UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Award of the Arbitrator
Date: 7 June 2005
Document codes: WT/DS268/12
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING
MEASURES ON OIL COUNTRY TUBULAR GOODS
FROM ARGENTINA

ARB-2005-1/18

Arbitration
under Article 21.3(c) of the
Understanding on Rules and Procedures
Governing the Settlement of Disputes

Award of the Arbitrator
A.V. Ganesan

AWARD OF THE ARBITRATOR

Parties:

Argentina
United States

 ARB-2005-1/18

 Arbitrator:

 A.V. Ganesan

I. Introduction
1. On 17 December 2004, the Dispute Settlement Body (the "DSB") adopted the Appellate Body
Report
1 and the Panel Report 2, as modified by the Appellate Body Report, in ("US – Oil Country
Tubular Goods Sunset Reviews ").3 At the DSB meeting of 14 January 2005, the United States
indicated its intention to implement the recommendati ons and rulings of the DSB in this dispute and
stated that it would require a reasonable period of time in which to do so.4
2. On 11 March 2005, Argentina informed the DSB that consultations with the United States had
not resulted in an agreement on the reasonable pe riod of time for implementation. Argentina
therefore requested that such period be determined by binding arbitration, pursuant to Article 21.3(c)
of the Understanding on Rules and Procedures Go verning the Settlement of Disputes (the "DSU").5
Subsequently, on 16 March 2005, Argentina and the United States communicated to the DSB their
agreement that the award of the arbitrator made wi thin 60 days after the date of appointment of the
arbitrator shall be deemed to be an arbitr ation award under Article 21.3(c) of the DSU,
notwithstanding the expiry of the 90-day period stipulated in Article 21.3(c).
6

1Appellate Body Report, WT/DS268/AB/R.
2Panel Report, WT/DS268/R and Corr. 1.
3WT/DS268/8.
4WT/DSB/M/181, para. 10.
5WT/DS268/9.
6WT/DS268/10. The 90-day period following adoption of the Panel and Appellate Body Reports
expired on 17 March 2005.

3. On 22 March 2005, Argentina advised the Director-General in writing that Argentina and the
United States had been unable to agree on an arbitr ator. Argentina therefore requested the Director-
General to appoint an arbitrator pursuant to footnot e 12 to Article 21.3(c) of the DSU, which provides
for the Director-General to do so "within 10 days, after consulting the parties". However, before the
Director-General had completed consultations with the parties, Argentina and the United States
agreed on the selection of an arbitrator and, by a joint letter dated 30 March 2005, Argentina and the
United States requested me to act as the arbitrator in this matter. On 8 April 2005, I informed Argentina
and the United States in writing of my acce ptance of the appointment as the arbitrator
7 and confirmed
that I would issue my award no later than 7 June 2005, that is, no later than 60 days after my
appointment as the arbitrator on 8 April 2005.
4. The United States and Argentina provided their wr itten submissions to me on 22 April 2005.
An oral hearing with them was held on 18 May 2005.
II. Arguments of the Parties
A. United States
5. The United States requests that I determine the "reasonable period of time" for
implementation of the recommendations and rulings of the DSB in this dispute to be 15 months from
the date of adoption by the DSB of the Panel and Appellate Body Reports, ending on 17 March 2006.8
6. According to the United States, in order to comply with the relevant recommendations and
rulings, the United States Department of Commerce (the "USDOC") would ha ve to first amend the
waiver provisions of its regulations. Once these amended regulations have been issued, the USDOC
would begin the process of making a new determinati on of likelihood of continuation or recurrence of
dumping in the sunset review regarding oil country tubular goods from Argentina. The USDOC
submits that it cannot complete these two phases of implementation in parallel "because of the impact
of the WTO-inconsistent waiver provisions on the order-wide likelihood determination".
9 I n t h i s
regard, the United States highlights the fact that the Panel in the present dispute "expressly declined"
to recommend how the United States should implement the recommendations and rulings of the
DSB.
10 In any case, the United States argues that previ ous arbitration awards confirm that it is for the

7WT/DS268/11.
8United States' submission, paras. 3 and 27.
9Ibid., para. 9 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
supra, footnote 1, paras. 234 and 260; and Panel Report, US – Oil Country Tubular Goods Sunset Reviews ,
supra, footnote 2, paras. 7.101 and 7.222). See also ibid., para. 3.
10Ibid., para. 13 (referring to Panel Report, US – Oil Country Tubular Goods Sunset Reviews , supra,
footnote 2, paras. 8.3 and 8.5).

implementing Member to decide the means of implementation, including the sequence of
implementing steps.11
7. Beginning with the first phase of implementation, the United States contends that it will take
approximately nine months for the US DOC to publish a new rule in the United States Federal
Register (the " Federal Register"). The United States submits that this phase, which is governed by
section 123 of the Uruguay Round Agreements Act, comprises the following steps:
(a) the first three months will involve consultations between: the United States Trade
Representative (the "USTR") and the USDOC; the USTR and the United States
Congress; and the USTR and certain private sector advisory committees. These
consultations are already underway: the U STR and the USDOC have consulted; the
USTR and Congress have consulted; and th e USTR is consulting with the advisory
committees. This three-month period will end with the USTR submitting a report to
Congress describing the proposed rule, the r easons for the proposed rule and the
advice provided by private sector advisory committees. The USTR has already begun
to prepare this report;
(b) the USDOC will then need three months to complete the preparatory steps for, and to
publish the proposed rule in, the Federal Register. Prior to publication, the USDOC
must circulate the proposed rule for intern al approval, modify it as a result of the
USTR consultations with Congress and private sector advisory committees, and seek
approval for publication of the proposed ru le from the Office of Management and
Budget (the agency with oversight for agency rule-making); and
(c) after the publication of the proposed rule, the USDOC will need a further three
months to prepare for and publish the final rule in the Federal Register . Before
publication, the USDOC will need to a ddress public comments on the proposed rule
and the USTR will hold final consultati ons with Congress. The United States
explains that the final rule must not go into effect before the end of the 60-day period
beginning on the date when consultations with Congress on the final rule began,
unless the President determines that an earlier effective date is in the national
interest.
12

11United States' submission, para. 13 (referring to Award of the Arbitrator, Australia – Salmon ,
para. 35; and Award of the Arbitrator, US – Offset Act (Byrd Amendment), para. 52).
12Ibid., paras. 4, 8, 15, and 18-20 (referring to section 123 of the Uruguay Round Agreements Act,
codified as 19 U.S.C. §3533 (Exhibit US-1 attached to the United States' submission)).

8. As for the second phase of implementation, the United States submits that it will take six
months for the USDOC to issue a new likelihood determ ination in the sunset review at issue. The
United States argues that this phase, which is governed by section 129 of the Uruguay Round
Agreements Act, involves the following steps:
(a) during the first month, consultations w ill be held between the USTR and the USDOC,
and between the USTR and Congress;
(b) during the following two months, the USDOC will prepare questionnaires for
interested parties and review responses before issuing a preliminary redetermination;
(c) interested parties will have one month to submit comments to the USDOC on the
preliminary redetermination. This may include a hearing, in appropriate case;
(d) the USDOC will then have one month to address the comments of interested parties
before issuing its final redetermination; and
(e) an additional month will be required for th e USTR to review the final redetermination
and for consultations to be held between the USTR and the USDOC, and between the
USTR and Congress. Depending on the circumstances, the USTR may instruct the
USDOC to implement the final redetermination and to notify the public of the
implementation by publishing it in the Federal Register.
 13
9. The United States indicates that, during the course of the second phase of implementation, the
USTR will formally request the USDOC to issue a redetermination to "render [its] actions not
inconsistent"14 with the relevant panel or Appellate Body findings. The USDOC will have 180 days
from this request to issue a new determination. Th e United States adds that, "[i]n practice, USTR has
sometimes delayed transmitting that request until just before [the USDOC] indicated informally that it
was ready to issue a new determination".15
10. The United States argues that the time required to carry out these procedural steps in the two
phases of implementation demonstrates the need for a 15-month implementation period in this
dispute. In particular, the USTR must seek input from various bodies and interested parties
throughout the implementation process. The United St ates indicates that previous arbitrators have
recognized the importance of such consultations an d have allowed sufficient time for them to take

13United States' submission, paras. 4, 16, and 21-26 (referring to section 129 of the Uruguay Round
Agreements Act, codified as 19 U.S.C. §3538 (Exhibit US-2 attached to the United States' submission)).
14Ibid., para. 16.
15Ibid., footnote 29 to para. 16.

place.16 In the second phase, the USDOC al so needs sufficient time to ensure that it complies with its
obligations of transparency and due process under Articles 6 and 12 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the " Anti-
Dumping Agreement "). The United States argues that, in accordance with previous arbitration
awards, this should include time to obtain and an alyze information from interested parties, even
though this is not expressly required by statute or regulation.17
11. For these reasons, the United States contends that a period of 15 months, ending on
17 March 2006, is a reasonable period of time for it to implement the recommendations and rulings
of the DSB in this dispute.
B. Argentina
12. Argentina requests that I determine the "reasona ble period of time" for implementation of the
recommendations and rulings of the DSB in this dis pute to be seven months from the date of adoption
by the DSB of the Panel and Appellate Body Reports, ending on 17 July 2005.18
13. Argentina highlights three "particular circumstances" of this dispute that it regards as relevant
to the determination of the reasonable period of time pursuant to Article 21.3(c) of the DSU. The first
relates to the nature of one of the provisions of the Anti-Dumping Agreement with which the
United States has been found to have acted in consistently, namely, Article 11.3 of the Anti-Dumping
Agreement dealing with "sunset" reviews of anti-dumpi ng duties. Article 11.3 contains a temporal
element in that it requires Members to terminate anti-dumping duties not later than five years after
they are imposed. In this dispute, approximately five y ears have passed after the date by which the
United States was required to terminate the duties. According to Arge ntina, this reinforces the need
for "[p]rompt compliance" in accordance with Article 21.1 of the DSU.
14. Secondly, the United States has invoked the exception in Article 11.3, whereby a Member
may continue the anti-dumping duty beyond five years if its authorities have made a specific
determination in a review that comp lies with certain "exacting conditions".
19 The DSB has ruled

16United States' submission, para. 10 (referring to Awards of the Arbitrators in Canada – Autos and
Canada – Pharmaceutical Patents).
17Ibid., para. 12 (referring to Award of the Arbitrator, EC – Tariff Preferences, para. 42).
18Argentina's submission, para. 1.
19Ibid., para. 4.

invalid the United States' invocation of the "exception".
20 Therefore, the question in this dispute is
simply how much time the United States needs to comply with the "rule" 21 in Article 11.3, namely,
the termination of the duties.
15. Thirdly, the primary inconsistency of the United States' measures, as applied, in the sunset
review at issue is "the lack of positive evid ence supporting [the USDOC's] determination that
dumping would be likely". 22 This inconsistency is separate from the "as such" violations of the
United States law and regulations. Modifying the la w and regulations to addr ess the inconsistency of
the waiver provisions, and then applying the modifi ed law and regulations to this sunset review,
would not cure this primary "as applied" inconsis tency, because "the record evidence developed by
[the USDOC] at the time of the Article 11.3 re view could not then, and cannot now, support [the
USDOC's] likely dumping determination". 23 Argentina therefore argues that I should not determine
the reasonable period of time on the basis of this sequence of implementation, which cannot lead to
compliance. Rather, in the present case, the amount of time required to implement the
recommendations and rulings of the DSB with respect to the USDOC's likelihood determination in the
sunset review at issue is simply the amount of time required to withdraw the underlying anti-dumping
duty order.
24 The United States need not wait until it h as amended its law and regulations before
addressing this administrative "as appl ied" violation. In this regard , Argentina refers to a previous
arbitration award that recognized that an implemen ting Member can take administrative steps towards
implementation at the same time as legislative steps.25
16. In relation to the sequence of implementati on, Argentina refers to the methods of
implementation followed by the United States in certain disputes. Argentina points out that in
United States – Anti-Dumping Measures on C ertain Hot-Rolled Steel Products from Japan
26 and
United States – Countervailing Measures Conc erning Certain Products from the European
Communities27, the United States first amended the inconsiste nt regulations and then applied the new
regulations to the specific proceedings at issue. Ho wever, "there is no basis in U.S. law for such a

20Argentina's submission, para. 4.
21Ibid.
22Ibid., para. 5.
23Ibid., para. 53.
24Ibid., para. 36.
25Ibid., para. 29 (referring to Award of the Arbitrator, US – Hot-Rolled Steel, para. 32).
26Appellate Body Report, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697; Panel
Report, WT/DS184/R, adopted 23 August 2001, as modified by the Appellate Body Report, WT/DS184/AB/R,
DSR 2001:X, 4769.
27Appellate Body Report, WT/DS212/AB/R, adopted 8 January 2003; Panel Report, WT/DS212/R,
adopted 8 January 2003, as modified by the Appellate Body Report, WT/DS212/AB/R.

position".28 On the contrary, United States law contemplates the issuance of a new determination that
is not inconsistent with the rele vant recommendations and rulings of the DSB. Moreover, in those
two cases, the "as applied" violation resulted from th e application of a law or regulation that was "as
such" inconsistent with WTO obligatio ns. This is not the case in this dispute. Instead, "fix[ing] the
'as such' violations first and then apply[ing] the amended waiver provisi ons would not cure the
principal 'as applied' violation" in this dispute, which, according to Argentina, is "the lack of any
evidence supporting [the USDOC]'s likelihood determination." 29 Argentina argues that a case more
similar to this one is United States – Counterva iling Duties on Certain Corrosion-Resistant Carbon
Steel Flat Products from Germany 30, where the United States simply revoked the inconsistent
countervailing duty order under the "changed circumstances" provisions of the United States law.
17. Argentina also raises certain general considerations that it regards as relevant in this
arbitration proceeding. According to Argentin a, the implementing Member bears the burden of
demonstrating that the implementation period it proposes is the shortest period possible under the
legal system of the implementing Member. 31 In addition, that Member must take steps towards
implementation as soon as the DSB adopts the relevant reports. Argentina points out that the United
States was aware of the recommendations and ru lings of the DSB regarding the "as applied"
violations well before their adoption by the DS B on 17 December 2004, because it did not appeal the
Panel's findings in this regard. Argentina further submits that if I find that the United States did not
begin the compliance process upon adoption of the Pa nel and Appellate Body reports by the DSB,
then I should take this "dilatory conduct" into account in determining the reasonable period of time.
32
Argentina also emphasizes that the United States must use the flexibility and discretion available in its
legislative system to comply as quickly as possible.
18. Turning to the implementation process, Argen tina maintains that the United States can,
simultaneously, over a single seven-month period: revoke the inconsistent USDOC determination in
the sunset review at issue; amend the Tari ff Act of 1930; and amend the relevant USDOC
regulations. Argentina submits that the United States can revoke the anti-dumping order at issue
either under the "changed circumstances" provisions of United States law or under section 129(b) of

28Argentina's submission, para. 46.
29Ibid., para. 47.
30Appellate Body Report, WT/DS213/AB/R and Corr.1, adopted 19 December 2002; Panel Report,
WT/DS213/R and Corr.1, adopted 19 December 2002, as modified by the Appellate Body Report,
WT/DS213/AB/R and Corr.1.
31Argentina's submission, paras. 18-20 (referring to Award of the Arbitrator, EC – Hormones, para. 26;
Award of the Arbitrator, Canada – Pharmaceutical Patents, para. 47; and Award of the Arbitrator, US – Offset
Act (Byrd Amendment), para. 44).
32Ibid., paras. 23 and 56 (quoting Award of the Arbitrator, Chile – Price Band System, para. 43).

the Uruguay Round Agreements Act.
33 Section 129(b) imposes no specific time frames for
implementation, apart from requiring that the USDO C render a new determination within 180 days of
a request by the USTR to do so. Argentina contends that the United States should use this flexibility
to complete implementation quickly. Argentin a also points out that amendments to USDOC
regulations are governed by section 123(g) of the Uruguay Round Agreements Act. 34 Under this
provision, a 60-day consultation peri od is required before a final rule goes into effect, unless the
President determines that an earlier date is in the national interest. Argentina states that
section 123(g) provides the United States with significan t flexibility. In sum, Argentina argues that
"[t]here are no constitutional or other legal impedi ments to U.S. implementation" within a short
period of time.35
19. Argentina also considers that I should take into account, in making my determination, the fact
that Argentina is a developing country complainant. 36 In particular, Argentina declares that
"Argentina, a developing country Member, continues to suffer impaired access to the U.S. market
because of the WTO-inconsistent U.S. measures". 37 Argentina also points out that, unlike in the
arbitration in Chile – Price Band System , the implementing Member in this dispute is not a
developing country Member.
20. Finally, Argentina identifies some considera tions that it regards as irrelevant to the
determination of the reasonable period of time, in particular, the internal practices of the United States
Congress. Therefore, Argentina argues that I shoul d not take into account the time required for the
United States to implement broader legislative cha nges, such as in an Omnibus Trade Bill combining
a large number of trade measures 38, or the fact that Congress usually passes a large number of bills at
the end of each legislative session. 39 In addition, Argentina maintains that "extraneous
considerations" such as the contentiousness of th e compliance process are irrelevant, and additional
time should not be granted on that basis for extended consultations with interested parties.40

33Argentina's submission, para. 50; 19 U.S.C. §3538(b) (Exhibit ARG-1 attached to Argentina's
submission).
34Argentina's submission, para. 64; 19 U.S.C. §3533(g) (Exhibit ARG-3 attached to Argentina's
submission).
35Argentina's submission, para. 71.
36Ibid., paras. 31-32 and 78-80 (referring to Award of the Arbitrator, Chile – Price Band System ,
paras. 55-56).
37Ibid., para. 78.
38Ibid., paras. 30 and 73-74 (referring to Award of the Arbitrator, EC – Tariff Preferences, para. 31).
40Ibid., paras. 76-77.

21. For these reasons, Argentina contends that a peri od of seven months, ending on 17 July 2005,
is a reasonable period of time for the United Stat es to implement the recommendations and rulings of
the DSB in this dispute.
III. Reasonable Period of Time
A. General Principles
22. Pursuant to Article 21.3(c) of the DSU, my task as arbitrator in this case is to determine the
"reasonable period of time" for the United States to implement the recommendations and rulings of
the DSB in US – Oil Country Tubular Goods Sunset Reviews. 41 As the Panel and Appellate Body
Reports relating to this dispute were adopted by the DSB on 17 December 2004, the "reasonable
period of time" will be calculated as from that date.
23. Article 21.3(c) of the DSU provides that, when the "reasonable period of time" is determined
through arbitration:
… a guideline for the arbitrator should be that the reasonable period
of time to implement panel or Appellate Body recommendations
should not exceed 15 months from the date of adoption of a panel or
Appellate Body report. However, th at time may be shorter or longer,
depending upon the particular circumstances. (footnote omitted)
24. Prior to examining the factual situation in this dispute, I wish to highlight certain general
principles that have been followed in previous arb itrations under Article 21.3(c) and that are pertinent
to the determination of the "reasonable period of time" in this dispute.
25. First, the "reasonable period of time" under Artic le 21.3(c) should be "the shortest period
possible within the legal system of the Member to implement the relevant recommendations and
rulings of the DSB", in the light of the "particular circumstances" of the dispute.
42 Both the United
States and Argentina are in agreement with this general principle.
26. Secondly, the nature of the steps to be taken for implementation has a bearing on the
"reasonable period of time" required to fully implemen t the recommendations and rulings of the DSB.
The implementation may require amendments to laws or regulations that may involve legislative
action, or it may require amendments to administra tive guidelines or procedures that may not involve
such action. Implementation may also involve only the remedying of the deficiencies in a particular

41See WT/DS268/11.
42Award of the Arbitrator, Chile – Price Band System, para. 34 (quoting Award of the Arbitrator, US –
1916 Act, para. 32). See also Award of the Arbitrator, EC – Hormones, para. 26; and Award of the Arbitrator,
EC – Tariff Preferences, para. 26.

determination. Previous arbitration awards under Article 21.3(c) have recognized that when
implementation requires legislative action, the "r easonable period of time" required may be longer
than in cases where only administrative action is required to amend guidelines or procedures or to
remedy the deficiencies in particular determinations.
43 It is, however, not for the arbitrator under
Article 21.3(c) to prescribe a particular method of implementation and to determine the "reasonable
period of time" on the basis of that method.44
27. Thirdly, whatever be the method of implem entation chosen by the implementing Member,
that Member must take advantage of the flexib ility and discretion available within its legal and
administrative system to implement the recommend ations and rulings of the DSB as speedily as
possible.45
28. Fourthly, as the text of Article 21.3(c) mak es clear, the "particular circumstances" of each
case must be taken into account in determining the "reasonable period of time" for implementation.
The United States and Argentina are not in agreemen t, however, as to what constitutes the "particular
circumstances" in this dispute within the meaning of Article 21.3(c).
29. Argentina argues that I should take into account, as one of the "particular circumstances", the
nature of the provisions of the WTO agreement that the Un ited States has been found to have
violated in the underlying dispute. That violatio n pertains to a "sunset review" determination as
envisaged under Article 11.3 of the Anti-Dumping Agreement . Article 11.3 requires Members to
terminate anti-dumping duties not later than five years after they are imposed. This is the "rule", and
the continuation of the anti-dumping duties beyond five years, after a sunset review, is an "exception"
that must fulfil "exacting conditions". 46 Argentina observes that, in this case, approximately five
years have passed since the date by which the United States was required to terminate the duties.
Argentina argues that, as the United States' "invoca tion" of the "exception" to the "rule" of
Article 11.3 has been found to be "invalid", the "s ole issue ... is the amount of time required under
U.S. law to withdraw the antidumping duty order".47

43See Award of the Arbitrator, Canada – Pharmaceutical Patents, para. 49; Award of the Arbitrator,
Chile – Price Band System, para. 38; and Award of the Arbitrator, US – Offset Act (Byrd Amendment), para. 57.
44See, for example, Award of the Arbitrator, Korea – Alcoholic Beverages , para. 45; Award of the
Arbitrator, US – 1916 Act, para. 36; Award of the Arbitrator, Chile – Price Band System, para. 32; Award of the
Arbitrator, US – Offset Act (Byrd Amendment), para. 48; and Award of the Arbitrator, EC – Tariff Preferences,
para. 30.
45See Award of the Arbitrator, Canada – Patent Term, paras. 63 and 64; and Award of the Arbitrator,
US – Offset Act (Byrd Amendment) , para. 64 (referring to Award of the Arbitrator, US – Section 110(5)
Copyright Act, para. 39 and Award of the Arbitrator, US – 1916 Act, para. 39).
46Argentina's submission, para. 4.
47Ibid., paras. 4 and 36.

30. The United States, in contrast, argues that the relevant "particular circumstances" in this
dispute cannot include the nature of the specific provision at issue in the underlying proceeding,
namely, Article 11.3 of the Anti-Dumping Agreement. Nor can they include the particular method of
implementation proposed by Argentina, namely, th e revocation of the anti-dumping duty order, or the
consideration that the termination of the duty is the "rule" and its continuation is an "exception" under
Article 11.3. Rather, "the particular circumstances" that previous arbitrators have taken into account
include the legal form of implementation, the t echnical complexity of the necessary measures to be
adopted and implemented, and the period of time in which the implementing Member can achieve the
proposed form of implementation within its legal system. 48 Thus, the relevant "particular
circumstances" in this dispute are the amount of time the United States needs to complete the
domestic procedures that would fully implement the DSB recommendations and rulings, taking into
account the fact that the USDOC is required to amend the "waiver provisions" of the USDOC
Regulations49 found to be WTO-inconsistent "as such". The United States emphasizes that the
USDOC will not be in a position to begin the process of issuing a redetermination in respect of the "as
applied" violation until its modifi ed regulations are effective, b ecause of the Panel and Appellate
Body findings on "the impact of the WTO-inconsistent waiver provisions on the order-wide
likelihood determination."50
31. Lastly, I note that Argentina argues that th e implementing Member—in this case, the United
States—bears the burden of demonstrating that the period it proposes—in this case, 15 months—is the
"shortest period possible" to bring its measures in to conformity with the relevant recommendations
and rulings of the DSB. 51 The United States responds that it has discharged this burden as it has
demonstrated in detail both the specific steps needed to implemen t the recommendations and rulings
of the DSB and the time needed to comply with those steps, emphasizing that, within its legal
framework, the amendment of the USDOC Regula tions and the application of the amended
regulations to the redetermination must be done in seriatim.
32. With these considerations in mind, I turn now to an examination of the facts of this case.

 48United States' statement at the oral hearing; United States' submission, para. 7 (referring to Award of
the Arbitrator, Japan – Alcoholic Beverages II, para. 12 and Award of the Arbitrator, Canada – Pharmaceutical
Patents, paras. 49-51).
49The "USDOC Regulations", as they relate to sunset reviews, are found in Procedures for Conducting
Five-year ("Sunset") Reviews of Antidumping and Countervailing Duty Orders, United States Federal Register,
Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by the United States to the Panel), codified
in Title 19, section 351.218 of the United States Code of Federal Regulations.
 50Supra, footnote 9.
51Argentina's submission, paras. 19 and 34.

B. The Recommendations and Rulings of the DSB to be Implemented
33. In this dispute, the United States is required to bring the following three measures, found in
the Panel Report, as modified by the Appellate Body Report, to be inconsistent with the Anti-
Dumping Agreement, into conformity with its obligations under that Agreement:
(a) the USDOC's determination of likelihood of continuation or recurrence of dumping
(the "likelihood-of-dumping determination" ) made with respect to imports of oil
country tubular goods from Argentina, whic h was found to be inconsistent with
Article 11.3 as well as Article 6.2 of the Anti-Dumping Agreement (the "as applied"
violation);
(b) the "waiver provisions" of section 751(c)(4)(B) of the Tariff Act of 1930 and
section 351.218(d)(2)(iii) of the USDOC Regulations, which were found to be
inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement ("as such"
violation); and
(c) the "deemed waiver provision" of section 351.218(d)(2)(iii) of the USDOC
Regulations, which was found to be inconsiste nt, as such, with Articles 6.1 and 6.2 of
the Anti-Dumping Agreement with respect to respondents that file incomplete
submissions ("as such" violation).
34. With respect to the "as applied" violation mentioned above, both parties agree that the
likelihood-of-dumping determination underlying this dispute is the "order-wide likelihood
determination" by the USDOC that "revocation of the antidumping duty orders on oil country tubular
goods from Argentina ... would likely lead to con tinuation or recurrence of dumping" that was
published in the Federal Register on 7 November 2000.
52
C. The Means of Implementation
35. With respect to the "as such" violations described above 53, it is not in dispute that, in order to
implement the relevant recommendations and rulings of the DSB in US – Oil Country Tubular Goods
Sunset Reviews, the United States is required to amend the USDOC Regulations. At the oral hearing,

52USDOC, Final Results of Expedited Sunset Reviews: Oil Country Tubular Goods from Argentina,
Italy, Japan, and Korea, United States Federal Register, Vol. 65, No. 216 (7 November 2000) p. 66701 at 66703
(Exhibit ARG-46 submitted by Argentina to the Panel). Duri ng the oral hearing, the United States clarified that
although the order-wide determination includes countries other than Argentina, it is a combination of the
determinations made with respect to each country and, so far as this dis pute is concerned, the determination
made with respect to Argentina could be dealt with separately.
53See supra, paras. 33(b) and 33(c).

the United States confirmed that it "intends to address the DSB's recommendations and rulings
concerning the waiver provision in the statute (section 751(c)(4)(B) of the Tariff Act of 1930) through
modification of its regulations." 54 With respect to the "as a pplied" violation described above 55, there
is, however, a disagreement between the parti es as to whether the USDOC can make a "new
determination" or a "redetermination" 56 of the likelihood of continuation or recurrence of dumping in
the underlying sunset review without first issuing ame nded regulations that are in conformity with the
Anti-Dumping Agreement.
36. Argentina argues that the "principal" inconsiste ncy that the Panel found with respect to the
underlying likelihood-of-dumping dete rmination was that it "was not based on positive evidence";
that is to say, there was no "evidentiary basis" to support the USDOC's likelihood-of-dumping
determination.
57 According to Argentina, amending the waiv er provisions and then applying them to
a new determination cannot "remedy the absen ce of positive evidence of likely dumping". 58
Argentina submits, therefore, that a "shorter opti on" for implementation of the recommendations and
rulings of the DSB in this dispute is to "conduct an administrative proceeding without applying the
waiver provision, or without allowing it to affect the country-wide determination based on the facts
of this case."59 In sum, Argentina contends that there is no basis for the United States' assertion that
implementation requires an in seriatim approach.60
37. The United States argues, in contrast, that the Panel's finding that the likelihood-of-dumping
determination was inconsistent with Article 11.3 of the Anti-Dumping Agreement was based on two
grounds: first, one of the factual bases of the USDOC's affirmative determination, namely, that
dumping by Argentine exporters continued over th e life of the measure, was not proper; and,
secondly, in reaching this determination, the US DOC applied to Argentine exporters other than
Siderca the waiver provisions of United States law that the Panel found to be inconsistent, as such,
with Article 11.3 of the Anti-Dumping Agreement. With respect to the first ground, the United States
emphasizes that the Panel's conclusion was based not on a finding "that there was a lack of any
evidence in support of the affirmative determinati on", but rather on a finding that the USDOC "did
not have sufficient grounds for finding that dumpi ng had continued over the life of the order". 61 With

55See supra, para. 33(a).
56The United States explained at the oral hearing that, in order to make this new determination or
redetermination, it would "reassess the evidence" on the record and "seek clarification" from interested parties.
57Argentina's submission, paras. 5, 9, 47, 48, and 58.
58Argentina's statement at the oral hearing.
59Ibid. (original emphasis)
60Ibid.
61United States' statement at the oral hearing.

respect to the second ground, the United States points out that the application of WTO-inconsistent
waiver provisions in the underlying sunset revi ew determination cannot be remedied without
amending the USDOC Regulations. The United States submits that Argentina's arguments are based
on its assumption that the only way for the United Stat es to cure the "as applied" violation in this case
is by revoking the anti-dumping duty order in its en tirety. According to the United States, it is,
however, for the implementing Member to decide the most appropriate way of bringing an impugned
measure into conformity with its obligations under a covered agreement.
38. In response to questioning at the oral h earing as to why the process of reassessing the
evidence on record for a factual determination by the USDOC to remedy the "as applied" violation
and the process of amending the USDOC Regulations to remedy the "as such" violations cannot
proceed in parallel, the United States argued that it w ould be "getting into legally murky waters" if it
were to make a redetermination based on the ex isting regulations that were found to be WTO-
inconsistent, or if it began the process of making the redetermination based on existing regulations,
amended the regulations "mid-str eam", and then applied the ame nded regulations to the final
determination. The United States stressed in this regard that both the Panel and the Appellate Body
had found that the existing waiver provisions have an "impact ... on the order-wide likelihood
determination".
62 When the USDOC issues new questionnaires in order to make a redetermination,
there may well be Argentine "non-respondents", unknown to the USDOC now, and if the USDOC
applies the existing waiver provisions to them, the redetermination could again be challenged as being
inconsistent with Article 11.3 of the Anti-Dumping Agreement . Thus, to comply fully with the
recommendations and rulings of the DSB and to remedy the "as applied" violation, the United States
submits that it must first amend the waiver provi sions of the USDOC Regulations and then apply the
amended regulations to the rede termination. The United States emphasizes that this does not,
however, mean that the USDOC would engage in a de novo sunset review determination.63
39. In response to questioning at the oral hear ing as to how the USDOC could engage in a
redetermination without first amending the waiver provisions of the USDOC Regulations (given that
the Panel's conclusion rests in part on the applicati on of the waiver provisions to Argentine exporters
other than Siderca), Argentina acknowledged that th e United States is required to amend the waiver
provisions of the USDOC Regulations. However, in this case, because the underlying determination
lacked a sufficient factual basis with respect to exports either by Siderca or by other Argentine
exporters, it is open to the United States to make its redetermination without taking into account the
waiver provisions. Argentina further argued that, un der the facts of this cas e, with respect to "non-

62Supra, footnote 9.
63United States' response to questioning at the oral hearing.

respondent" Argentine companies, the United States has a "discretion" not to apply the "automatic
assumption" of continuation of dumping, and instead to assign a "zero weight" to such companies.
Argentina further observed that th e United States has the discretion under its law and regulations to
determine, on a case-by-case basis, the amount of weight to assign to company-specific findings and
how those findings impact upon a country-wide determin ation. If the United States chose to exercise
such discretion in this case, it would be left only w ith the factual evidence on record "as it stood at the
time the [USDOC] invoked the excep tion from Article 11.3", and it could make the redetermination
on that basis. In Argentina's view, that would lead to a revocation of the anti-dumping duty order.
Argentina therefore contended that an in seriatim approach was not necessary or required on the facts
of this case.
D. The Implementation Process
40. I now turn to the arguments advanced by the United States in support of its position that it
requires 15 months to complete the implementation process in this case.
64
41. The United States submits that it requires 15 months because the implementation process
needs to be carried out in two phases in seriatim . The United States explains the two phases as
follows. In the first phase, the USDOC will amend th e waiver provisions of it s regulations to bring
them into conformity with the DSB's recommendati ons and rulings. The United States has already
begun the work in respect of this phase, which, acco rding to the United States, will take nine months
to complete. In the second ph ase, the USDOC will issue a new determination of likelihood of
continuation or recurrence of dumping that is consistent with the DSB's recommendations and rulings.
According to the United States, this phase will take six months, but the USDOC will not be able to
begin this phase until the regulations are first amended and made effective.
42. Explaining the United States statutory framework, the United States submits that "[t]here are
two principle U.S. statutory provisions governing im plementation in this dispute – section 123 of the
Uruguay Round Agreements Act, which governs im plementation involving a [USDOC] regulation,
and section 129 of the Uruguay Round Agreements Ac t, which governs implementation involving an
action by [the USDOC] in an antidumping (or countervailing duty) proceeding".65

64United States' submission, para. 3.
65Ibid., para. 14. (footnote omitted)

43. According to the United States, the first a nd second phases of the implementation process
require the specific procedural steps outlined above.
66 At the oral hearing, the United States explained
that it expected to complete the section 123 pro cess by 17 September 2005. Although this was "about
a month and a half behind" the schedule for the firs t phase, the United States expected that it could
"still make up the time" during the section 129 process for the second phase.
44. Argentina argues that the United States "can adopt a new regula tion within four months of a
DSB ruling" because "there are no rules that limit th e speed at which regulatory amendments could be
made in order for the United States to comply with its WTO obligations". 67 According to Argentina,
"there is only one provision of sec tion 123(g) that imposes any defined time limit", and this provision
merely provides that a "final rule may not go into effect before the end of the 60-day consultation
period", but even this is "subject to an exception".68 In this regard, Argentina cites United States – Anti-
Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or
Above from Korea ("US – DRAMS ")69, in which the United States changed its regulation in six months
and seven days, and put in place a new regulation five weeks later, for a total implementation period of
seven months and seventeen days.
45. As regards the second phase of the implementati on process, Argentina contends that some of
the activities outlined by the Unite d States, such as the issuance of original and supplemental
questionnaires, verification of information, and i ssuance of a preliminary determination, are not
warranted or required under United States law in a sun set review proceeding. Argentina also submits
that some of the other activities, such as determ ining what information is needed, reviewing and
analyzing the comments received, and making a final determination, do not require the long time
periods indicated by the United States. Argentina also points out that it is open to the United States to
conduct its section 129(b) dete rmination concurrently with the section 123(g) process.
70 Lastly,
Argentina submits that the redetermination need ed in this case is "akin to the administrative
proceeding [that the USDOC] conducts when other tr ibunals (such as a reviewing court or a [North
American Free Trade Agreement ("NAFTA")] panel) find a [USDOC] determination to be unlawful",
and that "such tribunals often provide [the USDOC] only 30 or 60 days to render a
redetermination".71 In sum, Argentina argues that the six- month period proposed by the United States

66See supra, paras. 7 and 8.
67Argentina's statement at the oral hearing.
68Ibid.
69Panel Report, WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521.
70Argentina's statement at the oral hearing.
71Ibid. (original emphasis)

for the second phase cannot possibly be justified, and that a redetermination could be done in this case
in three months.72
46. Responding to Argentina's citation of previous disputes, the United States submits that the
facts in US – DRAMS were "very different" from those that ar e relevant to implementation in this
dispute.73 With respect to implementation of decisi ons by NAFTA panels, the United States points
out that "NAFTA applies US law", that a NAFTA ruli ng "is subject to US rules", and that this is not
the case with WTO proceedings, which have the add itional procedural and transparency requirements
set out in section 129 of the Uruguay Round Agreements Act.74
E. Argentina as a Developing Country Member
47. Both in its written submission, and during the or al hearing, Argentina referred to Article 21.2
of the DSU, which provides:
Particular attention should be paid to matters affecting the interests of
developing country Members with respect to measures which have
been subject to dispute settlement.
48. Argentina suggests that, in determining the reasonable period of time in this case, I should
take "cognizance of Argentina's continuing hardship as a developing country as long as the WTO-
inconsistent U.S. measures are maintained."
75 Argentina clarified at the oral hearing that it was not
suggesting that I should depart from the basic pr inciple that the "reasonable period of time" be
determined on the basis of "the shortest period possible", but rather that Article 21.2 provides
"context" for my determination of the "reasonable period of time" in this case.76
F. Determination of "Reasonable Period of Time"
49. As noted above, both parties agree with the general principle articulated in previous
arbitration awards under Article 21.3(c) of the DS U that the "reasonable period of time" should be
determined on the basis of the "shortest period possi ble within the legal system of the Member to
implement the relevant recommenda tions and rulings of the DSB". 77 Both parties also agree that the
implementing Member must take advantage of the flexibility and discretion available within its legal

72Argentina notes in this regard that the United States had proposed only a four-month period to issue a
new determination in US – Hot-Rolled Steel. (Argentina's statement at the oral hearing)
73United States' statement at the oral hearing.
74United States' response to questioning at the oral hearing.
75Argentina's submission, para. 80.
76Argentina's statement and response to questioning at the oral hearing.
77See supra, para. 25 and footnote 42.

and administrative system to implement the recomme ndations and rulings of the DSB as speedily as
possible.
78 During the oral hearing, Argentina agreed that it is for the implementing Member to
choose the most appropriate method of implementati on and that it is not for the arbitrator under
Article 21.3(c) of the DSU to prescribe a particular method of implementation. But Argentina
emphasized that, whatever be the method or process chosen by the implementing Member, the
implementation must be carried out within the "shortest period possible" by the implementing
Member, utilizing all the flexibility and discretion av ailable to it within its legal and administrative
system to do so.
50. The United States considers that the waiver provisions of the USDOC Regulations must first
be amended to bring them into conformity with the DSB's recommendations and rulings, and that only
after the amended regulations are i ssued could they be applied to a new determination to remedy the
"as applied" violation in this dispute. In this rega rd, I note two aspects of this dispute: first, one of
the reasons for the Panel finding the "as applied" violation was that WTO-inconsistent waiver
provisions were applied to Argentine exporters other than Siderca; and, second, an amendment of the
waiver provisions of the USDOC Regulations is in any event required to remedy the "as such"
violations in this dispute. The United States has explained why it considers an in seriatim approach
to be necessary in this case to ensu re that the redetermination is in conformity with its own legal
system.
79 Argentina does not question wh at the United States considers to be the requirements of its
legal system, but emphasizes that the United St ates, as the implementing Member, bears the
responsibility to exercise all flexibility and discretion available to it to remedy the WTO violations as
rapidly as possible.80
51. I further note that the United States agrees that some of the steps and the time periods
indicated for them in its implementation process are not required by law. But they are needed for the
implementation to be carried out in a transparent and efficient manner. 81 I also note that the United
States agrees that some of the steps included in the two phases of implementation, such as
consultations with Congress, can be carried out in a flexible or concurrent manner to save time,
consistent, however, with the legal requireme nts of sections 123 and 129 of the Uruguay Round
Agreements Act.82

78See supra, para. 27.
79See supra, para. 38.
80See supra, para. 39.
81United States' response to questioning at the oral hearing.
82Ibid.

52. As noted above, for my determination of the reasonable period of time, Argentina requests me
to use as "context" the fact that Argentina is a developing country Member. 83 Having regard to the
implementation process involved in this dispute, I consider that, beyond the fundamental requirement
that the implementation process should be completed in the shortest period possible within the legal
and administrative system of the United States, the "reasonable period of time" for implementation is
not affected by the fact that Argentina, as the complaining Member, is a developing country.
IV. The Award
53. In the light of what has been stated above, I determine that the "reasonable period of time" for
the United States to implement the recommendations and rulings of the DSB in this dispute is
12 months from 17 December 2004, which was the date on which the DSB adopted the Panel and
Appellate Body Reports. The reasonable period of time will therefore expire on 17 December 2005.

83See supra, para. 48.

Signed in the original at Geneva this 27th day of May 2005 by:

A.V. Ganesan
Arbitrator