UNITED STATES – CERTAIN METHODOLOGIES AND THEIR APPLICATION TO ANTI-DUMPING PROCEEDINGS INVOLVING CHINA
Document: Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes Award of the Arbitrator Simon Farbenbloom
Date: 19 January 2018
Document codes: WT/DS471/RPT
Complainant: China
Respondent: U.S.
Third parties: Brazil, Canada, EU, India, Japan, South Korea, Norway, Russia, Saudi Arabia, Ukraine, Vietnam, Turkey, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. VI:2  GATT 1994Art. 6.10, 9.2, 9.4, 2.4.2, 6.8, Annex II, 6.1  Anti-dumping

UNITED STATES – CERTAIN METHODOLOGIES AND THEIR APPLICATION
TO ANTI-DUMPING PROCEEDINGS INVOLVING CHINA
Arbitration
under Article 21.3(c) of the
Understanding on Rules and Procedures
Governing the Settlement of Disputes

Award of the Arbitrator
Simon Farbenbloom

*NOTE CONCERNING DOCUMENT SYMBOL: As of 13 April 2017, for ease of reference, awards of
arbitrators under Article 21.3(c) of the DSU bear the symbol WT/DS[number]/RPT.

ABBREVIATIONS USED IN THIS AWARD
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994
Appellate Body Report Appellate Body Report, ,
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
NME non-market economy
Panel Report Panel Report, ,
Section 123 of the URAA Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 4838,
codified as United States Code, Title 19, Section 3533 (Exhibit USA-1)
Section 129 of the URAA Uruguay Round Agreements Act, Public Law No. 103-465, 108 Stat. 4838,
codified as United States Code, Title 19, Section 3538 (Exhibit USA-2)
SRP Single Rate Presumption
USDOC United States Department of Commerce
USTR United States Trade Representative
W-T weighted average-to-transaction
WTO
URAA Uruguay Round Agreements Act

CASES CITED IN THIS AWARD
Short title Full case title and citation
Brazil – Retreaded Tyres
(Article 21.3(c))
Award of the Arbitrator, Brazil – Measures Affecting Imports of Retreaded
Tyres – Arbitration under Article 21.3(c) of the DSU, WT/DS332/16,
29 August 2008, DSR 2008:XX, p. 8581
Canada – Pharmaceutical
Patents (Article 21.3(c))
Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical
Products – Arbitration under Article 21.3(c) of the DSU, WT/DS114/13,
18 August 2000, DSR 2002:I, p. 3
Chile – Price Band System
(Article 21.3(c))
Award of the Arbitrator, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) of
the DSU, WT/DS207/13, 17 March 2003, DSR 2003:III, p. 1237
China – GOES (Article 21.3(c)) Award of the Arbitrator, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States –
Arbitration under Article 21.3(c) of the DSU, WT/DS414/12, 3 May 2013,
DSR 2013:IV, p. 1495
Colombia – Ports of Entry
(Article 21.3(c))
Award of the Arbitrator, Colombia – Indicative Prices and Restrictions on
Ports of Entry – Arbitration under Article 21.3(c) of the DSU, WT/DS366/13,
2 October 2009, DSR 2009:IX, p. 3819
Colombia – Textiles
(Article 21.3(c))
Award of the Arbitrator, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear – Arbitration under Article 21.3(c) of the
DSU, WT/DS461/13, 15 November 2016
EC – Bananas III
(Article 21.3(c))
Award of the Arbitrator, European Communities – Regime for the
Importation, Sale and Distribution of Bananas – Arbitration under Article
21.3(c) of the DSU, WT/DS27/15, 7 January 1998, DSR 1998:I, p. 3
EC – Chicken Cuts
(Article 21.3(c))
Award of the Arbitrator, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts – Arbitration under Article 21.3(c) of the DSU,
WT/DS269/13, WT/DS286/15, 20 February 2006
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Hormones
(Article 21.3(c))
Award of the Arbitrator, EC Measures Concerning Meat and Meat Products
(Hormones) – Arbitration under Article 21.3(c) of the DSU, WT/DS26/15,
WT/DS48/13, 29 May 1998, DSR 1998:V, p. 1833
EC – Tariff Preferences
(Article 21.3(c))
Award of the Arbitrator, European Communities – Conditions for the Granting
of Tariff Preferences to Developing Countries – Arbitration under Article
21.3(c) of the DSU, WT/DS246/14, 20 September 2004, DSR 2004:IX, p.
4313
Japan – DRAMs (Korea)
(Article 21.3(c))
Award of the Arbitrator, Japan – Countervailing Duties on Dynamic Random
Access Memories from Korea – Arbitration under Article 21.3(c) of the DSU,
WT/DS336/16, 5 May 2008, DSR 2008:XX, p. 8553
Peru – Agricultural Products
(Article 21.3(c))
Award of the Arbitrator, Peru – Additional Duty on Imports of Certain
Agricultural Products – Arbitration under Article 21.3(c) of the DSU,
WT/DS457/15, 16 December 2015
US – 1916 Act (Article 21.3(c)) Award of the Arbitrator, United States – Anti-Dumping Act of 1916 –
Arbitration under Article 21.3(c) of the DSU, WT/DS136/11, WT/DS162/14,
28 February 2001, DSR 2001:V, p. 2017
US – COOL (Article 21.3(c)) Award of the Arbitrator, United States – Certain Country of Origin Labelling
(COOL) Requirements – Arbitration under Article 21.3(c) of the DSU,
WT/DS384/24, WT/DS386/23, 4 December 2012, DSR 2012:XIII, p. 7173
US – Countervailing Measures
(China) (Article 21.3(c))
Award of the Arbitrator, United States – Countervailing Duty Measures on
Certain Products from China – Arbitration under Article 21.3(c) of the DSU,
WT/DS437/16, 9 October 2015
US – Offset Act (Byrd
Amendment) (Article 21.3(c))
Award of the Arbitrator, United States – Continued Dumping and Subsidy
Offset Act of 2000 – Arbitration under Article 21.3(c) of the DSU,
WT/DS217/14, WT/DS234/22, 13 June 2003, DSR 2003:III, p. 1163

Short title Full case title and citation
US – Oil Country Tubular
Goods Sunset Reviews
(Article 21.3(c))
Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina – Arbitration under
Article 21.3(c) of the DSU, WT/DS268/12, 7 June 2005, DSR 2005:XXIII,
p. 11619
US – Anti-Dumping
Methodologies (China)
Appellate Body Report, , WT/DS471/AB/R
and Add.1, adopted 22 May 2017
US – Anti-Dumping
Methodologies (China)
Panel Report, , WT/DS471/R and Add.1, adopted
22 May 2017, as modified by Appellate Body Report WT/DS471/AB/R
US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp
from Viet Nam, WT/DS429/R and Add.1, adopted 22 April 2015, upheld by
Appellate Body Report WT/DS429/AB/R
US – Shrimp II (Viet Nam)
(Article 21.3(c))
Award of the Arbitrator, United States – Anti-Dumping Measures on Certain
Shrimp from Viet Nam – Arbitration under Article 21.3(c) of the DSU,
WT/DS429/12, 15 December 2015
US – Shrimp and Sawblades Panel Report, United States – Anti-Dumping Measures on Certain Shrimp and
Diamond Sawblades from China, WT/DS422/R and Add.1, adopted 23 July
2012, DSR 2012:XIII, p. 7109
US – Stainless Steel (Mexico)
(Article 21.3(c))
Award of the Arbitrator, United States – Final Anti-Dumping Measures on
Stainless Steel from Mexico – Arbitration under Article 21.3(c) of the DSU,
WT/DS344/15, 31 October 2008, DSR 2008:XX, p. 8619
US – Washing Machines
(Article 21.3(c))
Award of the Arbitrator, United States – Anti-Dumping and Countervailing
Measures on Large Residential Washers from Korea – Arbitration under
Article 21.3(c) of the DSU, WT/DS464/RPT, 13 April 2017

AWARD OF THE ARBITRATOR

Parties:

China
United States

Arbitrator:

Simon Farbenbloom

INTRODUCTION 1
On 22 May 2017 , the Dispute Settlement Body (DSB) adopted the Appellate Body Report 1 1.1.
and the Panel Report 2 in . This dispute concerns China's challenge of certain
methodologies used by the United States in anti-dumping investigations. The Panel found certain
of the United States' measures at issue to be inconsistent "as such" or "as applied" with various
provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (Anti-Dumping Agreement) and the General Agreement on Tariffs and Trade 1994
(GATT 1994) . These Panel findings were not appealed by the United States and , in ruling on
China's appeal, the Appellate Body did not make any additional findings of inconsistency with the
covered agreements.
At the meeting of the DSB held on 19 June 2017, the United States indicated its intention to 1.2.
implement the DSB's recommendations and rulings in this dispute, and stated that it would need a
reasonable period of time in which to do so.3 On 11 July 2017, the United States and China sent a
joint letter to the Chairman of the DSB. In their letter, the United States and China indicated that,
in order to allow sufficient time to discuss a mutually agreed period of time for implementation ,
they had agreed that, in the event that an arbitration was requested under Article 21.3(c) of the
Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU), it should be
completed no later than 60 days after the date of the appointment of an arbitrator, unless the
arbitrator, following consultation with the parties, were to consider that additional time was
required. In the same letter, the parties also confirmed that any award of the arbitr ator, including
an award not made within 90 days after the date of the DSB's recommendations and rulings in this
dispute, would be deemed to be an award of the arbitrator for purposes of Article 21.3(c) of the
DSU in determining the reasonable period of ti me for the United States to implement the
recommendations and rulings of the DSB.4
By letter dated 17 October 2017 , China informed the DSB that it had engaged in 1.3.
consultations with the United States on the reasonable period of time for implementation pursuant
to Article 21.3(b) of the DSU , but that those consultations had not resulted in an agreement .
China therefore requested that th e reasonable period of time be determined through binding
arbitration pursuant to Article 21.3(c) of the DSU. China expressed its intention to be gin
discussions with the United States with a view to reaching agreement on an arbitrator.5
By letter dated 30 October 2017 , China informed the Director -General of the World Trade 1.4.
Organization (WTO) that it had engaged in consultations with the United States but that those
consultations had not led to mutual agreement on an arbitrator . China therefore requested the
Director-General to appoint an arbitrator pursuant to footnote 12 to Article 21.3(c) of the DSU.

1 WT/DS471/AB/R.
2 WT/DS471/R.
3 WT/DSB/M/398, para. 2.7.
4 WT/DS471/13.
5 WT/DS471/14.

After consulting with the parties, t he Director -General appointed me as the Arbitrator on 1.5.
7 November 2017.6 On the same day, I informed the parties of my acceptance of the appointment
as Arbitrator and transmitted to them a Working Schedule identifying the dates for the filing of the
parties' written submissions and the date for the hearing.7
On 9 November 2017, the United States sent a letter requesting that the due date for its 1.6.
written submission be extended by one week , in light of pre-existing scheduli ng constraints
affecting key members of its litigation team, as well as the need for cooperation between two
federal agencies, namely, the United States Trade Representative (USTR) and the United States
Department of Commerce (USDOC). On the same day , I invited China to comment on the
United States' letter. On 10 November 2017, China sent a letter objecting to the United States'
request. China argued that the reasons given by the United States did not justify the requested
extension and that such extension would cause undue delay in this arbitration. However, in the
event that an extension of the due date was granted for the United States' written submission,
China requested that a similar extension be granted for its written submission.
Having taken account of the United States' request and China's comments, and in view of a 1.7.
number of meetings and other activities taking place in early December 2017, on
10 November 2017, I sent a revised Working Schedule to the parties . In accordance with the
revised Working Schedule, t he United States filed its written submission on 17 November 2017,
and China filed its written submission on 27 November 2017. The parties elaborated on their
positions and answered my questions at the hearing held on 8 December 2017. At the hearing,
I indicated that every effort would be made to issue the Award in January 2018. The parties
expressed no objection.
ARGUMENTS OF THE PARTIES 2
Annexes A and B to this Award contain the executive summaries of the parties' submissions. 2.1.
Certain details of the parties' arguments are further described below, insofar as they are relevant
to my analysis.
REASONABLE PERIOD OF TIME 3
3.1 Introduction
I have been appointed by the Director -General, at the request of China, to determine the 3.1.
reasonable period of time for the United States to implement the recommendations and rulings of
the DSB in United States – Certain Methodologies and Their Application to Anti -Dumping
Proceedings Involving China.
The United States considers that I should determine that 24 months is a reasonable period of 3.2.
time for the United States to implement the DSB's recommendations and rulings in this dispute.8
In China's view, the United States' proposal for 24 months "far exceeds what is reasonable under
the circumstances" of this dispute9, and submits that a period of 6 months is a reasonable period
of time for implementation.10
In this section, I begin by setting out the mandate of an arbitrator under Article 21.3(c) of 3.3.
the DSU. I then identify the specific measures to be brought into conformity with the
recommendations and rulings of the DSB. Finally, I examine the factors affecting the
determination of the reasonable period of time in this dispute, including the steps in the
implementation process, as well as circumstances particular to this dispute that the United States
has asked me to take into account in reaching my determination.

6 WT/DS471/15.
7 The Working Schedule of 7 November 2017 indicated that the written submission of the United States
should be filed on 14 November 2017; the written submission of China should be filed on 21 November 2017;
and the hearing would be held on 27 November 2017.
8 United States' submission, paras. 9 and 55.
9 China's submission, para. 7.
10 China's submission, paras. 1 and 28.

3.2 Mandate of the arbitrator under Article 21.3(c) of the DSU
Article 21.3 of the DSU provides, in relevant part: 3.4.
If it is impracticable to comply immediately with the recommendations and rulings [of
the DSB], the Member concerned shall have a reasonable period of time in which to
do so. The reasonable period of time shall be:

(c) a period of time determined through binding arbitration wi thin 90 days
after the date of adoption of the recommendations and rulings. In such
arbitration, a guideline for the arbitrator should be that the reasonable
period of time to implement panel or Appellate Body recom mendations
should not exceed 15 months fr om the date of adoption of a panel or
Appellate Body report. However, that time may be shorter or longer,
depending upon the particular circumstances.11
The mandate of the arbitrator , pursuant to Article 21.3(c) of the DSU, is therefore to 3.5.
determine the time period within which the implementing Member must comply with the
recommendations and rulings of the DSB.12
Article 21.3(c) provides a guideline for the arbitrator that the period of implementation 3.6.
should not exceed 15 months. Accordin g to th e last sentence of Article 21.3 (c), the "particular
circumstances" of the dispute may affect the length of the reasonable period of time , making it
"shorter or longer ". Other provisions of the DSU also shed light on the mandate of an arbitrator.
Article 21.1 states that "prompt compliance " with the DSB's recommendations and rulings "is
essential in order to ensure effective resolution of disputes ". Moreover, the introductory clause of
Article 21.3 stipulates that a reasonable period of time for impl ementation shall be available only
"[i]f it is impracticable to comply immediately with the [DSB's] recommendations and rulings ".
Article 21.2 directs an arbitrator to pay "particular attention … to matters affecting the interests of
developing country Mem bers with respect to measures which have been subject to dispute
settlement".
The means of implementation chosen by the Member concerned is relevant to the 3.7.
determination of the reasonable period of time . As noted in past awards, "when a Member must
comply cannot be determined in isolation from the means used for implementation. "13 Therefore,
"to determine when a Member must comply, it may be necessary to consider how a Member
proposes to do so. "14 Consistent with previous awards of arbitrators under Article 21.3(c), the
implementing Member has a measure of discretion in choosing the means of implementation that it
deems most appropriate. This discretion, however, "is not an 'unfettered' right to choose any
method of implementation ".15 Rather, it is rele vant to consider, in particular , "whether the

11 Footnotes 12-13 omitted.
12 In response to questioning at the hearing in this arbitration, both the United States and China agreed
that the following principles are relevant for the determination of the reasonable period of time for
implementation:
The implementing Member has discretion to select the means of implementation that it deems most
appropriate.
The implementing Member's discretion is not unfettered. Rather, the chosen method of implementation:
- must be such that it could be implemented within a reasonable period of time in accordance with
the guidelines contained in Article 21.3(c);
- must be apt in form, nature, and content to effect compliance; and
- should otherwise be consistent with the covered agreements.
The "particular circumstances" of a dispute may affect the arbitrator's calculation of the reasonable
period of time, and may make it "shorter or longer".
While a Member is not required to utilize extraordinary procedures to bring its measures into
compliance, it must nevertheless utilize all the flexibilities and discretion available within its legal and
administrative system in order to implement within the shortest period of time possible.
13 Award of the Arbitrator, US – COOL (Article 21.3(c)), para. 68. (emphasis original)
14 Award of the Arbitrator, Japan – DRAMs (Korea) (Article 21.3(c)), para. 26. (emphasis original) See
also Awards of the Arbitrators, US – COOL (Article 21.3(c)), para. 68; US – Washing Machines
(Article 21.3(c)), para. 3.8.
15 Award of the Arbitrator, Colombia – Ports of Entry (Article 21.3(c)), para. 36.

implementing action falls within the range of permissible actions that can be taken in order to
implement the DSB 's recommendations and rulings".16 Thus, the chosen method of
implementation must be apt in form, nature, and content to bring the Member into compliance
with its WTO obligations.17
Inasmuch as they elaborate on those aspects of the measure at issue that were found to be 3.8.
inconsistent with WTO obligations, t he findings by the panel in the under lying dispute offer
guidance for determining whether the proposed implementing measures are apt to achieve
compliance, as well as how long is reasonably needed to do so. 18 It is nevertheless beyond the
mandate of an arbitrator under Article 21.3(c) to deter mine the consistency with the covered
agreements of the measure that the implementing Member envisages to adopt in order to comply
with the DSB's recommendations and rulings. This question, should it arise, is to be addressed in
proceedings conducted pursu ant to Article 21.5 of the DSU. 19 Arbitration under Article 21.3(c) of
the DSU is limited to determining the period of time within which implementation of the
recommendations and rulings of the DSB is to occur.20
As regards the length of the reasonable perio d of time, as noted above, Article 21.3(c) of the 3.9.
DSU provides a guideline for the arbitrator that this "should not exceed 15 months from the date
of adoption of a panel or Appellate Body report ". As set out above, Article 21.1 of the DSU
provides that "prompt compliance" is essential for the effec tive resolution of WTO disputes , and
the first clause of Article 21.3 stipulates that a "reasonable period of time" for implementation shall
be available only "[i]f it is impracticable to comply immediately with the recommendations and
rulings" of the DSB. According to the last sentence of Article 21.3(c), the "particular
circumstances" of a dispute may affect the length of the reasonable period of time, making it
"shorter or longer ". In this respect, previous ar bitrators have considered that the reasonable
period of time for implementation should, in principle, be the shortest period possible within the
legal system of the implementing Member 21 that will enable it to achieve effect ive implementation
of the DSB's recommendations and rulings 22, taking account of the "particular circumstances" of
the dispute.23
In considering the "particular circumstances " under Article 21.3(c), previous arbitrators 3.10.
have found that the complexity of the implementation process and the n ature of the steps to be
taken for implementation are relevant to the determination of the reasonable period of time. 24
Previous arbitrators have also highlighted that the objective of "prompt compliance" calls for the
implementing Member to utilize the flexibilities available within its legal system in implementing
the relevant recommendations and rulings of the DSB in the shortest period of time possible .25
However, an implementing Member is not expected to utilize "extraordinary procedures" to bring

16 Awards of the Arbitrators, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48; Japan – DRAMs
(Korea) (Article 21.3(c)), para. 27; US – Stainless Steel (Mexico) (Article 21.3(c)), para. 42.
17 See Awards of the Arbitrators, Colombia – Ports of Entry (Article 21.3(c)), para. 64; China – GOES
(Article 21.3(c)), para. 3.2; US – Countervailing Measures (China) (Article 21.3(c)), para. 3.3; Colombia ‒
18 See Award of the Arbitrator, Colombia – Textiles (Article 21.3(c)), paras. 3.5 and 3.39-3.40.
19 See Awards of the Arbitrators, Japan – DRAMs (Korea) (Article 21.3(c)), para. 27; US –
Countervailing Measures (China) (Article 21.3(c)), para. 3.4; Colombia – Textiles (Article 21.3(c)), para. 3.6.
20 See Awards of the Arbitrators, China – GOES (Article 21.3(c)), para. 3.2; US – Countervailing
Measures (China) (Article 21.3(c)), para. 3.4; Peru – Agricultural Products (Article 21.3(c)), para. 3.6;
US – Washing Machines (Article 21.3(c)), para. 3.8.
21 See Awards of the Arbitrators, EC – Hormones (Article 21.3(c)), para. 26;
Japan – DRAMs (Korea) (Article 21.3(c)), para. 25; China – GOES (Article 21.3(c)), para. 3.3;
US – Countervailing Measures (China) (Article 21.3(c)), para. 3.5.
22 See Award of the Arbitrator, US – Stainless Steel (Mexico) (Article 21.3(c)), para. 53.
23 See Awards of the Arbitrators, China – GOES (Article 21.3(c)), para. 3.3; US – Countervailing
24 See Awards of the Arbitrators, EC – Bananas III (Article 21.3(c)), para. 19; EC – Tariff Preferences
(Article 21.3(c)), para. 53; US – Oil Country Tubular Goods Sunset Reviews (Article 21.3(c)), para. 26;
US – Countervailing Measures (China) (Article 21.3(c)), para. 3.19.
25 See Awards of the Arbitrators, US ‒ Offset Act (Byrd Amendment) (Article 21.3(c)), para. 64;
Japan – DRAMs (Korea) (Article 21.3(c)), para. 25; Brazil – Retreaded Tyres (Article 21.3(c)), para. 48; US –
Stainless Steel (Mexico) (Article 21.3(c)), para. 42; China – GOES (Article 21.3(c)), para. 3.4; US –
Countervailing Measures (China) (Article 21.3(c)), para. 3.5; US – Shrimp II (Viet Nam) (Article 21.3(c)),
para. 3.5; Colombia – Textiles (Article 21.3(c)), paras. 3.51-3.53.

its measure into compliance26, and implementation "must be effected in a transparent and efﬁcient
manner that affords due process to all interested parties".27
With regard to the burden of proof, it is well esta blished that the implementing Member 3.11.
bears the overall burden to prove that the time period requested for implementation constitutes a
"reasonable period of time ".28 However, this does not "absolve" the complaining Member of its
duty to provide evidence supporting why it disagrees with the period of time proposed by the
implementing Member, and to substantiate its view that any shorter period of time for
implementation that it proposes is reasonable.29
3.3 Measures to be brought into conformity
The dispute underlying this arbitration concerns China's challenge of certain methodologies 3.12.
and their use by the USDOC in a number of anti-dumping proceedings. At the hearing, the parties
accepted that the United States' implementing obligations relate to the findings made by the Panel
that are set forth in paragraphs 8.1.a through 8.1.c of the Panel Report , and that the measures at
issue could generally be summarized as follows30:
a. in respect of the Single Rate Presumption (SRP):
i. the USDOC's presumption that, in anti -dumping proceedings involving a non -market
economy (NME), exporters form part of an NME -wide entity and are assigned a
single anti -dumping duty rate unless each exporter demonstrates, through the
fulfilment of the criteria set ou t in the "Separate Rate Test ", an absence of de jure
and de facto governmental control of its export activities31; and
ii. the USDOC's determinations to apply the SRP in the 38 anti -dumping determinations
challenged by China (namely, 13 original investigations and 25 administrative
reviews)32;
b. in respect of the weighted average-to-transaction (W-T) methodology applied in three of
the 38 anti -dumping determinations challenged by China (namely, three original
investigations):
i. the USDOC's determinations to apply the W-T methodology on the basis of:
 its identification of a pattern of export prices which differ significantly among
different purchasers, regions or time periods33; and
 its explanation as to why such differences could not be take n into account by the
comparison methodologies that are normally to be used34;

26 See Awards of the Arbitrators, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 74;
Japan – DRAMs (Korea) (Article 21.3(c)), para. 25; Brazil – Retreaded Tyres (Article 21.3(c)), para. 48;
US – Stainless Steel (Mexico) (Article 21.3(c)), para. 42; US – COOL (Article 21.3(c)), para. 70; China – GOES
(Article 21.3(c)), para. 3.4; US – Countervailing Measures (China) (Article 21.3(c)), para. 3.5; US – Washing
Machines (Article 21.3(c)), para. 3.9.
27 Award of the Arbitrator, China – GOES (Article 21.3(c)), para. 3.46. See also Awards of the
Arbitrators, US – Oil Country Tubular Goods Sunset Reviews (Article 21.3(c)), para. 51; Japan – DRAMS
(Korea) (Article 21.3(c)), para. 51; US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.36.
28 See Awards of the Arbitrators, Canada – Pharmaceutical Patents (Article 21.3(c)), para. 47;
US – 1916 Act (Article 21.3(c)), para. 33; EC – Tariff Preferences (Article 21.3(c)), para. 27; China – GOES
(Article 21.3(c)), para. 3.5; US – Countervailing Measures (China) (Article 21.3(c)), para. 3.6; US – Washing
Machines (Article 21.3(c)), para. 3.10.
29 Awards of the Arbitrators, Colombia – Ports of Entry (Article 21.3(c)), para. 67;
US – Washing Machines (Article 21.3(c)), para. 3.10.
30 At the hearing, China also referred to paragraph 6.7 of the Appellate Body Report in this dispute,
where the Appellate Body declared certain Panel statements moot. However, China accepted that this finding
does not create an additional implementation obligation for the United States.
31 Panel Report, paras. 7.311 and 8.1.c.ii.
33 Panel Report, para. 8.1.a.i. I note that the Panel's finding on this point pertains to two of the
three original investigations at issue.

ii. the USDOC's application of the W-T methodology to all export transactions35; and
iii. the USDOC's use of zeroing under the W-T methodology36; and
c. the USDOC's use of zeroing under the W -T methodology in one of the 38 anti -dumping
determinations challenged by China (namely, one administrative review).37
In ruling on the claims raised by China against these measures, the Panel found: 3.13.
a. the SRP to be inconsistent "as such " with Article 6.10 and Article 9.2 of the
Anti-Dumping Agreement38;
b. the United States to have acted inconsistently with Article 6.10 and Article 9.2 of the
Anti-Dumping Agreement because the USDOC applied the SRP in the 38 anti-dumping
determinations challenged by China39;
c. the United States to have acted inconsistently with Article 2.4.2 of the Anti -Dumping
Agreement because of certain steps taken by the USDOC in relation to the
W-T methodology and its use of zeroing under the W -T methodology in three original
anti-dumping investigations40; and
d. the United States to have acted inconsistently with Article 2.4.2 of the Anti -Dumping
Agreement and Article VI:2 of the GATT 1994 because of the USDOC's use of zeroing
under the W-T methodology in one administrative review.41
Accordingly, for purposes of this arbitration, the United States' implementation obligations 3.14.
pertain to the recommendations and rulings of the DSB with respect to one finding of "as such"
inconsistency pertaining to the SRP, as well as several findings of "as applied " inconsistency
pertaining to the USDOC's use of the SRP in 38 anti-dumping determinations and the USDOC's use
of the W -T methodology, including its use of zeroing under that methodology, in four of these
38 anti-dumping determinations.
3.4 Factors affecting the determination of the reasonable period of time
The United States considers that I should determine that 24 months is a reasonable period 3.15.
of time for implementing the D SB's recommendations and rulings in this dispute, due to "the
number and magnitude of modifications to the challenged measures, the procedural requirements
under U.S. law, the complexity of the issues involved, and the current resource demands and
constraints on the USDOC ".42 The United States highlights "the brea dth and complexity of the
DSB's recommendations", in particular in light of the "as applied " findings, which relate to
38 anti-dumping determinations, and "the significant additional analysis that t he USDOC likely will
be required to undertake ".43 Regarding the chosen means of implementation, the United States
intends to undertake two distinct s ets of proceedings: (i) one proceeding pursuant to
Section 123(g) of the Uruguay Round Agreements Act (URAA) 44 to address the "as such "
recommendations and rulings of the DSB pertaining to the SRP; and (ii) 38 separate proceedings
pursuant to Section 129(b) of the URAA45 to address the DSB's "as applied" recommendations and
rulings relating to the USDOC's use of the SRP in 38 anti -dumping determinations, as well as its
use of the W -T methodology, and zeroing under that methodology, in certain of those

37 Panel Report, para. 8.1.b.
40 Panel Report, paras. 8.1.a.i-8.1.a.iv.
41 Panel Report, para. 8.1.b.
42 United States' submission, para. 10.
43 United States' submission, para. 9.
44 Codified as United States Code, Title 19, Section 3533(g) (contained in Exhibit USA-1).
45 Codified as United States Code, Title 19, Section 3538(b) (contained in Exhibit USA-2).

determinations.46 According to the United States, while these two sets of proceedings must be
undertaken sequentially, there can be "a small degree of overlap " between them.47 In particular,
the United States proposes to commence the Section 129 proceedings once the preliminary
determination in the Section 123 proceeding has been issued.48
China does not question the USDOC's recourse to proceedings under Section 123 and 3.16.
Section 129 of the URAA for purposes of implementation in this dispute.49 In particular, China does
not question that a Section 123 proceeding is an appropriate way to implement the DSB's
"as such" recommendations and rulings pertaining to the SRP. Nor does China object to the degree
of overlap between these proceedings that the United States indicates would occur. Rather, China
accepts as reasonable the United States' proposal to commence the procee dings pursuant to
Section 129 once the preliminary determination pursuant to Section 123 has been issued. 50 China
nevertheless argues that the amount of time sought by the United States, both for its Section 123
proceeding and for the multiple Section 129 p roceedings, is "unreasonably long " in the
circumstances of this case.51
In my analysis below, I first address the parties' arguments concerning the specific steps to 3.17.
be taken by the United States in proceedings under Section 123 and Section 129, as well as the
period of time that is reasonably required to complete such steps. I then address the particular
circumstances of this dispute alleged by the parties to be relevant to my determination of the
reasonable period of time.
Steps in the implementation process 3.4.1
As indicated above, the parties agree that the implementation of the DSB's "as such " 3.18.
recommendations and rulings can and should take place through a proceeding under Section 123
of the URAA and that the implementation of the DSB's "as applied" recommendations and rulings
pertaining to the 38 anti -dumping determinations challenged by China can and should take place
through separate proceedings under Section 129 of the URAA . The parties disagree, however, on
the time period necessary to conduct such proce edings. The subsection s below address, in turn,
the implementation of the DSB's "as such" recommendations and rulings through a Section 123
proceeding concerning the SRP, and the implementation of the DSB's "as applied "
recommendations and rulings concerning the 38 anti-dumping determinations at issue through
separate Section 129 proceedings.
Implementation of the DSB's "as such" recommendations and rulings pertaining 3.4.1.1
to the SRP
In order to implement the DSB's recommend ations and rulings pertaining to the Panel's 3.19.
"as such" finding regarding the SRP, the United S tates intends to utilize the process set out in
Section 123(g) of the URAA. In addition, the United States indicates that, prior to the
commencement of this proce ss, it needs time to conduct "inter-agency consultations" and related
activity52 so as to allow the USTR and the USDOC to consider the options available for
implementation.53 In considering the period of time required to complete both , the initial period of
inter-agency consultations and related activity, and the Section 123 proceeding, the United States
emphasizes the "complexity" of the issues involved and the "far-reaching impact " of the

46 United States' submission, para. 30. The United States refers to the Section 123 proceeding and the
Section 129 proceedings as "Phase I" and "Phase II" of the implementation process, respectively. (Ibid.,
paras. 7 and 18)
47 United States' submission, para. 26. See also para. 49 (United States' proposed timetable).
48 United States' submission, paras. 7 and 26.
49 China's submission, paras. 35-36; opening statement and response to questioning at the hearing.
50 China's submission, paras. 27, 36, and 38; opening statement and response to questioning at the
hearing.
51 China's submission, para. 36.
52 In its proposed timetable, the United States explains that, during this period, the USTR and the
USDOC consult, "pre-commencement analysis preparation" is undertaken, and the USDOC "begins devising
methodologies to implement adverse findings in preparation for commencement of section 123 and section 129
53 United States' submission, para. 32. In its proposed timetable, the United States indicates that this
preliminary step took place from May to December 2017 (i.e. approximately 7 months following the adoption of
the Panel and Appellate Body Reports on 22 May 2017). (Ibid., para. 49)

implementation process. 54 In total, the United States claims that 15 months are required to
address the DSB's "as such" recommendations and rulings pertaining to the SRP. 55 According to
the United States, this amount of time is to be allocated as follows: approximately 7 months for
the initial inter -agency consultations and r elated activity; approximately 4 months to issue the
preliminary determination once the Section 123 proceeding has commenced; and approximately
4 months to issue the final determination in the Section 123 proceeding.56
China disputes that the implementation of the DSB's "as such " recommendations and 3.20.
rulings is nearly as complicated as the United States suggests. 57 In this context, China contends
that the reasonable period of time should not include any time after the adoption of the Panel and
Appellate Body R eports for preparatory work because the USTR a nd the USDOC had at least
7 months prior to the adoption of those reports to undertake such work. 58 Moreover, China
contests the amount of time that the United States claims it requires to issue the preliminary and
the final determinations. China submits that, in the present dispute, the United States requires
only 15 days to issue a preliminary determination 59 and that the additional time allocated for the
United States to issue the final determination "should be brief".60
Section 123(g)(1) and (2) of the URAA reads61: 3.21.
(g) Requirements for agency action
(1) Changes in agency regulations or practice
In any case in which a dispute settlement panel or the Appellate Body finds in its
report that a regulation or practice of a department or agency of the United States is
inconsistent with any of the Uruguay Round Agreements, that regulation or practice
may not be amended, res cinded, or otherwise modified in the implementation of such
report unless and until—
(A) the appropriate congressional committees have been consulted under
subsection (f)62;
(B) the Trade Representative has sought advice regarding the modification
from r elevant private sector advisory committees established under
section 135 of the Trade Act of 1974 (19 U.S.C. 2155);
(C) the head of the relevant department or agency has provided an
opportunity for public comment by publishing in the Federal Register the
proposed modification and the explanation for the modification;
(D) the Trade Representative has submitted to the appropriate congressional
committees a report describing the proposed modification, the reasons for

54 United States' submission, para. 35. See also heading II:B of that submission, where the United
States refers to the "legal and technical complexity of this matter".
55 United States' submission, paras. 24 and 36.
56 United States' submission, para. 49.
57 China's submission, para. 34.
59 China's submission, paras. 44 and 46.
60 China's submission, para. 47.
61 Section 123(g)(1) and (2) of the URAA (contained in Exhibit USA-1).
62 Subsection (f) refers to "[a]ctions upon circulation of reports" and requires that:
Promptly after the circulation of a report of a panel or of the Appellate Body to WTO members in
a proceeding described in subsection (d) of this section, the Trade Representative shall—
(1) notify the appropriate congressional committees of the report;
(2) in the case of a report of a panel, consult with the appropriate congressional committees
concerning the nature of any appeal that may be taken of the report; and
(3) if the report is adverse to the United States, consult with the appropriate congressional
committees concerning whether to implement the report's recommendation and, if so, the
manner of such implementation and the period of time needed for such implementation.
(Section 123(f) of the URAA (contained in Exhibit USA-1))

the modification, and a summary of the advice obtained under
subparagraph (B) with respect to the modification;
(E) the Trade Representative and the head of the relevant department or
agency have consulted with the appropriate congressional committees on
the proposed contents of the final rule or other modification; and
(F) the final rule or other modification has been published in the Federal
Register.
(2) Effective date of modification
A final rule or other modification to which paragraph (1) applies may not go into effect
before the end of the 60 -day period beginning on the date on which consultations
under paragraph (1)(E) begin, unless the president determines that an earlier
effective date is in the national interest.
Pursuant to Section 123(g)(1), proceedings under that section are us ed to amend, rescind, 3.22.
or otherwise modify regulations or practices of a department or agency of the United States in
response to a WTO dispute settlement panel or Appellate Body report. In the present dispute, the
Panel found the SRP to be a norm of genera l and prospective application that could be challenged
"as such" in WTO dispute settlement. 63 In reaching this conclusion, the Panel stressed, inter alia,
the "consistent application" of the SRP since 1991, demonstrating "a pattern of conduct by the
USDOC that one can reasonably expect will be followed in the future".64 I understand the parties to
agree that Section 123(g) can and should be used to address the Panel's "as such " finding of
inconsistency pertaining to the SRP.65
The parties further agree that su bparagraphs (A) through (F) of Section 123(g)(1) above 3.23.
identify the steps involved in a Section 123 proceeding. 66 I note that the only prescribed time
period is found in Section 123(g)(2), which provides that, normally, the final rule or modification
may not go into effect until at least 60 days after the USTR and the USDOC have consulted with
the relevant congressional committees on the proposed modification. As confirmed by the
United States at the hearing, there are no other prescribed time periods for a proceeding under
Section 123 or for the individual steps involved. I understand from the parties' explanations at the
hearing that some of the steps of a Section 123 proceeding can take place concurrently. According
to the United States, whereas a necessar y first step of the process is for the USTR to begin
consulting with the appropriate congressional committees in line with the requirements of
subparagraph (A), the USTR is able to seek advice from relevant private sector advisory
committees at the same time that the public is afforded an opportunity to comment on the
proposal, as provided for in steps (B) and (C). 67 The United States nevertheless stressed that
step (D), which involves preparing a re port for the relevant congressional committees, can take
place only after steps (B) and (C) are completed, since the report in question must summarize the
results of the private sector consultations and public comments on the proposed modification. It
also seems logical that the consultations with congressional committees foreseen in step (E) could
be expected to occur only after submission of the report referenced in step (D). I further
understand that no public notice is given of the date of commencement of a Section 123
proceeding (step (A)), and that step (C), which involves publishing the proposed modification and
the explanation for the modification in the Federal Register , corresponds to the "preliminary
determination" referred to by the parties in th eir submissions. 68 I note that the date by which
step (C) can reasonably be completed in the context of the present dispute is of particular
significance since the parties agree that the implementation of the DSB's "as applied "

63 Panel Report, paras. 7.339 and 8.1.c.ii.
64 Panel Report, paras. 7.336 and 7.337, respectively.
65 United States' submission, para. 7; China's submission, para. 36; parties' responses to questioning at
the hearing.
66 United States' submission, para. 31; China's submission, para. 37; parties' responses to questioning
at the hearing.
67 By contrast, China considers that all of the steps described in subparagraphs (A), (B), and (C) can be
conducted concurrently. (China's response to questioning at the hearing)
68 Similarly, I understand that step (F), which involves publishing the final rule or other modification in
the Federal Register, corresponds to the "final determination" referred to by the parties in their submissions.

recommendations and rulings t hrough proceedings under Section 129 of the URAA should
commence upon issuance of the preliminary determination under Section 123.
The parties disagree on the time necessary to complete the process under Section 123 in 3.24.
implementing the DSB's "as such" recommendations and rulings in this dispute and, in particular,
on the time that is required for preparatory work and until issuance of a preliminary determination
under Section 123. As set out above, the United States indicates that it requires 7 months from
the adoption of the Panel and Appellate Body Reports to conduct inter -agency consultations and
related activity prior to commencing a Section 123 proceeding. Regarding the time required to
issue the preliminary determination once the proceeding under S ection 123 has commenced, the
United States submits that approximately 4 months are required. In support of these proposed
time periods, the United States highlights the complexity of the issues at hand in this dispute, in
particular since it is the first time that the United States is required to conduct such a modification
of the SRP.69
By contrast, China maintains that no time after the DSB's adoption of the Panel and 3.25.
Appellate Body Reports should be awarded for inter-agency consultations and related act ivity.70
China argues that the United States had ample time to conduct inter-agency consultation s and
analysis preparation prior to the adoption of these reports.71 Similarly, according to China, 15 days
are sufficient to issue the preliminary determination in light of the United States' awareness of the
WTO-inconsistency of the SRP prior to the adoption of the Panel and Appellate Body Reports.72
Thus, in setting out their respective positions as to the time periods required to conduct 3.26.
inter-agency consultati ons and related activity, and to issue the preliminary determination, the
parties mainly disagree on the complexity of implementing the "as such" recommendations and
rulings of the DSB and the steps that the United States could and should have undertaken p rior to
the adoption of the Panel and Appellate Body Reports.
I first address China's argument that the United States should have begun taking steps 3.27.
towards implementation prior to the adoption of the Panel and Appellate Body Reports, whether in
the form of inter-agency consultations or other preparatory work prior to the commence ment of
the Section 123 process, or under Section 123 after the process had commenced .73 In its written
submission, China emphasizes that, although the reasonable period of time for implementation is
measured as from the date of adoption of the panel and Appellate Body reports 74, to date, the
United States "has not commenced any proceedings to revise or repeal its WTO -inconsistent
measures and does not intend to begin to do so until [December 2017] ".75 Yet, China points out
that the United States has known that the SRP is WTO-inconsistent since November 2014, when
the panel report in US – Shrimp II (Viet Nam) was circulated. China highlights that the panel in
that dispute also found the SRP to be WTO-inconsistent, and the United States did not appeal that
finding.76 China adds that, at the latest, the United States has known that it would have to bring
certain of its measure s, including the SRP, into conformity with the WTO agreements since
November 2016, when the United States decided not to appeal the findings of inconsistency
contained in the Panel Report in this dispute.77 China also relies on Section 123(f)(3) of the URAA ,
which requires the USTR to consult with the appropriate congressional committees as to the
manner of implementation "promptly after the circulation " of a panel or Appellate Body report.
According to China, the USTR was thus required to enter into such co nsultations after the
United States' decision not to appeal the Panel Report in November 2016.78

69 United States' response to questioning at the hearing.
70 China's submission, para. 25.
71 China's submission, paras. 39-40. See also para. 25.
72 China's submission, para. 46; opening statement and response to questioning at the hearing.
73 China's submission, paras. 42-43 and 46.
74 China's submission, para. 3.
75 China's submission, para. 5 (referring to United States' submission, para. 49 (United States' proposed
timetable)). See also para. 22 and fn 28 thereto.
76 China's submission, para. 4 (referring to Panel Report, US – Shrimp II (Viet Nam), para. 8.1.c).
77 China's submission, para. 4.
78 China's submission, para. 42. The United States argued at the hearing that Section 123(f)(3) does not
require it to start implementation upon circulation of the relevant reports, and reiterated that implementation
obligations arise as of the date of the DSB's recommendations and rulings. The United States further explained
that consultations with Congress that take place prior to the adoption of the relevant reports pertain mainly to

As an initial matter, I note that previous arbitrators have considered consultations within 3.28.
government agencies to be a typical aspect of "law-making", and that, regardless of whether they
are mandated by law, the time needed to undertake such consultations should be taken into
account in determining a reasonable period of time for implementation. 79 In the specific context of
this dispute, taking appropriate time for preparatory work – whether in the form of inter -agency
consultations, other preparatory work, or consultations with appropriate congressional committees
under Section 123(g)(1)(A) – could serve a useful and import ant purpose in ensuring that the
resulting methodology will be consistent with the covered agreements. In particular, such
preparatory work could facilitate (and therefore reduce the time required to undertake)
subsequent steps in the implementation process.
Like previous arbitrators, I consider that formal implementation steps need only be taken 3.29.
after the adoption of the relevant panel and Appellate Body reports . .80 By the time of the hearing
in this arbitration, over 6 months had elapsed since the DSB's adoption of the Panel and Appellate
Body Reports in this dispute. According to the United States, it has taken implementation steps in
the form of inter -agency consultations during that time. 81 In addition, the United States indicated
at the hearing that consultations with the relevant congressional committees required by Section
123(g)(1)(A) are ongoing. 82 The United States also clarified that there are no public records of
these preliminary steps.83 I accept that some degree of consultation among the USDOC, the USTR,
and the relevant congressional committees has already occurred. Nonetheless, in the absence o f
specific information from the United States about these consultations, the nature and timing of this
preparatory work is unclear.
Whereas implementation obligations arise as of the date of the DSB's recommendations and 3.30.
rulings, I consider that circumstances pre -dating the adoption of the relevant panel or
Appellate Body reports may in some instances bear on the determination of the reasonable period
of time.84 I am aware that the United States did not appeal the Panel's finding of "as such "
inconsistency pertaining to the SRP. Therefore, the United States was, at least to a certain extent,
in a position to begin considering its options for implementation prior to the adoption of the Panel
and Appellate Body Reports in this dispute.85 Moreover, as I will explain below, I am not persuaded
that the implementation options available to the United States are especially numerous or
complex. Thus, while I accept that preparatory work in the form of "inter-agency consultations"
between the USDOC and the USTR or consultations with "appropriate congressional committees" is
justified and, indeed, may well contribute to expediting the remaining steps in the implementation
process, I do not consider that as many months are needed for these initial s teps as the
United States contends. I understand, as well, that these consultations in any event continue while
the Section 123 process is ongoing. 86 I further recall that Article 21.1 of the DSU expressly
identifies prompt compliance with the recommendatio ns and rulings of the DSB as "essential in
order to ensure effective resolution of disputes to the benefit of all Members " and that

whether the United States will declare its intention to implement the reports' findings. (United States' response
to questioning at the hearing)
79 Award of the Arbitrator, Chile – Price Band System (Article 21.3(c)), para. 42. See Awards of the
Arbitrators, Chile – Alcoholic Beverages (Article 21.3(c)), para. 43; US – Hot-Rolled Steel, para. 38.
80 Award of the Arbitrator, US – Countervailing Measures (China) (Article 21.3(c)), para. 3.44. The
parties agree that the reasonable period of time for implementation is measured as from the date of adoption
of the relevant panel and Appellate Body reports. (United States' submission, para. 49; China's submission,
para. 3)
81 United States' submission, para. 32. See also para. 49 (United States' proposed timetable).
82 In this respect, I note that, pursuant to Section 123(f)(3) of the URAA, the USTR shall consult with
the appropriate congressional committees as to the manner of implementation of the report "promptly after the
circulation" of a panel or Appellate Body report. (See supra, fn 62)
83 United States' response to questioning at the hearing.
84 See also Awards of the Arbitrators, US – COOL (Article 21.3(c)), para. 84; China – GOES
(Article 21.3(c)), para. 3.30.
85 I also note that, in US – Shrimp II (Viet Nam) (Article 21.3(c)), the United States indicated that
consultations and other preparatory work had been undertaken in relation to the panel's "as such" finding.
(Award of the Arbitrator, US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.33) In that case, the panel's
"as such" finding at issue equally related to the USDOC's rebuttable presumption that all companies within an
NME country belong to a single, NME-wide entity and that a single rate is assigned to that entity. (Panel
Report, US – Shrimp II (Viet Nam), para. 7.122)
86 At the hearing, the United States explained that background substantive work continues throughout
the Section 123 process. (United States' response to questioning at the hearing)

implementing Members are expected to use the flexibilities available to them within their domestic
legal system to achieve such prompt compliance.
I now turn to the United States' argument that implementing the DSB's "as such " 3.31.
recommendations and rulings in this dispute is particularly complex. 87 In this context, the
United States emphasizes that it has several options for impl ementing the DSB's "as such "
recommendations and rulings. According to the United States, the USDOC may need to consider,
inter alia: (i) the kind and quantity of evidence required to establish governmental control over the
exporters' export activities; (i i) the bases for requesting information from examined exporters
regarding government ownership and control; and (iii) procedural matters associated with the
collection and examination of such information. 88 At the hearing, the United States further
emphasized the importance of background work in considering t hese options during the
Section 123 process.89 China takes issue with the alleged complexity of the implementation of the
DSB's "as such " recommendations and rulings regarding the SRP. China contends that
implementation is "straightforward" given that the United States is merely required to withdraw its
practice of applying the SRP.90
I recall that, in the present dispute, the DSB's "as such " recommendations and rulings 3.32.
pertain to one Panel finding regardin g the SRP. I further recall that , under the SRP, the USDOC
presumes that, in anti -dumping proceedings involving an NME, exporters form part of an
NME-wide entity and are assigned a single anti -dumping duty rate unless each exporter
demonstrates an absence of de jure and de facto governmental control of its export activities. 91
I am not convinced that implementation in this case is necessarily straightfo rward, as China
contends. Although the Panel found the SRP to be inconsistent "as such" with Articles 6.10 and 9.2
of the Anti-Dumping Agreement, it also agreed with the Appellate Body in EC – Fasteners (China)
that "an investigating authority may treat mu ltiple exporters as a single entity if it finds, through
an objective affirmative determination, that there exists a situation that would signal that two or
more legally distinct exporters are in such a relationship that they should be treated as a single
entity."92 Importantly, as noted above, the implementing Member has discretion in choosing the
means of implementation it deems most appropriate. Moreover, while Article 3.7 of the DSU refers
to the "withdrawal" of an inconsistent measure, it is clear that the obligation to bring a measure
into conformity can also be met through modification of the measure found to be
WTO-inconsistent.93
At the same time, I do not consider that implementation will necessarily be as complicated 3.33.
as the United States suggests. The United States explained at the hearing that it is considering the
numerous possible options available to address the DSB's "as such " recommendations and
rulings.94 The United States views the development of an alternative analysis for single -exporter
treatment as a WTO-consistent option for implementation in this dispute , and adds that this might
entail a move from a presumption to a fact -based, case -by-case analysis. 95 In my view, while
there may be a number of factors to be considered under such an option, there is a limit to the
possible parameters that may be identified as relevant to the conduct of a case -specific factual
analysis of this nature. 96 I also recall that no specific time periods ar e prescribed for any of the

87 In its written submission, the United States also refers to the "novelty" of the issues in the present
dispute. (United States' submission, para. 35) However, at the hearing, the United States acknowledged that
this was not the first time that a presumption similar to the SRP was found to be inconsistent "as such" with
Articles 6.10 and 9.2 of the Anti-Dumping Agreement. The United States further clarified that its argument
regarding any alleged novelty was in fact one relating to the complexity of addressing its implementation
obligations in this dispute given that this is the first time that the United States is required to revise the SRP.
(United States' response to questioning at the hearing)
88 United States' submission, paras. 23 and 32.
89 United States' response to questioning at the hearing.
90 China's submission, para. 47.
91 See Panel Report, para. 7.311.
92 Panel Report, para. 7.361 (referring to Appellate Body Report, EC – Fasteners (China), para. 376).
93 Awards of the Arbitrators, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 50;
Japan – DRAMs (Korea) (Article 21.3(c)), para. 27; Brazil – Retreaded Tyres (Article 21.3(c)), para. 71;
US – COOL (Article 21.3(c)), para. 77; US – Countervailing Measures (China) (Article 21.3(c)), para. 3.18.
94 United States' opening statement at the hearing. See also United States' submission, para. 23.
95 United States' opening statement and response to questioning at the hearing.
96 In this context, I also note the United States' use of the Separate Rate Test as part of the SRP. As set
out by the Panel, in order to overcome the presumption of governmental control and be eligible for a separate
dumping margin and duty rate, the SRP requires individual exporters to make a specific request to that effect

steps preceding the issuance of a preliminary determination under Section 123(g). Moreover, I
note that Section 123 proceedings have been utilized by the United States in a number of prior
disputes for purposes of implementing t he DSB's recommendations and rulings and that , on some
occasions, the United States indicated that a much shorter period of time would be sufficient to
complete the entire process.97
On the basis of the foregoing, I consider that the United States could reasonably conduct 3.34.
the necessary preparatory work and issue the preliminary determination under Section 123 in
respect of the DSB's "as such" recommendations and rulings concerning the SRP in significantly
less time than the 11 months it claims are needed. A s the same time, I do not consider that the
United States can reasonably be expected to issue this preliminary determination within the
15 days proposed by China.
Finally, I recall that the parties disagree on the length of time that the United States 3.35.
requires to complete the Section 123 process through the issuance of a final determination. The
United States' proposed timetable indicates that, once the preliminary determination is issued, it
requires approximately 4 additional months to issue the final de termination under Section 123. 98
The United States emphasized that this time period is necessary to, inter alia , consider and
address all comments received in response to its proposal before it can publish a final modification
in the Federal Register.99 China disagrees and submits that the allocated time "should be brief and
the process should consist mostly of formalities".100 At the hearing, China explained that it had not
proposed a particular length of time for this step given that both parties agree that the
Section 129 proceedings to implement the DSB's "as applied" recommendations and rulings will
commence as from the issuance of the preliminary determination in the Section 123 proceeding.101
As a g eneral matter, the full timeframe within which a Section 123 proceeding can be 3.36.
completed is relevant to the determination of the reasonable period of time for implementation by
the United States pursuant to that provision. In this dispute, however, as t he final stage of the
Section 123 proceeding will proceed in parallel with the Section 1 29 proceedings, the date by
which the Section 123 proceeding may reasonably be completed is not relevant to the
determination of the reasonable period of time. This is bec ause of the overlap between the
Section 123 and Section 129 proceedings. Both parties agree that the Section 129 proceedings
should begin upon issuance of the preliminary Section 123 determination. Both parties also agree
that the time reasonably needed to undertake the Section 129 proceedings will inevitably exceed
the time needed between the preliminary and final Section 123 determinations. Put differently, it is
clear that it is the end of the Section 129 proceedings that will determine the end of the
reasonable period of time for implementation in this dispute, and it is also clear that the
Section 123 proceeding will be completed before the end of the Section 129 proceedings. For these
reasons, I do not consider it necessary to address further how much time should reasonably be
allocated for the USDOC to issue the final determination in the Section 123 proceeding.
Implementation of the DSB's "as applied " recommendations and rulings 3.4.1.2
pertaining to the 38 anti-dumping determinations at issue
As indicated a bove, t he United States plans to address the DSB's recommendations and 3.37.
rulings regarding the Panel's "as applied" findings through multiple proceedings under Section 129

and to pass the Separate Rate Test, which contains certain conditions aimed to establish de jure and de facto
independence from governmental control. With respect to de jure governmental control, the USDOC evaluates
the relevant laws, regulations, and other enactments in order to ascertain whether there is: (a) an absence of
restrictive stipulations associated with an individual exporter's business and export licences; (b) any legislative
enactments decentralizing control of companies; and (c) any other formal measures by the central and/or local
government decentralizing control of companies. As for de facto governmental control, the USDOC assesses
whether: (a) the export prices are set by, or subject to the approval of, government authority; (b) the exporter
has the authority to negotiate and sign contracts and other agreements; (c) the exporter has autonomy from
the government in making decisions regarding the selection of management; and (d) the exporter retains the
proceeds of its export sales and makes independent decisions regarding the disposition of profits or financing
97 See Awards of the Arbitrators, US – Oil Country Tubular Goods Sunset Review (Article 21.3(c)),
98 United States' submission, para. 49.
99 United States' submission, para. 35.
100 China's submission, para. 47.
101 China's response to questioning at the hearing.

of the URAA. These findings concern the USDOC's use of the SRP in 38 anti -dumping
determinations, as well as its use of the W-T methodology, and zeroing under that methodology, in
certain of those determinations. 102 The United States claims that it will need approximately
13 months to complete these proceedings 103, as from the date of issuance of the preliminary
determination in the proceeding under Section 123 of the URAA.
Section 129(b) and (d) of the URAA states104: 3.38.
(b) Action by administering authority
(1) Consultations with administering authority and congressional
committees
Promptly after a report by a dispute settlement panel or the Appellate Body is issued
that contains findings that an action by the administering authority in a proceeding
under title VII of the Tariff Act of 1930 is not in conformity with the obligations o f the
United States under the Antidumping Agreement or the Agreement on Subsidies and
Countervailing Measures, the Trade Representative shall consult with the
administering authority and the congressional committees on the matter.
(2) Determination by administering authority
Notwithstanding any provision of the Tariff Act of 1930, the administering authority
shall, within 180 days after receipt of a written request from the Trade
Representative, issue a determination in connection with the particular proceeding
that would render the administering authority's action described in paragraph (1) not
inconsistent with the findings of the panel or the Appellate Body.
(3) Consultations before implementation
Before the administering authority implements any determination under
paragraph (2), the Trade Representative shall consult with the administering authority
and the congressional committees with respect to such determination.
(4) Implementation of recommendation
The Trade Representative may, after consulting with the administering authority and
the congressional committees under paragraph (3), direct the administering authority
to implement, in whole or in part, the determination made under paragraph (2).
…
(d) Opportunity for comment by interested parties
Prior to issuing a determination under this section, the administering authority or the
Commission, as the case may be, shall provide interested parties with an opportunity
to submit written comments and, in appropriate cases, may hold a hearing, with
respect to the determination.
The parties agree that Section 129 proceedings, in which the USDOC will carry out 3.39.
"redeterminations", are an appropriate means under US law for implementing the DSB's
"as applied" recommendations and rulings wi th respect to the 38 anti -dumping determinations.105
They both also accept that subparagraphs (1) through (4) above identify the steps involved in a

102 The United States refers to the Section 129 proceedings as "Phase II" of its implementation process.
(United States' submission, paras. 7 and 18)
103 United States' submission, para. 49.
104 Section 129(b) and (d) of the URAA (contained in Exhibit USA-2).
105 United States' submission, paras. 6-7; China's submission, para. 36; China's response to questioning
at the hearing.

Section 129 proceeding106 and that these four steps are carried out sequentially. I also understand
both partie s to accept that, in this dispute, the USDOC's "redeterminations" should commence
once the preliminary determination in the Section 123 proceeding has been issued. 107 The parties'
views, however, diverge on the extent to which the multiple redeterminations t hat are needed can
be conducted concurrently, and on the time required for these step s, notably with respect to:
(i) the significance of the reference to a period of 180 days in Section 129(b)(2); and (ii) whether
my determination of the reasonable period of time for implementation should account for the time
that may be needed for the USDOC to conduct hearings and verifications in the Section 129
proceedings.
The United States' proposed timetable for implementation indicates that the Section 129 3.40.
proceedings will commence in April 2018, once the preliminary determination in the Section 123
proceedings has been issued. 108 The United States contends that a separate Section 129
proceeding will be needed for each of the 38 anti-dumping determinations found to be
WTO-inconsistent.109 Furthermore, given the number of redeterminations to be carried out
pursuant to Section 129, the United States anticipates that the USDOC will need to divide these
38 proceedings into three distinct tranches. The United States explains t hat the rationale for this
"staggered" approach is due to the administrative burden on the USDOC, as well as overlapping
deadlines for interested parties and the USDOC. 110 The commencement of the three tranches is
expected in April, May , and June of 2018, respectively. The United States' proposed timetable 111
suggests that , between April and November 2018, the USDOC will: (i ) "finalize [its] staggered
schedule, considering, for example, whether tranches are staggered by product or by type o f
determination, e.g., investigation rather than administrative review "; (ii) collect additional
information through, inter alia , the development, finalization, and issuance of questionnaires
and/or information requests, the receipt of comments upon the re sponses received , and the
development and issuance of possible follow -up questions and comments 112; and (iii) determine
the approach to be used for the first tranche of preliminary Section 129 determinations. According
to the United States, the USDOC will co ntinue to work in tranches until December 2018, by when
preliminary determinations in all three tranches will have been issued. The United States adds
that, between October 2018 and March 2019, the USDOC will afford interested parties the
opportunity to co mment on these preliminary determinations ; that the USDOC may need to hold
hearings and/or conduct verifications ; and that the USDOC will also analyse comments received.
According to the United States, the USDOC will be able to complete its work on the three tranches,
including issuance of the final Section 129 determinations and addressing any ministerial error
allegations relating to them, in the 3-month period ending in May 2019. Also in May 2019, the
United States expects the USTR and the USDOC to engag e in consultations with congressional
committees, and the USTR to direct the USDOC to implement the final determinations in all of the
Section 129 proceedings. Based on these considerations, the United States indicates that it will
need approximately 13 mo nths – from the issuance of the preliminary Sec tion 123 determination
in April 2018 through May 2019 – to complete the Section 129 proceedings.113

106 United States' submission, paras. 38-39; China's submission, para. 49; parties' responses to
questioning at the hearing.
107 United States' submission, paras. 7 and 26; China's submission, paras. 27, 36 and 38; China's
response to questioning at the hearing.
108 United States' submission, para. 49.
109 United States' submission, para. 40; response to questioning at the hearing. In its submission, the
United States notes that the Section 129 proceedings for each of the 38 determinations, including the
13 original investigations and 25 administrative reviews, "likely" would need to be separate. (United States'
submission, para. 40) At the hearing, the United States clarified that the use of the term "likely" is to denote a
future occurrence and is not meant to suggest that it is contemplating anything different.
110 At the hearing, the United States clarified that these overlapping deadlines occur as interested
parties often have the same private counsel. (United States' response to questioning at the hearing)
111 United States' submission, para. 49.
112 The United States explains that the USDOC will need to solicit this additional information so as to
determine, based on positive evidence, whether the relevant exporters or producers are separate legal entities.
(United States' submission, para. 27)
113 I understand this 13-month period to be reflected in the United States' proposed timetable as
follows: (i) approximately 6 months for the USDOC to issue preliminary determinations; (ii) approximately
3 months for interested parties to submit briefs to the USDOC and for the USDOC to hold hearings, conduct
verifications, as well as analyse and prepare responses to comments from interested parties;
(iii) approximately 2 months for the USDOC to issue final determinations and for the USTR to issue a letter
directing the USDOC to implement the final determinations; and (iv) approximately 2 additional months due to

China contends that the United States should be able to complete the Section 129 3.41.
proceedings within 5 and a hal f months. 114 In China's view, all of the Section 129 proceedings
should be run in parallel. China highlights that, while this dispute technically concerns
38 anti-dumping determinations, it in fact concerns 13 anti -dumping cases, some of which consist
of multiple-segment proceedings.115 According to China, the redeterminations could be streamlined
because the USDOC could concurrently conduct multiple determinations with respect to the same
investigation, and the analysis required would be simpler and the time needed shorter with respect
to subsequent administrative reviews that raise the same issue, for example with respect to the
SRP.116 China argues that the United States' proposal to undertake the implementation of the
DSB's "as applied " recommendations and rul ings in 13 months is in "gross violation " of
Section 129 of the URAA given that this provision imposes a maximum of 180 days to issue a
redetermination.117 According to China, this period of 180 days includes all fact -finding,
verifications, hearings, and preliminary determinations.118 China also suggests that, in ascertaining
the time period that would be reasonable for completion of the Section 129 redeterminations,
I look for "guidance" from the provisions of US law that govern anti -dumping determinat ions.
According to China, under the relevant regulations, the USDOC is permitted 215 days "to
undertake an anti -dumping determination from scratch".119 In this regard, China underlines that
the nearly 400-day period proposed by the United States to conduct t he Section 129 proceedings
in this dispute is almost double the length prescribed for original investigations. 120 China adds that
this goes against the reasoning of previous arbitrators under Article 21.3(c) of the DSU, who have
recognized that a redetermina tion should be shorter than an original investigation because the
implementing Member is "only required to conduct a re -determination to implement a limited
number of DSB rulings of inconsistency. "121 China also argues that no additional time should be
granted for on-site verifications given that such verifications are not required under Section 129 of
the URAA and seldom carried out by the USDOC in redetermination processes. 122 In further
support of its proposed 5 and a half month period for the Section 129 proceedings, China refers to
information published in relation to the Section 129 proceedings undertaken in response to the
DSB's recommendations and rulings in US – Shrimp and Sawblades , showing that the USDOC
completed its redetermination in that dispute in 180 days and that the USTR directed
implementation of that determination 18 days later.123
I begin by considering the United States' proposed approach to the various Section 129 3.42.
proceedings, including whether these proceedings need to be staggered or conducted concurrently.
As noted above, the United States identifies the large number of redeterminations needed, as well
as the associated administrative workload and due process considerations , as key reasons for
staggering the Section 129 proceedings in tranches.
China asserts that the United States' argument regarding the USDOC workload is not a 3.43.
relevant consideration in determining the reasonable period of time , and that, in any event , the
USDOC is capable of h andling a large number of investigations and reviews in parallel. 124 I recall

the fact that the USDOC's conduct of the redeterminations will be staggered in three tranches. (United States'
submission, para. 49)
114 China's submission, para. 27. See also paras. 54-56. China highlights that a Section 129 proceeding
involves three stages: (i) a consultation stage, which is to be conducted "'promptly' after the circulation of the
report"; (ii) a determination stage, which is to take place within 180 days; and (iii) a final consultation stage.
According to China, the first consultation stage should have taken place after the circulation of the Panel
Report in this dispute. China further submits that the determination stage can be completed within 5 months,
and that the final consultation stage can be completed within 15 days. (Ibid., paras. 51-56)
115 China's submission, para. 61.
116 China's submission, paras. 55 and 61; response to questioning at the hearing.
117 China's submission, para. 57. See also paras. 52 and 55.
118 China's response to questioning at the hearing.
119 China's submission, para. 58. See also China's opening statement at the hearing. As explained at
para. 3.46. and fn 135 below, the United States disputes that the USDOC is required by law to complete
original investigations within 215 days.
120 China's submission, para. 58.
121 China's submission, para. 58 (quoting Awards of the Arbitrators, Japan – DRAMS (Article 21.3(c)),
122 According to China, the USDOC conducted verifications in only three of 20 recent Section 129
proceedings. (China's submission, para. 59 and fn 67 thereto)
123 China's response to questioning at the hearing (referring to the dispute in US – Shrimp and
Sawblades (DS422)).
124 China's submission, para. 64.

that several previous arbitrators have considered that, in principle, the workload of the
implementing authority is not relevant to the determination of the reasonable period of ti me for
implementation of the DSB's recommendations and rulings .125 I share that view. I further note
that, in its submission, the United States sets out a possible division of the redeterminations into
three tranches: one tranche for the redeterminations in respect of 13 investigations, a
second tranche for the redeterminations in respect of 13 administrative reviews, and a third
tranche for the redeterminations to be made in respect of the remaining 12 administrative
reviews. At the same time, the United States explains that this proposed division of work is merely
"illustrative", and that the USDOC expects to consider other possible ways of grouping
redeterminations into tranches, for example by product or by type of determination (investigation
or administr ative review). 126 In my view, the proposed approach of addressing the
redeterminations in tranches is a matter for the US authorities. In this regard, previous arbitrators
have said that an implementing Member has a measure of discretion in choosing the mean s of
implementation that it deems most appropriate. 127 Indeed, it is just this type of flexibility, within
their respective legal systems, that Members are expected to utilize in order to achieve prompt
compliance with DSB recommendations and rulings. I note that the commonality in the issues to
be considered and the relationship between original investigations and subsequent administrative
reviews for the same products are such that it may be possible for the USDOC to expedite its work
for many of the redeterminations.
As regards the 180 -day period referred to in Section 129(b)(2) of the URAA , the 3.44.
United States contests China's assertions that this provision constrains the USDOC to carry out all
aspects of a redetermination within a maximum of 180 days and that, therefore, the 13 -month
period proposed by the United States is inconsistent with its own statute. 128 The United States
explains that Section 129(b)(2) does not set any ove rall limit on the length of time that may be
used to complete all of the steps involved in a redetermination, because the 180 -day period to
which it refers is triggered not when the USDOC begins its work pursuant to Section 129, but only
when the USTR make s a written request to the USDOC relating to the redetermination. The
United States adds that nothing in the statute precludes the USDOC from commencing a
Section 129 proceeding prior to receipt of a written request from the USTR, and beginning, for
example to issue questionnaires to parties prior to the receipt of such a request, as has been done
in prior impleme ntation proceedings. The United States recognizes that there have been cases
where an entire Section 129 proceeding could be completed within 180 days; however, whether
this can be done or not is decided on a case -by-case basis.129 The United States rejects, therefore,
China's invocation in this dispute of the time taken for the Section 129 proceedings undertaken in
response to the DSB's recommendatio ns and rulings in US – Shrimp and Sawblades . The
United States explains that the implementation required in this case is very different from that in
US ‒ Shrimp and Sawblades, given that here the USDOC will be applying a new methodology and
presumably gathering information about the relationship between importers and exporters.130
I note that the period of 180 days specified in the text of Section 129(b)(2) of the URAA 3.45.
refers to the period within which, following the receipt of a written request from the USTR , the
USDOC must issue a determination implementing the recommendations and rulings of the DSB. As
the United States points out, it is the USDOC's receipt of a written request from the USTR, rather
than the commencement of a Section 129 proceeding, that tr iggers the start of the 180 -day
period. Such request could, in principle, be received before or after the USDOC begins its work on
the redetermination. Moreover, subparagraphs (1), (3), and (4) of Section 129(b) set out other
actions involving the USTR, th e USDOC, and Congress that are to be carried out both before and
after the written request has been made pursuant to Section 129(b)(2). I am therefore not
persuaded by China's assertion that Section 129(b)(2) establishes a maximum time period within
which all steps of a Section 129 redetermination must be completed. Instead, as previous

125 Awards of the Arbitrators, US – 1916 Act (Article 21.3(c)), para. 38; US – Countervailing Measures
(China) (Article 21.3(c)), para. 3.49; US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.55; US – Washing
Machines (Article 21.3(c)), para. 3.63.
127 Awards of the Arbitrators, Brazil – Retreaded Tyres (Article 21.3(c)), para. 48; China – GOES
(Article 21.3(c)), para. 3.4; US – Countervailing Measures (China) (Article 21.3(c)), para. 3.3; US – Washing
Machines (Article 21.3(c)), para. 3.8.
128 United States' response to questioning at the hearing.
129 United States' response to questioning at the hearing.
130 United States' response to questioning at the hearing.

arbitrators have done 131, I accept the United States' explanations regarding the scope of this
provision. This is, of course, without prejudice to the question of how much time is reasonably
needed to conduct the Section 129 proceedings in this dispute.
I turn next to the question of the relevance, for the reasonable period of time for 3.46.
implementation, of the relative scope of original investigations and administrative reviews, on the
one hand, and redeterminations, on the other hand. Relying on the reasoning of previous
arbitrators, China argues that, since the scope of the redeterminations needed is much more
limited, these proceedings require significantly less time than the t ime required in original
proceedings.132 I accept the logic of this proposition. At the same time, I am mindful that the
length of time needed for original investigations under US law is contested. While China asserts
that such proceedings may take a maximum of 215 days133, the United States contends that they
may take up to 355 days.134
In considering the time that is reasonably necessary to conduct the requisite Section 129 3.47.
proceedings in this dispute, I note that, as clarified by the United States at the hearing, there is no
provision of US law that mandates that all steps taken in original investigations must also be taken
in Section 129 redeterminations.135 Moreover, the Section 129 redeterminations may well be more
limited in scope than the proceed ings in which the original, WTO -inconsistent determinations were
made. Yet, as noted above, the United States views the development of an alternative analysis for
single-exporter treatment as a WTO-consistent option for implementation in this dispute, and adds
that this might entail a move from a presumption to a fact -based, case -by-case analysis. 136
I consider that this renders it less likely that the USDOC will be able to make all of the required
re-determinations without re -opening its factual record in at least some of the relevant
proceedings.
These considerations are also relevant to the disagreement between the parties on whether 3.48.
or not my determination of the reasonable period of time should account for the time that may be
needed for the USDOC to hold hearings and conduct verif ications as part of the Section 129
proceedings. It is undisputed that: (i) the USDOC is not required to conduct verifications in such
proceedings; (ii) pursuant to Section 129(d), the USDOC may, "in appropriate cases ", hold a
hearing; and (iii) in practice, the USDOC often does not take either of these steps in a Section 129
proceeding. Nevertheless, bearing in mind the nature of the implementation that the United States
proposes to undertake in these redeterminations, and mindfu l that investigated exporters and
producers themselves benefit from the opportunity to defend their interests in hearings and
through the process of verification, I would be reluctant to determine any period of time for
implementation that would foreclose the possibility that such procedural steps could be taken if
and when warranted. Lastly, with respect to the 1 month that the United States indicates is usually
taken for correction of any ministerial errors137, the United States accepted at the hearing that the
process of addressing ministerial errors can be conducted concurrently with the process of
consulting Congress.138
On the basis of the foregoing, I consider that the United States could reasonably complete 3.49.
all of the Section 129 redeterminations in resp ect of the DSB's "as applied" recommendations and
rulings concerning the 38 anti -dumping determinations found to be WTO -inconsistent in
significantly less time than the 13 -month period it has proposed. At the same time, I believe that
the Section 129 redeterminations to be undertaken in this dispute will require more than the 5 and
a half months proposed by China.

131 Awards of the Arbitrators, US – Countervailing Measures (China) (Article 21.3(c)), para. 3.41;
US – Shrimp II (Viet Nam) (Article 21.3(c)); para. 3.46; US – Washing Machines (Article 21.3(c)), para. 3.47.
132 China's submission, para. 58 (referring to Awards of the Arbitrators, Japan – DRAMS (Korea)
133 China's submission, para. 58; opening statement at the hearing.
134 The United States explained at the hearing that US law allows for the possibility of extension of the
deadlines for the issuance of the preliminary and final determinations in an anti-dumping investigation. The
United States added that, when account is also taken of the time needed to deal with any potential ministerial
errors, an entire investigation may take 355 days. (United States' opening statement at the hearing)
135 United States' response to questioning at the hearing.
136 United States' opening statement and response to questioning at the hearing.
137 United States' submission, para. 46.
138 United States' response to questioning at the hearing.

Particular circumstances of this dispute 3.4.2
The United States identifies the following as "particular circumstances" of this dispute that, 3.50.
in its view, weigh in favour of a longer period of time for implementation: (i) the number and
magnitude of modifications to the challenged measures; (ii) the procedural requirements under its
domestic law; (iii) the complexity and novelty of the issues involved ; (iv) the current workload of
the USDOC; and (v) the continuing formation of the US administration and the fact that many key
positions at the USDOC have yet to be filled. 139 The United States also points to the agreement
reached by China and the European Union in EC – Fasteners (China), setting the reasonable period
of time for implementation by the European Union at 14 months and 2 weeks.140 The United States
highlights the "similarity of one of the major substantive issues" in EC – Fasteners (China) and this
dispute141, and adds that "the significantly larger number of administrative determinations " in the
present dispute 142 warrants a substantially longer reasonable period of time. 143 In addition, the
United States emphasizes that China made a "choice" to bring "as applied " claims against
38 distinct anti -dumping determinations. 144 For the United States, when a complaining Member
chooses to bring a dispute of this magnitude, it must recognize that the responding Member will
need more time to implement the DSB's recommendations and rulings.145
For its part, China contends that I should take account of w hat it alleges to be the 3.51.
United States' record of failing to meet previous reasonable period of time deadlines in reaching
my determination of the reasonable period of time in this dispute.146
I have addressed several of t hese circumstances above. With respect to the remaining 3.52.
circumstances advanced by the United States, China argues that any additional workload arising
from the DSB's recommendations and rulings in this dis pute and practical challenges the USDOC
may face in handling that workload are not relevant to the determination of the reasonable period
of time for implementation of the DSB's recommendations and rulings.147 China also disagrees that
the reasonable period of time agreed by the parties in EC – Fasteners (China) is relevant to my
determination of the reasonable period of time in this dispute. In particular, China argues that,
contrary to the present dispute, the DSB's recommendations and rulings in EC ‒ Fasteners (China)
required implementation through legislative means, which is more time-consuming th an the
means of implementation proposed by the United States in this dispute. In addition, China
contends that the USDOC is capable of conducting all relevant redeterminations in parallel and that
China's "choice" to challenge 38 anti-dumping determinations reflects the USDOC's widespread use
of WTO -inconsistent measures and does not warrant the grant of a longer period of time for
implementation.148
With respect to the allegedly heavy workload of the USDOC, the United States argues that 3.53.
my determination of the reasonable period of time should account for the administrative burden
associated with the addition of 38 implementation proceedings on top of the USDOC's existing
heavy workload. 149 As I have noted above, previous arbitrators have declined to find that the

139 United States' submission, paras. 10 and 50-54. With respect to the current workload of the USDOC,
the United States argues that the USDOC recently experienced "a significant increase in new
anti-dumping and countervailing duty petitions covering an array of different products and countries" and that,
as of 8 November 2017, there were 77 ongoing anti-dumping and countervailing duty investigations,
129 ongoing periodic reviews, and seven ongoing new shipper reviews. (Ibid., paras. 51-52)
140 United States' submission, para. 11.
141 United States' submission, para. 12.
142 The United States contends that the reasonable period of time should account for the need to
conduct "significant additional analysis" on its part, owing to the 38 determinations that China chose to
challenge in this dispute, as opposed to one determination in EC – Fasteners (China). (United States'
submission, paras. 9 and 12-13)
143 United States' submission, para. 12.
144 United States' submission, para. 13.
145 Ibid.
146 China's opening statement at the hearing. China also submits that I should take into account the
United States' early awareness of its implementing obligations in my determination of the reasonable period of
time. (China's submission, paras. 31, 40, 42 and 46) I have addressed this issue at paragraphs 3.27. -
3.30. above.
147 China's submission, paras. 66-68. See also para. 64.
148 China's submission, paras. 30-32 and 65.
149 United States' submission, para. 52; response to questioning at the hearing.

workload of the implementing authority warranted a longer period of time for implementation. 150
In this dispute, the United States has neither de monstrated the impact that the implementation
process would have on the USDOC's workload, nor explained how such workload should be taken
into account in my determination of the reasonable period of time. Moreover, I recall that the
implementing Member is expected to use all available flexibilities within its legal system to ensure
"prompt compliance" with the DSB's recommendations and rulings in accordance with Article 21 of
the DSU.151 In my view, prioritizing compliance action in respect of the DSB 's recommendations
and rulings at issue in these proceedings would constitute an exercise of flexibility available to the
USDOC, which it would be expected to utilize. 152 Accordingly, I do not consider the USDOC's
workload to be relevant to my determination of the r easonable period of time for implementation
in this dispute.
Regarding the continuing formation of the US administration and the fact that certain key 3.54.
positions at the USDOC remain vacant, the United States explained at the hearing that, even
though an "extra month here or there " has not been added to its proposed schedule for this
reason, this factor was nevertheless taken into account in developing that schedule. 153 The
United States added that, while this "particular circumstance " affects both proceedings under
Section 123 and Section 129 of the URAA , the former is affected relatively more, given that it is a
policy process. 154 Although the United States has clarified, to some extent, the stages of the
implementation process where this factor could have an im pact, it has not persuaded me that the
USDOC would not be able to use the flexibilities and the staff available to it to act with appropriate
dispatch in achieving compliance with its WTO obligations in this dispute. Therefore, I do not
consider this to be a particular circumstance relevant to the determination of the reasonable period
of time for implementation in this dispute.
 I am similarly unpersuaded that I should take account of the reasonable period of time 3.55.
agreed by the parties in EC – Fasteners (China). The DSB recommendations and rulings in that
dispute did not apply to the United States. Rather, they concerned a measure taken by another
WTO Member, and implementation was undertaken in a different legal system. 155 For these
reasons, I consider that the reasonable period of time agreed by China and the European Union in
EC – Fasteners (China) is not relevant to my determination in this arbitration.
Finally, with respect to China's argument regarding the United States' alleged record of 3.56.
failing to comply within applicable reasonable periods of time in previous disputes , I note that the
United States contests the existence of such a track-record.156 I am also mindful that each dispute,
and the implementation process that may follow the DSB's recommendations and rulings, embody
their own set of facts and context. Thus, I do not consider any such alleged track -record to be a
particular circumstance relevant to my determination of the reasonable period of time for
implementation in this dispute.
AWARD 4
In light of the foregoing considerations, the "reasonable period of time" for the United States 4.1.
to implement the recommendations and rulings of the DSB in this dispute is 15 months, from
22 May 2017, that is, from the date on which the DSB adopted the Panel and Appellate Body
Reports in this dispute. The reasonable period of time for implementation will expire on
22 August 2018.

150 Awards of the Arbitrators, US – 1916 Act (Article 21.3(c)), para. 38; US – Countervailing Measures
(China) (Article 21.3(c)), para. 3.49; US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.55; US – Washing
Machines (Article 21.3(c)), para. 3.63.
151 See Awards of the Arbitrators, US – Offset Act (Byrd Amendment) (Article 21.3(c)), para. 64;
Japan – DRAMs (Korea) (Article 21.3(c)), para. 25; Brazil – Retreaded Tyres (Article 21.3(c)), para. 73;
US – Stainless Steel (Mexico) (Article 21.3(c)), para. 42; China – GOES (Article 21.3(c)), para. 3.4;
US ‒ Countervailing Measures (China) (Article 21.3(c)), para. 3.49; US – Shrimp II (Viet Nam)
(Article 21.3(c)), para. 3.55; Colombia – Textiles (Article 21.3(c)), paras. 3.51-3.53; US – Washing Machines
(Article 21.3(c)), para. 3.9.
152 Award of the Arbitrator, US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.55.
153 United States' response to questioning at the hearing.
154 United States' response to questioning at the hearing.
155 See Award of the Arbitrator, US – Shrimp II (Viet Nam) (Article 21.3(c)), para. 3.38.
156 United States' response to questioning at the hearing.

ANNEX A
EXECUTIVE SUMMARY OF THE UNITED STATES' SUBMISSION
1. The amount of time a Member requires for implementation of DSB recommendations
depends on the particular facts and circumstances of the dispute, including the scope of the
recommendations and the types of procedures required under the Member's laws to make the
necessary changes in the measures at issue. Specific circumstances identified in previous awards
as relevant to the Arbitrator's determination of the RPT include: (1) the legal form of
implementation; (2) the technical complexity of the measure the Member must draft, adopt, and
implement; and (3) the period of t ime in which the implementing Member can achieve that
proposed legal form of implementation in accordance with its system of government.
2. The United States would draw the Arbitrator's attention to the reasonable period of time to
which China agreed pursuant to Article 21.3(b) of the DSU in the EC – Fasteners (China) dispute.
In that dispute, China reached agreement with the European Union on a reasonable period of time
of 14 months and two weeks. While EC – Fasteners (China) involved an "as such" finding and "as
applied" findings with respect to one antidumping determination, this dispute involves an "as such"
finding on a very similar measure and "as applied " findings concerning 38 separate
determinations. This dispute also involves "as applied f indings" with respect to four of those
38 determinations concerning the use of the alternative, average -to-transaction comparison
methodology and "zeroing". The similarity of one of the major substantive issues in these two
disputes, coupled with the signi ficantly larger number of administrative determinations involved
here, warrants a substantially longer compliance period in this dispute, as China logically should
agree. When choosing to bring a dispute of this magnitude, the complaining Member must
recognize that it will take more time for the responding Member to implement any and all adverse
findings.
3. Addressing the numerous findings in this dispute requires a multi -phase process. The most
practical way under U.S. law to implement the recommendations o f the DSB would be to conduct
proceedings under both section 123 and section 129 of the Uruguay Round Agreements Act
("URAA"). First, the United States contemplates conducting a proceeding pursuant to section 123
of the URAA to address the Panel's "as such" findings under the AD Agreement. Second, the United
States contemplates conducting proceedings pursuant to section 129 of the URAA to address the
Panel's "as applied " findings as they relate to 13 original investigations and 25 administrative
reviews. The United States anticipates that it will not be possible to commence the 38 section 129
proceedings (Phase II) until the section 123 proceeding (Phase I) has been mostly completed. The
United States expects that a ny approach to address the DSB recommendati ons concerning the
Panel's "as such" findings under the AD Agreement will need to be developed through the section
123 proceeding before it could be applied or adapted in the 38 section 129 proceedings concerning
the challenged determinations. Therefore, P hases I and II must be undertaken sequentially,
although there could be a small degree of overlap in the two phases.
4. Both parties, as well as the WTO dispute settlement system as a whole, have a strong
interest in setting the RPT at a length that allows for an implementation process that takes account
of all available information and uses a well -considered approach to implementing the findings in
the Appellate Body and Panel reports. In this dispute, the RPT determined by the Arbitrator should
be of suffic ient length to allow the United States to address all of the various DSB
recommendations in a manner consistent with relevant WTO obligations. Such a result would
preserve the rights of the United States to have a reasonable time for compliance and to impo se
appropriate antidumping duties, while at the same time preserving China's rights to ensure that
antidumping duties are imposed in accordance with WTO rules. If the RPT is too short to permit
the United States to address the DSB's recommendations effecti vely, the likelihood of a "positive
solution" to the dispute would be reduced.
5. The volume and complexity of the DSB's recommendations – in particular the "as applied"
findings related to the 38 separate determinations that China chose to challenge togethe r in this
one dispute – and U.S. legal requirements should be considered in determining the appropriate
reasonable period of time to secure a "positive solution" for this dispute. For the reasons outlined
in this submission, a period of no less than 24 mon ths is a reasonable period of time for
implementation.

ANNEX B
EXECUTIVE SUMMARY OF CHINA'S SUBMISSION
1. The reasonable period of time ( "RPT") for the United States to implement the
recommendations and rulings of the Dispute Settlement Body ("DSB") in this dispute should be six
months from the adoption of the Panel and Appellate body reports. Article 2 1 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU") requires a Member to
promptly comply with DSB recommendati ons, which, according to jurisprudence developed by
arbitrators under Article 21.3(c), requires compliance within the shortest period possible within the
legal system of the Member. The particular facts and circumstances of the dispute can bear on the
arbitrator's finding of a reasonable period of time, but only to the extent they assist the arbitrator
in determining the shortest period possible in which the Member can comply.
2. The United States' 24 month -request ignores the United States' long period of ina ctivity
after it became aware it would have to implement the Panel's finding s. The United States knew its
implementation obligations no later than November 2016, when it chose not to appeal the Panel
report. It should have been preparing for compliance sin ce that time, and under no circumstances
should it be granted an RPT that includes time after the DSB's recommendations and rulings were
adopted for pre -commencement planning and analysis. This is particularly true considering that
China requested consultations with the United States nearly four years ago now, and its exporters
have suffered under USDOC's WTO -inconsistent anti -dumping duties for the entire intervening
time.
3. The United States reliance on the reasonable period of time agreed to by China in EC –
Fasteners (China) is misplaced. Contrary to the United States' contention, China believes that the
RPT for this dispute should be substantially shorter than that in EC – Fasteners (China) . The
jurisprudence makes clear that compliance action requiring legislative means will be more time
consuming than implementation that can be conducted entirely administratively. The "as such "
ruling in EC – Fasteners (China) concerned a statute, not an administrative measure, as here,
suggesting the RPT in that dispute should be longer than here. Additionally, as the "as such" ruling
in EC – Fasteners (China) was appealed, unlike here, the European Union had far less time to
prepare for implementation prior to the issuance of the DSB's recommendations than the United
States has had in this dispute, again suggesting the need for a longer RPT. Finally, the number of
"as applied" determinations that must be addressed is a red herring, as the USDOC is capable of
running its redeterminations in parallel.
4. The United States' request for 24 months overstates the complexity of compliance. China
does not object to the United States' proposal to conduct a proceeding pursuant to section 123 of
the Uruguay Round Agreements Act ("URAA") to address the Panel's "as such" findings under the
Anti-Dumping Agreement, and then to conduct proceedings pursuant to section 129 of the URAA
to address the Panel's "as applied" findings. Nor does China object to the United States waiting to
commence its section 129 proceedings unt il the preliminary determination in the section 123
proceeding has been issued. China, does, however, object to the time the United States proposes
each of these processes should take. The USDOC should have concluded any and all "pre-
commencement" preparatory work prior to the adoption of the recommendations and rulings, and
should have been able to produce a preliminary determination under Section 123 in two weeks.
The DSB's "as applied " recommendations relating to 13 original investigations and
25 administrative reviews undertaken by the USDOC likewise will not require anywhere near the
13 months requested by the United States, which in any case is more than is permitted under
United States' law. Rather, this aspect of the United States' compliance obligat ions can be
completed in five-and-a-half months.
5. China's "choice" to challenge 38 separate USDOC determinations is a function of the
widespread use of WTO-inconsistent measures by USDOC and should not be the basis for a longer
RPT. To the extent the Unite d States is arguing for a longer RPT on the basis that the supposedly
large number of Section 129 proceedings will be work -intensive, previous arbitrators have
consistently rejected the proposition that the workload faced by the implementing agency of the
implementing Member is a relevant "particular circumstance" to be considered by the arbitrator in
setting the RPT.