UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS
Document: RECOURSE TO ARTICLE 21.5 OF THE DSU BY JAPAN AB-2009-2
Date: 18 August 2009
Document codes: WT/DS322/AB/RW
Complainant: Japan
Respondent: U.S.
Third parties: Argentina, China, EU, Hong Kong, India, South Korea, Mexico, New Zealand, Norway, Taiwan, Thailand
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.2, 9.3, 5.8, 3, 9.5, 11.1, 11.2, 11.3, 1  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – MEASURES RELATING TO ZEROING
AND SUNSET REVIEWS

RECOURSE TO ARTICLE 21.5 OF THE DSU BY JAPAN

AB-2009-2

Report of the Appellate Body

APPELLATE BODY

Recourse to Article 21.5 of the DSU by Japan

United States, Appellant
Japan, Appellee

China, Third Participant
European Communities, Third Participant
Hong Kong, China, Third Participant
Korea, Third Participant
Mexico, Third Participant
Norway, Third Participant
Separate Customs Territory of Taiwan, Penghu,
 Kinmen and Matsu, Third Participant
Thailand, Third Participant
 AB-2009-2

 Present:

 Sacerdoti, Presiding Member
 Bautista, Member
 Zhang, Member

I. Introduction
1. The United States appeals certain issues of law and legal interpretations developed in the
Panel Report, United States – Measures Relating to Zero ing and Sunset Reviews – Recourse to
Article 21.5 of the DSU by Japan (the "Panel Report").
1 The Panel was established pursuant to
Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the
"DSU") to consider a complaint by Japan con cerning the existence and consistency with the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the
"Anti-Dumping Agreement ") and the General Agreement on Tariffs and Trade 1994 (the
"GATT 1994") of measures taken by the United States to comply with the recommendations and
rulings of the Dispute Settlement Body (the "DSB") in US – Zeroing (Japan).
2

1, 24 April 2009.
2The recommendations and rulings of the DSB resulted from the adoption, on 23 January 2007, by the
DSB, of the Appellate Body Report, WT/DS322/AB/R, and the Panel Report, WT/DS322/R, in US – Zeroing
(Japan). In this Report, we refer to the panel that considered the original complaint brought by Japan as the
"original panel", and to its report as the "original panel report".

2. This dispute concerns the use of the so-ca lled "zeroing" methodology by the United States
Department of Commerce (the "USDOC") when calculating margins of dumping.
3 In the original
proceedings, the Appellate Body upheld the panel's finding that the United States' zeroing procedures
constituted a measure that can be challenged "as such " in dispute settlement proceedings in the World
Trade Organization (the "WTO"). 4 The original panel found that, by maintaining model zeroing
procedures in the context of original investigatio ns, the United States acts inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement.5 The Appellate Body also found that:
(a) the United States acts inconsistently with Articles 2.4 and 2.4.2 of the Anti-Dumping
Agreement by maintaining zeroing procedures when calculating margins of dumping
on the basis of transaction-to-transaction comparisons in original investigations6;
(b) the United States acts inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 by maintaining zeroing procedures in
periodic reviews7; and
(c) the United States acts inconsistently with Articles 2.4 and 9.5 of the Anti-Dumping
Agreement by maintaining zeroing procedures in new shipper reviews.8
3. As regards Japan's "as applied" claims, the orig inal panel held that, by using model zeroing in
the anti-dumping investigation regarding imports of cut-to-length carbon quality steel products from
Japan, the United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement .9
This finding of the original panel was not appealed. The Appellate Body additionally found that:

3Before the original panel, Japan used the term "zeroing" to denote the methodology under which the
USDOC "disregards intermediate negative dumping marg ins ... through the USDOC's [Anti-Dumping] Margin
Calculation Computer Programme and other related procedures, in the process of establishing the overall
dumping margin for the product as a whole". (Original Panel Report, footnote 668 to para. 7.45, quoting the
original Request for the Establishment of a Panel by Japan, WT/DS322/8, para. 1(a) (attached as Annex A-2 to
the Original Panel Report))
4Appellate Body Report, US – Zeroing (Japan), para. 190(a).
5Original Panel Report, para. 7.258(a). This finding of the original panel was not appealed.
6Appellate Body Report, US – Zeroing (Japan), para. 190(b).
7Appellate Body Report, US – Zeroing (Japan), para. 190(c). In this Report, we use the term "periodic
review" to describe the periodic review of the amount of anti-dumping duty as required in Section 751(a) of the
United States Tariff Act of 1930, United States Code , Title 19, Section 1675(a). That provision requires the
USDOC to review and determine the amount of any anti-dumping duty at leas t once during each 12-month
period, beginning on the anniversary of the date of publication of an anti-dumping duty order, if a request for
such a review has been received.
8Appellate Body Report, US – Zeroing (Japan), para. 190(d).
9Original Panel Report, para. 7.258(b).

(a) the United States acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 by applying zeroing procedures in
the 11 periodic reviews at issue in that appeal10; and
(b) the United States acted inconsistently with Article 11.3 of the Anti-Dumping
Agreement by relying, in two sunset review determinations, on margins of dumping
calculated in previous proceedings through the use of zeroing.11
4. The Appellate Body recommended that the DS B request the United States to bring its
measures into conformity w ith its obligations under the Anti-Dumping Agreement and the
GATT 1994.12
5. On 23 January 2007, the DSB adopted the or iginal panel and Appellate Body reports. 13
Pursuant to Article 21.3(b) of the DSU, the Unite d States and Japan agreed that the reasonable period
of time to implement the recommendations and ru lings of the DSB would be 11 months, expiring
on 24 December 2007.14
6. On 14 February 2007, the USDOC published a notice of revocation of the anti-dumping duty
order on corrosion-resistant carbon steel flat products from Japan, which related to one of the sunset
reviews that Japan challenged in the original proceedings.15
7. In its status report of 8 November 2007, the Un ited States informed the DSB that the USDOC
had published a notice indicating its intention to no longer use zeroing when performing weighted
average-to-weighted average comparisons in original investigations. This change became effective as
of 22 February 2007.
16 The United States added that it was "continuing to consult internally on steps
to be taken with respect to the other DSB recommendations and rulings."17

10Appellate Body Report, US – Zeroing (Japan), para. 190(e).
11Appellate Body Report, US – Zeroing (Japan), para. 190(f).
12Appellate Body Report, US – Zeroing (Japan), para. 191.
13WT/DS322/15.
14WT/DS322/20.
15Revocation Pursuant to Second Five-Year ("Sunset") Reviews of Antidumping and Countervailing
Duty Orders: Certain Corrosion-Resistant Carbon Steel Flat Products from Australia, Canada, Japan, and
France, United States Federal Register, Vol. 72, No. 30 (14 February 2007) 7010 (Panel Exhibit US-A20).
16Antidumping Proceedings: Calculation of the Weig hted-Average Dumping Margins in Antidumping
Investigations; Change in Effective Date of Final Modification, United States Federal Register, Vol. 72, No. 17
(26 January 2007) 3783 (Panel Exhibit US-A8).
17WT/DS322/22. On 6 December 2007 , the United States provided the same status report to the DSB,
with no additional information. (WT/DS322/22/Add.1)

8. On 19 November 2007, the USDOC advised in terested parties that it was initiating
proceedings under Section 129 of the Uruguay Round Agreements Act in order to implement the
DSB's recommendations and rulings concerning the anti-dumping investigation of certain cut-to-
length carbon quality steel products from Japan. On 20 May 2008, the USDOC published a notice of
implementation of the Section 129 de termination, in which it indicated that the margin of dumping of
one Japanese exporter and the "all others" rate had been recalculated without zeroing.
18
9. With respect to the 11 periodic reviews at issue in the original proceedings, the United States
informed the DSB, on 10 January 2008, that:
... in each case the results were supe rseded by subsequent reviews.
Because of this, no further action is necessary for the United States to
bring these challenged measures into compliance with the
recommendations and rulings of the DSB.
19
10. On 21 January 2008, the United States informed the DSB that, through the elimination of
zeroing in weighted average-to-weighted average co mparisons, it had eliminated the single measure
that Japan had challenged in the original proceedi ngs and that the Appellate Body had found to be
inconsistent "as such", and that the United Stat es considered that it had complied with the DSB's
recommendations and rulings with respect to that measure.20
11. Japan did not consider that the United States had brought itself into compliance with the
DSB's recommendations and rulings. Consequently, on 7 April 2008, Japan requested that the matter
be referred to the original panel pursuant to Article 21.5 of the DSU 21, and this occurred
on 18 April 2008.22 Japan requested the Panel to find that the United States had failed to implement
the DSB's recommendations and rulings by mainta ining zeroing procedures in the context of
transaction-to-transaction comparisons in origin al investigations, and under any comparison
methodology in periodic and new shipper reviews, c ontrary to Articles 17.14, 21.1, and 21.3 of the
DSU, Articles 2.4, 2.4.2, 9.3, and 9.5 of the Anti-Dumping Agreement , and Article VI:2 of the
GATT 1994.23 Japan also argued that in the case of five of the 11 periodic reviews that were found to

18Notice of Implementation of Determination under Section 129 of the Uruguay Round Agreements
Act Regarding the Antidumping Duty Order on Certain Cut-to-Length Carbon-Quality Steel Plate Products
from Japan, United States Federal Register, Vol. 73, No. 98 (20 May 2008) 29109 (Panel Exhibit US-A18). As
a result, the margin for Kawasaki Steel Corporation and the "all others" rate decreased from 10.78 per cent
to 9.46 per cent. (Ibid., at 29109)
19WT/DS322/22/Add.2.
20WT/DSB/M/245.
21WT/DS322/27.
22WT/DS322/28.
23Panel Report, para. 3.1(a).

be WTO-inconsistent in the original pr oceedings—Reviews 1, 2, 3, 7, and 8 24—the United States had
failed to implement the DSB's recommendations and rulings regarding the importer-specific
assessment rates determined in those Reviews, cont rary to Articles 17.14, 21.1, and 21.3 of the DSU,
Articles 2.4 and 9.3 of the Anti-Dumping Agreement , and Article VI:2 of the GATT 1994. 25 I n
addition, Japan asserted that four subsequent periodic reviews—Reviews 4, 5, 6, and 9 26—were
"measures taken to comply" that are incons istent with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994. 27 Further, Japan claimed that the United States had
failed to bring one of the two s unset review determina tions found to be WTO-inconsistent in the
original proceedings into conformity with its obligations, in violation of Articles 17.14, 21.1, and 21.3
of the DSU, and Article 11.3 of the Anti-Dumping Agreement.28 Finally, Japan submitted that the
United States acted in violation of Articles II:1(a) and II:1(b) of the GATT 1994 when it took certain

24Review 1 concerned Ball Bearings and Parts Thereof from Japan (1 May 1999
through 30 April 2000), United States Federal Register , Vol. 66, No. 134 (12 July 2001) 36551 (as amended:
United States Federal Register , Vol. 72, No. 231 (3 December 2007) 67892) (JTEKT and NTN); Review 2
concerned Ball Bearings and Parts Thereof from Japan (1 May 2000 through 30 April 2001), United States
Federal Register , Vol. 67, No. 169 (30 August 2002) 55780 (as amended: United States Federal Register ,
Vol. 73, No. 57 (24 March 2008) 15481) (NTN); Review 3 concerned Ball Bearings and Parts Thereof from
Japan (1 May 2002 through 30 April 2003), United States Federal Register , Vol. 69, No. 178
(15 September 2004) 55574 (JTEKT, NSK, and NTN); Review 7 concerned Cylindrical Roller Bearings and
Parts Thereof from Japan (1 May 1999 through 31 December 1999), United States Federal Register , Vol. 66,
No. 134 (12 July 2001) 36551 (JTEKT and NTN); and Review 8 concerned Spherical Plain Bearings and Parts
Thereof from Japan (1 May 1999 through 31 December 1999), United States Federal Register, Vol. 66, No. 134
(12 July 2001) 36551 (NTN). (See Panel Report, footnote 13 to para. 3.1(b)(i))
25Panel Report, para. 3.1(b)(i).
26Review 4 concerned Ball Bearings and Parts Thereof from Japan (1 May 2003
through 30 April 2004), United States Federal Register , Vol. 70, No. 179 (16 September 2005) 54711 (as
amended: United States Federal Register , Vol. 70, No. 203 (21 October 2005) 61252 (NSK)) (as amended:
United States Federal Register , Vol. 70, No. 219 (15 November 2005) 69316 (Nippon Pillow Block ("NPB"))
(JTEKT, NSK, NPB, and NTN); Review 5 concerned Ball Bearings and Parts Thereof from Japan
(1 May 2004 through 30 April 2005), United States Federal Register , Vol. 71, No. 135 (14 July 2006) 40064
(JTEKT, NSK, NPB, and NTN); Review 6 concerned Ball Bearings and Parts Thereof from Japan
(1 May 2005 through 30 April 2006), United States Federal Register , Vol. 72, No. 197 (12 October 2007)
58053 (Asahi Seiko, JTEKT, NSK, NPB, and NTN); and Review 9 concerned Ball Bearings and Parts Thereof
from Japan (Final Results for the Period 1 May 2006 to 30 April 2007), United States Federal Register, Vol. 73,
No. 177 (11 September 2008) 52823 (JTEKT, NPB, and NTN). (See Panel Report, footnote 14 to
para. 3.1(b)(ii))
27Panel Report, para. 3.1(b)(ii). Although Japan had also included a claim under Article VI:1 of the
GATT 1994 in its first written submission to the Panel, the Panel considered that Japan had failed to develop
that claim in its subsequent submissions or statements to the Panel. Accordingly, the Panel considered that
Japan had abandoned its claim under Article VI:1 of the GATT 1994. (Panel Report, footnote 16 to
para. 3.1(b)(ii)) This finding is not appealed.
28Panel Report, para. 3.1(c). Specifically, Japan referred to the sunset review determination
of 4 November 1999 regarding the anti-dumping duty order on anti-friction bearings from Japan found to be
WTO-inconsistent in the original proceedings.

actions to liquidate the entries covered by Reviews 1, 2, 7, and 8 after the expiry of the reasonable
period of time.
29
12. The United States contended that the zeroing pr ocedures challenged "as such" by Japan in the
original proceedings no longer existed because th e United States had ceased to apply the zeroing
procedures in weighted average-to-weighted aver age comparisons in original investigations. 30 T h e
United States requested a preliminary ruling that "subsequent closely connected measures", including
Review 9, were not within th e Panel's terms of reference. 31 Furthermore, the United States requested
a preliminary ruling that Reviews 4, 5, 6, and 9 were not "measures taken to comply" within the
meaning of Article 21.5 of the DSU, and ther efore fell outside the scope of the compliance
proceedings.
32 The United States also argued that it did not have any implementation obligations in
relation to Reviews 1 through 9 because they covere d imports that entered the United States prior to
the expiration of the reasonable period of time. Moreover, the United States argued that it had
complied with the DSB's recommendations and rulings regarding Reviews 1, 2, and 3 by withdrawing
the WTO-inconsistent cash deposit rates with prosp ective effect, and replacing them with new cash
deposit rates determined in subsequent periodic reviews. 33 The United States asserted that it was not
required to take any action to comply with the DSB's recommendations and rulings regarding the
sunset review of 4 November 1999, because th e relevant likelihood-of-dumping determination
continued to be based on a number of dumping margin s not called into question by the findings of the
Appellate Body in the original proceedings. 34 Finally, the United States asked the Panel to refrain
from ruling on Japan's Article II claims, because it was not necessary to do so. The United States also
asserted that the anti-dumping liability giving rise to the liquidation actions challenged by Japan was
incurred prior to the expiry of the reasonable period of time.35
13. The Panel Report was circulated to WTO Members on 24 April 2009. The United States'
appeal concerns the following findings of the Panel:
(a) ... the United States has failed to comp ly with the DSB's recommendations
and rulings regarding the importer-spec ific assessment rates determined in
Reviews 1, 2, 3, 7 and 8 that apply to entries covered by those Reviews that
were, or will be, liquidated after the expiry of the RPT;

29Panel Report, para. 3.1(d).
30Panel Report, para. 3.2.
31Panel Report, para. 3.3.
32Panel Report, para. 3.3.
33Panel Report, para. 3.3.
34Panel Report, para. 3.4.
35Panel Report, para. 3.5.

(i) Accordingly, ... the United States is in continued violation of its
obligations under Articles 2.4 and 9.3 of the [ Anti-Dumping]
Agreement and Article VI:2 of the GATT 199436;

(b) ... the United States has acted inconsisten tly with Articles 2.4 and 9.3 of the
[Anti-Dumping] Agreement and Article VI:2 of the GATT 1994 by applying
zeroing in the context of Reviews 4, 5, 6 and 937;

(d) ... the United States is in violation of Articles II:1(a) and II:1(b) of the
GATT 1994 with respect to certain liquida tion actions taken after the expiry
of the RPT, namely with respect to the USDOC liquidation instructions set
forth in [Panel] Exhibits JPN-40.A and JPN-77 to JPN-80 and the [Customs]
liquidation notices set forth in [Panel] Exhibits JPN-81 to JPN-87.
38
14. In addition, the Panel found that:
(c) ... the United States has failed to comply with the recommendations and
rulings of the DSB regarding the Un ited States' maintenance of zeroing
procedures challenged "as such" in the original proceedings. In particular, ...
the United States has failed to impl ement the DSB's recommendations and
rulings in the context of [transaction-to-transaction] comparisons in original
investigations and under any compar ison methodology in periodic and new
shipper reviews
39;
(i) Accordingly, ... the United States remains in violation of Articles 2.4,
2.4.2, 9.3 and 9.5 of the [ Anti-Dumping] Agreement and Article VI:2
of the GATT 199440;

(e) ... the United States has failed to comp ly with the DSB's recommendations
and rulings with respect to the 1999 sunset review.

36Panel Report, paras. 8.1(a) and 8.1(a)(i). The Panel declined to rule on Japan's claim that, in relation
to Reviews 1, 2, 3, 7, and 8, the United States had ther eby also acted inconsistently with its obligations under
Articles 17.14, 21.1, and 21.3 of the DSU. (Ibid., para. 8.1(a)(ii))
37Panel Report, para. 8.1(b).
38Panel Report, para. 8.1(d).
39Panel Report, para. 8.1(c).
40Panel Report, para. 8.1(c)(i). The Panel declined to rule on Japan's claim that the United States had
thereby also acted inconsistently with its obligations under Articles 17.14, 21.1, and 21.3 of the DSU. ( Ibid.,
para. 8.1(c)(ii))

(i) Accordingly, ... the United States remains in violation of Article 11.3
of the [Anti-Dumping] Agreement.
41

These findings are not appealed by the United States . Nor does the United States appeal the Panel's
finding that Reviews 4, 5, 6, and 9 are "measures taken to comply" within the meaning of
Article 21.5.
15. The Panel concluded that, to the extent that th e United States has failed to comply with the
DSB's recommendations and rulings in the origin al proceedings, these recommendations and rulings
remain operative.
42 The Panel also recommended that the DSB request the United States to bring
Reviews 4, 5, 6, and 9, and the relevant liquidation actions, into conformity with the Anti-Dumping
Agreement and the GATT 1994.43
16. On 20 May 2009, the United States notified the DSB, pursuant to Articles 16.4 and 17 of the
DSU, of its intention to appeal certain issues of law and legal interpretati ons covered in the Panel
Report and filed a Notice of Appeal 44, pursuant to Rule 20 of the Working Procedures for Appellate
Review45 (the " Working Procedures "). On 27 May 2009, the United States filed an appellant's
submission.46 On 15 June 2009, Japan filed an appellee's submission. 47 On the same day, the
European Communities, Korea, Mexico, and Norw ay each filed a third participant's submission 48;
and China, Hong Kong, China, the Separate Cu stoms Territory of Taiw an, Penghu, Kinmen and
Matsu, and Thailand each notified its intention to appear at the oral hearing.49
17. On 29 May 2009, Japan and the United States each requested the Appellate Body Division
hearing this appeal to authorize public observation of the oral hearing. Japan explained that its
request was being made on the understanding th at any information that it had designated as

41Panel Report, paras. 8.1 and 8.1(e)(i). The Panel again declined to rule on Japan's claim that this
failure to implement was inconsistent with the United States' obligations under Articles 17.14, 21.1, and 21.3 of
the DSU. (Ibid., para. 8.1(e)(ii))
42Panel Report, para. 8.2.
43Panel Report, para. 8.2.
44WT/DS322/32 (attached as Annex I to this Report).
45WT/AB/WP/5, 4 January 2005.
46Pursuant to Rule 21 of the Working Procedures.
47Pursuant to Rule 22 of the Working Procedures.
48Pursuant to Rule 24(1) of the Working Procedures.
49Pursuant to Rule 24(2) of the Working Procedures.

confidential would be adequately protected in the c ourse of the hearing. Both participants relied on
the reasoning provided by the Appellate Body in previous appeals 50 where public observation of the
oral hearing had been authorized, and expressed a preference for simultaneous closed-circuit
television broadcast to a separate room. On 2 June 2009, the Division invited the third parties to
comment in writing on the requests of Japan and th e United States, as well as the specific logistical
arrangements proposed in the requests. Comment s were received on 8 June 2009 from Korea, and
on 9 June 2009 from China, the European Commun ities, Hong Kong, China, Mexico, Norway, the
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, and Thailand. The European
Communities, Norway, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu
expressed support for the requests of the particip ants. China, Hong Kong, China, Mexico, and
Thailand expressed the view that the provisions of the DSU do not allow public hearings at the
appellate stage. Korea shared this concern, but did not object to public observation of the oral
hearing.
18. In a Procedural Ruling dated 11 June 2009, th e Appellate Body Division hearing this appeal
authorized the public observation of the oral hear ing and adopted additional procedures on logistical
arrangements in accordance w ith Rule 16(1) of the Working Procedures, which it considered would
address the concerns raised by certain third participants and Japan.51
19. The oral hearing in this appeal was held on 29-30 June 2009. The participants and third
participants were given the opportunity to present oral arguments and respond to questions posed by
the Division hearing the appeal. Public observa tion took place via simultaneous closed-circuit
television broadcast to a separate room.52

50US – Continued Suspension / Canada – Continued Suspension; EC – Bananas III (Article 21.5 –
Ecuador II) / EC – Bananas III (Article 21.5 – US) ; US – Continued Zeroing ; and US – Zeroing (EC)
(Article 21.5 – EC).
51The Procedural Ruling is attached as Annex II to this Report. Notice of the opening of the hearing to
public observation and registration instructions were provided on the WTO website.
52Pursuant to the additional procedures adopted by the Division, China, Hong Kong, China, Korea,
Mexico, and Thailand each requested that its oral statements and responses to questions remain confidential and
not be subject to public observation. A total of 36 individuals registered to view the oral hearing.

II. Arguments of the Participants and Third Participants
A. Claims of Error by the United States – Appellant
1. The Panel's Terms of Reference – Review 9

20. The United States submits that the Panel erred in finding that Review 9 was within its terms
of reference. The United States argues that, cont rary to the Panel's finding, the phrase "subsequent
closely connected measures" in Japan 's panel request does not meet th e requirement in Article 6.2 of
the DSU to "identify the specific measures at issue". In addition, the United States asserts that
Review 9 could not be included in the Panel's terms of reference, because its final results had not yet
been published when the Panel was requested.53
21. Japan's panel request identified five periodic re views that had been the subject of the DSB's
recommendations and rulings in the original proceedings (Reviews 1, 2, 3, 7, and 8) and "three closely
connected periodic reviews that the United Stat es argues 'superseded' the original reviews"
(Reviews 4, 5, and 6). 54 It also referred to "any subsequent closely connected measures". 55 Japan's
panel request also specified that Reviews 1-8 st emmed from three anti-dumping duty orders, namely,
Ball Bearings and Parts Thereof from Japan , Cylindrical Roller Bearings and Parts Thereof from
Japan, and Spherical Plain Bearings and Parts Thereof from Japan.56
22. The United States argues that the phrase "subseque nt closely connected measures" in Japan's
panel request is "broad" and "vague" 57 and can encompass a variety of measures, including
subsequent administrative determin ations, ministerial corrections, or remand determinations in court
proceedings. The United States maintains that th e Panel relied too heavily on the United States'
statement in its first written submission that Japan was trying to include in the Panel's terms of
reference any future periodic reviews related to the eight periodic reviews specifically identified in the
panel request.58 The fact that the United States' speculation proved to be accurate and that it correctly
guessed at Japan's motivation did not excuse Japan fr om complying with the specificity requirement

53Review 9 was initiated on 29 June 2007. Japan submitted its panel request on 7 April 2008. The
Panel was established on 18 April 2008. Preliminar y results for Review 9 were published by the USDOC
on 7 May 2008, and the final results were published by the USDOC on 11 September 2008. The Panel issued
its Report on 24 April 2009.
54See WT/DS322/27, para. 12.
55See WT/DS322/27, para. 12.
56See WT/DS322/27, para. 12.
58United States' appellant's submission, footnote 56 to para. 45 (referring to Panel Report, para. 7.105,
in turn quoting United States' first written submission to the Panel, para. 50).

in Article 6.2.59 The United States considers it "irrelevant" 60 that Review 9 had already been initiated
by the time of the panel request61, because Review 9 was still ongoing at the time of the panel request,
and therefore any challenge to it would have been "premature".62
23. The United States submits that the Panel further departed from the text of the DSU when it
examined whether Japan's challenge to "subsequent closely connected measures" would "violate any
due process objective of the DSU" 63, because there is no requirement in Article 6.2 of the DSU, or
elsewhere in the covered agreements, to show that the respondent's due process right or entitlement to
notice was not respected by the lack of specificity in the panel request. According to the United
States, a panel is not free to override the clearly negotiated text of the DSU because of its own views
on due process. The only showing that the United Stat es was required to make was that Japan did not
specifically identify Review 9 in its panel request.
24. The United States points out that the Appellate Body, in US – Zeroing (EC) (Article 21.5 –
EC), recognized that each periodic review is "separate and distinct", and that each review serves as a
basis for the calculation of the assessment rate for each importer of the entries of subject
merchandise.64 For this reason, the United States believes that each review must be identified in the
panel request. Furthermore, the United States does not consider that Articles 6.2 and 7.1 of the DSU
permitted the Panel to examine measures not identifie d in the panel request because they allegedly
form part of a "continuum" of similar measures that were identified in the panel request, or because
there was an allegedly "high degree of predicta bility" under the United States' anti-dumping system
that they would come into existence subsequent to the panel request.65
25. Additionally, the United States argues that a future periodic review, like Review 9, cannot be
subject to dispute settlement because it was "not yet in existence" at the time of the panel request. 66
The United States submits that, although the Panel a ppropriately referred to the panel's reasoning in

59United States' appellant's submission, para. 45 and footnote 56 thereto.
61United States' appellant's submission, para. 46 (referring to Panel Report, paras. 7.110 and 7.116).
62United States' appellant's submission, para. 46 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC) , paras. 374 and 375, in turn referring to Appellate Body Report, US – Continued
Zeroing, para. 210).
64United States' appellant's submission, para. 44 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), paras. 192 and 193).
65United States' appellant's submission, para. 44 (referring to Panel Report, paras. 7.110, 7.111, 7.115,
and 7.116).
66United States' appellant's submission, paras. 47 and 48.

US – Upland Cotton
67 and, in particular, its reliance on Article 3.3 of the DSU, the Panel failed to take
into account the fact that Review 9 could not ha ve been impairing any benefits accruing to Japan,
within the meaning of Article 3.3 of the DSU, beca use Review 9 did not exist at the time of Japan's
panel request. The Panel improperly distinguished US – Upland Cotton on the basis that Japan's
claim against Review 9 was not "entirely speculative". 68 The United States submits that, on the
contrary, Japan's claim was not "entirely predictable", because, at the time of the panel request, Japan
had no way of knowing whether zeroing would be used in Review 9 or whether the review would be
rescinded after its initiation.69
26. The United States asserts that the Panel's approach is not consistent w ith previous Appellate
Body reports, such as EC – Chicken Cuts and Chile – Price Band System .70 According to the United
States, the Panel failed to recognize that the situa tion arising in this dispute was not one of the
"limited circumstances" referred to by the Appellate Body in EC – Chicken Cuts that would justify
including measures enacted subsequent to the pa nel establishment within its terms of reference. 71
With respect to Chile – Price Band System , the United States explains that the inclusion within the
panel's terms of reference of an amendment to a me asure identified in the panel request was based on
the fact that the subsequent modifications did not change the essence of the measure before the
panel.72 By contrast, in this dispute, each subsequent periodic review is "separate and distinct". 73
Exporters participating in each review may vary; sh ipments, data, and time periods are different; and
the anti-dumping duty rate may change and, in some cases, fall to a de minimis level.74 For the United
States, this illustrates that the use of zeroing alon e is not enough to identify the specific measures at
issue for purposes of Article 6.2.

67United States' appellant's submission, para. 48 (referring to Panel Report, paras. 7.115 and 7.116, in
turn referring to Panel Report, US – Upland Cotton, paras. 7.158-7.160).
68United States' appellant's submission, para. 49 (quoting Panel Report, para. 7.116, in turn quoting
Panel Report, US – Upland Cotton, para. 7.158).
69United States' appellant's submission, para. 50 (quoting Panel Report, para. 7.116). The United States
notes, by way of example, that the USDOC's regulations provide that an administrative review will be rescinded
if all the parties requesting a review withdraw their request for a review within 90 days of the date of publication
of the notice of initiation for that review. This regulatio n also provides that it is within the USDOC's discretion
to extend this time-limit at the parties' request. (Un ited States' appellant's submission, footnote 71 to para. 50
(referring to United States Code of Federal Regulations , Title 19, Section 351.213(d), submitted as Panel
Exhibit US-A2))
70United States' appellant's submission, paras. 51 and 52.
71United States' appellant's submission, para. 51 (referring to Appellate Body Report, EC – Chicken
Cuts, para. 156). (emphasis omitted)
72United States' appellant's submission, para. 52 (referring to Appellate Body Report, Chile – Price
Band System, para. 139).
73United States' appellant's submission, para. 52 (quoting Appellate Body Report, US – Zeroing (EC)
(Article 21.5 – EC), para. 192).

27. Finally, the United States submits that system ic considerations milita te against the Panel's
approach. In particular, the Panel's approach would allow parties to make new legal claims on new or
amended measures midway through compliance pane l proceedings, when Article 21.5 proceedings
should be limited to an examination of wh ether a Member has complied with the DSB's
recommendations and rulings at the time of the panel request. 75 Disputes would become "moving
targets"76 in a manner not contemplated by the DSU. Further, the United States observes that the
Panel's approach is "asymmetrical" as only compla ining parties would be allowed to include new
measures. The United States refers to previous pa nels that have rejected respondents' requests to
examine measures that came into existence after the panels' establishment with a view to showing that
the alleged inconsistency no longer existed.77
28. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that Review 9 fell within its terms of reference.
2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8
29. The United States claims that the Panel erred in finding that the United States has failed to
comply with the DSB's recommendations and rulings regarding the importer-specific assessment rates
determined in Reviews 1, 2, 3, 7, and 8 that apply to entries covered by those Reviews that were, or
will be, liquidated after the expiry of the reasonable period of time. The United States also claims that
the Panel's consequential finding that the United St ates is in continued violation of its obligations
under Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 is in
error.
30. In the United States' view, the text of the GATT 1994 and of the Anti-Dumping Agreement
"confirms that it is the legal regime in existence at the time that an import enters the Member's
territory that determines whether the import is liable for the payment of antidumping duties." 78 The
United States asserts that Article VI:6(a) of the GATT 1994 reflects the fact that the levying of an
anti-dumping duty generally takes place on "the importation of any product". The interpretive Note to

75In particular, the United States explains that cer tain procedural concerns would arise from this
approach, including that parties would be obliged to make legal claims and undertake analysis of new or
modified measures on short notice, without an opportunity to review the measures; and compliance panels
would have to react to changes, in some cases after submissions and meetings with the parties, resulting in
possible delays or the panel making findings without the benefit of parties' views. (United States' appellant's
submission, para. 57)
77United States' appellant's submission, para. 57 (referring to Panel Report, India – Autos ,
paras. 7.23-7.30; and Panel Report, Indonesia – Autos, para. 14.9).

paragraphs 2 and 3 of Article VI of the GATT 1994 (the "Ad Note") clarifies that WTO Members may
require a cash deposit or other security in lieu of the duty. Yet, the United States emphasizes, liability
is incurred at the time of entry. The United States also refers to Articles 8.6, 10.1, 10.6, and 10.8 of
the Anti-Dumping Agreement , which it considers illustrate that "whenever the [ Anti-Dumping
Agreement] specifies an applicable date for an action, the scope of applicability is based on entries
occurring on or after that date."
79 The United States asserts that the Panel erred in dismissing the
relevance of these provisions of the Anti-Dumping Agreement and the GATT 1994, focusing instead
on the DSU, because the DSU does not exist in a "vacuum" and must be read in the light of the rights
and obligations contained in the other covered agreements. 80 The United States argues that, since
these Article 21.5 proceedings focused on th e existence, or consistency with the Anti-Dumping
Agreement and the GATT 1994, of measures taken to co mply with the recommendations and rulings
of the DSB, "these agreements, along with the DSU, are crucial to determining whether the United
States complied with the DSB's recommendations and rulings, including what the United States was
required to do in order to implement those recommendations and rulings."
81
31. The United States takes issue with the Panel's st atement that a Member that chooses to apply
a retrospective anti-dumping system must "respect the consequences of that choice". 82 According to
the United States, the Panel "overlook[ed]" the fa ct that the United States "elected to adopt a
retrospective system long before there was a WTO". 83 Members with retrospective systems cannot be
presumed to have agreed to "consequences" only now being assigned by panels or the Appellate
Body. Furthermore, the United States notes that, in retrospective anti-dumping systems, the entry of
merchandise triggers potential liability, while the dete rmination of final liability and collection occurs
at a later date. This is a principal feature of a retr ospective system and this distinction is reflected in
the text of Articles 9.3.1 and 9.3.2 of the Anti-Dumping Agreement. The United States asserts that the
Panel's view that it need not ensure that the im plementation obligations unde r different anti-dumping

80United States' appellant's submission, para. 73 (referri ng to Article 3.2 of the DSU; as well as Panel
Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , footnote 39 to para. 7.51;
and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) ,
para. 173).
81United States' appellant's submission, para. 73. The United States argues that previous panels have
recognized that "prospective implementation obligations ar e triggered by the date of entry" and refers to the
Panel Report in US – Section 129(c)(1) URAA as an example. (United States' appellant's submission, para. 74
(referring to Panel Report, US – Section 129(c)(1) URAA , para. 6.52)) In addition, the United States observes
that the European Communities "took a prospective approach" to the implementation of the DSB's
recommendations and rulings in EC – Chicken Cuts. (United States' appellant's submission, paras. 75 and 76)
82Panel Report, para. 7.152.

systems be identical 84 contradicts "the Appellate Body's recognition that all systems of duty
assessment must be afforded analogous treatment"85 under the Anti-Dumping Agreement.
32. The United States maintains that an approach b ased on the date of entry of the merchandise
ensures equal treatment between retrospective a nd prospective anti-dumping systems. The United
States explains that, in a prospective system, an anti-dumping measure found to be inconsistent with
the Anti-Dumping Agreement would have to be modified only as it applies "to imports occurring on or
after the date of importation", and the respondent Member would not have to remedy the effects of the
measure on imports that occurred prior to the end of the reasonable period of time. 86 A similar result
would be obtained in retrospective systems if the op erative date for implemen tation were the date of
entry of the merchandise subject to anti-dumping duties, thereby preserving the neutrality between
retrospective and prospective systems.87
33. The United States notes that it is uncontested that all of the liquidations applied (or that would
apply) in connection with Reviews 1, 2, 3, 7, and 8 relate to merchandise that entered the United
States "long before the end" 88 of the reasonable period of time. The United States further explains
that liquidation would have taken place before the end of the reasonable period of time had it not been
for domestic judicial proceedings. 89 The United States observes that, in US – Zeroing (EC)
(Article 21.5 – EC), the Appellate Body did not make "findings against actions to liquidate duties that
are based on administrative review determinations i ssued before the end of the RPT, and that have
been delayed as a result of domestic judicial proceedings". 90 In the United States' view, "a Member
should not be found in non-compliance because liqui dation was delayed until after the RPT due to
domestic judicial proceedings".91
34. The United States points out that Article 13 of the Anti-Dumping Agreement requires
Members to provide for independent review of certain anti-dumping administrative actions.
Moreover, footnote 20 to Article 9.3.1 expressly r ecognizes "that the observance of the time-limits
mentioned in [subparagraph 3.1] and in subparagraph 3.2 may not be possible where the product in
question is subject to judicial review proceedings." Accordingly, the United States submits that, "if a

88United States' appellant's submission, para. 87. (original emphasis)
90United States' appellant's submission, para. 94 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 314).

particular time limit is not observed due to pending judicial review, the delay caused by the judicial
review is not inconsistent with the [ Anti-Dumping Agreement]".
92 The United States asserts that this
also means that "a delay in liquidation until after the RPT as a result of judicial review should not
serve as a basis to find that a Member has failed to comply with the recommendations and rulings of
the DSB, since but for judicial proceedings, the Member would have liquidated prior to the RPT."93
35. Referring to the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) , the United
States submits that the initiation of judicial review means that "the liquidation of entries can no longer
derive mechanically from the admini strative reviews challenged by Japan". 94 Instead, "the timing of
liquidation is controlled by the independent judiciary and not the administering authority". 95
Moreover, the judiciary may sustain the administerin g authority's determination or require changes to
it. The United States explains that judicial review "severs" any "mechanical" link between the
assessment of liability in the periodic review and the liquidation instructions.96
36. The United States further explains that a finding that a Member failed to comply because
liquidation was suspended until after the reasonable period of time as a result of litigation "would give
private litigants the ability to control complian ce by Members operating retrospective antidumping
systems".97 Such a delay would not be possible in a prospective system. The United States adds that,
if such a finding were sustained, "private par ties would have perverse incentives to manufacture
domestic litigation and prolong liquidation past the RPT to obtain what amounts to retroactive
relief".98
37. The United States submits that the WTO dispute settlement system requires only prospective
implementation of the DSB's recommendations and ru lings. In support of this proposition, the United
States asserts that Article 21.5 proceedings focu s only on the consistency of those measures in
existence at the time of panel establishment and, as such, a Member's compliance with the DSB's
recommendations and rulings is "determined on a prospective basis". 99 The United States also
observes that the Appellate Body has "repeatedly recognized" the prospective nature of remedies in
WTO law.100 The United States considers that the Panel "improperly disregarded the importance of

95United States' appellant's submission, para. 97. (original emphasis)
100United States' appellant's submission, para. 64 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 299 and footnote 406 thereto).

the prospective/retrospective distinction" when de termining the United States' compliance obligations
and, as a result, "imposed a retroactive remedy where none is allowed".101
38. Accordingly, the United States requests the Appe llate Body to reverse the Panel's findings
and conclude, instead, that liquidation that occurred (or will occur) afte r the reasonable period of time
in relation to Reviews 1, 2, 3, 7, and 8 does not demonstrate that the United States failed to comply
with the recommendations and rulings of the DSB, because these liquidations would have occurred
prior to the conclusion of the reasonable period of ti me but for the delay caused by domestic judicial
review.102
3. The Panel's Findings on Reviews 4, 5, 6, and 9
39. The United States contends that the Appellate Body should reverse the Panel's finding that
Reviews 4, 5, and 6 are inconsistent with Article 2.4 and 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 for the same reason th at it considers that the Panel's findings with
respect to Reviews 1, 2, 3, 7, and 8 should be reve rsed, namely, that entries under Reviews 4, 5, and 6
were made before the end of the reasonable period of time. In addition, the United States asserts that
Reviews 4, 5, and 6 had not had effects since the expiration of the reasonable period of time given that
there had not been liquidation of any entries cove red by these Reviews since the reasonable period of
time expired.
40. The United States recalls that, in US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body
examined, inter alia, whether a number of periodic reviews and resultant assessment instructions that
were not part of the original dispute demons trated a failure to comply with the DSB's
recommendations and rulings. 103 According to the United States, the Appellate Body's analysis of
those reviews and resultant assessment instructions suggests that, where the review determination was
published and the assessment instructions were issu ed prior to the end of the reasonable period of
time, these reviews and assessment instructions were not a basis for finding a failure to comply 104;
however, where a measure was put in place or had "cognizable effects" after the conclusion of the
reasonable period of time, that measure could provi de a basis for finding that a Member failed to
comply with the DSB's recommendations and rulings , to the extent that such effects after the

103United States' appellant's submission, para. 103 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC ), paras. 326, 337, 338, and 345).
104United States' appellant's submission, para. 104 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 313 and footnote 423 thereto).

expiration of the reasonable period of time refl ected the inconsistency found in the original
determination. By contrast, if the measure was not put in place or did not have any "cognizable
effects" after the expiration of the reasonable period of time, that measure cannot provide a basis for
finding that the Member failed to comply with the DSB's recommendations and rulings in a dispute.
105
41. Turning to the facts of this dispute, the Un ited States notes that Reviews 4, 5, and 6 were
concluded long before the end of the reasonable period of time, and that, as a result of domestic
litigation, assessment of duties calculated in these Reviews was enjoined prior to the conclusion of the
reasonable period of time, and continued to be enjoined. 106 Applying the above reasoning to these
facts, the United States considers that Reviews 4, 5, and 6 "have had no post-RPT effects of the kind
that give rise to a finding of inconsistency".107
42. With respect to Review 9, the United States argues that Review 9 fell outside the Panel's
terms of reference. 108 Moreover, the United States submits that, since Review 9, like Reviews 4, 5,
and 6, does not cover entries occurring after the end of the reasonable period of time, the application
of zeroing in Review 9 cannot serve as a basis for a finding of inconsistency.
43. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that the United States acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994 by applying zeroing in the context of Reviews 4, 5, 6, and 9.
4. Article II of the GATT 1994
44. The United States submits that the Panel erred in finding that the United States is in violation
of Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain USDOC liquidation
instructions and United States Customs and Border Protection ("Customs") liquidation notices issued
after the expiry of the reasonable period of time. 109 First, the United States argues that, since Japan's
Article II claims are derivative of Japan's claims under Articles 2.4 and 9.3 of the Anti-Dumping
Agreement, it was "entirely unnecessary" for the Panel to make any Article II findings. 110 The United

105United States' appellant's submission, para. 104. The United States further notes that the Appellate
Body stated: "to the extent that a measure … would be based on zeroing, the United States would fail to comply
with the recommendations and rulings of the DSB … if it were to apply that measure after the end of the
reasonable period of time." ( Ibid. (quoting Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) ,
para. 310 (emphasis added by the United States)))
108See supra, para. 20.
109The USDOC liquidation instructions are set forth in Panel Exhibits JPN-40.A, and JPN-77 through
JPN-80. The Customs liquidation notices are set forth in Panel Exhibits JPN-81 through JPN-87.

States contends that, if the Appellate Body reverses th e Panel's findings in relation to Reviews 1, 2, 3,
7, and 8, then the Appellate Body must reverse the "derivative findings" under Article II.111
45. In addition, the United States recalls its previ ous arguments that compliance with the DSB's
recommendations and rulings shoul d be evaluated by examining a Member's treatment of the
merchandise on the date of entry, and not when the "ministerial" act of collection of duties occurs. 112
It explains that the liability for anti-dumping duties, that Japan claims resu lted in duties collected
beyond the United States' bound rate, was incurred prio r to the expiration of the reasonable period of
time, when the merchandise entered the United States . Any liquidation after the reasonable period of
time resulted from a delay due to domestic judicial review. 113 The United States submits that, in the
same way that such liquidation cannot serve as a basis for a failure to comply with the DSB's
recommendations and rulings, it cannot support a co rollary finding that the United States acted
inconsistently with Articles II:1(a) and II:1(b) of the GATT 1994.114
B. Arguments of Japan – Appellee
1. The Panel's Terms of Reference – Review 9
46. Japan argues that the Panel properly found that Re view 9 was within its terms of reference.
First, Japan submits that its panel request satisfi ed the requirement in Article 6.2 to identify the
specific measures at issue. Japan explains that it used the term "closely connected" to identify
Reviews 4, 5, and 6 and that it used the same te rm to identify the subsequent "closely connected"
measures. Moreover, it observes that "subsequent cl osely connected measures" could relate solely to
the ball bearings anti-dumping duty order, because, effective 1 January 2000, the United States had
revoked the other two orders specified in the panel request.115
47. Secondly, Japan contends that the phrase "sub sequent closely connected measures" identified
a "category of measure", which is sufficiently specifi c to satisfy the requirement of Article 6.2 of the
DSU. Japan submits that accepting that a category of measure can be sufficiently specific to satisfy
Article 6.2 does not imply that measures falling within the category are not themselves "separate and
distinct", as referred to by the United States; it mean s only that the category is in itself sufficiently

115Japan's appellee's submission, para. 387 and footnote 513 thereto (referring to United States' first
written submission to the Panel, para. 66, in turn quoting Revocation of Antidumping Duty Orders on Certain
Bearings from Hungary, Japan, Romania, Sweden, France, Germany, Italy, and the United Kingdom, United
States Federal Register, Vol. 65, No. 133 (11 July 2000) 42667 (Panel Exhibit US-A19)).

specific to satisfy Article 6.2.
116 In this regard, Japan refers to Australia – Salmon (Article 21.5 –
Canada) and EC – Bananas III, which, in its view, illustrate that panels and the Appellate Body have
accepted a reference to a category of measures in a panel request as being sufficiently specific to
satisfy Article 6.2. 117 Furthermore, Japan argues that the category of "any subsequent closely
connected measures" was broad enoug h to cover Review 9, as compared to panel requests in other
disputes that were drafted too narrowly to justify the inclusion of certain measures.118
48. Japan also supports the Panel' s reliance on the fact that th e United States anticipated the
inclusion of subsequent periodic reviews like Revi ew 9 in its first written submission to the Panel. 119
Japan rejects the United States' argument that its st atement "was a lucky 'guess' or 'speculation' [that]
proved to be accurate" 120, because, as the Panel noted, under the United States' retrospective anti-
dumping duty system, periodic reviews are highly predic table. Moreover, at the time of Japan's panel
request, the USDOC had already initiated Review 9 a nd was scheduled to issue its final determination
in mid-August 2008, which was shortly thereafter extended to 4 September 2008.121
49. Japan observes that, in EC – Chicken Cuts, the Appellate Body identified a "general rule" that
a measure must exist at the time of panel establishmen t to be included in a pane l's terms of reference.
However, the Appellate Body in that case also held that there are "limited circumstances" in which
departing from the "general rule" is consistent w ith Article 6.2 and the purposes which that provision
serves.122 Japan considers that, as the compliance panel in Australia – Salmon (Article 21.5 –
Canada) found, the "ongoing or continuous" nature of compliance offers ci rcumstances where an
exception from the "general rule" is warranted. 123 Japan observes that, in th is dispute, the compliance

116Japan's appellee's submission, para. 389 (referring to United States' appellant's submission, paras. 44
and 52).
117Japan's appellee's submission, paras. 390-393 (referring to Panel Report, Australia – Salmon
(Article 21.5 – Canada) , para. 7.10; Panel Report, EC – Bananas III (US) , para. 7.27; and Appellate Body
118Japan's appellee's submission, paras. 403-407 (referring to Panel Report, EC – Chicken Cuts
(Thailand), paras. 7.28 and 7.32; and Panel Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 8.125 and
footnote 690 thereto).
119Japan's appellee's submission, paras. 394 and 395 (referring to Panel Report, para. 7.105, in turn
quoting United States' first written submission to the Panel, para. 50).
120Japan's appellee's submission, para. 397 (quoting United States' appellant's submission, footnote 56
to para. 45).
121Japan's appellee's submission, para. 398 and footnotes 527 and 528 thereto.
122Japan's appellee's submission, para. 374 (referring to Appellate Body Report, EC – Chicken Cuts ,
para. 156).
123Japan's appellee's submission, paras. 375, 376, 382, and 383 (referring to Panel Report, Australia –
Salmon (Article 21.5 – Canada) , para. 7.10). Japan recalls the Panel's observation that the decision in
Australia – Salmon (Article 21.5 – Canada) was approved by the Appellate Body in US – Softwood Lumber IV
(Article 21.5 – Canada) . (Japan's appellee's submission, para. 377 (referring to Panel Report, para. 7.116 and
footnote 142 thereto, in turn referring to Appellate Body Report, US – Softwood Lumber IV (Article 21.5 –
Canada), para. 74).

process is "ongoing or continuous", as each of Re views 4, 5, 6, and 9 serves as a "replacement"
measure that "supersedes" the previous periodic review relating to entries of ball bearings. 124
Review 9 was the "latest link in the chain"125 of measures under the same anti-dumping duty order and
is a "measure taken to comply". Failure to incl ude Review 9 would have made the Panel's findings
incomplete, as the "zeroed" cash deposit rate establis hed in Review 6 had "ceased to exist" during the
course of the proceedings. 126 According to Japan, excluding a post-establishment measure taken to
comply from the terms of reference, where the pane l request is broad enough to cover that measure
and the process of achieving and undermining complia nce is "ongoing or continuous", "would go
against the objective of 'prompt compliance'" in Article 21.1 of the DSU.127
50. Japan explains that panels and the Appellate Body have noted th at, in order to be consistent
with Article 6.2, the inclusion of a measure adopt ed during panel proceedings within a panel's terms
of reference must not compromise the "due process objective of notifying the parties and third parties
of the nature of a complainant's case". 128 Japan submits that the inclusion of Review 9 did not
compromise the due process objectives of Article 6.2 of the DSU. This is because the United States
was not deprived of the opportunity to examine sufficiently Review 9 and understand its legal
consequences, nor was it deprived of the opportunity to prepare and present its defence to claims
against Review 9. 129 Japan adds that the sole element of Review 9 subject to Japan's challenge was
the USDOC's use of the zeroing procedures, and the evidence in this regard was identical to the
evidence submitted with respect to Reviews 4, 5, and 6. 130 Moreover, the United States presented a
defence with respect to Review 9 that was virtually identical to its defence with respect to these other
periodic reviews.131 Japan also observes that the United States took advantage of ample opportunities

124Japan's appellee's submission, paras. 413-416 (referring to Panel Report, paras. 7.65-7.67, 7.71, 7.72,
7.74, and 7.75).
127Japan's appellee's submission, para 421 (referring to Panel Report, Australia – Salmon
(Article 21.5 – Canada), para. 7.10).
128Japan's appellee's submission, para. 422 (quoting Appellate Body Report, EC – Chicken Cuts ,
para. 155, in turn referring to Panel Report, Australia – Salmon (Article 21.5 – Canada), para. 7.10). Japan also
refers generally to Appellate Body Report, US – Carbon Steel , para. 126; Appellate Body Report, Korea –
Dairy, paras. 126 and 127; Appellate Body Report, EC – Computer Equipment, para. 70; and Appellate Body
Report, Thailand – H-Beams, para. 95. (Japan's appellee's submission, para. 422 and footnote 565 thereto)
129See Japan's appellee's submission, paras. 425-439.
130Japan's appellee's submission, paras. 429 and 430.
131Japan's appellee's submission, paras. 432-435.

to address the one aspect of its defence relating to Review 9 that varied from its defence relating to
Reviews 4, 5, and 6, namely, that Review 9 was not properly within the Panel's terms of reference.
132
51. Further, Japan argues that third parties had th e opportunity to present their views concerning
Review 9, and potential third parties were not deprived of their rights. Three third parties—the
European Communities, Mexico, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu—addressed whether Review 9 fell within the Pa nel's terms of reference, and agreed that it
did.
133 Moreover, according to Japan, there is no reaso n to assume that potential third parties did not
interpret the phrase "any subsequent closely connected measures" to include Review 9.
52. Finally, Japan disagrees with the United States' contention that the inclusion of Review 9 in
the Panel's terms of reference would create "asymme try" in the sense that the Panel would exercise
jurisdiction over a post-establishment measure ch allenged by a complaining Member, but not over
one relied upon by a responding Member. 134 Japan points out that, in this case, the United States
asserted that it "came into compliance" 135 with the DSB's recommendations and rulings by adopting
the subsequent periodic reviews, including Review 9, and the Panel examined and addressed each of
them.136 Japan argues that previous panels have ex amined post-establishment measures offered by a
responding Member as evidence that an alle ged WTO-inconsistency no longer exists. 137 In Japan's
estimation, a panel's failure to do so would in fact constitute legal error.138
53. For the foregoing reasons, Japan requests the Ap pellate Body to reject the United States'
appeal of the Panel's finding that Review 9 properly fell within its terms of reference.

132Japan's appellee's submission, paras. 436-438 (ref erring to United States' first written submission to
the Panel, para. 50; United States' second written submission to the Panel, paras. 29-34; United States' opening
statement at the meeting with the Panel, paras. 13 and 14; United States' response to Japan's Supplemental
Submission, paras. 8-16; United States' appellant's submission, para. 42 and footnote 47 thereto; and Panel
Report, paras. 7.103 and 7.105).
133Japan's appellee's submission, para. 441 (referring to European Communities' oral statement at the
meeting with the Panel, paras. 47 and 48; European Communities' third party submission, para. 27; oral
statement of the Separate Customs Territory of Taiwan , Penghu, Kinmen and Matsu at the meeting with the
Panel, paras. 7, and 12-15; and Mexico's oral statement at the meeting with the Panel, para. 12). Japan notes
that an additional third party, Norway, "expressly declined to offer its views" on Review 9. (Japan's appellee's
submission, footnote 596 to para. 441 (referring to Norway's third party submission to the Panel, para. 7))
134Japan's appellee's submission, para. 444 (referring to United States' appellant's submission, para. 57).
135Japan's appellee's submission, para. 445 (quoting United States' responses to Panel Questions
dated 26 November 2008, para. 3; see also paras. 10, 13, 14, 16, and 17).
136Japan's appellee's submission, para. 445 (referring to Panel Report, paras. 7.69-7.75).
137Japan's appellee's submission, para. 447 (referring to Panel Report, India – Autos , paras. 8.4, 8.5,
8.25 and footnote 461 thereto, and 8.28).
138Japan's appellee's submission, paras. 450 and 451 (referring to Appellate Body Report, EC –
Bananas III (Article 21.5 – US) , paras. 271 and 479; Appellate Body Report, US – Upland Cotton, para. 272;
Appellate Body Report, US – Certain EC Products , paras. 80 and 81; and Panel Report, Chile – Price Band
System, para. 7.112).

2. The Panel's Findings on Reviews 1, 2, 3, 7, and 8
54. Japan supports the Panel's finding that the United States has failed to comply with the DSB's
recommendations and rulings to bring Reviews 1, 2, 3, 7, and 8 into conformity with Articles 2.4
and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Specifically, Japan
submits that the importer-specific assessment rate s determined in these Reviews, and applied to
entries that were, or will be, liquidated after the expiry of the reasonable period of time, have not been
revised and remain inconsistent with the United States' WTO obligations.
55. Japan rejects the United States' submission that the date of entry, rather than the date on
which the anti-dumping duties are collected, is de terminative in assessing compliance. Japan argues
that the provisions cited by the United States—Article VI of the GATT 1994, and the Ad Note to
paragraphs 2 and 3 of Article VI, and Ar ticles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping
Agreement139—concern the date on which an anti-dumping duty order may be applied to an entry.
They do not address the issue of how a Member s hould implement the recommendations and rulings
of the DSB, nor how the applicable date for implementation action should be determined.140
56. Japan asserts that using the date of entry to determine the United States' implementation
obligations, as proposed by the United States, "nullifies" 141 the disciplines contained in Article 9.3 of
the Anti-Dumping Agreement, because, under a retrospective system, a WTO-inconsistent importer-
specific assessment rate always relates to entri es occurring before the expiration of the reasonable
period of time. 142 Under the "date of entry" approach , these rates would be immune from the
disciplines of Article 9.3 and this would result in the collection of duties in excess of an exporter's
margin of dumping. Following this approach, a WT O-inconsistent importer-specific assessment rate
need never be brought into conformity with Artic le 9.3, and the importing Member could always
collect inflated anti-dumping duties.143
57. Moreover, Japan considers that the United Stat es' approach is contrary to the object and
purpose of the dispute settlement system, which requires a WTO-inconsistent measure to be
withdrawn or revised during the reasonable period of time. 144 Following the United States' "date of
entry" approach would mean that nullification or impairment resulting from the original WTO-

140Japan's appellee's submission, paras. 231 and 232 (quoting Panel Report, para. 7.147).
144Japan's appellee's submission, para. 248 (referring to Articles 3.7, 19.1, 21.1, and 21.3 of the DSU).

inconsistent measures would never be terminated and would continue after the end of the reasonable
period of time, without being offset by the suspension of concessions.
145
58. Japan disagrees with the United States' argu ment that the Panel's interpretation treats
retrospective and prospective duty collection sy stems unequally and "'[u]nfairly disadvantages
Members with retrospective systems".146 Japan asserts that both systems are subject to the disciplines
of Article 9.3 of the Anti-Dumping Agreement147, which requires the importing Member "to 'refund'
some or all of the duties 'paid' on importation".148 Moreover, Japan asserts that, under either system, a
review could continue to produce legal effects after the end of the reasonable period of time as a result
of, for example, domestic litigation concerning that review. 149 Japan submits that Articles 13, 14,
and 15 of the International Law Commission Draft Articles on Responsibility of States for
internationally wrongful acts 150 (the "ILC Draft Articles") confirm that the United States is required
by the DSU to bring its measures into conformity with its WTO obligations "when they continue to
produce legal effects after the end of the RPT, regardless of the dates of entry" of imports.151
59. Japan objects to the United States' characterization of its implementation obligations as being
either "retrospective" or "prospective", em phasizing that these are not "treaty terms". 152 Rather, the
United States' compliance obligation, pursuant to Articles 3.7, 19.1, 21.1, and 21.3 of the DSU, was to
take "transformative" action to "b ring" the importer-specific assessment rates in Reviews 1, 2, 3, 7,
and 8 "into conformity" by the end of the reasonable period of time. 153 This obligation did not require
the United States to "repay inflat ed duties that were collected ... before the end of the RPT" 154;
instead, where the United States has not yet collected duties by the end of the reasonable period of
time, "[it] is required to take action to modify or revise the [importer-specific assessment rates in
Reviews 1, 2, 3, 7, and 8] to ensure that any future definitive anti-dumping duties collected do not
exceed the properly determined margins of dumping".155

146Japan's appellee's submission, para. 252 (quoting United States appellant's submission, heading IV.
B.2).
150Draft Articles on Responsibility of States for in ternationally wrongful acts, adopted by the
International Law Commission at its fifty-third session (9 August 2001). The text of the ILC Draft Articles is
annexed to the United Nations General Assembly Resolution A/RES/56/83 (29 January 2002).
151Japan's appellee's submission, para. 261 and footnote 366 thereto.
153Japan's appellee's submission, paras. 217 and 219. See also paras. 174-194.
154Japan's appellee's submission, para. 215. (original emphasis)
155Japan's appellee's submission, para. 215. (original emphasis)

60. Japan also rejects the United St ates' argument that it should be excused from its obligation to
bring Reviews 1, 2, 3, 7, and 8 into conformity, because the delay in liquidation was due to domestic
court proceedings. Japan recalls that the panel in Brazil – Retreaded Tyres found that injunctions
issued by a Member's own courts did not exone rate that Member from complying with its WTO
obligations.156 Moreover, Japan dismisses the United States' argument that it cannot be held
responsible in WTO law for actions by private parti es, noting that injunctions are actions taken by the
United States' own courts, pursuant to powers confer red by United States law, which are attributable
to the United States under WTO law. 157 Japan recalls the Appellate Body's finding in US – Shrimp
that a Member "bears responsibility for acts of a ll its departments of government, including its
judiciary".158
61. Japan disagrees that Article 13 and footnote 20 of the Anti-Dumping Agreement support the
United States' argument that, where duty collection is delayed beyond the end of the reasonable period
of time as a result of domestic litigation, the United States need not bring the periodic reviews into
conformity by the end of the reasonable period of time. Although footnote 20 provides an exception
authorizing non-compliance with the deadlines in Ar ticle 9.3, according to Japan, this exception does
not extend to the obligations in the DSU to bring WTO-inconsistent periodic reviews into conformity
with WTO law. 159 Further, Japan submits that, even if footnote 20 could excuse a delay in
compliance, it does not excuse a Member from meeting its substantive obligations under Article 9.3 of
the Anti-Dumping Agreement once the judicial review requirements have been met and the delay has
passed.160
62. Japan does not consider that judicial revi ew severs any "mechanical link" between the
assessment of liability in the original determination and the liquidation instructions. 161 According to
Japan, "judicial review does not alter either the manner by which [Customs] takes measures to collect
duties, or the interaction between the USDOC and [Customs]". 162 Rather, "[w]ith or without
litigation, the mechanism for duty collection takes the same ordinary course ... [and] always derive[s]
mechanically from the USDOC 's assessment rate through the straightforward application of the basic

156Japan's appellee's submission, para. 279 (referring to Panel Report, Brazil – Retreaded Tyres ,
157See Japan's appellee's submission, para. 282.
158Japan's appellee's submission, para. 283 (quoting Appellate Body Report, US – Shrimp, para. 173).
160Japan's appellee's submission, paras. 291 and 292.
161Japan's appellee's submission, para. 293 (referring to the United States' appellant's submission,
para. 97).

laws of arithmetic".
163 Moreover, even if the or iginal assessment rate is amended following judicial
review, such amendment is relevant in Article 21.5 proceedings, not because it would break the
"mechanical link" between Customs' duty collectio n measures and the original assessment rate, as
contended by the United States, but "because the amendment might bring the measure into conformity
with WTO law".164 Japan notes, however, that this did not occur in this case as the revised assessment
rates in Reviews 1, 2, and 3 were based on the same zeroing methodology that rendered the original
assessment rate WTO-inconsistent.165
63. Furthermore, Japan does not agree with the United States' suggestion that the Panel's
approach creates "perverse incentives" for priv ate parties to "manufacture domestic litigation". 166
Japan underscores the "considerable expenses" incurred by interested parties in pursuing judicial
proceedings with respect to Reviews 1, 2, 3, 7, and 8, including challeng es to the use of zeroing,
which make it unlikely that domestic litigation would be "manufactured". 167 Japan posits that it
cannot be considered "perverse" for private pa rties to seek to enjoin enforcement of WTO-
inconsistent periodic reviews.
64. Accordingly, Japan requests the Appellate Body to uphold the Panel's findings that the United
States has failed to bring the importer-specific assessm ent rates in Reviews 1, 2, 3, 7, and 8 into
conformity with its WTO obligations after the expiry of the reasonable period of time.
3. The Panel's Findings on Reviews 4, 5, 6, and 9
65. For Japan, the United States' statement that Reviews 4, 5, 6, and 9 "cannot serve as a basis for
a finding of WTO-inconsistency"168 raises "a threshold issue" of whether or not the Panel was entitled
to rule on the inconsistency of Reviews 4, 5, 6, and 9 in these Article 21.5 proceedings. 169 Japan
asserts that Reviews 4, 5, 6, and 9 were "measures taken to comply" that provided the Panel with a
necessary and sufficient "basis" to rule on their consistency.170

163Japan's appellee's submission, para. 294. (original emphasis)
165Japan's appellee's submission, para. 296 (referring to Panel Report, para. 7.139 and footnote 148
thereto, and para. 7.154).
166Japan's appellee's submission, para. 285 (referring to United States' appellant's submission, para. 99).
(underlining added by Japan) See also United States' appellant's submission, paras. 21, 24, 86, and 89.
170Japan's appellee's submission, para. 465 (referring to United States' appellant's submission, paras. 21,
24, 86, 89, and 105).

66. Japan rejects the United States' argument that the timing of a periodic review precludes a
compliance panel from ruling on its consistency. Relying on the Appellate Body's finding in US –
Zeroing (EC) (Article 21.5 – EC) that "the timing of a measure cannot be determinative of whether it
bears a sufficiently close nexus with a Member's implementation of the recommendations and rulings
of the DSB so as to fall within the scope of an Article 21.5 proceeding" 171, Japan rejects the United
States' argument that "the fact that Reviews 4, 5 and 6 were 'concluded long before the end of the
RPT' means these reviews 'cannot provide a basis for finding that the United States acted
inconsistently' with its WTO obligations". 172 As such, the Panel was entitled to rule upon the
consistency of Reviews 4 and 5, even though they pre-dated the DS B's recommendations and rulings
and, hence, the end of the reasonable period of time. 173 For this same reason, Japan argues that
Review 6, adopted after the original DSB recommend ations and rulings but be fore the expiration of
the reasonable period of time, was also properl y found to be a measure taken to comply. 174 Finally,
Japan submits that, if measures ta ken to comply are not adopted before the end of the reasonable
period of time, the implementing Member would fail to comply with its obligations under Article 21.3
of the DSU to bring its measures into conformity by the end of the reasonable period of time.175
67. Japan also rejects the United States' contention that Reviews 4, 5, 6, and 9 do not have any
effects after the end of the reasonable period of time, and opposes the United States' argument that the
Panel failed to explain the basis for its finding of inconsistency regarding Reviews 4, 5, 6, and 9.
176
Japan refers to the Panel's "express" finding, in its analysis of whether Reviews 4, 5, and 6 were
measures taken to comply, that "importer-specific assessment rates determined in Reviews 4, 5, and 6
continued to have legal effect long after the adoption of the DSB's recommendations and rulings." 177
Japan also notes that the Panel's factual finding that some of the import entries covered by Reviews 4,
5, and 6 had not been liquidated by the time of th e Panel proceedings was not appealed by the United
States.178 Further, Japan refers to th e fact that Review 9 was adopted after the reasonable period of
time and therefore necessarily began to apply and produce legal effects thereafter.

171Japan's appellee's submission, para. 469 (quoting Appellate Body Report, US – Zeroing (EC)
(Article 21.5 – EC), para. 224).
172Japan's appellee's submission, para. 468 (quoting United States' appellant's submission, para. 105).
174Japan's appellee's submission, paras. 471 and 472.
176Japan's appellee's submission, para. 479 (quoting United States' appellant's submission para. 102).
178Japan's appellee's submission, para. 482 (referring to Panel Report, para. 7.74 and footnote 101
thereto, and para. 7.75 and footnote 102 thereto).

68. For these reasons, Japan asserts that the assessment rates from Reviews 4, 5, 6, and 9 continue
to have effects after the end of the reasonable pe riod of time and will serve as the legal basis for duty
collection measures to be taken with respect to entries covered by these Reviews.
179
69. Japan further submits that the United States is mistaken in submitting that the "post-RPT legal
effects of 'measures taken to comply'—like those of original measures—are to be ignored in assessing
compliance, if the effects linger because of court injunctions." 180 Japan contends that, in WTO law,
court injunctions are attributable to, and the res ponsibility of, the United States, and that they cannot
"exonerate" a Member from its obligations to comply with WTO law.181
70. Accordingly, Japan submits that the Panel correctly found that Reviews 4, 5, 6, and 9 are
"measures taken to comply" and that the Panel had a valid legal "basis" to rule on the consistency of
these Reviews under Article 21.5. Therefore, Japan requests the Appellate Body to uphold the Panel's
finding that the United States has acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 by applying zer oing in the context of Reviews 4, 5, 6,
and 9.
4. Article II of the GATT 1994
71. Japan submits that the Panel correctly found that the United States is in violation of
Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain USDOC liquidation instructions
and Customs liquidation notices issued after the expi ration of the reasonable period of time. Japan
argues that the Panel had a proper basis to exam ine the WTO-consistency of the USDOC liquidation
instructions and Customs liquidation notices because the Panel had found that they are "measures
taken to comply", and thus fell within the jurisdiction of the Panel.182 Japan disagrees with the United
States' argument that Japan's claims under Article II are entirely derivative of its claims concerning
the consistency of Reviews 1, 2, 7, and 8 with Articles 2.4 and 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994. Japan notes that its claims with respect to the duty collection
measures involve "different measures, and different claims" from its claims with respect to Reviews 1,
2, 7, and 8. 183 In this regard, Japan highlights the fact that they are separate and distinct measures,
with distinct content, different times of adoption, that they involve separate agencies, and give rise to

181Japan's appellee's submission, para. 489. (emphasis omitted)
182See Japan's appellee's submission, paras. 498-506. Japan makes these submissions while
acknowledging that the United States does not appeal the Panel's finding that the liquidation actions are
measures taken to comply.

mutually exclusive remedies in United States law. Furthermore, Japan submits that measures
affecting the collection or levying of import duties at WTO-inconsistent rates are not shielded from
scrutiny under Article II of the GATT 1994, if a rela ted periodic review is challenged under separate
WTO provisions.184 Japan argues that the liquidation actions nullify and impair Japan's benefits under
Article II of the GATT 1994, because they levy import duties in excess of the rates stipulated in the
United States' Schedule of Concessions.
72. Japan asserts that the United States' other two arguments—that the relevant date for
determining compliance is the date of entry of th e merchandise, and that the duty collection measures
would have occurred within the reasonable pe riod of time but for domestic litigation—are
jurisdictional in nature and are explicitly directed towards challenging whether the Panel had a valid
basis or authority to rule upon the "consistency" of the duty collection measures. 185 Japan repeats that
the Panel's authority to rule on the consistency of the duty collection measures is not affected by the
fact that goods covered by the measures entered th e United States before the end of the reasonable
period of time. 186 Japan also reiterates that court inj unctions cannot "exonera te" an implementing
Member from its obligation to ensure that "measu res taken to comply" are "consistent" with WTO
law.187
C. Arguments of the Third Participants
1. European Communities
73. The European Communities agrees with Japan that the Appellate Body should reject the
United States' appeal in its entirety. To the exte nt that the United States raises issues already decided
by the Appellate Body in US – Zeroing (EC) (Article 21.5 – EC) , the European Communities submits
that, "[a]bsent any new cogent reasons" 188, the same principles and legal interpretation must be
applied to the facts of this case.
74. With respect to Review 9, the European Communities submits that the requirement in
Article 6.2 of the DSU to identify the specific me asures at issue does not have a temporal scope;
rather, it only requires that a panel request allow the Member concerned to understand in substantive
terms the measure being referenced. In this case, the United States was put on notice as to the specific

185Japan's appellee's submission, paras. 529 and 530.
188European Communities' third participant's submission, paras. 21, 26, and 29 (referring to Appellate
Body Report, US – Stainless Steel (Mexico), para. 160).

measures challenged, because Japan had identified the periodic reviews in Annex 1 of its panel
request, the procedures under United States municipal law to modify periodic reviews are limited, and
Review 9 had been initiated before Japan's request.
189 Moreover, the European Communities
distinguishes the facts before the panel in US – Upland Cotton , where it was not certain that the
measure would come into existence, from the facts in this case, where United States municipal law
provides for limited means to amend periodic review s. The European Communities also recalls the
statement by the Appellate Body in US – Continued Zeroing that an examination under Article 6.2 of
the DSU need not involve a substantive inquiry as to the existence and precise content of the
measure.190
75. As regards Reviews 1, 2, 3, 7, and 8, the European Communities rejects the United States'
argument that the Panel's approach would provide a "retroactive remedy" and give "retroactive effect"
to the DSB's recommendations and rulings. The Eu ropean Communities observes that the reference
to a "remedy" would only be relevant for purpo ses of determining the level of nullification and
impairment of benefits to Japan in the context of an Article 22.6 arbitration, which is not of concern at
this stage of the proceedings. Secondly, th e European Communities argues that the DSB's
recommendations and rulings cannot be characteriz ed as "retroactive", because both the omissions
and the actions with respect to Reviews 1, 2, 3, 7, and 8 post-date the end of the reasonable period of
time. Moreover, it is immaterial that the assess ment rates pre-date the DSB's recommendations and
rulings, since the entire point of the recommendations and rulings is that the original measures,
including the assessment rates, be brought into conformity. The European Communities points out
that the obligations in question flow from the treat y, in the sense that the DSB's recommendations and
rulings merely clarify the pre-existing rights and obligations of the parties.191
76. The European Communities agrees with the Pane l's rejection of the United States' "date of
entry" argument. The European Commun ities argues that the provisions of the Anti-Dumping
Agreement cited by the United States simply reflect th at an import cannot be subject to an anti-
dumping duty unless a measure is in place, and do not concern compliance by a Member by the end of
the reasonable period of time.
192 Furthermore, the European Comm unities asserts that Article 9.2 of
the Anti-Dumping Agreement regulates collection of anti-dumping duties, including the amount of

189European Communities' third participant's submission, para. 13.
190European Communities' third participant's submission, para. 15 (referring to Appellate Body Report,
US – Continued Zeroing, paras. 168 and 169).
191European Communities' third participant's submission, para. 24.
192European Communities' third participant's submission, para. 27.

such duties, which signifies that actions to collect duties based on zeroing and applied after the end of
the reasonable period of time are relevant for assessing compliance.193
77. The European Communities submits that WTO ob ligations for retrospective and prospective
anti-dumping systems are equal. Both require that, if duties have not been liquidated by the end of the
reasonable period of time, no new WTO-inconsistent me asure can be taken, regardless of the date of
entry covered by that measure.194 The European Communities notes that the United States focuses on
the forward-looking aspect of implementation in a prospective system, while omitting to consider the
backward-looking aspect of the prospective sy stem, namely, the refund proceedings under
Article 9.3.2 of the Anti-Dumping Agreement , in which all the pertinent WTO obligations must be
complied with after the end of the reasonable period of time, even if the goods in question entered
before the end of this period. 195 To illustrate this point, the Eu ropean Communities refers to refund
proceedings in which it applied a new WTO-cons istent methodology following the Panel Report in
EC – Countervailing Measures on DRAM Chips.196
78. The European Communities dismisses the United States' attempt to excuse its non-
compliance by referring to measures, such as injuncti ons, granted by its judiciary. The European
Communities refers to Article 27 of the Vienna Convention on the Law of Treaties 197 (the " Vienna
Convention"), pursuant to which "a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty." Moreover, Article XVI:4 of the Marrakesh Agreement
Establishing the World Trade Organization (the " WTO Agreement ") and Article 18 of the Anti-
Dumping Agreement require Members to take all necessary steps of a general or particular character
to ensure WTO conformity of its municipal law. 198 This also applies to municipal court injunctions.
The European Communities observes that neith er footnote 20, nor Article 13, of the Anti-Dumping
Agreement supports the United States' argument. No r does the European Co mmunities accept that
court proceedings initiated by private parties s hould justify non-compliance, since injunctions are
actions imputable to the United States and are grante d because there is some prospect that the court
proceedings will be successful. 199 The European Communities reje cts the United States' reliance on
the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) to support its arguments that a

193European Communities' third participant's submission, para. 28.
194European Communities' third participant's submission, paras. 30 and 33.
195European Communities' third participant's submission, para. 31.
196European Communities' third participant's submission, para. 32; European Communities' response
to questioning at the oral hearing.
197Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.
198European Communities' third participant's submission, paras. 36 and 38.
199European Communities' third participant's submission, para. 39.

delay in assessment or liquidation due to judicial proceedings would sever the "mechanical" link,
because this issue was not addressed by the Appellate Body in that report.
200 The European
Communities explains that the A ppellate Body was not positing an a contrario rule, that, if an action
is not "mechanistic", late compliance is justified. 201 Furthermore, the European Communities asserts
that liquidation actions (incorporating the results of the judicial review proceedings) are positive acts
that must be in conformity with the covered agreements when they are issued. If the WTO-
inconsistent aspect of the measure was not remove d in the municipal litigation, then assessment and
liquidation would proceed "just as it would in any other case".202
79. The European Communities agrees with the Panel' s finding that Reviews 4, 5, 6, and 9 were
measures taken to comply, which are WTO-inconsistent as a result of the use of zeroing. For the
same reasons explained above, the European Comm unities rejects the United States' arguments based
on an alleged "retroactive remedy", "date of entr y", and "unequal treatment of prospective and
retrospective systems". In addition, the Europ ean Communities rejects the view that these Reviews
"ceased to exist" and "had no effects" after the e nd of the reasonable period of time, since it is "self-
evident" that they are necessarily either the legal basis for liquidation using zeroing or for the
continued retention of cash deposits after the end of the reasonable period of time. The European
Communities notes that the Panel made factual findings in this respect.
203 According to the European
Communities, whilst it is clear that compliance pro ceedings cannot normally be brought before the
end of the reasonable period of time, this does not mean that any WTO-inconsistent measure taken
during that period is shielded from WTO-scrutiny.204
2. Korea
80. Korea submits that the Appellate Body should upho ld the Panel's findings in this dispute.
Korea argues that, in finding that Review 9 was within its terms of reference, the Panel properly relied

200European Communities' third participant's submissi on, para. 40 (quoting United States' appellant's
submission, para. 97).
201European Communities' third participant's submission, para. 40.
202European Communities' third participant's submission, para. 41.
203European Communities' third participant's submission, para. 46 (referring to Panel Report,
para. 7.79, which states, in relevant part, that "importer-specific assessment rates determined in Reviews 4, 5
and 6 continued to have legal effect long after the adoption of the DSB's recommendations and rulings.")
204European Communities' third participant's subm ission, paras. 48 and 49. The European
Communities notes that the United States Court of Appeals in the Parkdale case rejected the argument that a
new USDOC policy would be impermissibly retroactive if it were applied to pr ior unliquidated entries.
(European Communities' third participant's submission, footnote 69 to para. 48 (referring to United States Court
of Appeals, Federal Circuit, Parkdale International v. United States , 475 F.3d 1375, 1379 (Fed. Cir. 2007)
(9 February 2007)))

on the "predictability" associated with periodic revi ews under the United States' anti-dumping system
and on the fact that it was part of a "continuum".205
81. Korea further submits that any measure taken af ter the expiration of the reasonable period of
time must be brought into compliance "irrespective of the date of entry". 206 Korea explains that, as
long as an action occurs after the reasonable peri od of time, it cannot be said to be retroactive. 207
Korea rejects the relevance of the provisions of the Anti-Dumping Agreement on which the United
States relies, arguing that "[a]t most ... these article s only show that the date of entry carries some
meaning or initiates some function in the course of the duty assessment administration of a
Member".
208 Moreover, Korea refers to US – Zeroing (EC) (Article 21.5 – EC) and observes that, in
that report, the Appellate Body "held that the date of entry is not determinative".209
82. Korea asserts that the fact the liquidations were delayed because of domestic judicial
proceedings cannot, and should not, affect the scope of the obligation of the implementing Member.210
Korea does not consider the United States' argument that domestic judicial proceedings are initiated
by private parties to be relevant for purposes of the disposition of this issue. Korea states that, "far
from [being] a judicial tool that a private litigant coul d attempt to take advantage of in an effort to
merely prolong the procedure", injunctions are "a n extraordinary remedy the court provides after
careful consideration".
211 Korea emphasizes that it is not th e private entity that makes a decision
about an injunction, but rather "it is a [United States] judge sitting in the [United States] court". 212
Furthermore, Korea considers that a private pa rty should not be prevented from pursuing "every
avenue available domestically" when it has standing to do so. 213 Korea also rejects the United States'
assertion that the Panel's approach would require th e United States to "revisit" prior determinations.214
For Korea, the Panel's approach is "entirely appr opriate" as it requires an implementing Member to
liquidate the anti-dumping duties correctly in accordance with the Anti-Dumping Agreement.215 Korea
thus submits that the Appellate Body should affirm the Panel's finding that "the judicial review-

205Korea's third participant's submission, paras. 54 and 55 (referring to Panel Report, para. 7.105).
206Korea's third participant's submission, para. 28.
207Korea's third participant's submission, para. 23.
208Korea's third participant's submission, para. 24.
209Korea's third participant's s ubmission, para. 27 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 309).
210Korea's third participant's submission, para. 33.
211Korea's third participant's submission, footnote 12 to para. 34.
212Korea's third participant's submission, para. 36.
213Korea's third participant's submission, para. 36.
214Korea's third participant's submission, para. 38 (quoting United States' appellant's submission,
para. 4).
215Korea's third participant's submission, para. 38.

delayed liquidation should also fall within the pa rameters of [the] compliance obligation of the
implementing Member."
216
83. Korea considers that the Panel's approach tr eats retrospective and prospective anti-dumping
systems "equally".217 Korea explains that the "obligation to cease" the inconsistent measures after the
reasonable period of time is "identical" for all Members, irrespective of whether they apply a
retrospective or prospective anti-dumping system. 218 Korea adds that what is challenged in this case
is not the manner in which the United States conducts a periodic review, but rather actions taken by
the United States after the reasonable period of time.
84. Korea also submits that the Appellate Body sh ould uphold the Panel's finding under Article II
of the GATT 1994, which Korea describes as an "important contribution". 219 Korea submits that the
Panel's finding under Article II is necessary for th e effective resolution of the dispute because it
"shows the extent of negative impact caused by ... non-compliance". 220 Furthermore, Korea explains
that the findings under Article II show that the application of the zeroing practice and the continued
non-compliance of the DSB's recommendations and ruli ngs can also "potentially undermine the basic
expectations the Members have within the WTO regime, including Schedules of Concessions."221
3. Mexico
85. Mexico urges the Appellate Body to adhere to its prior reasoning in US – Zeroing (EC)
(Article 21.5 – EC) and to affirm the findings of the Panel. 222 In particular, Mexico highlights two
key principles articulated by the Appellate Body in US – Zeroing (EC) (Article 21.5 – EC) that it
submits should inform the outcome of the present proceed ings. First, that a measure is one "taken to
comply" under Article 21.5 of the DSU if there is a sufficiently close nexus between it and the DSB's
recommendations and rulings 223; and, secondly, that the obligation to implement the
recommendations and rulings of the DSB extends to measures that occur after the expiry of the

216Korea's third participant's submission, para. 40.
217Korea's third participant's submission, para. 45.
218Korea's third participant's submission, para. 49.
219Korea's third participant's submission, para. 41.
220Korea's third participant's submission, para. 42.
221Korea's third participant's submission, para. 43.
222Mexico's third participant's submission, para. 10.
223Mexico's third participant's submission, para. 8 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), paras. 221-235).

reasonable period of time where those measures "derive mechanically" from anti-dumping duty
determinations made prior to the expiry of the reasonable period of time.224
86. Mexico asserts that the Panel correctly found that Review 9 fell within its terms of reference
and that the phrase "subsequent closely connected measures" in Japan's panel request includes
Review 9. Mexico endorses the view of the Panel th at Review 9 is "a measure taken to comply" and
emphasizes that "once finalised [Review 9] would become the next administrative review in the
continuum of administrative reviews re lated to the 1989 Anti-Dumping Order." 225 Mexico considers
that, in the light of the predictability of the United States' retrospective anti-dumping system, the
Panel appropriately distinguished the situ ation in this case from the situation in US – Upland
Cotton.226 Mexico disagrees with the United States' argument that measures not yet in existence at the
time of the panel request may not be subject to WTO dispute settlement. 227 According to Mexico,
compliance is focused on the final results of th e process of implementation and the DSU does not
impose a temporal limit on the measures that may be considered in determining whether compliance
has been achieved. Mexico cautions that th e objectives of WTO dispute settlement would be
seriously undermined if a Member were allowed to continue applying WT O-inconsistent measures
after the reasonable period of time had expired.
87. Next, Mexico contends that the Panel correctly found that the United States' implementation
obligations are determined by the expiry date of th e reasonable period of time, irrespective of the date
of entry of the relevant imports, and that this is consistent with the Appellate Body's approach in US –
Zeroing (EC) (Article 21.5 – EC) .228 Mexico submits that, accordingly, the United States fails to act
in compliance when it takes any positive action after th e end of the reasonable period of time that is
contrary to the DSB's recommendations and rulings, regardless of the date of entry of the imports
affected by the action. 229 Mexico contends that to rule otherwise would permit the United States "'to
extend the reasonable period of time ...' indefin itely to evade its WTO obligations" and would
"deprive of meaning" the notion of a reasonable period of time. 230 Mexico further argues that

224Mexico's third participant's submission, paras. 9, 27, and 30 (referring to and quoting Appellate
Body Report, US – Zeroing (EC) (Article 21.5 – EC), paras. 300-310).
226Mexico's third participant's submission, para. 57 (referring to Panel Report, para. 7.115).
227Mexico's third participant's submission, para. 58 (referring to United States' appellant's submission,
para. 47).
228Mexico's third participant's submission, paras. 32 and 33 (referring to Appellate Body Report, US –
229Mexico's third participant's submission, para. 36.
230Mexico's third participant's submission, para. 36 ("' ampliar el plazo prudencial ... ' indefinidamente
para evadir sus obligaciones bajo la OMC"; "privaría de todo sentido") (quoting Appellate Body Report, US –

permitting liquidation to occur after the expiry of the reasonable period of time on the basis of WTO-
inconsistent anti-dumping margins would be in viol ation of the obligation in Article 9.3 of the Anti-
Dumping Agreement to ensure that the amount of anti-dumping duties collected does not exceed the
margin of dumping established under Article 2 of the Anti-Dumping Agreement.
231
88. Mexico rejects the United States' argument that a finding of non-compliance cannot be based
on the liquidation of anti-dumping duties that has been delayed until after the expiry of the reasonable
period of time due to domestic judicial proceedings. Mexico considers that Articles 9.3 and 13 of the
Anti-Dumping Agreement "do[] not address, let alone modify, the United States' compliance
obligations".232 Mexico submits that the obligation to comply derives from the provisions of the
DSU, which require "universal compliance" re gardless of the factual circumstances surrounding
delays related thereto. 233 Mexico also disputes the United States' suggestion that judicial review has
severed the link between the liquidation of entries a nd the liability determined in the original review
determination. Rather, the releva nt analysis should be whether liqui dation bears a "sufficiently close
nexus" with the recommendations and rulings of the DSB. 234 Mexico asserts that it does and,
therefore, the liquidation actions are "measures taken to comply". Further, Mexico explains that it is
of no relevance that private litigants caused the delay in liquidation. Although the Anti-Dumping
Agreement requires Members to afford private litigants the opportunity to pursue judicial proceedings,
and delayed liquidation is an "entirely predictable consequence" of the domestic procedures chosen by
the United States to implement this obligation, this does not relieve the United States of its
compliance obligations under the DSU. 235 Mexico notes that the Appellate Body in US – Zeroing
(EC) (Article 21.5 – EC) did not explicitly decide the issue of whether judicial delay can excuse non-
compliance. However, according to Mexico, the A ppellate Body's ruling that compliance implies not
only cessation of zeroing in the assessment of duties, but also in consequent measures that "derive
mechanically" from that assessment, clearly supports the notion that actions to liquidate that are
delayed as a result of judicial proceedings cannot be excluded from the compliance obligations of the
United States.236

231Mexico's third participant's submission, para. 37.
232Mexico's third participant's submission, para. 41 (" no se refieren, ni mucho menos modifican, las
obligaciones de cumplimiento de Estados Unidos").
233Mexico's third participant's submission, para. 41.
234Mexico's third participant's submission, para. 42.
235Mexico's third participant's submission, para. 44 ("consecuencia enteramente previsible").
236Mexico's third participant's submission, para. 45 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), para. 310).

89. Finally, Mexico argues that WTO Members w ith retrospective anti-dumping systems are not
unfairly disadvantaged when actions that "deriv e mechanically" from the assessment of duties are
included in those Members' implementation obligations. Mexico disagrees with the United States that
the Panel's approach has "retroactive effects", st ating that the implementation obligation "does not
require repayment of duties that have already been assessed and collected on liquidated entries" 237;
rather, it focuses on future actions taken after the reasonable period of time to collect anti-dumping
duties. Mexico also takes issue with the United States' contention that it "elected to adopt a
retrospective system long before there was a WTO" and it "cannot be presumed to have agreed to
'consequences' only now being assigned" by panels and the Appellate Body. 238 Mexico explains that,
after adopting a retrospective system, the Unite d States later negotiated and agreed to the WTO
Agreement, and it must be presumed to have had full know ledge of the inherent differences between
retrospective and prospective systems. 239 Mexico highlights that the implementation obligations
under both systems are equal in the sense that no new action that is inconsistent with the DSB's
recommendations and rulings may be taken in either system after th e end of the reasonable period of
time. Mexico points to the discrimination that the United States' interpretation would create in
allowing Members with retrospective systems to ev ade their WTO obligations for an extended period
of time, while requiring Members with a prospective system to comply immediately.
4. Norway
90. Norway supports the Panel's findings that Review 9 fell within the Panel's terms of reference,
and that the United States failed to comply with the DSB's recommendations and rulings with respect
to the importer-specific assessment rates determined in Reviews 1, 2, 3, 7, and 8.
91. Norway disagrees with the United States that Review 9 was not sufficiently specified in
Japan's panel request and that it fell outside the Pa nel's terms of reference because it did not exist
when the panel request was made. Norway subm its that the phrase "subsequent closely connected
measures" in the panel request was specific enough to meet the requirements of Article 6.2, since
previous panels have accepted references to a category of measures. 240 Norway agrees with the Panel
that the facts of this case show that inclusion of Review 9 "should not in any way [have] come as a

fueron determinados y cobrados sobre entradas liquidadas").
238Mexico's third participant's submission, para. 51 (quoting United States' appellant's submission,
para. 78).
239Mexico's third participant's submission, para. 51.
240Norway's third participant's submission, para. 16 (referring to Panel Report, Australia – Salmon
(Article 21.5 – Canada) , para. 7.10; Panel Report, EC – Bananas III (US) , para. 7.27; and Appellate Body

surprise to the United States"
241 because it was clear from the United States' first written submission
to the Panel that the United States was aware that the phrase would cover Review 9. 242 N o r w a y
further notes that, under the United States' retr ospective duty assessment system, Review 9 was
predictable and came into existence as part of a "chain" or "continuum" of measures, and Review 9
had been initiated before the Panel was requested. Norway recalls that the Appellate Body has held
that future measures may, under exceptional circum stances, be included in a panel's terms of
reference.243 Norway submits that the Panel properly relied on the Panel Report in Australia –
Salmon (Article 21.5 – Canada) to find that a measure introduced during compliance panel
proceedings should be included within a panel's terms of reference, due to the "special characteristics
of compliance proceedings", and in particular the "ongoing or continuous" nature of compliance. 244
Moreover, Norway states that there was no infringemen t of the parties' and third parties' due process
rights. Norway points out that the third parties r eceived all of the submissions relating to Review 9
before the third party meeting with the Panel, and that they therefore had ample opportunity to
respond to Japan's claim.245
92. Norway recalls that the Appellate Body has al ready rejected the argument that the relevant
date for assessing compliance is the date of entry of the subject merchandise.246 Furthermore, Norway
does not consider that domestic judicial proceedings, as envisaged in Article 13 of the Anti-Dumping
Agreement, provide an exception to compliance obl igations under the DSU. Drawing on Brazil –
Retreaded Tyres and US – Shrimp , Norway asserts that domestic court injunctions, even when
initiated by private parties, cannot serve as a jus tification for non-compliance with a Member's WTO-
obligations, since they remain acts of its government for which it must be held responsible.247 Finally,
Norway underscores that footnote 20 to the Anti-Dumping Agreement provides an exception only to
the time-limits contained in Article 9.3 of that Agreement, and not, as the United States argues, an
exception to compliance obligations.
248

241Norway's third participant's submission, para. 22.
242Norway's third participant's submission, para. 18 (referring to Panel Report, para. 7.105; and United
States' first written submission to the Panel, para. 50).
243Norway's third participant's submission, pa ra. 8 (referring to Appellate Body Report, EC – Chicken
Cuts, para. 156).
244Norway's third participant's submission, para. 11 (quoting Panel Report, Australia – Salmon
(Article 21.5 – Canada), para. 7.10).
245Norway's third participant's submission, para. 28.
246Norway's third participant's submission, para. 32 (referring to Appellate Body Report, US – Zeroing
(EC) (Article 21.5 – EC), paras. 308 and 309).
247Norway's third participant's submission, paras. 38-40 (referring to Panel Report, Brazil – Retreaded
Tyres, para. 7.305; Appellate Body Report, Brazil – Retreaded Tyres , para. 252; and Appellate Body Report,
US – Shrimp, para. 173).
248Norway's third participant's submission, para. 43.

III. Issues Raised in This Appeal
93. The following issues are raised in this appeal:
(a) Whether the Panel erred in finding that Revi ew 9 fell within its terms of reference
because:
(i) it was not properly identified in Ja pan's panel request, as required by
Article 6.2 of the DSU; and
(ii) it had not been completed when Japan requested the establishment of the
Panel.
(b) Whether the Panel erred in finding that the United States has failed to comply with
the DSB's recommendations and rulings re garding the importer-specific assessment
rates determined in Reviews 1, 2, 3, 7, a nd 8 that apply to imports covered by those
Reviews that were, or will be, collected after the expiry of the reasonable period of
time, because:
(i) the United States' compliance obligations must be determined based on the
date of importation and not on the basis of the date of collection of the anti-
dumping duties; and
(ii) collection was delayed beyond the reasonable period of time due to the
periodic reviews being subjected to domestic judicial proceedings.
(c) Whether the Panel erred in finding that the United States has acted inconsistently with
Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994 by applying zeroing in the context of Reviews 4, 5, 6, and 9, because:
(i) the United States' compliance obligations must be determined based on the
date of importation and not on the basis of the date of collection of the anti-
dumping duties;
(ii) collection was delayed beyond the reasonable period of time due to the
periodic reviews being subjected to domestic judicial proceedings; and
(iii) Reviews 4, 5, and 6 had not had effect s after the reasonable period of time,
given that collection had been suspended as a result of court injunctions.

(d) Whether the Panel erred in finding that the United States is in violation of
Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain liquidation
actions taken after the expiry of the reasonable period of time, namely, with respect to
the USDOC liquidation instructions set forth in Panel Exhibits JPN-40.A, and JPN-77
to JPN-80, and the Customs liquidation noti ces set forth in Panel Exhibits JPN-81 to
JPN-87.
IV. The Panel's Terms of Reference – Review 9
94. We begin by examining the United States' appeal of the Panel's finding that Review 9 fell
within its terms of reference. Review 9 is a pe riodic review of an anti-dumping duty order on imports
of ball bearings from Japan.
249 It followed successively from Reviews 1 through 6 250, which were all
periodic reviews stemming from the same anti-dumping duty order on ball bearings from Japan.
Review 9 covered imports for the period 1 May 2006 to 30 April 2007. The notice of initiation of the
Review was published by the United States Department of Commerce (the "USDOC")
on 29 June 2007
251, preliminary results were published on 7 May 2008 252, and final results were
published on 11 September 2008.253
95. The panel and Appellate Body reports in the or iginal proceedings were adopted by the DSB
on 23 January 2007. The reasonable period of time mutually agreed between the United States and
Japan, pursuant to Article 21.3(b) of the DSU, expired on 24 December 2007.

249See supra, footnote 26. See also Panel Report, footnote 14 to para. 3.1(b)(ii).
250Reviews 1, 2, 3, 4, 5, 6, and 9 are periodic reviews concerning imports of ball bearings from Japan
entering the United States in 1999-2007, with the exception of the period 1 May 2001 to 30 April 2002, that is,
between Reviews 2 and 3. Although Japan also made claims in the original proceedings regarding entries of
ball bearings from Japan for the periods 1998-1999 and 2001-2002, Japan explained that it was not pursuing
claims in these compliance proceedings regarding the 1998-1999 and 20 01-2002 periodic reviews, because the
United States had liquidated all entries covered by those two reviews by the end of the reasonable period of
time. (See Panel Report, para. 7.66 and footnote 92 thereto) Reviews 7 and 8, which are also subject to these
compliance proceedings, concerned imports from Japan of cylindrical roller bearin gs and spherical plain
bearings for the period 1 May 1999 to 31 December 1999.
251Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation
in Part and Deferral of Administrative Review, United States Federal Register, Vol. 72, No. 125 (29 June 2007)
35690. (See Panel Report, footnote 134 to para. 7.110)
252Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom:
Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Reviews in Part,
United States Federal Register, Vol. 73, No. 89 (7 May 2008) 25654. The due date for the completion of these
preliminary results was extended twice: Extension of Time Limit for Preliminary Results of Antidumping Duty
Administrative Reviews, United States Federal Register, Vol. 73, No. 11 (16 January 2008) 2887, extending the
due date from 31 January 2008 to 15 April 2008; and Extension of Time Limit for Preliminary Results of
Antidumping Duty Administrative Reviews, United States Federal Register , Vol. 73, No. 77
(21 April 2008) 21311, extending the due date from 15 April 2008 to 30 April 2008.
253See supra, footnote 26, and Panel Report, footnote 14 to para. 3.1(b)(ii).

96. Before we proceed to analyze the arguments ra ised by the United States' appeal, we first
provide a brief overview of the Panel's analysis of this issue in these Article 21.5 proceedings, and
then summarize the arguments of the participants and third participants on appeal.254
A. Article 21.5 Proceedings
97. Japan requested the establishment of an Article 21.5 panel on 7 April 2008. Paragraph 12 of
Japan's panel request reads:
This request concerns five of the 11 periodic reviews mentioned in
paragraph 1(vi) [of the panel request], plus three closely connected
periodic reviews that the United States argues "superseded" the
original reviews. The United St ates used zeroing in each of these
reviews and, despite the DSB's recommendations and rulings, has
omitted to eliminate zeroing from any of them. These eight periodic
reviews are identified in Annex 1 of this Request, and stem from
anti-dumping duty orders on "Ball Be arings and Parts Thereof From
Japan", "Cylindrical Roller Bearings and Parts Thereof From Japan",
and "Spherical Plain Bearings and Pa rts Thereof From Japan". This
request also concerns United States Government instructions and
notices, issued since the end of the RPT, to liquidate entries covered
by these eight reviews. Further, the request concerns any
amendments to the eight periodic reviews and the closely connected
instructions and notices, as well as any subsequent closely connected
measures.
255
98. Before the Panel, the United States sought a pr eliminary ruling that the phrase "subsequent
closely connected measures" in Japan's panel re quest failed to identify the "alleged subsequent
measures" for purposes of Article 6.2 of the DSU. 256 The United States expressed concern that Japan
was trying to include in the Panel's terms of refere nce any future periodic reviews related to the eight
reviews identified in its panel request which, according to the United States, would be "improper".257
99. Japan did not refer to or make any claims with respect to Review 9 in its first or second
written submissions to the Panel. 258 On 11 September 2008, during the course of the Article 21.5
Panel proceedings, the USDOC published the final results of Review 9. On 15 September 2008,

254Review 9 was not discussed in the original proceedings, given that it was initiated subsequent to the
adoption of the DSB's recommendations and rulings.
255WT/DS322/27, para. 12.
256United States' first written submission to the Panel, para. 50. See also Panel Report, paras. 7.84
and 7.100.
257United States' first written submission to the Panel, para. 50.
258Japan filed its first and second wr itten submissions to the Panel on 30 June and 27 August 2008,
respectively. Japan stated in its first submission that it reserved "the rights to address any other subsequent
closely connected measures." (Japan's first written submission to the Panel, footnote 40 to para. 28)

Japan requested leave and later obtained permission fr om the Panel to file a supplemental submission
in which it argued that Review 9 is incons istent with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 by virtue of the application of zeroing in that
Review.
259 In response to Japan's submission, the Un ited States objected that the phrase "subsequent
closely connected measures" did not cover Review 9. The United States argued that, in any event,
Review 9 was a "future measure, not in existence" at the time of the panel request, and therefore could
not fall within the Panel's jurisdiction.260
100. The Panel found that Review 9 fell within its term s of reference for three reasons. First, the
Panel found that the phrase "subsequent closely conn ected measures" in Japan's panel request was
sufficiently specific for purposes of Article 6.2 of the DSU. 261 In addition to examining the wording
of Japan's panel request, the Panel considered that whether or not a panel request "adequately put[] the
responding party on notice regarding the case agains t it" is a relevant consideration for assessing
whether the request meets the requirements of Article 6.2. 262 In this case, the Panel noted the high
degree of predictability of the future occurrence of subsequent periodic reviews in the United States'
retrospective anti-dumping duty system, and considered that the United States should reasonably have
expected that future periodic reviews w ould fall within the Panel's jurisdiction. 263 Moreover, the
Panel noted that the United States had clearly anticipated the inclusion of subsequent periodic reviews
because, in its first written submission, the United States had expressed concern that Japan was trying
to include in the Panel's terms of reference any fu ture periodic reviews related to the eight periodic
reviews identified in the panel request. 264 The Panel concluded that "a finding that the phrase
'subsequent closely connected measures' satisfies th e terms of Article 6.2 w ould not viol ate any due
process objective of the DSU."265
101. Secondly, the Panel found that Review 9 was properly included within the scope of the
Article 21.5 proceedings. The Panel based its findi ng on the fact that Review 9 had already been

259Japan requested leave to file a supplemental submission on 15 September 2008. The United States
objected to Japan's request to file a supplemental submission. The Panel informed the parties that it had
accepted Japan's request to file a supplemental submissi on on 1 October 2008. (See Panel Report, para. 7.109)
Japan's supplemental submission was filed on 10 October 2008. The United States responded to Japan's
supplemental submission on 3 November 2008. Japan commented on the United States' response
on 5 November 2008. The Panel met with the parties on 4 and 5 November 2008; and with the third parties
on 5 November 2008.
260See Panel Report, paras. 7.84 and 7.100.
261Panel Report, para. 7.107.
262Panel Report, para. 7.105.
263Panel Report, paras. 7.102 and 7.105.
264Panel Report, para. 7.105 (quoting United States' first written submission to the Panel, para. 50).
265Panel Report, para. 7.105.

initiated at the time of Japan's panel request 266; was "identical in nature and effect" to Reviews 4, 5,
and 6, which the Panel had found to be with in the scope of the Article 21.5 proceedings 267; and
applied the zeroing methodology. 268 The Panel concluded that, like Reviews 4, 5, and 6, Review 9
was sufficiently closely connected to the original dispute to constitute a "measure taken to comply",
within the meaning of Article 21.5.269
102. Thirdly, the Panel examined the United States' argument that a measure not yet in existence at
the time of the panel request, such as Review 9, could not be the subject of WTO dispute settlement.
The Panel observed that "although Review 9 did not ex ist at the time of the panel request, a chain of
measures or a continuum existed, in which each new review superseded the previous one. Review 9
eventually came into existen ce as a part of this chain." 270 The Panel found that "[i]n these particular
circumstances, where the measure in issue eventually came into existe nce as part of a continuum that
existed at the time of the panel request, and wh ere the process for bringing about the measure's
existence was already underway, ... Review 9 is within the panel's terms of reference." 271 The Panel
subsequently found that the evidence submitted by Japan—including computer program excerpts, as
well as USDOC Issues and Decision Memoranda—demonstrated that zeroing had been used in
Review 9 and that, therefore, Review 9 was in consistent with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994.272
B. Claims and Arguments on Appeal
103. The United States requests that the Appellate B ody reverse the Panel's finding that Review 9
was part of its terms of reference. The United St ates submits that Articles 6.2 and 7.1 of the DSU
required Japan to identify each periodic review in its panel request, since each review is "separate and
distinct".273 Consequently, the phrase "subsequent clo sely connected measures" in Japan's panel
request did not meet the requirement in Article 6.2 to "identify the specific measures at issue". In
addition, the United States argues that the Panel took into account factors that are irrelevant to an
analysis under Article 6.2, such as the United Stat es' statement in its first written submission that

266Panel Report, para. 7.110.
267Panel Report, para. 7.114 (referring to Panel Report, para. 7.82). The Panel explained that Review 9
"supersedes those measures, and is therefore the latest link in the chain of assessment incorporating those
measures."
268Panel Report, para. 7.114.
269Panel Report, para. 7.114.
270Panel Report, para. 7.116.
271Panel Report, para. 7.116.
272Panel Report, paras. 7.160, 7.16 1, 7.166, and 7.168. See also ibid., para. 8.1(b). The Panel arrived
at the same conclusion in relation to Reviews 4, 5, and 6.

Japan was trying to include future reviews in the Panel's terms of reference, the predictability of the
United States' anti-dumping system, the fact that Re view 9 had been initiated by the time of the panel
request, and the alleged due process objectives of Ar ticle 6.2 of the DSU. Moreover, the United
States reiterates that Review 9 cannot be subject to WTO dispute settlement proceedings because it
was a "future" measure in the sense that it did not exist at the time the Panel was requested.
274 The
United States also highlights certain systemic considerations that militate against the Panel's
approach.275 Finally, the United States refers to past disputes in which respondents, in claiming that
inconsistencies had been removed, unsuccessfully re quested panels to examine measures that came
into existence after the panels were established. 276 The United States describes the Panel's approach
as "asymmetrical", because it would favour complainants over respondents.277
104. Japan agrees with the Panel's findings with respect to Review 9, and submits that the language
of its panel request was specific enough to satisfy the requirements of Article 6.2.278 Moreover, Japan
points out that previous panels a nd the Appellate Body have found th at referring to a "category of
measure" is sufficiently specific to satisfy the requirements of Article 6.2 of the DSU.279 Japan agrees
with the Panel's emphasis on the fact that the Unite d States had anticipated the inclusion of Review 9
in its first written submission to the Panel 280, and that, under the United States' retrospective anti-
dumping system, periodic reviews are predictable. 281 Further, Japan notes that Review 9 had been
initiated by the USDOC over nine months before Ja pan's panel request, and was due to be completed
during the course of the Panel proceedings. 282 Japan also finds support in the panel's reasoning in
Australia – Salmon (Article 21.5 – Canada) that the "ongoing" and "continuous" nature of compliance
under the WTO dispute settlement system warrants the inclusion of measures that come into existence
during Article 21.5 panel proceedings. 283 Japan considers that the inclusion of Review 9 is consistent
with the due process objectives of Article 6.2 of the DSU. Moreover, it disagrees that the inclusion of

275United States' appellant's submission, paras. 56 and 57.
276United States' appellant's submission, para. 57 and footnote 81 thereto (referring to Panel Report,
India – Autos, paras. 7.23-7.30; and Panel Report, Indonesia – Autos, para. 14.9).
278Japan's appellee's submission, paras. 385-387.
279Japan's appellee's submission, paras. 389-393 (referring to Panel Report, EC – Bananas III (US) ,
para. 7.27; Appellate Body Report, EC – Bananas III , para. 140; and Panel Report, Australia – Salmon
(Article 21.5 – Canada), para. 7.10).
280Japan's appellee's submission, paras. 395 and 396 (referring to Panel Report, para. 7.105, in turn
quoting United States' first written submission to the Panel, para. 50).
281Japan's appellee's submission, paras. 396-400 (referrin g to Panel Report, paras. 7.102, 7.106, 7.111,
and 7.116).
283Japan's appellee's submission, paras. 382 and 411-413 (quoting Panel Report, Australia – Salmon
(Article 21.5 – Canada), para. 7.10).

Review 9 would create "asymmetry" to the disa dvantage of respondents, as argued by the United
States.284
105. The third participants addressing this issue—th e European Communities, Korea, Mexico, and
Norway—support the Panel's inclusion of Review 9 in its terms of reference.285
C. Analysis
106. The United States' appeal focuses on two aspects of the Panel's analysis. 286 First, the United
States argues that the phrase "subsequent closely co nnected measures" in Japan's panel request does
not meet the requirement of Article 6.2 of the DS U to "identify the specific measures at issue".
Secondly, the United States submits that the Panel erred in finding that Review 9 was properly within
the Panel's terms of reference because Review 9 had not been completed when Japan submitted its
panel request to the DSB. The United States cons iders that Review 9 was a "future measure" that
"cannot form part of a [p]a nel's terms of reference". 287 We recall that the notice of initiation of
Review 9 was published on 29 June 2007. Japan requested that the matter be referred to a panel under
Article 21.5 of the DSU on 7 April 2008, and the matter was referred to the Panel on 18 April 2008.288
The preliminary and final results of Review 9 289 were published on 7 May and 11 September 2008,
respectively, at which time the Panel proceedings were already underway.
1. Whether Japan's Panel Request Meets th e Requirement of Article 6.2 of the
DSU to "Identify the Specific Measures at Issue"
107. Article 6.2 of the DSU provides, in relevant part:
The request for the establishment of a panel shall be made in writing.
It shall indicate whether consultations were held, identify the specific
measures at issue and provide a brief summary of the legal basis of
the complaint sufficient to present the problem clearly.

284Japan's appellee's submission, paras. 444-452.
285European Communities' third participant's submissi on, paras. 10-17; Korea's third participant's
submission, paras. 54-57; Mexico's third participant's submission, paras. 55-63; and Norway's third
participant's submission, paras. 5-28.
286The United States included in its Notice of Appeal the paragraph in which the Panel found that
Review 9 was a "measure taken to comply". (See WT/DS322/32, footnote 1 to para. 1 (referring to, inter alia,
Panel Report, para. 7.114)) However, the United States did not make any arguments with respect to this finding
in its appellant's submission. At the oral hearing, the United States confirmed that it does not appeal the Panel's
finding that Review 9 is a "measure taken to comply" within the meaning of Article 21.5 of the DSU.
288WT/DS322/27 and WT/DS322/28, respectively.
289See supra, footnotes 26 and 252.

Taken together, the identification of the specific measures at issue and the provision of a brief
summary of the legal basis of the complaint compri se the "matter referred to the DSB", which forms
the basis for a panel's terms of reference under Article 7.1 of the DSU.
290
108. The Appellate Body has stated that, pursuant to Article 6.2, a panel request must be
"sufficiently precise" for two reasons.291 First, it forms the basis for the terms of reference of the panel,
pursuant to Article 7 of the DSU 292; and, secondly, the terms of reference, and the request for the
establishment of a panel on which they are based, serve the due process objective of notifying
respondents and potential third parties of the nature of the dispute and of the parameters of the case to
which they must begin preparing a response. 293 The Appellate Body has explained that, in assessing
the sufficiency of the panel request, a panel must "examine the request for the establishment of the
panel very carefully to ensure its compliance with bo th the letter and the spirit of Article 6.2 of the
DSU"294, and that compliance with the requirements of Article 6.2 must be "demonstrated on the face"
of the panel request295, read "as a whole"296, and "on the basis of the language used".297
109. In order to evaluate whether Japan's panel request complies with the requirements of
Article 6.2 of the DSU, we must also take into account that these are compliance proceedings brought
pursuant to Article 21.5 of the DSU. Article 21.5 directs compliance panels to examine the "existence
or consistency with a covered agreement of measu res taken to comply with the recommendations and
rulings" of the DSB. The Appellate Body has stated that, although Article 6.2 is generally applicable
to panel requests under Article 21.5, "the requirement s of Article 6.2, as they apply to an original

290See Appellate Body Report, Guatemala – Cement I, para. 72; Appellate Body Report, US – Carbon
291Appellate Body Report, EC – Bananas III, para. 142.
292See, for instance, Appellate Body Report, EC – Bananas III, para. 142.
293Appellate Body Report, US – Continued Zeroing , para. 161; Appellate Body Report, US – Carbon
294Appellate Body Report, EC – Bananas III , para. 142; Appellate Body Report, US – Continued
Zeroing, para. 161.
295Appellate Body Report, US – Carbon Steel , para. 127. See also Appellate Body Report, US –
Continued Zeroing, para. 161.
296Appellate Body Report, US – Continued Zeroing , para. 161; Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 169; Appellate Body Report, US – Carbon Steel, para. 127.
297Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 164. In addition,
the Appellate Body has explained that the "specific measure" is "what is being challenged by the complaining
Member", while the brief summary of the legal basis of the complaint "aims to explain succinctly how or why
the measure at issue is considered by the complaining Member to be violating the WTO obligation in question."
(Appellate Body Report, EC – Selected Customs Matters, para. 130 (emphasis omitted))

panel request, need to be adapted to a panel request under Article 21.5." 298 I n A r t i c l e 2 1 . 5
proceedings, the "specific measures at issue" are measures "that have a bearing on compliance with
the recommendations and rulings of the DSB." 299 This indicates that the "requirements of Article 6.2
of the DSU, as they apply to an Article 21.5 pane l request, must be assessed in the light of the
recommendations and rulings of the DSB in the original ... proceedi ngs that dealt with the same
dispute."300 The complaining party must, inter alia:
... cite the recommendations and rulings that the DSB made in the
original dispute as well as in any preceding Article 21.5 proceedings,
which, according to the complain ing party, have not yet been
complied with ... either identify, with sufficient detail, the measures
allegedly taken to comply with those recommendations and rulings,
as well as any omissions or deficiencies therein, or state that no such
measures have been taken by th e implementing Member ... provide a
legal basis for its complaint, by specifying how the measures taken,
or not taken, fail to remove th e WTO-inconsistencies found in the
previous proceedings, or whethe r they have brought about new
WTO-inconsistencies.
301 (original emphasis; footnote omitted)
110. With this guidance in mind, we examine whet her Japan's panel request met the requirements
of Article 6.2, read in the light of Article 21.5 of the DSU.
111. We begin with a textual analysis of Japan's panel request. The reference to "subsequent
closely connected measures" is made in paragraph 12, which falls within sub-section B of Part III,

298The Appellate Body stated in US – FSC (Article 21.5 – EC II):
The Appellate Body has, to date, not been called upon to determine the
precise scope of the phrase "these dispute settlement procedures" in
Article 21.5 and how it relates to Ar ticle 6.2 of the DSU. We do not
consider it necessary, for purposes of resolving the present dispute, to
determine the precise scope of this ph rase. However, we are of the view
that the phrase "these dispute settlement procedures" does encompass
Article 6.2 of the DSU, and that Article 6.2 is generally applicable to panel
requests under Article 21.5. At the same time, given that Article 21.5 deals
with compliance proceedings, Article 6.2 needs to be interpreted in the light
of Article 21.5. In other words, the requirements of Article 6.2, as they
apply to an original panel request, need to be adapted to a panel request
under Article 21.5.
(Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 59 (footnotes omitted))
299Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 61.
300Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 61.
301Appellate Body Report, US – FSC (Article 21.5 – EC II) , para. 62 (referring to Appellate Body
Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 67).

entitled "Periodic Reviews".
302 Paragraph 12 begins by stating that the request concerns five of the 11
periodic reviews that were challenged in the original proceedings (the "original reviews"), as well as
three "closely connected periodic reviews" that the United States had argued "superseded" the original
reviews. The original reviews (identified as Review s 1, 2, 3, 7, and 8) and the "closely connected"
periodic reviews (identified as Reviews 4, 5, and 6) are listed in Annex 1 of the panel request. Japan's
request alleges that the United States used zeroi ng in each of these Reviews, and had omitted to
eliminate zeroing with respect to any of them. The request further states that these eight periodic
reviews stem from three anti-dumping duty orders on Ball Bearings and Parts Thereof from Japan ,
Cylindrical Roller Bearings and Parts Thereof from Japan , and Spherical Plain Bearings and Parts
Thereof from Japan .303 Thereafter, the request refers to United States government instructions and
notices, issued after the end of the reasonable period of time, to liquidate duties on the entries covered
by these eight periodic reviews. Finally, in the last line of paragraph 12, Japan states that "the request
concerns any amendments to the eight periodic re views and the closely connected instructions and
notices, as well as any subsequent closely connected measures."304
112. In our view, the plain meaning of the phrase "subsequent closely connected measures", as it
appears in paragraph 12 of Japan's panel request, indicates that the measures being referred to would
have to be enacted after (that is, "subsequent" to) the eight periodic reviews identified by Japan in its
request and would have to relate (be "closely connected") to these ei ght reviews. As paragraph 12
falls within the sub-section entitled "Periodic Review s", the necessary implication is that the phrase
refers to periodic reviews that followed some or a ll of the eight periodic reviews listed in the panel
request. These eight periodic reviews related to the three anti-dumping duty orders identified in
Japan's request. However, given that the anti-dumpi ng duty orders on cylindrical roller bearings and
spherical plain bearings had been revoked by the USDOC at the time of Japan's panel request 305, any
subsequent periodic review could relate only to the anti-dumping duty order on ball bearings. We

302See supra, para. 97. Japan's request for the establishment of a panel has main parts: Part I covers
the background to Japan's panel request, including the DSB's recommendations and rulings from the original
proceedings; Part II deals with the alleged implementation action or inaction by the United States; Part III then
outlines the measures at issue and claims made by Japan in these Article 21.5 proceedings; and Part IV sets out
the conclusion.
303Antidumping Duty Orders: Ball Bearings, Cyli ndrical Roller Bearings , and Spherical Plain
Bearings, and Parts Thereof from Japan, United States Federal Register, Vol. 54, No. 92 (15 May 1989) 20904.
The United States revoked the anti-dumping duty orders on cylindrical roller bearings and spherical plain
bearings, effective 1 January 2000. (See United States' first written submission to the Panel, para. 66)
304Emphasis added.
305Japan's appellee's submission, para . 387 (referring to United States' first written submission to the
Panel, para. 66, in turn referring to Revocation of Antidumping Duty Orders on Certain Bearings from Hungary,
Japan, Romania, Sweden, France, Germ any, Italy, and the United Kingdom, United States Federal Register ,
Vol. 65, No. 133 (11 July 2000) 42667 and 42668 (Panel Exhibit US-A19)).

therefore disagree with the United States that th e phrase "subsequent closely connected measures"
was too "broad" and "vague" for purposes of identifyi ng the measure at issue under Article 6.2 of the
DSU.306
113. We share the Panel's view that the use of the term "closely connected" earlier in paragraph 12
of the panel request provides additional support for finding that "subsequent closely connected
measures" refers to periodic reviews of the anti-dumping duty order on ball bearings, which were
conducted after the reviews listed in the panel re quest. The Panel looked at the language—"closely
connected periodic reviews"—used to describe the pe riodic reviews (Reviews 4, 5, and 6) that had
followed the reviews found to be WTO- inconsistent in the original pro ceedings (Reviews 1, 2, and 3)
and noted the similarity in the reference to subsequent "closely connected" measures. 307 The Panel
also described the close connection among successive periodic reviews occurring under the same anti-
dumping order in the United States' retrospective anti-dumping duty system. 308 The Panel noted that,
in this case, three of the periodic reviews challenged in the original proceedings (Reviews 1, 2, and 3),
as well as the other three periodic reviews challeng ed in the compliance proceedings as "measures
taken to comply" (Reviews 4, 5, and 6), were part of a continuum of periodic reviews "superseding"
each other 309, whose purpose was the ongoing assessment of anti-dumping duties owed under the
same anti-dumping duty order on ball bearings issued in 1989. 310 Thus, the use of the term "closely
connected" earlier in paragraph 12 of Japan's pane l request provides contextual support for the
conclusion that the term "subsequent closely co nnected measures" is referring to Review 9.
Review 9, being the subsequent periodic revi ew, occurring under the same anti-dumping duty order
on ball bearings as Reviews 1 through 6, was "close ly connected" to those listed in Japan's panel
request.
114. The object of these Article 21.5 proceedings is to determine whether the United States has
complied with the DSB's recommendations and ruli ngs. The Appellate Body in the original
proceedings found that the United States acts inc onsistently with Articles 2.4 and 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by maintaining zeroing procedures in

306United States' appellant's submission, para. 45. Although the United States argues that "subsequent
closely connected measures" could encompass measur es such as ministerial corrections or remand
determinations in court proceedings, it acknowledges that "subsequent administrative determinations" could fall
within the measures contemplated by the reference to "subsequent closely connected measures".
307Panel Report, para. 7.103.
308See Panel Report, para. 7.102.
309Panel Report, para. 7.116. The Panel described these consecutive reviews as forming a "chain of
measures or a continuum ... in which each new review superseded the previous one".
310Panel Report, para. 7.103. The 1989 anti-dumping duty order referred to by the Panel was the same
order referred to above in supra, footnote 303.

periodic reviews.
311 In addition to this "as such" finding, the Appellate Body found that the United
States acted inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994 by applying zeroing procedures in the 11 periodic reviews at issue in that
appeal.312 If zeroing were used in Review 9, it w ould mean that the United States has not ceased
using zeroing procedures in periodic reviews, contrary to the DSB's recommendations and rulings.
Thus, Review 9 is a measure that has "a bearing on compliance with the recommendations and rulings
of the DSB" and this must be taken into account in assessing whether Japan's panel request meets the
requirements of Article 6.2, read in the light of Article 21.5.
313
115. The United States argues that Article 6.2 requires that each periodic review should have been
identified in Japan's panel request, since each is "separate and distinct" and serves as the basis for the
calculation of the assessment rate for each importer of the specific entries covered by the review. 314
In making this argument, the United States relies on a statement of the Appellate Body in US –
Zeroing (EC) (Article 21.5 – EC) , that successive periodic review determinations are "separate and
distinct measures".315
116. We do not believe that the Appellate Body's prio r reference to subsequent periodic reviews as
"separate and distinct" contradicts the notion that a periodic review can be identified for purposes of
Article 6.2 of the DSU through the use of the phrase "subsequent closely connected measures".
Although recognizing that each periodic review is a " separate and distinct" measure (in the sense that
it is not an "amendment" of the previous periodic review 316), the Appellate Body in US – Zeroing
(EC) (Article 21.5 – EC) nonetheless underscored the link betwee n subsequent periodic reviews by
stating that "subsequent reviews ... issued under the same respective anti-dumping duty order as the
measures challenged in the original proceedings , ... constitute[] 'connected stages ... involving the
imposition, assessment and collection of duties under the same anti-dumping order'."
317 The periodic
reviews, moreover, involved the same products, fro m the same countries, and formed part of a

311Appellate Body Report, US – Zeroing (Japan), para. 190(c).
312Appellate Body Report, US – Zeroing (Japan), para. 190(e).
313Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 61. See also supra, para. 109.
314United States' appellant's submissi on, para. 44. For the United States, each successive review is
distinct from the one before it, in that exporters may vary between review s; each review involves different
shipments and different data from different time periods; and the anti-dumping duty rate may change, and in
some cases may fall to a de minimis level. (Ibid., para. 53)
315United States' appellant's submission, footnote 54 to para. 44 (referring to Appellate Body Report,
US – Zeroing (EC) (Article 21.5 – EC), paras. 192 and 193).
316Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 192.
317Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 230 (quoting Appellate Body

continuum of events. 318 It is precisely because it has similar connections that Review 9 can be
properly described as a "subsequent closely connected measure". Further, the text of Article 6.2 of
the DSU does not require that a measure be referred to individually in order to be properly identified
for purposes of that Article. The Appellate Body h as stated that the measures at issue must be
identified with sufficient precision in order that th e matter referred to a panel may be discerned from
the panel request.319 Whereas a more precise way to identify a measure would be to indicate its name
and title in the panel request 320, there may be circumstances in whic h a party describes a measure in a
more generic way, which nonetheless allows the measu re to be discerned. In this case, the phrase
"subsequent closely connected measures" is sufficiently precise to identify Review 9, given that it is a
periodic review of the same anti-dumping duty or der on imports of ball bearings from Japan and
immediately followed Reviews 1 through 6.
117. We consider that our previous analysis is sufficient to establish that Japan's panel request met
the requirement of Article 6.2 to "identify the specific measures at issue". The United States,
however, disagrees with the Panel that a "relevant consideration" 321 for determining whether the
specific measures at issue are properly identified under Article 6.2 is whether the panel request
adequately puts the responding party on notice regarding the case against it. 322 The United States
submits that the Panel elevated "due process objectiv es" over the text of Article 6.2 by considering
whether Japan's challenge to "subsequent closel y connected measures" would "violate any due
process objective of the DSU".323
118. As we observed earlier, one of the purposes of a panel's terms of reference is to fulfil the due
process objective of notifying responde nts and potential third parties of the nature of the dispute and
of the parameters of the case to which they must begin preparing a response.324 We see no error in the
Panel having examined whether Japan's panel requ est adequately put the United States "on notice"
regarding the case against it. 325 Nor do we find error in the Panel's finding that the United States was
reasonably put on notice by Japan's panel request . The Panel noted that the United States had

318Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 240.
319Appellate Body Report, US – Continued Zeroing, para. 168.
320For example, Japan could have referred to the notice of initiation of Review 9 in its panel request.
321Panel Report, paras. 7.104 and 7.105 (referring to Appellate Body Report, Brazil – Desiccated
Coconut, p. 22, DSR 1997:I, 167, at 186).
323Panel Report, para. 7.105. In response to questioning at the oral hearing as to whether or not it had
been prejudiced by the alleged lack of specificity in Japan's panel request, the United States responded that it
was not required to make any showing of prejudice in this case in addition to proving that Japan's panel request
did not meet the specificity requirement in Article 6.2 of the DSU.
324See supra, para. 108.
325Panel Report, para. 7.105.

anticipated in its first written submission "that Japan is trying to include in the panel's terms of
reference any future administrativ e reviews related to the eight identified in its panel request".
326
Thus, the Panel found that "it is clear from the Un ited States' First Written Submission that the United
States realized Japan was identifyi ng" such future periodic reviews. 327 The Panel also referred to the
fact that Review 9 had been initiated at the time of the panel request, and was due to be completed
during the Panel proceedings by virtue of the ope ration of the United States' anti-dumping regime. 328
We consider that the Panel did not err in its analys is of the matter and in considering the due process
objectives as relevant for purposes of deciding whether Review 9 was within its terms of reference.
119. Further, we do not believe that the inclusion of Review 9 in the Panel's terms of reference
adversely affected the United States' due process righ ts. In addition to the factors taken into account
by the Panel, which are noted above, we observe that, once the final results of Review 9 were
published, and Japan had filed its supplementa l submission, the United States was given an
opportunity to respond in writing to the arguments raised in that submission. Moreover, Japan's
arguments concerning Review 9 were similar to those raised with regard to Reviews 4, 5, and 6, in
that they also challenged the use of zeroing in a "chain of assessment incorporating those
measures".
329 The United States had further opportunities to make arguments at the Panel meeting
with the parties and in response to the Panel's qu estions. In our view, the above suggests that the
United States had ample opportunities, during the c ourse of the Panel proceedings and prior to the
Panel's deliberations, to make arguments, answer questions, and respond to Japan's submission with
respect to Review 9.330 Potential third parties were sufficiently put on notice by Japan's panel request,
given the inclusion of the reference to "subseque nt closely connected measures", the connections
between Review 9 and Reviews 1 through 6, and the fact that Japan was challenging the use of the
same zeroing methodology. The third parties also had opportunity to present arguments and respond
to the claims made by Japan with respect to Review 9. 331 Based on the above, we agree with the

326Panel Report, para. 7.105 (quoting United States' first written submission to the Panel, para. 50).
327Panel Report, para. 7.106.
328See Panel Report, paras. 7.110 and 7.111.
329Panel Report, para. 7.114.
330See Japan's appellee's submission, paras. 428-439.
331As a third party in the Panel proceedings, Norway submits that the third parties were given sufficient
notice of Review 9, and were provided with ample opportunity to respond to claims with respect to Review 9.
(Norway's third participant's submission, paras. 26-28. See also Japan's appellee's submission, para. 441
(referring to European Communities' oral statement at th e meeting with the Panel, paras. 47 and 48); European
Communities' third party submission to the Panel, para. 27; oral statement of the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu at the meeting with the Panel, paras. 7, and 12-15; and Mexico's oral
statement at the Panel meeting, para. 12)

Panel's conclusion that "a finding that the phrase 's ubsequent closely connected measures' satisfies the
terms of Article 6.2 would not violate any due process objective of the DSU".332
2. Whether Review 9 Was Properly Included in the Panel's Terms of Reference
Even Though It Had Not Been Comple ted at the Time of Japan's Panel
Request
120. The second error alleged by the United States is that Review 9 was a "future measure" that
had not yet come into existence at the time of Japan's panel request, and therefore could not have been
included within the Pane l's terms of reference. 333 The United States submits that the DSU does not
allow for the inclusion of such "future measures" within a panel's terms of reference.334
121. We recall that Article 6.2 of the DSU provid es that the request for the establishment of a
panel "shall indicate whether consultations were held, identify the specifi c measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly."
Apart from the reference in the present tense to th e fact that the complainant must identify the
measures "at issue", Article 6.2 does not set out an express temporal condition or limitation on the
measures that can be identified in a panel request. Indeed, in US – Upland Cotton , where the issue
was raised in the context of measures that had e xpired prior to the panel proceedings, the Appellate
Body explained that "nothing inherent in the term 'at issue' sheds light on whether measures at issue
must be currently in force, or whether they ma y be measures whose legislative basis has expired".
335
In EC – Chicken Cuts , the Appellate Body stated that "[t]he term 'specific measures at issue' in
Article 6.2 suggests that, as a general rule, the meas ures included in a panel's terms of reference must
be measures that are in existence at the time of the establishment of the panel." 336 Nevertheless, the
Appellate Body also stated in that case that "mea sures enacted subsequent to the establishment of the
panel may, in certain limited circumstances, fall within a panel's terms of reference".337

332Panel Report, para. 7.105.
333United States' appellant's submission, paras. 43, 47, and 58.
334United States' appellant's submission, paras. 44 and 47.
335Appellate Body Report, US – Upland Cotton, para. 269.
336Appellate Body Report, EC – Chicken Cuts, para. 156. The Appellate Body explained that:
These measures should also have been the subject of consultations prior to
the establishment of the panel, although the Appellate Body has held that
there is no need for a " precise and exact identity " between the measures
addressed in consultations and the measures identified in the panel request.
(Ibid., footnote 315 to para. 156 (referring to Appellate Body Report, Brazil – Aircraft , para. 132) (original
emphasis))
337Appellate Body Report, EC – Chicken Cuts, para. 156.

122. We observed earlier that the requirements of Article 6.2 must be read in the light of the
specific function of Article 21.5 proceedings and that the "specific measures at issue" to be identified
in these proceedings are measures that have a b earing on compliance with the recommendations and
rulings of the DSB.
338 A measure that is initiated before th ere has been recourse to an Article 21.5
panel, and which is completed during those Article 21.5 panel pr oceedings, may have a bearing on
whether there is compliance with the DSB's recomm endations and rulings. T hus, if such a measure
incorporates the same conduct that was found to be WTO-inconsistent in the original proceedings, it
would show non-compliance with the DSB's reco mmendations and rulings. To exclude such a
measure from an Article 21.5 panel's terms of reference because the measure was not completed at the
time of the panel request but, rather, was complete d during the Article 21.5 proceedings, would mean
that the disagreement "as to the existence or consis tency with a covered agre ement of measures taken
to comply" would not be fully resolved by that Article 21.5 panel. New Article 21.5 proceedings
would therefore be required to resolve the disagr eement and establish whether there is compliance.
Thus, an a priori exclusion of measures completed during Article 21.5 proceedings could frustrate the
function of compliance proceedings. It would also be inconsistent with the objectives of the DSU to
provide for the "prompt settlement of situations in which a Member considers that any benefits
accruing to it directly or indirectly under the covere d agreements are being impaired", as reflected in
Article 3.3, and to "secure a positive solution to a dispute", as contemplated in Article 3.7.
123. We recall that the Panel described the conn ection between Review 9 and the previous
periodic reviews as follows:
Review 9 is identical in nature a nd effect to Reviews 4, 5 and 6.
Review 9 supersedes those measures, and is therefore the latest link
in the chain of assessment incorporating those measures. Review 9
also continues to apply the zeroing methodology found to be WTO-
inconsistent in the original proceed ing. Like Reviews 4, 5 and 6,
therefore, Review 9 is sufficiently closely connected to the original
dispute to constitute a "measure taken to comply" within the meaning
of Article 21.5.
339 (footnote omitted)
124. While the United States questions the releva nce of these considerations for purposes of
determining whether Review 9 properly fell within the Panel's terms of reference, it has not
challenged the Panel's finding that Review 9 is a "m easure taken to comply". We disagree with the
United States that the elements identified by the Panel are not relevant to the determination of whether
Review 9 could properly be included in the Panel's terms of reference. As we noted above, Review 9

338See supra, para. 109.
339Panel Report, para. 7.114.

related to the same anti-dumping duty order as Re views 1, 2, and 3, which were found to be
inconsistent in the original proceedings, and to th e three subsequent reviews (Reviews 4, 5, and 6)
being challenged by Japan as "measures taken to comp ly". Japan's panel request expressly referred to
"subsequent closely connected me asures". Review 9 had been in itiated at the time the matter was
referred to the Panel and was due to be complete d during the Article 21.5 proceedings. Under these
circumstances, we consider that the Panel was correct in finding that Review 9 was within its terms of
reference, as doing so enabled it to fulfil its mandate to resolve the "disagreement" between the parties
and determine, in a prompt manner, whether th e United States had achieved compliance with the
DSB's recommendations and rulings.
125. As a further argument to support its view that Review 9 could not fall within the Panel's terms
of reference, the United States relies on the Appellate Body's statement in EC – Chicken Cuts that
"[t]he term 'specific measures at issue' in Article 6.2 suggests that, as a general rule, the measures
included in a panel's terms of reference must be measures that are in exis tence at the time of the
establishment of the panel", and th at only in "certain limited circ umstances" will measures enacted
subsequent to a panel's establishment fall within the Panel's terms of reference. 340 According to the
United States, the circumstances of this case, including the fact that it is a compliance proceeding, do
not justify the inclusion of Review 9 in the Panel' s terms of reference. As the United States itself
recognizes, however, in EC – Chicken Cuts , the Appellate Body did not rule that Article 6.2
categorically prohibits the inclusion, within a panel' s terms of reference, of measures that come into
existence or are completed after the panel is requ ested. Rather, the Appellate Body noted explicitly
that, in certain circumstances, such measures could be included in a panel's terms of reference.
Moreover, whereas the statement in EC – Chicken Cuts to which the United States refers was made in
the context of original WTO proceedings, we are d ealing here with Article 21.5 proceedings. As we
explained earlier 341, the requirements of Article 6.2 must be adapted to a panel request under
Article 21.5, and the scope and function of Ar ticle 21.5 proceedings necessarily inform the
interpretation of the Article 6.2 requirements in such proceedings. The proceedings before us present
circumstances in which the inclusion of Review 9 was necessary for the Panel to assess whether
compliance had been achieved, and thereby resolv e the "disagreement as to the existence or
consistency with a covere d agreement of measures taken to co mply with the recommendations and
rulings".

340United States' appellant's submission, para. 51 (quoting Appellate Body Report, EC – Chicken Cuts,
para. 156).
341See supra, paras. 109 and 122.

126. In addition, the United States argues that Re view 9 could not have been impairing any
benefits accruing to Japan, within the meaning of Ar ticle 3.3 of the DSU. The United States relies on
a statement by the panel in US – Upland Cotton that a measure implemented under legislation that, at
the time of the panel request, "did not exist, had ne ver existed and might not subsequently have ever
come into existence" was not within the panel's te rms of reference because such legislation could not
have been impairing any benefits accruing to the complainant, in the sense of Article 3.3 of the
DSU.
342
127. First, we note that the specific finding of the panel in US – Upland Cotton , on which the
United States relies, was not appealed. Secondly, the Panel in these compliance proceedings found
that the situation before it differed from the one presented to the panel in US – Upland Cotton. We
agree that the circumstances of these compliance pr oceedings are different from those before the
panel in US – Upland Cotton . In this case, Review 9 had already been initiated at the time of the
panel request, was due to be co mpleted during the Panel proceedings, and was the most recent
periodic review stemming from the same anti-dump ing duty order on imports of ball bearings from
Japan. Thirdly, we recall that the Appellate Body in US – Upland Cotton stated that, as regards the
initiation of dispute settlement proceedings, Article 3.3 focuses "on the perception or understanding of
an aggrieved Member". 343 In the circumstances of this case, Japan had a basis to consider that
Review 9, as part of a "chain of measures or a continuum" 344 in which zeroing was used, could lead to
the impairment of benefits accruing to it under the Anti-Dumping Agreement and the GATT 1994.
Moreover, as we explained above, the inclusion of Review 9 was consistent with the objective
envisaged in Article 3.3, namely, ensuri ng the prompt settlement of the dispute. 345 It was then for the
Panel to determine whether Review 9 fell within the scope of its jurisdiction and assess its consistency
with the covered agreements.
128. The United States refers to "systemic" considera tions that it believes would arise if one were
to read the DSU as permitting compliance panels to examine new measures or modifications made

342United States' appellant's submission, para. 49 (referring to Panel Report, para. 7.115, in turn quoting
Panel Report, US – Upland Cotton, para. 7.158). Article 3.3 of the DSU reads:
The prompt settlement of situations in which a Member considers that any
benefits accruing to it directly or indi rectly under the covered agreements
are being impaired by measures taken by another Member is essential to the
effective functioning of the WTO and the maintenance of a proper balance
between the rights and obligations of Members.
343Appellate Body Report, US – Upland Cotton, para. 264.
344Panel Report, para. 7.116.
345For the same reasons, we disagree with the United St ates that the challenge to Review 9 prior to the
issuance of a final determination was "premature". (United States appellant's submission, para. 46 and
footnote 58 thereto)

during the course of proceedings. 346 While we recognize that, in certain circumstances, these
concerns may be relevant, we do not consider this to be the case he re since, as we have found above,
the United States and the third parties were given adequate notice and opportunities to respond to
Japan's allegations concerning Review 9.347
129. The United States raises an additional argument that accepting the Panel's approach could
lead to "asymmetry" in the sense that, on the one hand, complaining parties would be allowed to
challenge measures that are subsequent to the pane l request, while, on the other hand, similar requests
by respondents for the inclusion of measures comi ng into existence during panel proceedings have
been rejected by panels. 348 We do not detect such asymmetrical treatment of complainants and
respondents. In some cases, modifications of me asures during the panel proceedings have been taken
into account to the benefit of respondents. In US – Zeroing (EC) (Article 21.5 – EC) , developments
subsequent to the establishment of the panel were c onsidered by the Appellate Body and, in the light
of those developments, the Appella te Body found that the United States had "ultimately" not failed to
comply with the DSB's recommendations and ruli ngs in relation to certain sunset reviews. 349
Therefore, we do not agree that the alleged " asymmetry" in the treatment of complaining and
respondent parties arises in the manner suggested by the United States.350
130. For these reasons, we agree with the Panel that Japan's panel request met the requirement of
Article 6.2 of the DSU to "identify the specific meas ures at issue" as regards Review 9. Further, we
agree that, in the particular circumstances of these compliance proceedings, it was proper to include
Review 9 within the Panel's terms of reference, even though Review 9 had not been completed when

346United States' appellant's submission, para. 56. In support of its arguments, the United States refers
to the fact that Members would be ob liged to make legal claims and undert ake an analysis of new or modified
measures on short notice, without a meaningful opportunity to review these measures; and, further, that
compliance panels would have to react to such changes even after some or all of the written submissions had
been filed and the meetings with the parties had been co mpleted. The United States expresses concern that, in
such circumstances, panels would be placed in a position of having to decide whether to restart the proceedings,
or be required to make findings without the full benefit of the views of the parties and third parties. (United
347See supra, para. 119.
348See United States' appellant's submission, para. 57 (referring to Panel Report, India – Autos ,
paras. 7.23-7.30; and Panel Report, Indonesia – Autos, para. 14.9).
349See Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , paras. 376-381. In that appeal,
the Appellate Body relied on negative likelihood-of-injury determinations made by the United States
International Trade Commission and the consequent revocation of the anti-dumping duty order after the
establishment of the panel in declining to find that the United States had "ultimately" failed to comply with the
recommendations and rulings of the DSB in respect of cert ain sunset reviews, even th ough, at the time of the
panel establishment, there had been affirmative final likelihood-of-dumping determinations by the USDOC.
350Moreover, we note that the prior panel reports to which the United States refers do not concern
Article 21.5 proceedings.

Japan requested the establishment of a panel. Accordingly, we uphold
 the Panel's finding that
Review 9 was properly within its terms of reference.351
V. Collection of Duties After the Expiration of the Reasonable Period of Time – Reviews 1
through 9
A. Introduction
131. We turn next to the United States' appeal of the Panel's finding that the United States has
failed to comply with the DSB's recommendations and rulings regarding the importer-specific
assessment rates determined in Reviews 1, 2, 3, 7, and 8 that apply to entries covered by those
Reviews that were, or will be, liquidated after the ex piry of the reasonable period of time. We also
examine the United States' appeal of the Panel's fi nding that the United States has acted inconsistently
with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by
applying zeroing in the context of Reviews 4, 5, 6, and 9.
132. Reviews 1 through 6 and 9 are periodic reviews of an anti-dumping duty order on imports of
ball bearings from Japan. 352 Review 7 is a periodic review of an anti-dumping duty order on imports
of cylindrical roller bearings from Japan. 353 Review 8 is a periodic review of an anti-dumping duty
order on imports of spherical plain bearings from Japan. 354 Reviews 1, 2, 3, 7, and 8 were challenged
by Japan in the original proceedings. The Appe llate Body found in those proceedings that, by
applying zeroing procedures in these five Reviews (a long with six others), the United States acted
inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement, and with Article VI:2 of the
GATT 1994.355 In these Article 21.5 proceedings, Japan h as claimed that the United States has failed

351Panel Report, paras. 7.107, 7.114, and 7.116.
352See supra, footnotes 24 and 26. See also Panel Report, footnote 13 to para. 3.1(b)(i), and
The Panel noted that Japan's claims also referred to certain amendments to Reviews 1, 2, and 3 and that
these amendments were covered by Japan's request for panel establishment. Before the Panel, the United States
asserted that these amendments were not relevant to the Article 21.5 proceedings, because "they were the result
of [United States] court orders unrelated to the DSB's recommendations and rulings in this dispute and did not
alter the zeroing procedures employed in Reviews 1, 2 and 3." However, the Panel observed that the importer-
specific assessment rates resulting from Reviews 1, 2, and 3 were recalculated following the amendments
challenged by Japan. The Panel th erefore included these recalculated im porter-specific assessment rates in the
scope of its findings, since the recal culated importer-specific assessment rates replace those initially determined
by the USDOC. As the Panel explained, "it is the recalculated importer-specific assessment rates that should
have been brought into conformity". (Panel Report, footnote 148 to para. 7.139) The Panel further noted that
the United States had not formally ch allenged the inclusion of the amendments. The Panel's inclusion of the
amendments has not been challenged by the United States in this appeal.
353See supra, footnote 24. See also Panel Report, footnote 13 to para. 3.1(b)(i).
354See supra, footnote 24. See also Panel Report, footnote 13 to para. 3.1(b)(i).
355Appellate Body Report, US – Zeroing (Japan), para. 190(e).

to comply with the DSB's recommendations and rulings in respect of Reviews 1, 2, 3, 7, and 8. Japan
has also challenged Reviews 4, 5, 6, and 9, asserting that they are "measures taken to comply" within
the meaning of Article 21.5 of the DSU.356
133. The final results of Reviews 1 through 9 were challenged by private parties before the United
States domestic courts. Injunctions enjoining liquidation of the anti-dumping duties in connection
with all nine periodic reviews were issued by the United States Court of International Trade. 357 As a
result, the collection of anti-dumping duties was susp ended. In some cases, domestic litigation has
ended and the injunctions have been lifted. 358 In other cases, domestic litigation remains pending and
the injunctions remain in force.359
134. Section B provides a brief summary of the Panel's analysis of these issues. The arguments
raised on appeal by the participants and third particip ants are set out in Section C. Our analysis of the
United States' appeal is in Section D.
B. Article 21.5 Proceedings
1. Reviews 1, 2, 3, 7, and 8
135. Before the Panel, Japan asserted that the United States should have taken steps before the end
of the reasonable period of time to bring into conformity the importer-specific assessment rates
determined in Reviews 1, 2, 3, 7, and 8, but that the United States has failed to do so. 360 Japan
claimed that the United States' failure to act is in violation of Articles 17.14, 21.1, and 21.3 of the
DSU, and in continued violation of Articles 2.4 and 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994. 361 For its part, the United States argued that it did not have any
implementation obligations in respect of those importer-specific assessment rates, because they
concerned merchandise that had entered the United States before the expiration of the reasonable
period of time.362

356See supra, footnote 26. See also Panel Report, para. 3.1(b)(ii).
357This process is described infra, at para. 171.
358Domestic litigation has ended in respect of Reviews 1-3, 7, and 8. (See Annexes 1-3, 7, and 8 to
Japan's responses to the Panel's questions. At the oral hearing, the United States conceded that these Annexes
correctly reflected the chronology of the domestic proceedings.)
359Domestic litigation is pending in respect of Reviews 4-6 and 9. (See Annexes 4-6 and 9 to Japan's
responses to the Panel's questions. At the oral hearing, the United States conceded that these Annexes correctly
reflected the chronology of the domestic proceedings.)
360Panel Report, para. 7.117.
361Panel Report, para. 7.117.
362Panel Report, para. 7.118.

136. The Panel first examined the United States' argument that Japan was seeking a "retrospective"
remedy, while the DSU provides for prospective relief only.
363 The Panel observed that "neither the
DSU nor the [ Anti-Dumping] Agreement uses the terms 'prospective' or 'retrospective' to describe
Members' implementation obligations " and thus did not consider it "a ppropriate" to resolve the issue
on that basis.364 The Panel then turned to the DSU and, in particular, to Articles 3.7, 19.1, and 21.3,
which the Panel interpreted as requiring the United St ates "to bring Reviews 1, 2, 3, 7 and 8 'into
conformity'", by the end of the reasonable period of time, by withdrawing, modifying or replacing
them, "if they had not already expired".365
137. Next, the Panel reviewed the United States ' argument that it had met its compliance
obligations by eliminating the cash deposit rates esta blished by the periodic reviews that were found
to be WTO-inconsistent in the original proceedings and that there was nothing else that it needed to
do to come into compliance. 366 The Panel rejected this argumen t, noting that the United States had
not explained how it had complied with the DS B's recommendations and rulings regarding the
relevant importer-specific assessment rates. The Pane l observed, in this regard, that the United States
considered that "it was not required to implement in respect of the importer-specific assessment rates
because they relate to import entries o ccurring before the expiry of the RPT." 367 This argument was
also rejected by the Panel, which reasoned:
Thus, although the United States may be correct in asserting that
"whenever the [ Anti-Dumping] Agreement specifies an applicable
date for an action, the scope of applicability is based on entries
occurring on or after that date", the point is that the [ Anti-Dumping]
Agreement does not specify any applicable date for implementation
action. Accordingly, the [Anti-Dumping] Agreement does not require
that the "scope of applicability" of implementation action be based on
the date of import entry.
368
138. Instead, the Panel determined the "scope of applicability" of the United States'
implementation obligations by reference to Articles 3.7, 19.1, and 21.3 of the DSU. 369 The Panel
observed that "[t]here is no refere nce in those provisions to the date of import entry", instead finding

363Panel Report, para. 7.140 (referring to United States' first written submission to the Panel, para. 54).
364Panel Report, para. 7.140. The Panel did not consider it necessary to rely on Articles 13-15 of the
ILC Draft Articles, which Japan ha d raised in its submission. ( Ibid., footnote 152 to para. 7.140 (referring to
Japan's second written submission to the Panel, para. 149))
365Panel Report, para. 7.144.
366Panel Report, para. 7.145 (referring to United States' first written submission to the Panel, para. 54).
367Panel Report, para. 7.146.
368Panel Report, para. 7.147 (quoting United States' first written submission to the Panel, para. 64).
369Panel Report, para. 7.147 (quoting United States' first written submission to the Panel, para. 64).

that these provisions, taken collectively, prescribe that the relevant date for implementation is the date
of expiry of the reasonable period of time.370 Thus, the Panel stated:
If a measure found to be WTO-inconsis tent is to be applied after the
expiry of the RPT, that measure must have been brought "into
conformity", irrespective of the date of entry of the imports covered
by that measure.371
139. After articulating this general standard, the Panel proceeded to a pply it to the specific
measures before it. The Panel held that the Unite d States was obliged to have brought the "importer-
specific assessment rates determined in Reviews 1, 2, 3, 7 and 8 (and subsequent amendments thereto)
'into conformity' with the cove red agreements by 24 December 2007 [that is, by the end of the
reasonable period of time]". 372 The Panel observed that this ha d not occurred because the importer-
specific assessment rates had not been withdrawn and continued to have legal effect after the
expiration of the reasonable period of time "in the sense that they continued to provide authority for
the collection of anti-dumping duties in respect of the relevant (unliquidated) import entries". 373 The
Panel further noted that "the status of those [importer-specific assessment rates] has not changed since
the original proceeding, in which they were found to be WTO-inconsistent."374
140. The Panel then reviewed the United States' ar gument that this approach creates inequality
between retrospective and pr ospective anti-dumping systems. 375 The United States asserted that,
under a prospective system, implementation obligat ions can never affect the liquidation of anti-
dumping duties because liquidation occurs at the time of entry. Thus, it is impossible that such entries
could remain unliquidated at the expiry of the r easonable period of time, which would be the time by

370Panel Report, para. 7.148.
371Panel Report, para. 7.148.
372Panel Report, para. 7.149. (footnote omitted)
373Panel Report, para. 7.149. In support of this proposition, the Panel stated:
We are guided in this regard by the Panel Report, EC – Commercial Vessels,
in which the panel required the European Communities to take action to
implement the recommendations and rulings of the DSB with respect to
WTO-inconsistent measures "to the extent that [they] continue to be
operational".
(Ibid., footnote 163 to para. 7.149 (referring to Panel Report, EC – Commercial Vessels, para. 8.4))
374Panel Report, para. 7.149.
375In response, Japan argued that the implementation obligations under both prospective and
retrospective assessment systems are the same. This is because:
... under a prospective assessment syst em, a periodic review found to be
WTO-inconsistent could produce legal effects after the end of the RPT ...
such review would have to be brought into conformity at the end of the
RPT, even though the relevant (unliquidated) entries occurred before that
date.
(Panel Report, para. 7.151)

when a Member would need to implement the DSB's recommendations and rulings. The United
States argued that this is saliently different fro m retrospective systems where liquidation of anti-
dumping duties can occur after the expiry of the reas onable period of time. This makes it possible for
implementation obligations to affect the liquidation of such duties. According to the United States,
such unequal treatment of retrospective anti-dumping systems, as compared to the treatment of
prospective anti-dumping systems, is contrary to the Appellate Body's view that "[t]he Anti-Dumping
Agreement is neutral as between different systems for levy and collection of anti-dumping duties."
376
The United States insisted that the correct parame ter by which a Member's compliance obligations
should be defined is the date of entry, whic h would avoid any inequality between anti-dumping
systems.
141. The Panel found it unnecessary to examine the United States' argument because:
... we do not consider that our task is to ensure that the
implementation obligations under prospective and retrospective
assessment systems are identical. The fact is that the two systems are
different, and it is presumably such differences that lead Members to
choose one system over the other ... Having chosen one system over
the other, Members must respect the consequences of that choice.
377
142. The Panel gave three reasons as to why this appr oach was not, contrary to the allegations of
the United States, at odds with the Appellate Body's view that "[t]he Anti-Dumping Agreement is
neutral as between different systems for levy and collection of anti-dumping duties"378:
First, we note that the Appellate Body's statement confirms the fact
that prospective and retrospective assessment systems are indeed
"different". Second, the Appellate Body's statement concerns the
[Anti-Dumping] Agreement , not the DSU. Third, the fact that the
underlying differences between th e prospective and retrospective
assessment systems may have practical consequences for how
Members come into compliance with the recommendation and
rulings of the DSB does not mean that the DSU favours one system
over the other; it is simply a reflection of those underlying
differences.
379
143. Finally, the Panel addressed the United Stat es' argument that the Panel should "not allow
factors 'not provided for by the terms of' the covere d agreements, such as the rights of private parties

377Panel Report, para. 7.152.
379Panel Report, para. 7.152.

in domestic litigation, 'to add to or dimi nish the rights and obligations of Members'". 380 The United
States asserted that the sole reason that liquidation had not occurred before the end of the reasonable
period of time was because of domestic litigation. The Panel rejected this argument and found that
the reasons why a Member finds itself in contin uing violation of its WTO obligations are not a
relevant consideration under Articl es 3.7, 19.1, and 21.3 of the DSU. 381 Rather, according to the
Panel, those "provisions require universal complia nce by the end of the RPT, no matter the factual
circumstances of any given case."382
144. The Panel concluded that the United States h as failed to comply with the recommendations
and rulings of the DSB regarding the importer-specifi c assessment rates determined in Reviews 1, 2,
3, 7, and 8 that apply to entries covered by those Reviews that were, or will be, liquidated after the
expiry of the reasonable period of time and, conseque ntly, remains in violation of Articles 2.4 and 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.383
2. Reviews 4, 5, 6, and 9
145. In the course of the Panel proceedings, the Un ited States requested a preliminary ruling that
Reviews 4, 5, and 6 were not properly with in the scope of the Article 21.5 proceedings. 384 The Panel
rejected the United States' request and found that Reviews 4, 5, and 6 were sufficiently closely
connected to the original dispute, such that they should be treated as measures "taken to comply" with
the recommendations and rulings of the DSB.385 As noted earlier386, the Panel also rejected the United
States' assertion that Review 9 was not properly within the Panel's terms of reference. The Panel then
proceeded to examine Japan's claim that Reviews 4, 5, 6, and 9 are inconsistent with Articles 2.4
and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, because the United
States applied zeroing in each Review when calculating margins of dumping to determine cash
deposit rates and importer-specific assessment rates.387
146. The Panel considered the evidence submitted by Japan in support of its claim, beginning with
the "standard zeroing line", a line of computer code , which Japan claimed was applied in Reviews 4,

380Panel Report, footnote 167 to para. 7.153 (referring to United States' second written submission to
the Panel, para. 56).
381Panel Report, para. 7.153.
382Panel Report, para. 7.153.
383Panel Report, para. 7.154. The Panel did not consider it necessary to examine Japan's claims under
Articles 17.14, 21.1, and 21.3 of the DSU. (Ibid., para. 7.155)
384Panel Report, para. 7.12.
385Panel Report, para. 7.82.
386See supra, Section IV.
387Panel Report, paras. 7.156 and 7.157.

5, 6, and 9.
388 The Panel also considered the USDOC Issues and Decision Memoranda for Reviews 4,
5, 6, and 9.389 On the basis of this evidence, the Panel found that Japan had established a prima facie
case that the United States applied zer oing in Reviews 4, 5, 6, and 9. 390 It further noted that the
United States did not deny that it a pplied zeroing in those determinations. 391 The Panel disagreed
with the United States that there was a need to provide evidence demonstrating that individual
importer-specific assessment rates were affected by zeroing. The Panel noted that the Appellate
Body's findings in the original pr oceedings were not based on evidence that particular importers had
sales with negative margins or that individual impor ter-specific assessment rates were affected by the
application of zeroing procedures.392 The Panel, in any event, refe rred to evidence proffered by Japan
establishing the quantitative impact of zeroing on the duty collection rates established in the Reviews,
including calculations made by Japan of what the exporter-specific margins of dumping and importer-
specific assessment rates in Reviews 4, 5, 6, and 9 would have been if the "standard zeroing line" of
computer code had been switched off. The Pane l rejected the United States' position that it was
improper for Japan to rely on USDOC programs that had been revised by Japan so as to show the
impact of zeroing on the relevant margins and assessment rates. 393 Further, the Panel noted that,
although the United States did not concede that the results obtained by Japan would be the results
obtained by the USDOC if it had not employed zeroing, the absence of such concession was not
equivalent to a rebuttal of Japan's evidence, or a de monstration that the results of Japan's calculations
were somehow erroneous.394
147. On this basis, the Panel rejected the United States' arguments agains t the evidence submitted
by Japan to show that the relevant margins of dumping and assessment rates reflected zeroing. It
found that the United States had failed to rebut Japan's prima facie case and, as a consequence, found
that the exporter-specific margins of dumping and im porter-specific assessment rates in Reviews 4, 5,
6, and 9 were affected (in the sense of being inflated) by zeroing.395 In concluding that the application

388The Panel noted that this evidence had taken the form of computer program excerpts submitted as
Panel Exhibits JPN-91.1.A, JPN-91.1.B, JPN-91.1.C, JPN-91.1.D, JPN-91.2.A, JPN-91.2.B, JPN-91.2.C,
JPN-91.2.D, JPN-91.3.A, JPN-91.3.B, JPN-91.3.C, JPN-91.3.D, JPN-91.3.E, JPN-91.4.A, and JPN-91.4.B. The
Panel also noted that the Panel Exhibit JPN-91 series updates and supplements the Panel Exhibits JPN-42,
JPN-43, and JPN-44 series. (Panel Report, para. 7.160 and footnote 173 thereto)
389These documents are set forth in Panel Exhibits JPN-74, JPN-75, JPN-76, and JPN-67.B,
respectively. (Panel Report, para. 7.161)
390Panel Report, para. 7.161.
391Panel Report, para. 7.161.
392Panel Report, para. 7.162.
393Panel Report, para. 7.164.
394Panel Report, paras. 7.164 and 7.165 (referring to Appellate Body Report, US – Continued Zeroing,
paras. 340 and 341).
395Panel Report, para. 7.166.

of zeroing in the context of Reviews 4, 5, 6, and 9 is inconsistent with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994, the Panel explained that it was guided by
the adopted report of the Appellate Body in the original proceedings.396
C. Claims and Arguments on Appeal
148. As we have set forth in detail in Section II, the United States appeals the Panel's findings
concerning Reviews 1, 2, 3, 7, and 8 on two grounds. First, the United States asserts that a
determination that a WTO Member has failed to comply with the DSB's recommendations and rulings
may not be based on duties relating to entries made prior to the expiration of the reasonable period of
time, even if liquidation of those duties occurs after the expiration of that period. 397 Secondly, the
United States submits that, even if the date of liquidation was relevant for assessing compliance,
liquidation actions that take place after the reasona ble period of time as a result of domestic litigation
cannot provide a basis for a finding of non-compliance. 398 Relying on the Appellate Body Report in
US – Zeroing (EC) (EC – Article 21.5) , the United States further maintains that the liquidation actions
that have been delayed as a result of domestic litig ation cannot be said to "derive mechanically" from
the challenged periodic reviews, and therefore cannot be deemed to be WTO-inconsistent.399
149. The United States also challenges the Pane l's finding that the United States acted
inconsistently with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994 by applying zeroing in the context of Reviews 4, 5, 6, and 9. 400 The United States
appeals this finding on the same two grounds that it appeals the findings relating to Reviews 1, 2, 3, 7,
and 8. In addition, the United States challenges the finding concerning Reviews 4, 5, and 6, on the
grounds that these reviews had not had effects after the expiration of the reasonable period of time
because "assessment of duties calcula ted in these reviews was enjoined prior to the conclusion of the
RPT and continues to be enjoined".401
150. Japan asserts that the Panel correctly rejected the United States' argument that the relevant
date for determining whether there has been comp liance is the date of entry of the merchandise
subject to the anti-dumping duties. 402 Moreover, Japan argues that "the United States' responsibility
for its duty collection actions taken after the end of the RPT is not diminished, or otherwise altered,

396Panel Report, para. 7.168.
398United States' appellant's submission, paras. 91-100.

because of [United States] court conduct that is attributable to the United States".
403 Japan also
disagrees with the United States' submission that domestic judicial proceedings "sever" the
mechanical link between the assessment of liability in the periodic review and the liquidation actions,
explaining that "judicial review does not alter e ither the manner by which [Customs] takes measures
to collect duties, or the interaction between the USDOC and [Customs]".404
151. As regards Reviews 4, 5, 6, and 9, Japan ass erts that the United States' appeal should be
rejected to the extent that it is based on the same grounds as the appeal of the Panel's findings
concerning Reviews 1, 2, 3, 7, and 8. Japan oppo ses the United States' argument that Reviews 4, 5,
and 6 have had no effects subseque nt to the expiration of the reasonable period of time, relying for
support on the Panel's finding that the importer-specific assessment rates determined in these Reviews
"continued to have legal effect long after the adoption of the DSB's recommendations and rulings". 405
Japan additionally observes that Review 9 was adopted after the expiration of the reasonable period of
time "and, hence, began to apply, and produce legal effects, after that date".406
152. The European Communities cons iders that the Appellate Body should uphold the Panel's
findings concerning Reviews 1, 2, 3, 7, and 8 and Reviews 4, 5, 6, and 9. 407 Mexico and Korea agree
with the Panel that any measure taken after th e reasonable period of time must be brought into
compliance, irrespective of the date of entry of the merchandise. 408 Mexico and Korea do not
consider that domestic judicial proceedings provide a justification for non-compliance. 409 Norway
submits that the Panel correctly found that the United States has failed to comply with the DSB's
recommendations and rulings with respect to Reviews 1, 2, 3, 7, and 8.410

406Japan's appellee's submission, para. 483. (emphasis omitted)
407European Communities' third participant's submission, paras. 4 and 43.
408Mexico's third participant's submission, para. 32; Korea's third participant's submission, para. 28.
409Mexico's third participant's submission, para. 39; Korea's third participant's submission, paras. 31
and 32.
410Norway's third participant's submission, para. 31.

D. Analysis
1. What Is the Scope and Timing of the Obligation to Comply with the DSB's
Recommendations and Rulings?
153. The United States' appeal concerns the oblig ation of WTO Members to comply with the
DSB's recommendations and rulings. The DSU contains several provisions that specifically address
this obligation.
154. The obligation to comply with the DSB's re commendations and rulings arises once the DSB
has adopted a panel or Appellate Body report
411 that has concluded that a measure is inconsistent with
a covered agreement. In accordance with Article 19.1, implementation requires that the Member
concerned bring the WTO-inconsistent measure into conformity with the relevant covered
agreement(s). Article 3.7 of the DSU states that, "[ i]n the absence of a mutua lly agreed solution, the
first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures
concerned if these are found to be inconsistent with the provisions of any of the covered agreements."
Although the "withdrawal" of the WTO-inconsiste nt measure could be understood as requiring
abrogation of the measure, it has been accepted that "alternative means of implementation may exist
and that the choice belongs, in principle, to the Member". 412 As the Appellate Body has explained,
"the inconsistent measure to be withdrawn can be brought into compliance by modifying or replacing
it with a revised measure."413
155. Under Article 21.5 of the DSU, disagreements "as to the existence or consistency with a
covered agreement of measures taken to comply with the recommendations and rulings" must be
resolved through recourse to WTO dispute settlement procedures, and, wherever possible, must be
referred to the original panel. Article 21.5 h as been interpreted by the Appellate Body, in US – FSC
(Article 21.5 – EC II) , to mean that, "in compliance proceedings , an Article 21.5 panel may have to
examine whether the 'measures taken to comp ly' implement fully, or only partially, the
recommendations and rulings adopted by the DSB". 414 The Appellate Body has additionally
explained that "[t]he requirements in Article 21. 5 to examine whether compliance measures exist and
whether the measures taken to comply are consiste nt with the covered agreements ... suggest that

411Pursuant to Articles 16.4 and 17.14 of the DSU.
412Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 173. In its interpretation, the Appellate Body relied on the second sentence of Article 19.1 and on
Article 21.3 of the DSU.
413Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
footnote 367 to para. 173.
414Appellate Body, US – FSC (Article 21.5 – EC II), para. 93.

substantive compliance is required".
415 This, in turn, requires that the implementing Member rectify
the inconsistencies found in the original proceedin gs and that the implementing measure is not in
other ways inconsistent with the covered agreements.416
156. The timeframe within which compliance must be ef fected is addressed in Article 21, which is
entitled "Surveillance of Implementation of Recomme ndations and Rulings". Article 21.1 provides
that "[p]rompt compliance with recommendations or ru lings of the DSB is essential in order to ensure
effective resolution of disputes to the benefit of all Members." The reference to "essential"
underscores the importance of the obligation to comp ly with the DSB's recommendations and rulings.
The reference to "prompt" compliance emphasizes the need for the timely implementation of DSB
recommendations and rulings.
157. The timing of implementation is also addressed in Article 21.3 of the DSU, which reads, in
relevant part:
At a DSB meeting held within 30 da ys after the date of adoption of
the panel or Appellate Body repor t, the Member concerned shall
inform the DSB of its intentions in respect of implementation of the
recommendations and rulings of the DSB. If it is impracticable to
comply immediately with the recommendations and rulings, the
Member concerned shall have a reasonable period of time in which to
do so. (footnote omitted)
According to this provision, implementation of th e recommendations and rulings of the DSB must be
done "immediately", unless it is "impracticable" to do so. In other words, the requirement is
immediate compliance. However, Article 21.3 recognizes that immediate compliance may not always
be practicable, in which case it foresees the possi bility of the implementing Member being given a
reasonable period of time to comply. An important c onsideration is that the reasonable period of time
is not determined by the implementing Member itself. Instead, the reasonable period of time may be
proposed by the implementing Member and approved by the DSB, mutually agreed by the parties, or
determined through binding arbitration. This confir ms that the reasonable period of time is a limited
exemption from the obligation to comply immediatel y. As the Appellate Body has stated, "the

415Appellate Body Reports, US – Continued Suspension and Canada – Continued Suspension ,
para. 308. The United States indicated that "Article 21.5 must also be read in the context of provisions such as
DSU Article 22.8", at least for purposes of ascertainin g whether a "measure taken to comply" exists. (United
States' response to Panel Question 6, para. 14)
416Appellate Body Reports, US – Continued Suspension and Canada – Continued Suspension ,
para. 305.

obligation to comply with the recommendations and ru lings of the DSB has to be fulfilled by the end
of the reasonable period of time at the latest".417
158. Accordingly, the mandate of an Article 21.5 panel is to determine whether a WTO Member
has implemented the DSB's recommendations and rulings fully and in a timely manner. An
Article 21.5 panel is not called upon to modify the reasonable period of time agreed or determined
under Article 21.3. A WTO Member will not have met its obligation to implement the DSB's
recommendations and rulings if measures taken to comply are inconsistent with the covered
agreements or if there is an omission in implem entation. Moreover, Article 21.3 requires that the
obligation to implement fully the DSB's recommendati ons and rulings be fulfilled by the end of the
reasonable period of time at the latest and, conse quently, the WTO-inconsistent conduct must cease at
the latest by that time.
2. Is the Date of Importation the Re levant Parameter for Determining
Compliance?
159. Having set out above our general understanding of a WTO Member's obligation to comply
with the DSB's recommendations and rulings, we turn now to the first issue raised by the United
States' appeal, that is, whether the obligation to comp ly applies also in respect of imports that entered
the territory of the implementing WTO Member prior to the expiration of the reasonable period of
time, when matters concerning tho se imports have not been fully settled by the end of the reasonable
period of time.
160. A similar issue was raised by the Un ited States in the recent appeal in US – Zeroing (EC)
(Article 21.5 – EC), where the Appellate Body stated:
We also agree with the Panel's statement that "[t]o implement the
DSB's recommendations and rulings, the United States was at least
obligated, after 9 April 2007, to cease using the 'zeroing'
methodology in the calculation of anti-dumping duties, not only with
respect to imports entered after the end of the reasonable period of
time, but also in the context of decisions involving the calculation of
dumping margins made after the end of the reasonable period of time
with respect to imports entered before that date." ... We consider that
measures that, in the ordinary course of the imposition of anti-
dumping duties, derive mechanically from the assessment of duties
would establish a failure to comply with the recommendations and
rulings of the DSB to the extent that they are based on zeroing and

417Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 299.

that they are applied after the end of the reasonable period of time.
418
(original emphasis; footnote omitted)
Thus, the Appellate Body has found that ther e may be circumstances where a WTO Member's
obligation to implement the recommendations and ru lings of the DSB applies in respect of conduct
relating to imports that entered that Member's territo ry prior to the expiration of the reasonable period
of time. 419 Irrespective of the date on which the imports entered the territory of the implementing
Member, the WTO-inconsistencies must cease by the end of the reasonable period of time. There will
not be full compliance where the implementing Member fails to take action to rectify the WTO-
inconsistent aspects of a measure that remains in fo rce after the end of the reasonable period of time.
Likewise, actions taken by the implementing Member after the end of the reasonable period of time
must be WTO-consistent, even if those actions are in respect of imports that entered the Member's
territory before the end of the reasonable period of time. Therefore, we agree with the Panel's
statement that, "[i]f a measure found to be WTO-incons istent is to be applied after the expiry of the
RPT, that measure must have been brought 'into conf ormity', irrespective of the date of entry of the
imports covered by that measure".
420 Indeed, any conduct of the implementing Member that was
found to be WTO-inconsistent by the DSB must ce ase by the end of the reasonable period of time.
Otherwise, that Member would continue to act in a WTO-inconsistent manner after the end of the
reasonable period of time, contrary to Articles 3.7, 19.1, 21.1, 21.3, and 21.5 of the DSU.
161. The measures at issue in the present case are periodic reviews of anti-dumping duty orders.
The Panel explained that, in the United States' anti-dumping system, periodic reviews involve the
determination of "importer-specific assessment rat es for previous entries imported during the review
period" and "exporter-specific cash deposit rates th at will apply prospectively to future import
entries".421 Where the importer-specific assessment rates or cash deposits rates determined by the
implementing Member are found to be WTO-inconsis tent, that Member is under an obligation to
rectify the inconsistencies. In order to comply full y with this obligation, the inconsistencies must be
rectified by the end of the reasona ble period of time. Where the pe riodic reviews cover imports that
entered the implementing Member's territory prior to the expiration of the reasonable period of time,
the WTO-inconsistencies may not persist after the reasonable period of time has expired. Thus, for
example, importer-specific assessment rates that were found to be WTO-inconsistent may not remain
in effect after the expiration of the reasonable period of time. In other words, the WTO-inconsistent

418Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 311.
419We will henceforth refer to the respondent Member subject to the obligation to comply with the
DSB's recommendations and rulings as the "implementing Member".
420Panel Report, para. 7.148.
421Panel Report, para. 7.66.

conduct must cease completely, even if it is rela ted to imports that entered the implementing
Member's territory before the reasonable period of ti me expired. Otherwise, full compliance with the
DSB's recommendations and rulings cannot be said to have occurred.
162. In order to support its view that the date of entry is the relevant parameter for assessing
compliance, the United States relies on Article VI and the interpretive Note to paragraphs 2 and 3 of
Article VI (the " Ad Note") of the GATT 1994, and Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-
Dumping Agreement, which it considers to be relevant contex t. According to the United States, these
provisions "confirm[] that it is the legal regime in existence at the time that an import enters the
Member's territory that determines whether th e import is liable for the payment of antidumping
duties".422
163. We now examine whether these provisions support the position of the United States. The first
sentence of Article VI:2 of the GATT 1994 states that, "[i]n order to offset or prevent dumping, a
Member may levy on any dumped product an anti-dumping duty not greater in amount than the
margin of dumping in respect of such product". Article VI:6(a) provides that a WTO Member shall
not levy an anti-dumping duty on the importation of any product of the territory of another WTO
Member "unless it determines that the effect of the du mping ... is such as to cause or threaten material
injury to an established domestic industry, or is su ch as to retard materially the establishment of a
domestic industry." The United States cons iders it particularly relevant that the Ad Note allows a
WTO Member to require "reasonable security (bond or cash deposit) for the payment of anti-dumping
… duty pending final determination of the facts in any case of suspected dumping". We fail to see
how these provisions support the view that the date of entry is the relevant parameter for determining
compliance. These provisions do not address the issue of whether the implementing Member may
leave a measure found to be inconsistent with the Anti-Dumping Agreement and Article VI of the
GATT 1994 in place unchanged after the end of the r easonable period of time, because that measure
covered imports that entered the implementing Member's territory prior to the expiration of the
reasonable period of time.
164. As regards the provisions of the Anti-Dumping Agreement cited by the United States, we note
that Article 8.6 states that, where an undertaking is violated, definitive anti-dumping duties "may be
levied in accordance with this Agreement on produc ts entered for consumption not more than 90 days
before the application of such provisional measures, except that any such re troactive assessment shall

422United States' appellant's submission, para. 67. We address, in para. 172 infra, the general
relationship between provisions of the Anti-Dumping Agreement and the DSU, in the light of Article 1.2 of the
DSU and Appendix 2 thereto.

not apply to imports entered before the violation of the undertaking".
423 Article 10.1 establishes that
provisional measures and anti-dumping duties shall a pply only to products entered after the decision
to take such measures was taken (subject to exceptions). 424 Article 10.6 stipulates that a definitive
anti-dumping duty may be levied on products entered not more than 90 days prior to the application of
provisional measures if certain conditions are met. 425 Article 10.8 stipulates that no duties can be
levied retroactively pursuant to Article 10.6 on pr oducts entered prior to the date of initiation of the
investigation.426 These provisions set forth precise time frames and conditions limiting retroactive
application of provisional and definitive measures in the context of the initial imposition of anti-
dumping measures. However, these provisions do not address a Member's compliance obligations
after the DSB has adopted recommendations and rulings and the reasonable period of time for
implementation has expired. Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping Agreement do not
provide a textual basis for the argument that the determination of whether an implementing Member

423Article 8.6 of the Anti-Dumping Agreement reads:
Authorities of an importing Member may require any exporter from whom
an undertaking has been accepted to provide periodi cally information
relevant to the fulfilment of such an undertaking and to permit verification
of pertinent data. In case of violation of an undertaking, the authorities of
the importing Member may take, under this Agreement in conformity with
its provisions, expeditious actions which may constitute immediate
application of provisional measures using the best information available. In
such cases, definitive duties may be levied in accordance with this
Agreement on products entered for consumption not more than 90 days
before the application of such provis ional measures, except that any such
retroactive assessment shall not apply to imports entered before the violation
of the undertaking.
424Article 10.1 of the Anti-Dumping Agreement provides:
Provisional measures and anti dumping duties shall only be applied to
products which enter for consumption after the time when the decision taken
under paragraph 1 of Article 7 and paragraph 1 of Article 9, respectively,
enters into force, subject to the exceptions set out in this Article.
425Article 10.6 of the Anti-Dumping Agreement states:
A definitive anti dumping duty may be levied on products which were
entered for consumption not more than 90 days prior to the date of
application of provisional measures, when the authorities determine for the
dumped product in question that:
(i) there is a history of dumping which caused injury or that the
importer was, or should have been , aware that the exporter practises
dumping and that such dumping would cause injury, and
(ii) the injury is caused by massive dumped imports of a product in a
relatively short time which in light of the timing and the volume of the
dumped imports and other circumstances (such as a rapid build up of
inventories of the imported product) is likely to seriously undermine the
remedial effect of the definitive anti dumping duty to be applied, provided
that the importers concerned have been given an opportunity to comment.
426Article 10.8 of the Anti-Dumping Agreement reads:
No duties shall be levied retroactively pursuant to paragraph 6 on products
entered for consumption prior to the date of initiation of the investigation.

has complied with the DSB's recommendations an d rulings should exclude actions or omissions
relating to imports that entered that Member's territory before the end of the reasonable period of time.
165. The United States argues further that disregarding the date of entry of the merchandise, for
purposes of determining compliance with the DSB's recommendations and rulings, disadvantages
WTO Members with retrospective anti-dumping systems.
427 Before the Panel, the United States
submitted that, "since anti-dumping duties under a prosp ective system are collected, or liquidated, at
the time of entry, there is in principle no possibility of entries remaining unliquidated at the end of any
RPT."428 This is because, according to the United States, Members with prospective anti-dumping
systems have no further obligations once the merc handise subject to anti-dumping duties enters their
territory. Therefore, the United States consider s that "inequality" between retrospective and
prospective anti-dumping systems would be created if the date of entry is not used as the relevant
parameter.429 The United States adds that this would be contrary to the Appellate Body's own
statement that "[t]he Anti-Dumping Agreement is neutral as between different systems for levy and
collection of anti-dumping duties."430
166. The United States' argument is difficult to reconc ile with the text of Article 9.3.2 of the Anti-
Dumping Agreement , which requires that WTO Members with prospective anti-dumping systems
provide a mechanism allowing importers to request re funds of any duty paid in excess of the margin
of dumping.431 Under Article 9.3.2, a WTO Member with a prospective anti-dumping system may be
required to take administrative action subsequent to the entry of the merchandise if an importer
requests a refund of any duty paid in excess of th e margin of dumping. This has been acknowledged

427United States' appellant's submission, para. 11 and Section IV.B.2.
428Panel Report, para. 7.150. The Panel summarized the United States' arguments on this point as
follows:
We understand the United States to argue that, since anti-dumping duties
under a prospective system are collected, or liquidated, at the time of entry,
there is in principle no possibility of entries remaining unliquidated at the
end of any RPT. Even if the prospective anti-dumping duty were found to
be WTO-inconsistent, the collection, or liquidation, of that duty would
remain unaffected by the relevant Member's implementation obligations,
since it would have occurred long before the end of the RPT. Under a
retrospective system, though, the collection of anti-dumping duties might
not occur until after the expiry of the RPT. If the relevant Member's
implementation obligations were not restricted to the date of the import
entry in respect of which collection is being made, those implementation
obligations would affect the collection of the anti-dumping duty.
430Appellate Body Report, US – Zeroing (Japan), para. 163.
431See Appellate Body Report, US – Zeroing (Japan), para. 160.

by Japan and the European Communities.
432 Like Article 9.3.1, which concerns retrospective anti-
dumping systems, Article 9.3.2 provides for strict ti me-limits on the duration of a refund procedure.
Footnote 20, on which the United States re lies for its arguments on judicial delay 433, and which
applies to both Articles 9.3.1 and 9.3.2, recognizes that the observance of these time-limits "may not
be possible where the product in question is subject to judicial review proceedings." Therefore, where
actions or omissions relating to a refund proce dure are challenged both domestically and in WTO
dispute settlement, delays in the completion of a re fund procedure until after the end of the reasonable
period of time cannot be excluded. Should such a refund procedure not be completed before the end
of the reasonable period of time, a WTO Member with a prospective anti-dumping system would have
compliance obligations in respect of that refund pr ocedure concerning past imports. Such a Member
would thus find itself in a situation similar to that of an implementing Member applying a
retrospective anti-dumping system. This confirms that, under both retrospective and prospective anti-
dumping systems, entries made prior to the expiratio n of the reasonable period of time also may be
affected by compliance obligations. As a conseq uence, we disagree with the United States that
disregarding the date of entry of the mercha ndise for purposes of determining compliance would
result in retrospective anti-dumping systems bei ng treated less favourably than prospective anti-
dumping systems.
167. An additional concern raised by the United St ates is that failing to determine compliance by
reference to the date of entry would amount to retro active relief, which, in the United States' view, is
"at odds with the prospective nature of comp liance under the WTO dispute settlement system".
434
The United States considers that such an approach r esults in retroactive relief because it concerns
entries that occurred prior to the expiry of the reaso nable period of time. As we explained earlier, the
DSU requires cessation of all WTO-inconsistent conduct either immediately upon adoption of the
DSB's recommendations and rulings or no later than upon expiration of the reasonable period of time,

432See Japan's appellee's submission, para. 41. In support of the proposition that WTO Members with
prospective anti-dumping systems grant refunds to importers, the European Communities refers to the decision
of the European Court of Justice in Ikea Wholesale Ltd v. Commissioners of Customs & Excise (C-351/04 –
27/9/07). (See European Communities' third participant's submission, para. 48; see also Panel Exhibit US-A69)
At the oral hearing, the European Communities explained that, in that case, importers were granted refunds on
duties paid in the specific context of zeroing, following the decision in the Appellate Body Report in EC – Bed
Linen (Article 21.5 – India) . The European Communities also directed our attention to the refund procedures
that were undertaken in the context of the EC – Countervailing Measures on DRAM Chips case. (See European
Communities' third participant's submission, para. 32) The European Communities stated that refunds were
granted with respect to imports that entered the European Communities prior to the expiry of the reasonable
period of time and were calculated using a WTO-consistent methodology after the expiry of the reasonable
period of time. At the oral hearing, Korea confirmed that refunds had been granted in this case.
433See infra, para. 175.

regardless of the date of importation. There is no "retroactive relief" involved when a WTO
Member's conduct is examined as of the end of th e reasonable period of time, which is the proper
reference point. As the Appellate Body stated in US – Zeroing (EC) (Article 21.5 – EC) , "the
obligation to comply with the recommendations and ru lings of the DSB has to be fulfilled by the end
of the reasonable period of time at the latest, and ... the WTO-inconsistency has to cease by the end of
the reasonable period of time with prospective effect."435
168. We note, finally, that Article 9 of the Anti-Dumping Agreement covers the imposition and
collection of anti-dumping duties. 436 Any actions taken to collect anti-dumping duties based on
importer-specific assessment rates determined in a pe riodic review are also subject to the obligation
set out in Article 9, including the obligation in paragraph 3 that "[t]he amount of the anti-dumping
duty shall not exceed the margin of du mping as established under Article 2". 437 Where a WTO
Member has been found to have violated the Anti-Dumping Agreement and the GATT 1994 by using
zeroing in a periodic review, it fails to comply w ith the DSB's recommendations and rulings if it
collects, subsequent to the expiration of the r easonable period of time, anti-dumping duties based on
rates that were determined in the periodic revi ew using zeroing. If it did so, the obligation in

435Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC) , para. 299. (footnote omitted) The
Appellate Body also stated:
... because compliance with the recomm endations and rulings of the DSB
implies cessation of zeroing in the assessment of final duty liability, and in
the measures that, in the ordinary course of the imposition of anti-dumping
duties, derive mechanically from the assessment of duties, whether the
implementation is prospective or retroactive should not be determined by
reference to the date when liability arises, but rather by reference to the time
when final dumping duty liabilities are assessed or when measures that
result mechanically from the assessment of duties occur. We consider that
the obligation to cease using zeroing in the assessment of anti-dumping duty
liability at the latest as of the end of the reasonable period of time "is
eminently prospective in nature".
(Ibid., para. 309 (footnote omitted))
436The title of Article 9 of the Anti-Dumping Agreement is "Imposition and Collection of Anti-
Dumping Duties".
437As Japan points out, the United States stated before the Panel that it "does not dispute that Article 9.3
of the [Anti-Dumping] Agreement obliges WTO Members to ensure that the amount of antidumping duty
collected not exceed the marg in of dumping established under Article 2 of the [Anti-Dumping] Agreement".
(United States' second written submission to the Panel, para. 64 (quoted in Japan's appellee's submission,
para. 242))

Article 9.3 that "[t]he amount of the anti-dumpi ng duty shall not exceed the margin of dumping as
established under Article 2" would not be respected.
438
169. Therefore, we disagree with the United States' argument that "the determinative fact for
establishing whether a Member has complied with th e DSB's recommendations and rulings is the date
merchandise enters that Member's territory." 439 We find, instead, that the DSU requires cessation of
all WTO-inconsistent conduct immediately upon the adoption of the DSB's recommendations and
rulings or no later than upon expiration of the reas onable period of time. Consequently, in the case of
periodic reviews of anti-dumping duty orders, the oblig ation to comply covers actions or omissions
subsequent to the reasonable period of time, even if they relate to im ports that entered the territory of
a WTO Member at an earlier date.
3. What Is the Relevance of Delays Resulting from Domestic Judicial
Proceedings?
170. The second issue raised by the United States' app eal relates to the specific reason for which
collection of anti-dumping duties was delayed in r espect of the periodic reviews subject to these
Article 21.5 proceedings. The question is whether ac tions or omissions that occur after the expiration
of the reasonable period of time due to domestic judicial proceedings are excluded from the
implementing Member's compliance obligations.
440
171. The United States has explained that, under its retrospective system, the determination of final
liability (including the determination of importer-specific assessment rates) is made by the USDOC in
the context of a periodic review. 441 Once final liability is determined, the USDOC sends liquidation

438This is similar to what would occur if zeroing were allowed in periodic reviews, while being
disallowed in the original anti-dumping determination. As the Appellate Body explained in US – Stainless Steel
(Mexico):
… a reading of Article 9.3 of the Anti-Dumping Agreement that permits
simple zeroing in periodic reviews would allow WTO Members to
circumvent the prohibition of zeroing in original investigations that applies
under the first sentence of Article 2.4.2 of the Anti-Dumping Agreement .
This is because, in the first periodic re view after an original investigation,
the duty assessment rate for each importer will take effect from the date of
the original imposition of anti-dumping duties. Consequently, zeroing
would be introduced although it is not permissible in original investigations.
(Appellate Body Report, US – Stainless Steel (Mexico), para. 109)
440The United States itself framed the issue as follows: "a key question in this appeal is whether the
United States failed to comply with the DSB's recommendations and rulings after the end of the RPT, because it
liquidated entries after that date for which liquidation had been suspended due to judicial review". (United
441United States' response to Panel Question 14, para. 27.

instructions to the United States Customs and Border Protection ("Customs"). This will usually occur
within 15 days of publication of the final results of the periodic review.442 Where litigation is initiated
before the USDOC has issued the liquidation in structions and a United States court enjoins
liquidation, the USDOC will issue instructions to Customs ordering it not to liquidate the entries
during the pendency of domestic litigation. 443 Litigation may also be initiated after the issuance of
liquidation instructions, provided that Customs has not already liquidated the relevant entries. If a
United States court issues an injunction in this scenario, the USDOC will send instructions to
Customs notifying it of the injunction and will requir e Customs to suspend liquidation of the entries
until the conclusion of domestic litigation. Upon the conclusion of domestic litigation and the
consequent lifting of any applicable injunctio ns, the USDOC will send instructions to Customs
ordering liquidation of the entries in accordance wi th the court's decision and Customs will collect
duties accordingly. 444 The United States emphasizes that the "determination of final liability is
separate and distinct from liquidation". 445 It has also described liquidation—that is, the process of
collection of anti-dumping duties—as a "ministerial act" because Customs "collects the antidumping
duties based on [the USDOC's] determination" a nd Customs "does not have the authority to
recalculate or otherwise revise these duties".
446
172. According to the United States, the relevant provisions for purposes of deciding the question
before us are Article 13 and footnote 20 to Article 9.3.1 of the Anti-Dumping Agreement.447 Japan, by
contrast, refers to several provisions of the DSU that it considers indicate the actions that a respondent
Member must take to implement the DSB's recommendations and rulings. 448 We note, in this regard,
that neither provision of the Anti-Dumping Agreement to which the United States refers is listed in
Appendix 2 of the DSU as a special or additional ru le and procedure that would prevail in case of
conflict, in accordance with Article 1.2 of the DSU. 449 Accordingly, the rule in Article 1.2 is
inapplicable in this case. Therefore, both the Anti-Dumping Agreement and the DSU should be taken
into account in this dispute and should be interpre ted harmoniously. We begin our analysis with the

442United States' response to Panel Question 17, para. 32.
444United States' response to Panel Question 17, para. 32 ; United States' response to questioning at the
oral hearing.
445United States' response to Panel Question 17, para. 32.
446United States' response to Panel Question 14, para. 27. (footnote omitted)
447United States' appellant's submission, paras. 95-100.
448Japan's appellee's submission, paras. 175-186.
449Japan argues that "there are no 'special or additional rules and procedures' in the Anti-Dumping
Agreement that justify excusing the United States from the requirement to 'bring [Reviews 1, 2, 3, 7 and 8] into
conformity' with WTO law, under Article 19.1 of the DSU." (Japan's appellee's submission, para. 205 (original
emphasis and square brackets))

provisions of the Anti-Dumping Agreement that the United States considers relevant to the issue raised
on appeal, after which we will turn to the provisions of the DSU.
173. Tribunals or procedures for the independent re view of certain administrative anti-dumping
actions are required under Article 13 of the Anti-Dumping Agreement, which provides:
Each Member whose national legislation contains provisions on
anti-dumping measures shall maintain judicial, arbitral or
administrative tribunals or procedures for the purpose, inter alia, of
the prompt review of administ rative actions relating to final
determinations and reviews of dete rminations within the meaning of
Article 11. Such tribunals or pro cedures shall be independent of the
authorities responsible for the determination or review in question.
174. The requirement in Article 13 of the Anti-Dumping Agreement to maintain tribunals or
procedures for independent review of administ rative anti-dumping actions applies to all WTO
Members regardless of whether they operate a retr ospective or prospective anti-dumping system. The
participants agree that the independent review pr ocedures referred to in Article 13 apply to periodic
reviews.
450 We share the view that the phrase "administr ative actions relating to final determinations"
covers periodic reviews under retrospective anti-dumping systems.
175. We note that the obligation in Article 13 is ge neral in nature, requiring the maintenance of
tribunals or procedures for the prompt review of administrative anti-dumping actions. Article 13 does
not speak directly to the issue raised in the presen t appeal, as it contains no mention that judicial
review procedures may excuse non-compliance with the DSB's recommendations and rulings by the
end of the reasonable period of time. The United States argues on appeal that "[a] Member that
maintains a system that provides for judicial re view and judicial remedies for the review of
administrative actions should not be subject to findings that it failed to comply based on a delay that is
a consequence of judicial review." 451 As we understand it, the consistency with Article 13 of the
United States' judicial review procedures of anti- dumping actions is not being challenged in these
Article 21.5 proceedings. What is being challenged is the United States' failure to rectify, by the end
of the reasonable period of time, the importer-speci fic assessment rates determined in the periodic
reviews with the use of zeroing. The fact that WTO Members are required to maintain independent
review procedures for administrative anti-dumpi ng actions does not exonerate them from the
requirement to comply with the DSB's recommendati ons and rulings within the reasonable period of

450United States' response to questioning at the oral hearing; Japan's response to questioning at the oral
hearing.

time.452 We see no conflict between the obligation to maintain independent review procedures under
Article 13 and the obligation to comply with the DSB's recommendations and rulings. Accordingly,
we do not consider that Article 13 provides s upport for the proposition that a WTO Member is
excused from complying with the DSB's recommendations and rulings by the end of the reasonable
period of time, where a periodic review has been challenged in that Member 's domestic courts and
this has resulted in the collection of duties being delayed.
176. The United States also relies upon footnote 20 to Article 9.3.1 of the Anti-Dumping
Agreement, which provides that "[i]t is understood that th e observance of the time-limits mentioned in
this subparagraph and in subparagraph 3.2 may not be possibl e where the product in question is
subject to judicial review proceedings." The Un ited States considers that the text of footnote 20
implies that "delay in liquidation until after the RPT as a result of judicial review should not serve as a
basis to find that a Member has failed to comply with the recommendations and rulings of the DSB,
since but for judicial proceedings, the Member would have liquidated prior to the RPT."
453
177. Footnote 20 to Article 9.3.1 of the Anti-Dumping Agreement expressly recognizes that
domestic judicial proceedings may result in delays and that this may excuse exceeding the time-limits
imposed under Articles 9.3.1 and 9.3.2 for the c onduct of periodic reviews and for refund procedures
under retrospective and prospective systems. Foot note 20 does not deal with compliance with the
DSB's recommendations and rulings. The fact that the text of footnote 20 expressly limits its
application to Articles 9.3.1 and 9.3.2 weighs ag ainst invoking footnote 20 to excuse delays in
complying with obligations set out in other provis ions of the covered agreements, particularly the
obligation to comply "promptly" with the DSB's re commendations and rulings, which is described as
"essential" in Article 21.1 of the DSU.
178. Turning to the DSU, we recall that Article 21.3 of the DSU requires immediate compliance
with the DSB's recommendations and rulings, unl ess this is impracticable, in which case an
implementing Member is allowed a "reasonable peri od of time" to do so. The "reasonable period of
time" is determined under one of the three optio ns provided in Article 21.3. The purpose of

452There was a debate between the participants at the oral hearing about whether the United States'
executive branch can take acti ons in connection with a periodic review that is the object of domestic litigation
during the pendency of those domestic judicial proceedings. The United States indicated that the USDOC loses
jurisdiction over a periodic review while it is under review by the United States courts. Japan asserted that the
USDOC can request that the court return (or "remand") the case back to it. We note that whatever restrictions
there are on the United States' executiv e branch taking actions during the pendency of domestic judicial
proceedings would derive solely from United States law and not from the text of Article 13 of the Anti-Dumping
Agreement. Therefore, they would not provide a basis for delaying compliance with the DSB's
recommendations and rulings beyond the end of the reasonable period of time.

Article 21.5 proceedings is to assess whether an implementing Member has fully complied with the
DSB's recommendations and rulings, and not to modi fy the reasonable period of time. Moreover, the
very text of Article 21.3 indicates that the "reasona ble period of time" is an exception to immediate
compliance, thus implying that further delays would not be justified, whatever the circumstances. In
US – Zeroing (EC) (Article 21.5 – EC) , the Appellate Body stated th at the "implementing Member
would be able to extend the reasonable period of time and delay complia nce depending on when it
chooses to undertake final duty assessment" if the appr oach based on the date of entry, as advocated
by the United States, was followed.
454 The Appellate Body also cauti oned there that "[s]uch a result
would deprive of meaning the notion of 'reasonable period of time' in which a Member shall comply,
as provided for in Article 21.3 of the DSU, and be contrary to the implementation mechanism of the
DSU."455 The same rationale is applicable in respect of delays in implementation due to domestic
judicial proceedings. Such delays in implemen tation cannot exonerate a Member from its compliance
obligations and are not consistent with the overall objectives of "prompt" and "immediate"
compliance in Articles 21.1 and 21.3.
179. Relying on the Appellate Body Report in US – Zeroing (EC) (Article 21.5 – EC) , the United
States argues further that, where liquidation is dela yed because of domestic judicial proceedings, it
can no longer be said to "derive mechanically" from the periodic reviews challenged by Japan. 456
According to the United States, "judicial review severs any so-called 'mechanical' link between the
assessment of liability in the original review determination and the liquidation instructions".457
180. We recall that, in EC – Zeroing (EC)(Article 21.5 – EC) , the Appellate Body found that
"measures that, in the ordinary course of the imposition of anti-dumping duties, derive mechanically
from the assessment of duties would establish a fa ilure to comply with the recommendations and
rulings of the DSB to the extent that they are b ased on zeroing and that they are applied after the end
of the reasonable period of time." 458 Later in the same report, the Appellate Body stated that it was
not expressing any opinion on the question, which it wa s not required to decide, "of whether actions
to liquidate duties that are based on administrative re view determinations issued before the end of the
reasonable period of time, and that have been dela yed as a result of judicial proceedings, fall within
the scope of the implementation obligations" of the respondent Member.459

454Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 309.
455Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 309.
456United States' appellant's submission, paras. 94 and 97.
458Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 311. (original emphasis)
459Appellate Body Report, US – Zeroing (EC) (Article 21.5 – EC), para. 314.

181. As the European Communities observes 460, the United States is reasoning a contrario on the
basis of the Appellate Body's ruling in US – Zeroing (EC) (Article 21.5 – EC) . The premise
underlying the United States' argument is that, if the liquidation actions do not mechanically derive
from the challenged reviews, then such actions w ould be outside the scope of the United States'
compliance obligations. We do not read the Appellate Body's statements in US – Zeroing
(EC)(Article 21.5 – EC) as suggesting that, if the liquidation actions do not mechanically derive from
the challenged reviews, then such actions would be outside the scope of the implementing Member's
compliance obligations. Nor do we consider that such an a contrario approach is warranted. The
emphasis in that case was on the fact that actions that somehow automatically derived from previous
periodic reviews affected by zeroing would also be in breach if taken after the end of the reasonable
period of time. Liquidation that occurs after the reasonable period of time due to court proceedings,
and does not derive mechanically from the peri odic review, but is somehow autonomous—as the
United States claims is the case in the current proceedings—would also be impermissible if the use of
zeroing had not been rectified. Hence, we do not see why such actions—b e they "mechanically
derived" or not from the challenged periodic revi ews—would be exempted from the United States'
obligation to comply with the DSB's recommendations and rulings by the end of the reasonable period
of time.
182. To support its argument that liquidation actions that are delayed as a result of judicial
proceedings do not derive mechanically from th e challenged periodic reviews, the United States
points out that "the timing of liquidation is controlled by the independent judiciary and not the
administering authority."
461 We note that a WTO Member "bears responsibility for acts of all its
departments of government, including its judiciary." 462 This is supported by Article 18.4 of the Anti-
Dumping Agreement , Article XVI:4 of the WTO Agreement , and Article 27 of the Vienna
Convention.463 The judiciary is a state organ and even if an act or omission derives from a WTO
Member's judiciary, it is nevertheless still attributab le to that WTO Member. Thus, the United States
cannot seek to avoid the obligation to comply with the DSB's recommendations and rulings within the
reasonable period of time, by relying on the ti ming of liquidation being "controlled by the

460European Communities' third participant's submission, para. 40.
461United States' appellant's submission, para. 97. (original emphasis)
463Article 18.4 of the Anti-Dumping Agreement requires each Member to "tak e all necessary steps, of a
general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it,
the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as
they may apply for the Member in question." Article XVI:4 of the WTO Agreement states that "[e]ach Member
shall ensure the conformity of its laws, regulations an d administrative procedures with its obligations as
provided in the annexed Agreements." Article 27 of the Vienna Convention provides that a "party may not
invoke the provisions of its internal law as justification for its failure to perform a treaty."

independent judiciary". In any event, the periodic reviews, and the collection of duties after the
reasonable period of time by the USDOC and Customs, are not judicial acts; nor has Japan attributed
the failure to comply to the United States courts. We also note that the actions that follow the
completion of judicial proceedings in the present case do not appear to be in any way different from
the collection of duties in the absence of such proceedings, such as w as the case in the scenarios
examined in US – Zeroing (EC) (Article 21.5 – EC).
183. The United States argues further that liquidation is a "ministerial" act because Customs
"collects the antidumping duties based on [USDOC's] determination" and Customs "does not have the
authority to recalculate or otherwise revise these duties".
464 We note that the Panel record indicates
that what occurred after the expiry of the reasonable period of time was not just the action of
liquidation, that is, collection of anti-dumping duti es by Customs, but also the issuance of liquidation
instructions by the USDOC to Customs to assess those anti-dumping duties.
465 In any event, defining
the act of collection of anti-dumping duties as "ministerial" does not shield it from being subject to the
disciplines of Article VI of the GATT 1994 and the Anti-Dumping Agreement, in particular, Article 9,
which is entitled "Imposition and Collection of Anti- Dumping Duties". Irrespective of whether an act
is defined as "ministerial" or otherwise under United States law, and irrespective of any discretion that
the authority issuing such instructions or taking such action may have, the United States, as a Member
of the WTO, is responsible for those acts in accord ance with the covered agreements and international
law.466
184. The United States also refers to the initiation of domestic judicial proceedings by private
parties and argues that "a finding that a Member failed to comply because liquidation was suspended
until after the RPT due to litigation would give priv ate litigants the ability to control compliance by
Members operating retrospective antidumping systems." 467 We note, however, that, regardless of
whether court proceedings are initiated by private parti es, it is the court that decides whether or not to
grant an injunction468 and private parties do not control the timing or content of the court's decisions.

464United States' response to Panel Question 14, para. 27. (footnote omitted) The term "ministerial" is
defined by Merriam Webster's Dictionary of Law as "relating to or being an act done after ascertaining the
existence of a specified state of fact s in obedience to legal and esp. statutory mandate without exercise of
personal judgment or discretion". ( Merriam Webster's Dictionary of Law , L.P.Wood (ed.) (Merriam-Webster
Inc., 1996), p. 313)
465See Panel Exhibits JPN-40.A, JPN-77, JPN-78, JPN-79, and JPN-80.
466See Article 4 of the ILC Draft Ar ticles. Japan has relied on the ILC Draft Articles in its appellee's
submission, paras. 261-276.
468The United States seems to acknowledge this when it argues that "the timing of liquidation is
controlled by the independent judiciary and not the administering authority." (United States' appellant's
submission, para. 97 (original emphasis))

Thus, we are not persuaded that the initiation by pr ivate parties of domestic judicial proceedings is
relevant for determining the scope of the United States' compliance obligations in this case.469
185. In addition, the United States submits that the precise action to be taken once domestic
litigation is completed will depend on the outcome of judicial review. The United States does not
allege that its courts would order the USDOC to rectify the use of zeroing. 470 Rather, the United
States asserted at the oral hearing that, as a result of the decision of the domestic court, there could be
circumstances where the USDOC would have to re calculate the importer-specific assessment rates
without using zeroing, such as where all relevant e xport prices are below normal value. This example
is not to the point because zeroing does not manifest itself in such a case in which all export prices are
below normal value. Moreover, we note that dom estic litigation has been completed in relation to
Reviews 1, 2, 3, 7, and 8 and there is no indica tion on the Panel record that the use of zeroing was
corrected in any of these Reviews. 471 In fact, the United States expressly stated before the Panel that
"[a]ny results of the zeroing procedures employed in Review Nos. 1, 2, and 3 were not altered through
the court-ordered reexaminations".472
186. An additional concern would arise if the Un ited States' position concerning delays resulting
from judicial review was accepted, because the requ irement to provide inde pendent review is not
limited to anti-dumping measures. For example, Ar ticle X:3(b) of the GATT 1994 requires that there
be independent review of administrative de terminations dealing with customs matters. 473 Article 23

469Therefore, we are not persuaded by the United States' submission that determining an implementing
Member's obligations other than by the date of entry would give private parties "perverse incentives to
manufacture domestic litigation and prolong liquidation" beyond the reasonable period of time. (See United
470See infra, footnote 493.
471This issue is also discussed in relation to Reviews 4, 5, and 6 at infra, para. 194.
472United States' comments on Japan's responses to Panel Questions, para. 20. Japan pointed out to the
Panel that, for Reviews 1, 2, and 3, "instead of r ecalculating the margins and [importer-specific assessment
rates] without zeroing, the USDOC has actually amended the final results of the periodic reviews on the basis of
calculations that included zeroing with effect subsequent to (1) the adoption of the DSB's recommendations
on 23 January 2007 and/or (2) the end of the RPT on 24 December 2007." (Japan's response to Panel
473Article X:3(b) of the GATT 1994 provides:
Each Member shall maintain, or institute as soon as practicable, judicial,
arbitral or administrative tribunals or procedures for the purpose, inter alia,
of the prompt review and correction of administrative action relating to
customs matters. Such tribunals or procedures shall be independent of the
agencies entrusted with administrative enforcement and their decisions shall
be implemented by, and shall govern the practice of, such agencies unless an
appeal is lodged with a court or tribunal of superior jurisdiction within the
time prescribed for appeals to be lodged by importers; Provided that the
central administration of such agency may take steps to obtain a review of
the matter in another proceeding if there is good cause to believe that the
decision is inconsistent with established principles of law or the actual facts.

of the Agreement on Subsidies and Countervailing Measures (the " SCM Agreement ") requires that
there be tribunals or procedures for indepe ndent review of certain countervailing duty
determinations.
474 Article VI:2(a) of the General Agreement on Trade in Services (the "GATS") calls
for the establishment of tribunals or procedures for the review of administrative decisions affecting
trade in services. 475 Thus, exempting measures subject to domestic judicial proceedings from the
obligation to comply with the DSB's recommendations and rulings by the end of the reasonable period
of time could potentially have c onsiderable implications for the effectiveness of WTO dispute
settlement in areas beyond anti-dumping.
187. Therefore, the fact that collection of anti-dumping duties is delayed as a result of domestic
judicial proceedings does not provide a valid justif ication for the failure to comply with the DSB's
recommendations and rulings by the end of the reasonable period of time.
4. Reviews 1, 2, 3, 7, and 8
188. Reviews 1, 2, 3, 7, and 8 were challenged by Japan in the original proceedings. The
Appellate Body found that the United States acted in consistently with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 by applying zeroing procedures in those
Reviews.476 In these Article 21.5 proceedings, the Panel found that the importer-specific rates
determined in Reviews 1, 2, 3, 7, and 8 "had not been withdrawn" by the end of the reasonable period
of time, but rather "continued to have legal effect ... in the sense th at they continued to provide the
authority for the collection of anti-dumping duties in respect of the relevant (unliquidated) import

474Article 23 of the SCM Agreement states:
Judicial Review
Each Member whose national legislation contains provisions on
countervailing duty measures shall maintain judicial, arbitral or
administrative tribunals or pr ocedures for the purpose, inter alia, of the
prompt review of administrative actions relating to final determinations and
reviews of determinations within the meaning of Article 21. Such tribunals
or procedures shall be independent of the authorities responsible for the
determination or review in question, and shall provide all interested parties
who participated in the administrativ e proceeding and are directly and
individually affected by the administrative actions with access to review.
475Article VI:2(a) of the GATS reads:
Each Member shall maintain or institute as soon as practicable judicial,
arbitral or administrative tribunals or procedures which provide, at the
request of an affected service supplier, for the prompt review of, and where
justified, appropriate remedies for, administrative decisions affecting trade
in services. Where such procedures are not independent of the agency
entrusted with the administrative deci sion concerned, the Member shall
ensure that the procedures in fact provide for an objective and impartial
review.
476Appellate Body Report, US – Zeroing (Japan), para. 190(e).

entries".477 The Panel further found "the absence of any modification of those importer-specific
assessment rates" and therefore concluded that "the status of those measures has not changed since the
original proceeding, in which they were found to be WTO-inconsistent".478
189. The United States does not appeal any of these findings. Instead, the United States argues,
first, that it had no compliance obligations in respect of Reviews 1, 2, 3, 7, and 8, because they cover
merchandise imported into the United States before th e expiration of the reasonable period of time;
and, secondly, that any liquidations pursuant to Revi ews 1, 2, 3, 7, and 8 would have occurred before
the expiration of the reasonable period of time but for the fact that they were challenged in domestic
judicial proceedings. We have found above that both arguments of the United States are premised on
an incorrect interpretation of the Anti-Dumping Agreement and the DSU.
479 Consequently, we uphold
the Panel's finding that "the United States has failed to comply with the recommendations and rulings
of the DSB regarding the importer-s pecific assessment rates determined in Reviews 1, 2, 3, 7 and 8
that apply to entries covered by those Reviews that were, or will be, liquidated after the expiry of the
RPT".480 For the same reasons, we also uphold the Panel's finding that "the United States remains in
violation of Articles 2.4 and 9.3 of the [ Anti-Dumping] Agreement , and Article VI:2 of the
GATT 1994, in respect of those importer-specific assessment rates." 481
5. Reviews 4, 5, and 6
190. As regards Reviews 4, 5, and 6, the United Stat es additionally notes that liquidation of duties
remained suspended as a result of pending judicial proceedings. 482 Referring to the Appellate Body
Report in US – Zeroing (EC) (Article 21.5 – EC) , the United States submits that Reviews 4, 5, and 6
could not have provided a basis for a finding of inconsistency with Artic les 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 at th e time of Japan's panel request. The
United States argues that, because "assessment of duties calculated in these reviews was enjoined
prior to the conclusion of the RPT and continues to be enjoined", these Reviews "have had no post-
RPT effects of the kind that give rise to a finding of inconsistency".483

477Panel Report, para. 7.149. (footnote omitted) The Panel understood "the United States to accept that
importer-specific assessment rates form part of the me asures at issue in the original proceeding." ( Ibid.,
footnote 157 to para. 7.146) The United States has not challenged this finding on appeal.
478Panel Report, para. 7.149. (footnote omitted)
479See supra, paras. 169 and 187.
480Panel Report, paras. 7.154 and 8.1(a).
481Panel Report, paras. 7.154 and 8.1(a)(i).

191. Japan disagrees with the United States' assertion th at Reviews 4, 5, and 6 have had no effects
after the end of the reasonable period of time. It observes that the Panel made the following explicit
finding on this point:
[I]mporter-specific assessment rates determined in Reviews 4, 5
and 6 continued to have legal eff ect long after the adoption of the
DSB's recommendations and rulings.
484
Japan also refers to the Panel's finding that Japan demonstrated that some of the import entries
covered by the importer-specific assessment rates de termined in Reviews 4, 5, and 6 had not been
liquidated when the Article 21. 5 proceedings were initiated. 485 Thus, Japan asserts that "[t]he
assessment rates from these Reviews continue to have effects after the end of the RPT and will serve
as the legal basis for duty collection measures to be taken, after that time, with respect to entries
covered by these Reviews."486
192. We recall that the United States has not appealed the Panel's finding that Reviews 4, 5, and 6
are "measures taken to comply" within the meaning of Article 21.5 of the DSU. 487 Nor does the
United States appeal the Panel's finding that "the exporter-specific margins of dumping and importer-
specific assessment rates in Reviews 4, 5, [and] 6 … were affected (in the sense of being inflated) by
zeroing".488
193. Moreover, the United States does not allege on a ppeal that the exporter-specific margins of
dumping and importer-specific assessmen t rates determined in Reviews 4, 5, and 6 with the use of
zeroing have been rectified and brought into compliance with the DSB's recommendations and
rulings. In other words, the United States is not claiming that it has brought itself into compliance as
regards the use of zeroing in Reviews 4, 5, and 6. We stated above that the DSU requires WTO
Members to comply fully with the DSB's recommend ations and rulings by th e end of the reasonable
period of time. In this case, compliance with the DSB's recommendations and rulings required the
cessation of zeroing in the application of anti-dumpi ng duties by the end of the reasonable period of
time. This has not occurred given that, as the Pa nel found, "the exporter-specific margins of dumping
and importer-specific assessment rates in Reviews 4, 5, [and] 6 … were affected (in the sense of being

484Panel Report, para. 7.79. (footnote omitted) This finding was made in the context of the Panel's
analysis of whether Reviews 4, 5, and 6 are "measures taken to comply" within the meaning of Article 21.5 of
the DSU.
487Panel Report, para. 7.82.
488Panel Report, para. 7.166.

inflated) by zeroing"489; "Reviews 4, 5 and 6 continued to have legal effect long after the adoption of
the DSB's recommendations and rulings"490; and some of the import entries covered by Reviews 4, 5,
and 6 had not been liquidated when the reasonable period of time expired. 491 Furthermore, we note
that pursuant to Article 3.8 of the DSU, "where there is an infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment."492 This means that there is a presumption th at a breach of the WTO agreements has an
adverse impact on other Members. Thus, we disagree with the United States that there is no basis to
find that the application of zeroing in Reviews 4, 5, and 6 is inconsistent with the United States'
obligations under the Anti-Dumping Agreement and the GATT 1994. Even if liquidation of the
entries covered by Reviews 4, 5, and 6 had not taken place after the expiration of the reasonable
period of time, the exporter-specific margins of dumping and importer-specific assessment rates
determined in these reviews remain in force and these rates continue to be inflated due to the use of
zeroing. Accepting the United States' argument would mean that, once domestic litigation is
completed, anti-dumping duties improperly inflated by the use of zeroing could be collected long after
the end of the reasonable period of time.
194. At the oral hearing, the United States submitted that, as a result of the decision of a United
States domestic court, there could be circumstanc es where the USDOC might have to recalculate the
rates determined in Reviews 4, 5, and 6 without using zeroing. The United States, however, did not
argue that its domestic courts would find the use of zeroing to be illegal, under United States law, and
therefore order the USDOC to rectify it.
493 Instead, the United States argued that there could be
circumstances in which the court's decision relating to a different issue could make the use of zeroing
unnecessary because, for example, all the export sales we re below normal value. That this factual
scenario will arise is speculative. Moreover, as explained above 494, zeroing does not manifest itself in

489Panel Report, para. 7.166.
490Panel Report, para. 7.79. (footnote omitted) This finding was made in the context of the Panel's
analysis of whether Reviews 4, 5, and 6 are "measures taken to comply" within the meaning of Article 21.5 of
the DSU.
492See also Appellate Body Report, EC – Bananas III , paras. 252 and 253 (quoting GATT Panel
Report, US – Superfund, paras. 5.1.9 and 5.1.10); and Appellate Body Report, EC – Bananas III (Article 21.5 –
US), paras. 469 and 470).
493The USDOC's Issues and Decision Memoranda have emphasized that the United States Court of
Appeals for the Federal Circuit has upheld the use of ze roing. See, for example, the Issues and Decision
Memorandum for Review 9, at pp. 8-10 ("in response to US – Zeroing (Japan) , the CAFC has repeatedly
affirmed the permissibility of denying offsets in administrative reviews") (citing Corus Staal BV v. United
States, 502 F.3d 1370, at 1374 (CAFC 2007); and NSK Ltd. v. United States , 510 F.3rd 1375, at 1379-1380
(CAFC 2007); also citing Timken Co v. United States , 354 F.3d 1334 (CAFC 2004); and Corus Staal BV v.
United States, 395 F.3d 1343 (CAFC 2005), cert. denied, 126 S. Ct. 1023, 163 L. ed. 2d 853 (2006)) (Panel
Exhibit JPN-67.B).
494See supra, para. 185.

such a case in which all export prices are below norma l value. In any event, the obligation of the
United States was to comply with the DSB's recommendations and rulings by the end of the
reasonable period of time at the latest, and not by the end of any domestic judicial proceedings.
195. Accordingly, we uphold
 the Panel's finding that "the application of zeroing in the context of
Reviews 4, 5 [and] 6 ... is inconsistent with Articles 2.4 and 9.3 of the [ Anti-Dumping] Agreement,
and Article VI:2 of the GATT 1994."495
6. Review 9
196. We recall that we have upheld the Panel's findi ng that Review 9 was properly within its terms
of reference.496 The final results of Review 9 were pub lished after the expiration of the reasonable
period of time. 497 The Panel found that the exporter-sp ecific margins of dumping and importer-
specific assessment rates in Review 9 "were affected (in the sense of being inflated) by zeroing".498
197. The United States does not appeal the Panel's finding that zeroing was used in Review 9.
Besides challenging the Panel's conclusion concerni ng the inclusion of Review 9 in the terms of
reference, the only argument that the United States puts forward in relation to Review 9 is that it
covered imports that entered the United States prio r to the expiration of the reasonable period of
time.499 We rejected this argument above. 500 Thus, we uphold the Panel's finding that the application
of zeroing in the context of Review 9 is in consistent with Articles 2.4 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994.501
VI. Article II of the GATT 1994
A. Introduction
198. Finally, we turn to the United States' appeal of the Panel's findings that certain liquidation
actions taken by the United States are inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.
199. The measures at issue consist of certain liqui dation instructions issued by the USDOC and
certain liquidation notices issued by Customs. The liquidation instructions are set forth in Panel

495Panel Report, paras. 7.168 and 8.1(b).
496See supra, Section IV.
497See supra, Section IV.
498Panel Report, para. 7.166.
499Review 9 covered imports for the period 1 May 2006 to 30 April 2007. The reasonable period of
time in this case expired on 24 December 2007.
500See supra, para. 169.
501Panel Report, paras. 7.168 and 8.1(b).

Exhibits JPN-40.A, and JPN-77 to JPN-80, and the liquidation notices are those in Panel Exhibits
JPN-81 to JPN-87. As summarized in the previous Section 502, the United States has explained that
liquidation instructions are issued by the USDOC af ter publication of the final results of a periodic
review and instruct Customs to collect anti-dumping duties from importers at the rates determined in
that periodic review. To effect liquidation, Customs issues a liquidation notice to importers setting
out the amount of definitive duties to be paid on each entry. Depending on whether the amount to be
collected exceeds the amount of the cash deposit that was paid at the time of importation, a request for
additional payment or a refund cheque will also be sent to importers.
200. The liquidation actions challenged by Japan pursu ant to Article II of the GATT 1994 relate to
Reviews 1, 2, 7, and 8. These four Reviews (al ong with seven others) were found, in the original
proceedings, to be inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994.
503 Japan did not make claims pursuant to Article II of the
GATT 1994 in the original proceedings.
B. Article 21.5 Proceedings
201. Before the Panel, Japan argued that certain li quidation actions relating to Reviews 1, 2, 7,
and 8, taken by the United States after the expiration of the reasonable period of time, are inconsistent
with Articles II:1(a) and II:1(b) of the GATT 1994, which require a Member to refrain from imposing
duties or charges in excess of those set forth in its Schedule of Concessions. Japan explained that
Article II:2(b) of the GATT 1994 permits a Member to impose anti-dumping duties in excess of these
bound rates only if such duties are "applied consiste ntly with the provisions of Article VI" of the
GATT 1994, as well as the Anti-Dumping Agreement.504 Japan asserted that the liquidation actions
relating to Reviews 1, 2, 7, and 8 are not justif ied under Article II:2(b) b ecause these Reviews were
found to be in violation of Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994.505 Therefore, these liquidation actions are inc onsistent with Articles II:1(a) and II:1(b)
of the GATT 1994.
202. The United States requested that the Article 21. 5 Panel exercise judicial economy, arguing
that Japan's claims under Article II of the GATT 1994 were "entirely derivative" of Japan's claims that

502See supra, para. 171.
503Appellate Body Report, US – Zeroing (Japan), para. 190(e).
504Panel Report, para. 7.195.
505Panel Report, para. 7.195.

the United States has acted inconsistently with the Anti-Dumping Agreement and the GATT 1994.
506
The United States also asserted that Japan's claims were unfounded. According to the United States,
"the liability for anti-dumping duties, that Japan cl aims resulted in collection of duties above the
bound rate, was incurred prior to the expiry of th e RPT, when the subject merchandise entered the
United States and a cash deposit was paid." 507 Moreover, the United States explained that "it was no
longer collecting cash deposits pursuant to the admini strative reviews that were subject to the DSB's
recommendations and rulings."508
203. The Panel first examined whether Japan's clai ms pursuant to Article II of the GATT 1994
were properly within the scope of the Article 21.5 proceedings. It undertook this inquiry on its own
initiative, noting that the United States had not raised a jurisdictional objection. 509 The Panel
considered the liquidation measures to be "sufficiently closely connected to the original dispute" and,
as a consequence, found them to be "measures taken to comply" within the meaning of Article 21.5 of
the DSU.510 The Panel's reasoning was as follows:
... the relevant liquidation measures are the means by which the
United States collects the final anti-dumping duties assessed in the
administrative reviews at issue in the original proceeding. Any
WTO-inconsistency in those administrative reviews regarding the
calculation of the margin of dumping established in the original
dispute is necessarily carried over into the subsequent liquidation
measures.
511
204. Next, the Panel considered the United States' argument that Japan's Article II claims were
"entirely derivative" of Japan's clai ms under Articles 2.4 and 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 and, therefore, that it was unnecessary for the Panel to make findings
in connection with those claims. The Panel agreed with the United States that Japan's claims were
"derivative" of its claims under Articles 2.4 and 9.3 of the Anti-Dumping Agreement, because "[o]nly
if the underlying anti-dumping measure is WTO-inc onsistent will the safe harbour provided for in

506Panel Report, paras. 7.196 and 7.201 (quoting Unite d States' first written submission to the Panel,
footnote 116 to para. 70).
507Panel Report, para. 7.197.
508Panel Report, para. 7.197.
509Panel Report, para. 7.199. The Panel found support for this course of action in the Appellate Body's
statement in US – 1916 Act that "it is a widely accepted rule that an international tribunal is entitled to consider
the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that
comes before it." ( Ibid., footnote 211 to para. 7.199 (quoting Appellate Body Report, US – 1916 Act ,
footnote 30 to para. 54))
510Panel Report, para. 7.200. The Panel's finding that the liquidation actions are "measures taken to
comply" within the meaning of Article 21.5 of the DSU has not been appealed by the United States.
511Panel Report, para. 7.200.

Article II:2(b) become unavailable."512 Nevertheless, the Panel decided that it was appropriate to rule
on Japan's Article II claims, because they "raise an important point of contention between the parties
regarding the right of the United States to continue liquidating entries after the expiry of the RPT on
the basis of liquidation measures issued pursuant to administrative reviews that have already been
found to be WTO-inconsistent."513
205. Turning to the text of Article II of the GATT 1994, the Panel observed that, under this
provision, "the United States is generally preclude d from imposing on imports of ball bearings from
Japan any customs duties or other charges in excess of those provided for in the United States
Schedule of Concessions." 514 Pursuant to Article II:2(b), the United States may apply anti-dumping
duties in excess of such bound rates provided that those duties are "applied consistently with the
provisions of Article VI" of the GATT 1994, as implemented by the Anti-Dumping Agreement .515
The Panel then noted that Japan had "submitte d evidence demonstrating that the cumulative
liquidation amounts set forth in a series of [Customs] liquidation notices, issued pursuant to particular
USDOC liquidation instructions, are well in excess of the bound rates for ball-bearing products set
forth in the United States' Schedule of Concessions", and that this evidence was not challenged by the
United States. 516 The Panel proceeded to examine wh ether the "safe harbour" provided in
Article II:2(b) applied to the liquidation actions ch allenged by Japan and found that it did not. The
Panel stated:
In the present case, though, the safe harbour provided for in
Article II:2(b) does not apply to the liquidation actions at issue in this
proceeding, since those actions were taken pursuant to administrative
reviews, and importer-specific assessment rates determined therein,
that had been found to be WTO- inconsistent in the original
proceeding. In particular, the Appellate Body found that, in
determining importer-specific assessment rates in inter alia
Reviews 1, 2, 7 and 8, USDOC disregarded the results of
comparisons for transactions where the export price exceeded the
contemporaneous normal value, in vi olation of Article[s] 2.4 and 9.3
of the [ Anti-Dumping] Agreement , and Article VI:2 of the
GATT 1994. We recall that, in cases where administrative reviews
are conducted, the liquidation notices and instructions are based
entirely on the determinations made by USDOC in such reviews.
Since the underlying basis of the liquidation actions challenged by
Japan was WTO-inconsistent, we conclude that anti-dumping duties
collected pursuant to those liquida tion actions were not "applied

512Panel Report, para. 7.202. (footnote omitted)
513Panel Report, para. 7.203.
514Panel Report, para. 7.205.
515Panel Report, para. 7.205.
516Panel Report, para. 7.206. (footnotes omitted)

consistently with the provisions of Article VI" of the GATT 1994, as
implemented by the [ Anti-Dumping] Agreement.
517 (footnotes
omitted)
Accordingly, the Panel found that the USDOC liquidation instructions and Customs liquidation
notices challenged by Japan are inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.518
C. Claims and Arguments on Appeal519
206. The United States submits that the Panel erred in making a finding of violation of
Articles II:1(a) and II:1(b) of the GATT 1994 with r espect to the USDOC liquidation instructions and
Customs liquidation notices. First, the United St ates argues that Japan's Article II claims are
derivative of Japan's claims under Article 2.4 and 9.3 of the Anti-Dumping Agreement and, as such,
that "[i]t was entirely unnecessary [for the Panel] to make any Article II findings". 520 The United
States further contends that, if the Appellate B ody reverses the Panel's non-compliance findings in
relation to Reviews 1, 2, 3, 7, and 8, then the Appellate Body must reverse the "derivative findings"
that the United States violated Article II. 521 Secondly, the United States asserts that the relevant date
by which compliance is to be assessed is the date of entry of the merchandise and, because this
occurred before the expiration of the reasonable period of time, there can be no finding of non-
conformity.
522 Thirdly, the United States submits that liquidation that occurred after the reasonable
period of time cannot support a finding of non-comp liance, because its delay was due entirely to
domestic judicial review.523
207. Japan submits that the Panel properly found the United States to be in violation of
Articles II:1(a) and II:1(b) of the GATT 1994. Japan first argues that the USDOC liquidation
instructions and Customs liquidation notices are "measu res taken to comply", and thus fall within the
jurisdiction of the Panel.524 Next, Japan refutes the United Stat es' argument that Japan's claims under
Article II are "entirely derivative" of its claims under Articles 2.4 and 9.3 of the Anti-Dumping

517Panel Report, para. 7.207.
518Panel Report, paras. 7.208 and 8.1(d).
519Korea is the only third participant that has addresse d this aspect of the United States' appeal in its
third participant's submission. It asserts that the Panel' s analysis of Japan's Article II claims was "appropriate"
and "necessary" to resolve the dispute, and submits that the Appellate Body should reject the United States'
argument that Japan's claim is "derivative" of its other claims. (Korea's third participant's submission, paras. 42
and 44)
520United States' appellant's submission, para. 107. (footnote omitted)
524Japan's appellee's submission, paras. 498-506. Japan makes these submissions despite the United
States not arguing that the liquidation actions are not measures taken to comply.

Agreement, stating that its Article II claims involve "different measures, and different claims" 525, that
is, the consistency of the USDOC liquidation in structions and Customs liquidation notices with
Article II. Furthermore, Japan submits that the Un ited States has failed to cite any provisions of the
covered agreements that "shield[] measures that effect the collection or levy of import duties at WTO-
inconsistent rates from scrutiny under Article II of the GATT 1994, if a related periodic review is
challenged under separate WTO provisions."526
D. Analysis
208. Article II of the GATT 1994 provides, in relevant part:
Article II
Schedules of Concessions
1. (a) Each Member shall accord to the commerce of the other
Members treatment no less favourable than that provided for in
the appropriate Part of the appr opriate Schedule annexed to this
Agreement.
 (b) The products described in Part I of the Schedule relating to any
Member, which are the products of territories of other Members,
shall, on their importation into the territory to which the
Schedule relates, and subject to the terms, conditions or
qualifications set forth in that Schedule, be exempt from
ordinary customs duties in excess of those set forth and provided
therein. Such products shall also be exempt from all other duties
or charges of any kind imposed on or in connection with the
importation in excess of those imposed on the date of this
Agreement or those directly and mandatorily required to be
imposed thereafter by legislation in force in the importing
territory on that date.

525Japan's appellee's submission, paras. 517-521.
526Japan's appellee's submission, para. 522. Japan additionally asserts that the United States' final two
arguments—that the relevant date for determining compliance is the date of entry of the merchandise, and that
the duty collection measures would have occurred within the reasonable period of time but for domestic
litigation—are jurisdictional in nature and are "explicitly directed towards [challenging] whether the Panel had a
valid 'basis'— i.e., authority—to rule upon the 'consistency' of the duty collection measures." ( Ibid., para. 530
(footnote omitted)) Japan argues that the Panel did have a valid legal basis to rule upon the consistency of the
liquidation actions, because they are "measures taken to comply". (Ibid., para. 534)

2. Nothing in this Article sha ll prevent any Member from imposing
at any time on the importation of any product:

(b) any anti-dumping or counterva iling duty applied consistently
with the provisions of Article VI;*
209. The United States has not challenged the Panel's in terpretation of Article II and we need not
engage in an extensive analysis of this provision. We note that, in India – Additional Import Duties ,
the Appellate Body examined the relationship between paragraphs 1(b) and 2 of Article II. Although
that appeal focused on paragraph 2(a) of Article II, the Appellate Body's remarks provide general
guidance on the relationship between paragraphs 1(b) and 2:
The chapeau of Article II:2, therefore, connects Articles II:1(b)
and II:2(a) and indicates that the two provisions are inter-related.
Article II:2(a), subject to the conditions stated therein, exempts a
charge from the coverage of Article II:1(b). The participants agree
that, if a charge satisfies the conditions of Article II:2(a), it would not
result in a violation of Article II:1(b). Thus, we consider that, in the
context of this case involving the application of duties that are
claimed to correlate to certain internal taxes, Article II:1(b) and
Article II:2(a) are closely related and must be interpreted together.
527
(footnote omitted)
The Panel understood Article II:2(b) as providing a "safe harbour" to Article II:1 to the extent that the
anti-dumping duties are applied consistently with Article VI of the GATT 1994 and the Anti-Dumping
Agreement.528 Thus, the Panel's approach is coherent with the Appellate Body's interpretation of the
relationship between Articles II:1(b) and II:2(a) quoted above.
210. On appeal, the United States does not contest that Japan's Article II claims were properly
within the Panel's terms of reference, nor does it challenge the Panel's finding that the liquidation
instructions and notices are "measures taken to comp ly" within the meaning of Article 21.5 of the
DSU.529 The first ground of appeal raised by the Un ited States is that it was "unnecessary" for the
Panel to have made a finding under Article II because of the "derivative" nature of the claims. 530 At
the oral hearing, the United States clarified that it was not arguing that the Panel violated Article 11 of

527Appellate Body Report, India – Additional Import Duties, para. 153.
528Panel Report, para. 7.207.
529Before the Panel, the United States did not disput e that Japan's Article II claims were within the
Panel's terms of reference. (Panel Report, footnote 210 to para. 7.198) Nor did the United States raise a
jurisdictional objection before the Panel to the inclusion of the relevant liquidation instructions and notices in

the DSU or otherwise erred by not exercising judicial economy. 531 The United States explained that,
instead, its argument is that the Appellate Body's reversal of the Panel's findings relating to
Reviews 1, 2, 7, and 8 would necessarily require a re versal of the Panel's findings under Article II of
the GATT 1994. Because we have upheld the Panel' s findings relating to Reviews 1, 2, 7, and 8 532,
the condition on which the United States' request is premised is not met.
211. The United States additionally reiterates two of the arguments that it makes in connection
with the Panel's findings concerning Reviews 1 through 9, namely, that: (i) the relevant date for
determining compliance is the date of entry of the subject imports 533; and that (ii) liquidation would
have occurred before the expiration of the reasona ble period of time but for the domestic judicial
proceedings.534 We explained above, in Section V, why we do not consider that these arguments are
based on a correct interpretation of the DSU and the Anti-Dumping Agreement . Thus, these two
arguments raised by the United States also do not provide a basis to disturb the Panel's findings
concerning Article II of the GATT 1994.
212. For these reasons, we uphold the Panel's finding that the United States is in violation of
Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain liquidation actions taken after the
expiry of the reasonable period of time, namely, w ith respect to the USDOC liquidation instructions
set forth in Panel Exhibits JPN-40.A, and JPN-77 to JPN-80, and the Customs liquidation notices set
forth in Panel Exhibits JPN-81 to JPN-87.
535
VII. Findings and Conclusions
213. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's findings, in paragraphs 7.107, 7.114, and 7.116 of the Panel
Report, that Review 9 was properly within the Panel's terms of reference;

531We note that the Appellate Body has previously stated that, "[a]lthough the doctrine of judicial
economy allows a panel to refrain from addressing claims beyond those necessary to resolve the dispute, it does
not compel a panel to exercise such restraint". (Appellate Body Report, Canada – Wheat Exports and Grain
Imports, para. 133 (original emphasis; footnote omitted))
532See supra, Section V.
534United States' appellant's submission, para. 108. As noted above, the United States does not make
this argument in relation to Review 9. (See supra, para. 197)
535Panel Report, paras. 7.208 and 8.1(d).

(b) upholds
 the Panel's finding, in paragraphs 7.15 4 and 8.1(a) of the Panel Report, that
the United States has failed to comply w ith the DSB's recommendations and rulings
regarding the importer-specific assessment ra tes determined in Reviews 1, 2, 3, 7,
and 8 that apply to entries covered by tho se Reviews that were, or will be, liquidated
after the expiry of the reasonable period of time; and also upholds the Panel's
finding, in paragraphs 7.154 and 8.1(a)(i) of the Panel Report, that the United States
is in continued violation of its oblig ations under Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994;
(c) upholds the Panel's finding, in paragraphs 7.168 and 8.1(b) of the Panel Report, that
the United States has acted inconsistent ly with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 by applying zeroing in the
context of Reviews 4, 5, 6, and 9; and
(d) upholds the Panel's finding, in paragraphs 7.208 and 8.1(d) of the Panel Report, that
the United States is in violation of Articles II:1(a) and II:1(b) of the GATT 1994 with
respect to certain liquidation actions taken af ter the expiry of the reasonable period of
time, namely, with respect to the USDOC li quidation instructions set forth in Panel
Exhibits JPN-40.A, and JPN-77 to JPN-80, and the Customs liquidation notices set
forth in Panel Exhibits JPN-81 to JPN-87.
214. To the extent that the United States has fail ed to comply with the recommendations and
rulings of the DSB in the original dispute, the recommendations and rulings remain operative. The
Appellate Body recommends that the DSB request the United States to bring into conformity with its
obligations under the Anti-Dumping Agreement and the GATT 1994 the measures found in this
Report and in the Panel Report to be inconsistent with those Agreements.

Signed in the original in Geneva this 31st day of July 2009 by:

Giorgio Sacerdoti
Presiding Member

 _________________________ _________________________
 Lilia R. Bautista Yuejiao Zhang
 Member Member

ANNEX I

22 May 2009
 (09-2489)
 Original: English

Recourse to Article 21.5 of the DSU by Japan

Notification of an Appeal by the United States
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 20 May 2009 , from the Delegation of the United States, is
being circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the report of the panel in ; Recourse to Article 21.5 of the DSU by Japan (WT/DS322/RW) ("Panel Report") and
certain legal interpretations developed by the panel.

1. The United States seeks review by the Appellate Body of the panel's finding that Review 9
was within the panel's terms of reference. In par ticular, the United States seeks review of the panel's
findings that Japan's panel request identified Review 9 as a specific measure at issue as required by
DSU Article 6.2 and that Review 9 was within the panel's terms of reference even though Review 9
was not in existence at the time of Japan's panel request.
1 These findings are in error and are based on
erroneous findings on issues of law and related legal interpretations.
2. The United States seeks review by the Appellate Body of the panel's finding that the United
States has failed to comply with the DSB's reco mmendations and rulings re garding importer-specific
assessment rates determined in Reviews 1, 2, 3, 7, and 8 that apply to entries covered by those
reviews that were, or will be, liquidated after th e expiry of the reasonable period of time ("RPT"). 2
The United States also seeks review of the panel's re lated legal conclusion that the United States is in
continued violation of its obligations under Articles 2.4 and 9.3 of the Agreement on Implementation
of Article VI of the General Agreement on Tariffs and Trade 1994 ("AD Agreement") and

1See, e.g., Panel Report, paras. 7.100-7.116, 8.1(b).
2See, e.g., Panel Report, paras. 7.139-7.155, 8.1(a).

Article VI:2 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").
3 These
conclusions are in error and are based on errone ous findings on issues of law and related legal
interpretations.
3. The United States seeks review by the Appellate Body of the panel's legal conclusion that the
United States is in violation of Articles II:1(a) and II:1(b) of the GATT 1994 with respect to certain
liquidation actions taken after the expiry of the RPT, namely with respect to liquidation instructions of
the U.S. Department of Commerce set forth in E xhibits JPN-40A and JPN-77 to JPN-80 and the U.S.
Customs and Border Protection liquidation notices set forth in Exhibits JPN-81 to JPN-87. 4 T h i s
conclusion is in error and is based on erroneous findings on issues of law and related legal
interpretations.
4. The United States seeks review by the Appellate Body of the panel's legal conclusions with
respect to Reviews 4, 5, and 6, as found at paras. 7.74 -7.83, 7.160-7.168, and 8.1(b) of the Panel
Report. These conclusions are in error and ar e based on erroneous findings on issues of law and
related legal interpretations.5

3See, e.g., Panel Report, paras. 7.154, 8.1(a)(i).
4See, e.g., Panel Report, paras. 7.204-7.208, 8.1(d).
5Aside from the fact that Review 9 is not within th e terms of reference, the panel’s conclusions of law
in paragraphs 7.160-7.168, and 8.1(b) with respect to Review 9 are also in error and are based on erroneous
findings on issues of law and related legal interpretations.

ANNEX II

O
RGANISATION MONDIALE ORGANIZACIÓN MUNDIAL
 DU COMMERCE DEL COMERCIO

APPELLATE BODY

Recourse to Article 21.5 of the DSU by Japan

AB-2009-2

Procedural Ruling

1. On 29 May 2009, the Appellate Body Division h earing this appeal received separate requests
from Japan and the United States to allow observation by the public of the oral hearing in the above
appellate proceedings. The particip ants argued that nothing in the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the "DSU") or the Working Procedures for
Appellate Review (the " Working Procedures") precludes the Appellate Body from authorizing public
observation of the oral hearing. The participants al so relied on the rulings by the Appellate Body in
four previous proceedings authorizing public observation of the oral hearing.
1 Both participants
consider that public observation of the oral heari ngs in past cases has strengthened the credibility and
legitimacy of the WTO dispute settlement system, and has allowed WTO Members to follow disputes
more closely.
2. Japan explained that its request was being ma de on the understanding that any information
that it has designated as confidential in the docum ents it has filed in the compliance proceedings
would be adequately protected in the course of the hearing. The United States indicated that it did not
anticipate referring
 to any information designated as confidential in its statements and responses to
questions at the oral hearing. Both partic ipants considered that their proposed modality 2 for the
observation of the hearing by the public, which accord s with the past practice of the Appellate Body,
would allow for the protection of the information that Japan has designated as confidential.
3. On 2 June 2009, we invited the third participants to comment in writing on the requests of the
participants. We received comments on 8 June 2009 from Korea, and on 9 June 2009 from China, the
European Communities, Hong Kong, China, Mexico, Norway, the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu, and Thailand. The European Communities, Norway, and the
Separate Customs Territory of Taiwan, Pe nghu, Kinmen and Matsu expressed their s upport for the
requests of the participants. China, Hong Kong, China, Mexico, and Thailand expressed the view that
the provisions of the DSU do not allow public hearings at the appellate stage. According to these
third participants, the oral hearing forms part of th e proceedings of the Appellate Body and, therefore,

1These proceedings are: US – Continued Suspension and Canada – Continued Suspension ; EC –
Bananas III (Article 21.5 – Ecuador II) and EC – Bananas III (Article 21.5 – US); US – Continued Zeroing; and
US – Zeroing (EC) (Article 21.5 – EC).
2Japan and the United States proposed simultaneous closed-circuit television broadcasting, with the
transmission being turned off if the participants find it necessary to discuss issues that involve confidential
information that Japan has submitted in the course of these compliance proceedings.

is subject to the requirement of Article 17.10 of the DSU that "[t]he proc eedings of the Appellate
Body shall be confidential." They requested the A ppellate Body to treat their oral submissions as
confidential should it decide to allow public observa tion of the oral hearing. Although Korea did not
object to the Appellate Body allowing public observa tion of the portions of the participants' and third
participants' oral submissions that they wished to make public, it noted its view that the DSU does not
contain an explicit provision allowing public observa tion. Korea requested the Appellate Body to
treat its oral submissions as confidential.
4. Similar requests to allow public observation of th e oral hearing have been made in previous
appeals.
3 In acceding to these requests, the Appellate Body relied on the same reasoning, which was
first developed in US – Continued Suspension and Canada – Continued Suspension . We note the
following main aspects of the reasoning set out in the Procedural Rulings issued in those proceedings:
(a) Article 17.10 must be read in context, par ticularly in relation to Article 18.2 of the
DSU. The second sentence of Article 18.2 expressly provides that "[n]othing in this
Understanding shall preclude a party to a di spute from disclosing statements of its
own positions to the public". Thus, under Article 18.2, the parties may decide to
forego confidentiality protection in respect of their statements of position. The third
sentence of Article 18.2 states that "Membe rs shall treat as confidential information
submitted by another Member to the panel or the Appellate Body which that Member
has designated as confidential." This provi sion would be redundant if Article 17.10
were interpreted to require absolute conf identiality in respect of all elements of
appellate proceedings. Accordingly, Artic le 18.2 of the DSU provides contextual
support for the view that the confidentiality rule in Article 17.10 is not absolute, and
has its limits.
(b) The confidentiality requirement in Article 17.10 operates in a relational manner.
There are different sets of relationships that are implicated in appellate proceedings,
including: (i) a relationship between the participants and the Appellate Body;
and (ii) a relationship between the third pa rticipants and the Appellate Body. The
requirement that the proceedings of the Appellate Body are confidential affords
protection to these separate relationships and is intended to safeguard the interests of
the participants and third participants a nd the adjudicative function of the Appellate
Body, so as to foster the system of dis pute settlement under conditions of fairness,
impartiality, independence and integrity. In this case, the participants have requested
authorization to forego confidentiality pr otection for their communications with the
Appellate Body at the oral hearing. The requests of the participants do not extend to
any communications, nor touch upon the relati onship, between the third participants
and the Appellate Body. The right to confid entiality of third participants vis-à-vis the
Appellate Body is not implicated by these requests.
(c) The DSU does not specifically provide for an oral hearing at the appellate stage. The
oral hearing was instituted by the Appellate Body in its Working Procedures.
Pursuant to Rule 27 of the Working Procedures, the Appellate Body has the power to
exercise control over the conduct of the oral hearing, including authorizing the lifting
of confidentiality at the request of the pa rticipants as long as this does not adversely
affect the rights and interests of the third pa rticipants or the integrity of the appellate
process. Even though Article 17.10 also applies to the relationship between third
participants and the Appellate Body, the third participants cannot invoke
Article 17.10 as it applies to their relations hip with the Appellate Body, so as to bar

3See supra, footnote 1.

the lifting of confidentiality protection in the relationship between the participants
and the Appellate Body. Likewise, author izing the participants' requests to forego
confidentiality, does not affect the rights of third participants to preserve the
confidentiality of their communications with the Appellate Body.
(d) Although the powers of the Appellate B ody are themselves circumscribed in that
certain aspects of confidentiality are incapa ble of derogation—even by the Appellate
Body—where derogation may undermine the ex ercise and integrity of the Appellate
Body's adjudicative function 4 such concerns do not arise in a situation where,
following requests of the participants, the Appellate Body authorizes the lifting of the
confidentiality of the participants' statements at the oral hearing.
(e) The Appellate Body has fostered the ac tive participation of third parties in the
appellate process in drawing up the Working Procedures and in appeal practice.
However, the rights of third participants are distinct from those of the main
participants to a dispute.
5. We note that public observation in these previous cases operated smoothly and that the rights
of third participants who did not wish to have thei r oral statements made subject to public observation
were fully protected.
6. The requests for public observation of the oral hearing in this dispute have been made by the
two participants, Japan and the United States. As explained above, the Appellate Body has the power
to authorize requests by the participants to lift c onfidentiality, provided that this does not affect the
confidentiality in the relationship between the third pa rticipants and the Appellate Body, or impair the
integrity of the appellate process.
7. Japan stated that its request for an open heari ng does not and should not be deemed to forego
confidentiality protection with respect to inform ation it has designated as confidential during the
compliance proceedings in this dispute. Japan not ed, in this respect, that the third sentence of
Article 18.2 of the DSU explicitly provides that "Members shall treat as confidential information
submitted by another Member to the panel or the Appellate Body which that Member has designated
as confidential." Japan therefore proposed that the Division hold an open hearing by means of
simultaneous closed-circuit television broadcast, wi th the transmission being turned off should the
Division or either of the participants find it n ecessary to address issues that involve confidential
information that Japan has submitted in the c ourse of these compliance proceedings. The United
States also considered that this modality would allo w for the concerns raised by Japan to be addressed
adequately. We agree that this is an adequate way to protect confidential information in the context of
a hearing that is open to public observation.
8. For these reasons, the Appellate Body Division hearing this appeal authorizes the public
observation of the oral hearing in these proceedi ngs on the terms set out below. Accordingly,
pursuant to Rule 16(1) of the Working Procedures, we adopt the following additional procedures for
the purposes of this appeal:
(a) The oral hearing will be open to public ob servation by means of simultaneous closed-
circuit television. The closed-circuit tele vision signal will be shown in a separate

4For example, the situation contemplated in the sec ond sentence of Article 17.10, which provides that
"[t]he reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the
light of the information provided and the statements made".

room to which duly registered delegat es of WTO Members and members of the
general public will have access.
(b) Oral statements and responses to questions by the third participants that have
indicated their wish to maintain the conf identiality of their submissions, as well as
information that Japan has designated as c onfidential, will not be subject to public
observation.
(c) An appropriate number of seats will be reserved for delegates of WTO Members in
the room where the closed-circuit broadcast will be shown.
(d) Notice of the oral hearing will be provid ed to the general public through the WTO
website. WTO delegates and members of the general public wishing to observe the
oral hearing will be required to register in advance with the WTO Secretariat.
(e) Should practical considerations not allow si multaneous broadcast of the oral hearing,
deferred showing of the video recording will be used as an alternative.

Geneva, 11 June 2009