WT/DS331/R 
Page C-1 
 
 
ANNEX C 
 
EXECUTIVE SUMMARIES OF THE REBUTTAL 
SUBMISSIONS OF THE PARTIES 
 
  
Table of contents Page 
Annex C-1 Rebuttal Submission of Guatemala – 13 October 2006 C-2 
Annex C-2 Rebuttal Submission of Mexico – 2 November 2006 C-11 
 WT/DS331/R 
Page C-2  
 
ANNEX C-1 
 
REBUTTAL SUBMISSION OF GUATEMALA 
 
(13 October 2006) 
 
TABLE OF CONTENTS 
 
  Page  
 
I. CONSIDERATIONS CONCERNING THE STANDARD OF REVIEW AND 
THE BURDEN OF PROOF UNDER THE DEFENCE RAISED BY MEXICO................3  
A. CONSIDERATIONS RELATING TO THE STANDARD OF REVIEW IN THE LIGHT OF 
MEXICO 'S ARGUMENTS ...............................................................................................................3  
B. BURDEN OF PROOF ......................................................................................................................3  
II. REBUTTAL ....................................................................................................................... .......4  
A. CLAIMS RELATING TO THE INITIATION OF THE INVESTIGATION .................................................4  
1. Mexico's interpretation of Articles 5.2, 5.3 and 5.8 of the Agreement is erroneous ...........4  
2. Economía's evidence and procedures, as reflected in its determinations, 
invalidate the factual basis of Mexico's arguments................................................................4  
B. CLAIMS RELATING TO THE PRODUCT UNDER CONSIDERATION /LIKE PRODUCT ..........................5  
C. CLAIMS RELATING TO DUMPING .................................................................................................6  
D. CLAIMS RELATING TO INJURY .....................................................................................................6  
1. Mexico failed to refute Guatemala's claim that the period chosen for an analysis of the alleged injury to the domestic industry was outdated.................................................6
 
2. Mexico failed to refute Guatemala's claim that the use of six-monthly 
information does not reflect the injury to the domestic industry as a whole.......................7  
3. Mexico has failed to refute Guatemala's claim that the use of information on 
segments of the domestic industry does not reflect injury to the domestic 
industry as a whole ............................................................................................................ .......7  
4. Mexico has failed to refute Guatemala's cl aim that no objective examination was 
conducted on the basis of positive evidence relating to import volumes..............................8  
E. CLAIMS RELATING TO CAUSATION ..............................................................................................8  
F. CLAIMS RELATING TO PROCEDURAL ASPECTS ............................................................................9  
1. Mexico has not refuted Guatemala's claim that Economía failed to inform the 
exporter of the essential facts and of th e rejection of the information it had 
supplied....................................................................................................................... ...............9  
2. Mexico failed to refute Guatemala's claim that the disclosure of the findings and 
conclusions in the preliminar y resolution is inadequate .......................................................9  
3. Mexico failed to refute Guatemala's claim that confidential treatment was 
afforded without a good cause analysis and without requiring the presentation of adequate non-confidential summaries ....................................................................................9
 WT/DS331/R 
Page C-3 
 
 
I. CONSIDERATIONS CONCERNING THE STANDARD OF REVIEW AND THE 
BURDEN OF PROOF UNDER THE DEFENCE RAISED BY MEXICO 
A. CONSIDERATIONS RELATING TO THE STANDARD OF REVIEW IN THE LIGHT OF MEXICO 'S 
ARGUMENTS  
1. Article 11 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (DSU) and Article 17.6 of the Anti-Dump ing Agreement govern the examination by this 
Panel.  In the light of the jurisprudence, this ex amination of the conclusions  and determinations of 
Economía must be "critical and searching", and be b ased on "the information contained in the record 
and the explanations given by [Economía] in its published report [s]" as opposed to possible post hoc 
explanations which do not flow from tho se determinations or from the record. 
 
2. Mexico has attempted to justify the way in which Economía established various essential 
facts and its evaluation thereof based solely on post hoc justifications that are not contained in its 
resolutions.  These post hoc justifications  should be disregarded by the Panel. 
 
3. Guatemala also considers that the criterion of lack of opposition by the interested parties, as 
applied by Mexico, likewise cannot c onstitute the basis for establishment of the facts, just as it cannot 
modify as such the nature of a fact whose characteristics exist objectively.  4. Furthermore, Mexico contends that, as long as a matter is not governed by the Anti-Dumping 
Agreement, the treatment thereof fa lls under the discretion of the investigating authority.  It deploys 
these arguments with particular reference to the definition of the product under investigation as well 
as the definition of the investigation period.  5. Guatemala considers that in both cases, Mexico's interpretations seek to ignore the provisions 
of Article 17.6 (ii) of the Anti-Dumping Agreement.   They are inadmissible in the light of this 
standard of review since, although the Agreement contains no provision expressly regulating various 
topics, any discretion enjoyed by an investigating authority is limited by Article 17.6 (i) of the Anti-
Dumping Agreement.  6. Another way in which Mexico seeks to evade the legal standard of review is by invoking its 
domestic right to release itself from international obligations.  This is the case with the claim relating 
to the confidentiality of certain information provi ded by the Applicant, concerning which Economía 
invokes the possibility of access to the confidential record on the part  of the Exporter.  However, 
Guatemala considers that the gr anting of access to the confidentia l record under Mexican law is 
irrelevant to an interpretation of Mexico's obligations under Article 6.5 of the Anti-Dumping 
Agreement and to compliance with those obligations in the light of the provisions of customary law. 
 
B. B
URDEN OF PROOF  
7. If a party provides sufficient evidence to justif y the presumption that its claim is legitimate, 
the burden of proof shifts to the other party, which must provide sufficient evidence to rebut the presumption.  Mexico seeks to invoke this rule as a substitute for its obligations under Article 17.6 of 
the Anti-Dumping Agreement, disregarding the fact  that the evidence on which Guatemala's claims 
are based is constituted by the de terminations and factual elements  contained in the investigation 
record.  Nevertheless, Guatemala considers that it has succeeded in establishing a prima facie case 
concerning the legitimacy of the claims made, and Mexico has not succeeded in refuting those claims. WT/DS331/R 
Page C-4  
 
II. REBUTTAL 
A. C
LAIMS RELATING TO THE INITIATION OF THE INVESTIGATION  
1. Mexico's interpretation of Articles 5.2, 5.3 and 5.8 of the Agreement is erroneous 
8. Mexico considers that the purpose of initiating an investigation is to determine the existence 
of alleged dumping, and that consequently the qua lity and quantity of evidence of dumping may serve 
merely as an indication of the existence of dumping.   Guatemala takes the view that the "alleged" 
existence of dumping carries no implication as to the nature of the evidence to be submitted in support 
of the claim, evidence which must be sufficient . 
 9. Mexico points out that the ev identiary standard laid down by Article 5.2 of the Anti-Dumping 
Agreement concerns evidence "reasonably available to  the applicant".  Guatemala considers that this 
provision describes the required content of the appli cation for initiation of the investigation and serves 
as a parameter for the investigating authority to conduct an evaluation and determination under 
Article 5.3 of the Anti-Dumping Agreement.  
10. Mexico, for its part, disregards the fact that the standard for assessing evidence is one of 
"adequacy", a requirement that must be analysed  on a case-by-case basis and which, in the present 
case, did not justify characterizing the eviden ce submitted by the Applicant as adequate. 
 11. Moreover, Mexico states that, in evaluating the consistency and coherence of the arguments 
and evidence presented, the investigating authority must necessarily consider whether the parties are 
acting in good faith, and this must be based, overall,  on standards of certainty.  On this view, as the 
investigating authority must rely on the good faith of the applicant, the term "shall examine" is 
rendered meaningless in this provision and is transfor med into an appraisal of the good intentions of 
the parties.  However, this is not what is requi red by Article 5.3 of the Anti-Dumping Agreement.  
What is required by that provision is an objective examination  of the evidence presented with the 
application. 
 12. Mexico also states that, if the applicants do not respond to all the questions or provide inadequate responses, at least in the stages subse quent to initiation, the in vestigating authority is 
entitled to obtain supplementary info rmation in order to "complete the investigation".  Mexico thus 
challenges the applicability of Article 5.3, which requires an examination of the adequacy of the 
evidence, and of the consequences whereby, under Ar ticle 5.8, any application that does not contain 
sufficient evidence is to be rejected.    
2. Economía's evidence and procedures, as refle cted in its determinations, invalidate the 
factual basis of Mexico's arguments  
13. It is clear that the only two documents relie d on by Economía to justify the normal value are 
neither adequate, nor accurate, nor relevant, in view of the fact that:  (i) they were issued by two 
trading companies which are neither producers nor exporters, and which are not connected with the 
only exporter identified and investigated;  (ii) it was not ascertained whether the products concerned 
were actually produced in Guatemala or whether they  were imported;  (iii) they relate to a transaction 
conducted in one day and a potential transaction (which was not shown to have been carried out, and 
if so under what conditions) in order to compare transactions over the entire period investigated;  
(iv) they contain information on an insignificant nu mber of products which are not representative of 
the product as a whole (three and six dimensions of a product from a range which ostensibly covers at 
least 132 dimensions and other characteristics);  th e information from this limited sample relates to 
pipes and tubes that were not produced  to Standard ASTM A53, the manufacturing standard 
originally used to define the product under investig ation, and not all adjustme nts were made to normal 
value in order to guarantee a fair comparison with the export price.  This evidence could not therefore WT/DS331/R 
Page C-5 
 
 
be considered to be accurate, re levant and adequate under the term s of Articles 5.2 and 5.3 of the 
Agreement.   14. Moreover, Mexico confines itself to explaining  that to require an applicant enterprise to 
provide accurate information
 on the volume of the allegedly dum ped imports would be to impose a 
standard that is practically unattainable by the app licant, and this, in Guatemala's view, is an explicit 
acknowledgement that it possessed no "accu rate" information in this regard. 
 B. C
LAIMS RELATING TO THE PRODUCT UNDER CONSIDERATION /LIKE PRODUCT  
15. Mexico relies on the concept of "likeness" in orde r to justify its change in the definition of the 
product.  Guatemala wishes to reiterate that it is  not alleging that Economía's comparison of the 
product under consideration with the like product was inadequate.  Rather, Guatemala questions the 
way in which Economía made various  changes in the definition of th e product under consideration so 
as to include, at a late stage of the investigation,  additional products whic h were initially excluded, 
without positive evidence regarding those products a nd without having made any effort to satisfy 
itself that they were properly investigated. 
 16. It is not disputed that the product under inv estigation was originally defined as standard pipes 
and tubes produced under Standard ASTM A53, of one  half to four inches in diameter.  Nor does 
Mexico dispute the fact that both structural pipes a nd tubes and standard pipes and tubes of more than 
four and up to six inches in diameter were excluded at the time of initiation of investigation.  Finally, 
it is not disputed that the initial definition was altered on two occasions. 
 17. Mexico considers that the fact of including in the Preliminary Resolution pipes and tubes of more than four and up to six inches in diameter  does not substantially alter the description in the 
Initiating Resolution.  However, Mexico has not dem onstrated, nor is it stated in any part of the 
administrative record, that the investigating aut hority requested additional information on prices, 
import volumes, injury and causal link, among other aspects, in respect of the range of products included at the preliminary stage.  Similarly, neither the administrative record nor Economía's 
determinations set out the reasons used to justif y increasing the range of diameters of the pipes and 
tubes under investigation, particularly as regards why the only exporter investigated produced only 
pipes and tubes in the range of one half to two inches in diameter. 
 
18. Mexico argues that the second change in its definition of the product under investigation was 
due to the fact that structural pipes and tubes and standard pipes and tubes are interchangeable 
products.  Mexico alleges that standard pipes and t ubes can have "structural" uses and infers from this 
reasoning that, conversely, structural pipes and tubes could be used for conduction.  On the basis of 
this erroneous idea, Mexico considers that the inv estigating authority was entitled to include structural 
pipes and tubes within the scope of the definitiv e anti-dumping measure, and it further describes them, 
in relation to standard pipes and tubes, as "one and the same" product.  19. On this point in particular, it is important to make it clear that the facts in the record establish 
indisputably that standard pipes and tubes and st ructural pipes and tubes are not one and the same 
product, as is erroneously asserted by Mexico in its  replies to the questions asked by the Panel.  
Furthermore, it can easily be seen from the same ev idence contained in the record that both Economía 
and the Applicant itself treated structural pip es and tubes and standard pipes and tubes as two 
distinguishably separate products and not as part of the product under investigation.  In fact, Mexico 
recognized that the product under investigation was standard pipes and tubes, and once the 
investigating authority realized that structural pi pes and tubes had the characteristics referred to, it 
deemed it convenient to include them in its de finition of the product under investigation.  This 
inclusion, as is shown by the relevant evidence, took place at the end of the investigation.  WT/DS331/R 
Page C-6  
 
20. It is clear that the authority did not disclo se this essential fact.  Moreover, Mexico now argues 
that the disclosure regarding the inclusion of structur al pipes and tubes in the definitive measure is not 
an essential fact within the meaning of Article 6.9 of the Anti-Dumping Agreement.  Guatemala 
considers it illogical that the disclosure of a fact as important as the pipes and tubes to which anti-
dumping duties are to be applied is not seen as " essential" within the meaning of Article 6.9.  
Consequently, Guatemala has no doubt that Mexico acted inconsistently with Articles 1, 2.1, 2.4, 2.6, 
3.1, 3.2, 3.4, 3.5, 4.1, 5.4, 6.4, 6.9 and 18.1 of the Anti-Dumping Agreement.  C. C
LAIMS RELATING TO DUMPING  
21. Guatemala notes that, in general terms, Mexi co does not dispute Guatemala's interpretation of 
the legal rules applicable to the use of the facts av ailable.  In particular, Guatemala notes that Mexico 
raises no defence against Guatemala's argument that, for the purposes of the final dumping determination, Economía failed to  evaluate the invoice and the price quotation with special 
circumspection, as required by paragraph 7 of Anne x II to the Agreement.  Such an evaluation was 
absolutely necessary, since neither the invoice nor  the quotation emanated from the only exporter 
under investigation, nor did they relate to the inv estigated product as a whole or to the entire period 
proposed for the review of dumping.  22. Far from rebutting one by one the arguments put forward by Guatemala regarding Economía's 
use of the facts available, Mexico simply affirm s that a mere reading of the Guatemala exporter's 
replies to the official questionnaire, together with the results of the verification visit, shows that the 
exporter did not provide all the in formation required, and that the information it did provide in the 
course of the investigation was not complete, accurate and precise.  As has been explained by Guatemala, each of the reasons set out in the point s of the Final Resolution cited by Mexico as alleged 
justification for the use of the facts available does no t coincide with the content of the record of the 
verification visit.  Consequently, Guatemala consid ers that Economía's action was not justified under 
Article 6.8 and Annex II of the Anti-Dumping Agreement. 
 23. Mexico also fails to put forward arguments  rebutting Guatemala's cl aims under Articles 6.2, 
6.4, 6.6, 6.7, 6.8 and 6.9 of the Anti-Dumping Agreem ent, as elaborated in its first written submission.  
Moreover, Mexico only acknowledges that the investigating authority presumed ( presumió ) that, 
given the existence of various discr epancies, the exporter would consider  (consideraría) that its 
information could  (podía ) be disregarded.  In this connection, Guatemala reiterates that Mexico, by 
using the facts available, acted in a manner inconsiste nt with Articles 6.2, 6.4, 6.7, 6.8, 6.9, 6.13 and 
Annex II of the Anti-Dumping Agreement.  D. C
LAIMS RELATING TO INJURY  
1. Mexico failed to refute Guatemala's claim that the period chosen for an analysis of the 
alleged injury to the domestic industry was outdated 
24. Mexico and Guatemala agree that the period of  investigation should end on a date as close as 
practicable to the initiation of the investigation, in  accordance with the relevant provisions of Article 3 
of the Anti-Dumping Agreement.    
25. However, Mexico justifies post hoc the fact that the investigation period was not challenged 
by the interested parties.  Mexico also puts forw ard the argument that, in order to determine whether 
the evidence is objective, verifiable and credible, it is necessary to analyse the actual data on which 
the investigating authority relied in order to issue its injury determination, and it is not possible to 
conclude that a piece of evidence does not meet  those requirements simply because no additional 
information was available.  Guatemala reiterat es its position that the degree of adequacy and 
relevance of the evidence of injury is determined not  only by the nature of the data provided but also 
by their remoteness.   WT/DS331/R 
Page C-7 
 
 
26. Guatemala observes that in this case the same conditions obtain as in Mexico – Anti-Dumping 
Measures on Rice, despite the fact that Mexico seeks unjustifiabl y to depict them in a different light.  
In particular, in accordance with the jurisprudence established in that case, Economía:  (a) ostensibly 
accepted the investigation period proposed by th e Applicant, without taking into account the 
discrepancy between that period and the date of in itiation of the investigation and without examining 
whether the outdated information could still serve as a basis for an objective examination of the 
current state of the domestic industry;  (b) failed to  determine whether  practical problems justified the 
use of that period of investigation or whether it would not be possible to update the information 
beyond that period;  (c) in the course of the inv estigation, did not seek to update the information 
obtained from the interested parties;  (d) failed to e xplain, in its Final Resolution, the reasons for not 
collecting more recent information.  Thus, Mexi co failed to demonstrate that the choice of the 
investigation period is consistent with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement. 
 
2. Mexico failed to refute Guatemala's claim that the use of six-monthly information does 
not reflect the injury to the domestic industry as a whole 
27. Mexico considers that the "positive eviden ce" requirement involves evaluating evidence of 
injury as such.  If the ev idence is positive in that context, th ere is no reason to dismiss it "simply 
because no additional information was available".  28. Guatemala considers that the temporal integrity of the evidence, that is to say the totality of 
the data corresponding to the years analysed, is a key element in determining whether evidence is 
"positive". 
 29. Mexico argues that the Anti-Dumping Agreemen t contains no obligation as to how the injury 
analysis is to be conducted in re lation to the periods used, and that the use of six-month periods in 
each year does not therefore involve any violation of the Agreement.  It also points out that a 
six-month year-on-year comparison makes it possible to analyse periods that are "structurally" the 
same in each year.  Mexico goes on to explain th at these periods were compared without considering 
whether or not the situation was better or wor se during each six-month period than during the six 
months from January to June.  Guatemala sees this as  clear evidence of a lack of objectivity.  As is 
affirmed by Guatemala and the United States, an objective evaluation cannot be based on an 
incomplete series of data unless the investigating au thority provides a justified explanation in this 
regard.  Exporters should not have the burden of investigating what happened during the months not 
proposed by the Applicant, for the purpose of "persu ading" the investigating authority that it should 
also request information on the periods not proposed by the Applicant.  30. For the above reasons, Guatemala observes that there is no evidence in the record to suggest 
that this selective use of second half-year periods could be justified.  The post hoc explanation now 
offered by Mexico, to the effect that "structural symmetry" was taken into account, is not reflected in 
any of Mexico's determinations.  Moreover, Guatemala considers that  there are not even any objective 
reasons for having opted for the use of the six-month periods July to December rather than January to 
June of each year.  On the contrary, as was indi cated in the Initiating Resolution, Economía was 
aware of the fact that the consumption of pipes a nd tubes in the domestic market remained constant 
throughout the year, apart from fluctuations in cer tain months owing to taxes, when consumption 
increases (as in December) or decreases (as in April).  In view of the foregoing, Guatemala is of the 
opinion that Mexico failed to determine a period in keeping with the need to conduct an objective 
evaluation of positive evidence to substan tiate injury to the domestic industry. 
 3. Mexico has failed to refute Guatemala's claim that the use of information on segments of 
the domestic industry does not reflect inju ry to the domestic industry as a whole 
31. Guatemala does not disagree with Mexico a bout the possibility of evaluating the domestic 
industry by examining all or a major proportion of pr oducers.  What Guatemala contends is that, once WT/DS331/R 
Page C-8  
 
the domestic industry is defined by including all or  a major proportion of producers, the investigating 
authority must adhere to that definition.  32. However, Mexico takes the view that, if a pr oducer is authorized to submit an application and 
the investigating authority nevertheless determin es that the domestic industry comprises other 
producers in addition to the Applicant, information on that producer can legitimately be used for the 
analysis of certain factors of injury, while inform ation on total domestic produc tion is used for others. 
 33. The standard under Article 5.4 is differ ent from the one under Article 4.1 of the Anti-
Dumping Agreement.  In fact, Mexico disregards th e thesis reflected in jurisprudential interpretation 
to the effect that a "sectoral" injury analysis ma y be relevant insofar as the investigating authorities 
provide a satisfactory explanation as to why it is not  necessary to examine directly or specifically the 
other parts of the domestic industry.  In the present case, Mexico has not provided a satisfactory explanation as to why it was not necessary to examin e directly or specifically the other parts of the 
domestic industry.  Consequently, Guatemala is of  the opinion that Economía acted in a manner 
inconsistent with Articles 3.1, 3.2, 3.4, 3.5 and 4.1 of the Anti-Dumping Agreement. 
 
4. Mexico has failed to refute Guatemala's claim that no objective examination was 
conducted on the basis of positive ev idence relating to import volumes 
34. Mexico acknowledges that, in applying the methodology of minimum and maximum prices to 
imports from countries not investigated in order to determine the corresponding volumes, it is 
reasonable to assume that a product not under investig ation could have been included or that pipes 
and tubes under investigation could have been ex cluded.  Mexico's statement confirms what was 
indicated by Guatemala regarding the unfou nded hypothesis on which Economía based the 
determination of volumes for countries not investig ated.  In its Final Resolution, Economía did not 
even provide justification of the grounds for using the range of prices for imports from non-
investigated countries. 
 35. Mexico further affirms that Economía does not always receive a favourable response from 
institutions requested to provide information (incl uding Customs and the Ministry of Finance), nor is 
it empowered to require customs brokers or importers  to provide information, and that in any case 
Economía cannot issue orders that exceed its sphere of competence.  Contrary to what is asserted by 
Mexico, Article 55 of Mexico's Foreign Trade Act reveals the extensive powers enjoyed by Economía 
under the law for the purpose of requesting informatio n from third parties.  Moreover, nowhere in the 
record is there any indication that Economía made ev en the slightest effort at least to request such 
information.  
E. C
LAIMS RELATING TO CAUSATION  
36. Mexico considers that, as exports account for 7 per cent or 5 per cent of domestic production, 
a decline in exports is not a determining factor for the injury analysis.  What Mexico ignores and what 
is most relevant in this connection is that the d ecline in exports was equal to or greater than the 
decline in domestic sales.  The d ecline in exports was so great that it was bound to cause injury to the 
domestic industry, and its effects should have been distinguished from the effects caused by allegedly 
dumped imports.  Economía failed to make this dis tinction.  Even assuming that exports were not so 
determinative of injury, as Mexico states, Economía should nevertheless have made the attribution of 
injury to that less determinative f actor.  However, it failed to do so. 
 37. Regarding the drop in profits, Mexico also fails  to point out that it was due mainly to lower 
sales figures and not to increased sales costs.  Econo mía should therefore have made a distinction and 
should not have attributed injury caused by the Ap plicant's increased costs and expenses.  Guatemala 
also notes that, although Economía attributes the decrease  in profits primarily to the decrease in sales, 
it makes no distinction between the fall in sales a ttributable to the fall in exports, which represented WT/DS331/R 
Page C-9 
 
 
2 per cent of domestic production, and the fall in  domestic sales, which was only 2 per cent, a 
seemingly smaller proportion than the fall in exports.   On this additional aspect, Economía also failed 
to make the appropriate non-attribution finding.  F. C
LAIMS RELATING TO PROCEDURAL ASPECTS  
1. Mexico has not refuted Guatemala's claim th at Economía failed to inform the exporter 
of the essential facts and of the rejection of the information it had supplied 
38. To sum up, what Mexico claims is that, insofar as a fact is reflected in the record (which is the 
case with all the facts), the interested parties are in formed of that fact and may "foresee" the treatment 
to be given to it in the final determination.  In  Mexico's opinion, this satisfies the obligation to 
"inform" under Article 6.9 of the Anti-Dumping Agre ement.  As not all the facts in the record are 
"essential", what Mexico proposes is that the parti es "guess" which of them will be essential facts, 
thus rendering pointless the obligation to "inform" .  The failure to iden tify and disclose to the 
interested parties the facts deemed essential w ithin the universe of essential and non-essential facts 
contained in the record constitutes a violation of the obligation to inform under Article 6.9 of the 
Agreement. 
 39. With regard to disclosure of the essential fact concerning the inclusion of structural pipes and 
tubes at the end of the investigation, Mexico firs t affirmed in its first written submission that it was 
illogical to think that, if there were requests for information on the product under investigation, that information should not be considered as an essentia l fact.  Mexico went on to state that disclosure 
regarding the inclusion of structural pipes and tub es in the definitive measure was not an essential fact 
within the meaning of Article 6.9 of the Anti-Dumping Agreement.  40. As regards the disclosure of the essential f act concerning the use of the facts available, 
Mexico acknowledged that the investigating authority presumed  (presumió ) that, given the existence 
of various discrepancies in the informati on supplied, the exporter would consider ( consideraría ) that 
the information could ( podía)  be dismissed. 
 41. In both cases, such explanations are not onl y unjustified but are also inconsistent with 
Article 6.9 and paragraph 6 of Anne x II of the Anti-Dumping Agreement. 
 2. Mexico failed to refute Guatemala's claim that the disclosure of the findings and 
conclusions in the preliminary resolution is inadequate 
42. Article 12.2 of the Anti-Dumping Agreement is  designed to prevent any attempt to justify 
actions or determinations of the investigating au thority post hoc.  Mexico, however, in connection 
with the definition of the product under investigation, instead of identifying those parts of its 
preliminary and final resolutions which allegedly c ontain its factual findings and conclusions, merely 
asserts that its resolutions contain "a description of the product which is sufficient for customs 
purposes", which is not the object of Guatemala's claim.  
3. Mexico failed to refute Guatemala's claim th at confidential treatment was afforded 
without a good cause analysis and without requiring the presentation of adequate non-
confidential summaries 
43. Guatemala regards as totally irrelevant the provisions of Mexican law concerning access to 
confidential information.  Guatemala does not consid er that domestic law mechanisms release Mexico 
from its obligation under Article 6.5.1 to grant conf idential treatment to information only if good 
cause is shown and sufficiently de tailed non-confidential summaries are provided.  In accordance with 
international custom under the law of treaties, "a pa rty may not invoke the provisions of its internal 
law as justification for its failure to perform a treaty". WT/DS331/R 
Page C-10  
 
44. In Guatemala's opinion, it was to be hoped that  Mexico would demonstrate that it had made a 
good cause evaluation before affording confidential tr eatment to the information provided by the 
Applicant, and that it had evaluated the "suffici ent detail" justifying acceptance of the summaries 
furnished (where they had been furnished) or, a lternatively, that it had suggested that certain 
information be made public or had requested aut horization for its disclosure in generalized or 
summary form.  However, no justification along th ese lines is to be found in Mexico's submissions, 
and instead Mexico confines itself to explaining that  the legal representatives of the interested parties 
had (or could have had) access to the confidential reco rd and that, in its opini on, this guaranteed the 
defence rights of the interested parties.  
45. Guatemala recognizes that, under Mexican law, th e legal representatives of interested parties 
are allowed access to the confidential record under cer tain restricted conditions.  While it is true, 
however, that such access may contribute  to the right of defence of interested parties, it could in no 
sense be considered as a substitute  for the obligations laid down in Article 6.5 of the Anti-Dumping 
Agreement.  Accordingly, it is clear to Guatemala that Economiá acted in a manner inconsistent with 
Article 6.5 of the Anti-Dumping Agreement. WT/DS331/R 
Page C-11 
 
 
ANNEX C-2 
 
EXECUTIVE SUMMARY OF THE REBUTTAL 
SUBMISSION OF MEXICO 
 
(2 November 2006) 
 
 
 
CONTENTS 
 
Page  
 
I. MEXICO INITIATED THE INVESTIGATION WITH SUFFICIENT 
EVIDENCE OF DUMPING AND INJURY, CONSISTENT WITH ARTICLE 5.2, 5.3 AND 5.8 OF THE ANTI-DUMPING AGREEMENT............................................13
 
II. ARGUMENT CONCERNING THE CLAIMS RELATING TO THE PRODUCT UNDER INVESTIGATION AND THE LIKE PRODUCT ...........................15
 
A. FIRST ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION .................15  
B. SECOND ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION .............16  
III. MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH 
THE ANTI-DUMPING AGREEMENT ...............................................................................17  
IV. CLAIMS RELATING TO THE DE TERMINATION OF INJURY .................................19  
A. CHOICE OF THE PERIOD OF INVESTIGATION ..............................................................................19  
B. CHOICE OF HALF -YEAR PERIODS FOR THE PURPOSES OF INJURY ANALYSIS .............................21  
C. DOMESTIC INDUSTRY ................................................................................................................21  
D. VOLUME AND PRICE EFFECT OF TH E IMPORTS UNDER INVESTIGATION ....................................22  
V. ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO 
PROCEDURAL ASPECTS ...................................................................................................23  
  WT/DS331/R 
Page C-12  
 
LIST OF ABBREVIATIONS IN ALPHABETICAL ORDER 
 
 
Abbreviation Full name/title 
AB Appellate Body 
ADA Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes 
EC European Communities 
IA Investigating authority 
LCE Ley de Comercio Exterior de México  (Mexican Foreign Trade Law) 
SE Secretaría de Economía  (Ministry of the Economy) 
SICMEX Sistema de Information Comercial de México  (Mexican Trade Information System) 
TIGI Tarifa de la Ley del Impuesto General de Importación de México  (Tariff 
established under Mexico's General Import Duty Law) 
TIGIE Tarifa de la Ley de los Impuestos Ge nerales de Importación y Exportación de 
México  (Tariff established under Mexico's Ge neral Import and Export Duty Law) 
Tubac Tubac, S.A. (Guatemalan exporter) 
US United States of America 
WTO World Trade Organization 
 
 WT/DS331/R 
Page C-13 
 
 
I. MEXICO INITIATED THE INVESTIGATION WITH SUFFICIENT EVIDENCE OF 
DUMPING AND INJURY, CONSISTENT WITH ARTICLE 5.2, 5.3 AND 5.8 OF THE ANTI-DUMPING AGREEMENT 
1. Mexico notes that Guatemala clai ms the following in its responses:  (a) The invoice and the 
price quotation supplied by the applicant do not c onstitute sufficient evidence (Article 5.2 of the 
ADA);  (b) the analysis of the accuracy and adequacy  of the evidence must be  based exclusively on 
evidence provided in the application;  (c) if the in voice and the price quotation were not sufficient and 
the application did not contain data on import volum es, the application should have been rejected. 
2. Guatemala also argues that its claims under Ar ticle 5.8 of the ADA derive from those made 
under Article 5.2 and 5.3 of the ADA, cons idered both individually and as a whole
.  In Guatemala's 
view, Article 5.2 lays down obliga tions relating to the content of an application while Article 5.3 
refers to the examination of evidence.  It therefore submits that if an the application fails to meet the 
requirements of Article 5.2 and the IA initiates an  investigation, the latter will constitute action 
contrary to Article 5.2 and 5.3 of the ADA and consequently Article 5.8 as well. 
3. Mexico therefore holds that Guatemala's claim regarding these Articles taken as a whole 
would be groundless if it were demonstrated that not a single of the Articles had been violated.  Thus, 
we respectfully request that, should Mexico demons trate the foregoing, the Panel deem this part of 
Guatemala's claim to be without foundation, on th e basis of an analysis of Mexico's arguments. 
4. Mexico considers that a breach of Article 5.2 of the ADA cannot be imputed to an IA.  
Article 5.2 is an exception within the ADA, since it  establishes obligations for the applicant for an 
investigation – not for an IA.  Mexico therefore fails to understand how Guatemala can claim that it 
has violated Article 5.2 of the ADA.  The interpreta tion and application of a legal system requires that 
a distinction be made as to whom the provision in question applies.  In this case, the burden does not 
in any way lie with the IA, so it cannot be argued that a non-existent obligation has been breached. 
5. Furthermore, it is important to take account of the fact that the applicant's obligation, as set 
out in Article 5.2 of the ADA, is to provide such information "as is reasonably available".  Guatemala 
has not in any way demonstrated that the informa tion provided in the application was not that which 
was reasonably available to the applicant.  We fail to see how such a claim can be upheld, without, 
moreover, the slightest evidence. 
6. We disagree with Guatemala's interpretation of Article 5.3 of the ADA.  In our view, an IA 
may indeed gather additional information to that pr ovided in the application in order to establish the 
factual basis on which to make its determinations.  In  fact, the only way in which an IA can verify the 
accuracy, adequacy and sufficiency of the information provided in the application is precisely by 
gathering additional data. 
7. The applicant is not under any obligation to pr ovide more information than that which is 
reasonably available.  In fact, it is not obligated to submit all  the information that is reasonably 
available (see report of the Panel in US – Softwood Lumber ).  Even though there are no specific 
guidelines as to when the application should be deem ed to contain such information as is reasonably 
available to the applicant, we repeat that  that such evidence clearly does not necessarily  have to be of 
the quality necessary to support a preliminary or final determination.  It is also clear that such evidence need not be any more than data or information
, that is, indications on which the allegations 
of dumping, injury and causal link are based, and a re view of which, conducte d pursuant to Article 5.3 
of the ADA, reveals that they are sufficient for th e IA objectively to determine that there is a well-
founded likelihood that the applicant's allegations of un fair practice, injury and causal link are correct.  
It is for Guatemala to prove that a violation of Article 5.2 of the ADA has been committed, which it 
has failed to do. WT/DS331/R 
Page C-14  
 
8. Article 5.1 of the ADA clearly states that the pur pose of an investigation is to determine the 
existence, degree and effect of alleged dumping
.  Thus, the information contained in the application 
need not be any more than a mere indication of "alleged dumping".  If it were necessary for applicants to produce evidence of dumping – and not alle ged dumping – initiation would be practically 
impossible.  Moreover, even if an investigati on could be initiated, it would be pointless because 
evidence of dumping, injury, and causal link would alr eady be there, and therefore all that would need 
to be done is to issue the final determination.  In the case at issue, such was the line taken by Mexico's 
IA. 
9. As regards import volumes, Mexico considers that  it is indeed appropriate for the IA to seek 
to obtain additional data.  Very frequently the only way to verify the accuracy, adequacy and 
sufficiency of information provided in an applicati on is for the IA to gather further data.  If the 
applicant presents indicia of alleged dumping and th e effects thereof and is unable to obtain certain 
data, this does not preclude the IA from considering the information available as a factual basis for a 
decision. 
10. In its responses, Guatemala also states that Me xico should have used Tubac's information for 
the determination of normal value, because it is e xporters that engage in dumping, not countries;  
because it is exporters that provide the informat ion for calculating their individual margins of 
dumping;  and because it makes no sense to base an allegation of dumping on information from firms that do not manufacture the product under investigation. 
11. Our view is that Mexico is under no obligation to act as Guatemala claims that it should, and 
the latter's contention appears to us to be unfounded.   When an application concerns a single exporter, 
there is no reason why the evidence pertaining to no rmal value (i.e. the domestic price of the product 
at issue) should necessarily be submitted by the expor ter in question, since, by definition, the normal 
value of goods should not necessarily be connected to  a specific exporter but to the domestic market.  
Likewise, we do not see the relevance of referring to Article 6.10 of the ADA (individual margin of 
dumping for each exporter), when this is a question th at arises at the pre-investigation stage.  Such 
margins are calculated individually, but this b ears no relation to the documents regarding normal 
value that are examined prior to the initiation of the investigation.  In fact, having documents from 
each exporter in order to initiate an investigati on would preclude the possibility of obtaining normal 
value data in cases where the exporters do not prod uce the goods at issue or sell them in their home 
market.  Moreover, this would be tantamount to  requiring the qualitative and quantitative data 
necessary to issue a determination, which is at variance with WTO jurisprudence. 
12. Contrary to Guatemala's statement, moreover, Hylsa never provided evidence of the existence 
of 132 (66 standard and 66 galvanized) models of pipe and tube.  It subm itted data pertaining to 
66 product codes only, concerning solely standard pipes and tubes.  We do not know on what basis 
Guatemala assumes that the number of product codes for black pipes and tubes is identical, since this 
cannot be directly inferred.  A company's product codes may vary depending on colour, packaging, 
and so forth.  Hence it is impossible to deduce th at Hylsa actually has the same number of models of 
black and of standard pipes and tubes.  Moreove r, nothing in the ADA requires product codes to be 
identical. 
13. The above notwithstanding, and regardless of the models used by Hylsa, this bears no relation 
to the approach taken by the IA in relying on the documents relating to normal value that were 
provided in the application.  An IA is only required to consider whether the product under 
investigation is identical or highly similar to the like product, regardless of the classifications used by 
each enterprise.  A requirement such as that alleged by Guatemala would lead to the extreme situation 
of an applicant having to submit as many normal va lue references as the number of its product codes, 
which is untenable, and if this were the case, a review of the applicant's and the exporter's product 
codes would almost certainly reveal discrepancies between the different classification systems.  
Attempting to reconcile these discrepancies would be an impossible task. WT/DS331/R 
Page C-15 
 
 
14. We strongly emphasize that, according to the determination in US – Softwood Lumber , it is 
not necessary, for the purpose of initiating an inv estigation, to produce specific evidence for each 
category of the product at issue.  Acceptance of  Guatemala's argument would also imply a major 
contradiction with the adequacy of information cr iteria adopted in WTO jurisprudence and referred to 
in Mexico's first written submission.  For the reaso ns put forward in this rebuttal, the precedent in 
question does not apply as Guatemala claims, a nd Mexico therefore requests that such an 
interpretation be dismissed. 
15. Guatemala further holds that there are two ways  of initiating an investigation (at a party's 
request or ex officio ) and that if the option used is application by the domestic industry, the IA may 
not gather more information than that provided in th e application in order to determine whether or not 
it is appropriate to initiate an investigation.  In this connection, we repeat the arguments made earlier 
as to the possibility for an IA to gather additional da ta in order to establish the relevant factual basis. 
II. ARGUMENT CONCERNING THE CLAIMS RELATING TO THE PRODUCT 
UNDER INVESTIGATION AND THE LIKE PRODUCT 
16. Mexico regards the fact that Tubac did not object  to the inclusion of pi pes and tubes of up to 
six inches in diameter as an important point.  If an  interested party gave e xpress consent to or tacitly 
accepted an assertion, circumstance or determination, the IA should deem such acceptance to be valid.  
With tacit endorsement of the definition of the pr oduct at issue, the IA had no reason to disregard 
pipes and tubes of up to six inches in diameter.  In  any case, consent from the interested parties lends 
greater objectivity and relevance to the definition. 
17. Concerning the above, it is important to emphasize that, in paragraph 100 of its responses, 
Guatemala indicates that "Article 2.1 of the Agre ement does not prohibit minor changes to the product 
at issue during the course of the investigation", wh ich shows that Mexico's interpretation in this 
respect was correct. 
18. Mexico respectfully requests that the Panel fi nd that Guatemala is pursuing its attempt to 
sustain a number of arguments on non-existent grounds.  Since the ADA provides no specific 
guidance on certain points, it should be taken that th ere may be several valid interpretations of such 
points.  We therefore consider that the IA acted in conformity with the ADA. 
19. Mexico now proposes to put forward a number of  considerations on the adjustments to the 
definition of the product at issue during the course of the investigation. 
A. FIRST ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION  
20. With regard to the first adjustment, Guatemal a contends that the preliminary resolution 
improperly included diameters of pi pe and tube additional to those considered at the outset of the 
investigation and failed to show good cause or any ev identiary basis for the IA's determinations of 
dumping, injury, and causal link.  It is important to recall that it is customary to describe a product under investigation on a case-by-case basis, consider ing the particular characteristics of the product 
from the outset of the procedure, and to regard an anti-dumping investigation as a process in which 
the elements supporting the determination whethe r or not to impose a definitive measure are 
assembled gradually. 
21. We emphasize that the IA – not being an expert on the products at issue – is not familiar with 
their physical and technical characteristics and hence should in principle rely on the applicant's information.  Thus, the description of the product under investigation in th e initiating resolution is 
based primarily on information supplied by the applicant. WT/DS331/R 
Page C-16  
 
22. The preliminary resolution's express reference to pipes and tubes of up to six inches in 
diameter while the other characteristics considered at  the outset of the investigation remain unchanged 
does not constitute an alteration inco nsistent with the ADA.  As explained before, the ranges indicated 
in the initiating resolution were commercially interc hangeable with the rang es referred to in the 
preliminary resolution, and Mexico therefore consider s that the change made by the SE is consistent 
with the ADA. 
B. S
ECOND ADJUSTMENT TO THE DEFINITION OF THE PRODUCT UNDER INVESTIGATION  
23. As regards the second adjustment, we repeat th at in the final resolution the SE described the 
product under investigation on the basis of the fact s available, in accordance with the ADA, since the 
clarificatory adjustments regarding the product descr iption were made on the basis of the arguments 
and evidence in the administrativ e record, including the technical  and commercial interchangeability 
of standard and structural pipes and tubes. 
24. Turning to paragraph 103 of Guatemala's res ponses, we maintain our arguments relating to 
Article 2.1 and 2.4 of the ADA, as stated in all our  submissions to the Panel, and given that a fair 
comparison was made and sufficient, appropriate  elements were used for the purposes of the 
comparison, Guatemala's arguments relating to  Article 2.1 and 2.4 of the ADA are without 
foundation, and we therefore request that they be dismissed. 
25. According to the data and evidence presented by the parties, the main use of the pipes and 
tubes under investigation is the conduction of fluids, a use linked to the diameter and thickness of the 
pipes and tubes, and, regardless of the type of sheet used for their manufacture and the manufacturing 
standard, pipes and tubes in general of certa in diameters and thicknesses could be used for 
conduction.  The pipes and tubes described in the fi nal resolution could be used for conduction;  these 
are therefore not a new product but the same product,  and it is therefore proper that both should be 
included in the definition of the product under investigation. 
Mexico stresses that there is evidence of pip es and tubes being purchased in Mexico without 
hydrostatic testing that are either used for the con duction of fluids or under go ex-post testing and are 
marketed as pipes and tubes for conduction (as several enterprises do).1  The above evidence was 
supplied in Exhibit MEX-3.  There is further eviden ce in the administrative record that both types of 
pipe and tube are manufactured on the same production line, because the manufacturing process is identical.  Therefore, the adjustment to the definitio n was not specific to "structural" tubes and pipes 
but was generic to the pipes and tubes covered, in  technical and commercial terms, by the definition 
provided in the final resolution.  These are not different products, they are the one and the same from 
the commercial standpoint. 
 26. Thus, considering that for the purposes of the anti-dumping investigation the IA determined 
that the product was the same, there was no obligation yet again to state the essential facts given in the 
preliminary resolution and at the public hearing, as indicated in Mexico's responses 96, 97 and 98. 
27. Mexico also emphasizes once again that Tub ac had the opportunity to supply additional 
information in its replies to the requests for in formation made by the IA, which Mexico took into 
account in its preliminary and final resolutions and in  the on-the-spot investigation, the public hearing 
and the pleading stage. 
28. Consequently, given that structural and standard pipes and tubes are technically and 
commercially interchangeable;  that the exporter re mained silent when it had the opportunity to 
express its views;  that the ADA provides no guidance for defining a product under investigation;  and 
that an analysis was made of the specifications and technical characteristics of the product in order to 
                                                     
 
1 See Mexico's response to question 89(b) of the Panel. WT/DS331/R 
Page C-17 
 
 
define it properly, we consider that the SE acted in conformity with the ADA in defining the product 
at issue.  Mexico therefore requests that Guatem ala's arguments in this respect be dismissed. 
29. As regards Guatemala's Article 1 and 18.1 cl aims, Mexico considers that there was no 
violation of the provisions in question.  On th e other hand, assuming arguendo – and without in any 
way acknowledging – that action was taken at varian ce with these Articles, this would not necessarily 
imply that the measure would have to be revoked.  We consider that the Panel should leave it up to the 
respondent Member to choose the way in which its measure will be brought into conformity with the 
WTO Agreements.  According to Article 17.6(ii) of  the ADA, the provisions of the Agreement may 
be interpreted in various permissible ways, so that if one of these valid interpretations is followed, the 
ADA will not have been violated in any way.  Th us, assuming that Mexico was required to bring its 
measure into conformity, the Panel could assess, at th e appropriate procedural stage, whether Mexico 
had done so according to one of the permissible interpretations of the ADA. 
III. MEXICO APPLIED THE FACTS AVAILABLE IN CONFORMITY WITH THE 
ANTI-DUMPING AGREEMENT 
30. Guatemala basically contends that Mexico's IA improperly applied the facts available, 
arguing that there was no reason for the SE to reject information which posed no problems in the on-
the-spot verification and that, moreover, the exporte r was not informed that the final determination 
would be based on those facts.  In this connection,  Article 6.8 of the ADA provides that an IA may 
make use of the facts available in cases where:  (a) an interested party refuses access to necessary 
information;  (b) fails to provide such information within a reasonable period;  or (c)  significantly 
impedes the investigation. 
31. The Guatemalan exporter did not provide the necessary information within a reasonable 
period.  Moreover, the data submitted by the expo rter in the investigation cannot be considered 
reliable, complete, accurate and precise, because inconsistencies were found, in the on-the-spot 
investigation, with the data supplied by Tubac which made it practically impossible to use that 
information. 
32. Regarding Guatemala's response 103, in which Gu atemala's contends that "on that assumption 
Economía would be acting in a manner inconsistent  with Article 6.7 of the Agreement", Mexico 
agrees that Article 6.7 requires only the factual resu lts of the on-the-spot investigation to be made 
available to the parties, or the parties to be info rmed thereof, but does not require disclosure to the 
parties of the IA's findings regarding the process of th at investigation.  The detailed record refers only 
to what occurred during the on-the-spot investigation but not to the IA's evaluation and analysis of all 
the information verified, and does not in any way constitute the outcome of a thorough and exhaustive 
analysis of that information.  Consequently, Guat emala is wrong in taking the record to be "thorough 
and complete". 
33. In line with the above, if Tubac, knowing that there were discrepancies between the data it 
had submitted to the IA and those obtained in the on-t he-spot investigation, did nothing to clarify the 
information in question, it was logical for the IA to proceed on the basis of the facts available, as 
indicated in the detailed record of the on-the-spot investigation. 
34. There are consequently no grounds for contending that the SE did not act in conformity with 
Article 6.7 of the ADA, since there are no inc onsistencies between the final resolution and the 
outcome of the on-the-spot investigation as Tubac w as duly advised of the discrepancies in its data 
and was warned that it would be po ssible to use the facts available. 
35. It is not clear how Guatemala's Article 6.7 claims can be subsidiary to its Article 6.8 claims.  
Article 6.7 of the ADA sets out the procedure to be followed in on-the-spot in vestigations and refers 
to Annex I to the ADA.  We do not see the basis for Guatemala's contention that the IA violated that WT/DS331/R 
Page C-18  
 
provision, since it obtained the consent of the in terested enterprises, notified the Guatemalan 
Government, followed the procedure in Annex I to th e Agreement, made the results available to the 
enterprises, and provided all the factual information stemming from the on-the-spot investigation.  We 
therefore fail to see how a breach of the ADA can be deduced therefrom. 
36. As regards Guatemala's response 104, no applica tion from Tubac to consult the confidential 
information was found by Mexico in the administrative  record, but there is a reason for this.  Indeed, 
the administrative practice followed by Mexico's IA in recent years – contrary to what Guatemala 
contends – was to incorporate such documents eith er in the administrative record or in parallel 
records, the latter being under the independent contro l of the director of whatever department might 
be in charge of the investigation.  This was because it was not considered necessary for these 
documents to be in the administrative record.  It is unfortunately extremely difficult to trace such 
documents because as a result of restructuring, staf f moves and changes in administrative practice, 
many of these parallel records are impossible to locate.  Mexico therefore did not present these 
documents as evidence.  Nevertheless, the Archiv es department, which ope rates independently, has 
always maintained the same administrative practice and has therefore always used documents such as 
the one that was submitted in order to  control access to the records.  He nce, considering that there is a 
registration for access by Tubac's legal representative, the excuse of an "inv oluntary error" is not 
valid. 
37. Furthermore, Guatemala has submitted no eviden ce that Tubac's representative was denied 
access to the confidential record and even asserts th at access was never requested.  As stated earlier, 
since access as such is argued to be irrelevant, it can be inferred that Guatemala withdraws its claim 
that the SE undermined the exporter's ability to de fend itself against the allegations of dumping, and 
we therefore respectfully request that  the Panel deem this to be so. 
38. Assuming – without acknowledging – that Tubac never did request access to the confidential 
version of the record, it could not then claim that its right to defence was being undermined, since the 
result would have been that Tubac did not exercise a right to which it was entitled.  In fact, Tubac 
always did have the right to access the confidential record, and we cannot assume that the IA denied 
access if the exporter never requested it. 
39. Reverting to Guatemala's argument that the expor ter was not notified that its information had 
been rejected, we believe it important to refer to Mexico's explanation regarding the content of the 
record of the verification visit, because that is wh ere the exporter was advised of the use of the facts 
available. 
40. As regards Guatemala's response 105, the probl ems referred to were conveyed to Tubac's 
representatives, as emerges from the re cord of the verification visit, and the exporters failed to take 
any remedial measures to bring their data into c onformity so that the IA could make use of the 
information. 
41. We emphasize that since Annex II to and Article  6.9 of the ADA contain separate obligations, 
it cannot be taken that there was a cumulative breac h of both provisions.  We  would add that Tubac 
did not provide access to the necessary information, and even less did it provide information within a 
reasonable period, which significantly impeded the investigation. 
42. Given that Article 6.8 of the ADA specifies that  the IA may rely on the facts available to 
calculate the margins of dumping applicable to exporters that failed to provide the necessary 
information within a reasonable period and significa ntly impeded the investigation, and since Tubac 
fulfilled the negative criteria in the second and third pr ovisions of the Article, the IA had to make use 
of the facts available, in keeping with the final report of the Panel in Egypt – Steel Rebar , pursuant to 
the ADA, and in accordance with the WTO criteria. WT/DS331/R 
Page C-19 
 
 
IV. CLAIMS RELATING TO THE DETERMINATION OF INJURY 
A. CHOICE OF THE PERIOD OF INVESTIGATION  
43. We strongly emphasize that the rice case was b ased on entirely different considerations from 
those of the present case, and hence Guatemala' s assertion is without foundation.  Since the 
assumptions are entirely different and Guatemala has not provided any additional arguments, it has 
failed to make a prima facie  case of violation by Mexico in the terms indicated. 
44. The reasons why Guatemala does not establish the same prima facie  case as that made by the 
US in the long-grain white rice dispute are as follo ws:  (a) In the rice case, the remoteness of the 
period of investigation was 15 months compared to 8 months in the present case, so that it cannot be 
said that the data relating to the investigation peri od are no longer relevant;  (b) in the rice case, the 
SE did not conduct as comprehensive an analysis of the information presented with the initiating 
application as that carried out in the Guatemalan pi pes and tubes case;  (c) in the rice case there was 
no request for information, a matter which takes time and therefore adds to the remoteness of the 
investigation period;  (d) in the rice case, the AB fo und that Mexico had acted inconsistently with the 
ADA in that it had accepted the period of investigati on proposed by the applicants, presumably in the 
knowledge that the period in question was suggested  because it reflected the period of highest export 
penetration.  The circumstances of the rice case are therefore different from those of the present case, 
and consequently Guatemala has not made the same prima facie  case as the US did. 
45. Likewise, Guatemala once again asserts without evidence that the period of investigation was 
not was not as close as practicable.  We request that the Panel dismiss this allegation, since Guatemala 
has not established a prima facie  case of violation and a panel cannot rule in favour of a complainant 
that fails to substantiate its claim. 
46. Solely for the purpose of making matters clearer fo r the Panel in regard to its question why it 
should consider that Tubac did not object to the c hoice of the period of investigation, it should be 
noted that, contrary to what occurred in the Mexico – Rice  case, Tubac had no objection to the choice 
made and requested only that the IA clarify that the investigation period did span the period 1 July to 
31 December 2000.  Such a request should be re garded as consent on the part of the exporter. 
47. The fact that Tubac never did object to the peri od of investigation should also be underscored.  
In our view, it would be appropriate for the Panel to  take this into account, because an IA is required 
to evaluate all the elements arising during the course of an anti-dumping investigation and to issue its determination on that basis.  Thus, if an interested  party tacitly or expressly accepts a fact or gives its 
consent thereto, Mexico considers that the most a ppropriate course is to consider such acceptance or 
consent as a relevant element. 
48. Various Articles of the ADA give preference to first-hand information, which is precisely that 
provided by the parties (see paragraphs 7.238 of th e final report of the Panel and 288 and  289 of the 
AB report in Mexico - Rice ).  The fact that acceptance by an interested party is an element that cannot 
be challenged must therefore be taken into account.  According to the general principles of law, this 
no reason to disregard a party's consent.  Since there was tacit agreement to the choice of the 
investigation period, the IA did not see any reason to change it. 
49. Paragraph 164 of Mexico's firs t written submission clearly shows that Guatemala's allegation 
regarding the possibility of establishing a more recent  period of investigation is without foundation, 
and details the chronology of events as follows:  (a) The application for initiation was filed on 
22 May 2001 with a proposed investigation period spanning 1 July to 31 December 2000;  (b) on 
11 June 2001, the applicant was requested to provide the technical information necessary for 
determining whether or not to initia te the investigation;  (c) on 9 Ju ly 2001, the applicant responded to 
that request;  (d) on 9 July 2001, the IA began its an alysis of the new information, which took a long WT/DS331/R 
Page C-20  
 
time;  and (e) on 24 August 2001, th e initiating resolution was published.  Such circumstances were 
genuine impediments to the use of a more recent peri od of investigation.  If we look at the sequence 
of events, the delay was perfectly reasonable.  The investigation period was indeed as close as 
practicable to the initiation date.  Furthermore, the time-span between that period and the initiation 
does not constitute a delay such as to cast doubt on th e relevance of the investigation period.  If the 
remoteness of data poses a problem of potential ir relevance of the information, it is necessary to 
demonstrate on a case-by-case basis that such data cannot be used .  Guatemala has not provided the 
slightest evidence in this respect and has therefore not established a prima facie  case of violation, nor 
has it substantiated its allegation that the applican t could have presented more recent information. 
50. The ADA does not require coincidence in time be tween the investigation and the data on 
which it is based.  The period of investigation need not necessarily immediately precede initiation.  
On the contrary, it is necessary, on the basis of a p ast period as close as practicable to the initiation, to 
substantiate that dumping continues to cause injury.  This of necessity implies a case-by-case analysis 
in order to determine whether the investigation pe riod is relevant, regardi ng which Guatemala never 
provided the slightest argument. 
With all due respect, we would consider it most unfor tunate for the dispute settlement system if this 
Panel were to find a prima facie  case of violation in the absence of the slightest supporting evidence. 
 51. Concerning Guatemala's response 23, stating th at the applicant could have submitted more 
up-to-date injury data, Guatemala fails to mention th e limited nature of the information provided by 
Hylsa and the context in which it was submitted.  It is wrong to contend that the applicant supplied the 
data "without a request from Economía".  The inform ation was submitted in response to a request for 
information from the IA concerning the a pplicant's allegation of threat of injury
, and hence the data 
did not pertain to material injury, which is the subject -matter of the investigation.  In other words, the 
authority did make a request but the data provided by the applicant did not constitute proof that it 
could have presented more up-to-date injury informati on, since the data related to threat of injury. 
52. In response to that request for information, Hylsa supplied, for the period January-June 2001, 
only limited information in terms of the SE's request.  For example, it did not provide any forecasts of 
the potential impact of the imports under investigation on the indicators given for the period comparable to the one under investigation (six -month period July-December 2001), and confined 
itself to supplying a few indicators, without the corresponding estimates. 
53. However, Hylsa explained that it provided da ta for first six months of 2001 in order to 
substantiate and support its argu ment concerning the potential threat of injury, inasmuch as the 
information confirmed the damaging effects of the imports under investigation on indicators such as 
output and domestic sales and prices, which, accord ing to Hylsa, had dropped by 19 per cent, 11 per 
cent and 15 per cent, respectively.  These elements, in  addition to confirming that the IA had not been 
"selective" in defining the period of investiga tion, show why this information, limited as it was 
without any estimates for a comparable period subsequent to the investigation period, did not 
constitute sufficient grounds for changing the period of  injury analysis, the more so since no domestic 
industry data or information concerning the imports under investigation were provided. 
54. Guatemala denies that the period of investigation was as close as practicable and does not 
specify the grounds for its allegation.  Therefore, once US – Rice  has been demonstrated to be 
fundamentally different from the present case, it cannot validly be argued that Guatemala has 
established a prima facie  case of violation. 
55. In its response 28, Guatemala states that if an investigation period is not as close as 
practicable, the evidence is no longer positive.  We consider that in the case referred to above, the AB 
found that "positive" evidence is that which is releva nt and important to the matter to be decided.  
More recent data are therefore likely to provide better indications, but remoteness of the period of WT/DS331/R 
Page C-21 
 
 
investigation is not per se  a violation of Article 3.1 of the ADA.  Guatemala merely makes an 
assertion without any evidence in support of its argument.  It is difficult to see how this could constitute a prima facie  case of violation of the ADA. 
B. C
HOICE OF HALF -YEAR PERIODS FOR THE PURPOSES OF INJURY ANALYSIS  
56. We consider that the use of comparable periods  for the purposes of injury analysis eliminated 
any potential distortions, and the SE was thus able to  correctly compare the information relating to the 
investigation period with that pertaining to previo us comparable periods.  A reading of the final 
resolution shows that consumption of the prod uct under investigation basically depends on 
performance in the construction and manufacturing sect ors (which very probably depends to a large 
extent on growth in expenditure and investment in  the domestic economy).  It is therefore difficult to 
foresee a pre-defined pattern (for example in agricu ltural products, including rice) for the second half-
year period of each year.  In order to avoid seasonal or cyclical tendencies or fluctuations in economic 
indicators (such as price index or GDP), it is cust omary to compare identical periods which are, 
moreover, consistent with th e period of investigation. 
57. Thus, if the SE had found that the indicators for July-December 1998, 1999 and 2000 showed 
a negative trend in the domestic industry but had be en identical (with no variations), a determination 
of injury would not have been made, even if the period from July to December had been less 
favourable for the domestic industry than January to June. 
58. Regarding the level of import pe netration for each of the six-month periods of each year, it is 
not right in Mexico's view to say that the July-D ecember period of each year is that of maximum 
penetration.  We repeat that it is necessary to  take a thorough look at the resolutions of the 
investigation, which show that dum ped imports were definitely on the rise, including after a purging 
of data in favour of more accura te information.  Hence there was no bias in the "selection" of half-
year periods for the purposes of injury analysis.  In Mexico's opinion, Guatemala has no objective 
grounds for suggesting that the periods were "selec ted".  This would be tantamount to assuming that 
the SE knew beforehand that, once it had obtained the import declarations ( pedimentos ) and invoices 
for Guatemala's imports for the six-month periods of  the three years under analysis, the results of the 
analysis would reveal a significant growth in imports, or that the outcome of all the inquiries conducted throughout the course of the investigation would confirm injury to the domestic industry, 
which is practically impossible. 
59. Confirmation of Guatemala's lack of evidence can be found in response 40, in which 
Guatemala acknowledges that it has no data for perfo rmance of the industry or imports in the first 
six months of each year used for the purposes of in jury analysis.  In othe r words, it does not know 
whether there actually was higher or lower import pe netration and hence whether or not the analysis 
was objective in this respect.  Therefore, it has no elements to substantiate its claim and has not established a prima facie  case of violation by Mexico. 
C. 
DOMESTIC INDUSTRY  
60. According to Article 4.1 of the ADA, there are two ways of complying with the obligation to 
examine the domestic industry:  by examining the producers as a whole, or by examining a significant portion of the producers. 
61. Article 5.4 of the ADA provides guidance for determining whether the domestic producers as 
a whole that apply for initiation of an investigation can be considered sufficient for the application to 
be regarded as having been made "b y or on behalf of the domestic industry".  Thus, if an application 
is filed by a domestic producer accounting for more  than 50 per cent of total production expressing 
either support for or opposition to th e application, the investigation shall be considered to have been WT/DS331/R 
Page C-22  
 
requested by the domestic industry, and the examin ation for the purposes of injury determination can 
therefore focus exclusively on that producer without this being regarded as a lack of objectivity. 
62. Guatemala appears to contend that under Article  4.1 of the ADA, once it has been determined 
whether the producers as a whole or a significant porti on thereof are to be regarded as the domestic 
industry, the IA should strictly confine itself to the data concerning the producers as a whole or, as the 
case may be, the significant portion of the producers.  In fact, there is nothing in the ADA to support 
Guatemala's interpretation.  Such a rigid approach  would actually imply that if the domestic industry 
were made up of a significant portion of the pro ducers, and data were subsequently obtained 
concerning the domestic industry as a whole, the additi onal data would have to be disregarded, which 
is unacceptable. 
D. 
VOLUME AND PRICE EFFECT OF TH E IMPORTS UNDER INVESTIGATION  
63. Guatemala starts from the premise that, as far as it understands, the SE had two sources for 
obtaining positive evidence on the volume of imports, na mely the importers and customs, and that by 
opting not to use the second source, Mexico acted in a manner inconsistent with the ADA, as the 
importers did not send all the information requested by the IA.  We emphasize that it is wrong to say 
that the importers alone were asked by the SE to pr ovide data on the volume of imports, because the 
SE also requested documents from customs agents.  It is not true that the IA used only one source of 
information and disregarded the other available source. 
64. In an investigation, the IA has to find the mo st appropriate way of collecting information.  
One of the key factors in this process is sound judgement on the part of the IA, which has to 
determine whether certain decisions are appropriate in the light of their lik ely consequences, relying 
for this on its practical experience. 
65. In this case, the IA decided not to request in formation from the customs authorities, because it 
knew from long-standing experience that it would take too long to receive a reply, which would have 
affected the timeframe of the investigation and entail ed a potential risk of violation of Article 5.10 of 
the ADA.  As an example, documents relating to the case involving brushes from China were 
submitted as Annex MEX-4.2  Another example is the case involving valves from the US.  The IA 
therefore considered it appropriate to co nsult both importers and customs agents. 
66. It should also be noted that the IA did not u se a range of prices to estimate the volume of 
Guatemalan pipes and tubes under investigation, bu t based its estimates on the percentages of such 
pipes and tubes in Guatemala's total imports unde r the relevant tariff headings.  This was done 
because the documentation available (import declarations ( pedimentos ) with their corresponding 
invoices) covered volumes representative of the country's total imports. 
67. In order to estimate  the volume of pipes and tubes under investigation, the IA applied the 
minimum and maximum price method for imports of pipes and tubes from countries other than 
Guatemala.  Based on the documents at its disposal, the IA considered that approach to be the most 
reasonable. 
68. Regarding response 79 by Guatemala, Mexico i ndicated in its own response 79 that the way 
in which the average prices of subject imports fro m Guatemala were calculated was different from the 
way in which the price of those imports was comp ared with the average domestic sales price of like 
domestic pipes and tubes.  First, the average pr ice of Guatemalan imports was calculated in the 
manner explained in Mexico's responses 74 and 79, which clearly show that the total volume and 
                                                      
2 The customs authorities were asked to provide im port declarations with the corresponding invoices, 
but it took about three months (sometimes even longer depending on the relevant department's workload) for the 
Mexican authority to receive 30 pedimentos  along with the invoices. WT/DS331/R 
Page C-23 
 
 
value of the Guatemalan pipes and tubes under in vestigation were considered, not 17 per cent as 
erroneously claimed by Guatemala;  and secondly, th e SE added all the costs to the average price of 
Guatemalan imports in order to place that price at a level at which it could be properly compared with 
the domestic price .  For that purpose, the point of entry price for subject imports from Guatemala 
under tariff headings 7306.30.01 and 7306.30.99 was augmented by the corresponding tariff and 
customs duty, and the cost of transporting the im ported product to the importer's warehouse during the 
investigation period . 
69. However, the cost of transporting the imported goods was calculated on the basis of 
information provided by the importe rs reported by SICMEX, which responded to the IA's request for 
information.  The importers that supplied informa tion on the cost of transporting the pipes and tubes 
under investigation from the port of entry into the domestic market to their warehouses accounted for 
17 per cent of the subject imports from Guatemala.  Consequently, Mexico repeats that Guatemala's 
assertion on this point is unfounded. 
70. Regarding response 80 by Guatemala, it is important to make it clear that, strictly speaking, it 
is practically impossible for many enterprises to send the IA information at the level of disaggregation 
specified by Guatemala, as they would have to  have information enabling close scrutiny of the 
behaviour and impact of the sales price of a single product on the overall profits of a multi-product 
enterprise. 
71. Mexico requires domestic producers to provide specific financial information (profits, costs 
and expenditure) in respect of the like product, with  a breakdown of the profits, costs and expenditure 
associated with other products manufactured by the enterprise.  This is done by means of an annex 
entitled " Estado de Costos, Ventas y Utilidades de la Mercancía Nacional" (Statement of Costs, Sales 
and Profits for the Domestic Product).  As the Panel noted at the first substantive meeting, this level 
of disaggregation requires an enormous effort on the pa rt of the applicant enterprises, in order to make 
the necessary adjustments for sales costs and operating expenditure incurred exclusively in respect of 
the like product. 
72. Concerning Guatemala's argument that the SE failed to analyse the effect of costs and export 
sales on the applicant enterprise's profits, we repeat  that the main factors in the downward trend of 
operating profits were the reduction in total sales income and the increase in total operating 
expenditure, and that is why our first written subm ission makes no reference to the increase in costs 
and consequent adverse impact on ope rating profits, as is indicated by Guatemala.  In other words, 
during the period July-December 2000, the sales costs of Hylsa DAT declined by 13.2 per cent, and 
this led the SE to consider that the behaviour of sal es costs was not a factor influencing the decline in 
profits over the period in question. 
V. ARGUMENTS WITH RESPECT TO CLAIMS RELATING TO PROCEDURAL 
ASPECTS 
73. As regards Mexico's alleged violations of  Article 6.5, 6.5.1 and 6.5.2 of the ADA, 
Guatemala's responses state the following:  (a) unde r the ADA, the mechanism for providing access to 
confidential information is the submission of non-confidential summaries;  (b) Tubac's legal 
representative was unable to satisfy the conditions laid down by Mexican legislation for accessing 
confidential information;  and (c) notwithstanding the above, the question of whether or not Tubac 
accessed the confidential informati on is irrelevant for the purposes of its claims under Article 6.5 of 
the ADA.  
74. In this connection, we note a contradiction in  Guatemala's statements concerning Article 6.5 
of the ADA.  Indeed, on the one hand, by virtue of its rights under the ADA, it claims that public summaries are the mechanism that can be used fo r accessing confidential information, while on the WT/DS331/R 
Page C-24  
 
other hand, it states that the issue of access to confid ential information is irrelevant for the purposes of 
its claims under Article 6.5 because that Ar ticle does not govern access to information. 
75. It is strange that Guatemala should claim that it was not granted access to the content of the 
confidential information and go on to state that the issue of access to confidential information is 
irrelevant since, irrespective of the question of access, Mexico failed to comply with its obligations 
under Article 6.5 of the ADA. 
76. We have already stated in our rebuttal that, in  line with the criterion applied by the Panel in 
Argentina – Ceramic Tiles
3, the purpose of Articles 6.5 and 6.5.1 of the ADA is to provide a 
mechanism to facilitate ascertainment of the content of confidential information by the parties, while 
at the same time safeguarding the interests of the parties that supply such confidential data. 
77. Thus, given that the primary objective is that the parties should be able to see information 
supplied on a confidential basis, Mexico considers that  the most appropriate approach is to focus on 
determining whether the rules laid down in Me xican legislation concerning access to confidential 
information constitute an adequate mechanism to  enable the exporter to see that information. 
78. In that connection, and assuming, for the sake of argument, that the record of the investigation 
on standard pipes and tubes contained no public summa ries of any data submitted by the applicant (a 
situation which, as such, did not occur, as is pointed  out below), the obligation under Article 6.5 of the 
ADA would in any event be satisfied since, as e xplained in our written submissions, the Mexican 
legal system gives interested parti es access to all confidential information . 
79. Furthermore, the shift in Guatemala's line of argument, whereby it now claims that access as 
such is irrelevant, carries with it an implicit ac knowledgement that it was in fact possible for the 
Guatemalan exporter to consult all the confidential info rmation, at any point in the investigation, if it 
saw fit.  Thus, Guatemala accepts that Tubac's defence rights were not undermined, so that any 
argument to that effect is without foundation.   
80. Concerning the question whether Mexican legisla tion on access to confidential information is 
sufficient to make known the content of such informa tion to the parties, it is illogical that Guatemala 
should claim that the Mexican system is not suffi cient for that purpose, when it acknowledges in its 
own responses and in the statement by Ms Mejía th at no such access was even requested.  It appears 
to be claiming that the Mexican system does not adequately comply with the ADA because Tubac had 
no access to confidential information, even though it acknowledges that access was never requested.  
Furthermore, it maintains that this is a viol ation of the ADA, attributable to the IA.  
81. If an interested party is entitled to exercise a right and fails to do so, the blame for any 
potential prejudice lies solely with that interested party.  Thus, the consequence of not requesting 
access is solely and exclusively attributable to Tu bac.  Moreover, Guatemala itself forfeited that 
argument when it stated that access to confidential in formation is irrelevant as such for the purposes 
of its claims.  For these reasons, we consider that Guatemala's claims are unfounded. 
82. It is also untrue that the SE did not request pub lic summaries from the applicant, since, as was 
shown in paragraph 209 of our rebu ttal, all the submissions of the parties, including those of Hylsa, 
were accompanied by their public versions, wh ich facilitated a reasonabl e understanding of the 
confidential data.  Thus, Tubac did have the elem ents it needed to ascertain the content of the 
confidential information and the possibility of requ esting access in case it needed any of the data or 
information contained therein.  The IA did not de ny Tubac the possibility of seeing the information it 
needed for its defence since – we repeat – public  summaries existed of all confidential information 
and it was possible to access the confidential records themselves.   
                                                      
3 Paragraph 6.38. WT/DS331/R 
Page C-25 
 
 
83. Likewise, concerning confidential treatment for Hylsa's submission of 17 September 2002 
and the alleged lack of a public summary, contrary to what is asserted by Guatemala, a public summary of that submission did exist.  In fact, as is mentioned in our rebuttal, Hylsa sent that 
summary to the legal representative of Tubac.  We  therefore request the Panel to dismiss this 
argument by Guatemala. 
84. Thus, given the discrepancies and erroneous assertions in Guatemala's claims, we request the 
Panel to dismiss those claims in the light of the re buttals contained herein to each of them, inasmuch 
as they constitute neither objective evidence nor a prima facie  case of violation by the SE.