WT/DS299/R 
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ANNEX A 
  
SUBMISSION OF PARTIES AND  THIRD PARTIES FOR THE 
FIRST SUBSTANTIVE MEETING 
 
 
Contents Page 
Annex A-1 Executive Summary of the Submission of Korea  A-2 
Annex A-2 Executive Summary of the Submission of the 
European Communities A-11 
Annex A-3 Executive Summary of the Third Party Submission of Japan A-19 
Annex A-4 Executive Summary of the Third Party Submission of the 
United States A-23 
 WT/DS299/R 
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ANNEX A-1 
 
 
EXECUTIVE SUMMARY OF THE  
SUBMISSION OF KOREA 
 
 
(14 May 2004) 
  
 I. EC INJURY INVESTIGATION – CLAIMS OF ERROR  
A. OVERVIEW OF THE EC DRAM INDUSTRY 
 
1. The EC DRAM industry has a number of distinctive conditions of competition.  First, the 
DRAM market is highly cyclical, with regular well-known boom and bust peri ods.  Second, the trend 
has been toward even more extreme boom-bust cycl es.  Third, DRAM product pricing is extremely 
volatile based on worldwide, not regional, suppl y and demand phenomena.  The EC incorrectly 
argued for significant price effects of subsidized imports in the European market and ignored the 
economic reality that subsidized imports by a sing le company like Hynix into the European market 
have at most a very limited ability to have any eff ect on price, particularly relative to the overall 
business cycle.  Understanding and taking into acc ount these distinctive conditions of competition 
should have been a critical part of the EC’s  objective examination required by Article 15.  
Understanding these features will also be an important part of this Panel’s "objective assessment" of 
the EC determinations in this dispute. 
 
B. ARTICLE 15.1 STANDARDS  2. Article 15.1 requires that the competent author ity have "positive eviden ce," and that evidence 
receive "objective examination."  The Appellate  Body has confirmed that evidence supporting a 
finding of injury must be affirmative, objective, verifiable, and credible and emerge from an unbiased 
investigation.  Further, Article 15.1 is an ove rarching provision requiring each of the substantive 
provisions of Article 15 to be read in light of Artic le 15.1. Thus, all aspects of the injury investigation 
must be based on positive evidence and an  objective examination of the facts. 
 C. SIGNIFICANT INCREASE IN SUBSIDIZED IMPORTS  
 
3. The EC mechanically cited import indices, but largely ignored any meaningful analysis of the 
significance of those figures.  Given the unique nature  of DRAMs, and the ever-increasing total bits 
supplied and consumed, an actual increase in import s is meaningless.  Rather, the authority must 
examine the increased shipments relative to cons umption and relative to other suppliers.   
 
4. Under Articles 15.1 and 15.2, the national author ity must prove that there was material injury 
to the domestic industry caused by subsidized
 imports, not the imports from the country being 
investigated as a whole.  In this case, however, th e EC mistakenly considered the volume and market 
share of imports from Korea as a whole, even though it itself had already concluded that a portion of those imports were not
 subsidized.  This constitutes a manife st error and is inconsistent with 
Articles 15.1 and 15.2.  
 5. The merger that created Hynix is a critically  important factor in this case.  In 1999 two 
separate Korean DRAM companies merged.  Yet the EC did not take the merger into account in any  WT/DS299/R 
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meaningful way, and this failure fundamentally dist orted its analysis of the volume and market share 
of allegedly subsidized imports.  6. According to Infineon’s own compla int, the data show a significant drop
 in Hynix market 
share, from 21.2 per cent in 1999 to 15.5 per cent in 2001.  The EC’s finding of an "increase" in 
market share, is based solely on improper manipulation of the data.  Specifically, the EC compared 
the market share of single company (Hynix pre-merger, i.e. Hyundai Electronics) in 1998 with the combined market share of two companies (Hynix post merger, i.e. HEI and LGS) in 2001.  The EC 
itself provided market share indices that showed a remarkable decrease by Hynix when the Hynix-LGS merger was appropriately accounted for, fa lling consistently over the 1998-2001 period from 
100 to 61. 
 7. The market share of Hynix DRAMs fell consis tently over the period, while other suppliers 
expanded their market share over the same period.  Market share provides the context in which an 
objective authority would have analyzed whether pa rticular import volumes were properly considered 
significant or not.  But in this case, rather than an alyze the context seriously and objectively, the EC 
authorities were both too broad and too narrow.  The EC authorities cited data and trends for all of 
Korea, even though the EC had found that Sams ung was not subsidized, and thus could not be 
considered part of the "subsidized imports" bei ng analyzed.  The EC authorities also refused to 
combine Hynix and LGS on a consistent basis, and thus impermissibly narrowe d the data to create the 
illusion of a market share increase for Hynix that simply did not exist.   
 
D. SIGNIFICANT PRICE EFFECTS BY SUBSIDIZED IMPORTS  8. The EC made findings about pricing at odds with the facts of this case, and with basic 
economic logic.  By far the most important specific fact is that at the height of the alleged 
subsidization of Hynix in 2001, Hynix was losing market share in the EC market, not gaining share .  
If price were truly as important to customers as the EC  has stated, and if Hynix were truly the lowest 
price supplier in the EC market, Hynix would have gained market share in 2001, not lost share.  It defies economic logic to blame Hynix pricing, when  Hynix was losing market share for a commodity 
product.  
9. The EC also largely ignored its own finding th at there really is no such thing as a "price 
leader" in the DRAM market, which should have ca lled into serious doubt whether Hynix itself could 
really be the source of "significant" price effects.   The absence of a price leader means that broader 
supply-demand factors are driving prices.  
10. The EC undertook three different approaches to analyzing price undercutting, but then 
inexplicably chose to focus on the only met hod that demonstrated price undercutting without 
explaining why it jettisoned the two other approaches.  It is critical to note that the two other findings 
demonstrated no
 significant price undercutting by Hynix.  Korea submits that the price comparison 
approach used by the EC results in a completely distorted analysis.   
 
11. The EC also brushed aside any meaningful discussion of other factors that affect pricing.  
This evidence before the EC demonstrated that DR AM market prices are affected by: (1) the general 
economic downturn and decrease of demand, which causes "inventory burn"; (2) excess capacity by other suppliers; and (3) imports from other suppliers.  In its discussion of price effects from other 
factors, the EC dismissed them out of hand by conc luding that either they only played some limited 
role in the market price decline or  they are completely irrelevant.  The EC thus failed to consider 
positive evidence on the record that showed other f actors than Hynix price caused the significant drop 
of DRAM prices in 2001.  Given the fact that the Hynix market share was indeed decreasing, the EC 
should have been particularly alert to ot her causes of the DRAM price decline.   
 WT/DS299/R 
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12. If it had an open and objective mind, the EC  should have realized that low priced non-
subsidized imports that were rapidly gaining market  share caused the dominant price effects, and that 
any remaining effects of subsidized imports could no t reasonably be considered "significant."  The EC 
finding was inconsistent with Articles 15.1 and 15.2.  
E. CONDITION OF THE DOMESTIC INDUSTRY 
 13. Article 15.4 requires an evaluation of all
 relevant economic factors and indices, and 
recognizes that the relevant economic factors and th e weight to be given each of those factors will 
differ from case to case.  Perhaps the single most important economic factor in the DRAM market is 
the notorious business cycle for DRAM producers.  The DRAMs industry has endured a continuing 
history of "boom/bust" cycles.  The evidence de monstrated that the DRAM industry had gone from 
the top of the boom (in 2000) to the trough of the bust (in 2001) during the period under consideration.  Although the EC ha d to be aware of the existence of the notorious business cycle, it 
completely ignored the business cycle when analyzin g the causes of the deterioration of the domestic 
industry’s financial condition.   
 14. In analyzing the conditions of the domestic i ndustry, the EC also failed to consider domestic 
industry’s own assessment of factors that describ e success in the EC DRAM market and its own 
description of its relative competitive position in the ma rket.  The EC, at least, should have considered 
these factors in its analysis of domestic industry’s condition.  The domestic industry was providing 
different answers to different audiences as it sa w fit, and any objective authority would have 
considered these inconsistencies.  15. There is also no evidence that the EC properl y examined "output" and "wages."  With regard 
to these neglected factors, the EC did not make suffici ent data available to be able to analyze what a 
proper analysis of "output" and "wag es" would have revealed.  It is pa rticularly significant that the EC 
wrongfully neglected to examine the factor "output,"  considering its importanc e in an industry which 
exports so much.    16. This is not a purely formalistic point.  Count ervailing duties are only allowed if there has been 
material injury to the domestic industry caused by subsidized imports.  To determine whether injury 
has been material
, the competent authorities are obligated to  conduct a thorough analysis of at least  
the factors enumerated in Article 15.4.  17. Moreover, the EC did not acknowledge that most  of the injury factors showed the industry’s 
health.  The EC never explained adequately why ju st three of 13 factors should compel its conclusion 
that the domestic industry was sufferi ng material injury.  The other ten
 factors showed positive trends.  
Such failure demonstrates the lack of objective examination.  F. CAUSATION  18. Under Article 15.5, Members must demonstrat e an explicit "causal relationship" between the 
subsidized imports and any material injury suffere d by the domestic industry.  The evidence before 
the EC demonstrated that there was no correlation be tween the trends in subsidized imports and the 
condition of the domestic industry.  Hynix was losing market share while the domestic industry 
gained market share.    
19. Moreover, the non-attribution requirement in the third sentence of Article 15.5 requires the 
authority not to impute to subsidized imports any in jury caused by other factors.  According to the 
plain meaning of Article 15.5 as well as the una mbiguous guidance from the Appellate Body, the 
competent authority must "separate" and "distinguis h" the injurious effects of factors other than 
subsidized imports to ensure they are not attributed to the subsidized imports.   
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20. The EC authorities ignored the specific evidence on declining demand .  The EC cited certain 
data for overall EU consumption, as measured by "Mbits", but ignored the fact that the Mbits 
consumed are always increasing dramatically.  The key issue is whether the rate of growth is 
consistent with historical trends .  Hynix provided the EC authorities with data on both global and EC 
growth trends.  This data shows that rate of growth in DRAM consumption fell sharply in 2001 from 
its historical average.  Indeed, the fall off in grow th in the EC market was even sharper than the fall 
off in global growth.  The key legal point is that Hynix imports have virtually nothing to do with the 
level of demand.  Demand either increases or decr eases for independent reasons based on the level of 
demand for items that use DRAMs.  Thus, to the extent that DRAM prices rise or fall because of the changing level of demand, those price changes have not been caused by Hynix imports. 
 
21. The EC completely ignored the arguments about changes in relative capacity  that confirmed 
the dominant role of other suppliers.  Hynix’s Kor ean capacity in wafer starts actually contracted 
slightly during this period.  In contrast, othe rs significantly increased cap acity.  Taiwanese capacity 
expansion is by far the largest increase, but several other expansions  (including Micron’s US 
expansion) were significant.  Hynix played a rela tively trivial role in capacity expansions that 
occurred during the period examined, while other suppliers have been the most aggressive in 
expanding total DRAM capacity and output.    22. The EC at least tried to address the role of unsubsidized imports , but either ignored or 
distorted the key evidence.  The large and growin g volume of these unsubsidized imports cannot be so 
easily dismissed.  Non-subsidized import market share was 58 per cent in 2001 compared to 15 per 
cent of Hynix, or more than three times Hynix’s market share.  Under the EC’s own theory of the 
significance of increased market shares for commodity  products, the relative market shares mean that 
other imports had three times the competitive effect as did Hynix’s imports .  The EC did not conduct 
any analysis of other  import suppliers.  The data demonstrates that Taiwanese suppliers dramatically 
increased their share of the EC market, gaining
 5.1 percentage points of markets have while Hynix 
lost 6.2 percentage points.  Yet the EC did not con duct any analysis of Taiwanese suppliers, and their 
rapid growth.   G. THE EC REPORT OF ITS INVESTIGATION  
23. As one of the most important procedural obligations, Article 22.3 requires authorities to 
explain their determination in sufficient detail.  In this case, however, the EC failed to provide 
sufficient detail on several important issues such as volume effects, price effects, and causation, as explained above.  This sparse and inadequate discu ssion by the EC of these key issues triggers two 
independent violations as recognized  and applied by previous WTO panels:  one vi olation of the 
underlying substantive obligation, a nd other violation of the procedural obligation to explain the basis 
of a particular decision.  Since the discussion of findings is not directly discernable from the EC decision, the decision is inconsistent with Article 22.3.  
II. EC SUBSIDY INVESTIGATION – CLAIMS OF ERROR  
 
A. OVERVIEW OF FINANCIAL RESTRUCTURING 
 24. The underlying investigation emerged from the commercially-driven financial restructuring of 
a company, Hynix Semiconductor Inc., in the af termath of Korea’s 1997 financial crisis.  The 
financial crisis triggered extens ive and fundamental corporate and financial sector reform within 
Korea.  This structural reform sought to create independence for Korean banks to make their own 
decisions, and to eliminate government inte rference in individual lending decisions. 
 25. Like many Korean companies, Hynix incu rred substantial debt during the 1997 financial 
crisis.  As a result, the Hynix management reta ined Citibank and Salomon Smith Barney (SSB) in WT/DS299/R 
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September 2000 to embark on a restructuring process. Hynix’s financial restructuring and recapitalization consisted of several separate transactions over 2000-2001 period.  26. The intersection of these two events -- Hynix’ s financial restructuring on the one hand and 
Korean corporate and financial reform on the other -- has essentially been misconstrued by the EC as 
evidence of entrustment or direction by the GOK to  save Hynix at any cost.  The facts of the case 
show that nothing could be further from truth.  Rather, this case illustrates the wisdom of the 
demanding standard in Article 1.1 for demonstrati ng a financial contribution through private bodies, a 
standard that protects innocent and fundament ally sound commercial conduct from the reach of 
improper countervailing duty actions.  
 
B. FACTS AVAILABLE  27. The EC has twisted the concept of "facts ava ilable" in very disturbing ways.  Under the EC 
approach, whenever a competent authority does not like a particular fact, or does not know how to 
respond to that fact, the authority may simply fabricate some excuse to invoke "non-cooperation" and 
then dismiss the adverse fact.  The EC has abused the narrow concept of "facts available" to dismiss 
important pieces of factual information in this case.  The text of Article 12.7 and the related 
jurisprudence both demonstrate that the use of "fact s available" should be exceptional and narrow.  In 
this case, however, the EC abused "facts availabl e" to create evidence wh ere none existed and to 
ignore other evidence when that evidence could not be reconciled to its outcome driven analysis. 
 
28. With respect to the GOK, the EC focused on  two rather narrow pieces of evidence, and then 
proceeded to make sweeping accusations of non-coop eration against the GOK.  The EC conclusions 
about these pieces of evidence are wrong.  At most, Korea may have misunderstood the intent of some questions from the EC.  In the end, however, Kore a answered the specific questions posed fully and 
completely.  Yet the EC still proceeded to use Kor ea’s failure to provide certain information as the 
excuse to fabricate "evidence" about government direction and entrustment.    29. The EC used the same overbroad approach with respect to Hynix.  In a last minute switch, the 
EC decided to reject all evidence about an Arthur  Andersen valuation report because Hynix could not 
let the EC keep the full text of the report. Hynix provided the relevant excerpts.  The EC could and 
did examine the report during the verification.  Yet somehow this was not enough.  Similarly, at the 
last minute the EC created new excuses to reject th e extensive evidence submitted by Citibank.  The 
EC seemed determine to expunge from the record any evidence contrary to its theory of the case.  To 
use Article 12.7 to create favourable evidence a nd to ignore unfavourable evidence is wrong, and 
impermissible. 
 
C. FINANCIAL CONTRIBUTION   30. Under Article 1.1 (a)(1)(iv), "entrustment" or  "direction" can be established only where there 
is government action so clear and unambiguous that  the actions of private bodies can be imputed to 
the government itself.  The text requires that each
 alleged government delegation or command be 
examined with respect to each  party, and with respect to each  task or duty.  
 31. According to the US – Export Restraints case, the acts of entrusting and directing carry with 
them the following three elements: (i) an explicit an d affirmative action, be it delegation or command; 
(ii) addressed to a particular party; and (iii) the object  of which action is a particular task or duty.  The 
panel in US – Export Restraints  confirms generalized statements of  government intent or desire, or 
even general interventions in the market itself, are insufficient to establish a financial contribution 
through a private body.  It is insufficient to conclude that if some  connection exists between 
government, certain  events and certain  actors, then financing by all lenders to a particular party, no 
matter when or how it occurs, is the result of entrustment or direction.   
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32. Yet this is exactly what the EC did in this  case.  After its 14-month investigation, the EC 
failed to come up with any single piece of direct evidence to prove GOK "entrustment or direction" of Hynix creditor banks.  The EC relied on largely a co llection of circumstantial evidence that cannot be 
corroborated or verified in a judicially reliable a nd meaningful way.  When necessary to bolster its 
collection of circumstantial evidence, the EC ap plied "facts available" and substituted adverse 
inferences for evidence.  All such circumstantial evidence can show, at  best, is the possible "effects" 
on the part of the creditors, which may have triggere d certain "reaction" on the part of the creditors.  
Article 1 of the SCM Agreement and US-Export Restraints  require more than showing of a mere 
effect or possible reaction of a private body.    
33. The EC also relies extensively on the fact th at the GOK held ownership interests in certain 
banks involved in Hynix’s restructuring.  This f act hardly constitutes evidence of an explicit and 
affirmative delegation or command by the GOK to entrust or direct credit to Hynix.  But even if this 
shareholding somehow constituted "evidence" for the banks in which the GOK held a controlling 
stake, it is affirmatively not evidence of an e xplicit and affirmative delegation or command to all 
banks, particularly banks with  little or no GOK ownership.   
 34. The EC focused too much on what the GOK was doing, and too little on what the various 
commercial banks were doing.  In fact, the Hynix creditors were consistently assessing what made the 
most commercial sense for them.  Each bank made its own assessment at each stage.  The commercial 
banks drew upon an extensive body of data and in formation to help them make these various 
assessments.  This extensive body of independent outside studies was submitted to the EC during the 
underlying investigation, but the EC largely ignored these studies.  35. The December 2000 syndicated loan  rested on purely commercial considerations.  Private 
banks – including Citibank – agreed to lend Hynix m oney.  Given this participation by private banks 
for their own reasons, the burden of demonstra ting any GOK entrustment or direction should be 
particularly high.  The EC did not and cannot meet th is strict standard for entrustment or direction.  
The fact that the FSC granted waivers to some banks allowing
 their full participation in the syndicated 
loan does not explain the decisions by  these banks actually to participate  in the syndicated loan.  
Likewise, it does not explain the participation of th e seven other banks, which did not require waivers, 
in the syndicated loan.   
 
36. Making available export insurance , and Hynix procuring that insurance through payment of 
the normal premiums, does not explain or describ e any explicit and affirmative delegation or 
command by the GOK to Hynix creditors to extend shor t-term financing.  It does not explain why the 
financing was made. The EC has again confused  facilitating a transaction with directing that 
transaction.   
 37. With respect to the KDB fast track programme  the scope of the EC’s  financial contribution 
findings remain unclear.  Nothing in the KD B fast track programme required any specific
 lender to 
participate.  The Korean financial community ha d great interest in the programme as a means to 
promote financial reform and restructuring.  Sin ce this programme to refinance existing debt would 
help bring stability to the market and spare creditors  the need to struggle with clients in bankruptcy, 
the lenders all had their own self interest very mu ch in mind.  But no specific lender was legally 
obligated to participate in any specific refinancing.   Indeed, the EC erroneously cites the example of 
KFB.  What is truly remarkable about this particul ar "evidence" of entrustment or direction is that 
KFB in fact did not participate  in the fast track programme.  The EC weaves a grossly inaccurate tale 
when it concluded in its Definitive Regulation  that "KFB gave in to the GOK demands and 
participated in the measures."  This error highlight s the dangers of relying on circumstantial evidence, 
rather than real facts.  38. The May 2001 financial restructuring  package was proposed to the Hynix creditors at a 
time when DRAM prices had been rising again.  A ccording to the restructuring plan, Hynix would WT/DS299/R 
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seek an increase in private capital through global depository receipts ("GDRs").  In doing so, the 
creditor banks were essentially "market testing" thei r participation in the restructuring plan.  The GDR 
offering was a success with private investors throug hout the world.  As a result of over-subscription, 
Hynix was able to raise more than USD 1.25 billion in stead of the originally targeted USD 1 billion.  
Thus, the May 2001 restructuring occurred at a time of rising DRAM prices and occurred only 
because Hynix could persuade sophisticated interna tional investors to invest in the company.   
 39. Against this background, the EC searched for any
 evidence to support a claim that the GOK 
was somehow secretly directing the outcome of the May restructuring.  But the EC record shows little 
more than some unsubstantiated news paper articles, and efforts to extrapolate from other events.  The 
mere fact that an FSS official attended one meeting of the Hynix creditors does not become 
"evidence" that the GOK forced every creditor bank to participate.  Newspaper reports about KorAm 
Bank, particularly since they were specifically repu diated at the time, should not become the basis to 
condemn the participation of every other creditor.  Th e mere fact that Hynix needed debt restructuring 
is not evidence that the GOK must have been doing something behind the scenes.  The most 
remarkable aspect of the EC determination is th e willingness to conclude so much from so little.   
 40. Hynix’s October 2001 restructuring  was carried out under a Korean law of general 
application.  Well over 100 companies were restru ctured under this framework.  Under the terms of 
the October 2001 restructuring, Hynix’s principal cr editors agreed on a menu of options they could 
choose in moving forward (or cutting ties) with respect to Hynix.  The very existence of choices  in the 
October restructuring contradicts the EC’s suggestion that there was "entrustment or direction" by the 
GOK.  The totality of circumstances of the Oc tober restructuring confirms the commercial 
reasonableness of the measure and negates an y notion of "entrustment or direction." 
 41. The EC did not produce a single piece of evid ence to demonstrate the constituent elements of 
"entrustment or direction" in the October restruct uring.  The EC continued to resort to its prior 
collection of "circumstantial" evidence to avoid its obligation to prove each constituent element of 
"entrustment or direction."  The EC’s evidence of "entrustment or direction" with respect to the 
Option 1 banks in October restructuring (those lend ing new money) consists primarily of the GOK 
shareholding in certain of them.  Other than re ferring to the GOK shareholding, however, the EC did 
not provide any credible evidence as to each bank’s motivations or intentions in participating in 
Option 1 of the October restructuring.  Four banks  -- including two 100-pe r cent GOK owned banks -- 
chose Option 3 and decided to sever their ties wi th Hynix completely.  These four banks thus 
exercised appraisal rights on their debt rather than  extend new loans to Hynix or convert debt to 
Hynix equity.  This is compelling evidence showi ng lack of government intervention in the October 
restructuring.  If the EC’s allegation were true , the GOK would have easily forced these banks to 
participate, instead of twisting the arms of noi sier private banks or banks with less government 
ownership.  If the GOK could not direct even 100 -per cent owned banks, it is hard to imagine 
direction over independent  banks with no government ownership.  
 D. FINDING AND MEASUREMENT OF "BENEFIT"  
42. The second requirement for establishing a countervailable subsidy is that the competent 
authority must demonstrate that a "benefit is ther eby conferred." As noted by the Appellate Body in 
Canada – Aircraft , a benefit analysis under Articles 1.1(b) and 14 requires a comparison of what was 
received by an entity versus what was availabl e on the market.  Moreover, the SCM Agreement 
defines benefit in the context of the experience of  private actors in the market of the Member under 
investigation.   
 43. After initially finding no "benefit" on many issues, the EC changed its position in its Definitive Regulation  and suddenly found the existence of "ben efit."  This was flat wrong.  Nothing 
that could affect the "benefit" analysis could have possibly changed since the Provisional Regulation :  
the market environment, terms of the lo ans, and credit ratings remained unchanged .  In fact, the EC  WT/DS299/R 
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acknowledged that it changed its decision on the syndicated loan in the Definitive Regulation  because 
of new information; i.e. , documents with respect to the Economic Ministers’ meetings.  Even if true, 
however, all this new information concerned only GOK "entrustment or direction," and had nothing to 
do with the EC’s benefit analysis.  As such, the EC ’s change of analysis for benefit was completely 
erroneous and unwarranted because it failed to enga ge in any meaningful discussion as to why it was 
changing its "no benefit" conclusion from the Provisional  Regulation. 
 44. The EC understood that to find a countervailable subsidy from the syndicated loan , the EC 
could not afford to conclude again that there wa s no benefit.  So ignoring its own sequence for the 
subsidy analysis as expressed in the Provisional Regulation , the EC found the benefit without 
engaging in any detailed discussion to explain or just ify its change of position.  All it provided as a 
rationale in this regard was that similar financing was not available at the time, which is preposterous 
since ten different banks, including a foreign bank, were involved in the particular loan at issue. 
 45. The EC also avoided a proper "benefit" analysis in examining export insurance .  The 
standard as clarified by the Appellate Body in Canada -- Aircraft  is to measure the difference between 
what was received  and what was available on the market.  Hynix received KEIC insurance in return 
for payment of listed premiums.  Yet, nowhere does the EC attempt to conduct the appropriate benefit 
analysis.  If anything, the benefit should consist of  the difference between the actual fee paid and the 
fee that covers the operating costs and losses of th e export insurance programme.  But the EC never 
really addresses the matter.  Instead, the EC mixed subjects, focusing on whether a "comparable 
commercial loan" could have been obtained by Hyni x absent the KEIC insurance.  But if the KEIC 
insurance was truly a loan guarantee, then the app licable measure of benefit would be the difference 
between the amount the firm receiving the guarant ee paid on the loan guaranteed by the government 
and the amount the firm would pay on a comparab le commercial loan absent the government 
guarantee, consistent with Article 14(c) of the SC M Agreement.  This analysis was not performed. 
 
46. The EC also rushed to judgment about the KDB fast track programme .  The EC cannot 
substitute its own conclusion for the commercial judgm ent of Hynix creditors.  It was never "evident" 
that the bonds would not be repaid.  First, strict conditions applied to all applicants, including Hynix, 
such as credit rating, ability for upfront purchase of 20 per cent of the bonds, and long-term viability despite short term liquidity problem.  Second, and more importantly, Hynix did obtain financing 
through loans in the same period in the form of the syndicated loan -- in the EC’s own words, "a very 
similar transaction" to a bond -- and also in the fo rm of the new equity issuance in the similar time 
period (i.e. in June 2001) on world financial markets.   It seems creditors and investors did not agree 
with the EC’s negative assessment.    
47. The EC determined in its Provisional Regulation  that there was no benefit conferred on 
Hynix from the May 2001 restructuring  mainly because of the successfu l new equity offering.  The 
fact that Hynix made a successful equity offe ring in June 2001 did not change after the Provisional 
Regulation .  Nonetheless, the EC did change its " no benefit" conclusion, referring to "new 
information" obtained after the issuance of the Provisional Regulation  that Korea submits can only be 
related to the EC’s "entrustment or direction" analysis, not its benefit analysis.  That "new 
information" primarily concerned the presence of  FSC and FSS officials at a 10 March 2001 meeting 
of Hynix creditors, which has nothing to do with the success of the equity offering.  Thus, the EC changed its benefit analysis without pr oviding any adequate explanation.   
 48. The factual record completely undermines the EC’s erroneous negative assessment.  First, at 
the time that the convertible bond ("CB") purchase w as decided, DRAM market  forecasts were again 
favourable despite Hynix’s particular financial difficulties.  Second, private investors on the 
international market showed conf idence in Hynix’s long-term viability by purchasing the new equity.  
Third, the purchase of the CB was specifically conditioned upon the successful issuance of new 
equity.  Fourth, the creditor banks’ requirement th at Hynix maintain the funding received from the CB 
purchase in escrow shows that the banks’ concern th at the funding be utilized for specific purposes as WT/DS299/R 
Page A-10  
 
a means of protecting their investment.  Fifth, th e fact that the banks chose to purchase convertible
 
bonds instead of regular bonds further indicates that they were even hoping to obtain more than just their money back.  At a time when the DRAM market was improving again, they wanted the 
opportunity to potentially participate in the ga ins resulting from such improvement through Hynix 
equity.  These conditions and terms placed on the May restructuring  negate the EC assertion that the 
creditors did not believe they would be repaid; they  in fact took actions to help ensure repayment. 
 49. The EC made the same errors with respect to the October 2001 restructuring .  The EC 
treated all three measures (the new loan, maturity ex tension, and debt to equity swap) as a disguised 
measure of debt forgiveness, and thus grants.  In fact, the evidence showed that the banks did
 expect 
repayment, and required collateral.  Moreover, third party objective an alyses commissioned by the 
creditors in the course of October restructuring conf irm that they were clearly expecting repayment.  
The creditor-commissioned Arthur Andersen report, which was provided by Hynix and examined by 
the EC as previously discussed, established the liqui dation value for the Hynix debt at 29.9 per cent 
and the going concern value at 75.6 per cent.  In other words, the likely recovery on debt was more 
than twice as large for Hynix as a going concern co mpared to liquidation.  To some of the Hynix 
creditors (i.e. Option 1 creditor banks), it indeed made commercial sense as existing creditors to 
continue to finance Hynix.    50. If the EC’s assertion that the banks did not ex pect to recover those loans were correct, the 
question arises why the banks did not simply write-off the loans, as was done with regard to 
considerable amounts of debt in the context of th e October 2001 restructuring anyway.  Contrary to 
the EC’s assumption, the truth is that the banks th at agreed to the maturity extension expected to 
recover those loans, in light of Hynix’s financia l restructuring and the banks’ favourable assessment 
of Hynix’s future outlook.  Converting debt into equi ty makes sense for and is often used by creditors 
in a situation of financial restructuring, because the equity allows full participation in the upside 
potential of the company in difficulties.  We note that the creditor banks had concluded that Hynix’s 
going concern value was considerable and equity allo ws participation therein.  They were clearly 
contemplating a return from their equities obtai ned through debt-to-equity swap.  Like so many 
foreign investors that participated in the GDR o ffering, Citibank and the private Korean banks knew 
that Hynix stock had a substantial upside potential.    
51. Moreover, the EC’s analysis ignores the single most critical fact:  the market studies prepared 
by outside consultants were done for existing
 creditors, not new outside investors.  It is only common 
sense that an existing creditor will be thinking  about two things when contemplating a new 
investment:  what are the prospects for the new i nvestment, and how does the new investment affect 
any existing investment.  The EC’s analysis allows  the existing creditor to consider only one thing: 
the future  prospects of the investment.  These studies we re numerous and extensive.  The EC ignored 
these studies because it did not want to confront the b asic point of all the studies:  that further debt 
restructuring -- including the debt-equity swap -- was the best chance to ensure Hynix’s survival and 
to maximize the recovery of the existing investment.  This perspective is completely rationale for an 
existing creditor.    
52. Setting aside the fundamental flaw of the EC’s  benefit calculation, which treated all allegedly 
countervailable programmes as a "grant" without rega rd to the circumstances to the nature of the 
transaction, the EC also made numerous mistak es in calculating the benefit even under its own 
methodology.  
E. SPECIFICITY 
 53. Korea submits that the EC finding of specificity  is inconsistent with Articles 1.2 and 2 of the 
SCM Agreement.  Under these provisions, a finding of sp ecificity must be "clearly substantiated" on 
the basis of "positive evidence."  The EC specificity  findings, on the contrary, do not rise to the level 
of precision required under the SCM Agreement.    WT/DS299/R 
 Page A-11 
 
 
 
ANNEX A-2 
  
EXECUTIVE SUMMARY OF THE SUBMISSION  
OF THE EUROPEAN COMMUNITIES 
 
 
(21 June 2004) 
 
  
I. INJURY 
 
1. Korea makes much of what it calls the "boom-bus t cycle".  This is a cen tral pillar of its case. 
Contrary to what Korea asserts, this aspect was ta ken into careful consideration by the European 
Communities, but found not to break the causal link be tween the subsidized imports and injury to the 
domestic industry. 
 
2. Korea’s argument is, in any event, a very curi ous one. It may be that  in markets such as the 
DRAM market it is necessary to take a long term vi ew.  That does not mean that the market place 
should not be subject to the disciplines of the SCM Agreement .  When a player in the DRAM market 
gets it wrong, and the industry is in  a downturn, in the normal course of events that player will have to 
contract by cutting costs and partially withdrawi ng from the market – opening up opportunities for 
others.  The legal person might even "go bust" or the business or assets might otherwise be transferred 
to some other person, at a "distressed" price, or at  least at a lower price, reflecting the cash-strapped 
situation of the original player, and the downturn in the market – once again, opening up opportunities for others.  There is competition in a downturn, ju st as there is when times are good, quite probably 
even more so.  
 
3. Of course, another alternative is government intervention, designed to enable the original 
player to "weather the storm" more or less intact  and live to fight another day.  Naturally, such 
government intervention effectively shifts the burden of the downturn onto other players in the market.  The fact of the downturn does not make the subsidy any less injuri ous – if anything, the 
economic context makes the subsidy even more  injurious.  Thus, the simple question is this : must 
other players in the market be obliged to bear the bu rden of such subsidies ? Or  rather, do the rules in 
the SCM Agreement ensure that, through countervailing measures,  the effects of such subsidies can be 
contained, and not borne by the industry in othe r Members, but ultimately by the persons on whose 
behalf the subsidies were granted – namely Korean  taxpayers – to whom, in the long term, those who 
grant the subsidies are accountable ? The correct an swer is, without a shadow of doubt, the latter.  
And the "boom-bust" argument on which Korea relies so heavily has strictly no relevance whatsoever 
to that basic point.  4. The investigation concerned DRAMs originating in Korea and not DRAMs produced by Hynix.  This was the reason why the investigating authorities looked at the development of imports 
from Korea.  However, the subsidy part of the investigation established that, while imports from 
Hynix were subsidized, imports from Samsung, the on ly other Korean company which exported to the 
Community during the IP, were not subsidized.  Th at is why the investigating authorities also 
separately examined volume, prices, and market shar e for Hynix’s subsidized imports.  For the same 
reason, the investigating authorities also establis hed undercutting exclusively on the basis of the 
prices of Hynix’s imports.  The effect of the subsidized imports also concerned Hynix’s imports.  
Thus, Korea is wrong to assert that the European  Communities acted inconsistently with the SCM 
Agreement because Regulation 1480/2003 also refers to imports from Korea as a whole. WT/DS299/R 
Page A-12  
 
 5. Korea’s allegation concerning the merger hinges on the legal question of whether the 
investigating authorities were obliged by the SCM Agreement  to add LGS’ data to Hynix’s data.  The 
investigating authorities did not do that because doing so would have falsified the data for the trend 
analysis. 
 
6. First
, prior to 7 July 1999, Hynix could not control LGS’ imports into the Community.  Thus, 
Hynix’s/HEI’s, acquisition of LGS had no retroactiv e effect on Hynix’s or HEI’s import volume and 
market share in the Community in 1998 and in 1999 (up to 7 July).  In other words, Hynix’s acquisition of LGS’ production capacity led to increas ed production capacity for the future.  It did not 
retroactively affect Hynix’s import volume and market share for 1998 and for 1999 (up to 7 July).  
Adding LGS’s data to Hynix’s data  would, thus, falsify Hynix’s market data for this period. 
 7. The European Communities would submit that  the present situation is comparable to a 
situation in which a former competitor of the subs idized exporter gives up its business and sells its 
assets.  If the subsidized exporter acquires the pr oduction facilities and equipment of the former 
competitor, it will be in a position to increase its pr oduction and acquire at least partially the market 
share held by the former competitor.  Clearly, the former competitor’s volume and market share 
would not play a role for the trend analysis regard ing imports by the subsidized exporter.  There are 
no reasons why the investigating authorities shoul d have assessed the present case differently only 
because the acquisition of LGS was done in the form of a share deal and not an asset deal.   
 
8. Second
, Articles 15.1 and 15.2 SCM Agreement  require the investigating authorities to 
objectively examine the volume of the subsidized imports .  The investigating authorities established 
that Hynix received subsidies but they did not and could not examine whether LGS received any 
subsidies because LGS did not exist during the IP.  Thus, the investigating authorities could not 
consider LGS’ imports in 1998 and 1999 as "subsidized imports".   
 9. Third
, Korea’s suggestion that the approach follo wed by the investigating authorities with 
respect to LGS’s exports is somehow inconsistent with their approach regarding Micron’s acquisition 
of Texas Instruments is wrong.  In both cases the investigating au thorities followed exactly the same 
approach:  in both cases, the investigating author ities took account of the respective acquisition once 
it had occurred ;  in both cases, the investigating aut horities did not add th e acquired company’s 
volume and market share relating to the period prio r to the acquisition to the acquirer’s volume and 
market share.  This, however, would be the con sequence of Korea’s suggested approach for LGS’ 
volume and market share.  Although the investigati ng authorities could not verify LGS’ data due to 
Hynix’s failure to timely and properly present a ppropriate data, the investigating authorities 
performed an alternative assessment of volume, mark et share, and the imports’ effects in Regulation 
1480/2003.  Consequently, the inves tigating authorities’ approach in  respect of Micron’s acquisition 
of Texas Instruments is fully in line with the approach pursued for Hynix’s acquisition of LGS. 
 10. Should the Panel, notwithstanding the above  observations, find that, by examining and 
considering the matter in the correct and reas onable manner it did, the European Communities 
somehow acted inconsistently with Article 15 SCM Agreement , then the European Communities 
submits, in the alternative, that it rightly did not take account of LGS’ figures because Hynix did not provide them in a proper and timely manner.   11. As regards Korea’s allegations concerni ng price undercutting, the European Communities 
submits that it is important to bear in mind the undisputed main characteristics of the DRAM market.  
First
, competition takes place largely on price.  The pr oducer offering the lowest price will get the 
business.  Second , there is great price flexibility.  This means that prices vary constantly.  Third , there 
is great price transparency.  Price transparency en ables buyers to immediately compare prices.  Thus, 
if one producer decreases its prices, its competitors  must promptly follow because otherwise they will 
not be able to sell.   WT/DS299/R 
 Page A-13 
 
 
 
12. It follows from the above that Korea is wrong insofar as it suggests that the producer with the 
largest market share dictates the price.  Any producer with a significant production capacity can be the price leader and drive prices down.  
13. The European Communities would also submit that it is important to take into account 
Hynix’s specific situation.  As is apparent from the subsidy discussion, Hynix was desperate for cash 
during the IP and, thus, desperate to sell as much as possible, irrespective of the price.  Also, Hynix’s 
production capacity exceeded the Community producers’ capacity and, indeed, the total demand in the 
Community.  Finally, Hynix received unlawful subsid ies that enabled it to sel l at even lower prices 
than those dictated by the market downturn. 
 14. The European Communities also  submits that Korea presents the figures regarding the share 
of undercut and non-undercut tran sactions in a misleading manner.  
 
15. Thus, paras. 152 to 156 of Korea’s first wr itten submission present the sequence of applied 
methodologies incorrectly.  The sequence was : we ighted average; monthly; and then daily 
comparison.  The last comparison was performed at  the request of Hynix and confirmed the monthly 
results in view of the share of comparable undercu tting transactions.  In fact, there were a significant 
amount of transactions that were not comparable an d for which it was thus not possible to determine 
whether they were undercut or not.  The da ta shows that Hynix’s prices were undercutting 
Community prices in 47.2 per cent of all comparable transactions on a monthly basis and in 46.2 per 
cent of all comparable transactions on a daily basis.   16. Korea also fails to mention another distinc tive feature of Hynix’s undercutting strategy : the 
majority of Hynix’s price undercutting occurred for the sales of high value added, advanced DRAMs.  
The Community industry focused on advanced DR AMs due to the Community industry’s more 
advanced technology and because high value added DR AMs are important to finance next generation 
products.  The daily and monthly comparison data  show that Hynix’s undercutting focused on the 
transactions of type 128 and 256 DRAMs.  On the basis of a daily comparison, about 80 per cent of the transactions for which undercutting was found co ncerned high value added DRAMs, and, on the 
basis of a monthly comparison, about 75 per cent of the transactions for which undercutting was 
found concerned high value added DRAMs.  In shor t, Hynix’ undercutting strategy was particularly 
damaging for the Community industry.  17. The European Communities performed an ob jective examination when it compared the 
weighted average Community price with the weighted average Hynix price by product family, as well 
as when it compared the weighted average Hynix price to the Community industry’s individual 
transactions by type.    18. The SCM Agreement  leaves it to the investigating aut hority’s discretion to apply a method 
objectively suited to establish underc utting, price depression, or prevention of price increases.  First, 
Article 15.2 SCM Agreement  requires that "…the investigating authorities shall consider whether 
there has been a significant price undercutting by the subsidized imports as compared with the price 
of a like product of the importing Member … ".  The SCM Agreement  does not require that price 
undercutting be calculated on a weighted average or any other specific basis.  This is confirmed by the 
findings of the Panel in EC-Tube or Pipe Fittings,  which stated that "… an investigating authority 
[enjoys] a degree of discretion in carryi ng out the price undercutting assessment."   The Panel 
explained that "[Article 3.2 of the Anti-Dumping Ag reement]… does not set out any specific 
requirement relating to the calculation of a ma rgin of undercutting, or provide a particular 
methodology to be followed in this consideration."  Consequently, the comparison of weighted 
averages and individual transactions lies within the investigating authorities’ discretion and cannot be 
non-objective as such. 
 WT/DS299/R 
Page A-14  
 
19. The fact that in the present case the investig ating authorities did not resort to their usual 
practice is also no indication that their method wa s not objective.  The investigating authorities 
provided ample explanations for their approach to  compare the weighted average Hynix price with 
individual transactions of the Community industry.  Indeed, it is hardly possible to establish price 
undercutting on a weighted average basis in a mark et characterized by price transparency and 
flexibility because the competitors whose prices are undercut are obliged to quickly follow the lower 
price.  These effects of price depression or the prevention of price increases, together with price undercutting, are expressly provided for in Article 15.2 SCM Agreement  – consideration of any one of 
them would have been sufficient.  The Eu ropean Communities considered all three. 
 
20. The investigating authorities also were not ob liged to additionally consider undercutting with 
variations over the day  or to compare on a transaction-by-transaction basis.  First
, the present case is 
an example of an especially detailed undercutting analysis.  The investigating authorities compared 
weighted averages with weighted averages, and we ighted averages with individual transactions on 
both a monthly and a daily basis.  The investigating authorities also presented the undercutting margin 
as an overall weighted average (16.2 per cent) a nd as an undercutting range (12 to 32 per cent).  
Second , the European Communities is not aware that tr ansactions can be determined at all by the 
hour.  Third , it would have been impossible to find comparable  transactions for three different points 
of time per day, still less for individual transac tions on a transaction-by-transaction basis.  The 
European Communities recalls that already for the daily comparison 38.2 per cent of the transactions 
were not comparable as opposed to 13 per cent in the case of a monthly comparison.  This figure 
would likely have increased dramatically in the case of  a comparison at three different points of time 
per day or in the case of a transaction-by-transacti on comparison and, thus, rendered such comparison 
meaningless.  21. Finally, Hynix’s undercutting qualif ies as "significant undercutting".  The SCM Agreement  
does not define the term "significant undercutting", and there is also no relevant case-law.  In the 
European Communities’ submission, it is also not po ssible to provide an abstract definition of the 
term because it depends on the specific circum stances of a case whether the undercutting is 
significant.   Relevant facts include the margin of undercutting, the percent and type of transaction for 
which undercutting was found, and the price sensitivity of  the market at issue.  In the present case, the 
undercutting margin amounted to 16.2 per cent overall within an undercutting range of 12 to 32 per 
cent and about 47 per cent of all comparable transac tion were undercut.  Moreover, the vast majority 
of undercut transactions related to high value a dded DRAMs, which were crucial for the Community 
industry.  Finally, the DRAM market is very tr ansparent and characterized by substantial price 
competition.   Thus, the European Communities correctly found that there was "significant 
undercutting". 
 
22. Korea asserts that there are other factors th at allegedly disprove th e substantial correlation 
between the subsidization and the low price levels  in the Community.  Th e European Communities 
has the following observations.  23. First
, Korea refers to the fact that DRAM prices dropped world-wide in the year 2001.  This 
argument relates to the economic downturn and is  dealt with in the context of causation.  
 24. Second
, Korea asserts that larger importers, like Sa msung, also practiced low prices and that 
Hynix could not be a price leader due to its sm aller market share.  The European Communities 
submits that Korea misses the point with its pri ce leadership argument.  To begin with, Hynix’s 
market share amounted to 16.8 per cent and not to 15 per cent.  Furthermore, competing suppliers 
were forced to meet any lower price offering ir respective of their market share.  Finally, the 
investigating authorities assessed in detail the influe nce of other imports in recital 151 of Regulation 
708/2003 and recitals 194 and 200 of Regulation 1480/2003.  As the European Communities 
considers the reasoning in these recitals to be sufficiently clear, it will not repeat it here. 
  WT/DS299/R 
 Page A-15 
 
 
25. Third , there is no basis for Korea’s allegation that the magnitude of the price drop in 
comparison to the subsidization level would disprove  a substantial correlation.  The magnitude of the 
price drop in comparison to the subsidization leve l merely suggests that the economic downturn might 
also have possibly caused some injury.  It does not  disprove the finding that Hynix’s subsidized 
imports caused injury in the magnitude of the s ubsidization amount.  The investigating authorities 
addressed both elements : they established that othe r factors might also have possibly caused some 
injury and that the injury elimination level was higher than the subsidization level.   
 26. Fourth
, the finding that Hynix priced irrespective of cost is an important insight.  It may be 
that pricing irrespective of cost is common behaviou r in a cyclical industry.  Hynix, however, was not 
pricing irrespective of cost due to the business cycl e, but due to its desper ate need for cash resulting 
from its financial situation.  Hynix’s prices during the boom year 2000 support the conclusion that its 
prices were not dictated by the business cycle : in comparison to 1998, the prices of other Korean importers had decreased by only 1 per cent and the Community prices by only 7 per cent, whilst Hynix’s prices had already decreased by 23 per cent.   
 
27. As regards the investigation peri od, there is nothing in Article 15.2 SCM Agreement  on the 
fixing of the period of investigation.  In any ev ent, the European Communities submits that it was 
fixed objectively, and that the period of time that in fact elapsed in this case was reasonable and does not disclose any inconsistency.  
28. As regards output, the European Communities agr ees that "output" is a relevant factor for the 
injury assessment.  The Oxford English Dictiona ry defines "output" as "the quantity or amount 
produced; production".  The Commission assessed "production" in Regul ation 708/2003 in 
recitals 125 and 126 and the preceding table.  Th ese findings were confirmed in recital 186 of 
Regulation 1480/2003.  Korea’s a llegation that the European Communities failed to assess "output" is, 
thus, totally without merit. 
 29. As regards wages, the domestic producers’ questionnaire responses contained information on 
wages.  The investigating authorities examined this information and concluded that the factor "wages" 
was irrelevant for the injury assessment in the presen t case.  Moreover, none of the parties, including 
Korea and Hynix, ever raised the issue of "wages".  This is why the factor "wages" is not discussed in 
Regulation 708/2003 and Regulation 1480/2003.   
 30. In its assessment of the state of the domestic  industry the European Communities did far more 
than just list the factors set out in Article 15.4 SCM Agreement .  Rather, for each factor, the European 
Communities included in the Regulations available relevant data.  And in each case the European 
Communities included an analysis or assessment in rela tion to such data, generally indicating that the 
factor was either a positive indicator, or a negative indicator, and drawing overall conclusions for the 
reasons set out in the Regulations.  That constitutes an examination and evaluation.  There is therefore 
no basis for any finding of inconsistency with Article 15.4 SCM Agreement . 
 31. Korea’s elaborations on a causation analysis based  on the addition of LG S’ figures to Hynix’s 
figures are entirely hypothetical, since the investigating authorities acted objectively when they 
examined imports on the basis of an approach  that correctly and reasonably assessed Hynix’s 
acquisition of LGS’ in 1999 (see above).  In any ev ent, the "correlations" that Korea asserts exist 
(market share of the Community Industry versus  market share of Hynix and market share of Hynix 
versus  profitability of Infineon) would not have any pa rticular value for the causation analysis, since 
the investigating authority needs to look at the w hole picture.  Market share, or the volume of 
subsidized imports, is only one piece of the overall picture – which also includes price effects and the state of the domestic industry.  Thus, Korea’s graphs are misleading, and its one-dimensional 
approach is incapable of establis hing any inconsistency with the SCM Agreement . 
 WT/DS299/R 
Page A-16  
 
32. Moreover, the European Communities submits that the conclusions on injury and causation 
would not differ, even if LGS’ data were  to be added to Hynix’s data.  First
, even if LGS’ data were 
to be added to Hynix’s data, there would be a 155 per cent volume increase in absolute terms and this 
constitutes a significant increase in absolute terms within the meaning of Article 15.2 SCM 
Agreement .  Second , Hynix’s 16.8 per cent market share during the IP is sufficiently significant to 
justify the finding that Hynix’s imports affected th e domestic market and the domestic industry prices.  
Third , Korea’s allegations in paras. 213 to 218 of its  first written submission miss the point, since the 
European Communities based neith er the injury nor the causation assessment on market share. 
Furthermore, market share tables lend no support to Korea’s volume related reasoning.    
 II. SUBSIDY 
 
33. The European Communities acted at all ti mes and in all respects consistently with 
Article 12.7 SCM Agreement . 
 
34. Article 1.1(a)(1) SCM Agreement  refers to a financial contribution by a government or any 
public body.  The concept of a "public body" is to be juxtaposed to the concept of a "private body", referred to in Article 1.1(a)(1)(iv) SCM Agreement .  Thus, in determining whether or not an entity is a 
public body, it is relevant to consid er whether or not it is controlled, one way or another, in the long 
term or in the short term, by the state.   
35. As regards the phrase "entrusts or direct s", the European Communities would have the 
following observations.  First, the text uses the word  "direct", not, for example, the word "order". 
Whilst capable of including the notion of command, the word "direct" also has a wider connotation. 
That meaning includes "to regulate, conduct or cont rol affairs"; "to give commands or orders with 
authority"; "to aim point or cause to move towards a goal".  Thus, an indication – or as Korea puts it - 
a "nudge", as well as a command, is also a direction.  Second, the word "entrusts" is different from the 
word "directs".  It might include the sense of dele gation, insofar as that indicates that the entrusted 
entity will be held responsible if the desired result is not achieved, but it also has a wider connotation. 
The concept of trust or entrust precisely indicates a pa rticularly light control, or a certain distance on 
the part of the controlling authority.  It includes the notions of "investing or charging", as well as the notion of putting something into the "care or prot ection" of someone.  Thus, the meaning of this 
phrase "entrusts or directs" is generally wider than the meaning advanced by Korea.    
 36. In its submissions relating to the phrase "entru sts or directs" Korea confuses questions of fact 
and questions of evidence.  The real issue before this Panel is not a nice legal discussion of what the 
words "entrust or direct" might mean.  Th e real issue is an evidential one.  The US-Export Restraints  
case, on which Korea seeks to rely so heavily , is therefore simply beside the point. 
 37. On the question of financial contribution, th e European Communities relied on the totality of 
the facts, as set out in the Regulations.  38. With regard to the Syndicated Loan and ge nerally, a substantial government contribution is, 
in itself, evidence of a long term commitment by gov ernment, such as to influence other participants. 
Time and the type and size of the contributions in relation to the company are important factors.  A 
sufficiently large government commitment in the form  of a loan will always persuade some lenders 
that the company will "weather the storm" and make the re-payments, or at least re-schedule them. All 
that such other lenders need to be persuaded of is  that the company will surv ive.  In this scenario, 
government participation in the loan is in the nature of a security or guarantee.  There is, effectively, 
no way back for the government.  Everyone is in the same, government sponsored, (life) boat.  In fact, 
it makes participation in the loan for the other banks something of a "safe-bet".  Thus, in this case, the 
European Communities did not see the participation of  the other banks as evidence that Hynix was in 
great commercial shape and considered a sound inv estment by the market – an assertion that the 
European Communities considered implausibl e in all the circumstances.  Rather, the  WT/DS299/R 
 Page A-17 
 
 
European Communities saw the participation of other banks as confirmation of the effectiveness of Korea’s intervention in support of Hynix.  39. Korea does not appear to contest the determ inations in relation to KDB, insofar as it was 
found to be a public body within the meaning of Article 1.1(a)(1) SCM Agreement .  The relevant part 
of Korea’s first written submission is silent on this po int.  On that basis, the Panel is not called upon 
to make any findings in this respect, and should refrain from doing so.  Korea’s bare assertions in 
relation to all banks are insufficient to rebut the de tailed matters of fact referred to in Regulations 
1480/2003 and 708/2003.  In any even t, Korea’s assertions are not supported by the findings of the 
Panel in US-Export Restraints .  That Panel was dealing with a different provision – 
Article 1.1(a)(1)(iv) SCM Agreement .  The European Communities refers on this point rather to 
Article 1.1(a)(1) SCM Agreement .  KDB was a "public body" within the meaning of that provision 
and it made a "financial contribution" – these facts not being seriously disputed by Korea.  40. Similarly, Korea does not contest the Europ ean Communities determinations that FSC was a 
public body within the meaning of Article 1.1(a)(1) SCM Agreement ; nor that it was entrusted or 
directed by GOK, within the meaning of Article 1.1(a)(1)(iv) SCM Agreement , to grant the waivers. 
 41. With regard to KFB and KEB, the European  Communities determined that the letter dated 
28 November 2000 did more than merely "recommend"  or "advise".  It effectively ordered or 
"entrusted or directed" KEB to make the applicati on for the extension of the credit ceilings, including 
on behalf of KFB and KDB.  That fact is confirmed by the language of the letter itself. 
 42. With regard to the KEIC Guarantee, the Eur opean Communities recalls that it determined that 
KEIC was a public body within th e meaning of Article 1.1(a)(1) SCM Agreement .  Korea does not 
contest that determination.  For this reason, the Pa nel must reject Korea’s allegation of inconsistency 
with Article 1.1(a) SCM Agreement  in relation to the KEIC guarantee – to do otherwise would be an 
error of law.  43. The European Communities additionally determ ined GOK entrustment or direction of KEIC 
within the meaning of Article 1.1(a)(1)(iv) SCM Agreement .  Korea also does not contest this 
determination – even admitting expressly that the KE IC guarantee was made available at the direction 
of GOK ministers – and confining itself to an observation about benefit – a different point, which will 
be dealt with in the section of this submission relating to that subject. 
 44. Korea’s submissions with regard to the KDB Debenture Programme are equally confused. 
Korea states that the determinations of the Europ ean Communities on this point are unclear.  They are 
not.  The European Communities found – quite clearly - that KDB was a public body making a 
financial contribution, within th e meaning of Article 1.1(a)(1) SCM Agreement.  
 45. As regards the May 2001 Rescue Package, th e European Communities invites the Panel to 
consider all the relevant facts set out in Regul ations 708/2003 and 1480/2003.  These facts, taken 
together, form part of an overall puzzle.  It may certainly be correct that the investigated parties 
choose not to provide the investigating authority (or this Panel) with every piece of the puzzle.  But 
the overall picture is clear enough, and justifies the de termination of entrustment or direction, on the 
basis of a reasonable assessment of the totality of the facts.  46. As regards the October 2001 Rescue Package,  the European Communities based its findings 
not on a single piece of evidence but on the totality of the facts and, to a certain extent, on information 
available.  Thus, the European Communities submits that the relevant question is whether Korea has 
shown that the overall assessment of the ev idence reveals any inconsistency with the SCM Agreement . 
Korea, however, never properly addres ses this issue but instead deals, in isolation, with the various 
specific pieces of evidence relied on by the Eur opean Communities.  The European Communities WT/DS299/R 
Page A-18  
 
submits that this is the wrong approach because it is irrelevant whether a single piece of evidence in 
itself and taken in isolation is sufficient evidence of government direction .   
 47. On the question of benefit, the European Communities observes that the words "any method" 
and "any such method" in Article 14 SCM Agreement  indicate that different methods for assessing the 
amount of a subsidy, or, for that matter, whether or not there is a benefit, may be consistent with the 
SCM Agreement .  That is confirmed by the use of the word "guidelines", again suggesting some 
latitude in the application of these provisions.  Thus , investigating authorities have a certain degree of 
flexibility.  The primary obligation is rather one of transparency and explanation.  
48. It is highly significant
 that Article 14 (a) only indicates a basic rule.  Article 14 (a) does not 
contain a specific calculation method.  There is a very good reason for this.  It is because the amount 
of the subsidy or benefit will depend on future ri sk – something that is problematic to assess.  
 49. This point is of central importance
.  The SCM Agreement  imposes no express obligations on 
Members when it comes to calculating the amount of s ubsidy or benefit in a "risk" scenario, that is, 
one which involves assessing future risk.  In accordance with the Canada-Aircraft case and the 
language of Article 14 SCM Agreement , the guiding principle should be that a benchmark for 
calculation should be based on the advantage obt ained over finance available on the commercial 
market – if indeed any such finance is available.  
50. In the methodology of the European Communities,  one may say that the theoretical graph that 
relates future risk assumed by government against the amount of subsidy is not uniformly linear.  To 
the extent that future risk could be measured and quantified from zero to 100 (where zero represents 
no risk of loss of capital and 100 certain loss), the market does not just add, for example, one percentage point of interest for each additional point  of risk.  Rather, there is a point at which the 
capital markets simply will not put any further money at risk.  Capital usually has alternatives – and it 
will seek out the best balance between risk and rewa rd.  For all practical purposes, that balance will 
not lie anywhere towards risks approaching the 100 ma ximum referred to above.  This is not really a 
controversial observation, being la rgely a question of common sense. 
 51. The European Communities tak es the view that, beyond the point at which the market would 
no longer risk capital, if the government neverthe less provides capital, especially capital at risk, 
(whether labelled equity, debt, guarantee, or for that  matter grant), the benefit to the company must be 
measured as being the full amount of the principal.  Left to its own resources and the market the company would get nothing.  Thanks to the govern ment, the company gets, for example, capital of 
Euro 10 million.  The benefit to the company r esulting from government intervention is therefore 
Euro 10 million, and that is the amount that can be countervailed. 
 52. The European Communities considers that each of the specific measures assessed conferred a 
benefit, for all of the reasons set out in the Regulations.  53. Finally, contrary to what  Korea asserts, all the relevant measures, including the KDB 
Debenture Programme, the May 2001 Rescue Package,  and the October 2001 Rescue Package, were 
specific within the meaning of the SCM Agreement .  There were no errors in the calculation of the 
subsidy amount, nor in the way in which the c ountervailing duty was calculated.  The European 
Communities correctly allocated the subsid es over Hynix’s non-consolidated sales. 
  WT/DS299/R 
 Page A-19 
 
 
 
ANNEX A-3 
  
EXECUTIVE SUMMARY OF THE THIRD PARTY 
SUBMISSION OF JAPAN 
 
 
(25 June 2004) 
  
I. INTRODUCTION 
 1. The Government of Japan ("Japan") wishes to  address crucial systemic issues raised by the 
Government of the Republic of Korea ("Korea") rela ting to the material injury determination and the 
subsidy determination by the European Communitie s (the "EC").  While Japan does not take any 
position with respect to the factual aspects of this case, Japan respectfully requests that this Panel 
carefully review both the legal and factual aspects of  this case in light of the following arguments in 
this submission. 
 
II. ARGUMENT 
 
A. THE INJURY DETERMINATION  1. The EC Appears to Have Failed to Separa te and Distinguish Injury Caused by Other 
Known Factors from That Cau sed by the Subsidized Imports 
 
2. Korea alleges that the EC conducted insuffici ent analysis to meet the obligation of the non-
attribution rule under Article 15.5 of the SCM Agreement.
1  The EC’s analysis appears to have failed 
to separate and distinguish effects of all other known factors on the domestic industry from effects of 
subsidization.  3. In EC – Pipe Fittings
2, the Appellate Body reconfirmed th at the authorities need to separate 
and distinguish the injury caused by dumped im ports from that caused by other factors when 
determining injury under Article 3. 5 of the AD Agreement which is e quivalent to Article 15.5 of the 
SCM Agreement.    4. In this case, the EC based its injury dete rmination on the significant price undercutting by 
Hynix’s subsidized imports and the oversupply of DRAMs.
3  Although EC recognized that the 
overcapacity might have contributed to the severe downturn from which this industry is suffering4, it 
seems to have failed to examine the overcapacity of Samsung, a producer of non-subsidized DRAMs, 
separately from the overcapacity of Hynix.  
                                                     
 
1 See First Written Submission by the Republic of Korea  (“Korea’s First Written Submission ”), 
7 May 2004, para. 222. 
2 Appellate Body report, European Communities - Antidumping Duties on Malleable Cast Iron Tube or 
Pipe Fittings from Brazil (“EC – Pipe Fittings”) , WT/DS219/AB/R, adopted 18 August 2003. 
3Council Regulation (EC) No. 1480/2003 of 11 August 2003 Imposing a Definitive Countervailing Duty 
and Collecting Definitively the Provisional Duty Imposed on Imports of Certain Electronic Microcircuits Known As DRAMs (Dynamic Random Access Memories) Originating in the Republic of Korea, OJ 2003 L 212 
(hereinafter “ Definitive Regulation ”), (GOK Exhibit 1 ), recital 192. 
4 Id., recital 197. WT/DS299/R 
Page A-20  
 
5. Japan respectfully requests that this Panel carefully review whether the EC separated and 
distinguished injury caused by other known factor s from that caused by subsidized imports in its 
injury determination pursuant to Article 15.5 of the SCM Agreement. 
 B. THE SUBSIDY DETERMINATION 
 
1. The Panel Should Apply the Correct Eviden tiary Standards to Review the Existence and 
the Extent of Entrustment or Direction by the Government of Korea under Article 1.1(a)(1)(iv) of the SCM Agreement 
 6. The authorities may find that a subsidy was granted to a recipient only when a financial 
contribution within the meaning of Article1.1 (a)(1 ) was made, and a benefit within the meaning of 
Article 1.1(b) was conferred, to a recipient.  Ar ticle 1.1(a)(1)(iv) of the SCM Agreement sets forth 
that the authorities may determine that a privately- controlled bank provided a fi nancial contribution, if 
the bank provided it in compliance with entrustment or direction by the government.   
 
7. The panel in US – Export Restraints
5 analyzed the meaning of terms "entrust or direct" in 
Article 1.1(a)(1)(iv) that acts of entrusting a nd directing comprise the following three elements: 
"(i) an explicit and affirmative action, be it dele gation or command; (ii) addressed to a particular 
party; and (iii) the object of which action is a particular task or duty."6  Its analysis shows that 
Article 1.1(a)(1)(iv) provides these elements, which the authorities must find to conclude that the 
financial contribution was granted through a privately controlled bank.  It also clarified that this 
Article does not require that the government’s dele gation or command must be so detail to instruct 
every step that the bank must follow.    8. The existence of these three elements may be shown by direct evidence such as the 
governmental letter to a commercial bank, or circ umstantial or secondary evidence.  It would be 
sufficient for the authorities to find a financial contri bution, if the evidence is such that the authorities 
can reasonably conclude that the government dele gated or commanded a privately controlled bank to 
provide certain financial supports to a specific company.    9. As Korea argues, the standard of review of th is Panel is set forth in Article 11 of the Dispute 
Settlement Understanding.
7  This Article requires that this Pa nel review whether the EC’s subsidy 
determination was based on "an objective assessment  of the matter before it, including an objective 
assessment of the facts of the case".8  Thus, this Panel must find that the facts are established 
consistently with the WTO rules so far as an obj ective assessment of evidence on the record would 
reasonably allow this Panel to reach the conclusi on that the authorities reached.  The evidentiary 
standards have no further requirements. 
 10. As such, Japan respectfully requests that th is Panel carefully review the existence of 
entrustment or direction by the Government of Korea in light of the above-discussion.  
2. The Panel Should Review the EC’s Application of Facts Available in Accordance with 
the SCM Agreement and the International Law 
 
11. The EC based its subsidy determination on facts from secondary sources, claiming that 
certain responding parties failed to provide necessar y information or refused to accept on-the-spot 
                                                     
 
5 Panel report, United States -- Measures Treating Ex port Restraints as Subsidies (“US – Export 
Restraints”),  WT/DS194/R, adopted 23 August 2001. 
6 Id., para. 8.29. 
7 Korea’s First Written Submission , paras. 26-32. 
8 Article 11 of the DSU.  WT/DS299/R 
 Page A-21 
 
 
verifications.9  The general principle of good faith under international law and the specific 
requirements under Articles 12.7 and 12.11 of the SC M Agreement mandate that facts available are 
the last resort for the authorities.    12. As the Appellate Body has repeatedly r ecognized, Members are obliged to perform their 
WTO treaty obligations in good faith.
10  In US – Hot-Rolled Steel , for example, the Appellate Body 
stated that the "organic  principle of good faith" is "a general principle of law and a principle of 
general international law".11  I n  US –  Shrimp12, the Appellate Body explained that this general 
principle "prohibits the abusive exercise of a state's rights"13 and that the exercise of a state’s right 
should be "fair and equitable as between the parties."14  As such, the basic principle of good faith 
requires the authorities to act in an even-hande d manner that respects fundamental fairness.15   
 13. Article 12.7 provides the authorities with the discretion to base their subsidy determinations 
on information from secondary sources as facts available.  Considering Article 26 of the Vienna 
Convention on the Law of Treaties,  any exercise of discretion under treaty provisions in force must be 
performed in good faith.  The Appellate Body in US – Hot-Rolled Steel stated that "the discretion 
must be exercised in an even-handed way that is fair to all parties affected by an anti-dumping 
investigation."
16  
 14. The provision of Article 12.7 sets forth sp ecific obligations of both authorities and responding 
parties before the authorities resort  to facts available.  The authorities must use information submitted 
by the responding party and may not resort to fact s available, if the party submitted the information 
"within a reasonable time" without significantly im peding the investigation.  As to "within a 
reasonable period of time," the Appellate Body expl ained six factors that investigating authorities 
should consider.
17   
 
15. The provisions of Article 12.11 confirm the requirement of the two-way process between the 
authorities and the responding party.  This Article provides that the authorities shall take due account 
of any difficulties experienced by interested par ties in supplying information requested, and shall 
provide any assistance practicable.  The Appellate Body stated that Article 6.13 of the AD Agreement, which is equivalent to the provision of Article 12.11 of the SCM Agreement, underscores 
that "cooperation" is a two-way process involving joint effort and that it requires investigating 
authorities to make certain allowances for, or take  action to assist, interested parties in supplying 
information.
18 
 
                                                      
9 The Definitive Regulation , recitals 16-18. 
10 See, e.g., Appellate Body report, United States – Definitive Safeguard Measures on Imports of 
Circular Welded Carbon Quality Line Pipe from Korea  (“US – Line Pipe” ), WT/DS202/AB/R, adopted 
8 March 2002, para. 110 and n.117; Appellate Body report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan, (“US – Hot-Rolled Steel”), WT/DS184/AB/R, adopted 23 August 2001, 
para. 101. 
11 Appellate Body report , US – Hot-Rolled Steel,  para. 101. 
12 Appellate Body report, United States – Import Prohibition of Certain Shrimp and Shrimp Products  
(“US –  Shrimp ”), WT/DS58/AB/R, adopted 6 November 1998. 
13 Id, para. 158. 
14 Id. at n.156, quoting B. Cheng, General Principles of Law as Applied by International Courts and 
Tribunals  (Stevens and Sons, Ltd., 1953), Chap. 4, page 125 (emphasis added by the Appellate Body). 
15 See Appellate Body report , US – Hot-Rolled Steel , para. 148 and n.142.  See also Appellate Body 
report, EC Measures Concerning Meat and Meat Products (“EC –  Hormones”) , WT/DS26/AB/R, 
WT/DS48/AB/R, adopted 13 February 1998, para. 133. 
16 Appellate Body report , US – Hot-Rolled Steel , para. 148 (emphasis in original). 
17 Id., para. 85. 
18 Id., para. 104. WT/DS299/R 
Page A-22  
 
16. The authorities must satisfy the above requi rements under Articles 12.7 and 12.11 of the SCM 
Agreement, and must exercise its discretion to iden tify facts available in an unbiased, objective, even-
handed, and fair manner.  Japan respectfully request s that this Panel review whether the EC applied 
facts available for the case in compliance with these requirements.  III.  CONCLUSION  
17. For the reasons set forth above, Japan respectfu lly requests this Panel to carefully review the 
consistency of the injury dete rmination with Articles 15.5 and the subsidy determination with 
Articles 1.1(a)(1)(iv), 12.7 and 12.11 of the SCM Agreement. 
 
  WT/DS299/R 
 Page A-23 
 
 
  
ANNEX A-4 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY 
SUBMISSION OF THE UNITED STATES 
 
 
(25 June 2004) 
  
I.  GENERAL ISSUES 
 
1. Standard of Review:   The Panel’s task is to dete rmine whether a reasonable, unbiased 
person, looking at the same evidentiary record as th e EC authorities, could have – not would have – 
reached the same conclusions as did those authorities.   The United States trusts that the Panel will see 
Korea’s arguments for what they are:  nothing more  than an impermissible request for this Panel to 
conduct a de novo  review. 
 
2. Burden of Proof:   The burden is on Korea to prove that  the EC acted in a WTO-inconsistent 
manner.  The burden is not on the EC to prove  that it acted in a WTO-consistent manner. 
 3. Positive Evidence:   Korea’s argument is not really about whether the evidence relied upon by 
the EC authorities was "positive evidence."  Instead,  and notwithstanding its repeated protestations to 
the contrary, what Korea wants is for the Pane l to reweigh the evidence relied upon by the EC 
authorities.  
II.  ISSUES CONCERNING SUBSIDY IDENTIFICATION AND CALCULATION  
 4. The "Entrusts or Directs" Standard:   Korea advocates a special evidentiary standard for 
"entrustment or direction."  According to Ko rea, government action amounts to entrustment or 
direction only where it is "clear and unambiguous" or "specific and compelling."  Furthermore, 
discerning whether government action amounts to en trustment or direction demands "increased 
scrutiny."  However, neither Article 1.1(a)(1)(i v) itself nor any other provision of the WTO 
agreements supports the notion that some sort of special evidentiary standard exists for purposes of 
determining the existence of entrustment or direction.  5. Korea also argues that the ev idence of entrustment or direction must take the form of an 
"explicit" government command.  Korea’s use of  the term "explicit" suggests that government 
entrustment or direction may only be evid enced by a formal or official command. 
 
6. The ordinary meaning of entrustment or direc tion includes, but is not limited to, an order or 
command.  An interpretation of subparagraph (iv) th at would rule out automatically, and in all cases, 
any government direction not e xpressed in writing would render Ar ticle 1.1(a)(1)(iv) virtually 
meaningless.
1 
 
                                                      
1  Indeed the Appellate Body has cautioned against interpretations that “elevate form over substance 
and that permit Members to circumvent ... subsidy disciplines ... .”  Canada – Dairy Products , para. 110.  
Although the Appellate Body was addressing export subsidy disciplines under the Agreement on Agriculture, its 
reasoning applies with equal force to the SCM Agreement. WT/DS299/R 
Page A-24  
 
 7. Korea also asserts that the evidentiary standard of entrustment or direction under 
Article 1.1(a)(1)(iv) requires a government command to an explicitly named private body to take an 
explicitly identified action at an explicit point in time.  It is obvious from the provision’s text that 
Article 1.1(a)(1)(iv) imposes no such requirement.  As a general evidentiary matter, any piece of evidence or fact can be relevant, provided it demonstr ates, either individually or in conjunction with 
other evidence, whether or not a government entruste d or directed private bodies to provide financial 
contributions.  The relative importance of each piece of  evidence or fact can only be determined in the 
context of a particular case, and not on the basis of generalities.   8. Korea cites the use of the singular "a" financial contribution in the text of Article 1.1(a)(1).  
However, the text of Articles 1 and 2 of the SCM Agreement also use the singular "a" in referring to 
benefit, subsidy and specificity.  If "a" financial contribution were  interpreted to mean government 
direction to "a" particular bank, then specificity would be considered always in the context of, for 
example, an individual bank’s loan to "a" benefici ary.  The subsidy, therefore, would always be 
specific.  Thus, Korea’s "a"/singular argument would render Article 2 of the SCM Agreement a 
nullity, and, for that reason alone, should be rejected by the Panel.  
 9. Korea’s "a"/singular argument also overlooks th e fact that use of the singular does not rule 
out a meaning that encompasses the plural of that term.  In particular, the definition of the term 
"body", as used in "a private body" in subparagraph (iv), provides that the term "body" may refer to a 
single entity or more than one entity.  The ordinary  meaning of the text of Article 1.1(a)(1)(iv), 
therefore, does not rule out government entrustment or direction to multiple private creditors as a 
group.   10. Korea’s reliance on US – Export Restraints for its bank-by-bank, transaction-by-transaction 
evidentiary standard also is misplaced.  The panel in US – Export Restraints addressed a very 
different issue, and the cited portion of the US – Export Restraints  report is of limited (if any) 
relevance to the instant dispute.  Even if this  Panel should accept the premise that "the act of 
entrusting and that of directing ‘necessarily carry with them the element of an explicit and affirmative action, be it delegation or command’", there is no basis in the SCM Agreement for transforming the 
general concept of an "element of an explicit a nd affirmative action" into a "strict" evidentiary 
standard calling for express proof of formal gove rnment action on a bank-by-bank, transaction-by-
transaction basis. 
 11. The United States disagrees with the premise of Korea’s argument that the behaviour of 
private parties is relevant in determining entrustmen t or direction.  The focus of Article 1.1(a)(1), 
including subparagraph (iv), therefore, is on "the action of the government" in making the "financial 
contribution," and the existence of a government fina ncial contribution – whether direct or indirect – 
is determined in reference to the actions of the government.  
 12. Facts Available:   Korea’s discussion of "facts available" and Article 12.7 of the SCM 
Agreement reflect several errors of interpretation.  In cases where interested Members or interested 
parties frustrate the proceedings, either by w ithholding requested information or otherwise 
significantly impeding the investigation, Article 12. 7 of the SCM Agreement provides for the use of 
the facts available, but does not instruct authorities as to which facts on the record must be relied upon 
in making determinations, nor how to assess or weig h the evidence on the record.  It seems obvious, 
though, that where a party denies acc ess to information, that fact would be part of the evidentiary 
record.  Based upon a party’s denial of access to in formation, the investigating authority can properly 
draw inferences concerning the reliability of other information provided by that party.  Thus, an 
investigating authority can draw reasonable inferenc es from all of the facts on the record, and choose 
to rely, or place greater weight, upon information provided by other sources.   WT/DS299/R 
 Page A-25 
 
 
 13. Korea’s approach incorrectly assumes that th e only facts available to authorities are those 
provided by the respondent party or government.  However, other facts are often on the record, 
including publicly available information and informa tion provided by domestic interested parties.  In 
addition, Korea’s approach improperly allows a res pondent to pick and choose the information that an 
investigating authority must use in making a determination.  
 
14. Concerning Korea’s reliance on Annex II of  the Antidumping Agreement, Annex II, like 
every other provision of the WTO agreements, ma y provide context for purposes of interpreting 
Article 12.7 of the SCM Agreement, although the c onclusions to be drawn from considering Annex II 
as context can be debated.  However, one contextu al conclusion is beyond debate; namely, that no 
comparable annex exists in the SCM Agreement.  The Panel, therefore, must give meaning to the 
express absence of any annex or any textual refere nce to the requirements contained in Annex II of 
the AD Agreement.  In particular, the Panel should re ject Korea’s efforts to do  what the drafters did 
not; namely, make select portions of Annex II applicab le to determinations under Article 12.7 of the 
SCM Agreement. 
 
15. Korea provides no support for its assertion that even  if an investigating authority’s application 
of facts available is justified under the circumst ances, that application should be limited to be 
"proportionate to the alleged non-cooperation or impe diment."  Under Article 12.7, the use of facts 
available depends upon whether "necessary informat ion" is provided.  If necessary information is 
withheld, or an investigating auth ority is denied access to such info rmation, the authority must draw 
inferences and reach conclusions using whatever facts are available in order to complete its 
investigation.   16. Benefit:   Korea argues that for every  type of financial contribution, the relevant market from 
which to source the benchmark is a "primary market benchmark"; i.e., the market of the particular 
Member at issue.  Korea’s interpretation ignores the plain language of Article 14.  Furthermore, 
Korea’s reliance on Softwood Lumber  in support of its argument is misplaced.  
 17.  Subparagraphs (a) and (d) contain territo rial limitations on the relevant benchmark; 
subparagraphs (b) and (c) do not.  Nevertheless, Kor ea argues that it is "implicit" in the use of the 
term "comparable" in subparagraphs  (b) and (c) that "comparisons be made using the experience of 
private actors in the market of the Member , since that experience is necessarily the most comparable" 
(emphasis added).  The Panel should reject Korea’s attempt to do read into subparagraphs (b) and (c) 
words that are not there.   18. Korea’s reliance on Softwood Lumber is misplaced, because the Appe llate Body’s findings in 
that dispute were limited to subparagraph (d) of Article 14, which contains the phrase "in the country 
of provision or purchase."  There is no such territo rial limitation language in subparagraphs (b) and 
(c).  19. Specificity:   Korea suggests that the EC was requi red to examine the size and capital of 
Hynix in relation to the size and capital intensity of  all companies undergoing debt restructurings and 
to consider that debt restructuring aid allocated among participating creditors on a pro rata basis, 
taking into account their existing debt hol dings.  Article 2.1(c) does not contain any requirements 
regarding how a disproportionate use analysis is to  be conducted, much less the specific analytical 
methods Korea asserts are required.  Furthermore, ca rried to its logical conclusion, Korea’s analytical 
approach would generate the absurd result that the more indebted a company is, the more subsidies it 
may receive without risking a finding of specificity.  
 WT/DS299/R 
Page A-26  
 
 III. ISSUES CONCERNING THE DETERMINATION OF INJURY  
 
20. Import Volume:   Korea asserts that there was no such  significant increase in market share.  
The United States is not familiar enough with the fact ual record of the EC’s investigation to have a 
view as to whether there was such a significant incr ease.  From a legal perspective, however, Korea’s 
emphasis on the significance of any increase in market share is not justified by the text of 
Articles 15.1 and 15.2.  For an injury determination, Article 15.1 requires, inter alia , an objective 
examination of "both (a) the volume of the subsidized  imports and the effect of  the subsidized imports 
on prices in the domestic market for like products and (b) the consequent impact of these imports on 
the domestic producers of such products" (footnote omitted).  In turn, SCM Agreement Article 15.2 
provides, in pertinent part, that: 
 
[w]ith regard to the volume of the subsid ized imports, the investigating authorities 
shall consider whether there has been a significant increase in subsidized imports, 
either in absolute terms or relative to  production or consumption in the importing 
Member. 
Based upon the clear text of the SCM Agreement, which uses the disjunctive terms "either" and "or," 
analysis of the volume of subject imports should include consideration of the absolute volume of 
subsidized subject imports, as well as whether th ere was a significant increase in the volume of 
subsidized subject imports in absolute terms, a si gnificant increase in the volume of subsidized subject 
imports relative to production in the importing Memb er, or a significant increase in the volume of 
subsidized subject imports relative to consumpti on in the importing Member.  The last sentence of 
SCM Agreement Article 15.2 specifies that "no one or several" of the Article 15.2 factors "can 
necessarily give decisive guidance."  21. Thus, there is no requirement that there be an  increase in subsidized import volume, let alone 
that an investigating authority find a "significant"  increase in subsidized import volume relative to 
consumption.  This is logical, because imports can have adverse price effect s without gaining market 
share – for example, if they force the domestic industr y to lower its prices in order to retain its share 
of the market.  In a market fo r a fungible commodity where information is disseminated rapidly and 
prices can change frequently – as is the case with respect to DRAMs – it is quite possible that low-
priced imports can have adverse price effect s with little or no gain in market share. 
 
22. Price Undercutting:   Korea asserts that in this case, the EC departed from its usual approach 
to analyzing price undercutting without providing ade quate explanation for doing so, and implies that 
even the frequencies of undercutting found by the EC are insufficient.  However, other panels have 
found that it is for the investigating authorities in the first instance to select  methodologies to analyze 
the price effects of subject imports.  Articles 15.1 and 15.2 do not specify any particular methodology 
to be used in making this analysis.  23. Under the disjunctive language of Article 15.2,  there is no requirement that the investigating 
authority find any price undercutting at all.  Thus, there is certainly no requirement that subsidized 
subject imports undercut the domestic industry’s pr ices or did so with a particular frequency or 
magnitude, let alone that investigating authorities find that subject imports were the lowest-priced 
product throughout the period examined.  The conditions of competition and business cycle 
distinctive to the industry are factual circumstances specific to an investigation that are relevant in 
ascertaining the significance of undercutting in a given case, and that an investigating authority will explain in its injury determination the significance of  any undercutting in the context of the particular 
case. 
 24. Price Leadership:   Korea asserts that the EC largely ignored its own finding that there is no 
such thing as a price leader in th is market.  According to Korea, this finding "should have called into  WT/DS299/R 
 Page A-27 
 
 
 serious doubt whether Hynix could really be the source of ‘significant’ price effects."  Korea intimates 
that there was a need fo r evidence of Hynix’s price leadership for an affirmative material injury 
determination.  Notably, however, Korea fails to  identify any requirement under Article 15 of the 
SCM Agreement to find price leadership , because there is no such requirement.