WORLD TRADE  
ORGANIZATION  WT/DS294/28 
17 February 2009 
 
 (09-0804) 
 Original:   English 
  
UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY 
FOR CALCULATING DUMPING MARGINS ("ZEROING") 
 
Recourse to Article 21.5 of the DSU by the European Communities
 
 
Notification of an Appeal by the European Communities  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
  
 The following notification, dated 13 February  2009, from the Delegation of the European 
Commission, is being circulated to Members.  
_______________ 
 
 Pursuant to Article 16.4 and Article 17 of the DSU  the European Communities hereby notifies 
to the Dispute Settlement Body its decision to app eal to the Appellate Body certain issues of law 
covered in the Panel report and cer tain legal interpretations devel oped by the Panel in the dispute 
United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") , 
Recourse to Article 21.5 of the DSU by the European Communities  (WT/DS294/RW).  Pursuant to 
Rule 20(1) of the Working Procedures for Appellate Review , the European Communities 
simultaneously files this Notice of Appeal  with the Appellate Body Secretariat. 
 For the reasons set out in its submissions to the Panel, and for the reasons to be further 
elaborated in its submissions to the Appellate B ody, the European Communities appeals, and requests 
the Appellate Body to modify or reverse the lega l findings and conclusions of the Panel and with 
respect to all matters to complete the analysis (whe ther or not this is specifically re-iterated in the 
following paragraphs), with respect to the following  errors of law and legal interpretations contained 
in the Panel Report: 
(a) The Panel erred in failing to rule on the substance of the EC claim that the Panel was 
composed  in a manner inconsistent with Articles 8.3 and 21.5 of the DSU , on the grounds 
that it did not have the "authority" to rule on a matter with respect to which, according to the Panel, the "ultimate power" rests with the Director General of the WTO .
1  The Panel thus 
failed to comply with basic requirements of due process and failed to ensure the full and 
proper exercise of its judicial function.  The Pane l also acted inconsisten tly with the following 
provisions of the DSU : Article 1.1 (failure to apply the DSU  to a dispute concerning the 
DSU ); Article 3.2, first sentence (failure  to clarify the provisions of the DSU  in accordance 
with customary rules of interpretation of pub lic international law); Articles 3.2 and 19.2 
(failure to ensure that the European Communities' DSU  rights were not diminished); 
Articles 3.3 and 23.1 (failure to allow for the settlement of the dispute by recourse to the 
DSU ); Article 7.2 (failure to properly address the relevant provisions of the DSU  cited by the 
European Communities); Article 11 (failure to make such other findings as would assist the 
                                                      
1Panel Report, paras. 8.13–8.17 and 9.1(a). WT/DS294/28 
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  DSB); and Article 12.7 (failure to set out th e basic rationale behind its findings). The 
European Communities requests the Appellate Body  to modify or reverse the Panel's findings 
and complete the analysis by finding that the Panel was composed inconsistently with 
Articles 8.3 and 21.5 of the DSU .  One panellist remained in office at the stage of the 
compliance panel and was not lawfully removed by the United States or by the Director 
General of the WTO.  The European Communities also requests the Appellate Body to 
reverse the Panel's finding that, if it would ha ve agreed with the European Communities, it 
would have been  compelled  to rule that it had no jurisdiction to rule on any of the EC 
claims.
2 
(b) The Panel made errors relating to the legal in terpretation of Articles 19.1, 21.3 and 21.5 of the 
DSU ,3 and failed to comply with its functions as required by Articles 7 and 11 of the DSU  
when excluding certain subsequent reviews  listed in the Annex to the EC Compliance Panel 
Request from its terms of reference .4  In particular, the European Communities claims that: 
• the Panel erred in rejecting the EC claim that the subsequent reviews listed in the 
Annex to the EC Compliance Panel Request fell under its terms of reference because 
they were "amendments" to the measure s at issue in the original dispute;5 
• the Panel erred in failing to examine or properly examine whether the US omissions  
and deficiencies  in the US implementation of the DSB recommendations and rulings 
fell under its terms of reference;6 and 
• the Panel erred in excluding certain subse quent reviews from its terms of reference on 
the basis that they did not have a close nexus  with the measures at issue in the original 
dispute and the DSB recommendations and rulings in view of their timing .7 
The European Communities requests the Appellate Body to modify or reverse the Panel's 
findings, and to complete the analysis by finding  that, in relation to these matters, the United 
States failed to comply with the relevant provis ions of the covered agreements cited in the 
pleadings before the Panel and with the ruli ngs and recommendations of the DSB in the 
original proceedings. 
(c) The Panel erred in finding that the Europ ean Communities had not demonstrated that the 
United States failed to comply with the DSB r ecommendations and rulings in the subsequent 
sunset reviews  at issue.8  This conclusion was based on e rroneous findings on issues of law 
and related legal interpretations of  Articles 19.1, 21.3 and 21.5 of the DSU .  Furthermore, the 
Panel disregarded its mandate and failed to comply with its functions as required by 
Article 11 of the DSU  when failing to address the EC claim that the United States failed to 
comply with the DSB recommendations in the orig inal dispute, since certain aspects of the 
measures at issue in the original dispute ( i.e., the dumping margins based on zeroing) 
                                                      
2Panel Report, para. 8.13. 
3All EC claims and arguments referring to Articles 19.1, 21.3 or 21.5 of the DSU  are to be considered 
in the context of Article 3.7 of the DSU . 
4Panel Report, para. 8.119 and footnote 676, para. 8.120, para. 8.126 (by omission and by implication, 
only referring to certain subsequent reviews) and para. 9.1(b) (by omission and by implication, only referring to 
certain subsequent reviews). 
5Panel Report, paras. 8.61–8.84 and para. 9.1(b) (by omission and by implication). 
6Panel Report, paras. 8.85–8.86, para. 8.127 (by omission and by implication) and para. 9.1(b) (by 
omission and by implication).  
7Panel Report, paras. 8.111–8.116, 8.119–8.124, 8.126 (by omission and by implication) and 9.1(b) (by 
omission and by implication). 
8Panel Report, paras. 8.135–8.141 and 9.1(b)(vi).  WT/DS294/28 
 Page 3 
 
 
  remained in place ( i.e., the United States relied on those margins for the determination of 
likelihood of recurrence of dumpi ng in subsequent sunset review proceedings concerning the 
same anti-dumping "measure").9  The European Communities requests the Appellate Body to 
complete the analysis and find that the United St ates acted inconsistently with Articles 2.1, 
2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement  and Articles 19.1 and 21.3 of the DSU , 
and failed to comply with the DSB rulings a nd recommendations in the original proceedings. 
(d) The Panel erred in rejecting the EC claims that certain US actions or omissions based on 
zeroing after the expiry of th e reasonable period of time  were inconsistent with the US 
obligation and public commitment to immediately comply with the rulings and recommendations of the DSB, and with vari ous provisions of Article VI of the GATT 1994 , 
the Anti-Dumping Agreement  and the DSU .
10  In particular, the European Communities 
requests the Appellate Body: 
• with respect to all cases, to modify or reverse the Panel's finding that assessment 
instructions and final liquidations after th e end of the reasonable period of time and 
within the scope of the compliance panel, based on zeroing, are not inconsistent with 
Article VI:2 of the GATT 1994  and Article 9.3 of the Anti-Dumping Agreement  (with 
respect to administrative reviews), Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-
Dumping Agreement  (with respect to sunset reviews)  and Articles 2.4 and 2.4.2 of the 
Anti-Dumping Agreement  (with respect to original investigations) and do not 
constitute a failure to comply with the ru lings and recommendations of the DSB in the 
original case.11  The European Communities requests the Appellate Body to complete 
the analysis, finding that assessment instructi ons or final liquidations after the end of 
the reasonable period of time and within th e scope of the compliance panel, based on 
zeroing, are inconsistent with the above pr ovisions and with Articles 19.1 and 21.3 of 
the DSU , and constitute a failure to comply w ith the rulings and recommendations of 
the DSB in the original proceedings; 
• with respect to Case 1 ( Hot Rolled Carbon Steel from the Netherlands ), to uphold the 
Panel's finding that the 2004-2005 administrative review and assessment instructions 
(by action or omission) were incons istent with Article VI:2 of the GATT 1994  and 
Article 9.3 of the Anti-Dumping Agreement  and a failure to comply with the DSB 
rulings and recommendations,12 albeit on the basis of the different and more 
developed reasoning to be set out in the app eal; and to find that the Panel erred in 
failing to specifically address the same issue with respect to the final liquidations (by 
action or omission)13 and erred in its other findings on this issue,14 and to complete 
the analysis by making the same findings as for the administrative review and assessment instructions; 
• also with respect to Case 1 ( Hot Rolled Carbon Steel from the Netherlands ), to 
modify or reverse the Panel's findings and conclusions
15 concerning the assessment 
                                                      
9Panel Report, para. 8.222. 
10Panel Report, paras. 8.164–8.222 and 9.1(b)(i)-(v). 
11Panel Report, paras. 8.191–8.193, particularly (but not only) para. 8.191, first sentence, referring to 
paras. 8.170–8.185, particularly (but not only) para. 8.174, first sentence (including footnote 769); re-iterated at 
paras. 8.199–8.200 (including footnote 803); and Panel Report, para. 9.1(b)(iii) and (iv) and 9.1 (by omission 
and by implication). 
12Panel Report, paras. 8.208 and 9.1(b)(i). 
13Panel Report, paras. 8.208 and 9.1(b)(i) (by omission and by implication). 
14Panel Report, para. 9.1(b)(iii) and (iv). 
15Panel Report, paras. 8.205, 8.209 and 9.1(b)(iii) and (iv). WT/DS294/28 
Page 4  
 
  instructions on 16 April 2007 and the li quidation instructions on 23 April 2007, 
instructing liquidation for the period 1 N ovember 2005 to 31 October 2006, on the 
basis of the cash deposit rate originally in force at the time of importation, and based 
on zeroing.  The European Communities request s the Appellate Body to complete the 
analysis and find that these actions by the Un ited States after the end of the reasonable 
period of time were inconsistent  with Article VI:2 of the GATT 1994 , Article 9.3 of 
the Anti-Dumping Agreement  and Articles 19.1 and 21.3 of the DSU , and constitute a 
failure to comply with the rulings and r ecommendations of the DSB in the original 
case; 
• with respect to Case 6 ( Stainless Steel Wire Rod from Sweden ), to uphold the Panel's 
finding that the 2004-2005 administrative review and assessment instructions (by 
action or omission) were inconsis tent with Article VI:2 of the GATT 1994  and 
Article 9.3 of the Anti-Dumping Agreement ,
16 albeit on the basis of the different and 
more developed reasoning to be set out in th e appeal; and to find that the Panel erred 
in failing to specifically address the same i ssue with respect to the final liquidations 
(by action or omission)17 and erred in its other findings on this issue,18 and to 
complete the analysis by making the same findings as for the administrative review 
and assessment instructions; 
• with respect to 12 Cases,19 to modify or reverse the erroneous findings in paragraph 
8.202 of the Panel Report; to uphold the corr ect findings in the final two sentences of 
paragraph 8.218 of the Panel Report; to find that the Panel has acted inconsistently 
with Article 11 of the DSU ; and to the extent necessary, to complete the analysis, also 
with respect to the appropriate conclusions  and recommendations, by finding that, by 
continuing to maintain in place duty or ca sh deposit rates with respect to these 12 
Cases, the United States acted inconsis tently with Article VI:2 of the GATT 1994 , 
Article 9.3 of the Anti-Dumping Agreement  (or in the case of sunset reviews with 
Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement ) and Articles 19.1 
and 21.3 of the DSU , and that this constitutes a failure to comply with the rulings and 
recommendations of the DSB in the original case; and 
• to modify or reverse the Panel's findings re jecting the EC claim according to which, 
once an anti-dumping order is revoked pursu ant to the Section 129 Determination 
(because absent zeroing no dumping was found) the United States was not entitled to continue adopting administrative reviews a nd other actions (including collection of 
duties) based on zeroing in relation to that revoked order after the end of the 
reasonable period of time; and to complete the analysis accordingl y by finding that 
the United States violated Articles 19.1 and 21.3 of the DSU  and the DSB rulings and 
recommendations in the original proceedings.
20 
(e) The Panel erred with respect to the correct le gal interpretations of Ar ticles 19.1, 21.3 and 21.5 
of the DSU , disregarded its mandate, exercised false judicial economy, and failed to comply 
with its functions as required by Article 11 of the DSU  when failing to make any findings 
with respect to the EC claims regarding the non-existence of measures taken to comply 
between 9 April and 23 April/31 August 2007 .21  The European Communities requests the 
                                                      
16Panel Report, paras. 8.213 and 9.1(b)(i). 
17Panel Report, paras. 8.213 and 9.1(b)(i) (by omission and by implication). 
18Panel Report, para. 9.1(b)(iii). 
19Cases 18-24, 27-30 and 31. 
20Panel Report, paras. 8.219–8.222, particularly  (but not only) para. 8.222, final sentence. 
21Panel Report, paras. 8.226–8.227 and 9.1(b)(vii).  WT/DS294/28 
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  Appellate Body to complete the analysis by fi nding that the United States acted inconsistently 
with Articles 19.1 and 21.3 of the DSU  and failed to comply with the DSB rulings and 
recommendations in the original proceedings. 
(f) The Panel made errors relating to the le gal interpretation of Article 21.5 of the DSU  when 
finding that the EC claims (particularly regarding the arithmetical error ) in respect of the 
Section 129 Determination concerning Stainless Steel Sheet and Strip in Coils from Italy  
(listed as Case 11 in the Annex to the EC Pane l Request) were not properly before the Panel.22  
The European Communities requests the Appellate Body to complete the analysis by finding 
that the EC claims could properly be made in these compliance proceedings and that the United States acted inconsistently with Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-
Dumping Agreement , Article VI:2 of the GATT 1994 , Articles 19.1 and 21.3 of the DSU  and 
failed to comply with the DSB rulings and recommendations in the original proceedings. 
(g) The Panel erred in finding that the United Stat es did not act inconsistently with Article 9.4 of 
the Anti-Dumping Agreement  in the establishment of "all others" rates
 in the Section 129 
Determinations concerning Stainless Steel Bar from France, Italy and the United Kingdom  
(listed as Cases 2, 4 and 5 in the Anne x to the EC Compliance Panel Request);23 moreover, 
the Panel erred in failing to examine the EC claim based on Article 6.8 and Annex II of the 
Anti-Dumping Agreement .24  The European Communities requests the Appellate Body to 
complete the analysis by finding that the United St ates acted inconsistently  with Article 9.4 of 
the Anti-Dumping Agreement , Article 6.8 and Annex II of the Anti-Dumping Agreement , 
Articles 19.1 and 21.3 of the DSU  and failed to comply with the DSB rulings and 
recommendations in the original proceedings.  
(h) The Panel erred in rejecting the EC request for a suggestion  pursuant to Article 19.1 of the 
DSU ,25 and the European Communities requests th e Appellate Body to make appropriate 
suggestions in this case. 
 
__________ 
 
                                                      
22Panel Report, paras. 8.237–8.244 and 9.1(c)(i). 
23Panel Report, paras. 8.278–8.284 and 9.1(c)(iii). 
24Panel Report, paras. 8.284 and 9.1 (by omission and by implication). 
25Panel Report, para. 9.3.