel Report, para. 8.72.  
249Panel Report, para. 8.73.  
250Panel Report, paras. 8.75 and 8.76.  WT/DS294/AB/RW 
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  183. On appeal, the European Communities claims that the Panel erred in finding that the 
subsequent reviews did not fall unde r its terms of reference under Artic le 21.5 as "amendments" to the 
measures at issue in the original proceedings.  The European Communities argues that the Panel 
improperly narrowed the context in which the term  "any amendments" was used in the original 
proceedings by focusing on the manner in which th e European Communities fram ed its claims in its 
original panel request.
251  According to the European Comm unities, an examination of how the 
measures at issue had been identified in the cour se of the original proceedings indicates that "any 
amendments" to the 15 original investigations and the 16 administrative reviews would be covered by 
the recommendations and rulings of the DSB.252   
184. The United States responds that the Panel was correct in finding that the 56 subsequent 
reviews identified in the European Communities' panel request were not "amendments" to the 
15 original investigations and the 16 administrative re views at issue in the original proceedings.  The 
United States suggests that subsequent reviews ca nnot be properly characterized as "amendments" to 
the original measure at issue, because they cove r different imports over a different period of time.253  
Therefore, a subsequent review cannot be considered to be th e same measure, unchanged in its 
essence from the original investigation or a prio r assessment review, that "merely clarifies" the 
original measure at issue.254  The United States underscores furthe r that the European Communities' 
original panel request did not refer to subsequent reviews as "amendments".   
185. Initially, we observe that the European Commun ities is correct in noting that the original 
panel and the Appellate Body described the measures at  issue in the original proceedings as including 
"any amendments" to those measures.  The original panel described the 15 original investigations 
challenged by the European Communities as "the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments
, and including all the Issues and Decision Memoranda to 
which they refer, and all the Final Margin Program L ogs and Outputs to which they in turn refer, for 
all the firms investigated;  each of the 15 An ti-dumping Duty Orders;  each of the assessment 
instructions issued pursuant to any of the 15 Anti- dumping Duty Orders;  and each of the USITC final 
injury determinations."255  Subsequently, in the "Findings" section of its report, the original panel 
described the 15 original investigati ons at issue with reference to Panel Exhibits EC-1 through EC-15, 
                                                      
251European Communities' appellant's submission, paras. 62 and 71.  
252European Communities' appellant's submission, paras. 64-70.  
253United States' appellee's submission, para. 25. 
254United States' appellee's submission, para. 25. 
255Panel Report, para. 8.63 (quoting Original Panel Report, para. 2.6). (underlining added by the Panel)    WT/DS294/AB/RW 
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  and clarified that "[t]he measures at i ssue also include the anti-dumping duty order and any 
amendments , including the assessment instructions, and the USITC injury determination".256  
186. Similarly, the original panel described th e 16 administrative reviews challenged by the 
European Communities as "the 16 Notices of Fina l Results of Antidumping Duty Administrative 
Reviews, including any amendments , and including all the Issues and Decision Memoranda to which 
they refer, and all the Final Margin Program Logs a nd Outputs to which they in turn refer, for all the 
firms investigated;  and each of the assessment instruc tions issued pursuant to any of the 16 Notices of 
Final Results."257  In the "Findings" section of its report, the original panel described the 
16 administrative reviews challenged by the European  Communities with reference to Panel Exhibits 
EC-16 through EC-31, and noted that, "in addition to the Final Results  of the administrative review, 
the measures at issue include the amendments to these Final Results  and that the Final Results  of the 
administrative review refers to the accompanying Issues and Decision Memorandum , which in turn 
refers to the Margin Calculations, i.e., the Final Margin Program Log and Outputs for the firms 
investigated, and to the assessment instructions ."258    
187. Having defined the specific measures challenge d by the European Communities in this 
manner, the original panel consistently identif ied the 15 original investigations and the 
16 administrative reviews at issue in the original proceedings by referring to the description outlined 
above, including when making its findings a nd when issuing its final conclusions and 
recommendations.259  
188. The Appellate Body, in turn, also described  the 15 original investigations and the 
16 administrative reviews at issue with reference to Panel Exhibits EC-1 through EC-15 and EC-16 
through EC-31, respectively.260 
189. The European Communities' allegation of error on appeal raises the question of whether the 
references in the original panel and Appellate Body  reports to "any amendments" can be read so 
broadly as to encompass subsequent reviews issu ed under the specific anti-dumping duty orders at 
issue in the original proceedings.  
                                                      
256Panel Report, para. 8.65 (quoting Original Panel Report, para. 7.9 and footnote 119 thereto). 
(emphasis added) 
257Panel Report, para. 8.63 (quoting Original Panel Re port, para. 2.6). (emphasis added by Panel)   
258Panel Report, para. 8.67 (quoting Original Panel Report, para. 7.110 and footnote 202 thereto). 
(underlining added by Panel) 
259See Panel Report, paras. 8.66 and 8.67 (referring to Original Panel Report, paras. 7.32, 7.142 and 
footnote 235 thereto, 7.223 and footnote 305 thereto, 7.224 and footnote 306 thereto, 7.248 and footnote 335 
thereto, 7.284 and footnote 372 thereto, 7.286 and footnote 375 thereto, and 8.1(a), (d), and (f)).  
260See Appellate Body Report, US – Zeroing (EC) , footnote 9 to para. 2(b) and footnote 11 to 
para. 2(c).  WT/DS294/AB/RW 
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  190. In Chile – Price Band System , the Appellate Body sought to determine whether an  
amendment to Chile's price band system was part of th e measure at issue in that dispute.  First, the 
Appellate Body observed that Argentina's panel requ est referred to the particular measures at issue 
"and/or amendments".
261  The Appellate Body reasoned that th e "broad scope of the Panel request 
suggests that Argentina intended the request  to cover the measure even as amended."262  Secondly, the 
Appellate Body observed that the amendment of the measure at issue "[did] not change the price band 
system into a measure different from the price band system that was in force before the 
[a]mendment."263  The Appellate Body reasoned that, despite  subsequent modifications, Chile's price 
band system "remain[ed] essentially the same" after the amendment, because the amendment modified Chile's price band system "without changing its essence ".
264   
191. Like the Appellate Body in Chile – Price Band System , we read references by the European 
Communities, the original panel, and the Appellate Bo dy in this dispute to "any amendments" to the 
specific measures at issue in the or iginal proceedings as addressing s ituations where subsequent legal 
instruments would modify these measures without changing their essence or effects.265  In our view, if 
a subsequent modification were to change the essence or substance of the measures challenged in the 
original proceedings, this would transform those me asures into measures that were different from the 
original measures.  
192. In this respect, we consider that successive administrative, changed circumstances, and sunset 
review determinations issued in connection with the measures at issue in the original proceedings 
constitute separate and distinct measures, which th erefore cannot be properly characterized as mere 
"amendments" to those measures.  We note that the Appellate Body recently held in US – Continued 
Zeroing that "[t]he successive determinations  by which duties are mainta ined are connected stages ... 
involving imposition, assessment, and collection of  duties under the same anti-dumping order."266  
Although the Appellate Body recognized that s ubsequent reviews are "connected stages" under the 
                                                      
261Appellate Body Report, Chile – Price Band System , para. 135. (emphasis added by Appellate Body 
removed) 
262Appellate Body Report, Chile – Price Band System , para. 135.  
263Appellate Body Report, Chile – Price Band System , para. 137. (original emphasis)  The Appellate 
Body also cited with approval the reasoning of the panel in Argentina – Footwear (EC) , which decided to 
examine modifications made to the measure at issue in that dispute because they were " modifications of the 
legal form of the original definitive measure, which remains in force in substance  and which is the subject of the 
complaint." (See ibid, para. 138  (quoting Panel Report, Argentina – Footwear (EC) , para. 8.45) (emphasis added 
by the Appellate Body)) 
264Appellate Body Report, Chile – Price Band System , para. 139. (original emphasis)  
265In Chile – Price Band System , the Appellate Body addressed the question of whether amendments to 
Chile's price band system that were issued during the course of the panel proceedings were part of the measure at issue in that appeal.    
266Appellate Body Report, US – Continued Zeroing , para. 181.  WT/DS294/AB/RW 
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  same anti-dumping duty order, it also made clea r that subsequent reviews involve "successive 
determinations".  Such successive determinations, in our view, do not constitute mere "amendments" 
to the immediately preceding measure, because they constitute distinct  determinations.   
193. Moreover, as the Panel correctly observed,  the European Communities itself seemed to 
identify, before the original panel, determinations  made in the subsequent reviews issued under the 
same anti-dumping duty order as distinct measures.267  Indeed, the European Communities' original 
panel request identifies as separate "Cases" admini strative reviews that superseded the original 
investigations at issue in three instances.268  It also identified as separate "Cases" successive 
administrative reviews under the same anti-dumping duty order in five instances.269  The European 
Communities argues that it decided to separate origin al investigations and administrative reviews into 
different "Cases" in order to allow for a separat e examination of those measures and due to the 
structure of its claims (separate "as such" and "as app lied" claims in relation to original investigations 
and administrative reviews, respectively).  We ar e not persuaded.  If the European Communities' 
references to "any amendments" al so encompassed successive admini strative reviews issued under the 
same anti-dumping duty order, it would not have b een necessary for the European Communities to list 
successive reviews under the same anti-dumping duty order as separate "Cases", because the Panel's 
findings in relation to the original measure woul d automatically cover subsequent administrative 
reviews. 
194. In view of the above considerations, we see no e rror in the Panel's conclusion that references 
to "any amendments" to the specifi c measures at issue in the original  proceedings "must be read as 
referring to amendments ... to correct the orig inal investigation and administrative review 
                                                      
267Panel Report, paras. 8.74-8.76.  
268The 2000-2001 administrative review in Certain Stainless Steel Plate in Coils from Belgium  
(Case 18), the 1999-2000 and 2000-2001 administrative reviews in Stainless Steel Sheet and Strip in Coils from 
France  (Cases 25 and 26), and the 1999-2000 and 2000-2001 administrative reviews in Stainless Steel Sheet and 
Strip in Coils from Italy  (Cases 21 and 22) were all identified as  separate "Cases", even though they had been 
issued in connection with original investigations that were also challenged by the European Communities (Cases 9, 10, and 11, respectively). 
269Cases 19 and 20 concern the 1999-2000 and 2000-2001 administrative reviews in Certain Pasta 
from Italy ;  Cases 21 and 22 concern the 1999-2000 and 2000-2001 administrative reviews in Stainless Steel 
Sheet and Strip in Coils from Italy ;  Cases 23 and 24 concern the 1999-2000 and 2000-2001 administrative 
reviews in Granular Polytetrafluoroethylene Resin from Italy ;  Cases 25 and 26 concern the 1999-2000 and 
2000-2001 administrative reviews in Stainless Steel Sheet and Strip in Coils from France ;  and Cases 27 and 28 
concern the 1999-2000 and 2000-2001 administrative reviews in  Stainless Steel Sheet and Strip in Coils from 
Germany .  WT/DS294/AB/RW 
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  determinations specifically identified by the Europ ean Communities ... for ministerial or similar errors 
or, in some cases, to amend the determination following US court rulings."
270  
195. For these reasons, we uphold  the Panel's finding, in paragraph 8.80 of the Panel Report, that 
the subsequent reviews identified in the European Communities' panel request did not fall within the 
Panel's terms of reference under Ar ticle 21.5 of the DSU as "amendment s" to the origin al measures at 
issue. 
B. Close Nexus Analysis  
196. We turn next to the European Communities' and the United States' challenges to different 
aspects of the Panel's finding as to which of the subsequent reviews identified in the European 
Communities' panel request fell with in its terms of reference under Ar ticle 21.5 of the DSU by virtue 
of their close nexus, in terms of nature , effects , and timing , with the original measures at issue and 
with the recommendations and rulings of the DSB. 
1. Scope of Compliance Proceedings under Article 21.5 of the DSU  
197. Both the European Comm unities' appeal and the United Stat es' other appeal raise the question 
of whether and to what extent subsequent admini strative, changed circumstances, and sunset review 
determinations that followed the specific 15 original  investigations and the 16 administrative reviews 
at issue in the original proceedings could have fallen within the Panel's terms of reference under 
Article 21.5 of the DSU.   
198. Article 21.5 of the DSU provides, in relevant part: 
Where there is disagreement as to the existence  or consistency  with a 
covered agreement of measures taken to comply  with the 
recommendations and rulings such dispute shall be decided through 
recourse to these dispute settlement procedures, including whenever possible resort to the original panel. (emphasis added)  
199. The text of Article 21.5 indicates that proceedings under that provision concern a 
disagreement as to the "existence" or "consiste ncy with a covered agreement" of measures  "taken to 
comply" with the recommendations and rulings of th e DSB in the original proceedings.  Thus, the 
mandate of panels acting pursuant to  Article 21.5 of the DSU encompasses, in principle, the specific 
                                                     
 
270Panel Report, para. 8.72. (footnote omitted)  This reading is confirmed by the ordinary meaning of 
the word "amendment"—defined as "removal of fault or errors", "reformation", "correction", "emendation". (See The New Shorter Oxford English Dictionary , 4th edn, L.
 Brown (ed.) (Clarendon Press, 1993), Vol. 1, 
p. 65)  WT/DS294/AB/RW 
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  measures "taken to comply" with the recommendati ons and rulings of the DSB and measures that 
should have been taken to achieve complian ce.  As the Appellate Body explained in Canada – 
Aircraft (Article 21.5 – Brazil) :  
Proceedings under Article 21.5 do not concern just any measure of a 
Member of the WTO; rather, Article 21.5 proceedings are limited to those "measures taken to comply  with the recommendations and 
rulings" of the DSB.  In our vi ew, the phrase "measures taken to 
comply" refers to measures whic h have been, or which should be, 
adopted by a Member to bring about compliance with the recommendations and rulings of the DSB.
271 (original emphasis) 
200. The first sentence of Article 21.5 establishes an  "express link" between the measures taken to 
comply and the recommendations and rulings of the DSB.272  For this reason, a panel's determination 
of the scope of measures "taken to comply" under Article 21.5 "must also i nvolve examination of the 
recommendations and rulings contained in the original report(s) adopted by the DSB."273  These 
recommendations and rulings, in turn, must be interp reted in the light of the particular factual and 
legal circumstances in the original proceedings, incl uding the original measures at issue.  As the 
Appellate Body noted, "[b]ecause such recommendati ons and rulings are directed at the measures 
found to be inconsistent in the original pr oceedings, such an examination necessarily involves 
consideration of those original measures."274  
201. Thus, on its face, Article 21.5 seems to suggest that the mandate of a compliance panel is 
limited to reviewing the existence or consistenc y with the covered agreem ents of measures taken 
"in the direction of , or for the purpose of achieving , compliance"275 by the implementing Member.  
The scope of the measures "taken to comply", in tu rn, should be determined  with reference to the 
recommendations and rulings of the DSB in the origin al proceedings and to the original measures at 
issue.   
202. However, the Appellate Body also expressed  the view that a panel's mandate under 
Article 21.5 of the DSU is not necessarily limited to measures that the implementing Member maintains are taken "in the direction of" or "f or the purpose of achieving" compliance with the 
recommendations and rulings of the DSB.  Rather, the Appellate Body considered that a panel's 
mandate under Article 21.5 may extend to measures that the implementing Member maintains are not 
                                                     
 
271Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) , para. 36.   
272Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 68.  
273Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 68.  
274Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 68. (footnote 
omitted) 
275Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 66. (original 
emphasis) WT/DS294/AB/RW 
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  "taken to comply" with the recommendations and ru lings of the DSB.  Indeed, the Appellate Body 
explained in US – Softwood Lumber IV (Article 21.5 – Canada) that, under its interpretation of 
Article 21.5:  
The fact that Article 21.5 mandates a panel to assess "existence" and 
"consistency" tends to weigh agains t an interpretation of Article 21.5 
that would confine the scope of a panel's jurisdiction to measures that 
move in the direction of , or have the objective of achieving , 
compliance.  These words also sugg est that an examination of the 
effects of a measure may also be relevant to the determination of whether it constitutes, or forms part of, a "measure[] taken to comply".
276 (original emphasis) 
203. On the basis of this interpretation, the Appella te Body concluded that  a panel's mandate under 
Article 21.5 is not limited to the measures that an implementing Member maintains are "taken to 
comply" with the recommendations and rulings of the DSB.  Although a Member's designation of a measure as one "taken to comply" will always be relevant, the Appellate Body explained that:  
[s]ome measures with a particularly close relationship to the 
declared "measure taken to comp ly", and to the recommendations 
and rulings of the DSB , may also be susceptible to review by a panel 
acting under Article 21.5.  Determin ing whether this is the case 
requires a panel to scrutinize these relationships, which may, 
depending on the particular facts,  call for an examination of the 
timing, nature, and effects  of the various measures.  This also 
requires an Article 21.5 panel to  examine the factual and legal 
background against which a declared "measure taken to comply" is adopted.  Only then is a panel in a position to take a view as to whether there are sufficiently close li nks for it to characterize such an 
other measure as one "taken to comply" and, consequently, to assess 
its consistency with the covered agreements in an Article 21.5 
proceeding.
277 (emphasis added) 
204. Thus, the Appellate Body confirmed that a Me mber's designation of a measure as one "taken 
to comply" with the recommendations and rulings of  the DSB is not determinative of the panel's 
mandate under Article 21.5 of the DSU.  The Ap pellate Body also held that measures with a 
"particularly close relationship" with the decl ared measure "taken to comply", and to the 
recommendations and rulings of the DSB, may also fall within the purview of a compliance panel.  
This is because Article 21.5 mandates a panel to  examine the existence a nd consistency with the 
covered agreements of measures taken to comply, wh ich suggests that the effects of another measure 
may be relevant in determining whether it falls within the scope of Article 21.5 proceedings.  
According to the Appellate Body, a panel's determinat ion of whether such a "close relationship" exists 
                                                      
276Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67.  
277Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 77.   WT/DS294/AB/RW 
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  will depend upon the particular factua l and legal background, and may call for an examination of the 
timing, nature, and effects of the various measures before the panel. 
205. A panel's determination of whethe r a particular measure falls within the scope of Article 21.5 
proceedings is an objective inquiry and must necessarily involve an examination of any measure designated as one "taken to comply", and of the r ecommendations and rulings of the DSB, in the light 
of the particular factual and legal background in whic h they are adopted.  In determining the scope of 
its jurisdiction, the compliance panel may also be  called upon to determine whether no measure taken 
to comply exists, as the word "existence" in Ar ticle 21.5 suggests "that measures falling within the 
scope of Article 21.5 encompass not only positive acts, but also omissions ."
278  Therefore, if measures 
to comply with the DSB's recommendations and ruli ngs were not taken, that omission will also fall 
within the scope of the compliance proceedings.   
206. Where a compliance panel determines that measu res taken to comply do exist, it should then 
seek to determine whether such measures fully im plement the recommendations and rulings of the 
DSB.  Pursuant to Article 19.1 of the DSU, th ese recommendations and rulings require the Member 
concerned to bring the measures found to be inconsis tent with a covered agreement into conformity 
with that agreement.  Therefore, the compliance panel should seek to determine whether the measures 
taken to comply achieve full or partial compliance "in situations where the measures taken to comply, 
through omissions or otherwise, may achieve only partial compliance."279  Article 21.5 also requires 
the compliance panel to examine, in the light of the claims raised, whether the measures taken to 
comply are consistent with the relevant covered ag reement, as the word "consistency" in Article 21.5 
"implies that panels acting pursuant to Article 21.5 must objectively assess whether new measures are, 
in fact, consistent with relevant obl igations under the covered agreements."280 
207. Furthermore, a party seeking recourse to Article  21.5 of the DSU may request the compliance 
panel to examine measures that the implementing Member maintains are not measures "taken to 
comply".  In that event, the compliance panel should seek to determine whether such distinct 
measures are particularly closely connected to the measures the implementing Members asserts are 
"taken to comply", and to the recommendations a nd rulings of the DSB, so as to fall within the 
                                                      
278Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67. (original 
emphasis) 
279Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 60.   
280Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67.  Similarly, the 
Appellate Body held in EC – Bed Linen (Article 21.5 – India) that "the mandate of Article 21.5 panels is to 
examine either the 'existence'  of 'measures taken to comply' or, more frequently, the ' consistency with a covered 
agreement ' of implementing measures." (Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 79 
(original emphasis)) WT/DS294/AB/RW 
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  purview of the compliance panel.
281  Determining whether this is the case may call for an examination 
of the timing, nature, and effects of the various measures.282  Once a compliance panel determines that 
such closely connected measures fall within its terms of reference, Article 21.5 directs it to examine 
these measures for consistency with the relevant provi sions of the covered agreements in the light of 
the claims raised. 
2. Application of Article 21.5 of the DSU by the Panel   
208. In applying this analytical framework, we ex amine whether the Panel in this case erred in 
determining the scope of measures that should fall within its terms of reference under Article 21.5 of 
the DSU.  We begin with an examination of th e recommendations and rulings of the DSB in the 
original proceedings, as reflected in the original panel and Appellate Body reports.  Those reports 
contained, inter alia , the following findings, as relevant for the purposes of these proceedings.  
− The zeroing methodology, as it relates to original investigations in which the weighted 
average-to-weighted average comparison methodology ("model zeroing"283) is used to 
calculate margins of dumping, is inconsis tent "as such" with Article 2.4.2 of the Anti-
Dumping Agreement .284  
− The United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement by 
applying zeroing in the weighted average-to-weighted average comparison methodology (model zeroing) in 15 specific original investigations.
285  
− The United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and 
Article VI:2 of the GATT 1994 by applying zer oing in the weighted average-to-transaction 
comparison methodology ("simple zeroing"286) in 16 specific administrative reviews.287  
209. Following the adoption of the recommendations and rulings of the DSB on 9 May 2006, the 
United States took the following actions, as relevant for the purposes of these proceedings. 
                                                      
281We observe that, in EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – 
US), the Appellate Body found that the fact that the "Understanding on Bananas" was itself a measure "taken to 
comply" did not require the panel to determine whether it had a "particularly close relationship" to the declared measure taken to comply and the DS B's recommendations and rulings. (See  Appellate Body Reports, EC – 
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , para. 252) 
282Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 77.  
283For a description of the "model zeroing" methodology, see supra , para. 159. 
284Appellate Body Report, US – Zeroing (EC) , paras. 222 and 263(b).  
285Original Panel Report, paras. 7.32 and 8.1(a).  
286For a description of the "simple zeroing" methodology, see supra , para. 161. 
287Appellate Body Report, US – Zeroing (EC) , paras. 135 and 263(a)(i).   WT/DS294/AB/RW 
 Page 87 
 
 
  − On 27 December 2006, the United States announced that it would terminate the use of "model 
zeroing" in original investigations in whic h the weighted average-to-weighted average 
comparison methodology is used.  The modification became effective on 22 February 2007 
and concerned all pending and future orig inal investigations as of that date.288 
− On 1 March 2007, the USDOC initiated proceedin gs pursuant to Section 129 of the Uruguay 
Round Agreements Act289 (the "URAA") covering 12 of the 15 original investigations at issue 
in the original proceedings (three anti-dumping duty orders had been pr eviously revoked).  
On 9 April 2007, the USDOC issued Section 129 determinations in which it recalculated, 
without zeroing, the margins of dumping for 11 of the original investigations at issue in the 
original proceedings.  The results of those S ection 129 determinations became effective on 
23 April 2007.  The remaining Section 129 de termination was issued on 20 August 2007, 
effective on 31 August 2007.  The recalculati on without zeroing of the margins of dumping 
for the exporters concerned led to the revoca tion of two anti-dumping duty orders.  For the 
remaining 10 original anti-dumping duty orders , margins of dumping recalculated without 
zeroing continued to be applied (as the new cash  deposit rate) with respect to imports made 
subsequent to the date the respective Sec tion 129 determination came into effect.290 
− With respect to the 16 administrative reviews at  issue in the original proceedings, the United 
States considered that the cash deposit rat es calculated in those proceedings—with one 
exception—were no longer in effect because they had been superseded by subsequent 
administrative reviews.  Therefore, the United States considered that no further action was required in order to implement the DSB's reco mmendations and rulings in relation to those 
administrative reviews.
291 
− The United States also issued sunset review de terminations with respect to some of the 
measures at issue in the original proceed ings.  On 7 March 2007, following negative 
likelihood of continuation or recurrence of inju ry determinations by the USITC, the USDOC 
revoked anti-dumping duty orders in four Cases.292   
                                                      
288Panel Report, para. 3.1(a).  
289Section 129 of the Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 4836, 
United States Code , Title 19, Section 3538 (2000). 
290Panel Report. para. 3.1(b) (referring to European  Communities' first written submission to the Panel, 
para. 41).  
291Panel Report, para. 3.1(d) (referring to United Stat es' first written submission to the Panel, para. 21;  
and Panel Exhibit US-17).  
292Panel Report, para. 3.1(e).   WT/DS294/AB/RW 
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  210. Given the above, the United States claimed befo re the Panel to have achieved full compliance 
with the recommendations and rulings of the DSB in re lation to the 15 original investigations at issue 
in the original proceedings by issuing Section 129 determinations in which it recalculated, without 
zeroing, the margins of dumping for those original inv estigations for which, at that time, anti-dumping 
duty orders had not been revoked for reasons other than zeroing.  With respect to the 
recommendations and rulings of the DSB as they relate  to the 16 administrative reviews at issue in the 
original proceedings, the United States asserted that the cash deposit rates established in those reviews 
"were no longer in effect because they had been s uperseded by subsequent administrative reviews", 
with the result that "no further action was taken by  the United States in order to implement the DSB 
recommendations and rulings in respect of these administrative review determinations."
293  In support 
of this allegation, the United States provided the Pa nel with a list of the subsequent reviews that 
superseded the reviews challenge d in the original proceedings.294   
211. However, the European Communities sought to include in the Panel's terms of reference 
40  administrative review determinations and 16  su nset review determinations issued subsequent to 
the 15 original investigations and 16  administra tive reviews covered in the original proceedings.295  
These are measures that the United States maintains were not "taken to comply" with the 
recommendations and rulings of the DSB.296  The European Communities argued that these 
subsequent reviews should neverthel ess fall within the Panel's terms of reference by virtue of their 
"close nexus" with the original measures at issue and the recommendations and rulings of the DSB.  
The European Communities argues that these revi ews "perpetuate the WTO-inconsistent anti-
dumping measure[s] beyond the end of the reasonable period of time".297  
212. The Panel found that the subsequent reviews id entified by the European Communities in its 
panel request potentially fell within the scope of the compliance proceedings  because of their close 
nexus, in terms of nature and effects , with the original measures at  issue and the recommendations 
                                                      
293Panel Report, para. 3.1(d) (referring to United St ates' first written submission to the Panel, para. 21; 
and Panel Exhibit US-17).   
294Panel Report, footnote 44 to para. 3.1(d) (referring to Panel Exhibit US-17).    
295See Annex A to Request for the Establishment of a Panel by the European Communities, 
WT/DS294/25, Panel Report, Annex A-1.  See also Panel Report, para. 8.58.  The European Communities also 
challenged two changed circumstances review determinations  issued subsequently to Cases 17 and 24 before the 
original panel.  Such changed circum stances reviews were not specifically addressed by the Panel, because the 
Panel considered them to be of "limited relevance" in  its assessment of the United States' implementation of the 
recommendations and rulings of the DSB,  to the extent that their only effect was to "change the company whose 
exports are subject to the anti-dumping duties". (See Panel Report, footnote 660 to para. 8.107) 
296Panel Report, para. 8.33.  
297European Communities' appellee's submission, para. 34. (emphasis and footnote omitted)   WT/DS294/AB/RW 
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  and rulings of the DSB.298  The Panel noted that successive determinations of different types are made 
in the context of a single trade remedy proceedi ng, involving the imposition and assessment of duties 
on imports of a particular subject  product, from the same country, and under a particular anti-dumping 
duty order.  These determinations form part of a continuum of events that are all "inextricably 
linked".299  The Panel reasoned that zeroing was the only  aspect of the subsequent reviews that was 
challenged by the European Communities, which was al so the precise issue that was challenged in the 
original proceedings and the subject of the recommendations and rulings by the DSB.300  According to 
the Panel, while the original panel's and Appellate  Body's findings of inc onsistency were made under 
different legal provisions, they were premised  on the same fundamental obligation under the Anti-
Dumping Agreement , following from the definition of the term "margin of dumping" under the 
covered agreements, in particular, Article VI :1 of the GATT 1994 and Article 2.1 of the Anti-
Dumping Agreement .301  The Panel added that the subsequent reviews "potentially affect or undermine 
the steps otherwise taken—or the steps that should have been taken—by the United States to comply 
with the recommendations and rulings of the DSB, notably in the form of Section 129 determinations."
302  
213. However, the Panel found that the subsequent reviews that took place before the adoption of 
the DSB's recommendations and rulings in the origin al proceedings did not have a sufficiently close 
nexus, in terms of timing , with the original measures at issue and with the recommendations and 
rulings of the DSB, and therefore did not fall within its terms of reference.303  The Panel reasoned that, 
"as a matter of logic ... a measure taken before the adoption of the DSB's recommendations and 
rulings could rarely, if ever, be found to be a me asure taken 'to comply' with such recommendations 
and rulings."304   
214. On this basis, the Panel concluded that only th e subsequent reviews issued after the date of 
the adoption of the recommendations and rulings of th e DSB would have a sufficiently close nexus, in 
terms of nature, effects, and timing, with the or iginal measures at issue and the recommendations and 
rulings of the DSB.  As a result, the Panel concl uded that, out of the 56 s ubsequent determinations 
                                                      
298Panel Report, para. 8.118.  In its analysis, the Pane l referred to the "nexus-based" analysis developed 
by the panels in Australia – Salmon (Article 21.5 – Canada) , Australia – Leather II (Article 21.5 – US) , and 
US – Upland Cotton (Article 21.5 – Brazil) , as well as by the Appellate Body in US – Softwood Lumber IV 
(Article 21.5 – Canada) . (See ibid., para. 8.97)   
299Panel Report, para. 8.103. 
300Panel Report, para. 8.104.  
301Panel Report, para. 8.106. 
302Panel Report, para. 8.118(b). 
303Panel Report, para. 8.119.  
304Panel Report, para. 8.115. (footnote omitted) WT/DS294/AB/RW 
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  challenged by the European Communities, only nine administrative reviews and five sunset reviews 
fell within its terms of reference under Article 21.5 of the DSU.
305   
215. On appeal, the European Communities submits th at the Panel erred in excluding from its 
terms of reference the subsequent reviews that were issued  before  the adoption of the DSB's 
recommendations and rulings.  In its other appeal, th e United States challenges the Panel's finding that 
the 2004-2005 administrative reviews in Certain Hot-Rolled Carbon Steel Flat Products from the 
Netherlands  (Case 1) and Stainless Steel Wire Rod from Sweden  (Case 6) (both issued after the end of 
the reasonable period of time) fell with in its terms of reference by virt ue of their close nexus with the 
original measures at issue and the recommendati ons and rulings of the DSB in the original 
proceedings.   
216. Both the European Communities and the United States claim that the Panel erred in its 
application of the "nexus-based test" as outlined above to the facts of th is dispute.  We address in turn 
the allegations of error made by each party in relatio n to the Panel's analysis of the links, in terms of 
nature , effects , and timing , between the subsequent reviews, th e declared measures taken to comply, 
and the recommendations and rulings of the DSB.  We begin by examining the European 
Communities' claim that the Panel erred in finding that the subsequent reviews that pre-dated  the 
adoption of the DSB's recommendations  and rulings did not fall within its terms of reference because 
they did not have a sufficiently close nexus, in terms of timing , with the recommendations and rulings 
of the DSB.  Subsequently, we address the United Stat es' other appeal of the Panel's finding that the 
2004-2005 administrative reviews in Cases 1 and 6 (bot h issued after the end of the reasonable period 
of time) fell within its terms of refe rence based on the links, in terms of nature , effects , and timing , 
between these two measures, the declared measure s taken to comply, and the recommendations and 
rulings of the DSB.   
3. The European Communities' Appeal of  the Panel's "Close Nexus" Analysis  
(a) Timing  
217. We begin with the European Communities' clai m that the Panel erred in excluding certain 
subsequent reviews from the scope of these compliance proceedings on the basis that they pre-dated  
the adoption of the recommendations and rulings of the DSB made on 9 May 2006.   
                                                      
305Panel Report, para. 8.126.   WT/DS294/AB/RW 
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  218. Both the European Communities and the United St ates agree that the timing of a measure is 
not determinative of whether there is a sufficiently  close nexus between such measure, the declared  
measure "taken to comply", and the recommendations and rulings of the DSB.306     
219. However, the participants diverge as to the significance of the timing of the subsequent 
reviews for the Panel's "close nexus" analysis.  The European Communities suggests that the Panel 
erred in mechanistically excluding from its terms of reference the subsequent reviews issued before  
the adoption of the recommendations  and rulings of the DSB, b ecause the challenged subsequent 
reviews " perpetuate[d] " the WTO-inconsistent measures beyond  the end of the reasonable period of 
time.307  
220. The United States responds that the Panel corr ectly excluded the subsequent reviews that 
pre-dated the adoption of the recommendations and ru lings of the DSB from its terms of reference, 
because these reviews were not "taken to comply" with recommendations and rulings that did not yet 
exist.308  The United States adds that the Panel erred in including in its terms of reference the 2004-
2005 administrative reviews in Cases 1 a nd 6, simply because they were issued after the adoption of 
the recommendations and rulings of the DSB.  A ccording to the United States, timing alone cannot 
justify the inclusion of the 2004-2005 administrati ve reviews in the Panel' s terms of reference, 
because "it will always be the case that administrativ e reviews following modifications to original 
investigations made in order to comply with DS B recommendations and rulings will be issued after 
the adoption of the DSB recommendations and rulings."309   
221. The Panel justified its decision to exclude from its terms of reference the subsequent reviews 
challenged by the European Communities that we re issued before the adoption of the DSB's 
recommendations and rulings as follows:  
One would expect, as a matter of logic, that a measure taken before 
the adoption of the DSB's recommenda tions and rulings could rarely, 
if ever, be found to be a measure taken "to comply" with such recommendations and rulings.  As a result, it would normally follow 
that only those subsequent review s that were decided after such 
adoption could be taken into cons ideration as part of a compliance 
panel's examination of the impl ementation of DSB recommendations 
and rulings.  The European Communities has not convinced us that a different conclusion is warranted in the present dispute. 
                                                     
 
306European Communities' appellant's submission, para. 91;  United States' other appellant's 
submission, para. 83.   
307European Communities' appellee's submission, para. 34. (original emphasis) 
308United States' appellee's submission, para. 40. 
309United States' other appellant's submission, para. 83. WT/DS294/AB/RW 
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  Conversely, measures adopted following the adoption of the DSB's 
recommendations may have a close link with the DSB's recommendations and rulings and with the steps, if any, taken by the implementing Member to achieve compliance with the recommendations and rulings, and ther efore warrant inclusion in the 
scope of an Article 21.5 proceeding.  In our view, the application of a 
nexus-based test should primarily aim at bringing within the scope of the compliance dispute measures that potentially circumvent implementation or undermine measures officially taken to comply.
310 
(footnotes omitted) 
222. At the outset, we agree with the Panel that measures taken to comply with recommendations 
and rulings of the DSB ordinarily post-date the adoption of the recommendations and rulings.311  As 
the Appellate Body noted in US – Softwood Lumber IV (Article 21.5 – Canada) , "[a]s a whole, 
Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a 
particular dispute."312   
223. However, the Panel's finding that "a measu re taken before the adoption of the DSB's 
recommendations and rulings could rarely, if ever, be  found to be a measure taken 'to comply' with 
such recommendations and rulings"313 seems premised on the notion that a panel's mandate under 
Article 21.5 is limited to those measures taken "in the direction of" or "for the purposes of achieving" 
compliance with the recommendations and rulings of the DSB.  As we have noted earlier, in the 
Appellate Body's interpretation, "[t]he fact that Article 21.5 mandates a panel to assess 'existence' and 
'consistency' tends to weigh against an interpretati on of Article 21.5 that would confine the scope of a 
panel's jurisdiction to measures that move in the direction of , or have the objective of achieving , 
compliance."314  For this reason, measures with a "particul arly close relationship" with the declared 
measures "taken to comply", and to the recommendati ons and rulings of the DSB, may also fall within 
the scope of a panel proceeding under Article 21.5 of the DSU, even though such measures are not, 
strictly speaking, measures taken with the purpose of achieving compliance with those 
recommendations and rulings.   
224. In this respect, we agree with the Europ ean Communities and the United States that the timing  
of a measure cannot be determinative of whether it bears a sufficiently close nexus with a Member's 
implementation of the recommendations and rulings of the DSB so as to fall within the scope of an 
                                                      
310Panel Report, paras. 8.115 and 8.116.  
311Panel Report, para. 8.115.  
312Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 70. (original 
emphasis) 
313Panel Report, para. 8.115. (footnote omitted) 
314Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67. (original 
emphasis)  WT/DS294/AB/RW 
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  Article 21.5 proceeding.315  Since compliance with the recommendations and rulings of DSB can be 
achieved  before the recommendations and rulings of the DSB are adopted316, a compliance panel may 
have to review events pre-dating the adoption of  those recommendations and rulings in order to 
resolve a disagreement as to the "existence" or "consistency with a covered agreement" of such 
measures.  Indeed, the United States argued before the Panel that it did not have to take further action 
to implement the recommendations and rulings of the DSB in respect of the administrative reviews at 
issue in the original proceedings , because they were superseded by subsequent administrative reviews 
that pre-dated the adoption of the DSB's recommendations and rulings.317  We also note the United 
States' argument that, where a measure is withdraw n prior to the DSB's recommendations and rulings, 
a Member may not need to take any further measures to comply with those recommendations and rulings after they are adopted.
318  We do not see why a compliance panel should be unable to take 
such prior withdrawal into account. 
225. We consider that the timing of a measure rema ins a relevant factor in determining whether 
they are sufficiently closely co nnected to a Member's implementation of the recommendations and 
rulings of the DSB.319  Indeed, the fact that a measure is a dopted simultaneously with, shortly before, 
or shortly after specific actions introduced by Members with a view to implementing the 
recommendations and rulings of the DSB may provid e support for a finding that those measures are 
closely connected.  Conversely, there might be situ ations where the fact that the alleged "closely 
connected" measure was taken a considerable time  before the adoption of the recommendations and 
rulings of the DSB will be sufficient to sever th e connection between that measure and a Member's 
implementation obligations. 
226. In our view, the Panel's formalistic reliance on th e date of issuance of the subsequent reviews 
in ascertaining whether these reviews had a close nexus with the recommendations and rulings of the DSB was in error.  The relevant inquiry was not wh ether the subsequent reviews were taken with the 
intention to comply with the recommendations and rulings of the DSB;  rather, in our view, the 
relevant inquiry was whether the subsequent reviews, despite the fact that they  were issued before the 
                                                     
 
315European Communities' appellant's submission, para. 91;  United States' other appellant's 
submission, para. 83.   
316In that vein, we note the stat ement by the United States in US – Gambling (Article 21.5 – Antigua 
and Barbuda)  that "compliance need not necessarily occur subsequent to the DSB recommendation and rulings, 
as a WTO Member might modify or remove measures at issue after establishment of a panel but prior to 
adoption of the panel or Appellate Body report." (Panel Report, US – Gambling (Article 21.5 – Antigua and 
Barbuda) , para. 5.11) 
317See Panel Exhibit US-17. 
318United States' appellee's submission, para. 41.  
319See Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 84;  Panel 
Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10(22);  and Panel Report, Australia – Automotive 
Leather II (Article 21.5 – US) , para. 6.5.    WT/DS294/AB/RW 
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  adoption of the recommendations and rulings of the DSB, still bore a sufficiently close nexus, in 
terms of nature , effects , and timing , with those recommendations and rulings, and with the declared 
measures "taken to comply", so as to fall with in the scope of Article 21.5 proceedings.    
227. Accordingly, we reverse the Panel's finding, in paragraph 8.119 of the Panel Report, that 
"none of the subsequent reviews challenged by th e European Communities that  were decided before 
the adoption of the DSB's recommendations and ru lings fall within our terms of reference".
320  
228. Having reversed the Panel's finding that th e subsequent reviews that were issued before  the 
adoption of the DSB's recommendations and rulings di d not have a sufficiently close nexus with those 
recommendations and rulings, and with the declared me asures "taken to comply", so as to fall within 
its terms of reference under Article  21.5 of the DSU, we examine next whether any of those reviews 
fall within the scope of these compliance proceedings.   
229. As we have noted earlier, in determini ng whether measures that are ostensibly not "taken to 
comply" with the recommendations and rulings of the DSB have a particularly close connection to the declared measure "taken to comply", and to the recommendations and rulings of the DSB, a panel is 
required to scrutinize the links, in terms of nature , effects , and timing , between those measures, the 
declared measures "taken to comply", and the recomme ndations and rulings of the DSB.  Only then is 
a panel in a position to determine whether there are sufficiently close links for it to characterize such 
other measures as "taken to comply" and, conseque ntly, to assess their consis tency with the covered 
agreements.
321  Accordingly, we examine the links, in terms of nature , effects , and timing , between the 
subsequent reviews excluded by the Panel from its  terms of reference ("the excluded subsequent 
reviews"), the declared measures "taken to comp ly", and the recommendations and rulings of the 
DSB.  
230. In our view, the use of zeroing in the excluded subsequent reviews provides the necessary 
link, in terms of nature  or subject matter, between such meas ures, the declared measures "taken to 
comply", and the recommendations and rulings of the DSB.  All the excluded subsequent reviews 
were issued under the sa me respective anti-dumping duty order as the measures challenged in the 
original proceedings, and therefore constitute d "connected stages ... involving the imposition, 
assessment and collection of duties under the same anti-dumping order".322  Moreover, as the Panel 
correctly noted, the issue of zeroing was the precise subject of the recommendations and rulings of the 
DSB, the only aspect of the original measures th at was modified by the United States in its 
                                                      
320Underlining and footnote omitted.  
321Appellate Body Report, US – Softwood Lumber IV (Article 21.5- Canada) , para. 77.  
322Appellate Body Report, US – Continued Zeroing , para. 181.   WT/DS294/AB/RW 
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  Section 129 determinations, and is the only aspect of the excluded subsequent reviews challenged by 
the European Communitie s in these proceedings.323  These pervasive links, in our view, weigh in 
favour of a sufficiently close nexus, in terms of nature  or subject matter, between the excluded 
subsequent reviews, the declared measures "taken  to comply", and the recommendations and rulings 
of the DSB, insofar as the use of zeroing is concerned.  
231. With respect to the links, in terms of effects , between the excluded subsequent reviews, the 
declared measures "taken to comply", and the r ecommendations and rulings of the DSB, we have a 
more mixed picture.  Many of the excluded subs equent reviews are administrative reviews that 
generated assessment rates calculated with zeroi ng, and replaced the cash deposit rates that were 
found to be WTO-inconsistent in the original pr oceedings, either as a result of an original 
investigation or an administrative review, with ca sh deposit rates calculated with zeroing in such 
subsequent reviews.  Therefore, to the extent th at these administrative reviews generated assessment 
rates and cash deposit rates calculated with zeroing th at replaced those found to be WTO-inconsistent 
in the original proceedings with the effects of asse ssment rates and cash deposit rates that continued to 
reflect the zeroing methodology, this would provide a sufficient link, in terms of effects , between 
those administrative reviews and the recommendati ons and rulings of the DSB, insofar as the 
requirement to cease using the zeroing methodology is concerned.   
232. However, with respect to the 15 original inv estigations subject to the recommendations and 
rulings of the DSB, the United States issued Sect ion 129 determinations in  which it recalculated 
margins of dumping without zeroing that served as the basis for the going-forward cash deposit rates 
for the relevant anti-dumping duty orders.  This r ecalculation without zeroing replaced the effects of 
the cash deposits calculated with zeroing in previous  administrative reviews with the effects of cash 
deposits calculated without  zeroing.  Consequently, to the extent that the effects of the administrative 
and sunset reviews excluded from the Panel's terms of reference were replaced with those of a 
subsequent Section 129 determination in which  zeroing was not applied, those subsequent reviews 
would generally not have the necessary link, in terms of effects , with the declared measures "taken to 
comply", and with the recommendations and rulings of  the DSB, so as to fall within the Panel's terms 
of reference.  
233. Likewise, with respect to the 16 administrative reviews covered in the original proceedings, 
subsequent administrative reviews provided assessmen t rates calculated with zeroing, and generated 
cash deposit rates based on zeroing that replaced the e ffects of the administrative reviews found to be 
WTO-inconsistent in those proceedings.  As we have noted earlier, such assessment rates and cash 
                                                      
323See Panel Report, para. 8.104.  WT/DS294/AB/RW 
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  deposit rates calculated with zeroing provided a sufficiently close link, in terms of effects , between 
such subsequent reviews and the recommendations a nd rulings of the DSB, insofar as the requirement 
to cease using the zeroing methodology is concerned.   Administrative reviews could also have an 
effect on the United States' implementation of the recommendations and rulings of the DSB after the 
end of the reasonable period of time to the extent  that the respective anti-dumping duty orders had 
been continued as a result of a sunset review in each of those Cases.  Accordingl y, to the extent that 
sunset review determinations led to the continuation of the relevant anti-dumping duty orders, which 
in turn provided the legal basis for the continue d imposition of assessment rates and cash deposits 
calculated with zeroing in subsequent administrativ e reviews with continued effects after 9 April 
2007, these sunset reviews had a sufficiently close link, in terms of  effects , with the recommendations 
and rulings of the DSB.  These are the sunset reviews in Granular Polytetrafluoroethylene Resin from 
Italy (Case 24), Stainless Steel Sheet and Strip in Coils from Germany  (Case 28), Ball Bearings and 
Parts Thereof from France  (Case 29), Ball Bearings and Parts Thereof from Italy  (Case 30), and Ball 
Bearings and Parts Thereof from the United Kingdom  (Case 31).
324 
234. Finally, with respect to the links, in terms of timing , between the excluded subsequent 
reviews, the declared measures "taken to comply",  and the recommendations and rulings of the DSB, 
we have articulated above the reasons for which we do not consider the fact that they were issued 
before the adoption of the recommendations and ru lings of the DSB to be determinative.  In 
particular, the fact that the likelihood-of-dumping determinations in the sunset reviews listed above 
pre-date the adoption of the recommendations and ru lings of the DSB is not sufficient to sever the 
pervasive links that we have found to exist, in terms of nature  and effects , between such sunset 
reviews, the recommendations and rulings of the DSB,  and the declared measures "taken to comply". 
235. Accordingly, we find that the sunset reviews in Cases 24, 28, 29, 30, and 31 had a sufficiently 
close nexus with the declared m easures "taken to comply", and with the recommendations and rulings 
of the DSB, so as to fall within the Panel's te rms of reference under Article 21.5 of the DSU. 
4. The United States' Other Appeal of the Panel's "Close Nexus" Analysis  
(a) Nature 
236. In its other appeal, the United States argues that  the Panel erred in finding that there are 
sufficiently close links, in terms of nature , between the original investiga tions at issue in the original 
                                                      
324These sunset reviews were excluded from the sc ope of these compliance proceedings because the 
relevant likelihood-of-dumping determinations by the US DOC had been made before the adoption of the DSB's 
recommendations and rulings in the original proceedings.  WT/DS294/AB/RW 
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  proceedings and the 2004-2005 administrative review s in Cases 1 and 6.  We recall that these 
administrative reviews were issued on 22 June 2007 and 9 May 2007 respectively, that is, after  the 
reasonable period of time had expired on 9 April 2007.   
237. The United States argues that the Panel erred in finding that successive determinations of 
different types made in the context of a single trade remedy proceeding "form part of a continuum of events and measures that are all inextricably linked".
325  For the United States, a "closer connection 
between the declared measure taken to co mply and the alleged additional measure"326 must exist for 
the latter to fall within the scope of Article 21. 5 proceedings, because by definition administrative 
reviews will usually have the same product and countr y coverage as the original investigation.  In 
addition, the United States argues that the recommend ations and rulings of the DSB with regard to 
zeroing in original investigations are different from the recommendations and rulings made by the 
DSB in relation to zeroing in administrative revi ews.  The United States contends that the Panel 
ignored the fact that the recommendations and ru lings of the DSB concerning Cases 1 and 6 apply 
exclusively to the use of zeroing in aggregating weighted average-to-weighted average comparisons 
in original investigations.  The United States emphasizes that there are no DSB recommendations and 
rulings related to the use of zeroing in weighted average-to-transaction comparisons "as applied" in 
the 2004-2005 administrative reviews in Cases 1 and 6.327 
238. The European Communities responds that the Pa nel correctly limited its analysis "to the 
question of whether the use of zeroing in the calcu lation of margins of dumping in the subsequent 
reviews bears a sufficiently close nexus ... to the findings of the pa nel and Appellate Body in the 
original dispute so as to warrant ... consideration of  that precise aspect of the subsequent reviews".328  
Thus, according to the European Co mmunities, the use of zeroing is  the element closely connecting 
the subsequent reviews with the original measures and the recommendations and rulings of the DSB.  
Moreover, the European Communities dispels con cerns raised by the United States that the 
recommendations and rulings of the DSB in this dispute only applied to the use of weighted 
average-to-weighted average zeroing in the original investigations in Cases 1 and 6.  The European 
Communities submits that zeroing under different co mparison methodologies and in different stages 
of anti-dumping proceedings simply reflect "differe nt manifestations of a single rule or norm."329  The 
European Communities underscores that the use of  zeroing in subsequent administrative reviews 
                                                      
325Panel Report, para. 8.103.  
326United States' other appellant's submission, para. 76.  
327United States' other appellant's submission, para. 78.  
328European Communities' appellee's submission, pa ra. 24 (quoting Panel Report, para. 8.101).  
329European Communities' appellee's submission, para. 27 (quoting Appellate Body Report, US – 
Zeroing (Japan) , para. 88).   WT/DS294/AB/RW 
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  would undermine the United States' implementation of the recommendations and rulings of the DSB 
with respect to the original investigations in Cases 1 and 6. 
239. At the outset, we agree with th e United States that identity in terms of product and country 
coverage alone would be an insufficient basis for determining that the 2004-2005 administrative 
reviews in Cases 1 and 6 have a sufficiently close nexus, in terms of nature, with the 
recommendations and rulings of the DSB with respect to  the original investigations in those Cases.  
The Appellate Body recognized in US – Softwood Lumber IV (Article 21.5 – Canada)  that not "every 
assessment review will necessarily fall within th e jurisdiction of an Article 21.5 panel."
330  However, 
in this particular case, we consider that the u se of zeroing in the 2004-2005 administrative reviews in 
Cases 1 and 6 establishes a link in terms of nature  or subject matter between those reviews, the 
recommendations and rulings of the DSB, and the d eclared measures "taken to comply"—that is, the 
Section 129 determinations in those Cases.   
240. Both the original investigations and the 2004- 2005 administrative reviews in Cases 1 and 6 
involve the same products from the same countries;   they occurred under the same anti-dumping duty 
orders, and thus form part of a contin uum of events under the provisions of the Anti-Dumping 
Agreement  and pursuant to the municipal law of the United States.  Each of these proceedings 
involved the calculation of a margin of dumping, e ither for the purposes of establishing the existence 
of dumping and the initial cash deposit rate of the es timated dumping duty liability, or for the final 
assessment of dumping duty liability on past entries.331  In each instance, the use of the zeroing 
methodology arose in the context of calculating estimated margins of dumping for particular 
exporters, or assessment rates for particular importers.   
241. We see no error in the Panel's finding that the use of zeroing in the calculation of margins of 
dumping "is the only aspect of the subsequent re views that is challenged by the European 
Communities;  it is also the precise issue that was challenged in the original dispute, and which was 
the subject of the DSB rulings and recommendations."332  We also agree with the Panel's statement 
that, where the Appellate Body made findings of inco nsistency under different legal provisions in the 
original proceedings, they were premised on the same fundamental obligations under the Anti-
Dumping Agreement , following from the definition of the term "margin of dumping" in Article 2.1 of 
the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994.333   
                                                      
330Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 93.  
331The 2004-2005 administrative review s in Cases 1 and 6 did not establish cash deposit rates because 
the anti-dumping duty orders were revoked. 
332Panel Report, para. 8.104.  
333Panel Report, para. 8.106.  WT/DS294/AB/RW 
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  242. We find significant that the use of zeroing w as the only aspect of the original measures at 
issue that was corrected by the United States in response to the recommendations and rulings of the 
DSB.  Indeed, the Section 129 determinations in C ases 1 and 6, which are the United States' declared 
measures "taken to comply", simply recalculated—without zeroing—the margins of dumping calculated in the original proceedings.  This, in our view, tends to confirm the close nexus, in terms of 
subject matter and nature, between the declared measures "taken to comply", the recommendations 
and rulings of the DSB in the original proceed ings, and the use of zeroing in the 2004-2005 
administrative reviews in Cases 1 and 6.   
243. The United States distinguishes the facts in US – Softwood Lumber IV (Article 21.5 – 
Canada) from those in these proceedings, alleging that in that dispute the same "pass-through" 
methodology was applied in the original measure at is sue, the Section 129 determination, and the first 
assessment review.  By contrast, in the present proceedings, the recommendations and rulings of the 
DSB applied exclusively to the use of zeroing in weighted average-to-weight ed average comparisons 
in the original investigations in Cases 1 and 6, a nd did not contain "as applied" findings in relation to 
the application of zeroing in weighted averag e-to-transaction comparisons in the 2004-2005 
administrative reviews in Cases 1 and 6.   
244. Whilst the distinctions between comparison methodologies are not insignificant, we do not 
consider them to be decisive as to the links, in  terms of nature or subject matter, between these 
reviews, the declared measures "taken to comply",  and the recommendations and rulings of the DSB.  
In our view, the use of zeroing in the original investigations and in the 2004-2005 administrative 
reviews in Cases 1 and 6 similarly involved treatin g as zero the results of comparisons for which the 
export price(s) exceeded the normal value when th ese results were aggregated.  We also note the 
Appellate Body's statement in US – Softwood Lumber IV (Article 21.5 – Canada) that differences 
between original investigations and administra tive reviews in countervailing duty cases do not prevent 
the latter from falling within the scope of compliance proceedings, and that municipal law 
classifications and differences in legal bases for origin al investigations and assessment reviews are not 
determinative in WTO dispute settlement.
334   
245. We note, furthermore, the Appellate Body's finding in US – Continued Zeroing that the use of 
zeroing in "successive determinations" under the sam e anti-dumping duty order constitutes a measure 
that is challengeable in WTO dispute settleme nt.  If the zeroing method ology in "successive 
determinations" "involving the imposition, assessme nt and collection of duties under the same 
anti-dumping duty order" in original investigations, administrative reviews, and sunset reviews is 
                                                      
334See Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 82. WT/DS294/AB/RW 
Page 100  
 
  challengeable as a measure in original proceedings, th is suggests that the subsequent reviews at issue 
in this case, in which that zeroing methodology is a pplied, are sufficiently connected in nature or 
subject matter so as to fall within the scope of these Article 21.5 proceedings.
335 
246. These considerations, in our view, weigh in favo ur of a sufficiently close nexus, in terms of 
nature, between the 2004-2005 admini strative review determinations in Cases 1 and 6, the declared 
measures taken to comply, and the recommendations a nd rulings of the DSB, insofar as the use of 
zeroing is concerned.   
(b) Effects 
247. The United States also argues that the Panel erred in finding that the 2004-2005 
administrative reviews in Cases 1 and 6 had a sufficiently close nexus, in terms of effects , with the 
original measures at issue and the recommendations and rulings of the DSB so as to fall within the 
Panel's terms of reference under Artic le 21.5 of the DSU.  The United States' challenge in this respect 
focuses on the following statement by the Panel conc erning the effect of the subsequent reviews: 
[T]he use by the USDOC of zeroing in the calculation of margins of 
dumping in the context of a "subsequent" administrative review 
potentially negates action taken by the United States in the form of a 
Section 129 determination recalcu lating the margin of dumping from 
the original investigation in order to implement the DSB's recommendations in respect of that original investigation, as it (i) allows for the assessment of anti-dumping duties at a rate that is 
based on zeroing, inconsistent with the provisions of the Anti-
Dumping Agreement , despite alleged implementing action to 
eliminate such zeroing, and (ii) replaces the rate established in the original investigation (and any new rate established as a result of the 
implementation of the DSB recommendations and rulings) with a new cash deposit rate calculated with zeroing.
336 (footnote omitted) 
248. The United States argues that this finding is in error, for two reasons:  first, because the Panel 
treated zeroing as a "unitary phenomenon", despite th e fact that the recommendations and rulings of 
the DSB did not apply to the 2004-2005 administra tive reviews in Cases 1 and 6;  and, secondly, 
because the results of the 2004-2005 administrative reviews in Cases 1 and 6 had no effect on the "continued validity and effect"
337 of the United States' declared me asures "taken to comply".  The 
United States explains that the Section 129 determin ations in Cases 1 and 6 led to the revocation of 
the underlying anti-dumping duty orders on 23 April 2007, with the result that the supervening 
2004-2005 administrative reviews did not establish cash deposit rates applicable to entries occurring 
                                                      
335Appellate Body Report, US – Continued Zeroing , para. 181. 
336Panel Report, para. 8.108. 
337United States' other appellant's submission, paras. 63 and 64.   WT/DS294/AB/RW 
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  after that date.  Therefore, the United States su bmits that the 2004-2005 administrative reviews in 
Cases 1 and 6 did not undermine the "existence" of the measures taken to comply, within the meaning 
of Article 21.5 of the DSU. 
249. The European Communities responds that the calculation of assessment rates based on 
zeroing after  the end of the reasonable period of time in the 2004-2005 administrative reviews in 
Cases 1 and 6 demonstrates that these reviews had an effect on the United States' implementation, 
because they "perpetuate the WTO-inconsiste nt anti-dumping measure beyond the end of the 
reasonable period of time."338    
250. With respect to the first allegation of error advanced by the United States, we articulated 
above the reasons why we do not a ttribute the same significance that the United States does to the fact 
that the recommendations and rulings of the DSB did not extend to the 2004-2005 administrative 
reviews in Cases 1 and 6.  The 2004-2005 administ rative reviews in Cases 1 and 6, as well as the 
original investigations in those two Cases, involve d zeroing, albeit in the context of a distinct anti-
dumping proceeding.  In addition, the effects of  the application of zeroing in those distinct 
proceedings did not vary significantly:  in disr egarding the results of comparisons for which the 
export price(s) exceeded the normal value, the use of zeroing led to an inflation of the margins of 
dumping calculated in those proceedings either to derive the estimated cash deposit rates for the 
exporters, or the assessment rates for the importe rs.  Thus, the use of zeroing in subsequent 
determinations could unde rmine implementation in respect of or iginal investigations.  Although the 
Appellate Body noted in US – Softwood Lumber IV (Article 21.5 – Canada)  that there are some limits 
on the scope of compliance proceedings, "these limits  should not allow circumvention by Members by 
allowing them to comply through one measure, wh ile, at the same time, negating compliance through 
another."339   
251. In respect of the United States' arguments that  original investigations and administrative 
reviews are distinct proceedings and serve distinct  purposes, we recall that the Appellate Body has 
considered that successive determinations under a single anti-dumping duty order form part of a 
continuum of events.340  The Appellate Body has also clarified that "zeroing ... under different 
comparison methodologies, and in different stages of anti-dumping proceedings ... simply reflect[s] 
                                                      
338European Communities' appellee's submission, para. 34. (emphasis and footnote omitted)  
339Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 71. 
340See Appellate Body Report, US – Zeroing (EC),  paras. 132 and 133.  We agree with the Panel that, 
where the Appellate Body made findings in the original dispute under different legal provisions, they were 
premised on the same fundamental obligations under the Anti-Dumping Agreement , following from the 
definition of the term "margin of dumping" in Article  2.1 of that Agreement and Article VI:2 of the GATT 
1994. (Panel Report, para. 8.106) WT/DS294/AB/RW 
Page 102  
 
  different manifestations of a single rule or norm."
341  Although weighted average-to-weighted 
average, weighted average-to-transaction, and transaction-to-transaction comparison methodologies 
are distinct and used in different contexts i nvolving different calculations, and may be used for 
different finalities, they have in common that they  lead to inflated amounts if negative comparison 
results are disregarded or treated as zero when  these comparison results are aggregated in the 
calculation of margins of dumping, cash deposit rat es, and assessment rates.  What the DSB found to 
be inconsistent in the original proceedings was th e treatment of negative comparison results as zero;  
the use of the weighted averag e-to-weighted average comparison methodology was not found to be 
inconsistent.  Indeed, the Anti-Dumping Agreement refers to various comparison methodologies (for 
example, weighted average-to-weighted average, tr ansaction-to-transaction, an d weighted average-to-
transaction) and their use was not found to be inconsis tent in the original proceedings.  Therefore, the 
analysis of compliance with the DSB's recommenda tions and rulings should focus on what was found 
to be inconsistent (that is, zeroing) and not on what  was not found to be inconsistent (that is, the use 
of a particular comparison methodology in a particular stage of the proceedings).  In any event, we fail to see how a subsequent administrative review using zeroing could not be relevant for assessing, 
in an Article 21.5 proceeding, whether an original  investigation found to be inconsistent due to 
zeroing has been brought into conformity.  In our  view, whether negative comparison results have 
been disregarded in subsequent reviews may have  an effect on determining whether the original 
measure, which was found to be inconsistent becau se such comparison results were disregarded, has 
been brought into conformity.  
252. Neither are we persuaded by the United Stat es' argument that the 2004-2005 administrative 
reviews in Cases 1 and 6 had no bearing on the compliance achieved by the United States in those two Cases.  Even though the United States is correct in pointing out that the Section 129 determinations in Cases 1 and 6 led to the revocation of the unde rlying anti-dumping duty orders for entries after 
23 April 2007, the fact remains that the 2004-2005  administrative reviews established assessment 
rates calculated with zeroing, despite the fact that  they were issued on 22 June 2007 and 9 May 2007, 
respectively, that is, after  the expiration of the reasonable period of time on 9 April 2007.  In our 
view, the use of zeroing to calculate assessment rates in administrative reviews issued after the end of 
the reasonable period of time is an indication that these reviews could undermine the compliance 
allegedly achieved by the United States.  Indeed , the Section 129 determinations do not apply to 
entries prior to the end of the reasonable period of  time and thus do not relate to compliance with 
respect to administrative reviews issued after the end of the reasonable period covering imports 
occurring before that date. 
                                                     
 
341Appellate Body Report, US – Zeroing (Japan) , para. 88.   WT/DS294/AB/RW 
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  253. We note that, in US – Stainless Steel (Mexico) , the Appellate Body noted that "permit[ting] 
simple zeroing in periodic reviews would allow WTO Members to circumvent the prohibition of 
zeroing in original investigations".342  This was so because, in the first periodic review after an 
original investigation, the duty assessment rate for each importer would take effect from the date of 
the original imposition of anti-dumping duties.  Thus, "[w]hen the initial cash deposit rate is 
calculated in the original investigation without using zeroing, this means that the mere act of 
conducting a periodic review would introduce zeroi ng following imposition of the anti-dumping duty 
order."343  The Appellate Body, therefore, made it cl ear that the use of zeroing in subsequent 
administrative reviews would allow Members to circ umvent the prohibition of zeroing in original 
investigations.   
254. In this respect, we observe that the United States' argument that the 2004-2005 administrative 
reviews in Cases 1 and 6 had no effect on its impl ementation of the recommendations and rulings of 
the DSB is predicated on the United States having achieved full compliance with the recommendations and rulings of the DSB with the i ssuance of the Section 129 determinations in those 
Cases, an allegation that the European Comm unities contests.  According to the European 
Communities, the United States' implementation oblig ations were not limited to imports taking place 
after the end of the reasonable period of time, but al so encompassed "any positive acts" after that date, 
such as the final collection of duties on unliquidate d entries made before the end of the reasonable 
period of time.  Thus, following the United States' logic, the Panel would not have been in a position 
to determine whether the 2004-2005 administrative re views in Cases 1 and 6 fell within its terms of 
reference without determining, first, whether th e Section 129 determinati ons achieved substantive 
compliance with the recommendations and rulings of the DSB.   
255. The United States distinguishes the fact s of this case from the facts in US – Softwood 
Lumber IV (Article 21.5 – Canada) , where the panel and Appellate Body found it significant that 
(i) the administrative review resulted in a cash deposit rate that superseded  the revised cash deposit 
rate established in the Section 129 determination, a nd (ii) a particular aspect of the analysis in the 
administrative review was made "in view of" th e recommendations and rulings of the DSB in the 
original proceedings in relation to that type of analysis.  The United States submits that neither of 
those elements is present in this dispute.
344   
                                                      
342Appellate Body Report, US – Stainless Steel (Mexico) , para. 109. 
343Appellate Body Report, US – Stainless Steel (Mexico) , para. 109. 
344United States' other appellant's submission, para. 58.  WT/DS294/AB/RW 
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  256. In our view, the United States misinterpret s the findings of the Appellate Body in US – 
Softwood Lumber IV (Article 21.5 – Canada) as requiring that the "closely connected" measures 
actually  undermine the compliance otherwise achieved by  the implementing Member.  We consider 
that, at the time of the jurisdictional inquiry into its terms of reference, a panel might not be in a 
position to determine whether this is the case, because  it will not be possible to determine whether the 
"connected" measures potentially undermine complia nce without determining first whether the 
declared measures "taken to comply" fully achieved compliance with the recommendations and 
rulings of the DSB.  We note in this respect that  the Section 129 determinations apply to entries 
occurring after  23 April 2007; they do not cover entries occurring before that date.  Therefore, 
administrative review determinations issued afte r the end of the reasonable period of time covering 
entries made prior to that date are relevant for assessing compliance with the DSB's recommendations 
and rulings, even though they do not concern those entries to which the Section 129 determinations 
will apply.  To find otherwise would limit compliance proceeding to examining whether closely connected measures affect compliance achieved by the declared measures "taken to comply";  
situations where a Member has taken measures ach ieving only partial compliance, or has omitted to 
take measures, would be excluded from scrutiny.  As  we have found earlier, the scope of Article 21.5 
proceedings is not limited in such a way.  Theref ore, our review under Artic le 21.5 of the 2004-2005 
administrative reviews in Cases 1 and 6 is not constr ained by the fact that these reviews did not set 
going-forward cash deposit rates
345, because this does not change the fact that the 2004-2005 
administrative reviews assess final anti-dumping liabilit y with zeroing after the end of the reasonable 
period of time.  
257. We address in section VIII of this Re port the question of whether the 2004-2005 
administrative reviews in Cases 1 and 6 constituted a failure by the United States to comply with the 
recommendations and rulings of the DSB.  At the ju risdictional level, however, we consider that the 
fact that these reviews were issued after the end of the reasonable period of time and led to the 
assessment of duties with zeroing indicates that these reviews had effects after the end of the reasonable period of time, and that those eff ects could have undermined the United States' 
implementation of the recommendations and rulings of the DSB with respect to Cases 1 and 6.     
258. Given the above, we consider that the 2004-2 005 administrative reviews in Cases 1 and 6 had 
a sufficiently close nexus, in terms of nature, effects,  and timing, with the declared measures "taken to 
comply", and with the recommendations and rulings of  the DSB, so as to fall within the Panel's terms 
of reference under Article 21.5 of the DSU.  Accordingly, we uphold  the Panel's findings, in 
                                                     
 
345As noted above, to the extent that the Section 129  determinations set cash deposit rates for certain 
exporters, these apply only to entries after 23 April 2007.  WT/DS294/AB/RW 
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  paragraph 8.126(i) and (v) of the Panel Report, th at the 2004-2005 administrative reviews in Cases 1 
and 6 fell within the Panel's terms of reference. 
5. Separate Opinion  
259. One Member of the Division wishes to set out a separate opinion concerning the United 
States' appeal of the Panel's finding that the 2004- 2005 administrative reviews in Cases 1 and 6 fell 
within its terms of reference under Article 21.5 of the DSU by virtue of their close nexus, in terms of 
nature, effects, and timing, with the declared me asures taken to comply, and the recommendations and 
rulings of the DSB.  
260. For Cases 1 and 6, the recommendations and rulin gs of the DSB relate to the use, in the 
context of original investigations, of a methodol ogy referred to by the European Communities as 
"model zeroing" which the panel and the Appellate Body found to be inconsistent with Article 2.4.2 
of the Anti-Dumping Agreement .  The European Communities' challe nge in the original proceedings 
was limited to claims against the original inv estigations of dumping made in these two Cases.  
Importantly, these DSB recommendations and rulings di d not extend to the use, in the context of 
administrative reviews, of a different methodolog y, referred to by the European Communities as 
"simple zeroing" that the Appellate Body found to be inconsistent with Article 9.3 of the Anti-
Dumping Agreement  and Article VI:2 of the GATT 1994.  As such, the compliance obligation of the 
United States with respect to the recommendations a nd rulings of the DSB in relation to Cases 1 and 6 
was to cease applying the "model zeroing" methodology whenever it conducts original investigations 
to determine the existence of dumping and to establish initial cash deposit rates.   
261. In order to implement the recommendations and rulings of the DSB in Cases 1 and 6, the 
United States initiated proceedings under Sec tion 129 of the URAA in which the USDOC 
recalculated the margin of dumping challenged in th e original investigation without using the "model 
zeroing" methodology.  As a result of the recalculation, the anti-dumping duty order in these two cases was revoked.  The recalculation of the margins of dumping made in the Section 129 
determination and the consequent  revocation of the anti-dumping duty order constitute the declared 
measures "taken to comply" by the United States and, at least in appearance, these actions of the 
United States respond to the recommendations and rulings of the DSB. 
262. However, the analysis does not necessarily end at an examination of these "declared" 
measures if, in certain circumstances, there ex ist other measures taken by the responding WTO 
Member that share a particularly close nexus to  these declared measures and which may undermine or WT/DS294/AB/RW 
Page 106  
 
  negate their impact on compliance with the reco mmendations and rulings of the DSB.  As the 
Appellate Body noted in US – Softwood Lumber IV (Article 21.5 – Canada) : 
Some measures with a particularly close relationship to the declared 
"measure taken to comply," and to the recommendations and rulings 
of the DSB, may also be susceptib le to review by a panel acting 
under Article 21.5.  Determining whether this is the case requires a panel to scrutinize these relationships, which may, depending on the particular facts, call for  an examination of the timing, nature and effects of the various measures.  This also requires an Article 21.5 
panel to examine the factual a nd legal background against which a 
declared "measure taken to comply" is adopted. 
In my view, the "close nexus test" needs to be applie d with some circumspection by panels, at the risk 
of overly broadening the scope of proceedings under Article 21.5 of the DSU and the compliance 
obligations related thereto to measures that sh are only a limited link to the recommendations and 
rulings of the DSB, and to the measures that a Me mber takes to implement those rulings.  This is 
particularly so because Article 21.5 of the DSU requires panels to examine the measures taken to comply for consistency with the covered agreements .  The "close nexus" analysis also needs to be 
applied in a holistic manner, so that a panel co mes to a conclusion based on a careful weighing and 
balancing of all of the close nexus factors—nature , effects, and timing—so as to reach an overall 
finding that these other measures do indeed have a sufficiently close link to the declared measures 
"taken to comply", and to the recommendations and ru lings of the DSB, so as to  justify their inclusion 
within the scope of Article 21.5 proceedings.  
263. Here, the issue is whether the 2004-2005 a nd the 2005-2006 administrative reviews and their 
use of "simple zeroing" have a sufficiently close nexus, in terms of nature, effects, and timing, with the Section 129 determinations recalculating or iginal dumping determinations without "model 
zeroing" such that those administrative reviews ma y undermine or negate the compliance achieved by 
the Section 129 determinations.  The examination, as called for in US –  Softwood Lumber IV 
(Article 21.5 – Canada)  of the "factual and legal background"  of the Section 129 determinations, 
begins with appraising the system in which these tw o types of determinations are made and the two 
methodologies of zeroing are applied.    
264. In examining the connection between the d eclared measures to comply (Section 129 
determinations), the other measures (the admi nistrative reviews), and the recommendations and 
rulings of the DSB regarding the methodology of zeroing, the central overlap is that both involve the use of zeroing—that is the treatment of export pri ces that exceed normal values as zero rather than as 
a negative number.  However, because the "model zeroi ng" applied in original investigations involves 
aggregating the results of weighted average no rmal value to weighted average export price  WT/DS294/AB/RW 
 Page 107 
 
 
  comparisons done across different models of th e product, while the "simple zeroing" involves 
aggregating transaction specific comparisons across individual importers, the comparisons involve 
different types of calculations.  As such, while th ere are some similarities in the two methodologies, 
there are also significant differences.  "Model zeroing" and "simple zeroing" are also used in different contexts (original investigations versus administra tive reviews) and are subject to different legal 
obligations of the Anti-Dumping Agreement  (Article 2.4.2 versus Article  9.3).  Moreover, eliminating 
"model zeroing" involves, as a remedy, a basic recal culation to establish new dumping margins, while 
eliminating "simple zeroing" may involve redistri buting the effects of dumping calculations among 
the importers found to be dumping from those found to  have "negative" margins, suggesting that the 
effect of the two methodologies is different as well.      
265. In examining the two measures at issue—the or iginal investigation that the Section 129 
determination mirrors and the administrative reviews, it appears that they are distinct proceedings that 
serve different purposes.  Whereas, pursuant to Article 5.1 of the Anti-Dumping Agreement , the 
original investigation aims "to determine the existe nce, degree and effect of any alleged dumping", the 
main purpose of an administrative review is to assess  the final anti-dumping dut y liability, consistent 
with Article 9.3 of the Anti-Dumping Agreement .
346  In the anti-dumping system of the United States, 
no duty liability is assessed in the context of the origin al investigation and, in this respect, assessment 
reviews and original investigations are fundamentally different.   
266. Although "simple zeroing" and "model zeroing" ar e distinct methodologies used in different 
contexts involving different calcu lations and pursuing different finalities, they have in common that 
both inflate the margins of dumping by disregarding negative comparison results.  In US – Stainless 
Steel (Mexico) , the Appellate Body established a link be tween "simple zeroing" in administrative 
reviews and "model zeroing" in original investigati ons through the calculation and the application of 
cash deposits: 
[A] reading of Article 9.3 of the  Anti-Dumping Agreement  that 
permits simple zeroing in peri odic reviews would allow WTO 
Members to circumvent the prohibition of zeroing in original investigations that applies under the first sentence of Article 2.4.2 of the Anti-Dumping Agreement .  This is because, in the first periodic 
review after an original investig ation, the duty assessment rate for 
each importer will take effect from the date of the original imposition 
of anti-dumping duties.  Consequently, zeroing would be introduced 
although it is not permissible in original investigations.  We further note that, if no periodic review is requested, the final anti-dumping duty liability for all importers will be  assessed at the cash deposit rate 
applicable to the relevant exporter.   When the initial cash deposit rate 
                                                     
 
346United States' other appellant's submission, paras. 35 and 36. WT/DS294/AB/RW 
Page 108  
 
  is calculated in the original inves tigation without using zeroing, this 
means that the mere act of conducting a periodic review would introduce zeroing following imposition of the anti-dumping duty order.
347 
Thus, the reasoning of the Appellate Body in US – Stainless Steel (Mexico) , notwithstanding the fact 
that it was not an Article 21.5 compliance proceedi ng, suggests that the benefits for exporters and 
importers of cash deposit rates calculated in an original investigation without zeroing could be 
undermined or negated if zeroing were used in s ubsequent administrative reviews for establishing new 
going-forward cash deposit rates.   
267. This is not however the situation in Cases 1 and 6.  In Case 1, the final duty liability for 
entries in the period 2004-2005 was assessed in an admi nistrative review, the final results of which 
were issued on 22 June 2007.  The anti-dumping duty order, however, was revoked pursuant to a Section 129 determination issued on 9 April 2007 a nd effective as of 23 April 2007.  As a result, no 
forward cash deposit rates were established in the 20 04-2005 administrative review.  In addition, the 
2005-2006 administrative review was rescinded on 30 Ma rch 2007, with the implication that it did not 
result in the issuance of new going-forward cash deposit rates.  With respect to Case 6, the final duty 
liability for entries in the period 2004-2005 was assessed in an administra tive review that was 
concluded on 9 May 2007 by the publication of am ended final results.  The anti-dumping duty order 
was, however, revoked pursuant to the Section 129 de termination issued on 9 April 2007 and effective 
as of 23 April 2007.  Consequently, as the Panel found , cash deposits paid on imports of stainless steel 
wire rod from Sweden made on or after 23 Ap ril 2007 were refunded, and no cash deposit was 
imposed on imports of stainless steel wire rod fro m Sweden following the issuance of the amended 
final results of the 2004-2005 administrative review .  For both Cases 1 and 6, since no cash deposit 
rates reflecting zeroing were set further to th e 2004-2005 administrative reviews (as well as the 
rescission of the 2005-2006 administrative review in Case 1), their final results cannot, in my opinion, 
undermine or negate the impact of the declared me asure taken to comply, that is, the Section 129 
determination and the cons equent revocation of the anti-dumping duty order. 
268. In US – Softwood Lumber IV (Article 21.5 – Canada) , the Appellate Body focused on the 
effects of the first assessment review in the cash deposit rate that was calculated in the Section 129 determination taken by the United St ates to implement the DSB's recommendations and 
rulings.  The Appellate Body reasoned that:  
                                                     
 
347Appellate Body Report, US – Stainless Steel (Mexico) , para. 109.  WT/DS294/AB/RW 
 Page 109 
 
 
  [t]he First Assessment Review also directly affected the Section 129 
Determination because the cash deposit rate resulting from the Section 129 Determination (which reflected a small reduction due to 
pass-through analysis contained therein) was "updated", or "superseded", by the cash deposit rate resulting from the First 
Assessment Review (which reflected no reduction from the pass-
through analysis contained therein).  Even if, as the United States argues, modification of the cash deposit rate was not the purpose of 
the First Assessment Review, it was undeniably an effect .
348 (original 
emphasis) 
Thus, to the extent that the Section 129 determin ations led to the revocation of the underlying anti-
dumping duty orders, the 2004-2005 administrative re views in Cases 1 and 6 had no bearing on the 
cash deposit rates that they would have otherwise "u pdated" or "superseded" in those Cases.  Rather, 
the results of the 2004-2005 administrative reviews merely had a retrospective effect, which was the 
establishment of final anti-dumping duty liability for importers on entries taking place long before the 
end of the reasonable period of time.    
269. In reasoning that "the fact remains that  the 2004-2005 administrative reviews established 
assessment rates calculated with zeroing d espite the fact that they were issued"349 after the end of the 
reasonable period of time, the majority overlooks th e fact that the revocation of the anti-dumping duty 
orders in Cases 1 and 6 demonstrates that those meas ures have been terminated, and that the results of 
the 2004-2005 administrative reviews in those cases  does not affect imports taking place subsequent 
to their termination.  The fact that assessment rates in Cases 1 and 6 will be issued after the end of the 
reasonable period of time is merely a natural con sequence of the fact that, in the United States' 
retrospective system for assessment of anti-du mping duties, the importers' final liability for 
anti-dumping duties is established following a detailed review process that necessarily occurs 
sometime after the date of importation. Moreover, I recall that, with respect to Cases 1 and 6, the 
recommendations and rulings of the DSB concern orig inal investigations in which, contrary to 
administrative reviews, no anti-dumping duties are assessed.  Given that there are no cash deposits linking the administrative reviews to the recommendati ons and rulings of the DSB, or the Section 129 
determinations, I do not see how assessment rates applied to a set of past entries can establish a close 
nexus between the administrative reviews and the recommendations and rulings of the DSB or the 
declared measures "taken to comply".   
270. Accordingly, I do not see how it can  be concluded, in the light of the Appellate Body Reports 
in US – Softwood Lumber IV (Article 21.5 – Canada)  and US – Stainless Steel (Mexico) , that the 
                                                     
 
348Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 85.  
349See supra , para. 252.  WT/DS294/AB/RW 
Page 110  
 
  administrative reviews in Cases 1 and 6 (including the rescission of the 2005-2006 administrative 
review in Case 1) have a close nexus with th e recommendations and rulings of the DSB or the 
declared measures "taken to comply", and fall within  the Panel's terms of reference.  Since I do not 
consider that the scope of these Article 21.5 pr oceedings can properly be  expanded to include 
compliance obligations with respect to measure s for which there were no recommendations and 
rulings by the DSB, I do not consider it appropriate to make further findings with respect to Cases 1 
and 6. 
C. "Omissions" or "Deficiencies" in the United States' Implementation  
271. The Division turns next to the European Commun ities' challenge against the Panel's exercise 
of judicial economy in relation to its claim that the subsequent reviews fell within the Panel's terms of 
reference as "omissions" or "deficiencies" in the United States' implementation of the recommendations and rulings of the DSB.   
272. Before the Panel, the European Communities argue d that the subsequent reviews identified in 
its panel request fell within the Panel's terms of reference under Article 21.5 of the DSU as 
"omissions" or "deficiencies" in the United Stat es' implementation of the DSB's recommendations and 
rulings.  
273. The Panel did not consider it necessary to address the European Communities' argument 
separately in the context of its jurisdictional analysis .  The Panel reasoned that its analysis of whether 
the subsequent reviews were measures taken to comp ly because they were closely connected with the 
original measures at issue and the DSB's recommend ations and rulings was c onducted "in view of the 
fact that our authority extends not only to those acts which the United States has taken to comply, 
including allegedly the subsequent reviews adopted af ter the expiry of the reasonable period of time, 
but also to those acts which the United States allegedly should have taken to bring itself into 
compliance ."
350  Consequently, for the Panel, "any 'omiss ion' or 'deficiency' of the United States in the 
form of a subsequent review  would be captured in the [close nexus] analysis".351  The Panel did not 
consider that the European Communities' characte rization of its claims as challenging omissions and 
deficiencies in the United States' implementation could "broaden the scope of this proceeding to 
measures  which we otherwise determine not to fall w ithin our terms of reference" and emphasized 
that it was addressing, at that stage, the "procedural  question of whether the subsequent reviews fall 
within the scope of this proceeding as measures that should be regarded as 'measures taken to 
                                                      
350Panel Report, para. 8.86. (original emphasis)  
351Panel Report, para. 8.86. (original emphasis)    WT/DS294/AB/RW 
 Page 111 
 
 
  comply', and not the substantive question of whether the United States has omitted to comply" with 
the DSB's recommendations and rulings.352   
274. On appeal, the European Communities claims that  this finding is in error for two reasons.  
First, the European Communities argues th at the Panel "disregarded its mandate"353 and acted 
inconsistently with Article 11 of the DSU when it ignored the conditional order of the European 
Communities' claims.  The European Communities e xplains that its "close nexus" claim was made 
in the alternative , subject to the condition that the Panel fi rst rejected its "main" claims that the 
subsequent reviews fell within the Panel's terms of  reference either as "amendments" to the original 
measures, or as "omissions" in the United States' implementation of the recommendations and rulings 
of the DSB.  Therefore, the Panel erred in findi ng that it was not necessary to address the European 
Communities' main "omissions" claim in the light of  findings made with respect to its alternative 
"close nexus" claim.354 
275. The United States responds that the European Communities is incorrect in arguing that the 
Panel was bound by the "sequenci ng order of the legal claims"355 raised by the European 
Communities.  The United States submits that, in any event, the Panel did address the European 
Communities' claims in the order proposed.  The United States further suggests that the European 
Communities failed to substantiate its claim that the Panel failed to comply with its mandate under 
Article 11 of the DSU in structuring its analysis. 
276. The European Communities' first allegation of e rror raises the question of whether panels are 
"bound" by the "sequencing order" of legal claims  made by the complaining party, whenever that 
order does not pose particular interpretative problems.356  In support of its allegation in this respect, 
the European Communities points us to the report of the panel in EC – Sardines , where the panel held 
that "it would not constitute an error of law" to observe the order of legal claims set in Peru's 
submission because "such sequential examination woul d not affect the interpretation of the other 
provisions."357  The European Communities also refers us to the Appellate Body's finding in US – 
Shrimp , where the Appellate Body found that the seque nce of the panel's analysis under Article XX of 
the GATT 1994 (first chapeau then subparagraphs ) posed particular interpretative problems.358 
                                                      
352Panel Report, para. 8.86. (original emphasis)  
353European Communities' appellant's submission, para. 82.  
354European Communities' appellant's submission, para. 79.   
355United States' appellee's submission, para. 36 (quoting European Communities' appellant's 
submission, para. 79).   
356European Communities' appellant's submission, para. 79.  
357Panel Report, EC – Sardines , para. 7.18.  
358Appellate Body Report, US – Shrimp , para. 120.  WT/DS294/AB/RW 
Page 112  
 
  277. In our view, these decisions do not support the proposition that panels are "bound" by the 
order of claims made by the complaining party.  To the contrary, they confirm that, although panels 
may decide to follow the particular order of legal claims suggested by the complaining party, they 
may also follow a different order of analysis so as to apply the correct interpretation of the WTO law 
at issue.  Indeed, we consider that, in fulfilli ng its duties under Article 11 of the DSU, a panel may 
depart from the sequential order suggested by the co mplaining party, in particular, when this is 
required by the correct interpretation or appli cation of the legal provisions at issue.   
278. In the US – Continued Suspension / Canada – Continued Suspension  disputes, the European 
Communities similarly argued that the panel erroneous ly disregarded the conditional order of its legal 
claims when it examined the Eur opean Communities' alternative clai m that the measure at issue was 
consistent  with the Agreement on the Application of Sanitary and Phytosanitary Measures  (the " SPS 
Agreement "), having found earlier, in response to one of the European Communities' main claims, that 
the United States and Canada had acted inconsistently  with Articles 23.1 and 23.2(a) of the DSU.  The 
Appellate Body rejected this argument, and reasone d that the fact that the European Communities 
described its claims that the measures at issue achieved substantive compliance with the relevant 
provisions of the SPS Agreement as "alternative claims" did not preclude the panel from evaluating 
those claims, because this was required by the co rrect interpretation of Article 22.8 of the DSU.
359  
279. Accordingly, we find that the Panel did not exceed its mandate, and act inconsistently with 
Article 11 of the DSU, in addressing the European  Communities' alternative "close nexus" claim 
without first addressing the European Communities' "omissions" claim. 
280. Secondly, the European Communities charges the Panel with exercising false judicial 
economy, because the only "omission" addressed in th e Panel's "close nexus" analysis was the United 
States' failure to stop collecting cash deposits calcu lated with zeroing after the end of the reasonable 
period of time.  The European Communities unde rscores that the scope of the "omissions" it 
challenged in relation to the subsequent reviews included:  (i) the United States' failure to stop 
collecting duties calculated with zeroing on entries no t finally liquidated by the end of the reasonable 
period of time;  and (ii) the United States' failure to recalculate, without zeroing, margins of dumping 
used in sunset reviews issued in connection with any of the original measures at issue.360   
                                                      
359Appellate Body Reports, US – Continued Suspension and Canada – Continued Suspension , 
para. 325.   
360European Communities' appellant's submission, paras. 74 and 80.  See also Panel Report, 
footnote 629 to para. 8.85.    WT/DS294/AB/RW 
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  281. The United States responds that the Panel did not err in exercising judicial economy in 
relation to the European Communities' claims that th e subsequent reviews fell within the Panel's terms 
of reference as "omissions" or "deficiencies"  in the United States' implementation of the 
recommendations and rulings of the DSB.  The United States submits that the Panel's exercise of judicial economy in this respect did not affect the Pa nel's ability to consider in its substantive analysis 
all the alleged "omissions" or "deficiencies" cha llenged by the European Communities.  The United 
States argues further that the European Communities fa iled to substantiate its claims that the Panel 
failed to comply with its functions as required by  Article 11 of the DSU in reaching its findings.
361 
282. At the outset, we observe that the Panel was correct in noting that its authority under 
Article 21.5 of the DSU "extends not only to those acts which the United States has taken to comply 
... but also to those acts which the United States allegedly should have taken to bring itself into 
compliance ."362  In resolving a disagreement as to the "e xistence" or "consistency with the covered 
agreements" of measures taken to comply within the meaning of Article 21.5 of the DSU, panels 
acting under that provision are re quired to determine whether measure s taken to comply exist, and 
whether such measures achieve full compliance with  the recommendations and rulings of the DSB.  
As the Appellate Body noted in US – Softwood Lumber IV (Article 21.5 – Canada) , "[t]he word 
'existence' suggests that measures falling within the scope of Ar ticle 21.5 encompass not only positive 
acts, but also  omissions ."363  Therefore, "an Article 21.5 panel may be called upon to examine either 
the 'existence' of 'measures taken to comply' w ith DSB recommendations and rulings, or, when such 
measures exist, the 'consistency' of those measures with the covered agreements, or a combination of 
both, in situations where the measures taken to co mply, through omissions or otherwise, may achieve 
only partial compliance."364 
283. Consistently with this reading of Article 21.5 of the DSU, the Panel did not disregard, in 
ascertaining whether the United States has failed to comply with the DSB's recommendations and 
rulings, the particular "omissions" challenged by th e European Communities, in the form of cash 
deposits, final assessment and liqui dation of duties that remained unliquidated by the end of the 
reasonable period of time365, and the United States' failure to recalculate margins of dumping upon 
which sunset reviews rely.366  Rather, the Panel correctly noted that its jurisdictional findings "[did] 
                                                      
361United States' appellee's submission, paras. 35 and 37. 
362Panel Report, para. 8.86. (original emphasis)  
363Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67. (original 
emphasis) 
364Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 60. 
365See Panel Report, para. 8.164-8.222.   
366See Panel Report, para. 8.130-8.141.   WT/DS294/AB/RW 
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  not mean that we may not take into consideration omissions to implement on the part of the United 
States as part of our substantive analysis of the EC claims".
367  
284. Having said that, we have reservations about th e Panel's statement that any omissions or 
deficiencies of the United States in the form of a subsequent review would be "captured" in the 
Panel's "close nexus" analysis.368  As the Panel's substantive anal ysis demonstrated, the Panel only 
examined the specific "omissions" challenged by the European Communities with respect to the 
specific subsequent reviews that the Panel later found to have fallen within its terms of reference, in 
the light of their "close nexus" with the recommenda tions and rulings of the DSB.  Indeed, the Panel 
examined only whether the United States had failed to implement the recommendations and rulings of 
the DSB by imposing cash deposits, assessing and li quidating duties, and by failing to recalculate 
margins of dumping in the context of sunset re views, for the subsequent reviews which it later 
determined to have a sufficiently close nexus w ith the recommendations and rulings of the DSB.  
This, in our view, could have led to a partial resolu tion of the dispute, insofar as it could have resulted 
in the Panel disregarding particular "omissions" in the United States' implementation with respect to 
subsequent reviews that the Panel later determined  not to fall within its terms of reference.  
285. However, to the extent that the Panel's error in this regard would stem from its erroneous 
application of the "close nexus" analysis to the subsequent reviews challenged by the European 
Communities, which we have reversed above, we do not consider it necessary to make additional 
findings in relation to the European Communities' clai m that the Panel erred in declining to rule on its 
claim that the subsequent reviews fell within the Panel's terms of reference as "omissions" or 
"deficiencies" in the United States' implementation of the recommendations and rulings of the DSB.  
                                                      
367Panel Report, para. 8.127. (original emphasis)  The Panel also noted that: 
... alleged omissions in the form of the continued imposition of cash deposit 
requirements at rates calculated with zer oing, after the end of the reasonable 
period of time, should be considered in order to make findings with respect to whether the United States has complied with the recommendations and 
rulings of the DSB.   To conclude otherwise would allow the United States to 
circumvent its obligation to implement those recommendations and rulings by virtue of the fact that the cash depos it rate originally at issue and found to 
be inconsistent with US obligations  is replaced by a new, potentially 
similarly-inconsistent, rate calculated in another review. In this sense, and 
insofar as they continued to apply, we make no distinction between cash 
deposits requirements established in subsequent administrative reviews 
decided before and after the adoption of the DSB's recommendations and rulings. 
368Panel Report, para. 8.86.   WT/DS294/AB/RW 
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  VII. The Scope of the United States' Compliance Obligations  
286. We now turn to the question of the scope of th e United States' obligation to comply with DSB 
recommendations and rulings and recall that, in th is case, the recommendations and rulings of the 
DSB concern the use by the United States in its re trospective anti-dumping system of "model zeroing" 
in original investigations and "simple zeroing"  in the assessment and collection of anti-dumping 
duties.   
287. In the recommendations and rulings of the DSB, the use of zeroing in original investigations, 
when aggregating results of weighted average-to-w eighted average comparisons of export price and 
normal value, was found to be inconsistent  "as such" with Article 2.4.2 of the Anti-Dumping 
Agreement .369  This methodology was also found to be WTO-inconsistent "as applied" in Cases 1 
through 15.370  In addition, the DSB adopted findings that the United States acted inconsistently with 
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when it used zeroing 
in weighted average-to-transaction comparisons to  assess duties and set cash deposit rates in Cases 16 
through 31.  These "as applied" findings were made in the context of the 16 administrative reviews at 
issue in the original proceedings and related to th e operation of the retrospective system by which the 
United States assesses anti-dumping duties and sets cash deposit rates.371 
288. In this section, we address the United Stat es' compliance obligations resulting from these 
recommendations and rulings of the DSB and the app eal by the European Communities, as well as the 
United States' position, with respect to the Pa nel's findings on these issues.  The European 
Communities does not disagree with the Panel's in terpretation that any administrative review 
                                                      
369See notably, Original Panel Report, para. 8.1(c), which reads: 
The United States' zeroing methodology, as it relates to original 
investigations, is a norm which, as such, is inconsistent with Article 2.4.2 of the [Anti-Dumping ] Agreement . (footnote omitted) 
370See notably, Original Panel Report, para. 8.1(a), which reads: 
The United States acted inconsisten tly with Article 2.4.2 of the [ Anti-
Dumping ] Agreement  when in the anti-dumping investigations listed in 
Exhibits EC-1 to EC-15 USDOC did not include in the numerator used to 
calculate weighted average dumping margins any amounts by which average export prices in individual averaging groups exceeded the average 
normal value for such groups. (footnote omitted) 
371See notably, Appellate Body Report, US – Zeroing (EC) , para. 135, which reads in relevant part: 
[W]e reverse  the Panel's finding, in paragraphs 7.288 and 8.1(f) of the Panel 
Report, that the United States did not act inconsistently with Article 9.3 of 
the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 in the 
administrative reviews at issue, and find, instead, that the United States 
acted inconsistently with those provisions. WT/DS294/AB/RW 
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  determination issued after the end of the r easonable period of time must not reflect zeroing.
372  
However, the European Communities appeals the Pa nel's findings that the United States' compliance 
obligations do not extend to assessment instructi ons and final liquidation of anti-dumping duties in 
relation to administrative reviews made prior to the e nd of the reasonable period of time.  In the next 
section, we discuss the European Co mmunities' and the United States' a ppeals of certain aspects of the 
Panel's findings regarding Cases 1 and 6 and the Eu ropean Communities' appeal of a finding by the 
Panel regarding Case 31, as well as  the Panel's decision not to make specific findings with respect to 
11 other Cases.373  Before turning to the general issues regarding the United States' compliance 
obligations, we observe that the European Communities, in its app eal, and the United States, in its 
other appeal, have not appealed the findings the Pane l made in relation to the application after the end 
of the reasonable period of time of cash deposits calculated with zeroing.374   
A. The Panel's Findings 
289. The Panel began its analysis by observing that the disagreement between the parties 
concerned the prospective implementation of DSB recommendations and rulings in a retrospective 
duty assessment system in which duties are calculate d, assessed, and collected after imports have 
entered.375  The Panel noted that the parties disagreed on the nature of the relevant event to which the 
Member's obligation to implement DS B recommendations and rulings attaches.376  
290. The Panel recalled that the Anti-Dumping Agreement disciplines measures adopted by a 
Member or actions taken by such Member, and that, in the case of a dispute under the Anti-Dumping 
Agreement , those actions and measures necessarily concern the imposition of anti-dumping measures 
against imports from another Member.  For the Pane l, the relevant date for implementation of DSB 
recommendations and rulings concerning anti-dumping duties by a Member operating a retrospective 
duty assessment system, such as the one of the United St ates, is the date of the determination of final 
liability for anti-dumping duties, that is,  the date of the final determination in the administrative 
review proceeding (the date of the issuance of the final results of the administrative review), or the 
date on which the right to request such a review ha s lapsed. Accordingly, the Panel considered that 
any definitive duty determination made after the end of the reasonable period of time must be 
                                                      
372The Panel clarified that it referred to the date of the final dete rmination in the administrative review 
proceeding, as well as the date on which the right to  request such a review has lapsed. (Panel Report, 
para. 8.174)  
373The relationship between the implementation obligations of the United States and subsequent sunset 
reviews is addressed in section IX of this Report. 
374Panel Report, para. 8.218. 
375Panel Report, para. 8.167. 
376Panel Report, para. 8.165.  WT/DS294/AB/RW 
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  consistent with the provisions of the Anti-Dumping Agreement  and with the recommendations and 
rulings of the DSB.  The Panel maintained that to  conclude otherwise would mean that a Member is 
effectively allowed, after the end of the reasona ble period of time, to determine the amount of 
anti-dumping duties with respect to certain imports  in contravention of the provisions of the Anti-
Dumping Agreement .377  The Panel emphasized that this did not imply the imposition of a 
retrospective remedy;  on the contrary, the oblig ation to cease performing WTO-inconsistent acts as 
of the end of the reasonable of time wa s "eminently prospective in nature".378 
291. According to the Panel, to implement the recommendations and rulings of the DSB, the 
United States was obligated, after 9 April 2007,  to cease using the zeroing methodology in the 
calculation of anti-dumping duties, not only with respect to imports entered after  the end of the 
reasonable period of time, but also in the context of  decisions involving the calculation of margins of 
dumping made after the end of the reasonable peri od of time with respect to imports entered before  
that date.  The Panel added that the fact that the imports concerned pre-date the expiry of the 
reasonable period of time does not excuse the Unite d States from acting inconsistently with the 
provisions of the Anti-Dumping Agreement  after the end of the reasonable period of time.379   
292. The Panel endorsed the view expressed by the panels and the Appellate Body in US – Shrimp 
(Thailand)  and US – Customs Bond Directive  that, in a retrospective duty assessment system, the final 
determination of the amount of anti-dumping duties due is made at the time of the assessment review 
or, where no assessment review is requested, at the time when it is determined that duties will be 
assessed on the basis of the cash deposits collected.380  The Panel explained that, accordingly, where 
the DSB makes recommendations and rulings concer ning the calculation of the margin of dumping, 
the determinations in subsequent assessment reviews decided after  the end of the reasonable period of 
time, and involving the same products from the sa me countries, must be consistent with those 
recommendations and rulings, regardless  of whether the imports in ques tion were made before or after 
the end of the reasonable period of time.381 
293. The Panel also discussed the Eu ropean Communities' contention that any action after the end 
of the reasonable period of time must not be based on zeroing, including actions to collect or liquidate 
duties resulting from administrative reviews conclude d before the end of the reasonable period of 
                                                      
377Panel Report, para. 8.174. 
378Panel Report, para. 8.175. 
379Panel Report, para. 8.175. 
380Panel Report, para. 8.178 (referring to Appellate Body Report, US – Shrimp (Thailand) / US – 
Customs Bond Directive , para. 222). 
381Panel Report, para. 8.180. WT/DS294/AB/RW 
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  time
382.  The Panel rejected this contention and reiterate d that the date that is relevant for the United 
States' implementation of the recommendations and ruli ngs of the DSB is that of the determination of 
final duty liability in the administrative review procee ding (either the date of the issuance of the final 
results of the administrative review or the date  on which the right to request such a review has 
lapsed).383  For the Panel, the obligation to implem ent should not, once the determination of the 
amount of anti-dumping liability has been made, de pend on when the actual collection of the duty 
takes place.  The Panel observed that the issu e raised by the European Communities concerns 
essentially delays in the actual collection of anti-dum ping duties that are the consequence of judicial 
proceedings initiated by private parties and ch allenging the final duty liability determination.384  In 
support of its position, the Panel e xplained that the European Commun ities' claims in the original 
proceedings, as well as the findings of the original  panel and the Appellate Body, concerned the 
calculation of margins of dumping, and that under the United States' system, the final amount of 
duties to be paid is determined on the basis of margins of dumping calculated at the time of the 
assessment review.385  For the Panel, it is the administrative review determination, not the actual 
liquidation, that is the final ac tion undertaken by the United States ' authorities to determine the duty 
liability applicable to particular imports.386  Furthermore, the Panel reasoned that, where the 
liquidation after the end of the reasonable period of ti me relates to an administrative review concluded 
before that date, the European Communities' approach  would lead to the "undesirable result" that the 
United States' authorities would have to "revisit"  the final assessment of duties performed in the 
administrative review when the actual liquidation of  entries has been suspended as a result of legal 
challenges that are ultimately unsuccessfu l or unrelated to the issue of zeroing.387 
294. The Panel addressed the European Communities' c ontentions that the United States failed to 
comply with the DSB's recommendations and rulings in the original proceedings because it did not 
fully revoke the original investig ation orders contested in the original proceedings and because the 
administrative reviews at issue in the original pr oceedings have not been superseded.  The Panel 
considered that these contentions were subsumed in , or attached to, other claims analyzed by the 
                                                      
382These include USDOC assessment instructions and Customs liquidation instructions.  Assessment 
instructions can be delayed by challenges before United St ates courts and liquidation instructions can be delayed 
by protests to Customs. (See Panel Report, para. 8.189 and footnote 724 to para. 8.149)  According to Annex A 
to the European Communities' response to Panel Question 5,  there were unliquidated entr ies as of the end of the 
reasonable period of time in seven Cases out of 31, namely, Cases 1, 5, 22, 28, 29, 30, and 31. 
383Panel Report, para. 8.191. 
384Panel Report, paras. 8.191 and 8.192. 
385Panel Report, para. 8.191. 
386Panel Report, para. 8.192. 
387Panel Report, paras. 8.191-8.193.  WT/DS294/AB/RW 
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  Panel and on which it made findings .  Accordingly, the Panel considered it was unnecessary to make 
specific findings with respect to them.388 
B. Claims and Arguments on Appeal 
295. On appeal, the European Communities claims that the Panel erred in rejecting its claims that 
certain actions or omissions by the United States based on zeroing after the expiry of the reasonable 
period of time were inconsistent with the United St ates' obligation to comply with the rulings and 
recommendations of the DSB, and w ith various provisions of the Anti-Dumping Agreement  and the 
DSU, and Article VI of the GATT 1994.389  For the European Communities,  a failure to comply with 
the recommendations and rulings of the DSB by the end of the reasonable peri od of time can be found 
with respect to any action taken or measure issued  by the responding Member after the expiry of that 
period of time, including the determination of fina l duty liability in an asse ssment review, assessment 
instructions issued by the USDOC to Customs, liq uidation instructions issued by Customs to local 
customs authorities ("port authorities") to liquidate th e import entries at the rate established by the 
USDOC, and the collection of duties or the actual li quidation of entries.  The European Communities 
submits that several interpretative considerations in the Anti-Dumping Agreement  and the DSU 
provide support for the principle that immediate compliance by the end of the reasonable period of time precludes all actions or omissions based on zer oing after the end of the reasonable period of 
time.
390   
296. In response, the United States argues that an anti-dumping duty is a border measure, and that, 
in disputes involving border measures, compliance is  achieved when the measure is withdrawn or 
rendered WTO-consistent for goods entere d after the reasonable period of time.391  The United States 
contends that, by withdrawing the border measures or applying new WTO-cons istent border measures 
to entries occurring after the end of the reasonabl e period of time subject to the 31 measures covered 
by the recommendations and rulings of the DSB,  it brought itself into compliance with those 
recommendations and rulings.392  Accordingly, the United States  rejects the European Communities' 
view that the recommendations and rulings of the DSB encompass the liquidation after the end of the 
reasonable period of time of entries that were made before or during the reas onable period of time, if 
for any reason those entries remained unliquidate d at the end of the reasonable period of time.393  The 
                                                      
388Panel Report, paras. 8.219-8.222. 
389European Communities' appellant's submission, paras. 5 and 121. 
390European Communities' appellant's submission, para. 168.  The arguments advanced by the 
European Communities in support of its appeal are summarized in Section II.A.3 of this Report. 
391United States' appellee's submission, paras. 62 and 72. 
392United States' appellee's submission, para. 62. 
393United States' appellee's submission, para. 63. WT/DS294/AB/RW 
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  United States considers that, to ensure a "level  playing field" among Members with retrospective 
systems, prospective ad valorem  systems, and prospective normal value systems, prospective 
implementation requires that duties levied on imports occurring on or after the date of implementation 
be consistent with the recomme ndations and rulings of the DSB.
394   
C. Analysis 
297. We begin our analysis by recalling provisions of the DSU that are of relevance to the issues 
we have to address on appeal.  Under the DSU, pane l and Appellate Body reports adopted by the DSB 
have to be unconditio nally accepted by the parties to the dispute.395  Article 19.1 of the DSU requires 
the Member concerned to bring its measure found to  be inconsistent with a covered agreement into 
conformity with that agreement.  Article 3.7 of the DSU provides that "the first objective of the dispute settlement system is usually to secure the withdrawal" of the inconsistent measure.  The 
Appellate Body has recognized that the implemen ting Member may bring an inconsistent measure 
into compliance also "by modifying or  replacing it with a revised measure".
396  Article 21.1 of the 
DSU provides that prompt compliance with the r ecommendations and rulings of the DSB is essential 
to the effective resolution of disputes.  Article 21. 3 implies that compliance should be immediate, but 
also provides that the implementing Member may obtain in certain circumstances a reasonable period of time in which to comply:   
If it is impracticable to comply immediately with the [DSB] 
recommendations and rulings, the Me mber concerned shall have a 
reasonable period of time in which to do so . (emphasis added) 
The implementing Member may obtain a reasonable pe riod of time in which to comply by:  (i) DSB 
approval;  (ii) agreement among the parties;  or ( iii) arbitration under Article 21.3 of the DSU.   
298. The parties agree that the fact that Article 21.3 may provide a Member with a reasonable 
period of time to bring itself into compliance w ith DSB recommendations and rulings does not mean 
that the Member is not subject to the underlying WTO obligation during that period.
397  They also 
                                                      
394United States' appellee's submission, para. 98.  Th e arguments put forward by  the United States in 
support of its position are summarized  in Section II.B.3 of this Report. 
395Article 17.14 of the DSU. 
396Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
footnote 367 to para. 173. 
397European Communities' appellant's submission, paras. 134 and 143;  United States' appellee's 
submission, para. 68.  WT/DS294/AB/RW 
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  agree that Article 28 of the Vienna Convention 398 is inapplicable to the present dispute because DSB 
recommendations and rulings do not create new WTO obligations.399  The European Communities 
states that DSB recommendations and rulings are not treaty-making by WTO Members but, rather, 
constitute judicial activity involving the clarification,  interpretation, and appli cation of provisions of 
the covered agreements.400  The United States notes that recommendations and rulings by the DSB do 
not create an obligation to comply with the covered agreements, as that obligati on already exists in the 
covered agreements themselves;  rather, it is the right to a remedy against a breach of the covered 
agreements (such as compensation or  suspension of concessions or ot her obligations) that arises only 
after a Member fails to comply with the DSB's recommendations and rulings  within the reasonable 
period of time.401  According to Article 22.1 of the DSU, compensation and suspension of concessions 
are temporary measures available in the event that the DSB's recommendations and rulings are not 
implemented within the reasonable period of time.  Thus, as the United States puts it, a Member is not 
"permitted"402 to breach the covered agreements during the reasonable period of time;  instead, that 
Member is merely not subject to the remedies contemplated in Article 22 of the DSU for such breaches.  Like the parties, we therefore disagree with the analogy drawn by the Panel between, on the 
one hand, Article 28 of the Vienna Convention  on the "non-retroactivity of treaties" and, on the other 
hand, "non-retroactive" or "non-retrospective" re medies under the DSU, in its description of what 
prospective compliance with DS B recommendations and rulings re quires the implementing Member 
to do.
403 
299. Thus, the reasonable period of time allows a Member sufficient time to bring itself into 
conformity with its WTO obligations without being required to provide compensation or being subject 
to the suspension of concessions or other obligations.404  Given that the responding WTO Member is 
required to bring the measure found to be inconsiste nt into conformity with the relevant covered 
agreement within the reasonable period of time (w here immediate compliance is impracticable), a 
failure to comply fully with, or an omission in  the implementation of, the DSB's recommendations 
                                                      
398Article 28 of the Vienna Convention  reads: 
Non-retroactivity of treaties 
Unless a different intention appears from the treaty or is otherwise 
established, its provisions do not bind a party in relation to any act or fact 
which took place or any situation which ceased to exist before the date of 
the entry into force of the treaty with respect to that party. 
399United States' appellee's submission, paras. 67-69;  European Communities' appellant's submission, 
paras. 134, 135, and 143. 
400European Communities' appellant's submission, paras. 134 and 135. 
401United States' appellee's submission, para. 69. 
402United States' appellee's submission, para. 71.  
403Panel Report, paras. 8.168 and 8.169.  
404United States' appellee's submission, para. 68.  WT/DS294/AB/RW 
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  and rulings cannot be found before th e end of the reasonable period of time.
405  When a reasonable 
period of time for implementation has been determ ined, Article 21.3 of the DSU implies that the 
obligation to comply with the recommendations and ru lings of the DSB has to be fulfilled by the end 
of the reasonable period of time at the latest, and that the WTO-inconsistency has to cease by the end 
of the reasonable period of time with prospective effect.406  Thus, in this dispute, with respect to the 
"as applied" findings of the panel and/or the Appe llate Body in the original proceedings, the United 
States was required to ensure that the use of the " zeroing" methodology in the 31 Cases at issue in the 
original proceedings ceased by the en d of the reasonable period of time. 
300. Whereas there is no debate between the par ties that a failure to comply with the 
recommendations and rulings of the DSB cannot be found before the end of the reasonable period of 
time for implementation (which is, in this dispute, 9 April 2007), there is a plurality of views on the 
type of events that may trigger such a failure  to comply in the United States' retrospective 
anti-dumping system.  The United States considers that  the critical event is the importation ("entry") 
of products subject to the duty, and that no failure to comply can be found in relation to imports made 
before the expiry of the reasonable period of time.   For its part, the European Communities maintains 
that a failure to implement fully DSB recommendations  and rulings can be found with respect to any 
inconsistent action taken by the r esponding Member after the expiry of  the reasonable period of time.  
As we have explained above, the Panel developed a different approach.  On the one hand, the Panel 
was of the view that any definitive duty determina tion made after the end of the reasonable period of 
time must be consistent with the provisions of the Anti-Dumping Agreement  and with the 
recommendations and rulings of the DSB.  On the ot her hand, the Panel considered that a failure to 
comply could not be found with respect to actions occurring after the expiry of the reasonable period of time, such as assessment instructions by the USDOC to Customs, liquidation instructions by 
Customs to local port authorities, or actions to coll ect or liquidate duties, to the extent that these 
actions resulted from administrative reviews concluded before  the end of the reasonable period of 
time.  The Panel also stated that the United St ates was required to implement the recommendations 
and rulings of the DSB with respect to cash deposits  applied after the end of the reasonable period of 
time even though the rates of these cash deposits we re derived from margins of dumping calculated in 
an administrative review or an original in vestigation that occurred before that date. 
                                                     
 
405We add that, ordinarily, the complaining WTO Member will avail itself of a remedy in the form of 
compensation or suspension of concessions or other obligations only after the expiry of the reasonable period of time, in the event that compliance measures have been found to be WTO-inconsistent, or omissions in 
compliance with the DSB's re commendations or rulings have been establ ished in Article 21.5 proceedings.   
406As the Appellate Body indicated in US – Upland Cotton (Article 21.5 – Brazil) , the 
recommendations and rulings of the DSB create implementation obligations with prospective effect. (Appellate 
Body Report, US – Upland Cotton (Article 21.5 – Brazil) , footnote 494 to para. 243)  WT/DS294/AB/RW 
 Page 123 
 
 
  301. The task of a panel under Article 21.5 of the DSU is to examine the questions of the existence 
or consistency with the covered agreements of measures taken to comply with the recommendations 
and rulings of the DSB.  This examination will co ver the instruments or actions that the responding 
Member has identified as measures "taken to comply".   However, other closely connected measures or 
omissions in compliance by the responding Member fall within the scope of compliance proceedings 
and will be examined by the compliance panel in order to determine whether such actions or 
omissions undermine or negate the compliance achieve d by the declared measures "taken to comply", 
or establish inexistent or insufficient compliance. 
302. Thus, it appears to us that the starting point of an analysis of whether the responding Member 
has fulfilled its implementation obl igations should be the recommendations and rulings of the DSB, 
with which that Member must comply.  As not ed above, these recommendations and rulings of the 
DSB concerned the use of zeroing "as such" and "as applied" in 15 original investigations (Cases 1 
through 15) and "as applied" in 16 administrative re views (Cases 16 through 31).  In order to comply 
with the DSB's recommendations and rulings co ncerning the use of zeroing in the original 
investigations (Cases 1 through 15), the United St ates took the following actions.  On 1 March 2007, 
the USDOC initiated proceedings pursuant to Se ction 129 of the URAA covering 12 original 
investigations at issue in the original proceedi ngs.  The remaining three anti-dumping duty orders had 
been previously revoked (Cases 10, 12, and 13).  In the Section 129 determinations, the USDOC 
recalculated, without zeroing, the relevant margin s of dumping for each exporter or foreign producer 
investigated.  The USDOC issued 11 of the Sec tion 129 determinations on 9 April 2007.  These 
11 Section 129 determinations became effective on 23 April 2007.407  The results in the remaining 
Section 129 determination were issued on 20 August 2007 and became effective on 31 August 
                                                      
407See Panel Exhibit EC-2 (preliminary results of Section 129 determinations), USDOC, Antidumping 
Proceedings: Calculation of the Weight ed-Average Dumping Margins in Anti dumping Investigations; Change in 
Effective Date of Final Modification, United States Federal Register , Vol. 72, No. 17 (26 January 2007) 3783;  
Panel Exhibit EC-5 (notice of final results of Sectio n 129 determinations), USDOC, Implementation of the 
Findings of the WTO Panel in US-Zeroing (EC): Notice of Determinations Under Section 129 of the Uruguay 
Round Agreements Act and Revocations and Partial Revocations of Certain Antidumping Duty Orders, United 
States Federal Register , Vol. 72, No. 86 (4 May 2007) 25261;  Panel Exhibit EC-7, USDOC Issues and 
Decision Memorandum, Final Results for the Section 129 Determinations: Certain Hot-Rolled Carbon Steel 
from the Netherlands, Stainless Steel Bar from France, Stainless Steel Bar from Ge rmany, Stainless Steel Bar 
from Italy, Stainless Steel Bar from the United Kingdom, Stainle ss Steel Wire Rod from Sweden, Stainless Steel 
Wire Rod from Spain, Stainless Steel Wire Rod from Italy, Certain Stainle ss Steel Plate in Coils from Belgium, 
Stainless Steel Sheet and Strip in Coils from Italy, Ce rtain Cut-to-Length Carbon-Q uality Steel Plate Products 
from Italy, Certain Pasta from Italy (9 April 2007);  and United States' first written submission to the Panel, 
para. 19. WT/DS294/AB/RW 
Page 124  
 
  2007.
408  As a result of these recalculations:  two orig inal anti-dumping duty orders were revoked (the 
recalculation resulting in zero or de minimis  margins for all exporters or producers concerned); 
10 original anti-dumping duty orders were partiall y revoked (with respect to certain companies for 
which the USDOC found zero or de minimis  margins in the Section 129 determination), whereas for 
other companies, duties were either reduced or in creased as a result of the recalculation.  The 
recalculated margins of dumping established in the Section 129 determinations  applied (as the new 
cash deposit rate) with  respect to unliquidated entries (imports) made on or after 23 April 2007 
(31 August 2007 with respect to Case 11). 
303. We note that the Section 129 determinations took effect on 23 April/31 August 2007, that is, 
after the reasonable period of time expired on 9 April 2007.  The European Communities has brought 
a distinct claim with respect to this implementa tion delay, which we address in section X of this 
Report.  Leaving this issue aside, we note that, in response to the WTO-inconsistencies that were 
covered by the recommendations and rulings of the DS B relating to the 15 original investigations, the 
United States, in 12 Cases, recalculated the marg ins of dumping without zeroing in the Section 129 
determinations, with the conseque nt revocation—full or partial—of the anti-dumping duty orders.  In 
the three remaining Cases, the anti-dumping duty or ders were revoked for reasons unrelated to the 
zeroing issue.409  The recalculations of margins of dumping without zeroing under the Section 129 
determinations, the full or partia l revocation of orders, as well as the establishment for the concerned 
exporters of new cash deposit rates set without zeroing are not WTO-inconsistent.410  On the face of it, 
by issuing these Section 129 determinations, the Un ited States has responded to the recommendations 
and rulings of the DSB relating to Cases 1 through 15.  We recall, however, that, as the Appellate 
Body noted in US – Softwood Lumber IV (Article 21.5 – Canada)411, the examination under 
Article 21.5 of the DSU extends beyond the analysis  of the consistency of the declared measures 
taken to comply, because the compliance panel may have to determine whether other closely 
connected measures taken by the responding WT O Member undermine or negate the compliance 
achieved by the declared measures taken to comply.  We observe, in this respect, that the Section 129 
                                                      
408See Panel Exhibit EC-6 (notice of the Section 129 determinations), USDOC, Implementation of the 
Findings of the WTO Panel in US-Zeroing (EC): Notice of Determination Under Section 129 of the Uruguay Round Agreements Act: Antidumping Duty Order on Stainless Steel Sheet and Strip from Italy, United States 
Federal Register , Vol. 72, No. 186 (26 September 2007) 54640;  and Panel Exhibit EC-8, USDOC Issues and 
Decision Memorandum, Final Results for the Section 129  Determinations: Stainless Steel Sheet and Strip from 
Italy (Italy SSSS) (20 August 2007). 
409In July 2004 for Cases 10 and 12, and in February 2005 for Case 13. 
410We address the European Communities' claims regarding an alleged arithmetical error in Case 11 
and the calculation of certain "all others" rate s in sections XI and XII of this Report. 
411Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , paras. 80-88.  WT/DS294/AB/RW 
 Page 125 
 
 
  determinations do not relate to administrative re views completed after the end of the reasonable 
period of time but covering entries prior to that date. 
304. The DSB also adopted recommendations and rulings  that referred to "as applied" findings by 
the Appellate Body in the original proceedings, according to which the determinations made in 
16 specific administrative reviews, identified by the European Communities as Cases 16 through 31, 
were inconsistent with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 
1994.  We note that these recommendations and rulings  of the DSB concern the use of zeroing in the 
assessment of final duty liability as well as the settin g of cash deposit rates with respect to specific 
products from specific countries that have been subject  to anti-dumping duty orders.  In relation to the 
16 administrative reviews at issue in the original pr oceedings, the United States argued that they have 
been superseded by subsequent administrative review s.  Therefore, the United States considered that 
no further action was required in order to impl ement the DSB's recommendations and rulings in 
relation to those administrative reviews.  We disagree.  Although the "as applied" findings of the Appellate Body were made in relation to 16 ad ministrative reviews identified by the European 
Communities in the original proceedings, this does not mean, in our opinion, that compliance by the 
United States with the recommendations and rulings of  the DSB does not have to be prospective as of 
the end of the reasonable period of time.  Due to its  prospective nature, compliance is not confined by 
the limited duration of the original measures at is sue, especially when a subsequent measure replaces 
or supersedes the measure at i ssue in the original proceedings.
412   
305. Under the DSU, compliance has to be accomp lished at the latest from the end of the 
reasonable period of time with prospective effect .  In the instant case, we do not see how such 
prospective compliance could be achieved and assessed in an Article 21.5 proceeding if such analysis 
were constrained by the limited duration of the 16 administrative reviews at issue in the original 
proceedings, given that, in principle, entries covered by these 16 administrative reviews will have 
been liquidated before the end of the reasonable pe riod of time, and cash deposit rates established in 
those reviews will have been supe rseded by the results of subsequent administrative reviews 
concluded before the expiry of the reasonable period of time. 
                                                      
412We observe that the United States argues that the administrative re views at issue in the original 
proceedings were superseded by subsequent administrative reviews. (See Panel Report, para. 3.1; and also 
para. 5.105, which refers to Panel Exhibit US-17)  As  we understand it, once a definitive anti-dumping duty 
order is imposed, the United States' retrospective asse ssment system contemplates a continuum of successive 
administrative reviews during the lifetime of that order.  If no such review is requested in a particular year, 
entries occurring during that period are liquidated at the cash deposit rate and the margin calculated in a 
previous review will continue to serve as the going-fo rward cash deposit rate until an administrative review is 
requested.  This may continue during the lifetime of the order or longer if a sunset review initiated at the fifth 
anniversary of that order results in a continuation order. WT/DS294/AB/RW 
Page 126  
 
  306. Given the scope of the recommendations and rulings of the DSB, in order to achieve 
compliance, the United States had to cease using zero ing in the assessment of duties with respect to 
Cases 16 through 31 by the end of the reasonable peri od of time.  Having said that, we consider that 
these compliance obligations are not limited to the cessation of zeroing in the calculation of 
assessment rates;  rather, by imp lication, these obligations also ex tend to connected and consequent 
measures that are simply "mechanically" derived from the results of an assessment review and applied 
in the ordinary course of the imposition of anti-dumping duties. 
307. In particular, the United States fails to achieve  compliance if it assessed final duty liability 
and applied cash deposits on the basis of zeroing afte r the end of the reasonable period of time.  Given 
that, in the United States, final duty liability is assessed and cash deposit rates are set in administrative 
reviews
413, administrative review determinations that ar e issued after the end of the reasonable period 
of time must not reflect zeroing.414  The United States would not comply with the recommendations 
and rulings of the DSB if the administrative revi ew determinations issued after the end of the 
reasonable period of time were based on zeroing or, in the event that no administrative review is 
requested, if the duties were assessed, after the end of  the reasonable period of time, on the basis of 
cash deposit rates that were calculated with zeroing.  As the Panel stated, "[t]o conclude otherwise 
would mean that a Member is effectively allowed, after the end of the reasonable period of time, to 
determine the amount of anti-dumping duties with resp ect to certain imports in contravention of the 
provisions of the Anti-Dumping Agreement ."415 
308. A subsequent administrative review determina tion issued after the end of the reasonable 
period of time falls within the scope of the impl ementation obligations of the United States, even 
though, in that review, duty liability has been assessed  for entries that occurred before the end of the 
reasonable period of time.  The United States considers that no failure to comply can be found in relation to such an administrative review determ ination because, under the DSU, implementation does 
not have retroactive reach.  The United States r easons that the anti-dumping duty liability attaches to 
the entry, and arises at the time of importation.  For the United States, the implementation obligations 
would apply retroactively if it were required to assess anti-dumping duty liability in the light of the 
                                                     
 
413As the Appellate Body indicated in US – Shrimp (Thailand)  / US – Customs Bond Directive , in the 
retrospective duty liability assessment system used by the United States, the determination of the final liability for payment of anti-dumping duties is made at the time of the assessment review or, when no administrative 
review is requested, at the time when it is determined that duties will be assessed on the basis of the cash deposit 
rate required upon entry. (See Appellate Body Report, US – Shrimp (Thailand)  / US – Customs Bond Directive , 
footnote 268 to para. 226) 
414The effective date of the administrative review determination is the date of publication of the final 
results of the administrative review in the United States Federal Register , or, where applicable, the date of 
publication of the amended results  of the administrative review.  
415Panel Report, para. 8.174.  WT/DS294/AB/RW 
 Page 127 
 
 
  legal regime in place at the end of the reasonable period of time (which would incorporate the 
prohibition of using zeroing in the assessment of duti es), as opposed to the legal regime in effect at 
the time of importation, when the anti-dumping duty liability arose.   
309. We disagree with the United States.  We observe, first, that an administrative review 
determination issued after the end of the reasonabl e period of time in which duty liability has been 
assessed for entries that occurred before that date also has an impact on entries taking place after the 
end of the reasonable period of time, because this  determination sets going-forward cash deposit rates 
that apply to future entries.  Under the United States' approach, prospective implementation would 
imply that cash deposit rates on entries after the e nd of the reasonable period of time do not reflect 
zeroing.  Moreover, because compliance with the recommendations and rulings of the DSB implies 
cessation of zeroing in the assessment of final duty lia bility, and in the measure s that, in the ordinary 
course of the imposition of anti-dumping duties, deri ve mechanically from the assessment of duties, 
whether the implementation is prospective or retroact ive should not be determined by reference to the 
date when liability arises, but rather by reference to the time when final dumping duty liabilities are 
assessed or when measures that result mechanically fro m the assessment of duties occur.  We consider 
that the obligation to cease using zeroing in the assessment of anti-dumping duty liability at the latest 
as of the end of the reasonable period of ti me "is eminently prospective in nature".416  By contrast, the 
approach based on the date of entry advocated by the United States would allow a WTO Member 
operating a retrospective duty assessment system to resort to a methodology for assessing duty 
liability that has been found WTO-inconsistent be yond the end of the reasonable period of time.  
Thus, the implementing Member would be able to  extend the reasonable period of time and delay 
compliance depending on when it chooses to undertak e final duty assessment.  Such a result would 
deprive of meaning the notion of "reasonable peri od of time" in which a Member shall comply, as 
provided for in Article 21.3 of the DSU, and be contrary to the implementation mechanism of the 
DSU. 
310. We move to the European Communities' claim on appeal that the Panel erred in concluding 
that the implementation obligations of the United States do not extend to the collection (or liquidation) of duties, assessment instructions, or  liquidation instructions issued after the end of 
the reasonable period of time, when such actions result from determinations of final duty liability 
made before that date.
417  As we have explained above, we are of the view that, by implication, 
compliance with the recommendations and rulings of  the DSB with respect to Cases 16 through 31 
implies not only cessation of zeroing in the assessment of duties, but also in consequent measures 
                                                      
416Panel Report, para. 8.175. (footnote omitted) 
417Panel Report, paras. 8.191-8.193 and 8.199-8.201. WT/DS294/AB/RW 
Page 128  
 
  that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically  from the 
assessment of duties.  Accordingly, to the extent that a measure of this kind would be based on 
zeroing, the United States would fail to comply with the recommendations and rulings of the DSB 
regarding Cases 16 through 31 if it were to apply that  measure after the end of the reasonable period 
of time.  
311. In the light of the above considerations, we agree with the Panel that "any definitive duty 
determination made after the end of the reasonabl e period of time must be consistent with the 
provisions of the Anti-Dumping Agreement  and with the DSB's recommendations and rulings."
418  We 
also agree with the Panel's statement that "[t] o implement the DSB's recommendations and rulings, 
the United States was at least oblig ated, after 9 April 2007, to cease using the 'zeroing' methodology 
in the calculation of anti-dumping duties, not only with  respect to imports entered after the end of the 
reasonable period of time, but also in the context of decisions involving the calculation of dumping 
margins made after the end of the reasonable period of time with respect to imports entered before 
that date."419  In other words, in relation to the Cases at issue in the original proceedings, we consider 
that a subsequent administrative review determinati on issued after the end of the reasonable period of 
time in which zeroing is used, or, if no such review is requested, a determination issued after the end 
of the reasonable period of time by which anti- dumping liability is assessed on the basis of cash 
deposit rates calculated with zeroing, would establish a failure to comply with the recommendations 
and rulings of the DSB.  However, we disagree wi th the Panel's view regarding measures that are 
consequent to assessment reviews in the Cases at issue in the original proceedings.  We consider that 
measures that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically  
from the assessment of duties would establish a fa ilure to comply with the recommendations and 
rulings of the DSB to the extent that they are b ased on zeroing and that they are applied after the end 
of the reasonable period of time.  Accordingly, we reverse  the Panel's interpretation, in 
paragraph 8.199 of the Panel Report, that th e United States' obligation to implement the 
recommendations and rulings of the DSB does not ex tend to the actual collection and liquidation of 
duties, and to the issuance of assessment or liqui dation instructions, when these actions result from 
administrative review determinations made before  the end of the reasonable period of time.   
312. We move to the European Communities' app eal concerning the Panel's finding that the 
European Communities has not established that the United States failed to comply with the 
recommendations and rulings of the DSB by liquida ting, after the end of the reasonable period of 
time, duties that were assessed with zeroing pursuan t to administrative review determinations issued 
                                                      
418Panel Report, para. 8.174. 
419Panel Report, para. 8.175.  WT/DS294/AB/RW 
 Page 129 
 
 
  before the end of the reasonable period of time.420  We observe that this fi nding of the Panel is based 
on its position that actions to liquidate entries are outside the scope of the implementation obligations 
of the United States merely because they result from assessments made before the end of the 
reasonable period of time.421  We have explai ned above why we reject this  approach.  Resting upon an 
erroneous reasoning, this finding of the Panel, in pa ragraphs 8.200 and 9.1(b)(iii) of the Panel Report, 
is moot and has no legal effect .   
313. Having said that, we observe that the unliquidated entries as of the end of the reasonable 
period of time to which the European Communities refers422 are derived from administrative reviews 
that are outside the Panel's terms of reference, with the exception of the unliquidated duties assessed 
in the 2004-2005 administrative review in Case 1.423  Accordingly, it is not necessary for us to make 
findings with respect to those unliquidated entries.   
314. We do not express any opinion on the question of whether actions to liquidate duties that are 
based on administrative review determinations issued  before the end of the reasonable period of time, 
and that have been delayed as a result of judicial proceedings, fall within the scope of the implementation obligations of the United States, as we do not need to do so in the context of our 
analysis of this issue in this case.   
VIII.  Specific Cases Covered by the Appeal and the Other Appeal 
315. We move to the claims raised in the Europ ean Communities' appeal and the United States' 
other appeal with respect to subsequent administ rative reviews in specific Cases, as well as cash 
deposits applied or duties liquidated after the end of the reasonable period of time in specific Cases.  
We examine in turn Cases 1, 6, and 31 with resp ect to which the Panel made specific findings.  We 
then discuss the European Communities' appeal concerning Cases 18 through 24 and 27 through 30 
with respect to which the Panel did not make s ubstantive findings, and we address the question of 
whether we can complete the analysis.   
                                                     
 
420Panel Report, paras. 8.200 and 9.1(b)(iii). 
421Panel Report, para. 8.191. 
422European Communities' response to Panel Question 5, Annex A.  According to the Annex, there 
were unliquidated entries as of the end of the reasonable period of time in seven Cases out of 31, namely, Cases 1, 5, 22, 28, 29, 30, and 31. 
423The appeal and the other appeal relating to Case 1 are discussed in the next section of this Report.  In 
any event, we observe that, in Case 1, the 2004-2005 administrative review was concluded after the expiry of 
the reasonable period of time.  In our view, the analysis of whether the United States has complied or not with 
the recommendations and rulings of the DSB should fo cus on the results of the 2004-2005 administrative 
review.  For purposes of proceedings under Article 21.5 of the DSU, we do  not see what a separate review of 
unliquidated entries relating to the 2004-2005 administrative  review would add to the analysis of the results of 
that review. WT/DS294/AB/RW 
Page 130  
 
  A. Case 1: Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands 
316. Case 1 involved the use of zeroing by the USDOC when aggregating results of weighted 
average-to-weighted average comparisons of nor mal value and export prices in the original 
investigation of certain hot-rolled carbon steel flat products from the Netherlands.
424  In the original 
proceedings with respect to Case 1, the original panel and the Appellate Body found that zeroing, 
"as applied" in this original investigation,  was inconsistent with Article 2.4.2 of the Anti-Dumping 
Agreement .425  The original proceedings did not involve s ubsequent administrative reviews relating to 
certain hot-rolled carbon steel flat products from the Netherlands where zeroing was used in weighted 
average-to-transaction comparisons of normal value and export prices. 
317. Before the Panel, the European Communities ma de two claims regarding Case 1.  First, it 
challenged the determination made in the 2004-2005 administrative review, as well as the consequent 
instructions to Customs.  In this administrative review, zeroing was used.426  The final results of the 
2004-2005 administrative review, as well as assessment instructions, were issued on 22 June 2007.  
The second claim of the European Communities c oncerned the administrative review covering 
imports from 1 November 2005 to 31 October 2006.  This administrative review was rescinded on 
30 March 2007.  As a consequence, assessment in structions were issued on 16 April 2007.  On 
23 April 2007, Customs instructed the ports of entry to liquidate the relevant entries.427 
318. In the Section 129 determination with resp ect to Case 1, the United States recalculated 
without zeroing the margin of dumping on the b asis of weighted average-to-weighted average 
comparisons.  As a result of the recalculation, no dumping was found and the original anti-dumping 
duty order was revoked.  Issued on 9 April 2007, the Section 129 determination took effect on 
23 April 2007.428 
319. Regarding the first claim, the Panel observed that the results of the 2004-2005 administrative 
review and the consequent assessment instructions were issued after the reasonable period of time for 
implementation had expired on 9 Apr il 2007.  Applying its interpretation of the temporal scope of the 
United States' implementation obligations it had set out previously, the Panel found that the United 
States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the 
GATT 1994 because it used zeroing in its determina tion in the 2004-2005 administrative review and 
                                                      
424USDOC, Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products from the 
Netherlands, United States Federal Register , Vol. 66, No. 230 (29 November 2001) 59565. 
425Original Panel Report, para. 8.1(a). 
426Panel Report, para. 8.208. 
427Panel Report, para. 8.205. 
428Panel Report, para. 3.1.  WT/DS294/AB/RW 
 Page 131 
 
 
  in issuing the consequent assessment instructions.429  The Panel thus concluded that the United States 
had failed to comply with the recommendations and rulings of the DSB in relation to Case 1.430 
320. Moving to the second claim, the Panel consid ered that the determination of final anti-
dumping duty liability with respect to the imports co vered by the assessment instructions challenged 
by the European Communities was made on 30 March 2007, when the 2005-2006 administrative review was rescinded.
431  Applying its interpretation of th e temporal scope of implementation 
obligations, the Panel found that, as the determina tion of final anti-dumping duty liability with the use 
of zeroing was made prior to the end of the reasonable period of time, the assessment instructions issued on 16 April 2007, and the liquidation instructi ons issued on 23 April 2007, did not constitute 
failures on the part of the United States to comp ly with the recommendations and rulings of the 
DSB.
432 
321. Although the European Communities agrees with the findings of the Panel regarding the 
results of the 2004-2005 administrative review in Case 1, it considers that the Panel erred in its approach to the temporal scope of the implementa tion obligations of the United States.  The same 
approach, the European Communities contends, also le d the Panel to the errone ous conclusion that the 
assessment instructions and the liquidation instruc tions issued further to the rescission of the 
2005-2006 administrative review did not  constitute failures on the part of the United States to comply 
with the recommendations and rulings of the DSB.
433 
322. In its other appeal, the United States claims that  the Panel erred in its analysis of Case 1, 
because it ignored the fact that th e DSB's recommendations and rulings in this Case relate to the use 
of zeroing in the weighted average-to-weighted average comparison methodology and do not extend 
to the use of zeroing in the weighted average-to-transaction comparison methodology in administrative reviews.
434  According to the United States, it complied with the recommendations and 
rulings of the DSB in Case 1 relating to the use of  zeroing in the original investigation in which 
                                                      
429According to the Panel, the United States did no t contest that the USDOC had used zeroing in 
calculating the margin of dumping for the sole respondent, Corus Engineering Steels Ltd., and the USDOC Issues and Decision Memorandum confirms that zeroing was used in that Case. (Panel Report, para. 8.208 
(referring to USDOC, Issues and Decision Memorandum  for the 2004-2005 Administrative Review of Certain 
Hot-Rolled Carbon Steel Flat Products from the Netherlands; Final Results of Antidumping Duty 
Administrative Review, published together with Certain Hot-Rolled Carbon Steel Flat Products from the 
Netherlands; Final Results of Antidumping Duty Administrative Review, at pp. 12-14 (published in United 
States Federal Register , Vol. 72 (22 May 2007) 28676 (Panel Exhibit EC-12))) 
430Panel Report, para. 8.208. 
431Panel Report, para. 8.209 and footnote 769 to para. 8.174. 
432Panel Report, para. 8.209. 
433European Communities' appellant's submission, para. 186. 
434United States' other appellant's submission, para. 34. WT/DS294/AB/RW 
Page 132  
 
  weighted average-to-weighted average comparisons  were made by recalculating these margins and 
withdrawing the order in accordance with the results of this recalculation.
435  Furthermore, the United 
States contends that, in finding that the United St ates failed to comply with the recommendations and 
rulings of the DSB by using zeroing in the 2004-2005 and 2005-2006 administrative reviews, the Panel applied a retroactive remedy that is not pe rmissible in the WTO system, because these reviews 
covered entries occurring prior to the end of the reasonable period of time.
436  We addressed the 
United States' other appeal earlier when we explained why we are of the view that these two 
administrative reviews fell within the Panel's terms of reference437, as well as in the previous section, 
where we dealt with the scope of th e United States' compliance obligations. 
323. In section VI of this Report, we have found that the 2004-2005 administrative review in 
Case 1 fell within the Panel's terms of referen ce because of its close nexus to the Section 129 
determination and the DSB's recommendations and ruli ngs in the original pro ceedings.  Accordingly, 
we examine first whether the 2004-2005 admini strative review is inconsistent with the Anti-Dumping 
Agreement or Article VI of the GATT 1994 and undermines the compliance achieved with the 
recalculation of the margins of dumping in the Section 129 determination, and the consequent 
revocation of the anti-dumping duty order.   
324. According to the Appellate Body, whereas origin al investigations and administrative reviews 
are distinct proceedings and serve distinct purposes, they form part of a continuum of events under a 
single anti-dumping duty order.  We recall that, in US – Stainless Steel (Mexico) , the Appellate Body 
noted that "permit[ting] simple zeroing in pe riodic reviews would allow WTO Members to 
circumvent the prohibition of zeroi ng in original investigations".438  This was so because, in the first 
periodic review after an original investigation, the duty assessment rate for each importer would take 
effect from the date of the original imposition of anti-dumping duties.  Thus, "[w]hen the initial cash 
deposit rate is calculated in the original investiga tion without using zeroing, this means that the mere 
act of conducting a periodic review would intro duce zeroing following imposition of the anti-dumping 
duty order."439  In relation to the administrative revi ews at issue here, however, cash deposits 
calculated with zeroing have been collected and fi nal duty liability has been  assessed with zeroing. 
325. As we have noted earlier440, in relation to the Cases at issu e in the original proceedings, a 
subsequent administrative review de termination issued after the end of the reasonable period of time 
                                                      
435United States' other appellant's submission, paras. 38 and 39. 
436United States' other appellant's submission, para. 42. 
437Supra , paras. 236-258. 
438Appellate Body Report, US – Stainless Steel (Mexico) , para. 109. 
439Appellate Body Report, US – Stainless Steel (Mexico) , para. 109. 
440Supra , para. 311.  WT/DS294/AB/RW 
 Page 133 
 
 
  in which zeroing is used, or, if no such review is requested, a determination after the end of the 
reasonable period of time by which anti-dumping liability is assessed on the basis of cash deposit 
rates calculated with zeroing, establishes a failure to comply with the recommendations and rulings of 
the DSB.  We have further noted above that measures that derive mechanically  from the assessment of 
duties, and that are taken in the ordinary course of the imposition of anti-dumping duties, establish a 
failure to comply with the recommendations and rulings  of the DSB to the extent that they are based 
on zeroing and applied after the end of the reasona ble period of time, even if such a measure is 
consequent to an administrative review determin ation issued before the end of that period. 
326. In Case 1, the final duty liability for entri es in the period 2004-2005 was assessed in an 
administrative review, the final results of which were issued on 22 June 2007, which is after the 
expiration of the reasonable period of time on 9 April 2007.  The anti-dumping duty order was 
revoked pursuant to a Section 129 determination is sued on 9 April 2007 and effective as of 23 April 
2007.  The Panel noted that it is uncontested that the USDOC used zeroing in the calculation of the 
margin of dumping for the sole respondent, Corus Engineering Steels Ltd.  Indeed, "the Issues and Decision Memorandum for that administrative review  determination makes it clear that the USDOC 
used zeroing in calculating Corus' margin of dumping."
441  As a result, the final duty liability was 
assessed with the use of zeroing after the end of  the reasonable period of time for the period 2004-
2005 when cash deposits set with zeroing had been co llected.  The Appellate Body has found zeroing 
to be inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 
1994, regardless of whether zeroing was used only in the calculation of the final duty assessment rates 
or also in the calculation of going-forward cash deposit rates.442  The fact that no going-forward cash 
deposit rate was set pursuant to the 2004-2005 admi nistrative review in Case 1 does not change the 
fact that the final assessment of duty liability was done with zeroing.  As a result, the United States 
assessed and collected duties calculated using zer oing in violation of Article 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994, and failed to comply with its obligations with respect 
to the 2004-2005 administrative review determin ation issued on 22 June 2007, as well as the 
assessment and liquidation instructions, related to the 2005-2006 administrative review that was 
rescinded, issued on 16 and 23 April 2007 respectively.   As we have noted earlier, these measures 
derive mechanically from the assessment of duties, and were applied in the ordinary course of the 
                                                      
441USDOC, Issues and Decision Memorandum for the 2004-2005 Administrative Review of Certain 
Hot-Rolled Carbon Steel Flat Products from the Netherlands; Final Results of Antidumping Duty 
Administrative Review, published together with Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands; Final Results of Antidumping Duty Administrative Review, at pp. 12-14 (published in United 
States Federal Register , Vol. 72 (22 May 2007) 28676 (Panel Exhibit EC-12).  (Panel Report, para. 8.208) 
442See Appellate Body Report, US – Zeroing (EC) , para. 263(a)(i).  WT/DS294/AB/RW 
Page 134  
 
  imposition of anti-dumping duties, with the implicati on that they are also covered by the compliance 
obligations of the United States.  
327. In the light of the above considerations, we uphold  the Panel findings, in paragraphs 8.208 
and 9.1(b)(i) of the Panel Report, that the United St ates acted inconsistently with Article 9.3 of the 
Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 in its determination in the 2004-2005 
administrative review and in issuing the consequent  assessment instructions;  and that, as a result of 
the final results of this administrative review , the United States failed to comply with the 
recommendations and rulings of the DSB to bring the original investigation in Certain Hot-Rolled 
Carbon Steel Flat Products from the Netherlands  (Case 1) into conformity.   
328. As regards the rescission of the 2005-2006 admi nistrative review, as well as the consequent 
assessment and liquidation instructions, we note that the USDOC issued a notice of rescission on 
30 March 2007, and that the final liability for anti- dumping duties was assessed  on the basis of cash 
deposits previously calculated with zeroing.
443  Assessment instructions were  issued on 16 April 2007, 
and liquidation instructions on 23 Ap ril 2007, that is, after the end of the reasonable period of time.  
Such assessment and liquidation instructions are measures "mechanically derived" from the final 
assessment of anti-dumping duties, in the ordinary  course of the imposition of such duties.   
329. In the light of these considerations, we reverse the Panel's finding, in paragraphs 8.209 
and 9.1(b)(iv) of the Panel Report, that the assessm ent instructions issued on 16 April 2007 and the 
liquidation instructions issued on 23 April 2007 do not establish that the United States has failed to 
comply with the recommendations and rulings of the DSB to bring the original investigation in 
Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands  (Case 1) into conformity with 
its obligations under the covered agreements by virtue of those instructions.  We find, instead, that 
these instructions, derived mechanically from the assessment of final duty li ability in the ordinary 
course of the imposition of anti-dumping duties, are me asures that were adopted after the end of the 
reasonable period of time, and thus establish a failure to comply by the United States. 
B. Case 6: Stainless Steel Wire Rod from Sweden 
330. Case 6 concerned the use of zeroing in the USDOC's original investigation of stainless steel 
wire rod from Sweden.444  With respect to this Case, the USDOC published, on 9 May 2007, the 
amended final results of the 2004-2005 administrativ e review covering entries from 1 September 2004 
                                                      
443European Communities' appellant's submission, para. 186 and footnote 269 thereto. 
444USDOC, Notice of Antidumping Duty Order: Stainless Steel Wire Rod From Sweden, United States 
Federal Register , Vol. 63, No. 178 (15 September 1998) 49329.  WT/DS294/AB/RW 
 Page 135 
 
 
  to 31 August 2005.  In these results, the USDOC, on th e basis of a margin of dumping calculated with 
zeroing, instructed Customs to collect anti-dumping duti es at a rate of 19.36 per cent.  It also notified 
Customs of the revised cash deposit rate for the ex porter concerned, which was calculated on the basis 
of zeroing.  A Section 129 determination, effectiv e as of 23 April 2007, revoked the original order.  
On 10 May 2007, the USDOC issued instructions to  Customs informing it of the revocation resulting 
from the Section 129 determination.  These instructio ns also informed Customs that any cash deposits 
paid on imports made on or after 23 April 2007 were to be refunded, and all imports made on or after 
23 April 2007 would not be subject to the final assessment of anti-dumping duties.445 
331. Given the evidence provided by the United St ates that no cash deposit was imposed on 
imports covered by the anti-dumping duty order in  this Case following the 2004-2005 administrative 
review, and the absence of rebuttal of this eviden ce by the European Communities, the Panel found 
that the European Communities failed to establish that the United States has not complied with the 
recommendations and rulings of the DSB by virtue of having imposed new cash deposit requirements 
with respect to Case 6.446 
332. However, because zeroing was used in the ass essment of duties pursuant to the 2004-2005 
administrative review, the Panel found that the United States acted inconsistently with Article 9.3 of 
the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 in its determination in the 
2004-2005 administrative review, and in issuing the consequent assessment instructions, and that, as a 
result, the United States failed to comply with th e recommendations and rulings of the DSB to bring 
the original investigation in Case 6 into conformity with the covered agreements.447 
333. On appeal, the European Commun ities claims that the Panel erred in ignoring that:  between 
9 April and 23 April 2007, imports of stainless steel wire rod from Sweden were subject to cash deposit requirements that reflected the methodology of zeroing;  that these cash deposits were not 
refunded;  and that the imports that occurred during this period would be subject to a final assessment 
of anti-dumping duties based on zeroing.
448 
334. With respect to the results of the 2004-2005 administrative review and the assessment of 
duties pursuant to that review, the European Communities agrees with the Panel's conclusions 
regarding the results of the 2004-2005 administra tive review and the issuance of the assessment 
instructions, but contests aspects of the reasoning th at led to these conclusions, more specially the 
                                                      
445Panel Report, paras. 8.210 and 8.211. 
446Panel Report, para. 8.212. 
447Panel Report, para. 8.213. 
448European Communities' appellant's submission, para. 187. WT/DS294/AB/RW 
Page 136  
 
  Panel's approach regarding the temporal scope of the implementation obligations of the United 
States.
449  The European Communities also contends th at the Panel erred in failing to specifically 
address its claims with respect to final liquidations.450 
335. In its other appeal, the United States claims that  the Panel erred in its analysis of Case 6, 
because it ignored the fact that, as regards that Ca se, the recommendations and rulings of the DSB do 
not extend to the use of the methodology of "simple zeroing" in administrative reviews.451  The United 
States contends that it complied with the DSB' s recommendations and rulings by recalculating 
without zeroing the margins challenged in the origin al investigation, and withdrawing the order in 
accordance with the results of this recalculation.452  Furthermore, the United States argues that, in 
finding a failure on the part of the United States to comply with the DSB's recommendations and rulings by using zeroing in the 2004-2005 administ rative review, the Panel applied a retroactive 
remedy that is not permissible in the WTO system.
453  We addressed the United States' other appeal 
earlier when we explained why we are of the view th at this review fell within the Panel's terms of 
reference454, as well as in the previous section where we dealt with the scope of the United States' 
compliance obligations. 
336. The European Communities' claim on appeal relates to imports of stainless steel wire rod 
from Sweden between 9 April 2007 (the expiry of  the reasonable period of time) and 23 April 2007 
(the date on which the revocation of the anti-dumping duty order became effective).  This claim is a 
specific application of the European Communities' appeal regarding the a lleged non-existence of 
measures taken to comply between 9 April 2007 and 23 April/31 August 2007, which we address in 
section X of this Report.   
337. In Case 6, the final duty liability for entri es in the period 2004-2005 was assessed in an 
administrative review that was concluded on 9 May 2007 by the publication of amended final results.  
The anti-dumping duty order was revoked pursuant to a Section 129 determination issued on 9 April 
2007 and effective 23 April 2007.  Consequently, as th e Panel found, cash deposits paid on imports of 
stainless steel wire rod from Sweden made on or  after 23 April 2007 were refunded, and no cash 
deposits were imposed on imports of stainless steel  wire rod from Sweden following the issuance of 
the amended final results of the 2004-2005 administ rative review.  However, as the Panel noted with 
respect to the assessment of duties pursuant to the 2004-2005 administrative review, the United States 
                                                      
449European Communities' appellant's submission, para. 188. 
450European Communities' appellant's submission, para. 209. 
451United States' other appellant's submission, para. 34. 
452United States' other appellant's submission, paras. 38 and 39. 
453United States' other appellant's submission, para. 42. 
454Supra , paras. 236-258.  WT/DS294/AB/RW 
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  has not contested that it used zeroing in the calcula tion of the margin of dumping for Fagersta (the 
sole exporter concerned by the review).455  As a result, cash deposit rates established with the use of 
zeroing were applied to entries between 9 April 2007 (t he expiry of the reasonable period of time) and 
23 April 2007 (the date on which the revocation of  the anti-dumping duty order became effective).   
338. Accordingly, we uphold the Panel's finding, in paragraphs 8.213 and 9.1(b)(i) of the Panel 
Report, that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement  
and Article VI:2 of the GATT 1994 in issuing the results of the 2004-2005 administrative review on 
9 May 2007, as well as the consequential assessme nt and liquidation instructions.  We also uphold the 
Panel's finding, in paragraphs 8.213 and 9.1(b)(i) of the Panel Report, that the United States failed to 
comply with the recommendations and rulings of the DSB to bring the original investigation in 
Stainless Steel Wire Rod from Sweden  (Case 6) into conformity with its WTO obligations. 
339. We note that, apart from the alleged non-existe nce of measures taken to comply between 
9 April 2007 and 23 April/31 August 2007, the Eu ropean Communities does not appeal the Panel's 
finding, in paragraphs 8.212 and 9.1(b)(v) of the Pa nel Report, that the United States has not failed to 
comply with the recommendations and rulings of th e DSB in the original proceedings and has not 
acted inconsistently with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement  and Article VI:2 of 
the GATT 1994 by establishing a new cash depos it rate based on zeroing in the 2004-2005 
administrative review determination in Stainless Steel Wire Rod from Sweden , because, due to the 
revocation of the anti-dumping dut y order, no cash depos it requirement was actually imposed after 
23 April 2007. 
C. Case 31: Ball Bearings and Part s Thereof from the United Kingdom 
340. This Case concerned the assessment of duties and the establishment of cash deposit rates on 
ball bearings and parts thereof from the United Kingdom 456, produced and exported by NSK Bearings 
Europe Ltd. ("NSK") and the Barden Corporation UK.  In the original proceedings, the use of "simple 
zeroing" was found to be inconsistent " as applied" with Article 9.3 of the Anti-Dumping Agreement 
and Article VI:2 of the GATT 1994, in the context of an administrative review covering entries from 
1 May 2000 through 30 April 2001. 
                                                      
455Panel Report, para. 8.213. 
456USDOC, Ball Bearings and Parts Thereof from Fr ance, Germany, Italy, Japan, and the United 
Kingdom; Final Results of Antidumping Duty Administrative Reviews, United States Federal Register , Vol. 67, 
No. 169 (30 August 2002) 55780. WT/DS294/AB/RW 
Page 138  
 
  341. With respect to NSK, no administrative review has been requested after the 2000-2001 
administrative review.
457  Consequently, the cash deposit rate applied after the expiry of the 
reasonable period of time to imports from NSK re flected the margin of dumping calculated with 
zeroing in the 2000-2001 administrative review.458  The Panel noted that the "United States admits 
that the cash deposit rate for NSK established in the administrative review challenged in the original 
dispute, which concerned covere d imports entered from 1 May 20 00 through 30 April 2001, remains 
in effect."459 
342. The Panel found that the United States failed to comply with the recommendations and 
rulings of the DSB to bring its measure into co nformity with the covered agreements, as it has 
continued to apply to imports the cash deposit rate established in an administrative review 
determination found to be WTO-in consistent as a result of the use of zeroing in the calculation of 
margins of dumping.460  The Panel recalled that, to implemen t the recommendations and rulings of the 
DSB, a Member must ensure that the actions it undertakes after the end of the reasonable period of 
time are consistent with its obligations under the co vered agreements.  For the Panel, the continuing 
requirement to provide cash deposits constitutes such an action.461  In response to an argument by the 
United States, the Panel discussed the case of a c ash deposit requirement based on zeroing and applied 
as of the end of the reasonable period of time, but resulting from a determination that was not found to 
be inconsistent in the original proceedings, su ch as a determination resulting from a subsequent 
review.  The Panel expressed the view that, in orde r to comply with the r ecommendations and rulings 
of the DSB, the United States had to ensure that any cash deposit rate applie d after the end of the 
reasonable period of time in relation to one of the measures at issue in the original proceedings was 
not one that derived from a margin of dumping calcu lated with zeroing, even where the cash deposit 
rate was established as a result of an administrativ e review conducted subsequently to a measure at 
issue in the original proceedings.  According to the Panel, concluding otherwise would mean that the 
United States is allowed to circumvent its obligati on to comply with the recommendations and rulings 
of the DSB by the mere replacement of the cash deposit rates established in the measures challenged 
in the original proceedings by subsequent ones est ablished in administrative reviews in which zeroing 
was again used.462  The Panel refrained from making a specifi c finding with respect to the assessment 
after the end of the reasonable period of time of duty liability for imports from NSK, because it was of 
                                                      
457See Annex to Request for the Establishment of a Panel by the European Communities, 
WT/DS294/25, Panel Report, Annex A-1. 
458Panel Report, paras. 8.214 and 8.215. 
459Panel Report, para. 8.215 and footnote 817 thereto. 
460Panel Report, para. 8.216. 
461Panel Report, footnote 820 to para. 8.218. 
462Panel Report, para. 8.218.  WT/DS294/AB/RW 
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  the view that the European Communities did not identify any specific duty assessment determination 
after the end of the reasonable period of time.463 
343. In response to questioning at the oral heari ng, the European Communities confirmed that it 
appeals the analysis of Case 31 made by the Panel.   We understand, however, that the European 
Communities does not appeal the Panel's findings re lating to the application of cash deposit rates 
reflecting zeroing after the end of the reasonable period of time.464  Rather, the European 
Communities  challenges on appeal the Panel's decisi on not to make a specific finding with respect to 
the assessment after the end of the reasonable period of time of duty liability for imports from NSK.   
344. We recall that, as far as Case 31 is concerned, the recommendations and rulings of the DSB 
cover the use of zeroing in the assessment of anti- dumping duty liability and in the establishment of 
cash deposit rates.  In the United States, duty lia bility is assessed and going-forward cash deposit rates 
are established in an administrative review or, if no  administrative review is requested, at the time 
when it is determined that duties will be assessed on the basis of the collected cash deposits.   
345. In Case 31, no subsequent administrative re view was requested by NSK after the 2000-2001 
administrative review.  Thus, the cash deposit rates applied on imports from NSK after the end of the 
reasonable period of time were derived from the latest  determination in which duties were assessed on 
the basis of the collected cash deposits, and reflect ed the margin of dumping calculated with zeroing 
in the 2000-2001 administrative review.  In C ase 31, the anti-dumping duty order was published on 
15 May 1989.465  Under United States law, the right to request an administrative review lapses at the 
end of the anniversary month of the publication of  the order, that is, in this Case, 31 May 2007.466  
When the right to request an administrative review  lapsed on that date, duties were finally assessed on 
the basis of the collected cash deposits.  We conc lude that the duty liability determination on 31 May 
2007 made on the basis of cash deposits previously co llected constitutes a failure to comply with the 
recommendations and rulings of the DSB in relati on to Case 31, as the assessed duties reflected a 
margin of dumping calculated with zeroing and the assessment took place after  the end of the 
reasonable period of time.   
346. On the basis of the above considerations, we find that the Panel erred in refraining, in 
paragraph 8.217 of the Panel Report, to make a sp ecific finding with respect to the assessment after 
the end of the reasonable period of time of duty liability for imports from NSK in Ball Bearings and 
                                                      
463Panel Report, para. 8.217. 
464Panel Report, para. 8.218. 
465United States Federal Register , Vol. 54 (15 May 1989) 20909. 
466United States Code of Federal Regulations , Title 19, Section 353.53a. WT/DS294/AB/RW 
Page 140  
 
  Parts Thereof from the United Kingdom (Case 31), and that duties assessed after the end of the 
reasonable period of time on the basis of cash depo sits reflecting zeroing establish a failure by the 
United States to comply with the recommendations and rulings of the DSB. 
D. Cases 18 through 24 and 27 through 30 
347. Before the Panel, the European Communiti es claimed that, with respect to Cases 18 
through 24 and 27 through 30
467 (as well as Case 31 that was discussed in the previous section), duties 
or cash deposit rates based on zeroing remained in place on and after 9 April 2007.468 
348. The Panel did not, however, examine these Cases on the grounds that it did not have before it 
substantive arguments or supporting materials in rela tion to these Cases that would have allowed it to 
make any additional substantive findings.469   
349. The European Communities claims that the Pa nel erred in not reviewing these Cases and, 
more specifically, that the Panel failed to comply with its functions as required by Article 11 of the 
DSU.  In the event that it prevails on this clai m, the European Communities requests the Appellate 
Body to complete the analysis and find that, by c ontinuing to maintain in place duties or cash deposit 
rates with respect to these Cases, the United St ates has acted inconsistently with the covered 
agreements, and that this constitutes a failure to comply with the rulings and recommendations of the 
DSB in the original proceedings.470  The European Communities contends that the Panel had 
sufficient evidence before it to make findings on these Cases.471   
350. The United States contends that the Panel correctly  declined to make findings with respect to 
11 of the 16 administrative reviews at issue in th e original proceedings for which anti-dumping duty 
orders remain in place.  The United States disagrees with the Panel's statement that the application, 
after the end of the reasonable period of time, of cash deposit rates calculated with zeroing would 
                                                      
467See Annex to Request for the Establishment of a Panel by the European Communities, 
WT/DS294/25, Panel Report, Annex A-1. 
468European Communities' appellant's submission, para. 190. 
469Panel Report, para. 8.202. 
470European Communities' appellant's submission, paras. 194 and 197. 
471The European Communities refers to a number of extracts of its request for the establishment of a 
panel and various submissions it made to the Panel:  Request for the Establishment of a Panel by the European Communities, WT/DS294/25, paras. 2, 4, and 7, Panel Report, Annex A-1;  European Communities' first written 
submission to the Panel, paras. 69 and 76-83, including footnote 74 to para. 82;  European Communities' second 
written submission to the Panel, para. 62;  European Communities' opening statement at the Panel meeting, 
para. 44;  European Communities' closing statement at the Panel meeting, para. 5;  European Communities' 
response to Panel Question 8, para. 34;  and Annex B to European Communities' response to Panel Question 6.  WT/DS294/AB/RW 
 Page 141 
 
 
  constitute a failure to comply with the DSB's r ecommendations and rulings in this dispute, and 
considers the Panel's statement without legal effect.472 
351. The Panel considered that it did not have su fficient evidence before it and abstained from 
making additional substantive findings on Cases 18 th rough 22, 24, and 27 through 30.  Concerning 
Case 24, the European Communities has adduced in Panel Exhibit EC-17 the USDOC Issues and 
Decision Memorandum and United States Federal Register  Notice that make explicit references to the 
use of zeroing in the determination of margins of dumping.473  Concerning Cases 18 through 22 and 
27 through 30, the European Communities, in its request for the establishment of a panel, lists 
references to Federal Register  Notices pertaining to the s ubsequent reviews it challenged.474  A s  
regards Case 23, the only piece of evidence me ntioned by the European Communities was in 
paragraphs 81 and 82 of its first written submission to  the Panel.  This piece of evidence relates to a 
subsequent administrative review that was conclude d after the establishment of the Panel, and fell 
outside the terms of reference of the Panel as it wa s not indicated in the Annex to the panel request, 
although it may be relevant as evidence.   
352. In any event, we observe that, with respect to Cases 18 through 24 and 27 through 30, the 
results of the subsequent reviews listed in the Anne x to the European Communities' panel request that 
fell within the Panel's terms of reference were issu ed before the expiry of the reasonable period of 
time.   
                                                      
472United States' appellee's submission, para. 106 (referring to Panel Report, para. 8.218). 
473USDOC, Issues and Decision Memorandum for the Final Results of the Administrative Review of 
the Antidumping Duty Order on Granular Polytetrafluoroethylene Resin from Italy (26 November 2007), at pp. 11-12 (published together with USDOC, Notice of Final Results of Antidumping Duty Administrative 
Review: Granular Polytetraflu oroethylene Resin from Italy, United States Federal Register , Vol. 72 
(26 November 2007) 65939 (Panel Exhibit EC-17)). 
474Annex to Request for the Establishment of a Pa nel by the European Communities, WT/DS294/25, 
Panel Report, Annex A-1.  For Case 18 , Stainless Steel Plate in Coils from Belgium :  two subsequent 
administrative reviews ( United States Federal Register , Vol. 70 (19 January 2005) 2999;  and Vol. 70 
(7 December 2005) 72789);  and one sunset review ( United States Federal Register , Vol. 70 (18 July 2005) 
41202).  For Cases 19 and 20 , Certain Pasta from Italy :  three subsequent administrative reviews ( United States 
Federal Register , Vol. 69 (10 February 2004) 6255;  Vol. 69 (27 April 2004) 22761;  and Vol. 70 (9 February 
2005) 6832);  and one sunset review ( United States Federal Register , Vol. 69 (27 April 2004) 22761).  For 
Cases 21 and 22 , Stainless Steel Sheet and Strip in Coils From Italy :  two subsequent administrative reviews 
(United States Federal Register , Vol. 68 (12 December 2003) 69382;  and Vol. 70 (17 March 2005) 13009);  
and one sunset review ( United States Federal Register , Vol. 70 (4 August 2005) 44886).  For Cases 27 and 28 , 
Stainless Steel Sheet and Strip in Coils From Germany : four subsequent administrative reviews ( United States 
Federal Register , Vol. 69 (10 February 2004 ) 6262;  Vol. 69 (20 December 2004) 75930;  Vol. 70 
(13 December 2005) 73729;  and Vo l. 71 (13 December 2006) 74897) ;  and one sunset review ( United States 
Federal Register , Vol. 70 (4 August 2005) 44886).  For Cases 29 and 30 , Ball Bearings and Parts Thereof from 
France and Italy :  five subsequent administrative reviews ( United States Federal Register , Vol. 68 (16 June 
2003) 35623;  Vol. 68 (24 July 2003) 43712;  Vol. 69 (15 September 2004) 55574;  Vol. 70 (16 September 
2005) 54711;  and Vol. 71 (14 July 2006) 40064);  and one sunset review ( United States Federal Register , 
Vol. 71 (15 September 2006) 54469).  These Federal Register  Notices were not themselves submitted as 
exhibits during the Panel proceedings.   WT/DS294/AB/RW 
Page 142  
 
  353. Given that there are insufficient undisputed f acts on record, we are not in a position to 
complete the analysis and therefore  decline  to rule on whether the Panel did not comply with its 
duties under Article 11 of the DSU.  
354. Having said that, we note our earlier conclusions that subsequent administrative reviews in 
which zeroing is used after the end of the reasonabl e period of time establish a failure by the United 
States to comply with the recommendations and rulings  of the DSB.  Furtherm ore, we note the Panel's 
statement that: 
... in order to comply with the recommendations and rulings of the 
DSB, the United States had to ensure that any cash deposit rate 
applied after the end of the reasona ble period of time in relation to 
one of the measures at issue in the original dispute was not one that 
derived from a margin of dumping calculated with zeroing, even where that cash deposit was established as a result of a subsequent review, and not a measure at issue in the original dispute.  Concluding otherwise would mean that the United States is allowed 
to circumvent its obligation to bring its measures and action into 
conformity with those recommendations and rulings by the mere replacement of the cash deposits  established in the measures 
challenged in the original dispute by subsequent ones established in administrative reviews in which zeroing was again used.
475 
355. We share the Panel's view that the United St ates fails to comply with the recommendations 
and rulings of the DSB if it continues to apply cash deposits established on the basis of zeroing after 
the end of the reasonable period of time in respect of the Cases at issue here. 
IX. The Subsequent Sunset Reviews 
356. We now turn to the European Communities' app eal of the Panel's finding that the European 
Communities has not demonstrated that the Un ited States failed to comply with the DSB's 
recommendations and rulings in the subse quent sunset reviews at issue.   
A. The Panel's Findings 
357. Before the Panel, the European Communities cl aimed that the United States had extended the 
measures challenged in the original proceedings pu rsuant to sunset review proceedings concluded 
before and after 9 April 2007, and which relied on dumping margins calculated with zeroing.  The 
European Communities argued that, by relying in the subsequent sunset review proceedings on 
                                                      
475Panel Report, para. 8.218.  Footnote 820 to that paragraph reads: "... a Member must, to implement 
the DSB's recommendations and rulings, ensure that actions it undertakes after the end of the reasonable period of time are consistent with its obligations under the DS B.  The continuing requirement to provide cash deposits 
constitutes, in our view, such an action."  WT/DS294/AB/RW 
 Page 143 
 
 
  margins calculated in prior proceedings using zer oing, the United States did not comply with its 
obligations pursuant to Articles 2.1, 2.4, and 2.4.2 of the Anti-Dumping Agreement , because these 
margins were not based on a "fair comparison" and were not calculated for the product as a whole, 
and as a result the United States acted in breach of Article 11.3 of the Anti-Dumping Agreement .476 
358. The Panel found that only those subsequent sunset reviews in which the likelihood-of-
dumping determination by the USDOC had been made after  the adoption of the DSB's 
recommendations and rulings fell within its terms of reference, because they po tentially affected the 
United States' implementation of the DSB's recommendations and rulings.477  The Panel therefore 
addressed the claims by the European Communities w ith respect to only the following sunset review 
determinations: 
(i) Preliminary likelihood-of-dumping determination by the USDOC in Stainless Steel 
Bar from Germany  (Case 3) (30 May 2007)478; 
(ii) Final likelihood-of-dumping determinations by the USDOC in Stainless Steel Bar 
from France (Case 2), Stainless Steel Bar from Italy (Case 4), and Stainless Steel Bar 
from the United Kingdom  (Case 5) (4 June 2007)479;  and 
(iii) Final likelihood-of-dumping determination by the USDOC in Certain Pasta from 
Italy (Case 19) (5 February 2007).480 
359. According to the Panel, "[i]t seems clear ... from the Issues and Decision Memoranda in these 
cases that the findings that dumping had continued at above de minimis  levels since the issuance of 
the relevant [anti-dumping duty] order refer to dumping margins that had been calculated in 
administrative reviews, using zeroing."481  The Panel, however, ruled that, "[e]ven assuming that the 
European Communities has made a prima facie  case that the USDOC relied on dumping margins 
calculated with zeroing in these sunset reviews"482, it could not make the findings requested by the 
                                                      
476Panel Report, para. 8.130. 
477See section VI of this Report. 
478USDOC, Stainless Steel Ba r from Germany; Preliminary Resu lts of the Sunset Review of 
Antidumping Duty Order, United States Federal Register , Vol. 72, No. 103 (30 May 2007) 29970. (See Panel 
Exhibit EC-41) 
479USDOC, Stainless Steel Bar from Fr ance, Italy, South Korea and the United Kingdom; Final Results 
of the Expedited Sunset Reviews of the Antidumping Duty Orders, United States Federal Register , Vol. 72, 
No. 106 (4 June 2007) 30772 (Panel Exhibit EC-40). 
480USDOC, Notice of Final Results of Expedited Sunset Reviews of the Antidumping Duty Orders: 
Certain Pasta from Italy and Turkey, United States Federal Register , Vol. 72, No. 23 (5 February 2007) 5266 
(Panel Exhibit EC-52). 
481Panel Report, para. 8.138. 
482Panel Report, para. 8.139. WT/DS294/AB/RW 
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  European Communities.  The Panel found that the European Communities had not demonstrated that 
"the USDOC determinations it challenges resulted in  the continuation of the underlying [anti-dumping 
duty] order as of the time this Panel was established."
483 
360. The Panel noted that, in Cases 2, 3, 4, and 5,  "the sunset review proceedings had not been 
concluded as of that date, and eventually resulted in the revocation of the orders, following a negative 
likelihood-of-injury determination by  the USITC" and that, in Case 19, "the proceedings had not been 
concluded, and thus, there was no continuation of the underlying order as of this Panel's 
establishment."484  The Panel concluded that "any failures by the United States in these sunset reviews 
had not yet materialized as at the date of the establis hment of this Panel, and thus had no effect on the 
US implementation of the DSB's recommendations and rulings."485 
361. The Panel, therefore, declined to make any findings "in respect of the EC claims of violation 
under Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement in subsequent sunset review 
determinations" and "with respect to the EC claim that the United States failed to comply with the 
DSB's recommendations and rulings because the United States relied on margins of dumping calculated in subsequent administrative reviews in  the context of sunset review determinations."
486 
B. Claims and Arguments on Appeal 
362. The European Communities claims that all the subsequent sunset reviews mentioned in the 
Annex to the European Commun ities' Article 21.5 panel request487 fell within the Panel's terms of 
reference, including those sunset reviews wher e the USDOC's likelihood-of-dumping determination 
was issued prior to the adoption of the DSB's recommendations and rulings.488 
363. The European Communities further claims that th e Panel erred in finding that the European 
Communities has not demonstrated that the Un ited States failed to comply with the DSB's 
                                                      
483Panel Report, para. 8.139. (footnote omitted) 
484Panel Report, para. 8.139. (footnote omitted) 
485Panel Report, para. 8.140. 
486Panel Report, para. 8.141. (footnote omitted) 
487A total of 16 sunset reviews were mentioned in the Annex to the European Communities' panel 
request, in Cases 2, 3, 4, 5, 6, 7, 8, 14, 18, 19, 22, 24, 28, 29, 30, and 31. (See Annex to Request for the 
Establishment of a Panel by the European Comm unities, WT/DS294/25, Panel Report, Annex A-1) 
488The Panel found that 11 of the sunset reviews mentioned in the Annex to the European 
Communities' panel request did not fall within its te rms of reference, becaus e the likelihood-of-dumping 
determinations by the USDOC were made before  the adoption of the recommendations and rulings by the DSB 
in the original proceedings.  These sunset reviews concern Cases 6, 7, 8, 14, 18, 22, 24, 28, 29, 30, and 31. 
(European Communities' appellant's submission, para. 100 and footnote 144 thereto)  WT/DS294/AB/RW 
 Page 145 
 
 
  recommendations and rulings in the s ubsequent sunset review proceedings489 it considered to fall 
within its terms of reference.490  According to the European Commun ities, "the fact that continuation 
orders had not yet been published with respect to  some subsequent sunset reviews at the time the 
Panel was established does not  mean  that the USDOC's dumping determinations made in the context 
of those sunset review proceedings are irrelevant  for assessing the US compliance with the DSB 
recommendations and rulings in the original dispute."491  In the view of the European Communities, 
the relevant action that should serve to assess compliance by the United States is the final 
determination by the USDOC of likelihood of dumping, rather than the publication of the continuation 
order.492 
364. The European Communities argues that "the Pa nel disregarded its ma ndate and failed to 
comply with its functions as required by Article 11 of the DSU  when failing to address the EC claim 
that the United States failed to comply with the DSB recommendations in the original dispute, since 
certain aspects of the measures at issue in the original dispute ( i.e., the dumping margins based on 
zeroing) remained in place", and that "the United States relied on those margins for the determination 
of likelihood of recurrence of dum ping in subsequent sunset review proceedings concerning the same 
anti-dumping 'measure'."493 
365. The European Communities requests the Appellate  Body to reverse the Panel's findings and 
to complete the analysis and find that, by relying in the sunset review proceedings challenged by the 
European Communities on margins calculated in prio r proceedings using zeroing, the United States 
did not comply with its obligations pursuant to Articles 2.1, 2.4, 2.4.2, and 11.3 of the Anti-Dumping 
Agreement  and Articles 19.1 and 21.3 of the DSU, and failed to comply with the DSB's 
recommendations and rulings in the original proceedings.494 
366. The United States responds that none of the subse quent sunset reviews were within the terms 
of reference of the Panel, because they we re not measures "taken to comply" with the 
recommendations and rulings of the DSB.495  The United States also argues that "the Appellate Body 
should affirm the compliance Panel's finding that th e EC failed to demonstrate that the [USDOC's] 
                                                      
489The Panel found that five of the sunset reviews mentioned in the Annex to the European 
Communities' panel request fell within its terms of refe rence, because the likelihood-of-dumping determinations 
by the USDOC were made after  the adoption of the recommendations and rulings by the DSB in the original 
proceedings.  These sunset reviews concern Cases 2, 3, 4, 5, and 19. (See Panel Report, para. 8.124) 
490European Communities' appellant's submission, para. 111. 
491European Communities' appellant's submission, para. 112. (original emphasis) 
492European Communities' appellant's submission, para. 113. 
493European Communities' appellant's submission, para . 102 (referring to Pane l Report, para. 8.222). 
494European Communities' appellant's submission, para. 120. 
495United States' appellee's submission, paras. 49 and 55. WT/DS294/AB/RW 
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  determinations it challenged caused the continuation of the orders at the time the compliance Panel 
was established."
496 
367. The United States argues that "[t]he conclusion of  the sunset review is not based solely on 
[the USDOC's] determination", but requires also a determination by the USITC as to "whether the 
revocation of the antidumping duty order would likely lead to a continuation or recurrence of material 
injury".497  According to the United States, a prima facie showing that the USDOC's determination 
caused the continuation of the order is impossible without a final, conclu sive determination to 
continue the order.  The United States adds that "[ t]his is illustrated by the fact that for five of the 
orders for which the Panel found a sunset review to fa ll within its terms of refe rence, four ultimately 
were revoked."498 
368. The United States also argues that, should the Appellate Body find that the Panel wrongly 
excluded any subsequent reviews, including any sunset reviews, from the scope of these proceedings, 
the Appellate Body could not complete the anal ysis, because the European Communities provided no 
arguments to show that these meas ures are inconsistent with the Anti-Dumping Agreement , nor did it 
"identify the 'factual findings of the Panel [or] undis puted facts in the Panel r ecord' that would enable 
the Appellate Body to complete the analysis with  regard to any particular measure or claim".499 
C. Analysis 
369. We have reversed, in section VI of this Repor t, the Panel's findings that certain subsequent 
reviews, which were concluded before  the adoption of the recommendations and rulings of the DSB 
in the original proceedings, did not fall w ithin the scope of these compliance proceedings.500  T h e  
European Communities claims that the United States  failed to comply with the recommendations and 
rulings of the DSB in all the sunset review pro ceedings mentioned in the Annex to the European 
Communities' Article 21.5 panel request and requests the Appellate Body to complete the analysis 
with respect to those sunset revi ews that the Panel had found to fall outside its terms of reference.  
We, therefore, address the claims  by the European Communities in respect of these sunset reviews 
                                                      
496United States' appellee's submission, para. 56 (referring to Panel Report, para. 8.139). 
497United States' appellee's submission, para. 58. 
498United States' appellee's submission, para. 58. (footnote omitted) 
499United States' appellee's submission, para. 46 (quoting Appellate Body Report, US – Softwood 
Lumber IV , para. 118). 
500The subsequent sunset reviews, which we consider al so to fall within the Panel's terms of reference, 
are in Cases 24, 28, 29, 30, and 31.  These sunset revi ews were excluded from the scope of these compliance 
proceedings because the relevant likelihood-of-dumping determinations by the USDOC had been made before 
the adoption of the DSB's recommendations an d rulings in the original proceedings.  WT/DS294/AB/RW 
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  together with its claims in respect of the sunset reviews that the Panel considered to be within its 
terms of reference. 
370. We begin our analysis by addressing the appeal by the European Communities against the 
Panel's findings regarding those sunset reviews that the Panel considered to fall within its terms of 
reference (that is, in Cases 2, 3, 4, 5, and 19).  We  then consider whether we can complete the analysis 
with respect to these sunset reviews and with respect  to other sunset reviews that the Panel excluded 
from its terms of reference, but wh ich we have found to fall within th e Panel's terms of reference (that 
is, in Cases 24, 28, 29, 30, and 31). 
1. Sunset Reviews in Cases 2, 3, 4, 5, and 19  
371. We start by observing that, of the five sunset re view determinations th e Panel considered to 
be within its terms of reference,  four resulted in revocation orders501 (Cases 2, 3, 4, and 5) and one 
resulted in a continuation order502 (Case 19) after  the Panel was established.  These sunset reviews fall 
into three subcategories in terms of the determinati ons that the authorities had made by the date of the 
establishment of the Panel (25 September 2007).  Th e first subcategory includes Case 3, in which the 
USDOC had made an affirmative preliminary like lihood-of-dumping determination by the date of 
establishment of the Panel;  the second subcategory includes Cases  2, 4, and 5, in which the USDOC 
had made affirmative final likeli hood-of-dumping determinations by th e date of establishment of the 
Panel;  and the third subcategory includes Case 19, in which the USDOC had made an affirmative 
final likelihood-of-dumping determ ination and the USITC had made an affirmative injury 
determination by the date of establishment of the Panel.   In all sunset reviews considered by the Panel, 
the USDOC had not yet issued a formal continuation order at the time the Pa nel was established.  We 
address below the Panel's findings with respect to each  of the three subcategories of sunset review 
determinations. 
372. With respect to the first category of sunset revi ew determinations, we note that in Case 3, the 
USDOC had made an affirmative preliminary likel ihood-of-dumping determination on 30 May 2007.  
A final affirmative likelihood-of-dumping determin ation was made by the USDOC on 5 October 
                                                      
501The revocation orders were issued by the USDOC on 7 February 2008, following negative injury 
determinations by the USITC. (USDOC, Revocation of Antidumping Duty Orders on Stainless Steel Bar from 
France, Germany, Italy, South Korea and the United Kingdom and the Countervailing Duty Order on Stainless 
Steel Bar from Italy, United States Federal Register , Vol. 73, No. 26 (7 February 2008) 7258 (Panel 
Exhibit US-13))  These revocation orders were effective as from 7 March 2007. 
502The continuation order was issued by the USDOC on 12 October 2007, following an affirmative 
injury determination by the USITC. (USDOC, Certain Pasta from Turkey and Italy: Continuation of Countervailing Duty and Antidumping Duty Orders, United States Federal Register , Vol. 72, No. 197 
(12 October 2007) 58052) WT/DS294/AB/RW 
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  2007, that is, 10 days after Panel establishment.  The USITC then made a negative injury 
determination on 31 January 2008 and the US DOC revoked the anti-dumping duty order on 
7 February 2008, and effective as of 7 March 2007. 
373. We observe that, in its preliminary likeli hood-of-dumping determination in Case 3, the 
USDOC stated that it "preliminarily determines  that revocation of the antidumping duty order on 
[stainless steel bar] from Germany is likely to lead to continuation or recurrence of dumping" at 
specified margins, and invited interested parties to  submit comments on the preliminary results within 
certain deadlines.  The USDOC also explained that  it would "issue a notice of final results of this 
sunset review, which will include the results of its analysis of issues raised in any [comments 
submitted by the interested parties] , no later than September 29, 2007."
 503 
374. In US – Continued Zeroing , the Appellate Body found that the European Communities' 
challenge of a preliminary determin ation of likelihood of dumping in a sunset review was premature, 
considering that such preliminary results could be modified by the final results.  The Appellate Body 
reasoned that, due to the preliminary nature of the USDOC's determination, it failed to see how the 
European Communities could establish that "the US DOC would have relied on the margin calculated 
with zeroing in deciding to continue the duty."504 
375. In our view, the evidence before the Panel in these compliance proceedings regarding the 
sunset review determination in Case 3 does not warrant a conclusion different from the one reached by the Appellate Body in  US – Continued Zeroing .  In view of the preliminary nature of the 
determination by the USDOC in Case 3, we consider  that the European Commu nities' challenge of the 
USDOC's preliminary determination was premature.  Therefore, we find that the Panel did not err in 
finding, in paragraph 8.140 of the Panel Report, th at the European Communities has not demonstrated 
that the United States failed to comply with the r ecommendations and rulings of the DSB in respect of 
the sunset review in Case 3.  
376. Regarding the second subcategory of sunset re views in Cases 2, 4, and 5, the USDOC had 
made final likelihood-of-dumping de terminations on 4 June 2007, but when the Panel was established 
on 25 September 2007, the sunset review proceedings were still pending before the USITC, which had 
not yet determined whether the expiry of the anti-dumping duty order would be likely to lead to the 
continuation or recurrence of injury.  The USITC su bsequently made negative injury determinations 
                                                     
 
503Supra , footnote 478, at 29970. 
504Appellate Body Report, US – Continued Zeroing , para. 210.  WT/DS294/AB/RW 
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  on 31 January 2008 and the USDOC revoked the an ti-dumping duty order on 7 February 2008 with 
respect to all these Cases with an effective date of 7 March 2007.505 
377.  We observe that, while the USDOC's likeli hood-of-dumping determ inations should be 
consistent with Article 11.3 of the Anti-Dumping Agreement , a sunset review is not completed in the 
United States until both the USDOC and the USITC have made likelihood-of-dumping and 
likelihood-of-injury determinations .  We further note that these are compliance proceedings and that 
whether or not the United States has ultimately fa iled to comply with the recommendations and 
rulings of the DSB depends on whether any alle gedly WTO-inconsistent likelihood-of-dumping 
determinations by the USDOC have actually resu lted in the continuation of the anti-dumping duty 
orders. 
378. In US – Continued Zeroing , the Appellate Body dealt w ith challenges by the European 
Communities of two final likelihood- of-dumping determinations by the USDOC in sunset reviews.  
The Appellate Body observed that both sunset re view proceedings were still pending before the 
USITC at the time the panel was established and that "[t]hus, the USITC had not yet determined, for 
either case, whether expiry of the anti-dumping duty order would be likely to lead to the continuation 
or recurrence of injury."506  In such circumstances, the Appellate  Body considered that completing the 
analysis as to whether these measures were inconsis tent with the covered agreements would not be 
appropriate. 
379. In the present dispute, the anti-dumping duty or ders in Cases 2, 4, and 5 were revoked on 
7 February 2008 by the USDOC following negative  injury determinations by the USITC (these 
revocations were effective as from 7 March 2007, prio r to the end of the reasonable period of time).  
The Panel declined to assess the WTO-consistency of the USDOC's affirmative final likelihood-of-
dumping determinations in those sunset reviews that resulted in revocations or ders after the Panel was 
established.507 
380. As we have noted above, these are compliance pr oceedings and the issue before the Panel was 
whether the United States had failed to comply;  th at is, the Panel was called on to establish whether 
the USDOC's determinations in these sunset re views had any impact on compliance by the United 
States.  We consider that the USDOC's affirmative final likeli hood-of-dumping determinations in 
these sunset reviews did not ultimately undermine compliance by the United States with the 
                                                      
505Supra , footnote 478, at 29970. 
506Appellate Body Report, US – Continued Zeroing , para. 211. (footnote omitted) 
507The anti-dumping duty order was also revoked in Case 3 on 7 February 2008, effective 7 March 
2007.  We observe, however, that for different reasons we have upheld the Panel's finding concerning Case 3.  
Therefore, in the analysis that follows, we limit our examination to Cases 2, 4, and 5. WT/DS294/AB/RW 
Page 150  
 
  recommendations and rulings of the DSB, consid ering that the anti-dumping duty orders were 
revoked at the end of the sunset reviews with an effe ctive date of 7 March 2007.  We consider this to 
be the case even assuming that the European Communities had demonstrated that these likelihood-of-
dumping determinations relied on ma rgins of dumping calculated using zeroing.  We wish to 
underline that we are not determining whether or not the USDOC's final likelihood-of-dumping determinations in these sunset reviews were in compliance with the recommendations and rulings of 
the DSB after the end of the reasonable period of time.  However, we consider that these 
determinations do not ultimately undermine compli ance by the United States, considering that the 
sunset reviews resulted in revoca tion orders and that these revocati on orders became effective on a 
date prior to the end of the reasonable period of time. 
381. Under these circumstances, we do not consider it appropriate to conclude that the United 
States failed to comply with the recommendations and rulings of the DSB in the original proceedings.  
We therefore decline  to make a finding on whether the Panel erred in not ruling, in paragraph 8.141 of 
the Panel Report, on the European Communities' clai m that the United States failed to comply with 
the recommendations and rulings of the DSB in the sunset reviews in Cases 2, 4, and 5. 
382. Finally, we consider the Panel's findings with  respect to the third subcategory of sunset 
determinations, which includes Case 19.  We reca ll that, in Case 19, both the USDOC and the USITC 
had made their respective final likelihood-of-dumpi ng and likelihood-of-injury determinations by the 
time the Panel was established.  However, the USDOC issued a continuation order on 12 October 
2007, after  the Panel was establis hed on 25 September 2007. 
383. We recall that, in Chile – Price Band System , the Appellate Body found that a panel could 
examine amendments to a measure that post-dated it s establishment, provided they did not change the 
essence of the measure at issue.
508  In the present case, we observe that, even if the continuation order 
post-dated the establishment of the Panel, it was is sued only a few days after this date and does not 
change the essence of the determinations under this sunset review.  We consider that the continuation 
order is relevant in judging compliance by the Unit ed States with the recommendations and rulings of 
the DSB.  We also observe that, at the time the Panel was established, both de terminations required by 
Article 11.3 of the Anti-Dumping Agreement  in a sunset review had been made and, therefore, 
                                                      
508Appellate Body Report, Chile – Price Band System , para. 139.  WT/DS294/AB/RW 
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  considering that both determina tions were affirmative, the sunset review would result in a 
continuation order by operation of law509 in the United States' anti-dumping system.510 
384. We are of the view that the Panel should have c onsidered that this sunset review resulted in a 
continuation order in its evaluation of whether it af fected compliance by the United States with the 
recommendations and rulings of the DSB in this partic ular sunset review.  Thus, we disagree with the 
Panel that the fact that the proceedings had not been formally concluded in Case 19 prevented it from 
considering the effects of the sunset review on the implementation of the DSB's recommendations and 
rulings by the United States.511 
385. We therefore reverse  the Panel's findings, in paragraph 8.140 the Panel Report, that any 
failure by the United States in the sunset review in Case 19 had not yet materialized as of the date of 
establishment of the Panel and thus had no effect on the United States' implementation of the DSB's 
recommendations and rulings and that, as a con sequence, the European Communities has not 
demonstrated that the United States failed to comply with the recommendations and rulings of the 
DSB. 
2. Completing the Analysis  
386. This brings us to the question of whether we can complete the analysis, as requested by the 
European Communities, and find that, by relying in  the sunset review proceedings in Case 19 on 
margins of dumping calculated in prior proceedings  using zeroing, the United States failed to comply 
with the recommendations and rulings of the DSB a nd with its obligations pursuant to Articles 2.1, 
2.4, 2.4.2, and 11.3 of the Anti-Dumping Agreement . 
                                                      
509In response to questioning at the oral hearing, the United States confirmed that, if both the USDOC 
and the USITC have made affirmative likelihood-of-d umping and likelihood-of-injury determinations, the 
USDOC has no discretion not to issue a continuation order, as this is a "ministerial function". 
510Section 351.218(f)(4) of Title 19 of the United States Code of Federal Regulations  provides that: 
... the [USDOC] normally will issue its de termination to continue an order 
or suspended investigation, or to revoke an order or terminate a suspended investigation, as applicable, not later than seven days after the date of 
publication in the Federal Register of the [USITC's] determination 
concluding the sunset review. 
In its press release of 7 September 2007 relating to the likelihood-of-injury determination in Case 19, 
the USITC stated that, "[a]s a result of the [USITC's] affirmative determin ation, the existing orders on imports 
of pasta from Italy and Turkey will remain in place". (emphasis added) (See European Communities' appellant's 
submission, footnote 163 to para. 117) 
511Panel Report, paras. 8.139 and 8.140. WT/DS294/AB/RW 
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  387. A similar question arises with respect to Cases 24, 28, 29, 30, and 31, which the Panel found 
not to fall within its terms of reference.  We have reversed this finding by the Panel, and the European 
Communities is therefore requesting us to complete th e analysis and find that, by relying also in the 
sunset review proceedings in Cases 24, 28, 29, 30, and 31 on margins of dumping calculated in prior proceeding using zeroing, the United States failed to comply with the recommendations and rulings of the DSB and with its obligations pursuant to Articles 2.1, 2.4, 2.4.2, and 11.3 of the Anti-Dumping 
Agreement .
512 
388. In previous disputes, the Appellate Body h as completed the analysis with a view to 
facilitating the prompt settlement of the dispute.513  However, the Appellate Body has held that it can 
do so only if the factual findings of the panel and th e undisputed facts in the panel record provide it 
with a sufficient basis for the completion of its own analysis.514 
389. We start by considering whether we can complete  the analysis in Case 19.  The Panel found, 
with respect to the USDOC's likelihood-of-dumping de termination in Case 19, that "[t]he Issues and 
Decision Memorandum submitted to the Panel by the United States ... indicates that the USDOC found that dumping was likely to continue or recu r if the order[] were revoked based on its finding 
that dumping had continued at above de minimis levels since the issuance of the order".
515  Therefore, 
it  concluded that "[i]t seems clear ... from the Is sues and Decision Memorand[ um] in [Case 19] that 
the finding[] that dumping had continued at above de minimis  levels since the issuance of the relevant 
[anti-dumping duty] order refer[s] to [a] dumping ma rgin[] that had been calculated in administrative 
reviews, using zeroing."516 
390. We recall that, in US – Corrosion-Resistant Steel Sunset Review , the Appellate Body 
explained that, "should investigating authorities choo se to rely upon dumping margins in making their 
likelihood determination, the calculation of th ese margins must conform to the disciplines of 
                                                      
512European Communities' appellant's submission, para. 120. 
513See, for example, Appellate Body Report,  Australia – Salmon , paras. 117 and 118;  Appellate Body 
Report,  US – Wheat Gluten , paras. 80-92;  and Appellate Body Report, Canada – Aircraft (Article 21.5 – 
Brazil) , paras. 43-52. 
514See Appellate Body Report, Australia – Salmon , paras. 209, 241, and 255;  Appellate Body Report, 
Korea – Dairy , paras. 91 and 102;  Appellate Body Report, Canada – Autos , paras. 133 and 144;  Appellate Body 
Report, Korea – Various Measures on Beef , para. 128;  Appellate Body Report, EC – Asbestos , paras. 82 and 83; 
and Appellate Body Report, Canada – Periodicals , p. 24, DSR 1997:I, 449, at 469. 
515Panel Report, para. 8.138 (referring to USDOC Issues and Decision Memorandum from Notice of 
Final Results of Expedited Sunset Reviews of the Antidumping Duty Orders: Certain Pasta from Italy and Turkey (5 February 2007), at p. 5 (Panel Exhibit US-25)). 
516Panel Report, para. 8.138.  WT/DS294/AB/RW 
 Page 153 
 
 
  Article 2.4."517  The Appellate Body added that, "[i]f th ese margins were legally flawed because they 
were calculated in a manner inconsistent with Article  2.4, this could give rise to an inconsistency not 
only with Article 2.4, but also with Article 11.3 of the Anti-Dumping Agreement ."518  In such 
circumstances, the "likelihood determination could not constitute a proper foundation for the 
continuation of anti-dumping duties under Article 11.3."519  The Appellate Body made similar 
findings in US – Anti-Dumping Measures on Oil Country Tubular Goods , US – Zeroing (Japan) , and 
US – Continued Zeroing .520 
391. We consider that the findings by the Panel in  Case 19 constitute a sufficient factual basis to 
allow us to complete the analysis and find that the sunset review in Case 19 is inconsistent with 
Article 11.3 of the Anti-Dumping Agreement  and results in failure by the United States to comply with 
the recommendations and rulings of the DSB, which had established that the use of zeroing by the 
United States in the original investigation and ad ministrative reviews relating to the same Case was 
inconsistent with the Anti-Dumping Agreement .  
392. We consider next whether we can complete the analysis in respect of the subsequent sunset 
reviews in Cases 24, 28, 29, 30, and 31.  These sunset  reviews have all resulte d in continuation orders 
and the relevant anti-dumping duty orders have not been fully revoked following the adoption of the 
DSB's recommendations and rulings in the original proceedings.  The sunset reviews in these Cases 
provided the legal basis for the continued imposition of anti-dumping duties after the expiry of the 
reasonable period of time and still provide the lega l basis for their continued imposition as of that 
date. 
393. The Panel made no express factual findings on Cases 24, 28, 29, 30, and 31521, as it had 
excluded these sunset reviews from its terms of re ference.  The European Communities submitted to 
the Panel the USDOC's Issues and Decision Memoranda  of the sunset reviews in Cases 28, 29, 30, 
and 31.  We observe that the Issues and Decision Memoranda in these Cases indicate that the USDOC 
found that dumping was likely to continue or recur if the orders were revoked, based on margins of 
                                                      
517Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127. 
518Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 127. 
519Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 130. 
520Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods , para. 181;  
Appellate Body Report, US – Zeroing (Japan) , para. 185;  Appellate Body Report, US – Continued Zeroing , 
paras. 183-185. 
521We note that the panel and the Appellate Body in US – Continued Zeroing  had already found that the 
sunset reviews in Cases 18, 22, 28, 29, 30, and 31 were inconsistent with Article 11.3 of the Anti-Dumping 
Agreement . (See Appellate Body Report, US – Continued Zeroing , para. 383) WT/DS294/AB/RW 
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  dumping calculated in original investigations a nd previous administrative reviews using zeroing.
522  
The European Communities, however, did not submit to the Panel the USDOC's Issues and Decision 
Memorandum relating to Case 24.523 In the absence of express factual findings by the Panel and 
undisputed evidence in the Panel record regarding C ase 24, we are unable to complete the analysis in 
respect of this Case. 
394. In contrast, the Issues and Decision Memoranda in Cases 28, 29, 30, and 31, which are in the 
Panel record, indicate that, in making its likeli hood-of-dumping determinations in these Cases, the 
USDOC relied on dumping margins that had been calc ulated in original investigations and previous 
administrative reviews with the use of zeroing.  We consider that this constitutes a sufficient factual 
basis to allow us to complete the analysis and find that the sunset reviews in Cases  28, 29, 30, and 31 
are inconsistent with Article 11.3 of the Anti-Dumping Agreement  and result in failure by the United 
States to comply with the recommendations and ru lings of the DSB, which had established that the 
use of zeroing by the United States in the original investigation and in administrative reviews relating 
to the same Cases was inconsistent with the Anti-Dumping Agreement . 
395. In this respect, as we have already considered above524 for Case 19, in previous cases, the 
Appellate Body has found that, if an inves tigating authority relies upon a margin of dumping 
calculated using a WTO-inconsistent methodol ogy to support its likelihood-of-dumping 
determination, the use of such a methodology would render a sunset review determination 
inconsistent with Article 11.3 of the Anti-Dumping Agreement .  We consider that the failure to revise 
the likelihood-of-dumping determination so as to eliminate reliance on margins of dumping calculated 
using zeroing, effective as from the expiry of th e reasonable period of time, undermines compliance 
by the United States with the recommendations and rulings of the DSB.  We observe that, while 
continuation orders in these cases were issued before the expiry of the reasonable period of time, such 
                                                      
522For Case 28 , see USDOC Issues and Decision Memorandum for the Expedited Sunset Review of the 
Antidumping Duty Order on Stainless Steel Sheet and Strip in Coils from Germany; Final Results, at p. 4 (published in United States Federal Register , Vol. 69 (22 November 2004) 67896 (Panel Exhibit EC-58).  For 
Case 29
, see USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping 
Duty Orders on Antifriction Bearings and Parts Thereo f from France, Germany, Ital y, and the United Kingdom; 
Final Results, at p. 9 (published in United States Federal Register , Vol. 70 (5 October 2005) 58183 (Panel 
Exhibit EC-37).  For Case 30 , see USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews 
of the Antidumping Duty Orders on Antifriction Bearings  and Parts Thereof from Fr ance, Germany, Italy, and 
the United Kingdom; Final Results, at p. 9 (published in United States Federal Register , Vol. 70 (5 October 
2005) 58183 (Panel Exhibit EC-37).  For Case 31 , see USDOC Issues and Decision Memorandum for the 
Expedited Sunset Reviews of the Antidumping Duty Orders on Antifriction Bearings and Parts Thereof from France, Germany, Italy, and the United Kingdom; Final Results, at p. 10 (published in United States Federal 
Register , Vol. 70 (5 October 2005) 58183 (Panel Exhibit EC-37). 
523In its reply to Panel Question 6, the European Communities indicated that to the best of its 
knowledge there was no Issues and Decision Memorandum relating to the sunset review in Case 24.  
524Supra , para. 390.  WT/DS294/AB/RW 
 Page 155 
 
 
  continuation orders resulted in the extension of th e anti-dumping duty orders for another five years, 
thus beyond the expiry of the reasonable period of time.  We further note that, based on the anti-
dumping duty orders that were continued by mean s of these sunset reviews, the United States 
conducted administrative reviews after the expiry of the reasonable period of time that assessed duty 
rates and established cash deposit rates based on zeroing. 
396. Based on the Panel's findings and on undisputed  evidence in the Panel record, we have 
reached the conclusion that, in the likelihood-of-dum ping determinations in the sunset reviews in 
Cases 19, 28, 29, 30, and 31, the USDOC relied on margins of dumping calculated using zeroing in 
previous administrative reviews and original investig ations.  We, therefore, conclude that, because the 
likelihood-of-dumping determina tions in these sunset reviews relied on margins of dumping 
calculated inconsistently with the Anti-Dumping Agreement , they are inconsistent with Article 11.3 of 
that Agreement and undermine compliance by the United States. 
397.  Having found that the sunset reviews in Cases 19, 28, 29, 30, and 31 are inconsistent with 
Article 11.3 of the Anti-Dumping Agreement , we do not consider it necessary to rule on whether the 
same sunset review determinations are also incons istent with Articles 2.1, 2.4, and 2.4.2 of the Anti-
Dumping Agreement .  Furthermore, the European Communities has not explained why additional 
findings under these provisions would be necessary to resolve the dispute.525 
398. We turn finally to the claim by the European Communities that the Panel acted inconsistently 
with Article 11 of the DSU because it did not addr ess the claim by the European Communities that the 
United States failed to comply with the DSB's re commendations in the original proceedings by 
keeping in place certain aspects of the original measures—that is, margins of dumping based on 
zeroing—and by relying on those margins for the determination of likelihood of recurrence of 
dumping in subsequent sunset review proceed ings concerning the same anti-dumping measures.526 
399. We note that, in respect of the five sunset re views it considered to fall within its terms of 
reference, the Panel initially dete rmined, based on the Issues and D ecision Memoranda in the sunset 
reviews in Cases 2, 3, 4, 5, and 19, that the USDOC's likelihood-of-dumping  determinations were 
based on margins of dumping calculated in administrative reviews using zeroing.527  However, the 
Panel later concluded that, consideri ng that none of the sunset reviews at issue had been concluded by 
the time the Panel was established, it could not find that the United States had violated the provisions 
of the Anti-Dumping Agreement  because it had relied on margins of dumping calculated with zeroing. 
                                                      
525Appellate Body Report, Australia – Salmon , para. 223. 
526European Communities' appellant's submission, para. 102. 
527Panel Report, para. 8.138. WT/DS294/AB/RW 
Page 156  
 
  400. In our view, therefore, the Panel addressed th e claim by the European Communities that the 
United States failed to comply with the DSB's r ecommendations and rulings by relying on certain 
aspects of the measures at issue in the original  proceedings (the margins of dumping based on 
zeroing) in these sunset reviews.  The Panel, how ever, found that the European Communities has not 
demonstrated that the United States failed to comply with the DSB's recommendations and rulings, 
because none of the sunset reviews had been conclu ded by the time the Panel was established.  We 
recall that we have reversed this finding by the Panel in respect of Case 19. 
401. We further note that, in Chile – Price Band System (Article 21.5 – Argentina) , the Appellate 
Body found that a Member cannot base its claims under Article 11 of the DSU "on the same grounds" as its claims under substantive provisions in the c overed agreements.  In particular, the Appellate 
Body ruled that "a claim that a panel failed to comply with its duties under Article 11 of the DSU 
must stand by itself and should not be made merely as a subsidiary argument or claim in support of a 
claim that a panel failed to apply correctly  a provision of the covered agreements."
528  In that case, the 
Appellate Body also referred to its decision in US – Steel Safeguards , where it found that: 
[a] challenge under Article 11 of the DSU must not be vague or 
ambiguous.  On the contrary, such a challenge must be clearly articulated and substantiated with specific arguments.  An Article 11 claim is not to be made lightly, or merely as a subsidiary argument or claim in support of a claim of a panel's failure to construe or apply 
correctly a particular provision of a covered agreement.  A claim 
under Article 11 of the DSU must stand by itself and be substantiated, as such, and not as subsidiary to another alleged 
violation.
529 (footnote omitted) 
402. In the present case, we are not persuaded that the claims and arguments by the European 
Communities under Article 11 of the DSU differ from its claims that the Panel failed to apply 
correctly other provisions of the DSU and the Anti-Dumping Agreement .  Therefore, we find that the 
Panel did not act inconsistently with Article 11 of the DSU. 
X. The Non-Existence of Measures betwee n 9 April and 23 April/31 August 2007 
403. We move to the issue of whether the Panel erred in declining to make findings with respect to 
the contentions of the European Communities on th e non-existence of measures "taken to comply" 
between 9 April 2007 and 23 April/31 August 2007. 
                                                      
528Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina) , para. 238. 
529Appellate Body Report, US – Steel Safeguards , para. 498.  WT/DS294/AB/RW 
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  404. On 27 December 2006, the USDOC announced that it would abandon zeroing in original 
investigations in which the weighted average-to -weighted average comparison of normal value and 
export prices is used.  The modification became effective on 22 February 2007 and concerned all 
pending and future original investigations as of that date.530 
405. On 1 March 2007, the USDOC initiated proceedin gs pursuant to Section 129 of the URAA 
covering 12 of the 15 original anti-dumping investiga tions at issue in the original proceedings.  The 
remaining three anti-dumping duty orders had b een previously revoked.  In the Section 129 
determinations, the USDOC recalculated, without  zeroing, the relevant margins of dumping by 
applying the modification published in the United States Federal Register in December 2006.  Eleven 
Section 129 determinations were issued by th e USDOC on 9 April 2007 and became effective on 23 
April 2007.  The results in the last Section 12 9 determination were issued on 20 August 2007 and 
became effective on 31 August 2007.531  Thus, the 12 determinations under Section 129 came into 
effect after the reasonable period of time ended on 9 April 2007. 
406. The European Communities requested the Panel to make the finding that, by failing to put 
into effect measures "taken to  comply" between 9 April and 23 April/31 August 2007, the United 
States violated Articles 21.3 and 21.3(b) of the DSU, and failed to comply with the recommendations 
and rulings of the DSB pursuant to Article 19.1 of the DSU.   
407. The Panel considered it was not clear that Article 21.3 of the DSU, including 
subparagraph (b) thereof, provides a legal basi s for the finding requested by the European 
Communities.  In any event, the Panel considered th at, even if it were assumed that Article 21.3(b) 
provided such a basis, it was neither necessary, nor appropriate, as a matter of judicial economy, for it to make the finding requested by the European Comm unities.  The Panel noted that Article 21.5 of the 
DSU does not specify with respect to what date  a compliance panel should assess the "existence or 
consistency ... of meas ures taken to comply".
532  In this respect, the Panel endorsed the positions of 
the compliance panels in US – Upland Cotton (Article 21.5 – Brazil)  and EC – Bed Linen 
(Article 21.5 – India) , which determined that the relevant da te is that of the establishment of the 
                                                      
530USDOC, Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During 
an Antidumping Investigation; Final Modification, United States Federal Register , Vol. 71, No. 248 
(27 December 2006) 77722 (Panel Exhibit EC-1);  USDOC, Antidumping Proceeding s: Calculation of the 
Weighted-Average Dumping Margin during an Antidumping Investigation; Preliminary Results of the 
Section 129 Determinations (26 February 2007) (Panel Exhibit EC-4).  See also European Communities' first 
written submission to the Panel, para. 16;  and United St ates' first written submission to the Panel, para. 17.   
531See Panel Report, para. 3.1. 
532Panel Report, para. 8.226. WT/DS294/AB/RW 
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  compliance panel.
533  The Panel was of the opinion that making the finding requested by the European 
Communities would be of little relevance to the effect ive resolution of the dispute between the parties 
and without practical implications as to the oblig ations of the United States, because the factual 
situation that forms the basis of the European Co mmunities' claim is the non- existence of measures 
"taken to comply", and that factual situation had cease d to exist at the time of the establishment of this 
Panel.  On the basis of these considerations, the Pa nel declined to make the finding requested by the 
European Communities.534   
408. On appeal, the European Communities claims that  the Panel erred in so doing, violating its 
duties under Article 11 of the DSU.  The European  Communities requests the Appellate Body to find 
that the Panel erred in this respect, and to comp lete the analysis and find that the United States 
violated Articles 19.1, 21.3, and 21.3(b) of the DS U in not putting into effect measures "taken to 
comply" between 9 April and 23 April/31 August 2007.  The European Communities argues that, in 
failing to rule on this omission, the Panel failed to examine a matter that was part of its mandate and 
"abused" the concept of judicial economy535, as the Panel provided only a partial resolution to the 
matter at issue.  The European Communities adds that Article 21.3 of the DSU implies that WTO 
Members have the obligation to bring their WTO-in consistent measures into conformity with their 
obligations immediately after the adoption of the recommendations and rulings of the DSB, or, should 
a reasonable period be agreed between the parties to the dispute, at the end of such a period at the 
latest. 
409. According to the United States, the Panel co rrectly rejected the European Communities' 
request for a finding that the United States failed to comply with the recommendations and rulings of the DSB by not taking any measures between the end of  the reasonable period of time and the date on 
which the Section 129 determinations entered into fo rce.  In any event, the United States argues that 
the Panel was correct to find that the United Stat es did not breach Article 21.3 of the DSU, because 
Article 21.3 does not impose an obligation on the Me mber concerned;  rather, Article 21.3 provides 
the implementing Member with the right to a r easonable period of time should immediate compliance 
be impracticable.  The United States notes that th ere was no "disagreement" between the parties that 
the United States did not implement the Secti on 129 determinations before 23 April 2007 or 
                                                     
 
533Panel Report, US – Upland Cotton (Article 21.5 – Brazil) , paras. 9.64-9.71;  Panel Report, EC – Bed 
Linen (Article 21.5 – India) , para. 6.28.  The Panel also referred to Panel Report, US – Shrimp (Article 21.5 – 
Malaysia) , paras. 5.12 and 5.13.  The requests for findings examined (and rejected) by the panels in EC – Bed 
Linen (Article 21.5 – India) and US – Upland Cotton (Article 21.5 – Brazil)  were made under Article 21.5 of the 
DSU. 
534Panel Report, paras. 8.225-8.227. 
535European Communities' appellant's submission, para. 218.  WT/DS294/AB/RW 
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  31 August 2007, respectively.536  In any event, there being no "d isagreement" within the meaning of 
Article 21.5 as to the existence of the Section 129 de terminations at issue as of the date of Panel 
establishment, there is no basis for the Appellate Body  to disturb the Panel's stance on this issue.  
410. At the outset of our analysis, we underscore that, under Article 21.1 of the DSU, "[p]rompt 
compliance with recommendations or rulings of the DSB is essential in order to ensure effective 
resolution of disputes to the benefit of all Member s."  Therefore, when it is impracticable for the 
responding WTO Member to comply immediately w ith the recommendations and rulings of the DSB 
and a reasonable period of time for implementation has been established pursuant to Article 21.3 of 
the DSU, the responding WTO Member is expected to comply with the recommendations and rulings 
of the DSB within this reasonable period of time, th at is to say, at the latest, as of the end of the 
reasonable period of time. 
411. In its assessment under Article 21.5 of the DSU,  the Panel took into account events that 
occurred between the end of the reasonable peri od of time and the establishment of the Panel 
(25 September 2007), namely, the entry into force of 11 Section 129 determinations (issued by the 
USDOC on 9 April 2007) on 23 April 2007, the issuance of another Section 129 determination on 
20 August 2007, and its entry into force on 31 August 2007.  The appeal of the European 
Communities raises the question of whether the Pa nel was permitted to do so and to refrain from 
making a finding that there was a failure to comply in the periods between 9 April 2007 (when the reasonable period of time ended) and 23 April/31 Au gust 2007 (when the Section 129 determinations 
entered into effect).  In our view, these actions by the Panel have to be considered in the light of the 
objective of the WTO dispute settlement system, whic h is to secure a positive and effective solution to 
a dispute.
537  In this case, the Panel acted in a manner consistent with the objective of securing a 
positive and effective solution to the dispute, and did not exceed the bounds of its discretion when, in 
its analysis of whether the United States had comp lied with the recommendations and rulings of the 
DSB, it took into account implementation actions take n subsequent to the expiry of the reasonable 
period of time but before the Artic le 21.5 Panel was established.  
                                                      
536United States' appellee's submission, para. 119. 
537Article 3.7 of the DSU.  See also Article 3.4 of the DSU, which provides that "[r]ecommendations or 
rulings of the DSB shall be aimed at  achieving a satisfactory settlement of the matter in accordance with the 
rights and obligations under this Understanding and under the covered agreements."   
In Australia – Salmon , the Appellate Body recalled, in the context of an analysis on judicial economy, 
that a panel should perform its assessment of the matter in a way so as "to ensure eff ective resolution of disputes 
to the benefits of all Members." (Appellate Body Report, Australia – Salmon , para. 223 (quoting Article 21.1 of 
the DSU)) WT/DS294/AB/RW 
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  412. When an Article 21.5 panel makes a finding that a WTO Member has not complied with the 
recommendations and rulings of the DSB in the original  proceedings, the implication of that finding is 
that the WTO Member remains subject to obliga tions flowing from the recommendations and rulings 
issued by the DSB in the origin al proceedings.  However, if the compliance panel finds that 
compliance has been achieved at the time of its es tablishment, but not at the end of the reasonable 
period of time, the responding WTO Member will not need to take additional remedial action.   
413. In the light of these considerations, we find that the Panel did not act inconsistently with 
Article 11 of the DSU in declining, in paragraphs 8.227 and 9.1(b)(vii) of the Panel Report, to make 
findings on the European Communities' claim that, by not taking measures to comply between 9 April 
and 23 April/31 August 2007, the United States violated Article 21.3 of the DSU.   
414. Having said that, we emphasize that, in principle,  a measure found to be inconsistent is to be 
brought into conformity immediately, and that a reasonable period to do so can be agreed to or 
awarded only in circumstances where immediate compliance is impractical.  In particular, Article 21.3 of the DSU provides that the Member concerned shall have a reasonable period of time " in which " to 
comply with recommendations and rulings of the DSB.  The reference to a reasonable period in which  
to comply suggests that a Member should bring its measure into conformity within  the reasonable 
period of time, so that compliance is in effect by the end of that period. 
XI. The Alleged Arithmetical Error in th e Section 129 Determination in Case 11 
415. We now turn to the European Communities' app eal of the Panel's finding that the European 
Communities was precluded from raising claims against an arithmetical error relating to Stainless 
Steel Sheet and Strip in Coils from Italy  (Case 11) allegedly committed by the USDOC in the 
recalculation of the margin of dumping in its Section 129 determination. 
A. The Panel's Findings 
416. Before the Panel, the Europ ean Communities argued that the USDOC committed, and then 
failed to remove, an obvious arith metical error in its Section 129 determination in Case 11.  The 
European Communities submitted that, in the orig inal investigation, the USDOC incorrectly 
calculated the average unit value of 84 individual sales by TKAST
538 to the United States, to which 
                                                      
538ThyssenKrupp Acciai Speciali Terni S.p.A. and ThyssenKrupp AST USA—a manufacturer/exporter 
of stainless steel sheet and strip in coils from Italy.  WT/DS294/AB/RW 
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  the USDOC applied a "facts available" rate.539  This error artificially inflated the unit value and, 
therefore, the amount of dumping found.  The Eu ropean Communities argued that, despite realizing 
this obvious error, the USDOC fail ed to correct it in the Section 129 determination but, rather, 
considered that any alleged clerical or comput ational error unrelated to the implementation of 
instructions from the United States Trade Represen tative was outside the scope of the Section 129 
proceeding.540 
417. The Panel considered that "the EC claim with respect to the alleged calculation error 
constitute[d] a new claim with respect to an unchanged  aspect of the original measure, the 
determination in the original investig ation, which the European Communities could have made , but 
did not make , in the original dispute ."541  For this reason, the Panel concluded that the European 
Communities was precluded from raising this claim in these Article 21.5 proceedings.542   
418. The Panel reasoned that "the scope of Article 21.5 of the DSU is not so broad as to allow a 
complaining party to make claims that it could have made, but did not make, in the original 
proceeding, with respect to aspects of the original  measure at issue that were incorporated, but 
remained unchanged, in the measure taken to comply."543  The Panel also found that "the claims of the 
European Communities relate to a part of the S ection 129 Determination that  has remained unchanged 
from the original measure, and that that part can be  'separated' from the remainder of the Section 129 
Determination for the purpose of this proceeding."544  The Panel concluded that the European 
Communities' claims in respect of the alleged ar ithmetical error in the Section 129 determination 
relating to Case 11 were not properly before it, and therefore made no findings on the substance of the 
European Communities' claims in this respect.545 
B. Claims and Arguments on Appeal 
419. The European Communities submits that the Pa nel erred in the legal interpretation of 
Article 21.5 of the DSU when finding that the Eu ropean Communities' claims in respect of the 
Section 129 determination in Case 11 were not properly before it.546 
                                                      
539The European Communities submits that the USDOC, in its calculation, erroneously inverted the 
fraction:  it divided the total volume of the sales by their total value, instead of dividing the total value by the total volume. 
540Panel Report, para. 8.229. 
541Panel Report, para. 8.239. (original emphasis) 
542Panel Report, para. 8.239. 
543Panel Report, para. 8.242. 
544Panel Report, para. 8.243. (footnote omitted) 
545Panel Report, para. 8.244. 
546European Communities' appellant's submission, para. 235. WT/DS294/AB/RW 
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  420. The European Communities contends th at "the arithmetical error was an integral part  of the 
'measure taken to comply' by the United States and, thus, fell under the scope of this compliance 
proceeding."
547  Alternatively, the European Communities claims that "the arithmetical error fell 
under the scope of this compliance proceeding because of its particularly close relationship to the 
re-determination of dumping carried out in  the Section 129 Determination concerned."548  T h e  
European Communities also claims that the Panel erred in finding that the European Communities 
was precluded from raising its claims against the arithmetical error in these compliance 
proceedings.549  According to the Europ ean Communities, "in compliance proceedings a Member is 
not prevented from raising new claims against unchanged aspects of the original measure which 
remained in the measure taken to comply"550, and allowing such new claims "does not provide the 
complaining Member with a second chance to make  its case;  nor does it call into question the 
principles of fundamental fairness and due process."551  The European Communities requests the 
Appellate Body to reverse this finding and to comple te the analysis and find that, by failing to remove 
the arithmetical error, the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1, and 11.2 of the Anti-
Dumping Agreement , Article VI:2 of the GATT 1994, and Articles 19.1 and 21.3 of the DSU, and 
failed to comply with the DSB's recommendations  and rulings in the original proceedings.552 
421. The United States responds that it never acknowledge d that an arithmetical error was made in 
the original investigation in Case 11.  The Un ited States also argues that, during the Section 129 
proceeding, the USDOC neither realized nor  agreed that an error had been made.553  The United States 
claims that "[t]he compliance Panel correctly rejected  the EC's claim that an alleged clerical error in 
one of the original investigations at issue in the original proceeding should have been corrected when 
the United States recalculated the margin of dumping without zeroing."554  According to the United 
States, the alleged arithmetical error "is 'separable ' from the measure taken to comply", because, in 
recalculating the margin of dumping without zeroi ng, the USDOC "changed only the language that 
caused the computer program to disregard non-dum ped comparisons" and "t hen re-ran the program 
and calculated the revised margin of dumping", but "made no other changes to the computer 
program".555  The United States argues that the Panel properly found that the new claim was not 
                                                      
547European Communities' appellant's submission, para. 248. (original emphasis) 
548European Communities' appellant's submission, para. 259. (footnote omitted) 
549European Communities' appellant's submission, para. 270. 
550European Communities' appellant's submission, para. 270. 
551European Communities' appellant's submission, para. 272. 
552European Communities' appellant's submission, paras. 291 and 296. 
553United States' appellee's submission, para. 125. 
554United States' appellee's submission, para. 15. 
555United States' appellee's submission, para. 130 (referring to Panel Report, para. 5.148).  WT/DS294/AB/RW 
 Page 163 
 
 
  within the scope of these compliance proceedings.556  The United States contends that "[t]he alleged 
error ... is an aspect of the original measure that is  unchanged", even if the arithmetical error became 
an integral part of the "measure taken to  comply" as the European Communities contends.557  
According to the United States, the European Communities' argument would allow complaining 
Members a "second chance" to pursue claims they could have pursued in the original proceedings, but 
did not, and thus presents "fundamental due process concerns".558   
C. Analysis 
422. We begin our analysis by examining, first, whether the Panel erred in finding that the 
European Communities could not properly raise cl aims against the arithmetical error allegedly 
committed by the USDOC in the Section 129 proceedi ng in Case 11.  We shall then consider the 
claim on appeal by the European Communities that the Pa nel erred in finding that its claims relate to a 
part of the Section 129 determina tion that remained unchanged from the original measure and that can 
be separated from the rest of the Section 129 determination. 
423. The Panel relied on the panel report in US – Countervailing Measures on Certain EC 
Products (Article 21.5 – EC)  to find that the European Communi ties was precluded from raising in 
these Article 21.5 proceedings claims against an unchanged aspect of the original measure (the 
alleged arithmetical error), which the European Co mmunities could have made, but did not make, in 
the original proceedings.  The panel in US – Countervailing Measures on Certain EC Products 
(Article 21.5 – EC)  found that allowing a complaining Member to make "a new claim on an aspect of 
the original measure that was neve r challenged and remained unchanged"559 would jeopardize the 
principles of fundamental fairness and due process, and that it would be unfair to expose a responding 
Member to the possibility of a finding of violation on an aspect of the origin al measure that it "was 
entitled to assume was consistent with its obliga tions under the relevant agreement given the absence 
of a finding of violation in the original report."560 
424. We disagree with the notion that a Member  may be entitled to assume in Article 21.5 
proceedings that an aspect of a measure that wa s not challenged in the original proceedings is 
consistent with that Member's obligati ons under the covered agreements.  In US – Oil Country 
                                                      
556United States' appellee's submission, paras. 132 and 133. 
557United States' appellee's submission, para. 133. 
558United States' appellee's submission, para. 134. 
559Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) , 
para. 7.76. 
560Panel Report, US – Countervailing Measures on Certai n EC Products (Article 21.5 – EC) , 
para. 7.75. (footnote omitted) WT/DS294/AB/RW 
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  Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , the Appellate Body held that, "[o]n the 
basis of the original panel's conclusions [rega rding the likelihood-of-dumping determination], the 
USDOC could not assume that its findings regardi ng the alleged decline in the volume of imports 
were WTO-consistent"
561, as these concerned a different aspect of the original measure.  If certain 
claims against aspects of a measure were not decide d on the merits in the original proceedings, they 
are not covered by the recommendations and rulings of the DSB and, therefore, a Member should not 
be entitled to assume that those aspects of the measu re are consistent with the covered agreements. 
425. We recall that, in EC – Bed Linen (Article 21.5 – India) , the Appellate Body found that a 
complaining Member that has failed to make a prima facie  case in the original proceedings regarding 
an element of the measure that remained unchange d after implementation may not re-litigate the same 
claim with respect to the unchanged element of the measure in the Article 21.5 proceedings where this 
unchanged element is separable from the cha nged part of the implementation measure.562  In US – 
Shrimp (Article 21.5 – Malaysia) , the Appellate Body found that a complaining Member may not 
reassert the same claim against an unchanged asp ect of the measure that has been found to be 
WTO-consistent in the original proceedings.563 
426. Referring to these two cases in US – Upland Cotton (Article 21.5 – Brazil) , the Appellate 
Body observed that, "[b]ecause adopted panel and A ppellate Body reports must be accepted by the 
parties to a dispute, allowing a party in an Article 21.5 proceeding to re-argue a claim that has been 
decided in adopted reports woul d indeed provide an unfair 'second chance' to that party."564  However, 
in US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body distinguished the claims in  
EC – Bed Linen (Article 21.5 – India)  and US – Shrimp (Article 21.5 – Malaysia)  from those at issue 
in that dispute, and found that allowing a complain ing Member to make a case that it did not establish 
in the original proceedings would not provide  it with an unfair "second chance", nor would it 
compromise the finality of the DSB's recommendations and rulings.565 
427. While claims in Article 21.5 proceedings cannot be used to re-open issues that were decided 
on substance in the original proceedings, the unconditional acceptance of the recommendations and 
rulings of the DSB by the parties to a dispute do es not preclude raising new claims against measures 
taken to comply that incorporate unchanged aspects of  original measures that could have been made, 
but were not made, in the original proceedings .  We do not see how allowing such claims in 
                                                      
561Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , 
para. 150. 
562See Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 86 and 93. 
563See Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia) , para. 96. 
564Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 210. (footnote omitted) 
565See Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 210.  WT/DS294/AB/RW 
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  Article 21.5 proceedings would "jeopardize the principles of fundamental fairness and due 
process"566, or how it would unfairly provide a "second chance"567 to the complaining Member, 
provided these new claims relate to a measure "taken to comply" and do not re-argue claims that were 
decided in the original proceedings. 
428. We observe that, in the present case, the European Communities did not raise a claim 
regarding the alleged arithmetical error in the orig inal proceedings.  As such, this issue was not 
decided in the original recommendations and ruli ngs of the DSB, which concerned only the zeroing 
methodology.  Therefore, allowing the European Comm unities to raise claims ag ainst such an alleged 
error in these Article 21.5 proceedings would not ra ise due process concerns, because it would not in 
itself provide another chance to the European Comm unities to make a case it failed to make in the 
original proceedings, such that the finality of  the DSB's recommendations and rulings would be 
compromised. 
429. We therefore disagree with the Panel, to the extent it relied on the principles of fundamental 
fairness and due process as applied by the panel in US – Countervailing Measures on Certain EC 
Products (Article 21.5 – EC) , to support its finding that the European Communities was precluded 
from raising claims against the arithmetical  error in these Article 21.5 proceedings.568 
430. In finding that "the scope of Article 21.5 of the DSU is not so broad as to allow a complaining 
party to make claims that it could have made, but  did not make, in the original proceeding, with 
respect to aspects of the original measure at issue that were incorporated, but remained unchanged, in 
the measure taken to comply", the Panel also re lied on the statement by the Appellate Body in US – 
Upland Cotton (Article 21.5 – Brazil)  that "[a] complaining Member ordinarily would not be allowed 
to raise claims in an Article 21.5 proceeding that it could have pursued in the original proceedings, but 
did not."569 
431. We note that the Appellate Body offered this  statement after having made its main finding 
that a Member should be allowed to raise in Article  21.5 proceedings claims that were raised but not 
resolved on the merits in the original proceedings.  The Appellate Body said that such claims could 
ordinarily  not be raised in Article 21.5 proceedings;  it did not say that such claims can never be 
raised, as the Panel suggests.  Moreover, in the sa me paragraph, the Appellate Body referred to its 
                                                      
566Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) , 
para. 7.75. 
567See also Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – 
Argentina) , para. 150. 
568Panel Report, para. 8.239. 
569Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 211. WT/DS294/AB/RW 
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  earlier decision in Canada – Aircraft (Article 21.5 – Brazil) , where it had found that "Article 21.5 
proceedings involve, in principle, not the original measure, but rather a new and different measure 
which was not before the original panel", and that  "the claims, arguments and factual circumstances 
which are pertinent to the 'measure taken to co mply' will not, necessarily, be the same as those which 
were pertinent in the original dispute".
570  We consider that the findings by the Appellate Body in  
US – Upland Cotton (Article 21.5 – Brazil)  should be interpreted consis tently with the findings in 
Canada – Aircraft (Article 21.5 – Brazil) . 
432. Thus, if we read the Appellate Body's statement in US – Upland Cotton (Article 21.5 – Brazil)  
together with its statement in Canada – Aircraft (Article 21.5 – Brazil) , it excludes, in principle, 
("ordinarily") from Article 21.5 proceedings new claims  that could have been pursued in the original 
proceedings, but not new claims against a measure taken to comply—that is, in principle, a new and 
different measure.  This is so even where such a measure taken to comply incorporates components of 
the original measure that are unchanged, but are not  separable from other aspects of the measure taken 
to comply. 
433. We recall that the Panel found that "the scope of  Article 21.5 of the DSU is not so broad as to 
allow a complaining party to make claims that it c ould have made, but did not make, in the original 
proceeding, with respect to aspects of the original  measure at issue that were incorporated, but 
remained unchanged, in the measure taken to comply".571  We disagree with this finding by the Panel, 
insofar as it precludes new claims against inseparable  aspects of a measure taken to comply, which are 
unchanged from the original measure.  We, therefore, find that the Panel erred in finding, in 
paragraph 8.244 of the Panel Report, that the Eu ropean Communities could not properly raise claims 
with respect to the alleged error in the calcula tion of TKAST's dumping margin in these Article 21.5 
proceedings because it could have raised them in the original proceedings but failed to do so. 
434. We consider that, in the present dispute, the cr itical question before the Panel was whether the 
alleged arithmetical error was an integral part of  the measure taken to comply.  If it was, as the 
European Communities alleges, then the Panel shoul d have addressed the claims against the alleged 
                                                      
570Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) , para. 41;  Appellate Body Report, 
EC – Bed Linen (Article 21.5 – India) , para. 89 (referring to Appellate Body Report, US – FSC (Article 21.5 – 
EC), allowing the new GATT Article III claim although th e original proceedings involved only claims under the 
Agreement on Subsidies and Countervailing Measures ). 
In US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body further explained that the finding in 
Canada – Aircraft (Article 21.5 – Brazil)  "refers to the situation in which the responding Member is seeking to 
circumvent its compliance obligations by replacing the WTO-inconsistent measure with a new measure that is 
also WTO-inconsistent, albeit with a provision not at issue in the original proceedings ." (Appellate Body 
Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 211 (emphasis added)) 
571Panel Report, para. 8.242.  WT/DS294/AB/RW 
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  arithmetical error as new claims against the measure taken to comply;  if it was not, as the United 
States alleges, then the Panel was correct  in declining to rule on these claims. 
435. The Panel relied, in its finding that excluded the claims against the alleged arithmetical error, 
on the fact that the relevant aspect of the complia nce measure is "unchanged"  and is "separable" from 
other parts of that Section 129 determination.  Having reached the conclusion that the alleged 
arithmetical error concerns an unchanged aspect of the measure, the Panel, however, did not further 
address the parties' arguments as to whether the allege d error is an integral part of the measure taken 
to comply or whether it is separable from the re st of the measure taken to comply, that is, the 
Section 129 determination.572  The Panel simply stated that the alleged error "is distinct from any of 
the claims made by the European Communities in the original dispute"573, which relate to zeroing, and 
that the recalculation of the dumping margin without zeroing did not affect the alleged error. 
436. We consider that a determination of whether the alleged error is part of the measure taken to 
comply can only be done based on undisputed facts and factual findings concerning the existence and 
nature of such an alleged error.  The European  Communities argues that "the error consisted of 
inverting a fraction in the calculation of the aver age unit value of 84 TKAST US sales:  instead of 
dividing total value by total volume, the USDOC divide d total volume by total value" and that "[t]his 
error artificially inflated the unit value and, therefore, the amount of dumping found."574  T h e  
European Communities further contends that the Un ited States "acknowledges that such an error in 
the dumping margin calculation had been made by  the USDOC in the original investigation"575 and 
that "[i]n the Section 129 Determination concer ned, the USDOC realised that there was an 
arithmetical error".576  In particular, the European Commun ities relies on the fact that the USDOC 
extended the duration of the Section 129 proceedings to consider the allegations made by the parties 
concerning the alleged arithmetical error as eviden ce that the USDOC accepted that an error was 
made.577 
                                                      
572The Panel stated: 
As a consequence of our analysis th at the alleged error concerns an 
unchanged aspect of the original measure,  we do not consid er that we need 
to examine further the parties' argumen t as to whether the calculation error 
is part of the measure taken to comply ; we also need not decide whether the 
alleged calculation error should be found to be part of that measure on the basis of the close nexus  argument put forward by the European 
Communities. 
(Panel Report, footnote 864 to para. 8.243 (original emphasis)) 
573Panel Report, para. 8.243.  
574European Communities' appellant's submission, para. 237. 
575European Communities' appellant's submission, para. 237. 
576European Communities' appellant's submission, para. 238. 
577European Communities' appellant's submission, para. 238. WT/DS294/AB/RW 
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  437. The United States, however, denies that it ever  acknowledged that an arithmetical error was 
made in the original investigation and argues that, during the Section 129 proceeding, the USDOC 
neither realized nor agreed that an error had been made.
578  The European Communities also 
submitted to the Panel calculations made by TKAST,  which showed that, by eliminating zeroing and 
by correcting the alleged error, the margin of dumping would have been negative.  At the oral hearing, 
the United States did not comment on the calculations by TKAST.  The United States, however, 
denies that it ever acknowledged that if it had corr ected the alleged error the dumping margin would 
have been negative.  The Panel made no factual finding as to whether an arithmetical error was made 
and the exact nature of such an error. 
438. Having reviewed the Panel record, we are of th e view that there are insufficient undisputed 
facts and evidence in the record that would allow us to reach any conclusion as to the precise nature 
and consequences of such an alleged error, in te rms of whether it is separable from the compliance 
measure or is an integral part thereof.  Even assuming arguendo  that the USDOC extended the 
duration of the Section 129 proceeding for the sole purpose of considering the allegations concerning 
the alleged arithmetical error, this does not amount to an admission by the USDOC that an error was 
committed, nor does it shed light on the nature and content of the alleged error made in the calculation 
of the margin of dumping.  Nor do we consider that the arguments of th e European Communities and 
the calculations made by TKAST of the dumping marg in without the alleged arithmetical error are in 
themselves sufficient to show whether the nature an d the effects of the alleged arithmetical error are 
such that the alleged error is separable from  or incorporated into the re-determination. 
439. Given the lack of factual findings by the Panel and of undisputed evidence in the Panel 
record, we do not have a sufficient factual basi s to complete the analysis of the European 
Communities' claim on this issue.  For these reasons  are unable to rule on whether the United States 
failed to comply with the recommendations and ru lings of the DSB by failing to correct such an 
alleged error. 
XII. The "All Others" Rates Calculated in the Section 129 Determinations in Cases 2, 4, 
and 5 
440. We turn to the European Communities' claims th at the Panel erred in finding that the United 
States did not act inconsistently with Article 9.4 of the Anti-Dumping Agreement  in the establishment 
of the "all others" rates in the Section 129 determinations in Stainless Steel Bar from France  (Case 2), 
Stainless Steel Bar from Italy  (Case 4), and Stainless Steel Bar from the United Kingdom  (Case 5), 
and in failing to examine the European Communitie s' claims under Article 6.8 and Annex II of the 
                                                      
578United States' appellee's submission, para. 125.  WT/DS294/AB/RW 
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  Anti-Dumping Agreement .  The European Communities requests th e Appellate Body to reverse these 
findings, and to find instead that the United States ac ted inconsistently with Articles 9.4 and 6.8 and 
Annex II of the Anti-Dumping Agreement by using margins of dumping based on facts available in the 
calculation of the "all others" rates in the Sec tion 129 determinations in Cases 2, 4, and 5.      
441. We recall that, in order to implement the r ecommendations and rulings of the DSB, the 
United States issued Section 129 determinations in  which it recalculated, without using zeroing, the 
margins of dumping for the exporters investigated individually.579  In Cases 2, 4, and 5, the 
recalculation of margins of dumping without zeroing resulted in either zero or de minimis margins of 
dumping for all the cooperating exporters.  The margins of dumping for the non-cooperating exporters, entirely based on "facts available", pursuant to Article 6.8 and Annex II of the Anti-
Dumping Agreement , remained unchanged.  As a result, all company-specific margins of dumping in 
Cases 2, 4, and 5 were either zero or de minimis , or based on facts available.  The USDOC then 
calculated the margins of dumping applicable to th e exporters not individually investigated (the 
"all others" rates) based on a simple average of the zero, de minimis , and "facts available" margins of 
dumping.  This led to an increase in the "all others " rate from 3.9 per cent to 35.92 per cent in Case 2;  
from 3.81 per cent to 6.6 per cent in Case 4;  and from 4.48 per cent to 83.95 per cent in Case 5.
580   
442. Before the Panel, the European Commun ities argued that the United States acted 
inconsistently with Articles 9. 4 and 6.8 and Annex II of the Anti-Dumping Agreement  in the 
Section 129 determinations in Cases 2, 4, and 5, because these provisions expressly prohibit the use of 
zero, de minimis , and "facts available" margins of dumping in the calculation of the "all others" 
rate.581 
443. The Panel found that the United States did not act inconsistently with Article 9.4 of the Anti-
Dumping Agreement , because Article 9.4 merely "establish[es] a methodology for the calculation of a 
'ceiling' which the 'all others' rate may not exceed ", but does not "specify a method for or imposes 
disciplines on the calculation of the 'all others' rate itself."582  According to the Panel, in cases where 
all the margins of dumping for the investigated exporters are zero, de minimis , or based on facts 
available, "there are simply no margins of dum ping from which the investigating authority ... may 
calculate the maximum allowable 'all others' rate" and therefore, in those circumstances, "Article 9.4 
simply imposes no prohibition, as no ceiling can be calculated."583   
                                                      
579See supra , para. 5.  
580Panel Report, para. 8.273.  
581Panel Report, paras. 8.273 and 8.275.   
582Panel Report, para. 8.281.  
583Panel Report, para. 8.283. (original emphasis) WT/DS294/AB/RW 
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  444. The Panel also found that the European Comm unities' claims under Article 6.8 and Annex II 
of the Anti-Dumping Agreement were dependent on its claims of vi olation under Article 9.4 of that 
Agreement, and that Articles 6.8 and Annex II do no t "provide an independent basis for a finding of 
inconsistency where the 'all others' rate at issu e is not inconsistent with the provisions of 
Article 9.4."
584  On this basis, the Panel made no findings  with respect to the European Communities' 
claims under Article 6.8 and Annex II of the Anti-Dumping Agreement.    
445. On appeal, the European Comm unities argues that the Panel er red in its interpretation of 
Article 9.4 of the Anti-Dumping Agreement.   According to the European Communities, Article 9.4 
expressly prohibits the inclusion of margins of dum ping based on facts available in the calculation of 
the "all others" rate.  The European Communities also argues that the Panel erred in exercising 
judicial economy in relation to its claims  under Article 6.8 and Annex II of the Anti-Dumping 
Agreement , because these provisions provide an "independent basis"585 for the prohibition of the 
inclusion of "facts available" margins in the calculation of the "all others" rate.  
446. The United States responds that the Panel correct ly held that the prohibition of the use of 
zero, de minimis , and "facts available" margins of dumping cont ained in Article 9.4 applies only to the 
ceiling of the "all others" rate, and that Artic le 9.4 provides no methodological guidance on the 
calculation of that rate.  According to the United States, where all margins of dumping for the investigated exporters are zero, de minimis , or based on facts available, a ceiling cannot be determined 
pursuant to Article 9.4 and, therefore, the prohibition contained therein does not apply.
586  
447. Article 6.10 of the Anti-Dumping Agreement requires investigating authorities to determine an 
individual margin of dumping for each "know n" exporter or producer of the product under 
investigation.  However, in cases where the number  of exporters is so large as to make such a 
determination impracticable, Article  6.10 permits investigating authorities to limit their examination 
to a statistically valid sample of exporters, or to  exporters representing the largest possible volume of 
exports that can be reasonably investigated.     
448. When investigating authorities have limited their examination to a selected number of 
exporters pursuant to Article 6.10, the margin of  dumping applicable to exporters that were not 
selected for individual examination (the "all others" rate) is subject to the requirements of Article 9.4 
of the Anti-Dumping Agreement , which provides, in relevant part:  
                                                      
584Panel Report, para. 8.284.  
585European Communities' appellant's submission, para. 340.   
586United States' appellee's submission, paras. 148 and 152.   WT/DS294/AB/RW 
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  When the authorities have limited their examination in accordance 
with the second sentence of paragraph 10 of Article 6, any anti-dumping duty applied to imports  from exporters or producers not 
included in the examination shall not exceed : 
(i) the weighted average margin of dumping established with 
respect to the selected exporters or producers ...  
... 
provided that the authorities shall disregard for the purpose of this 
paragraph any zero and de minimis  margins and margins established 
under the circumstances referred to in paragraph 8 of Article 6.  The 
authorities shall apply individual duties or normal values to imports 
from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation, as provided for in subparagraph 10.2 of Article 6. 
(emphasis added)  
449. Hence, Article 9.4 provides for two distinct, but cl osely related, obligations.  First, Article 9.4 
establishes that, in cases where investigating authorit ies have limited their examination to a sample of 
selected exporters or producers, any anti-dumping duty applied to exporters that were not individually 
investigated "shall not exceed" the we ighted average margin of dumpi ng established for exporters that 
have been individually investigated.  Secondly,  Article 9.4 directs investigating authorities to 
disregard, "for the purposes of this paragraph", any zero and de minimis margins of dumping, and 
margins of dumping established on the basis of facts available pursuant to Article 6.8.   
450. The Appellate Body addressed the oblig ations provided under Article 9.4 in US – Hot-Rolled 
Steel , where it explained that:  
Article 9.4 does not prescribe any method that WTO Members must 
use to establish the "all others" rate that is actually applied to 
exporters or producers that are not investigated.  Rather, Article 9.4 simply identifies a maximum limit, or ceiling, which investigating authorities " shall not exceed " in establishing an "all others" rate.  
... in determining the amount of the ceiling for the "all others" rate, 
Article 9.4 establishes two prohibitions .  The first prevents 
investigating authorities from calcu lating the "all others" ceiling 
using zero or de minimis  margins;  while the second precludes 
investigating authorities from calculating that ceiling using "margins established under the circumstances referred to" in Article 6.8.
587 
(original emphasis) 
                                                      
587Appellate Body Report, US – Hot-Rolled Steel , para. 116.  WT/DS294/AB/RW 
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  451. Thus, the Panel's interpretation that Article  9.4 "establish[es] a methodology for the 
calculation of a 'ceiling' which the 'all others' rate  may not exceed" but does not "specify a method for 
or impose disciplines on the calculation of the 'all others' rate itself"
588 seems a priori not to depart 
from the Appellate Body's interpretation of that provision.  The Appellate Body expressly recognized 
that Article 9.4 does not prescribe any particular me thodology that must be used in the calculation of 
the "all others" rate.  The Appellate Body also emph asized that Article 9.4(i) constrains the discretion 
of investigating authorities in two important ways:  first, by imposing a ceiling that the "all others" 
rate "shall not exceed".  This ceiling ordinarily will correspond to the weighted average margin of 
dumping for the exporters that were investigated.  Secondly, the subsequent paragraph of Article 9.4 
requires investigating authorities to disregard, for the purposes of that paragraph, any zero, de minimis , and "facts available" margins.  We observe, in this respect, that the Appellate Body in  
US – Hot-Rolled Steel upheld the panel's finding that the "all ot hers" rate at issue in that appeal 
exceeded the ceiling provided for in Article 9.4(i).  In  addition, the Appellate Body upheld the panel's 
finding that "the United States' application  of the method set forth in section 735(c)(5)(A) of the 
Tariff Act of 1930, as amended, to determine the 'all others' rate in this case was inconsistent with 
United States' obligations under the Anti-Dumping Agreement  because it was based on a method that 
included, in the calculation of the 'all others' rate, margins established, in part, using facts 
available."
589   
452. The circumstances of this appeal raise the ques tion of what obligations, if any, Article 9.4 
provides in situations where all margins of dumping for the investigated exporters fall into the three 
categories that Article 9.4 expressly requires investiga ting authorities to disregard for purposes of that 
paragraph.  In US – Hot-Rolled Steel , the Appellate Body recognized th e existence of a lacuna in this 
respect in Article 9.4.590  The Appellate Body recognized that Article 9.4 does not expressly address 
the issue of how the ceiling for the "all others" ra te should be calculated in circumstances where all 
margins of dumping for the investigated exporters  are to be excluded from the calculation because 
they are either zero, de minimis , or based on facts available.  The Appellate Body also explained that 
"Article 9.4 seeks to prev ent the exporters, who were not asked to cooperate in the investigation, from 
                                                      
588Panel Report, para. 8.281.  
589Appellate Body Report, US – Hot-Rolled Steel , para. 129. (original emphasis) 
590In US – Hot-Rolled Steel , the Appellate Body stated: 
This lacuna  arises because, while Article 9.4 prohibits  the use of certain 
margins in the calculation of the ceiling for the "all others" rate, it does not 
expressly address the issue of how that ceiling should be calculated in the 
event that all margins are to be excluded  from the calculation, under the 
prohibitions.  This appeal does not raise the issue of how that lacuna  might 
be overcome on the basis of the present text of the Anti-Dumping 
Agreement .  Accordingly, it is not necessary for us to address that question.  
(Appellate Body Report, US – Hot-Rolled Steel , para. 126) (original emphasis;  footnote omitted))  WT/DS294/AB/RW 
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  being prejudiced by gaps or shortcomings in the information supplied by the investigated 
exporters."591   
453. In this regard, we do not agree with the Panel's statement that, in situations where all margins 
of dumping are either zero, de minimis , or based on facts available, Article 9.4 "simply imposes no 
prohibition, as no ceiling  can be calculated."592  In our view, the fact that all margins of dumping for 
the investigated exporters fall within one of the categories that Article 9.4 directs investigating 
authorities to disregard, for purposes of that pa ragraph, does not imply that the investigating 
authorities' discretion to apply duties on non-investigat ed exporters is unbounded.  The lacuna that the 
Appellate Body recognized to exist in  Article 9.4 is one of a specific method .  Thus, the absence of 
guidance in Article 9.4 on what particular methodol ogy to follow does not imply an absence of any 
obligation with respect to the "all others" rate a pplicable to non-investigated exporters where all 
margins of dumping for the investig ated exporters are either zero, de minimis , or based on facts 
available.  In any event, the participants have  not suggested specific alternative methodologies to 
calculate the maximum allowable "all others" rate  in situations where all margins of dumping 
calculated for the investigated exporters fall into th e three categories to be disregarded, and we do not 
need to resolve this issue to dispose of this appeal. 
454. Turning to the appeal before us, we note th at, on 7 February 2008, the USDOC revoked the 
anti-dumping duty orders in Cases 2, 4, and 5, foll owing negative likelihood-o f-injury determinations 
made by the USITC in the context of sunset reviews.  These revocation orders took effect as of 
7 March 2007.  As a result, any cash deposits imposed on imports of non-investigated exporters 
between 7 March 2007 and 7 February 2008, includ ing those resulting from the recalculated "all 
others" rate, have been refunded.   Consequently, no anti-dumping duties were imposed on imports of 
non-investigated exporters as a result of the Secti on 129 determinations in Cases 2, 4, and 5.   
455. Accordingly, we do not consider it necessary to  make findings in relation to the European 
Communities' claim that the United States acted  inconsistently with Article 9.4 of the Anti-Dumping 
Agreement  in the establishment of the "all others" rate in the Section 129 determinations in Cases 2, 4, 
and 5. 
456. Finally, we turn to the European Communities'  claim that the Panel erred in exercising 
judicial economy in relation to its claims  under Article 6.8 and Annex II of the Anti-Dumping 
Agreement .  The European Communities basically ar gues that those provisions establish an 
                                                      
591Appellate Body Report, US – Hot-Rolled Steel , para. 123. (original emphasis;  footnote omitted) 
592Panel Report, para. 8.283. (original emphasis) WT/DS294/AB/RW 
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  "independent basis" for a prohibition of the use of "facts available" margins in the calculation of the 
"all others" rate, even in cases where the calculati on of the "all others" rate is consistent with 
Article 9.4. 
457. Article 6.8 and Annex II of the Anti-Dumping Agreement establish, in relevant parts, that: 
6.8 In cases in which any interested party refuses access to, or 
otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations , affirmative or negative, may be 
made on the basis of the facts available.  The provisions of Annex II 
shall be observed in the application of this paragraph. 
ANNEX II 
BEST INFORMATION AVAILABLE IN TERMS OF 
PARAGRAPH 8 OF ARTICLE 6 
... 
7. ...  It is clear, however, that if an interested party does not 
cooperate and thus relevant inform ation is being withheld from the 
authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate. 
458. In our view, the European Communities' allegation of error is predicated on the 
non-investigated exporters being covered by th e disciplines of Article 6.8 and Annex II as 
"cooperating" exporters.  According to the European  Communities, Article 6.8 and Annex II limit the 
application of "facts available" to "non-coopera ting" exporters, whereas non- investigated exporters 
are, by definition, "known" exporters that have  "decided to 'cooperate'", but from which further 
information was not requested.
593 
459. We note, however, that by its express terms Article 6.8 permits the application of "facts 
available" to an "interested party" who "refuses access to, or otherwise does not provide, necessary 
information within a reasonable period, or significantly  impedes the investigation".  This, in our view, 
confirms that Article 6.8 applies exclusively to those "interested parties" from which information was 
required, rather than to those parties from which in formation was not requested.  Thus, the disciplines 
in relation to the application of "facts availabl e" under Article 6.8 and Annex II do not apply to 
non-investigated exporters that eventually will be s ubject to the "all others" rate.  As noted above, the 
investigating authorities' discretion to impose duties on non-investigated exporters is subject to the 
                                                      
593European Communities' appellant's submission, para. 348.   WT/DS294/AB/RW 
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  disciplines provided in Article 9.4, including the exclusion of any "facts available" margins of 
dumping in the calculation of the maximum permissible duty applied to those exporters.  
460. For this reason, we find that the Panel did not err in not making findings, in paragraphs 8.284, 
and 9.1(c)(iii) of the Panel Report, in respect of  the European Communities'  claims under Article 6.8 
and Annex II of the Anti-Dumping Agreement in the Section 129 determinations in Stainless Steel Bar 
from France  (Case 2), Stainless Steel Bar from Italy  (Case 4), and Stainless Steel Bar from the United 
Kingdom  (Case 5). 
XIII.  The European Communities' Request for a Suggestion 
461. We now consider the European Communities'  arguments relating to its request for a 
suggestion under the second sentence of Article 19.1 of the DSU.   
462. The European Communities had asked the Panel to make suggestions as to how the United 
States should bring its measures into conformity with  its obligations under th e covered agreement.  
The Panel declined the request by  the European Communities, noting that it had provided in the 
Report its "views with respect to US actions take n, or not taken, to implement the rulings and 
recommendations in the original dispute, as well as on the scope of the US obligation to implement".
594 
463. On appeal, the European Communities requests th e Appellate Body to issue a suggestion to 
the United States, pursuant to Article 19.1 of the DSU, on how to implement the DSB's 
recommendations and rulings.  The European Commun ities requests the Appellate Body to suggest to 
the United States, including the United States' admi nistrative authorities and independent judicial 
authorities, "that they forthwith take all necessary step s of a general or particular character to ensure 
the conformity of all the measures at issue a nd all the measures taken to comply with the Anti-
Dumping Agreement , the GATT 1994 , the DSU  and the rulings and recommendations of the DSB in 
the original proceeding, with full effect not later than the end of the reasona ble period of time, such 
that any and all actions, including administrati ve reviews, assessment instructions and final 
liquidations after that date are not based on zer oing, and are revised as necessary to achieve that 
result".595 
464. The United States responds that the Appellate Body should reject entirely the European 
Communities' request for a suggestion in this disput e, because it would "merely restate the findings or 
                                                      
594Panel Report, para. 9.3. 
595European Communities' appellant's submission, para. 351. WT/DS294/AB/RW 
Page 176  
 
  rulings that the EC is seeking in this appeal", and would therefore "provide no 'useful guidance and 
assistance' in implementing such rulings".
596  The United States also considers that the European 
Communities' request for a suggestion would extend the Panel's findings to "an indeterminate set of 
future measures"597, none of which would fall within the Panel's terms of reference. 
465. We observe that the text of Article 19.1 of the DSU provides, in relevant part: 
In addition to its recommendations, the panel or Appellate Body may 
suggest ways in which the Member concerned could implement the recommendations. (footnotes deleted;  emphasis added)  
466. The second sentence of Article 19.1 of the DSU confers a discretionary right, authorizing 
panels and the Appellate Body to suggest ways in which the recommendations and rulings could be 
implemented.  The Appellate Body observed in EC – Bananas III (Article 21.5 – Ecuador II) , that 
"[s]uggestions made by panels or  the Appellate Body may provide useful guidance and assistance to 
Members and facilitate implementation of DSB recomm endations and rulings, particularly in complex 
cases."
598  In the present case, the European Communiti es appears to request that the Appellate Body 
suggest that the United States cease using zeroing in any action that is taken after the expiry of the reasonable period of time. 
467. We have expressed the view that subsequent ad ministrative review determinations in which 
zeroing is used after the end of the reasonable peri od of time establish a failure to comply with the 
recommendations and rulings of the DSB and that, if  no such review is requested, a determination 
after the end of the reasonable period of time by which anti-dumping liability is assessed on the basis 
of cash deposit rates calculated with zeroing also establishes such a failure.
599  With respect to 
measures that derive mechanically  from the assessment of duties, we have indicated that they would 
establish a failure to comply with the recommendations and rulings of the DSB to the extent that they 
reflect zeroing and that they are applied after the e nd of the reasonable period of time even if such a 
measure is consequent to an administrative review is sued before the end of that period.  We have also 
found that subsequent sunset reviews, in which zer oing was used and that provide the legal basis for 
the continued imposition of anti-dumping duties afte r the end of the reasonable period of time, 
establish a failure to comply with the recommendations and rulings of the DSB. 
                                                      
596United States' appellee's submission, para. 161 (quoting Appellate Body Reports, EC – Bananas III 
(Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) , para. 325).  
597United States' appellee's submission, para. 161.  
598Appellate Body Reports, EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III 
(Article 21.5 – US) , para. 325.  
599We share the Panel's view that the United States  fails to comply with the recommendations and 
rulings of the DSB if it continues to apply cash deposit rates established on the basis of zeroing after the end of 
the reasonable period of time in respect of the Cases at issue here.  WT/DS294/AB/RW 
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  468. In the light of these findings, we do not consider that the suggestion the European 
Communities is requesting us to make would provid e useful guidance or facilitate the implementation 
of the recommendations and rulings of the DSB.  Therefore, we decline  the European Communities' 
request for a suggestion under Article 19.1 of the DSU.  
XIV.  Findings and Conclusions 
469. For the reasons set out in this Report, the Appellate Body: 
(a) finds  that the Panel did not err in refraining,  in paragraphs 8.17 and 9.1(a) of the 
Panel Report, from making a finding on whether it was improperly composed; 
(b) in respect of the Panel's terms of reference: 
(i) upholds  the Panel's finding, in paragraph 8.80 of the Panel Report, that the 
subsequent reviews identified in th e European Communities' panel request 
did not fall within the Panel's terms of reference under Article 21.5 of the 
DSU as "amendments" to the original measures at issue; 
(ii) reverses  the Panel's finding, in paragraph 8. 119 of the Panel Report, that none 
of the subsequent reviews challenged by the European Communities that were decided before the adoption of the recommendations and rulings of the 
DSB fell within the Panel's te rms of reference, and finds
, instead, that the 
sunset reviews in Granular Polytetrafluoroethylene Resin from Italy  
(Case 24), Stainless Steel Sheet and Strip in Coils from Germany  (Case 28), 
Ball Bearings and Parts Thereof from France  (Case 29), Ball Bearings and 
Parts Thereof from Italy  (Case 30), and Ball Bearings and Parts Thereof 
from the United Kingdom  (Case 31), had a sufficiently close nexus with the 
declared measures "taken to comply", and with the recommendations and rulings of the DSB, so as to fall within the Panel's terms of reference under Article 21.5 of the DSU; 
(iii) upholds
 the Panel's findings, in paragra ph 8.126(i) and (v) of the Panel 
Report, that the 2004-2005 administrative reviews in Cases 1 and 6 fell 
within the Panel's terms of reference under Article 21.5 of the DSU;  and WT/DS294/AB/RW 
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  (iv) finds
 that the Panel did not act inconsiste ntly with Article 11 of the DSU in 
addressing the European Communities'  alternative "close nexus" claim 
without first addressing the European Communities' "omissions" claim;  and 
does not consider it necessary  to make additional findings in relation to the 
European Communities' claim that the Pa nel erred in declining to rule on its 
claim that the subsequent reviews fell within the Panel's terms of reference as 
"omissions" or "deficiencies" in the United States' implementation of the 
recommendations and rulings of the DSB; 
(c) with respect to the United States' complian ce obligations in relation to the Cases at 
issue in the original proceedings: 
(i) considers that a subsequent administrati ve review determin ation issued after 
the end of the reasonable period of time in which zeroing is used, or, if no 
such review is requested, a determination issued after the end of the reasonable period of time by which anti-dumping liability is assessed on the basis of cash deposit rates calculated w ith zeroing, would establish a failure 
to comply with the recommendations and rulings of the DSB; 
(ii) finds
, with respect to measures that ar e consequent to assessment reviews 
that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically  from the assessment of duties would establish a failure by the 
United States to comply with the reco mmendations and rulings of the DSB to 
the extent that they are based on zeroi ng and that they are applied after the 
end of the reasonable period of tim e;  and, accordingly, reverses
 the Panel's 
interpretation, in paragraph 8.199 of th e Panel Report, that the United States' 
obligation to implement the recommendations and rulings of the DSB does 
not extend to the actual collection and liquidation of duties, and to the 
issuance of assessment or liquidation instructions, when these actions result from administrative review determina tions made before the end of the 
reasonable period of time;  and 
(iii) declares
 the Panel's finding, in paragraphs 8.200 and 9.1(b)(iii) of the Panel 
Report, that the European Communitie s has not established that the United 
States failed to comply with the recommendations and rulings of the DSB by liquidating, after the end of the reasonable period of time, duties that were assessed with zeroing pursuant to administrative review determinations  WT/DS294/AB/RW 
 Page 179 
 
 
  issued before the end of the reasonable period of time, moot and of no legal 
effect , as it was based on an erroneous reasoning;  
(d) with respect to Certain Hot-Rolled Carbon Steel Fl at Products from the Netherlands  
(Case 1): 
(i) upholds  the Panel's findings, in paragraphs  8.208 and 9.1(b)(i) of the Panel 
Report, that the United States acted inc onsistently with Article 9.3 of the 
Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 in its 
determination in the 2004-2005 administrative review and in issuing the consequent assessment instructions;  and th at, as a result of the final results of 
this administrative review, the United St ates has failed to comply with the 
recommendations and rulings of the DSB to bring the original investigation 
in Case 1 into conformity;  and 
(ii) reverses
 the Panel's finding, in paragraphs 8.209 and 9.1(b)(iv) of the Panel 
Report, that the assessment instruc tions issued on 16 April 2007 and the 
liquidation instructions issued on 23 April 2007 do not establish that the 
United States failed to comply with th e recommendations and rulings of the 
DSB to bring the original investigation in Case 1 into conformity with its obligations under the covered agreements by virtue of those instructions;  and 
finds
, instead, that these instructions, derived mechanically from the 
assessment of final duty liability in the ordinary course of the imposition of 
anti-dumping duties, are measures that were adopted after the end of the reasonable period of time, and thus establish a failure by the United States to comply with the recommendations and rulings of the DSB; 
(e) with respect to Stainless Steel Wire Rod from Sweden  (Case 6): 
upholds
 the Panel's findings, in paragraphs 8. 213 and 9.1(b)(i) of the Panel Report, 
that the United States acted inconsistently with Article 9.3 of the Anti-Dumping 
Agreement  and Article VI:2 of the GATT 1994 in issuing the results of the 2004-2005 
administrative review determination on 9 May 2007, as well as the consequential 
assessment and liquidation instructions;  and also upholds  the Panel's finding, in 
paragraphs 8.213 and 9.1(b)(i) of the Panel Report, that the United States failed to 
comply with the recommendations and rulin gs of the DSB to bring the original 
investigation in Case 6 into conformity; WT/DS294/AB/RW 
Page 180  
 
  (f) with respect to Ball Bearings and Parts Thereof from the United Kingdom  (Case 31): 
finds
 that the Panel erred in refraining, in paragraph 8.217 of the Panel Report, to 
make a specific finding with respect to the assessment after the end of the reasonable 
period of time of duty liability for imports from NSK Bearings Europe Ltd. in Case 31;  and finds
 further that duties assessed after the end of the reasonable period 
of time on the basis of cash deposits reflecting zeroing establish a failure by the 
United States to comply with the recommendations and rulings of the DSB;  
(g) with specific respect to Cases 18 through 24 and 27 through 30, is not in a position to 
complete the analysis in relation to these Cases and declines  to rule on whether the 
Panel did not comply with its duties under Article 11 of the DSU; 
(h) with respect to the subsequent sunset reviews: 
(i) finds  that the Panel did not err in concl uding, in paragraph 8.140 of the Panel 
Report, that the European Communities has not demonstrated that the United 
States failed to comply with the recommendations and rulings of the DSB in respect of the sunset review in Stainless Steel Bar from Germany  (Case 3); 
(ii) declines
 to make a finding on whether the Panel erred in not ruling, in 
paragraph 8.141 of the Panel Report, on the European Communities' claim that the United States failed to comply  with the recommendations and rulings 
of the DSB in the sunset reviews in Stainless Steel Bar from France (Case 2) , 
Stainless Steel Bar from Italy (Case 4) , and Stainless Steel Bar from the 
United Kingdom  (Case 5); 
(iii) reverses
 the Panel's findings, in paragraph 8.140 the Panel Report, that any 
failure to comply by the United St ates in the sunset review in Certain Pasta 
from Italy  (Case 19) had not yet materialized as of the date of establishment 
of the Panel and thus had no effect on the United States' implementation of 
the recommendations and rulings of the DSB and that, as a consequence, the European Communities has not demonstrated that the United States failed to comply with the recommendations and rulings of the DSB;   WT/DS294/AB/RW 
 Page 181 
 
 
  (iv) finds  that the sunset review in Certain Pasta from Italy (Case 19) is 
inconsistent with Article 11.3 of the Anti-Dumping Agreement  and results in 
failure by the United States to comply  with the recommendations and rulings 
of the DSB;   
(v) is unable to complete the analysis in respect of the sunset review in Granular 
Polytetrafluoroethylene Resin from Italy  (Case 24) in the absence of express 
factual findings by the Panel and undisputed facts in the Panel record; 
(vi) finds  that the sunset reviews in Stainless Steel Sheet and Strip in Coils from 
Germany  (Case 28), Ball Bearings and Parts Thereof from France (Case 29), 
Ball Bearings and Parts Thereof from Italy (Case 30), and Ball Bearings and 
Parts Thereof from the United Kingdom  (Case 31) are inconsistent with 
Article 11.3 of the Anti-Dumping Agreement  and result in failure by the 
United States to comply with the recommendations and rulings of the DSB;    and 
(vii) finds
 that the Panel did not act inconsistently with Article 11 of the DSU in 
addressing the claims by the European  Communities that the United States 
failed to comply with the recommendations and rulings of the DSB in subsequent sunset review proceedings; 
(i) finds
 that the Panel did not act inconsistently with Article 11 of the DSU in declining, 
in paragraphs 8.227 and 9.1(b)(vii) of the Panel Report, to make findings on the 
European Communities' claim that, by not  taking measures to comply between 
9 April and 23 April/31 August 2007, the United States violated Article 21.3 of the DSU; 
(j) in relation to the alleged arithmetical e rror in the Section 129 determination in 
Stainless Steel Sheet and Strip in Coils from Italy  (Case 11): 
(i) finds
 that the Panel erred in finding, in paragraph 8.244 of the Panel Report, 
that the European Communities could no t properly raise claims with respect 
to the alleged error in the calculation of TKAST's dumping margin in these 
Article 21.5 proceedings, because it could have raised them in the original 
proceedings, but failed to do so;   WT/DS294/AB/RW 
Page 182  
 
  (ii) however, is unable to complete the analysis on whether the European 
Communities could raise such claims, nor therefore to rule on whether the 
United States failed to comply with th e recommendations and rulings of the 
DSB by failing to correct such an alleged error;  
(k) with respect to the establishment of th e "all others" rates in the Section 129 
determinations in Stainless Steel Bar from France  (Case 2), Stainless Steel Bar from 
Italy (Case 4), and Stainless Steel Bar from the United Kingdom  (Case 5): 
(i) does not consider it necessary to make findings in relation to the European 
Communities' claim that the United States acted inconsistently with Article 9.4 of the Anti-Dumping Agreement  in the establishment of the 
"all others" rate;  and 
(ii) finds
 that the Panel did not err in not making findings, in paragraphs 8.284 
and 9.1(c)(iii) of the Panel Report, in  respect of the European Communities' 
claims under Article 6.8 and Annex II of the Anti-Dumping Agreement ;  and 
(l) declines  the request by the European Commun ities to make a suggestion on how the 
United States could implement the recommenda tions and rulings of the DSB in this 
case. 
470. To the extent that the United States has failed to comply with recommendations and rulings of 
the DSB in the original proceedings, they remain operative.  The Appellate Body recommends that the 
DSB request the United States to implement fully the recommendations and rulings of the DSB. 
 
  WT/DS294/AB/RW 
 Page 183 
 
 
  Signed in the original in Geneva this 26th day of April 2009 by:  
 
  
_________________________ 
Shotaro Oshima 
Presiding Member 
 
 
  
 _________________________ _________________________ 
 Lilia R. Bautista Jennifer Hillman 
 Member Member 
  WT/DS294/AB/RW 
 Page 185 
 
 
  ANNEX I  
 
 WORLD TRADE  
ORGANIZATION  WT/DS294/28 
17 February 2009  
 
(09-0804) 
 Original:   English 
  
UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY 
FOR CALCULATING DUMPING MARGINS ("ZEROING") 
 
Recourse to Article 21.5 of the DSU by the European Communities
 
 
Notification of an Appeal by the European Communities  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 13 February  2009, from the Delegation of the European 
Commission, is being circulated to Members. 
 
_______________ 
 
 Pursuant to Article 16.4 and Article 17 of the DSU  the European Communities hereby notifies 
to the Dispute Settlement Body its decision to app eal to the Appellate Body certain issues of law 
covered in the Panel report and cer tain legal interpretations devel oped by the Panel in the dispute 
United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") , 
Recourse to Article 21.5 of th e DSU by the European Communities  (WT/DS294/RW).  Pursuant to 
Rule 20(1) of the Working Procedures for Appellate Review , the European Communities 
simultaneously files this Notice of Appeal  with the Appellate Body Secretariat. 
 
 For the reasons set out in its submissions to the Panel, and for the reasons to be further 
elaborated in its submissions to the Appellate B ody, the European Communities appeals, and requests 
the Appellate Body to modify or reverse the lega l findings and conclusions of the Panel and with 
respect to all matters to complete the analysis (whe ther or not this is specifically re-iterated in the 
following paragraphs), with respect to the following  errors of law and legal interpretations contained 
in the Panel Report: 
 (a) The Panel erred in failing to rule on the substance of the EC claim that the Panel was 
composed  in a manner inconsistent with Articles 8.3 and 21.5 of the DSU , on the grounds 
that it did not have the "authority" to rule on a matter with respect to which, according to the 
Panel, the "ultimate power" rests with the Director General of the WTO .1  The Panel thus 
failed to comply with basic requirements of due process and failed to ensure the full and 
proper exercise of its judicial function.  The Pane l also acted inconsisten tly with the following 
provisions of the DSU : Article 1.1 (failure to apply the DSU  to a dispute concerning the 
DSU ); Article 3.2, first sentence (failure to clarify the provisions of the DSU  in accordance 
with customary rules of interpretation of pub lic international law); Articles 3.2 and 19.2 
                                                      
1Panel Report, paras. 8.13–8.17 and 9.1(a). WT/DS294/AB/RW 
Page 186  
 
  (failure to ensure that the European Communities' DSU  rights were not diminished); 
Articles 3.3 and 23.1 (failure to allow for the settlement of the dispute by recourse to the 
DSU ); Article 7.2 (failure to properly a ddress the relevant provisions of the DSU  cited by the 
European Communities); Article 11 (failure to make such other findings as would assist the 
DSB); and Article 12.7 (failure to set out th e basic rationale behind its findings). The 
European Communities requests the Appellate Body  to modify or reverse the Panel's findings 
and complete the analysis by finding that the Panel was composed inconsistently with 
Articles 8.3 and 21.5 of the DSU .  One panellist remained in office at the stage of the 
compliance panel and was not lawfully removed by the United States or by the Director General of the WTO.  The European Communities also requests the Appellate Body to 
reverse the Panel's finding that, if it would ha ve agreed with the European Communities, it 
would have been  compelled  to rule that it had no jurisdiction to rule on any of the EC 
claims.
2 
 (b) The Panel made errors relating to the legal in terpretation of Articles 19.1, 21.3 and 21.5 of the 
DSU ,
3 and failed to comply with its functions as required by Articles 7 and 11 of the DSU  
when excluding certain subsequent reviews  listed in the Annex to the EC Compliance Panel 
Request from its terms of reference .4  In particular, the European Communities claims that: 
 
• the Panel erred in rejecting the EC claim that the subsequent reviews listed in the Annex 
to the EC Compliance Panel Request fell unde r its terms of reference because they were 
"amendments" to the measures at issue in the original dispute;5 
 
• the Panel erred in failing to examine or properly examine whether the US omissions  and 
deficiencies  in the US implementation of the DSB recommendations and rulings fell 
under its terms of reference;6 and 
 
• the Panel erred in excluding certain subseque nt reviews from its terms of reference on the 
basis that they did not have a close nexus  with the measures at issue in the original 
dispute and the DSB recommendations and rulings in view of their timing .7 
 
 The European Communities requests the Appellate  Body to modify or reverse the Panel's 
findings, and to complete the analysis by find ing that, in relation to these matters, the United 
States failed to comply with the relevant provi sions of the covered agreements cited in the 
pleadings before the Panel and with the rulin gs and recommendations of the DSB in the 
original proceedings. 
 
                                                      
2Panel Report, para. 8.13. 
3All EC claims and arguments referring to Articles 19.1, 21.3 or 21.5 of the DSU  are to be considered 
in the context of Article 3.7 of the DSU . 
4Panel Report, para. 8.119 and footnote 676, para. 8.120, para. 8.126 (by omission and by implication, 
only referring to certain subsequent reviews) and para. 9.1(b) (by omission and by implication, only referring to 
certain subsequent reviews). 
5Panel Report, paras. 8.61–8.84 and para. 9.1(b) (by omission and by implication). 
6Panel Report, paras. 8.85–8.86, para. 8.127 (by omission and by implication) and para. 9.1(b) (by 
omission and by implication).  
7Panel Report, paras. 8.111–8.116, 8.119–8.124, 8.126 (by omission and by implication) and 9.1(b) (by 
omission and by implication).  WT/DS294/AB/RW 
 Page 187 
 
 
  (c) The Panel erred in finding that the Europ ean Communities had not demonstrated that the 
United States failed to comply with the DSB r ecommendations and rulings in the subsequent 
sunset reviews  at issue.8  This conclusion was based on erroneous findings on issues of law 
and related legal interpre tations of Articles 19.1, 21.3 and 21.5 of the DSU .  Furthermore, the 
Panel disregarded its mandate and failed to comply with its functions as required by 
Article 11 of the DSU  when failing to address the EC claim that the United States failed to 
comply with the DSB recommendations in the orig inal dispute, since certain aspects of the 
measures at issue in the original dispute ( i.e., the dumping margins based on zeroing) 
remained in place ( i.e., the United States relied on those margins for the determination of 
likelihood of recurrence of dumpi ng in subsequent sunset review proceedings concerning the 
same anti-dumping "measure").9  The European Communities re quests the Appellate Body to 
complete the analysis and find that the United St ates acted inconsistently with Articles 2.1, 
2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement  and Articles 19.1 and 21.3 of the DSU , 
and failed to comply with the DSB rulings a nd recommendations in the original proceedings. 
 
(d) The Panel erred in rejecting the EC claims that certain US actions or omissions based on 
zeroing after the expiry of the reasonable period of time  were inconsistent with the US 
obligation and public commitment to im mediately comply with the rulings and 
recommendations of the DSB, and with vari ous provisions of Article VI of the GATT 1994 , 
the Anti-Dumping Agreement  and the DSU .10  In particular, the European Communities 
requests the Appellate Body: 
 
• with respect to all cases, to modify or reverse the Panel's finding that assessment instructions and final liquidations after th e end of the reasonable period of time and 
within the scope of the compliance panel, b ased on zeroing, are not inconsistent with 
Article VI:2 of the GATT 1994  and Article 9.3 of the Anti-Dumping Agreement  (with 
respect to administrative reviews), Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping 
Agreement  (with respect to sunset reviews) and Articles 2.4 and 2.4.2 of the Anti-
Dumping Agreement  (with respect to original investigations) and do not constitute a 
failure to comply with the rulings and r ecommendations of the DSB in the original case.
11  
The European Communities requests the Appe llate Body to complete the analysis, 
finding that assessment instructions or final liquidations after the end of the reasonable 
period of time and within th e scope of the compliance panel, based on zeroing, are 
inconsistent with the above provisions and with Articles 19.1 and 21.3 of the DSU , and 
constitute a failure to comply with the ru lings and recommendations of the DSB in the 
original proceedings; 
 
• with respect to Case 1 ( Hot Rolled Carbon Steel from the Netherlands ), to uphold the 
Panel's finding that the 2004-2005 administrativ e review and assessment instructions (by 
action or omission) were inconsistent with Article VI:2 of the GATT 1994  and Article 9.3 
of the Anti-Dumping Agreement  and a failure to comply with the DSB rulings and 
recommendations,12 albeit on the basis of the differe nt and more developed reasoning to 
be set out in the appeal; and to find that th e Panel erred in failing to specifically address 
                                                      
8Panel Report, paras. 8.135–8.141 and 9.1(b)(vi). 
9Panel Report, para. 8.222. 
10Panel Report, paras. 8.164–8.222 and 9.1(b)(i)-(v). 
11Panel Report, paras. 8.191–8.193, particularly (but not only) para. 8.191, first sentence, referring to 
paras. 8.170–8.185, particularly (but not only) para. 8.174,  first sentence (including footnote 769);  re-iterated at 
paras. 8.199–8.200 (including footnote 803);  and Panel Report, para. 9.1(b)(iii) and (iv) and 9.1 (by omission 
and by implication). 
12Panel Report, paras. 8.208 and 9.1(b)(i). WT/DS294/AB/RW 
Page 188  
 
  the same issue with respect to the final liquidations (by action or omission)
13 and erred in 
its other findings on this issue,14 and to complete the analysis by making the same 
findings as for the administrative review and assessment instructions; 
 
• also with respect to Case 1 ( Hot Rolled Carbon Steel from the Netherlands ), to modify or 
reverse the Panel's findings and conclusions15 concerning the assessment instructions on 
16 April 2007 and the liquidation instructions  on 23 April 2007, instructing liquidation 
for the period 1 November 2005 to 31 October 2006, on the basis of the cash deposit rate 
originally in force at the time of importa tion, and based on zeroing.  The European 
Communities requests the Appellate Body to co mplete the analysis and find that these 
actions by the United States after the end of the reasonable period of time were inconsistent with Article VI:2 of the GATT 1994 , Article 9.3 of the Anti-Dumping 
Agreement  and Articles 19.1 and 21.3 of the DSU , and constitute a failure to comply with 
the rulings and recommendations of the DSB in the original case; 
 
• with respect to Case 6 ( Stainless Steel Wire Rod from Sweden ), to uphold the Panel's 
finding that the 2004-2005 administrative review and assessment instructions (by action 
or omission) were inconsistent with Article VI:2 of the GATT 1994  and Article 9.3 of the 
Anti-Dumping Agreement ,16 albeit on the basis of the different and more developed 
reasoning to be set out in the appeal; and to find that the Panel erred in failing to 
specifically address the same issue with resp ect to the final liquidations (by action or 
omission)17 and erred in its other findings on this issue,18 and to complete the analysis by 
making the same findings as for the administrative review and assessment instructions; 
 
• with respect to 12 Cases,19 to modify or reverse the errone ous findings in paragraph 8.202 
of the Panel Report; to uphold the correct findi ngs in the final two sentences of paragraph 
8.218 of the Panel Report; to find that the Pane l has acted inconsistently with Article 11 
of the DSU ; and to the extent necessary, to complete  the analysis, also with respect to the 
appropriate conclusions and recommendations, by  finding that, by continuing to maintain 
in place duty or cash deposit rates with resp ect to these 12 Cases, the United States acted 
inconsistently with Article VI:2 of the GATT 1994 , Article 9.3 of the Anti-Dumping 
Agreement  (or in the case of sunset reviews with Articles 2.1, 2.4, 2.4.2 and 11.3 of the 
Anti-Dumping Agreement ) and Articles 19.1 and 21.3 of the DSU , and that this 
constitutes a failure to comply with the ru lings and recommendations of the DSB in the 
original case; and 
 
• to modify or reverse the Panel's findings reje cting the EC claim according to which, once 
an anti-dumping order is revoked pursuant to  the Section 129 Determination (because 
absent zeroing no dumping was found) the United States was not entitled to continue adopting administrative reviews and other acti ons (including collection of duties) based 
on zeroing in relation to that revoked order afte r the end of the reasonable period of time; 
and to complete the analysis accordingly by  finding that the United States violated 
Articles 19.1 and 21.3 of the DSU  and the DSB rulings and recommendations in the 
original proceedings.
20 
                                                      
13Panel Report, paras. 8.208 and 9.1(b)(i) (by omission and by implication). 
14Panel Report, para. 9.1(b)(iii) and (iv). 
15Panel Report, paras. 8.205, 8.209 and 9.1(b)(iii) and (iv). 
16Panel Report, paras. 8.213 and 9.1(b)(i). 
17Panel Report, paras. 8.213 and 9.1(b)(i) (by omission and by implication). 
18Panel Report, para. 9.1(b)(iii). 
19Cases 18-24, 27-30 and 31. 
20Panel Report, paras. 8.219–8.222, particularly  (but not only) para. 8.222, final sentence.  WT/DS294/AB/RW 
 Page 189 
 
 
   
(e) The Panel erred with respect to the correct lega l interpretations of Articles 19.1, 21.3 and 21.5 
of the DSU , disregarded its mandate, exercised false judicial economy, and failed to comply 
with its functions as requi red by Article 11 of the DSU  when failing to make any findings 
with respect to the EC claims regarding the non-existence of measures taken to comply 
between 9 April and 23 April/31 August 2007 .21  The European Communities requests the 
Appellate Body to complete the analysis by fi nding that the United States acted inconsistently 
with Articles 19.1 and 21.3 of the DSU  and failed to comply with the DSB rulings and 
recommendations in the original proceedings. 
 
(f) The Panel made errors relating to the le gal interpretation of Article 21.5 of the DSU  when 
finding that the EC claims (particularly regarding the arithmetical error ) in respect of the 
Section 129 Determination concerning Stainless Steel Sheet and Strip in Coils from Italy  
(listed as Case 11 in the Annex to the EC Pane l Request) were not properly before the Panel.22  
The European Communities requests the Appellate Body to complete the analysis by finding 
that the EC claims could properly be made in these compliance proceedings and that the 
United States acted inconsistently with Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-
Dumping Agreement , Article VI:2 of the GATT 1994 , Articles 19.1 and 21.3 of the DSU  and 
failed to comply with the DSB rulings and recommendations in the original proceedings. 
 (g) The Panel erred in finding that the United Stat es did not act inconsistently with Article 9.4 of 
the Anti-Dumping Agreement  in the establishment of "all others" rates
 in the Section 129 
Determinations concerning Stainless Steel Bar from France, Italy and the United Kingdom  
(listed as Cases 2, 4 and 5 in the Anne x to the EC Compliance Panel Request);23 moreover, 
the Panel erred in failing to examine the EC claim based on Article 6.8 and Annex II of the Anti-Dumping Agreement .
24  The European Communities requests the Appellate Body to 
complete the analysis by finding that the United States acted inconsistently with Article 9.4 of 
the Anti-Dumping Agreement , Article 6.8 and Annex II of the Anti-Dumping Agreement , 
Articles 19.1 and 21.3 of the DSU  and failed to comply with the DSB rulings and 
recommendations in the original proceedings.  
 (h) The Panel erred in rejecting the EC request for a suggestion
 pursuant to Article 19.1 of the 
DSU ,25 and the European Communities requests th e Appellate Body to make appropriate 
suggestions in this case. 
  
                                                     
 
21Panel Report, paras. 8.226–8.227 and 9.1(b)(vii). 
22Panel Report, paras. 8.237–8.244 and 9.1(c)(i). 
23Panel Report, paras. 8.278–8.284 and 9.1(c)(iii). 
24Panel Report, paras. 8.284 and 9.1 (by omission and by implication). 
25Panel Report, para. 9.3. WT/DS294/AB/RW 
Page 190  
 
  ANNEX II
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS294/29 
26 February 2009  
 
(09-1001) 
 Original:   English 
  
UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY 
FOR CALCULATING DUMPING MARGINS ("ZEROING") 
 
Recourse to Article 21.5 of the DSU by the European Communities
 
 
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 under Rule 23(1) of the Working Procedures for Appellate Review  
   The following notification, dated 25 February  2009, from the Delegation of the United States, 
is being circulated to Members. 
 
_______________ 
 
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Rule 23(1) of the Worki ng 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 in United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing"): Recourse to Article 21.5 of the DSU by the European 
Communities (WT/DS294/RW) and certain legal interpreta tions developed by the Panel in this 
dispute. 
 
1. The United States seeks review by the Appella te Body of the Panel's conclusion that the 
United States failed to comply with the recommenda tions and rulings of the Dispute Settlement Body 
("DSB") in the original dispute and has acted  inconsistently with Article 9.3 of the Agreement on 
Implementation of Article VI of the Ge neral Agreement on Tariffs and Trade 1994  ("AD Agreement") 
and Article VI:2 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") by publishing 
determinations, after the end of the reasonable period of time, of the amount of antidumping duty to 
be assessed based on zeroing in the 2004-2005 administrative reviews in Hot-Rolled Steel from the 
Netherlands  and Stainless Steel Wire Rod from Sweden  and issuing assessment instructions pursuant 
to the results of those administrative reviews.  This conclusion is in error and based on erroneous 
findings on issues of law and related legal interpretations of DSU Articles 21 and 22. 
 
2. Specifically, the United States request s the Appellate Body to reverse: 
 
(a) the Panel's finding in paragraph 8.126 of its report
1 that these two administrative 
reviews of entries that were made in 2004 a nd 2005 fell within its terms of reference; 
                                                      
1The paragraphs on which the Panel's finding in paragraph 8.126 is based include, for example, 
paragraphs 8.87-8.125 of the Panel's report.  WT/DS294/AB/RW 
 Page 191 
 
 
   
(b) (i) the Panel's finding in  paragraph 8.208 of its report2 that, in issuing the final 
results of the 2004-2005 administrative review in Hot-Rolled Steel from the 
Netherlands  and assessment instructions pursu ant to those results, the United 
States acted inconsistently with Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994, because this review did not fall within the 
Panel's terms of reference; and 
 
(ii) the Panel's further finding in paragraph 8.208 of its report that, in issuing the 
final results of the 2004-2005 administrative review in Hot-Rolled Steel from 
the Netherlands  and assessment instructions pursuant to those results, the 
United States failed to comply with the DSB's recommendations and rulings 
to bring the original investigation in Hot-Rolled Steel from the Netherlands  
into conformity with the covered agreements, because those assessment 
reviews were of entries that were made prior to the end of the reasonable 
period of time, and indeed prior to the DSB's recommendations and rulings in 
the original dispute; 
 
(c) (i) the Panel's finding in  paragraph 8.213 of its report3 that, in issuing the final 
results of the 2004-2005 administrative review in Stainless Steel Wire Rod 
from Sweden  and assessment instructions pursu ant to those results, the United 
States acted inconsistently with Article 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994, because this review did not fall within the Panel's terms of reference; and 
 
(ii) the Panel's further finding in paragraph 8.213 of its report that, in issuing the 
final results of the 2004-2005 administrative review in Stainless Steel Wire 
Rod from Sweden  and assessment instructions pu rsuant to those results, the 
United States failed to comply with the DSB's recommendations and rulings 
to bring the original investigation in Stainless Steel Wire Rod  from Sweden  
into conformity with the covered agreements, because those assessment 
reviews were of entries that were made prior to the end of the reasonable 
period of time, and indeed prior to the DSB's recommendations and rulings in 
the original dispute; and 
 
(d) the Panel's conclusions in paragraph 9.1(b)(i) of its report, which are based on the 
erroneous findings referenced above. 
 
 
                                                     
 
2The paragraphs on which the Panel's findings in paragraph 8.208 are based include, for example, 
paragraphs 8.87-8.125 and 8.203-8.208 of the Panel's report. 
3The paragraphs on which the Panel's findings in paragraph 8.213 are based include, for example, 
paragraphs 8.87-8.125 and 8.210-8.213 of the Panel's report. WT/DS294/AB/RW 
Page 192  
 
  ANNEX III
 
  
O
RGANISATION MONDIALE   ORGANIZACIÓN MUNDIAL  
    DU COMMERCE   DEL COMERCIO  
 
WORLD TRADE ORGANIZATION  
 
APPELLATE BODY 
  
United States – Laws, Regulati ons and Methodology for Calculating Dumping Margins ("Zeroing") 
 
Recourse to Article 21.5 of the DSU by the European Communities 
 
 
AB-2009-1  
 
Procedural Ruling  
  
1. On 16 February 2009, the Appellate Body Divisi on hearing this appeal received a request 
from the European Communiti es to allow observation by the public of the oral hearing in the above 
appellate proceedings.  On 19 February 2009, the United States also requested the Division to authorize public observation of the oral hearing.  The participants argued that nothing in the Understanding on Rules and Procedures Governing the Settlement of Disputes  (the "DSU") or the 
Working Procedures for Appellate Review  (the " Working Procedures ") precludes the Appellate Body 
from authorizing public observation of the oral hearing.
1   
 2. On 20 February 2009, we invited the third par ticipants to comment in writing on the requests 
of the participants.  In particular, we asked th e third participants to provide their views on the 
permissibility of opening the hearing under the DSU and the Working Procedures , and, if they so 
wished, on the specific logistical arrangements pr oposed in the requests.  We received comments on 
2 March 2009 from India, Japan, Korea, Mexico, Norway, the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu, and Thailand.  Japan, Norway, and the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu expressed their suppor t for the requests of the participants.  India, 
Mexico, and Thailand expressed the view that the pr ovisions of the DSU do not allow public hearings 
at the appellate stage.  According to these third participants, the oral hearing forms part of the 
proceedings of the Appellate Body and, therefore, is  subject to the requirement of Article 17.10 of the 
DSU that "[t]he proceedings of the Appellate Bo dy shall be confidential. "  Korea shared these 
concerns but did not object to the opening of the oral hearing to the public in these proceedings;  
at  the same time, Korea requested the Appellate Body to treat its written and oral statements as 
confidential.  Mexico and Thailand expressly requ ested the Appellate Body to treat their written 
statements and oral submissions as confidential sh ould it decide to allow public observation of the 
oral hearing.   
 
                                                     
 
1Similar requests were made in the appeals in United States – Continued Suspension of Obligations in 
the EC – Hormones Dispute  and Canada –  Continued Suspension of Obligations in the EC – Hormones 
Dispute ;  European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second 
Recourse to Article 21.5 of the DSU by Ecuador  and  European Communities – Regime for the Importation, Sale 
and Distribution of Bananas – Recourse to Article 21.5 of the DSU  by the United States ;  and United States – 
Continued Existence and Application of Zeroing Methodology .  WT/DS294/AB/RW 
 Page 193 
 
 
  3. We are making the following ruling on the requests of the participants, having carefully 
considered the comments of the third participants.  Ar ticle 17.10 must be read in context, particularly 
in relation to Article 18.2 of the DSU.  The sec ond sentence of Article 18.2 expressly provides that 
"[n]othing in this Understanding shall preclude a part y to a dispute from disclosing statements of its 
own positions to the public".  Thus, under Article 18.2, the parties may decide to forego 
confidentiality protection in respect of their statemen ts of position.  The third sentence of Article 18.2 
states that "Members shall treat as confidential info rmation submitted by another Member to the panel 
or the Appellate Body which that Member has desi gnated as confidential."  This provision would be 
redundant if Article 17.10 were interpreted to re quire absolute confidentiality in respect of all 
elements of appellate proceedings.  There would be no  need to require, pursuan t to Article 18.2, that a 
Member designate certain information as confidential.   The last sentence of Article 18.2 ensures that 
even such designation by a Member does not put an end to the right of another Member to make disclosure to the public.  Upon request, a Member must provide a non-confidential summary of the information contained in its written submissions that  it designated as confidential, which can then be 
disclosed to the public.  Thus, Article 18.2 provi des contextual support for the view that the 
confidentiality rule in Article 17.10 is not absolute .  Otherwise, no disclosure of written submissions 
or other statements would be permitte d during any stage of the proceedings. 
 4. In practice, the confidentiality requirement in Article 17.10 has its limits.  Notices of Appeal 
and Appellate Body reports are discl osed to the public.  Appellate Bo dy reports contain summaries of 
the participants' and third particip ants' written and oral submissions and frequently quote directly from 
them.  Public disclosure of Appellate Body reports is an inherent and necessary feature of our rules-
based system of adjudication.  Consequently, u nder the DSU, confidentiality is relative and time-
bound.  5. In our view, the confidentiality requirement in Article 17.10 is more properly understood as 
operating in a relational manner.
2  There are different sets of relationships that are implicated in 
appellate proceedings.  Among them are the following relationships.  First, a relationship between the 
participants and the Appellate Body.  Secondly, a relationship between the third participants and the 
Appellate Body.  The requirement that the proceedi ngs of the Appellate Body are confidential affords 
protection to these separate relationships and is intend ed to safeguard the inter ests of the participants 
and third participants and the adj udicative function of the Appellate Body, so as to foster the system 
of dispute settlement under conditions of fairness, im partiality, independence and integrity.  In this 
case, the participants have requested authoriza tion to forego confidentiality protection for their 
communications with the Appellate Body at the oral hearing.  The requests of the participants do not 
extend to any communications, nor touch upon the relati onship, between the third participants and the 
Appellate Body.  The right to confidentiality of thir d participants vis-à-vis the Appellate Body is not 
implicated by these requests.  The question is thus  whether the participants' requests to forego 
confidentiality protection satisfy the requirements of fairness and integrity that are the essential 
attributes of the appellate process and define th e relationship between the Appellate Body and the 
participants.  If the requests meet these standard s, then the Appellate Body would incline towards 
authorizing them.  
6. We note that the DSU does not specifically provide for an oral hearing at the appellate stage.  
The oral hearing was instituted by the Appellate Body in its Working Procedures , which were drawn 
up pursuant to Article 17.9 of the DSU.  The conduct and organization of the oral hearing falls within 
the authority of the Appellate Body ( compétence de la compétence ) pursuant to Rule 27 of the 
Working Procedures .  Thus, the Appellate Body has the power to exercise control over the conduct of 
the oral hearing, including authorizing the lifting of c onfidentiality at the request of the participants as 
long as this does not adversely affect the rights and inte rests of the third participants or the integrity of 
                                                     
 
2This relational view of rights and obligations of confidentiality is consistent with the approach 
followed in domestic jurisdictions with respect to similar issues, such as privilege. WT/DS294/AB/RW 
Page 194  
 
  the appellate process.  As we observed earlier, Artic le 17.10 also applies to the relationship between 
third participants and the Appellate Body.  Nevert heless, in our view, the third participants cannot 
invoke Article 17.10, as it applies to their relationship with the Appellate Body, so as to bar the lifting 
of confidentiality protection in the relationship be tween the participants and the Appellate Body.  
Likewise, authorizing the participants' requests to forego confidentiality does not affect the rights of 
third participants to preserve the confidentiality of their communications with the Appellate Body. 
 7. The powers of the Appellate Body are themselv es circumscribed in that certain aspects of 
confidentiality are incapable of derogation—even  by the Appellate Body—where derogation may 
undermine the exercise and integrity of the Appellate Body's adjudicative function.  This includes the 
situation contemplated in the second sentence of Artic le 17.10, which provides that "[t]he reports of 
the Appellate Body shall be drafted without the presen ce of the parties to the dispute and in the light 
of the information provided and the statements ma de."  Confidentiality of the deliberations is 
necessary to protect the integrity, impartiality, and independence of the appellate process.  In our 
view, such concerns do not arise in a situation wh ere, following requests from the participants, the 
Appellate Body authorizes the lifting of the confidentia lity of the participants' statements at the oral 
hearing.  8. The Appellate Body has fostered the active par ticipation of third parties in the appellate 
process in drawing up the Working Procedures and in appeal practice.  Ar ticle 17.4 provides that third 
participants "may make written submissions to, a nd be given an opportunity to be heard by, the 
Appellate Body."  In its Working Procedures , the Appellate Body has given full effect to this right by 
providing for participation of third participants during the entirety of the oral hearing, while third 
parties meet with panels only in a separate session at  the first substantive meeting.  The rights of third 
participants are distinct from those of the main pa rticipants to a dispute.  They have a systemic 
interest in the interpretation of the provisions of the covered agreements that may be at issue in an 
appeal.  Although their views on the questions of lega l interpretation that come before the Appellate 
Body are always valuable and thoroughly consid ered, these issues of legal interpretation are not 
inherently confidential.  However, it is not for th e third participants to determine how the protection 
of confidentiality in the relationship between the pa rticipants and the Appellate Body is best dealt 
with.  We do not consider that the third particip ants have identified a specific interest in their 
relationship with the Appellate Body  that would be adversely affected if we were to authorize the 
participants' requests. 
 9. The requests for public observation of the oral hearing in this dispute have been made by the 
European Communities and the United States.  As we  explained earlier, the Appellate Body has the 
power to authorize the requests by the participants to lift confidentiality, provided that this does not 
affect the confidentiality of the relationship between  third participants and the Appellate Body, or 
impair the integrity of the appellate process.  The participants have suggested  that the Appellate Body 
allow observation by the public of the oral hearing in this dispute by means of simultaneous closed-
circuit television broadcasting with the transmission being switched off when those third participants 
who do not wish to make their statements public ta ke the floor.  We do not see the public observation 
of the oral hearing, using the means described a bove, as having an adverse impact on the integrity of 
the adjudicative functions performed by the Appellate Body. 
 10. For these reasons, the Division authorizes the public observation of the oral hearing in these 
proceedings on the terms set out below.  Accordingly, pursuant to Rule 16(1) of the Working 
Procedures , we adopt the following additional proced ures for the purposes of this appeal: 
  WT/DS294/AB/RW 
 Page 195 
 
 
  (a) The oral hearing will be open to public ob servation by means of simultaneous closed-
circuit television.  The closed-circuit tele vision signal will be shown in a separate 
room to which duly registered delegat es of WTO Members and members of the 
general public will have access.   
 
(b) Oral statements and responses to questions by  third participants wishing to maintain 
the confidentiality of their submissions w ill not be subject to public observation.   
 (c) Any third participant that has not already done so may request that its oral statements 
and responses to questions remain conf idential and not be subject to public 
observation.  Such requests must be recei ved by the Appellate Body Secretariat 
no later than 5:00 p.m. Geneva  time on Wednesday, 18 March 2009
. 
 (d) An appropriate number of seats will be reserved for delegates of WTO Members in 
the room where the closed-circuit broadcast will be shown. 
 
(e) Notice of the oral hearing will be provid ed to the general public through the WTO 
website.  WTO delegates and members of the general public wishing to observe the oral hearing will be required to register in advance with the WTO Secretariat. 
 (f) Should practical considerations not allow si multaneous broadcast of the oral hearing, 
deferred showing of the video recordin g will be used in the alternative. 
 
4 March 2009 
 
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