WORLD TRADE  
ORGANIZATION  WT/DS397/8 
5 April 2011 
 (11-1682) 
 Original:   English 
  
 
EUROPEAN COMMUNITIES
1 – DEFINITIVE ANTI-DUMPING MEASURES 
ON CERTAIN IRON OR STEEL FASTENERS FROM CHINA 
 
Notification of an Other Appeal by China   
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 30 Ma rch 2011, from the Delegation of the People's 
Republic of China, is being circulated to Members. 
 
_______________ 
 
  Pursuant to Article 16.4 and Article 17 of the DSU, the People's Republic of China hereby 
notifies to the Dispute Settlement Body its decision to  appeal to the Appellate Body certain issues of 
law covered in the Report of the Panel and certain le gal interpretations developed by the Panel in its 
Report in the dispute European Communities – Definitive Anti-Dumping Measures on Certain Iron or 
Steel Fasteners from China  (WT/DS397/R).  Pursuant to Rule 23(1) of the Working Procedures for 
Appellate Review , China simultaneously files this Notice of Other Appeal with the Appellate Body 
Secretariat. 
  China seeks review by the Appellate Body of th e following aspects of the Report of the Panel: 
 1. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 4.1 and 3.1 of th e AD Agreement with respect to the definition of 
domestic industry in the fasteners investigation by excluding from the definition of the domestic 
industry the producers that made themselves known after the 15-day deadline following the publication of the Notice of Initiation and the producers that did not support the complaint 
(paragraphs 7.209 – 7.221 and para graph 8.3(b) of the Panel Report).  China has identified, inter alia , 
the following errors in the issues of law and legal interpretations de veloped by the Panel: 
• The Panel failed to make an objective assessment of the facts in violation of, inter 
alia, Article 11 of the DSU and Article 17.6 of the AD Agreement in connection with 
                                                     
 
1On 1 December 2009, the Treaty of Lisbon amending the Treaty on European Union and the Treaty 
establishing the European Community  (done at Lisbon, 13 December 2007) entered into force.  On 
29 November 2009, the World Trade Or ganization received a Verbal Note (W T/L/779) from the Council of the 
European Union and the Commission of the European Communities stating that, by virtue of the Treaty of 
Lisbon , as of 1 December 2009, the "European Union" replaces and  succeeds the "European  Community".  On 
13 July 2010, the World Trade Organi zation received a second Verbal Note  (WT/Let/679) from the Council of 
the European Union confirming that, with effect from 1 December 2009, the Euro pean Union replaced the 
European Community and assumed all the rights and obligations of the European Community in respect of all 
Agreements for which the Director-Gen eral of the World Trade Organization is the depositary and to which the 
European Community is a signatory or a contracting party. WT/DS397/8 
Page 2  
 
  China's claim that the EU violated Artic les 4.1 and 3.1 of the AD Agreement by 
excluding from the definition of the domestic industry producers that did not support the complaint, since: 
 
- the Panel erroneously accepted as a "fact" the unsubstantiated statement of the 
EU that "at least one producer which was not a complainant, and had 
remained silent prior to initiation, was not only included in the domestic industry, but was selected for the sample"
2; 
- the Panel erroneously concluded that the fact that "at least one producer which 
was not a complainant, and had remained  silent prior to initiation, was not 
only included in the domestic industry, but was selected for the sample" 
demonstrated that "the EU investigating authority, in this case, did [not], in 
fact, exclude producers that did not su pport the complaint from the domestic 
industry"3 and erroneously ignored the explanation put forward by China 
pointing out that such conclusion cannot be and was not correct; 
- the Panel disregarded and ignored the evidence submitted by China which 
demonstrated that the EU excluded fro m the domestic industry all producers 
that did not support the complaint. 
 China requests the Appellate Body to reverse th e Panel's findings and to complete the analysis 
by finding that it has been demonstrated that the EU excluded from the definition of the domestic 
industry the producers that did not support the complaint.  China further requests the Appellate Body 
to complete the analysis by finding that the excl usion from the definition of the domestic industry of 
the producers that did not support the complaint is in consistent with Article 4.1 of the AD Agreement. 
 
• The Panel erred in its interpretation of  Article 4.1 of the AD Agreement when 
examining China's claim that the exclusion from the domestic industry of producers that did not come forward within 15 days as of the date of publication of the Notice of 
Initiation was inconsistent with Article  4.1 and failed to make an objective 
assessment of the facts in violation of Article 11 of the DSU in connection with that claim: 
 
- the Panel failed to make an objective assessment of the facts as required by 
Article 11 of the DSU when it concluded that the "EU did not act to exclude"
4 
producers that did not make themselves known within 15 days as of the date 
of initiation of the investigation; 
- the Panel erred in its interpretation of  Article 4.1 of the AD Agreement when 
concluding that there is nothing in  Article 4.1 which would preclude 
investigating authorities from establishi ng deadlines for companies to come 
forward in order to be considered fo r inclusion in the domestic industry; 
- the Panel failed to make an objective assessment of the facts as required by 
Article 11 of the DSU  when concluding that China has not demonstrated that 
"the 15 days allowed by the Commission was insufficient".5 
                                                      
2Panel Report, para. 7.214. 
3 Panel Report, para. 7.215. 
4 Panel Report, para. 7.215. 
5 Panel Report, para. 7.219.  WT/DS397/8 
 Page 3 
 
 
   China requests the Appellate Body to reverse th e Panel's findings and to complete the analysis 
by finding that, on the basis of the facts before the Panel, it has been demonstrated that the EU acted 
to exclude from the definition of the domestic indus try the producers which did come forward within 
15 days as of the date of publication of the Notice of Initiation and that, therefore, the EU acted in 
violation of Article 4.1 of the AD Agreement.  China furthermore requests the Appellate Body to 
conclude that it has been demonstrated that the 15-day period granted to the domestic producers to 
come forward was not "reasonable" or "sufficient" and that therefore the EU acted in violation of 
Article 4.1 of the AD Agreement.  
• The Panel erred in dismissing China's claim that the EU violated Article 3.1 of the 
AD Agreement by excluding from the domestic industry the producers which did not 
come forward within 15 days as of the date of the Notice of Initiation and the 
producers which did not support the complaint. 
  China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 3.1 since it failed to make an injury determination which is based on an "objective 
examination" as required by Article 3.1 of the AD Agreement. 
 2. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 4.1 and 3.1 of th e AD Agreement with respect to the definition of 
domestic industry in the fasteners investigation because the domestic industry as defined by the EU did not include domestic producers whose collect ive output of the like product constitutes a major 
proportion of the total domestic production (paragra phs 7.222 – 7.230 and para. 8.3(b) of the Panel 
Report).  China has identified, inter alia , the following errors in the issues of laws and of legal 
interpretations developed by the Panel: 
• The Panel failed to make a correct interp retation of the terms "major proportion" 
which is based on the ordinary meaning of th ese terms and in light of their context, 
pursuant to the principles of treaty interpretation of the Vienna Convention on the 
Law of Treaties, and, as a result, ma de the following erroneous findings and 
conclusions: 
 
(i) the Panel erroneously concluded that the fact that the Commission relied on 
a presumption is not alone sufficient to demonstrate, prima facie , that the 
definition of the domestic industry in  this case is inconsistent with 
Article 4.1 of the AD Agreement; 
 
(ii) the Panel erroneously concluded that the non-quantitative factors raised by 
China are not relevant in this case or in general. 
 
 China requests the Appellate Body to reverse the Panel's findings and to conclude that, by 
considering that producers accounting for 25% of total domestic production necessarily constitute a 
major proportion, the EU violated Article 4.1 of  the AD Agreement and that the "non-quantitative 
factors" identified by China are relevant for th e purposes of determining whether the major proportion 
requirement is satisfied and had to be considered by the Commission in the f asteners investigation.  
China further requests the Appellate Body to concl ude that, in light of these non-quantitative factors, 
the domestic producers constituting the domestic industry in the f asteners investigation did not 
represent a "major proportion" of the domestic industry.  3. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Articles 3.1 and 4.1 of the AD Agreement since it made an injury 
determination with respect to a sample of producer s that was not representative (paragraphs 7.234 to WT/DS397/8 
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  7.241 and 8.3(b) of the Panel Report).  China identified, inter alia , the following errors in the issues of 
law and of legal interpretati ons developed by the Panel: 
• The Panel erroneously concluded that "it cannot accept the contention that only a 
statistically valid sample will be sufficientl y representative for purposes of an injury 
determination"; 
 
• the Panel erroneously concluded that China has not demonstrated that the 
EU investigating authority could have ca rried out its injury examination for the 
domestic industry it had defined, or at l east include more producers in the sample. 
  China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 3.1 of the AD Agreement. 
 
4. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
European Union violated Article 2.4 of the AD Agre ement with respect to the dumping determination 
in the fasteners investigation (paragraphs 7.291 – 7.311 and para. 8.3(d) of the Panel Report).  China 
has identified, inter alia , the following errors in the issues of la ws and legal interp retations developed 
by the Panel: 
• The Panel failed to make an objective assessment of the matter as required by 
Article 11 of the DSU by failing to address China's argument that the EU violated 
Article 2.4 since the Commission failed to indicate to the interested parties what 
information was necessary to ensure a fair comparison and made it impossible for them to claim adjustments for differences affecting price comparability and, to the 
extent the Panel would have implicitly concluded that such a failure was not 
inconsistent with Article 2.4 of the AD Agre ement, the Panel failed to make a correct 
interpretation of Article 2.4 of the AD Agreement; 
 
• the Panel erred in its interpretation of Article 2.4 of the AD Agreement when it 
rejected China's argument that the EU violated Article 2.4 by failing to evaluate whether the characteristics identified in th e PCNs affected price comparability and 
whether adjustments for these differences in  physical characteristics were warranted; 
 
• the Panel did not make an objective assessment of the facts as required by Article 11 
of the DSU and Article 17.6 of the AD Ag reement when it concluded that China has 
pointed to no evidence supporting the conclusion that the PCN characteristics indicated differences affecting price comp arability and when claiming that "it would 
be inappropriate for us, under the standa rd of review to consider it ourselves"; 
 
• the Panel erred in its interpretation of Article 2.4 of the AD Agreement when it 
rejected China's claim that the EU viol ated Article 2.4 of the AD Agreement by 
failing to make the necessary adjustments for quality differences. 
 
 China requests the Appellate Body to reverse th e Panel's findings and to conclude that, on the 
basis of the facts before the Panel, it has been dem onstrated that the EU violated Article 2.4 of the 
AD Agreement with respect to each of the identified issue mentioned above. 
 5. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
EU violated Articles 6.5, 6.4 and 6.2 of the AD Ag reement in connection with the non-disclosure of 
the identity of the complainants and of the suppor ters of the complaint (paragraphs 7.445 – 7.459 and 
para. 8.3(h) of the Panel Report).  China has identified, inter alia
, the following errors in the issues of  WT/DS397/8 
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  laws and legal interpretations de veloped by the Panel in its findings concerning China's claim under 
Article 6.5 of the AD Agreement: 
• The Panel erred in its interpretation of the "good cause" requirement when ignoring 
the difference between a hypothetical poten tial retaliation which "could" happen and 
a retaliation which "would" happen; 
 
• the Panel erred in law in considering that  the "good cause" requirement was satisfied 
without supporting evidence provided by  the parties requesting confidential 
treatment; 
 
• the Panel erred in rejecting China's argument that no good cause was established 
since the seven EU producers that made up the sample for purposes of the Commission's injury determination were al so complainants and supporters and that 
they did not ask the Commission to treat their identity as confidential information. 
  China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
EU violated Article 6.5 of the AD Agreement th rough the non-disclosure of the identity of the 
complainants and of the supporters of the complain t.  China also requests the Appellate Body to 
reverse the Panel's findings concerning China's cl aim under Articles 6.4 and 6.2 of the AD Agreement 
and to complete the analysis by finding that the EU's failure to disclose the identity of the 
complainants and of the supporters of the complaint is also inconsistent with Articles 6.4 and 6.2 of 
the AD Agreement.  
6. China seeks review of the Panel's conclusions and findings concerning China's claim that the 
EU violated Article 6.1.1 of the AD Agreemen t by limiting the time period for the submission of 
MET/IT claim form to 15 days as of the date of publication of the Notice of Initiation (paragraphs 7.566 – 7.579 and 8.3(k) of th e Panel Report).  China has identified, inter alia , the 
following errors in the issues of law and le gal interpretations developed by the Panel: 
• The Panel erred in its interpretation of the te rm "questionnaire" in Article 6.1.1 of the 
AD Agreement by adopting an interpretati on which is not consistent with the 
ordinary meaning of that word in light of its context and the object and purpose as 
required by the principles of treaty interp retation included in the Vienna Convention 
on the Law of Treaties; 
 
• even assuming that the Panel did not err in its interpretation of the term 
"questionnaire" in that it would refer to "the initial comprehensive questionnaire 
issued in an anti-dumping investigation to  each of the interested parties by an 
investigating authority at or following th e initiation of an investigation, which seeks 
information as to all relevant issues pertaini ng to the main questions that will need to 
be decided (dumping, injury and causation) ", the Panel erroneously concluded that 
that the MET/IT claim form was not a "qu estionnaire" according to this definition. 
 
 China requests the Appellate Body to reverse the Panel's findings and to conclude that the 
"MET/IT claim form" is a questionnaire within the meaning of Article 6.1.1 of the AD Agreement and 
to complete the analysis by finding that the EU  violated Article 6.1.1 of the AD Agreement. 
 
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