UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: RECOURSE TO ARTICLE 21.5 OF THE DSU BY ARGENTINA AB-2007-1
Date: 12 April 2007
Document codes: WT/DS268/AB/RW
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

RECOURSE TO ARTICLE 21.5 OF THE DSU BY ARGENTINA

AB-2007-1

Report of the Appellate Body

APPELLATE BODY

Recourse to Article 21.5 of the DSU by Argentina

United States, Appellant/Appellee
Argentina, Other Appellant/Appellee

China, Third Participant
European Communities, Third Participant
Japan, Third Participant
Korea, Third Participant
Mexico, Third Participant
 AB-2007-1

 Present:

 Taniguchi, Presiding Member
 Janow, Member
 Unterhalter, Member

I. Introduction
1. The United States and Argentina each appeals certain issues of law and legal interpretations
developed in the Panel Report, , Recou rse to Article 21.5 of the DSU by Argentina (the
"Panel Report"). 1 The Panel was established to consider a complaint by Argentina concerning the
consistency with the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (the " Anti-Dumping Agreement ") and the Marrakesh Agreement Establishing the
 (the "WTO Agreement") of measures taken by the United States to comply
with the recommendations and rulings of the Disput e Settlement Body (the "DSB") in the original
proceedings in US – Oil Country Tubular Goods Sunset Reviews.2
2. In the original proceedings, Argentina cha llenged various aspects of United States laws,
regulations, and procedures relating to the conduc t of sunset reviews. For purposes of these
proceedings pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (the "DSU"), the relevant laws and regul ations are those relating to the waiver
of an exporter's right to participate in the re view conducted by the United States Department of

1WT/DS268/RW, 30 November 2006.
2The recommendations and rulings of the DSB resulted from the adoption on 17 December 2004, by the
DSB, of the Appellate Body Report, WT/DS268/A B/R, and the Panel Report, WT/DS268/R, in US – Oil
Country Tubular Goods Sunset Reviews. In this Report, we refer to the panel in these Article 21.5 proceedings as
the "Panel", and to the panel that considered the original complaint brought by Argentina as the "original panel"
and to its report as the "original panel report".

Commerce (the "USDOC"). At the time of the or iginal proceedings, two waiver situations were
contemplated under United States laws and regulations : (i) the so-called "affirmative waiver", where
an exporter explicitly waives its right to participate pursuant to Section 751(c)(4)(A)
3 of the United
States Tariff Act of 1930 (the "Tariff Act"); a nd (ii) the so-called "deemed waiver", where an
exporter, through silence or failure to submit a comp lete substantive response to a notice of initiation
of a sunset review by the USDOC, was "deemed" to have waived its right to participate pursuant to
Section 351.218(d)(2)(iii) of the United States Code of Federal Regulations (the "Regulations").
Argentina also challenged in the original proceedi ngs several aspects of the sunset review conducted
by the USDOC and the United States Internati onal Trade Commission (the "USITC") of the anti-
dumping duty order on oil country tubular goods ("OCTG") imported from Argentina.4
3. The following conclusions of the original panel are relevant for purposes of these Article 21.5
proceedings:
(a) In respect of waiver provisions of [United States] law:
(i) The provisions of Section 751(c)(4)(B) of the Tariff
Act relating to affirmative waivers are inconsistent
with the investigating authorities' obligation to
determine likelihood of continuation or recurrence of
dumping under Article 11.3 of the Anti-Dumping
Agreement,
(ii) The provisions of Section 351.218(d)(2)(iii) of the
USDOC's Regulations relating to deemed waivers are
inconsistent
 with the investigating authorities'
obligation to determine likelihood of continuation or
recurrence of dumping under Article 11.3 of the Anti-
Dumping Agreement,

(d) In respect of the USDOC's determinations in the OCTG
sunset review:
(i) The USDOC acted inconsistently
 with Article[] 11.3
... of the Anti-Dumping Agreement[.] 5 (original
underlining)

3Section 751 of the United States Tariff Act of 1930 is codified as Section 1675 of Title 19 of the
United States Code. See Exhibit ARG-33 submitted by Argentina to the Panel.
4Original Panel Report, para. 3.1.
5Ibid., para. 8.1.

4. On appeal, the Appellate Body upheld the orig inal panel's findings that Section 751(c)(4)(B)
of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations are inconsistent as such with
Article 11.3 of the Anti-Dumping Agreement.6 There was no appeal of the original panel's finding
that the USDOC's sunset determination on Argentine OC TG is inconsistent with Article 11.3 of the
Anti-Dumping Agreement.
5. The original panel and Appellate Body reports were adopted by the DSB on
17 December 2004.7 The "reasonable period of time" for the United States to implement
the DSB's recommendations and rulings was determined by arbitration pursuant to Article 21.3(c) of
the DSU. The Arbitrator determined a "reasona ble period of time" of 12 months, expiring on
17 December 2005.8
6. On 28 October 2005, the USDOC announced that it was amending its Regulations
relating to sunset reviews. 9 In particular, the USDOC amende d Section 351.218(d)(ii) relating to
"affirmative" waivers and repealed Section 351.218(d)(iii) relating to "deemed" waivers. 10 T h e
amendments became effective on 31 October 2005 and we re applicable to sunset reviews initiated on
or after that date. Section 751(c)(4) of the Tariff Act was not changed.
7. On 2 November 2005, the USDOC initiated Sec tion 129 proceedings to address the original
panel's and Appellate Body's findings adopted by the DSB regarding the sunset review on Argentine
OCTG. The USDOC's Section 129 Determination 11 was issued on 16 December 2005. In the
Section 129 Determination, the USDOC found that "there [was] likelihood of continuation or
recurrence of dumping had the antidumping duty or der on OCTG from Argentina been revoked in
2000, i.e., at the end of the original sunset review period."12

6Appellate Body Report, US – Oil Country Tubular Goods Sunset Review, para. 365(c)(i).
7WT/DS268/8.
8Award of the Arbitrator, US – Oil Country Tubular Goods Sunset Reviews, para. 53.
9Procedures for Conducting Five-Year ("Sunset") Reviews of Antidumping and Countervailing Duty
Orders, Final rule, United States Federal Register , Vol. 70, No. 208 (28 October 2005), pp. 62061-62064
(Exhibit ARG-12 submitted by Argentina to the Panel).
10The text of these provisions, before and af ter the amendments, as well as the text of
Section 751(c)(4)(B) of the Tariff Act, are set out infra at paras. 106-107, and footnotes 207 and 246.
11USDOC Memorandum from S. Claeys to J.A. Spetrini, "Section 129 Determination: Final Results of
Sunset Review, Oil Country Tubular Goods from Argentina", A-357-810 (16 December 2005) (Exhibit ARG-16
submitted by Argentina to the Panel).
12Section 129 Determination, supra, footnote 11, p. 11.

8. Argentina considered that the United States had failed to bring its measures into conformity
with the United States' obligations under the Anti-Dumping Agreement and the WTO Agreement
and requested that the matter be referred to a panel pursuant to Article 21.5 of the DSU. On
17 March 2006, the DSB referred the matter to the original panel. Before the Panel in these
Article 21.5 proceedings, Argentina claimed that the amendments to the USDOC's Regulations and
the Section 129 Determination failed to bring the United States into compliance with the
recommendations and rulings of the DSB, and the United States thereby continued to act
inconsistently with, inter alia, Articles 11.3 and 11.4 of the Anti-Dumping Agreement.
13
9. The Panel Report was circulated to the Members of the World Trade Organization (the
"WTO") on 30 November 2006. The following conclusi ons of the Panel are relevant for purposes of
this appeal:
(a) The United States waiver provisions under Section
751(c)(4)(B) of the Tariff Act, operating in conjunction with
Section 751(c)(4)(A) of the Tariff Act and Section
351.218(d)(2) of the Regulations, remain inconsistent with
Article 11.3 of the [Anti-Dumping] Agreement,
(b) The USDOC did not act inconsistently with Articles 11.3
and 11.4 of the [Anti-Dumping] Agreement by developing a
new factual basis for its Section 129 Determination, [and]
(c) The USDOC acted inconsistently with Article 11.3 of
the [Anti-Dumping] Agreement as the Section 129
Determination that dumping was likely to continue or recur
lacked a sufficient factual basis w ith regard to its analysis of
both (1) likely past dumping and (2) volume[.]
14 (original
emphasis)

10. The Panel concluded that, "[s]ince the origin al DSB recommendations and rulings in 2004
remain operative, [it] make[s] no new recommendation."15

13Panel Report, para. 3.1.
14Ibid., para. 8.1. In addition, the Panel concluded that the USDOC acted inconsistently with
Article 6.4 of the Anti-Dumping Agreement —because it did not give the Argentine exporters timely
opportunities to see certain information that the USDO C used in its Section 129 Determination—and with
Article 6.5.1—because the USDOC did not require a petitioner submitting confidential information to submit a
non-confidential summary thereof. ( Ibid., para. 8.1(e) and (f)) However, th e Panel rejected Argentina's claims
that the USDOC acted inconsistently with Articles 6.1, 6.2, 6.6, and 6.9 of the Anti-Dumping Agreement. (Ibid.,
15Ibid., para. 8.2. (footnote omitted)

11. Argentina made a request, pursuant to Article 19. 1 of the DSU, "that the Panel suggest that
the United States bring its measures into conform ity with its WTO obligations by revoking the anti-
dumping order at issue." 16 In response, the Panel stated that , "[i]n the circumstances of the present
proceedings, ... we see no particular reason to make such a suggestion and therefore decline
Argentina's request."17
12. On 12 January 2007, the United States notified the DSB, pursuant to Article 16.4 of the DSU,
of its intention to appeal certain issues of la w covered in the Panel Report and certain legal
interpretations developed by the Panel and filed a Notice of Appeal 18 pursuant to Rule 20 of the
Working Procedures for Appellate Review (the " Working Procedures ").19 On 19 January 2007, the
United States filed an appellant's submission. 20 On 24 January 2007, Argentina notified the DSB,
pursuant to Article 16.4 of the DSU, of its intenti on to appeal certain issues of law covered in the
Panel Report and certain legal inte rpretations developed by the Pa nel and filed a Notice of Other
Appeal 21 pursuant to Rule 23(1) and (2) of the Working Procedures. On 29 January 2007, Argentina
filed an other appellant's submission. 22 On 5 February 2007, the European Communities filed a third
participant's submission. 23 On 6 February 2007, Argentina and the United States each filed an
appellee's submission. 24 On the same day, China and Japan each filed a third participant's
submission 25, and Korea and Mexico each notified the Appella te Body Secretariat of its intention to
appear at the oral hearing and to make an oral statement.26
13. The oral hearing in this appeal was held on 19 February 2007. The participants and the third
participants presented oral arguments and respond ed to questions posed by the Members of the
Division hearing the appeal.

16Panel Report, para. 9.1.
17Ibid., para. 9.4.
18WT/DS268/19 (attached as Annex I to this Report).
19WT/AB/WP/5, 4 January 2005.
20Pursuant to Rule 21 of the Working Procedures.
21WT/DS268/20 (attached as Annex II to this Report).
22Pursuant to Rule 23(3) of the Working Procedures.
23Pursuant to Rule 24(1) of the Working Procedures.
24Pursuant to Rules 22 and 23(4) of the Working Procedures.
25Pursuant to Rule 24(1) of the Working Procedures.
26Pursuant to Rule 24(2) of the Working Procedures.

II. Arguments of the Participants and the Third Participants
A. Claims of Error by the United States – Appellant
1. Amended Waiver Provisions

14. The United States requests that the Appellate Body reverse the Panel's finding that
Section 751(c)(4)(B) of the Tariff Act, operating in conjunction with Section 751(c)(4)(A) of the
Tariff Act and Section 351.218(d)(2) of the Regul ations (collectively, the "amended waiver
provisions") are inconsistent with Article 11.3 of the Anti-Dumping Agreement. The United States
makes three claims in this regard: (i) that th e Panel committed a legal error when it considered
whether Section 751(c)(4)(B) of the Tariff Act could breach Article 11.3 of the Anti-Dumping
Agreement, rather than considering whether the statute mandates a breach; (ii) that the Panel
inappropriately shifted from Argentina to the Un ited States the burden of providing arguments and
evidence; and (iii) that the Panel failed to make an objective assessment of the matter, as required by
Article 11 of the DSU.
(a) The Panel's Approach to Examining the Consistency of the Amended
Waiver Provisions with Article 11.3 of the Anti-Dumping Agreement
15. The United States asserts that the Panel correctly stated that its task was to consider whether
Section 751(c)(4)(B) of the Tariff Act precludes the US DOC from making, in some or all situations, a
reasoned determination of likeli hood of continuation or recurrence of dumping if the order were
revoked, as required under Article 11.3 of the Anti-Dumping Agreement. According to the United
States, the Panel's formulation of its task in th is way amounted to "a variation on the classic
mandatory/discretionary distinction used in de termining whether a statutory provision 'as such'
breaches a particular WTO obligation."27
16. According to the United States, the Panel set out the proper test and then failed to apply it.
The United States explains that the Panel correctly noted that, under United States law, determinations
of likelihood of dumping for purposes of sunset reviews are conducted on an order-wide basis. 28 An
individual respondent company may elect to waive participation in a sunset review, pursuant to
Section 751(c)(4)(A) of the Tariff Act, with the eff ect that an affirmative finding of likelihood of

27United States' appellant's submission, para. 9 (referring to Appellate Body Report, US – Section 211
Appropriations Act, para. 259, in turn referring to Appellate Body Report, US – 1916 Act , para. 88, and GATT
Panel Report, US – Tobacco, para. 118). According to the United Stat es, the effect of the finding in the GATT
Panel Report in US – Tobacco is that, in order for a statute to be WTO-consistent, it "need not unambiguously
require a WTO-consistent result"; rather, it need only "permit" one. (United States' appellant's submission,
para. 13)
28Ibid., para. 11 (referring to Panel Report, paras. 7.37-7.38).

dumping will be made for that company under Secti on 751(c)(4)(B). Section 351.218(d)(2)(ii) of the
Regulations provides that the election not to particip ate in the sunset review must be effectuated by
filing a "statement of waiver", which must now in clude a statement that the respondent interested
party is likely to dump if the order were revoked or the investigation were terminated.
17. The United States asserts that the Panel ultimately concluded that the "USDOC 'will have to
find likelihood [of dumping] on an order-wide basis if one exporter waives its right to participate'" 29,
notwithstanding the United States' explanation that this was not a result required under United States
law. The United States argues that the Panel di d not examine whether Section 751(c)(4)(B) precludes
a reasoned and adequate order-w ide determination consistent with Article 11.3 of the Anti-Dumping
Agreement but, rather, the Panel "examined just the opposite" 30, namely, whether there were any
provisions of United States law that preclude Sec tion 751(c)(4)(B) from requiring an affirmative
order-wide determination where one respondent compan y waives its right to participate. The Panel
thereby misdirected itself and revers ed the standard enunciated in US – Tobacco , making it
incumbent on the United States to show that the provi sions of United States law definitively foreclose
any opportunity that order-wide determinati ons might be affected by company-specific
determinations, and that United States law establishes that these two determinations are
"independent".31
18. The United States argues further that, on the b asis of the mandatory/discretionary standard,
the Panel's factual recognition that "[t]here is no provision under [United States] law, statutory or
otherwise ..., that determines the outcome of the US DOC's order-wide sunset determinations" should
have obliged the Panel to find that Sec tion 751(c)(4)(B) did not breach Article 11.3. 32 According to
the United States, if there is nothing in United St ates law requiring the USDOC to reach a particular
outcome in its order-wide sunset determinations, then, by definition, Section 751(c)(4)(B) neither
precludes, nor requires, a particular result in orde r-wide determinations. The United States criticizes
the Panel for, instead, concluding on this factual basis that Section 751(c)(4)(B) of the Tariff Act did
breach Article 11.3 of the Anti-Dumping Agreement and for, in the process, rejecting the United
States' explanation that, in making its affirma tive order-wide determinations, the USDOC does not
rely only on a company-specific finding pursuant to Section 751(c)(4)(B) but, rather, on all the
evidence on the record.33

30Ibid., para. 11.
33Ibid., para. 12.

(b) Burden of Proof
19. The United States claims that the Panel relieved Argentina of its burden to provide arguments
and evidence establishing that the amended waiver provi sions are inconsistent with Article 11.3 of the
Anti-Dumping Agreement. According to the United States, the Panel relied on "pure speculation" in
finding that the USDOC "will" have to find likelih ood of dumping on an order-wide basis if one
company waives its right to participate.
34 Specifically, the United States cites as "speculative" various
statements in which the Panel suggested that co mpany-specific determinations of likelihood of
dumping made pursuant to Section 751(c)(4)(B) of th e Tariff Act have a determinative impact on the
order-wide determination.35 The United States also questions the basis of the Panel's statement that
the USDOC would not consider evidence submitted by exporters who do not waive their right to
participate in the USDOC's sunset review investigation. 36 According to the United States, the Panel's
reasoning in arriving at these conclusions is "not logical" and "does not hold up on its face". 37
Further, the United States argues that the Panel fa iled to support its "speculations" with factual
evidence, which in any event would have been im possible since Argentina had never even made the
arguments apparently relied on by the Panel. 38 The United States contends that the Panel thereby
erroneously shifted the burden of proof to the United States to disprove "unproven assertions".39
20. The United States recalls that the burden of proof was on Argentina to demonstrate that the
statute could not be applied in a manner consiste nt with Article 11.3. Instead, the Panel wrongly
considered that it was for the United States to illust rate that, under United States law, order-wide and
company-specific determinations of likelihood of dumping are independent of each other, and
therefore that United States laws could not be applie d in a manner inconsistent with Article 11.3. The
United States claims that, although Argentina's ar gument was that the USDOC's alleged lack of
discretion in making an affirmative determination about a company waiving participation "tainted" the
order-wide determination, the Panel did not address this argument. 40 Rather, according to the United
States, the Panel focused on its own conclusion th at Section 751(c)(4)(B) of the Tariff Act requires
that an affirmative company-specific determinati on of likelihood of dumping result in an affirmative
order-wide determination without regard to the evidence relating to other companies that do not waive

35Ibid. (referring to Panel Report, paras. 7.37 and 7.39).
37Ibid., para. 14.
38Ibid., para. 15.
39Ibid., paras. 15 and 22.
40Ibid., paras. 19-21 (referring to Argentina's response to Question 7 posed by the Panel, Panel Report,
p. E-7, para. 20).

participation.41 The United States argues that this line of argument was neither asserted, nor proven,
by Argentina.
(c) Objective Assessment of the Matter under Article 11 of the DSU
21. The United States claims that the Panel failed to make an objective assessment of the matter
as required under Article 11 of the DSU. The Un ited States recalls the Panel's finding that
Section 751(c)(4)(B) of the Tariff Act and Section 3 51.218(d)(2) of the Regulations are inconsistent
as such with Article 11.3 of the Anti-Dumping Agreement.42 Bearing in mind the jurisprudence of the
Appellate Body that the starting point for consider ing "as such" claims is always the text of the
municipal law in question 43, the United States argues that the Panel was first required to analyze
whether the statute and Regulations require, for purposes of United States municipal law, the USDOC
to make an affirmative order-wide determination, without considering other probative evidence that
might be relevant to that determination. Accord ing to the United States, the Panel should have made
this determination based on an examination of the regulatory and statutory text as well as the evidence
proffered by the parties.
22. The United States recalls that Argentina had argued simply that the United States was
required to repeal Section 751(c)(4)(B) of the Tariff Act, because the statute continues to mandate a
finding of likelihood of dumping at the company-spec ific level, which would "taint" the order-wide
determination and would therefore be in consistent with Article 11.3 of the Anti-Dumping Agreement.
However, according to the United States, the recomme ndations and rulings of the DSB in this case do
not prohibit statutorily-mandated findings of likelihood of future dumping per se; rather, they do not
permit statutorily-mandated findings based on assumptions. The United States argues that Argentina
failed to provide evidence—either based on the text of the statute, its applica tion, or otherwise—that
Section 751(c)(4)(B) requires a determination based on an assumption.
23. Further, the United States argues that the Pa nel breached Article 11 of the DSU because it
engaged in its own analysis based on facts not argu ed by Argentina and not on the record. In so
doing, the United States contends, "[t]he Panel disr egarded the evidence before it and made findings
that lacked a basis in the ... panel record."
44 The United States explains that the factual evidence did
not show that the text of the statute mandates a WT O-inconsistent order-wide finding of likelihood of
dumping, and that the Panel did not refer to other evidence establishing the meaning of the statute.

43Ibid., paras. 25-26 (referring to Appellate Body Report, US – Carbon Steel, para. 157; and Appellate
Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 168).
44Ibid., para. 34.

The Panel could not have done so because the amende d provisions have never been applied. Further,
the factual finding that the Panel did make—that is , that no provision of United States law determines
the outcome of the USDOC's order-wide determination
45—is irreconcilable with the Panel's own
conclusion that "the USDOC may have to find likelihood on an order-wide basis because of the
company-specific determinations that it may have made under Section 751(c)(4)(B)".46
24. According to the United States, the Panel breached further Article 11 of the DSU by
disregarding evidence that contradicted its ultimate conclusion that the statute is inconsistent with
Article 11.3 of the Anti-Dumping Agreement. The United States emphasizes that the USDOC makes
the order-wide determination on the basis of all the evidence before it—which would include, but is
not limited to, the company-specific determination. The USDOC specifically included a statement
explaining that it would proceed in this manne r in the preamble to its amended regulation. 47
According to the United States, the import of this "uncontradicted evidence" was that,
notwithstanding a company's statement that it is likely to dump, none of the statutory or regulatory
waiver provisions prevent the USDOC from making a determination that dumping is not likely if
there is countervailing evidence to that effect.
48
25. For these reasons, the United States requests th e Appellate Body to reverse the Panel's
findings that the amended waiver provisions are inconsistent with Article 11.3 of the Anti-Dumping
Agreement.
2. The USDOC's Finding on Import Volumes
26. The United States requests the Appellate Body to reverse the Panel's finding that the volume
analysis on which the USDOC had partly based its first sunset review determination in 2000, and
which it incorporated by reference and in an uncha nged form into the Section 129 Determination, was
properly before it. Specifically, the United Stat es challenges the Panel's finding that the volume
analysis was part of the "measure taken to comply" under Article 21.5 of the DSU.
27. In its original sunset review determination, the USDOC based its affirmative likelihood-of-
dumping determination on two factual bases: first, that dumping had conti nued over the life of the
anti-dumping duty order; and second, that import vol umes had declined after the imposition of the
order. The United States recalls that the original pa nel found that the factual basis of the first finding

47Ibid., para. 31 (referring to United States' response to Question 3 posed by the Panel, Panel Report,
p. E-57, para. 11).
48Ibid., para. 32.

by the USDOC—that is, that dumping had contin ued over the life of the anti-dumping duty order—
was "flawed". 49 The United States notes that the original panel exercised judicial economy with
respect to the second factual finding of the USDOC, that is, that import volumes had declined after the
imposition of the order. According to the United St ates, in conducting its Section 129 Determination,
the USDOC complied with the recommendations and ru lings of the DSB with respect to the first
factual basis. However, as the recommendations and rulings identified no error concerning the
volume analysis, the USDOC could not "fix any such unidentified flaws, nor did [the]
recommendations and rulings oblige [the USDOC] ... to do so".50
28. The United States challenges the Panel's finding that "[t]he fact that a panel, in an original
dispute settlement proceeding, did not make fi ndings ... cannot preclude a compliance panel ... from
reviewing those aspects which ha ve been incorporated ... in the measure taken to comply." 51
According to the United States, the Appellate Body has noted that the starting point for identifying
"measures taken to comply" is the r ecommendations and rulings of the DSB. 52 Since no DSB
recommendations or rulings were made specific to the USDOC's original volume analysis, it could
not have been within the scope of these complianc e proceedings. Instead of starting with the DSB's
recommendations and rulings, the United States contends, the Panel began with the wrong assumption
that the Section 129 Determination as a whole was th e measure taken to comply, then found that the
volume analysis was an "integral" part of it, a nd therefore concluded that the volume analysis was
within its terms of reference and the scope of the measure taken to comply.53
29. The United States refers to the Appellate Body's holding in EC – Bed Linen (Article 21.5 –
India) that, because the recommendations and rulings of the DSB did not require the European
Communities to redo its "other factors" analysis in order to bring its measure into compliance, that
aspect of the re-determination was beyond the scope of those Article 21.5 proceedings. The United
States asserts that, in these proceedings, the Panel' s discussion of the Appellate Body's reasoning in
EC – Bed Linen (Article 21.5 – India) supports the conclusion that the volume analysis was not part
of the measure taken to comply. 54 The United States notes that, a ccording to the Panel, that case
stands for the proposition that, in some instances, pa rts of a re-determination that merely incorporate
elements of the original determination do not au tomatically become an inseparable part of the

50Ibid.
52Ibid., para. 40.
53Ibid., paras. 39-40 (referring to Panel Report, paras. 7.91-7.92).
54Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 93
and 96).

measure taken to comply.
55 The United States notes, in this regard, that the volume analysis was not
affected by the revised dumping analysis.
30. The United States also challenges the Panel' s assessment that the present dispute is
"distinguishable" from EC – Bed Linen (Article 21.5 – India) . According to the United States, if
there is a distinction, it is not "legally significant". 56 In that dispute, as well as in US – Shrimp
(Article 21.5 – Malaysia) , the important consideration was that , regardless of the reason for the
absence of a DSB recommendation or ruling in the original proceedings, the complainant should not
be afforded a "second chance" in compliance proceedings to obtain a finding that it could not secure
in the original proceedings.57 The United States recalls that, in EC – Bed Linen (Article 21.5 – India),
the Appellate Body rejected India's claim on the basis that "an unappealed finding included in a
panel report that is adopted by the DSB must be treated as a final resolution to a dispute between
the parties in respect of the particular claim and the specific component of a measure that is the
subject of that claim." 58 According to the United States, the important consideration is the finality of
the unappealed findings, which is e qually applicable to this case becau se the original panel exercised
judicial economy and Argentina accepted the original panel's finding on the volume analysis. 59
Although Argentina had asked the original panel to make factual findings, it never appealed the
exercise of judicial economy in the original pr oceedings, but waited until the compliance proceedings
to challenge the volume analysis.60
31. The United States asserts further that the con sequences of the original panel's exercise of
judicial economy, and Argentina's failure to app eal it, should not fall entirely on the respondent. 61
Such an approach would "collapse" the textually distinct requirements of compliance proceedings and
original proceedings, and would a llow panels and complaining parties to "undo" choices that they
made in original proceedings. 62 Under the Panel's approach, a respondent that had not changed an
aspect of its measure because it was not subject to the DSB recommendations and rulings would learn
for the first time at the compliance stage that certa in aspects of its measures were WTO-inconsistent,

56Ibid., para. 47.
57Ibid. (quoting Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 96).
58Ibid., para. 43 (quoting Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 93
(original emphasis)).
59United States' statement at the oral hearing.
60United States' appellant's submission, para. 48 (referring to Original Panel Report, para. 6.11).
61The United States agrees with a st atement of the recent panel in Chile – Price Band System
(Article 21.5 – Argentina) that cautions against permitting compla ining parties to "misuse ... the special
expedited procedures contemplated in Article 21.5 of the DSU" at the expense of the respondent. (Ibid., para. 48
(quoting Panel Report, Chile – Price Band System (Article 21.5 – Argentina), para. 7.142))
62Ibid., paras. 36 and 50.

and, therefore, the respondent would not have a "r easonable period of time" to bring its measure into
compliance. Unlike the respondent that is e xposed to suspension of concessions without a
"reasonable period of time" to bring its measur e into compliance, the complainant suffers no
"comparable disadvantage" given that it can always bring a new dispute.63
32. The United States submits that another "troubling aspect" of the Panel's reasoning is that, in
cases where the original panel declines to make fi ndings on a particular aspect of a measure, the
respondent would be required "to guess that the panel might have thought there were WTO
inconsistencies" with respect to that aspect of the measure.64 This would "strip" the complainant of its
obligation to make its case in the original proceedi ngs and the panel of its obligation to comply with
Article 11 of the DSU, which requires panels to make findings that assist the DSB in making
recommendations and rulings under the covered agreements.65
33. For these reasons, the United States requests the Appellate Body to reverse the Panel's
finding that the volume analysis was properly befo re it and, consequently, to declare the Panel's
finding, that the volume analysis is in consistent with Article 11.3 of the Anti-Dumping Agreement, to
be "moot and of no legal effect".66
B. Arguments of Argentina – Appellee
1. Amended Waiver Provisions
34. Argentina requests the Appellate Body to reject all of the United States' claims of error
regarding the Panel's assessment of the amended waiver provisions. Argentina contends that the
United States' arguments are based on a misunde rstanding of the findings of the panel and the
Appellate Body in the original proceedings.
(a) The Panel's Approach to Examining the Consistency of the Amended
Waiver Provisions with Article 11.3 of the Anti-Dumping Agreement
35. In response to the United States' argument that Section 751(c)(4)(B) of the Tariff Act does not
mandate a breach of Article 11.3 of the Anti-Dumping Agreement, Argentina argues that the United
States "confuses the issue". 67 For Argentina, the issue is not whether the amended waiver provisions

63United States' appellant's submission, para. 48 (referring to Panel Report, Chile – Price Band System
(Article 21.5 – Argentina), para. 7.153).
64Ibid., para. 49. (original emphasis)
65Ibid.
66Ibid., para. 51.
67Argentina's appellee's submission, paras. 26-27 (referring to United States' appellant's submission,
para. 12).

mandate an affirmative determinati on on an order-wide basis; rather, as considered by the panel and
the Appellate Body in the original proceedings , as well as by the Panel in these Article 21.5
proceedings, the issue is whether the operation of the amended waiver provisions prevents the
USDOC from reaching a reasoned determination based on all the evidence with respect to a company
waiving participation in the sunset review. Argentina recalls that, in the original proceedings, the
Appellate Body found that Section 751(c)(4)(B) was inconsistent with Article 11.3 because it
mandated the USDOC to find that a waiving company is likely to dump, which in turn meant that the
order-wide determination would be based, "a t least in part, on statutorily-mandated assumptions
about a company's likelihood of dumping".
68 According to the Appellate Body, this order-wide result
was inconsistent with the obligation of an investigating authority to arrive at a reasoned conclusion on
the basis of "positive evidence". 69 Given that Section 751(c)(4)(B) has not been amended, the WTO-
inconsistent aspects of the waiver provisions remain in place and nothing has been done by the United
States to address the source of the violation; Section 751(c)(4)(B) continues to mandate an
affirmative finding for a company that waives partic ipation. Argentina explains that the statute
divests the USDOC of discretion to weigh other ev idence as to a company's likelihood to dump and
therefore prevents the USDOC from arriving at a re asoned conclusion. Argentina contends further
that, "even assuming arguendo that an admission of likely dumping constitutes positive evidence,
the USDOC is still required to conduct a 'review' a nd to make a 'determination' that dumping would
be likely/probable in the event of termination of the duty. ... That determination cannot rest on
'assumptions' based on a statutorily-mandated finding of likelihood and remain consistent with the
requirements of Article 11.3." 70 The fact that the statutory mandate is now triggered by a statement
from the waiving exporter that it is likely to dump does not change the nature of the violation of
Article 11.3.
36. Moreover, Argentina asserts that the USDOC continues to take into account company-
specific likelihood-of-dumping determinations wh en making an order-wide likelihood-of-dumping
determination. Argentina notes that the Appellate Body found in the original proceedings that, even
assuming that the USDOC took into account the totalit y of record evidence in making its order-wide
determination, as a result of the operation of the waiver provisions, certain order-wide likelihood-of-
dumping determinations made by the USDOC would be based on statutorily-mandated assumptions

68Argentina's appellee's submission, para. 16 (quoting Appellate Body Report, US – Oil Country
Tubular Goods Sunset Reviews, para. 234). (original emphasis)
69Ibid., para. 16 (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
para. 234).
70Ibid., para. 20.

about a company's likelihood of dumping. 71 This finding confirms that a company-specific
determination need not determine, or necessarily resu lt in, an affirmative order-wide determination in
order for the latter to be inconsistent with Article 11.3; rather, the company-specific determination
need only to be taken into account in the order-wide determination.
37. Argentina submits that the United States' reliance on the GATT Panel Report in US –
Tobacco for the proposition that "a statute need not ... require a WTO-consistent result, but only that
it permit a WTO-consistent result", in fact reinforc es Argentina's argument of inconsistency, because
it is the unchanged statutory mandate (irrespective of the fact that it is now triggered by an admission)
that gives rise to the WTO-inconsistency. 72 Argentina contends that the Panel in this case correctly
found that the amended waiver provisions continue to mandate a particular company-specific
determination that affects the order-wide determination.
73 Argentina also argues that the United
States has failed to provide any rebuttal to Arge ntina's submission that, once a company waives
participation in the USDOC stage of the sunset re view, the USDOC must, pursuant to the statutory
mandate, make an affirmative determination with respect to that company.
38. Argentina asserts that the Panel correctly held that the amended waiver provisions "do", and
not simply "could", violate Article 11.3 of the Anti-Dumping Agreement.74 In this regard, Argentina
notes that the United States admits that the Panel set forth for itself the correct test of whether
Section 751(c)(4)(B) precludes the USDOC from making a reasoned determination based on an
adequate factual foundation. Argentina argues that , even after the modification of the Regulations,
the statute continues to require statutorily-mandated affirmative findings for a company that elects to
waive participation in the sunset review, regardless of the other evidence on the record, which in turn
affects the order-wide determination. Argentina also contends that the Appellate Body has made it
clear that, contrary to the United States' assertion, the mandatory/discretionary test is not dispositive
and that its relevance may vary from case to case.
75 Moreover, the Panel recognized that, in some
circumstances, Section 751(c)(4)(B) prevents an objective assessment of the admission made by the

71Argentina's appellee's submission, para. 36 (referring to Appellate Body Report, US – Oil Country
73Argentina's statement at the oral hearing.
74Argentina submits that the United States' focus on whether the amended waiver provisions "could" or
"do" violate Article 11.3 suggests that the United States does not believe that the application of the new
provisions could actually be in breach unless they had been applied. Argentina argues, however, that, especially
in the context of compliance proceedings, it is no defence to an "as such" claim that a new provision has not as
yet been applied in the context of an "as applied" ch allenge. (Argentina's appellee's submission, footnote 38 to
para. 35)
75Ibid., footnote 38 to para. 35 (referring to Appellate Body Report, US – Corrosion-Resistant Steel
Sunset Review, para. 93; and Appellate Body Report, US – Zeroing (Japan), para. 211).

waiving company. According to Argentina, the United States has not asserted that this statement is
incorrect, so there is no basis for the United States' cl aim that the Panel failed to satisfy its own test of
WTO-consistency.
(b) Burden of Proof
39. Argentina rejects the United States' argument th at the Panel reversed the burden of proof.
Argentina submits that it properly identified the rele vant text of the statutory and regulatory waiver
provisions, noted that Section 751(c)(4)(B) had neith er been repealed nor amended, and demonstrated
that the amendment of the Regulations di d not eliminate the WTO-inconsistency of
Section 751(c)(4)(B) of the Tariff Act. Acco rding to Argentina, it had established a prima facie
case, based on the text of the amended waiver pr ovisions, that the operation of Section 751(c)(4)(B)
prevents the USDOC from basing its likelihood-of- dumping determination on anything other than the
statutory mandate.
40. Argentina also dismisses the United States' sugg estion that the Panel's approach was entirely
different from the approach taken by Argentina in its arguments.
76 According to Argentina, the Panel
recognized that the operation of Section 751(c)(4)(B) prevents an analysis of all the evidence with
respect to the company waiving participation and therefore found that the order-wide determination
remained inconsistent with Article 11.3.77 Argentina also disagrees with the United States' contention
that the Panel shifted the burden to the United Stat es to disprove an allegation that Argentina had
never proven, namely, that an affirmative compan y-specific determination would necessarily lead to
an affirmative order-wide determination. 78 This was not Argentina's argument, nor was it the
argument on which the Panel based its finding.
(c) Objective Assessment of the Matter under Article 11 of the DSU
41. Argentina contends that the Panel met its oblig ations under Article 11 of the DSU to make an
objective assessment of the matter before it. As required under that provision, the Panel neither
distorted nor disregarded any evidence on the issues presented to it.
42. Argentina recalls the United States' argument th at the Panel should have examined whether
the text of the amended waiver provisions, as well as evidence establishing the meaning of the
provisions, require an affirmative order-wide dete rmination whenever there is a company-specific

76Argentina's appellee's submission, para. 44 (referring to United States' appellant's submission,
para. 19).

waiver.79 Argentina contends, however, that this wa s not the proper "test" to resolve the issue 80;
rather, as the United States agrees, the issue was whether there was ev idence that the amended waiver
provisions preclude the USDOC in some or all s ituations from making a reasoned conclusion based
on an adequate factual foundation. Indeed, the Panel clearly did find that the amended waiver
provisions precluded the USDOC from making such a reasoned determination. 81 Argentina also
rejects the United States' assertion that the Panel did not base its "as such" finding on the text of the
statute or on the arguments of the parties. Argen tina notes that the Panel examined the text of the
statute in the light of the Statement of Administrative Action 82 and the relevant provisions of the
Regulations, and that the Panel's finding was based on the United States' acknowledgment of the role
and importance of company-specific findings for order-wide determinations. 83 Argentina furthermore
points out that the United States did not direct the Panel's attention to any provision of United States
law supporting the proposition that the company- specific and order-wide determinations are
independent of each other.84
2. The USDOC's Finding on Import Volumes
43. Argentina requests the Appellate Body to rej ect the United States' appeal of the Panel's
finding that the USDOC's volume analysis was part of the "measure taken to comply". Argentina
notes that it is uncontested that the USDOC relied on the analysis of the decline in import volumes in
its Section 129 Determination.85
44. Argentina argues that WTO jurisprudence do es not support the United States' reading of
Article 21.5 of the DSU but, rather, suggests that the "measures taken to comply" must be considered
in their "totality".
86 Further, Argentina argues that the Unite d States misinterprets and misapplies the
Appellate Body decision in EC – Bed Linen (Article 21.5 – India) . According to Argentina, the
Appellate Body's findings regarding the final resolu tion of an issue between the parties, for purposes

79Argentina's appellee's submission, para. 60 (referring to United States' appellant's submission,
para. 34).
80Ibid., para. 63.
82Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316
(1994), reprinted in 1994 USCAAN 3773, 4040 (Exhibit ARG-31 submitted by Argentina to the Panel).
83Argentina's appellee's submission, para. 65 (referring to Panel Report, paras. 7.37 and 7.39).
85Ibid., para. 73 (referring to Section 129 Determination, supra, footnote 11, pp. 1, 6, and 11; and
Panel Report, paras. 7.89-7.90).
86Ibid., paras. 75-77 (referring to Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) ,
para. 41; Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 87; and Appellate Body Report,
US – Softwood Lumber VI (Article 21.5 – Canada), para. 102).

of Article 21.5 proceedings, do not apply to situations where a panel has exercised judicial economy.
87
Argentina asserts that the United States omits the "s ingle most relevant" passage relating to judicial
economy for the purposes of the present app eal and misrepresents the ruling in EC – Bed Linen
(Article 21.5 – India) .88 According to Argentina, in this di spute, the original panel's exercise of
judicial economy afforded Argentina only a partial resolution of the matter at issue, and Argentina
should not be penalized for the original panel's false exercise of judicial economy.
45. Moreover, Argentina submits that the United States cannot "unilaterally" determine what
constitutes a "measure taken to comply" fo r purposes of Article 21.5 of the DSU. 89 According to
Argentina, if the United States' assertion were to prevail, a compliance panel's ability to examine the
WTO-consistency of compliance measures would be undermined. 90 In this case, it is not possible to
exclude from the Panel's terms of reference either of the two grounds on which the USDOC based its
Section 129 Determination. In addition, Argentina points out that its request for the establishment of
a panel "specifically identified" both the Sec tion 129 Determination and the finding on import
volumes relied upon by the USDOC. 91 Argentina asserts that the "nexus-based" test, which provides
that measures "inextricably linked to" or "clearly co nnected to" the steps taken by the respondent to
implement the recommendations and rulings of the DSB also constitute "measures taken to
comply" 92, should apply to this dispute because: (i) the Section 129 Determination was made in order
to implement the recommendations and rulings of the DSB in the or iginal proceedings; (ii) the
USDOC's volume analysis formed an integral part of the Section 129 Determination; and (iii) the
USDOC based its likelihood-of-dumping determination specifically on the volume analysis.93
46. Finally, Argentina contends that the United States' claims of procedural unfairness are
misplaced. The United States' contention that a resp ondent is deprived of notice when learning of the
WTO-inconsistency of an aspect of its measure fo r the first time at the compliance stage ignores the

88Ibid., para. 82 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 - India) , footnote
115 to para. 96, which reads in part:
We believe that in a situation where a panel, in declining to rule on a certain
claim, has provided only a partial resolution of the matter at issue, a
complainant should not be held responsible for the panel's false exercise of
judicial economy, such that a compla inant would not be prevented from
raising the claim in a subsequent proceeding.)
89Ibid., subheading III.B.3, p. 27.
90Ibid., para. 92.
91Ibid., para. 93.
92Ibid., paras. 94-96 (referring to Panel Report, Australia – Automotive Leather II (Article 21.5 – US) ,
para. 6.5; Panel Report, Australia – Salmon (Article 21.5 – Canada), para. 7.10, subparagraph 22; and Appellate
Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), paras. 78-79).
93Ibid., para. 96.

Appellate Body's ruling that a measure taken to comply will be assessed for WTO-consistency in its
totality, and not only from the perspective of the cl aims, arguments, and factual circumstances related
to the original measure; otherwise, the utility of the Article 21.5 review would be undermined. 94
Argentina asserts that the United States' approach of immunizing certain aspects of measures taken to
comply from Article 21.5 proceedings has been rejected previously by the panel in EC – Bananas III
(Article 21.5 – Ecuador).
95 Argentina rejects the notion that suspension of concessions resulting from
a finding of inconsistency regardi ng an unchanged aspect of an original measure would be a "drastic"
result, because this is the situation contemplated under Article 22.6 of the DSU, regardless of whether
the measure is a modified version of an old measure or an entirely new one. 96 Furthermore, contrary
to the United States' assertion that it would have to "guess" about a possible claim of inconsistency
regarding the volume analysis, the United States c ould have readily anticipated a claim in the
Article 21.5 proceedings because the exact same volum e analysis had been contested in the original
proceedings, and Argentina had made a specific requ est for findings by the original panel in the
interim review stage.97
C. Claims of Error by Argentina – Other Appellant
1. New Evidentiary Basis
(a) Interpretation and Application of Articles 11.3 and 11.4 of the
Anti-Dumping Agreement
47. Argentina requests the Appellate Body to re verse the Panel's finding that the USDOC was
permitted to develop a new evidentiary basis for it s Section 129 Determination. Argentina claims
that, by failing to consider properly the temporal li mitations contained in Articles 11.3 and 11.4 of the
Anti-Dumping Agreement , the Panel committed a legal error in interpreting and applying those
provisions. Further, Argentina asserts that the Pane l's reliance on "broader, horizontal considerations
underpinning the operation of the WTO dispute settle ment system" led to an incorrect interpretation
of the substantive requirements of Articles 11.3 and 11.4.98

94Argentina's appellee's submission, para. 98 (referring to Appellate Body Report, Canada – Aircraft
(Article 21.5 – Brazil), para. 41).
95Ibid., para. 98 (referring to Panel Report, EC – Bananas III (Article 21.5 – Ecuador) , paras. 6.3
and 6.9-6.10).
96Ibid., para. 99.
98Argentina's other appellant's submission, para. 45 (quoting Panel Report, para. 7.51 (footnote
omitted)).

48. Argentina notes that, in making the Section 129 Determination, the USDOC developed a
new evidentiary basis to support its likelihood-of-dumping determination.
99 This was not merely a
clarification of the information developed in the 2000 sunset review. Further, the "undisputed" factual
record clearly shows that the new information, wh ich could have been developed in 2000, was used
by the USDOC in 2005 to advance a "new theory" for making its likelihood-of-dumping
determination.
100 According to Argentina, allowing th e USDOC to continue applying the anti-
dumping duty when it did not develop sufficient positive evidence at the time of the initial review in
2000 is inconsistent with Articles 11.3 and 11.4.
49. Argentina observes that, under the terms of Article 11.3, the "determination" of likelihood of
future dumping has to occur in a review initiated no later than five years after the imposition of the
anti-dumping duty. Moreover, Article 11.3 requires th at an investigating authority exercise diligence
and rigour in carrying out its investigatory and ad judicatory functions and reach reasoned conclusions
on the basis of information gathered as part of a process of reconsideration and examination. 101
Further, under Article 11.4, an anti-dumping duty ma y continue during the course of a sunset review,
but only as a "further exception" to the requirement to terminate the measure at the expiry of the five-
year period. It is permitted only because the investig ating authority is required in a sunset review to
develop—diligently and actively—the necessary ev identiary basis for its likelihood-of-dumping
determination.102 Therefore, Argentina argues, Articles 11. 3 and 11.4 establish that the evidentiary
basis for continuing an anti-dumping duty beyond the presumptive expiration date of five years must
be developed at the time of the original sunset review.103

99Argentina's other appellant's submission, para 24. Argentina lists the following as constituting the
"new evidentiary basis" of the Section 129 Determination:
... financial statements for the Arge ntine producers for the period 1995-
2000; cost information for ten categories of OCTG products; a description
of each company's sales and marketing processes; a statement as to whether
the company exported OCTG to the Un ited States during the 1995-2000
period; confidential import statistics from the [United States] Customs and
Border Protection authorities ...; ob served OCTG selling prices in the
[United States] market during the 1995-2000 period from an industry
publication; financial statements of [United States] producers; and data
from Argentine export statistics.
(Ibid. (referring to Panel Report, paras. 7.48-7.49; Argentina's first written submission to the Panel, Panel
Report, pp. A-16 to A-18, paras. 52-67; and Argentin a's second written submission to the Panel, Panel Report,
pp. C-5 to C-7, paras. 8-18))
100Ibid., paras. 26-27.
101Ibid., paras. 13-14 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset
Review, para. 111).
102Ibid., para. 29 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 113).
103Ibid., para. 29.

50. Argentina submits that, having chosen not to de velop the evidentiary basis during the sunset
review in 2000, the USDOC did not and could not meet the conditions for invoking the "exception" in
Article 11.3 and therefore for continuing the anti-du mping duty order. Argentina explains that, in
some cases, the nature of a violation has conse quences for the manner in which a Member can bring
itself into compliance with DSB recommendations a nd rulings, which may in turn mean that it has
fewer options to achieve compliance. To illustrate its point, Argentina offers a hypothetical situation
in which a Member seeking to continue an anti- dumping duty order conducts no review at all and
simply fails to terminate its measure after five ye ars. Argentina submits that, in such a case, a
Member would be precluded from bringing its measur e into compliance by initiating a review for the
first time after the measure was found by a WTO panel or the Appellate Body to be in violation.
51. Argentina asserts that, had the USDOC exerci sed sufficient diligence and established a
sufficient evidentiary basis for its 2000 sunset revi ew determination but faile d to explain adequately
its decision, the USDOC might have been able to bring itself into compliance in 2005 by clarifying
the information collected in 2000 or by further explaining its action. However, as this did not happen,
the United States could not bring itself into compliance "without negating the rights and obligations
established in Articles 11.3 and 11.4".
104 Argentina objects to the Panel's suggestion that, as long as
the USDOC eventually complies with its obligation to be "ac tive" in conducting its sunset reviews
and eventually develops an evidentiary basis that contai ns more than an unsubstantiated inference,
the USDOC complies with the obligations under Articles 11.3 and 11.4.105
52. Argentina also submits that the Panel ignored th e requirements of Article 3.2 of the DSU and
the customary international rules of treaty interpreta tion when it subordinated the interpretation of the
text of Articles 11.3 and 11.4 to the "broader, hor izontal considerations underpinning the operation of
the WTO dispute settlement system" 106 and to "vague and undefined overarching principles of the
DSU".107 Argentina argues that the Panel's reliance on these broad considerations led to an incorrect
interpretation of the substantive obligations unde r Articles 11.3 and 11.4. The Panel should have
examined the ordinary meaning of key term s in those provisions, such as "review" and
"determination", and given meaning to those Arti cles through a contextual analysis of the other
paragraphs of Article 11. 108 Instead, in Argentina's view, the Pane l's analysis came "full circle", and
ended where it started, because it dismissed Argen tina's claim that the United States was precluded

104Argentina's other appellant's submission, para. 34.
105Ibid., para. 37.
108Ibid., paras. 46-47.

from using new facts on the basis that this woul d run counter to the overall operation of the WTO
dispute settlement system.
109
(b) Objective Assessment of the Matter under Article 11 of the DSU
53. Argentina claims further that, in subordinating its analysis of Articles 11.3 and 11.4 to the
broader systemic considerations of the WTO disput e settlement system, the Panel failed to make an
objective assessment of the matter before it in violation of Article 11 of the DSU.
54. Argentina asserts that the Panel's considerati on of the text of Articles 11.3 and 11.4 was
limited to a few sentences 110, in contrast to the "abundantly evident" influence of non-textual issues,
including the "broader, horizontal considerations" and consideration of ot her trade remedy and non-
trade remedy cases. 111 According to Argentina, these broader considerations were not part of the
Panel's mandate, and the Panel's c onsideration of these concerns did not comply with its obligation
under Article 11 of the DSU to make an objective asse ssment of the matter before it. Instead of a
rigorous textual interpretation of Articles 11.3 and 11.4, the Panel based its analysis on conjecture and
relied on a vague assertion that Argentina's claim ran "counter to the overall operation of the WTO
dispute settlement system, and, in particular, the notion of implementation of the DSB
recommendations and rulings embodied in the relevant provisions of the DSU". 112 Argentina argues
that Articles 19, 21, and 22 of the DSU do not run "counter to" its claims under Articles 11.3
and 11.4; rather, Articles 11.3 and 11.4 are easily reconcilable with the United States' rights and
obligations under the DSU.113
(c) Articles 3.2 and 19.2 of the DSU
55. Argentina asserts that, by permitting the USDOC to develop a new evidentiary basis for its
Section 129 Determination, the Pa nel acted inconsistently with Articles 3.2 and 19.2 of the DSU,
which provide that panels, the Appellate Body, and the DSB cannot "add to or diminish" the rights of
WTO Members.114 Specifically, Argentina claims that the Panel diminished Argentina's right to the
termination of the anti-dumping duty order by finding that, in spite of the United States' failure to
comply with the strict requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement, the

109Argentina's other appellant's submission, para. 48 (referring to Panel Report, para. 7.52).
111Ibid., para. 58.
113Ibid., para. 61 (referring to Argentina's first written submission to the Panel, Panel Report, pp. A-12
to A-20, paras. 38-67; and Argentina's second written s ubmission to the Panel, Panel Report, pp. C-5 to C-9,
paras. 8-27).
114Ibid., para. 63.

USDOC could continue imposing anti-dumping duti es as long as a WTO-consistent determination
was made "at some indeterminate point in the future". 115 Similarly, Argentina claims that the United
States' ability to develop a new evidentiary basis in 2005 to justify its 2000 sunset review
determination "added to" the United States' rights under Article 11.3.116
2. Argentina's Request for a Suggestion pursuant to Article 19.1 of the DSU
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU
56. Argentina claims that, by failing to provide e xplanations and reasons for its dismissal of
Argentina's request for a suggestion that the an ti-dumping duty order be terminated, pursuant to
Article 19.1 of the DSU, the Panel acted inconsiste ntly with its obligations under Article 11 of the
DSU to make an objective assessment of the matter before it. 117 Although Argentina recognizes the
discretionary nature of a panel's right to make a suggestion, it argues that the Panel was obliged under
Article 11 of the DSU to consider the specific provisi on of the covered agreement at issue, which, in
this case, was Article 19.1 of the DSU 118, and to make it clear that it "has reasonably considered [the]
claim" before it. 119 Argentina submits that the Panel failed to take objectively into account the fact
that the United States has twice violated its "binding obligations" under Article 11.3 of the Anti-
Dumping Agreement, and to consider reasonably Arge ntina's request for a suggestion. 120 According
to Argentina, the Panel's statement that it saw " no particular reason to ma ke a suggestion" renders
meaningless the "duty" and "obligation" inherent in Article 11 of the DSU.121
57. Argentina asserts that the manner in which the Panel "summarily" dismissed its request for a
suggestion also violates the requirements of Article 12.7 of the DSU. 122 Argentina explains that,
under Article 12.7, a panel has a three-fold obligation to set out: (i) the findings of fact; (ii) the
applicability of relevant provisions; and ( iii) the basic rationale behind any findings and
recommendations that it makes. 123 Argentina argues that the Panel complied with only the first of

115Argentina's other appellant's submission, para. 64.
116Ibid., para. 65.
118Ibid., para. 71 (referring to Appellate Body Report, US – Countervailing Duty Investigation on
DRAMS, para. 184, where the Appellate Body stated that "an 'objective assessment' under Article 11 of the DSU
must be understood in the light of the obligations of the particular covered agreement at issue in order to derive
the more specific contours of the appropriate standard of review").
120Ibid., para. 81.
121Ibid.
122Ibid., heading III, p. 19.
123Ibid., paras. 73-77 and 83 (referring to Appellate Body Report, Mexico – Corn Syrup (Article 21.5 –
US), paras. 106-108).

these obligations. According to Argentina, the Pa nel failed to comply with the second requirement
under Article 12.7 because "[i]t did not set out the 'applicability' of Article 19.1 in the context of the
present dispute".
124 With regard to the third obligation speci fied in Article 12.7, Argentina explains
that the Panel was required to give a justificati on or state reasons why it was unnecessary to make a
suggestion, which it did not do. In this case, the situation was compounded by: the threat of a "never-
ending cycle" of litigation; the "intrinsic links between the requested suggestion of revocation and
Article 11.3"; and, at the time, an "imminent second sunset review" by the USDOC. 125 In these
circumstances, the "cursory explanation" 126 by the Panel that "the circumstances of the present
proceedings" did not require it to make a suggestion, was inadequate.127
(b) Request for the Appellate B ody to Make a Suggestion under
 Article 19.1 of the DSU
58. Argentina requests the Appellate Body to make a suggestion that the United States terminate
its anti-dumping duty order. Argentina asserts th at the continuation of the illegal measure would
render the temporal limitations in Articles 11.3 a nd 11.4 meaningless. In addition, Argentina argues
that the "patently absurd" sequen ce of events in this dispute— the 2000 and 2005 WTO-inconsistent
likelihood determinations for the original sun set review, followed by a second sunset review
conducted by the USDOC in October 2006, which c ould leave the anti-dumping duties in place
through to 2011—exacerbates the violation of Argentina's WTO rights. 128 According to Argentina,
the inclusion of the discretionary authority in Article 19.1 of the DSU "demonstrates that its drafters
contemplated circumstances in which such a sugg estion would be both appr opriate and necessary to
help resolve [a] dispute." 129 In this regard, Argentina refers to specific WTO disputes where panels
exercised their discretion to make a suggestion.130 Finally, Argentina submits that the Appellate Body
should be guided by the obligation, under Article 21.7 of the DSU, that the DSB consider what further
action it might take in cases involving developing countries.

124Argentina's other appellant's submission, para. 89.
125Ibid., paras. 89-92.
126Ibid., para. 92.
127Ibid. (quoting Panel Report, para. 9.4).
128Ibid., paras. 96-97.
129Ibid., para. 94.
130Ibid., para. 102 (referring to Panel Reports, EC – Export Subsidies on Sugar , paras. 8.6-8.8; Panel
Report, EC – Trademarks and Geographical Indications (US) , para. 8.5; Panel Report, Argentina – Poultry
Anti-Dumping Duties, para. 8.7; Panel Report, US – Offset Act (Byrd Amendment) , para. 8.6; Panel Report,
US – Cotton Yarn, para. 8.5; Panel Report, Guatemala – Cement II, para. 9.6; and Panel Report, US – Lead and
Bismuth II, para. 8.2).

D. Arguments of the United States – Appellee
1. New Evidentiary Basis
(a) Interpretation and Application of Articles 11.3 and 11.4 of the
Anti-Dumping Agreement
59. The United States requests the Appellate Body to reject Argentina's appeal and to uphold the
Panel's finding that it was not inconsistent with Articles 11.3 and 11.4 of the Anti-Dumping
Agreement for the USDOC to develop a new evidentiary basis for its Section 129 Determination.
60. The United States contends that there is nothing in the text of Article 11.3 or Article 11.4 to
support Argentina's assertion that the temporal lim itations referred to in these provisions have a
bearing on whether an investigating authority may gather new evidence in order to bring a measure
into compliance. These provisions require only that a sunset review be initiated prior to the
expiration of the five-year period and that such a review normally be comple ted within 12 months;
they do not, according to the United States, addr ess the issue of whether a new evidentiary basis may
be developed in the course of implementing the recommendations and rulings of the DSB.
61. According to the United States, "the sole effect of Argentina's interpretation [of Articles 11.3
and 11.4] would be to prevent reasoned a nd adequate affirmative redeterminations." 131 F u r t h e r ,
Argentina's interpretation would mean that, even if new factual material supported an affirmative
determination, the determination would nonethel ess remain WTO-inconsistent, not because it was not
reasoned and adequate, but simply because the ne w evidence on which the determination was based
was collected during the process of implementation. The United States contends that nothing in the
Anti-Dumping Agreement—including Article 6 and Annex II theret o, which set out various procedural
rights and obligations—suggests that this was the drafters' intention.
62. The United States notes that the Panel referred to further contextual considerations after
"[h]aving considered and reject ed" Argentina's interpretation of the temporal limitations in
Articles 11.3 and 11.4. 132 The Panel correctly considered Artic le 19.1 of the DSU in the context of
examining Argentina's arguments with respect to the collection of new evidence. The United States
endorses the Panel's reasoning that Article 19. 1 does not prescribe the ways in which a WTO-
inconsistent measure may be brought into conformity with the WTO rules.133

132Ibid., para. 6.
133Ibid. (referring to Panel Report, paras. 7.54 and 7.60).

(b) Objective Assessment of the Matter under Article 11 of the DSU
63. The United States maintains that the Panel di d make an objective assessment of the matter
before it, because it considered whether any provisi ons of the DSU provide contextual support for
Argentina's argument only after it had found that th e text of Articles 11.3 and 11.4 did not support
Argentina's claim. The Panel agreed with Arge ntina that Articles 11.3 and 11.4 reflect temporal
obligations
 134, but then stated that it did not consider tho se obligations to "preclude[] an investigating
authority from developing a new factual basis pertaining to the or iginal review period in the course
of implementing the DSB recommendations and rulings pertaining to the original determination". 135
The United States argues that the concise nature of the Panel's conclusion on the issue was legitimate
because panels are required only "t o provide explanations and reas ons sufficient to disclose the
essential, or fundamental, justification for [their] findings". 136 In this case, the brevity of the Panel's
reasoning reflected "the absence of any basis in the [Anti-Dumping] Agreement for Argentina's
claims", and not a failure on the part of the Panel in discharging its obligations.137
(c) Articles 3.2 and 19.2 of the DSU
64. In response to Argentina's claims that the Panel violated Articles 3.2 and 19.2 of the DSU, the
United States argues that, as the Appellate Body found in Chile – Alcoholic Beverages , there is no
independent basis of appeal under these provisi ons because they are "predicated on underlying
findings of legal error".138 The United States notes that the Panel's conclusion—that the USDOC was
not precluded from developing a new evidentiary b asis in the Section 129 Determination—reflects a
correct interpretation and application of the relevant agreements so that, even if an independent basis
for appeal did exist under Article 3.2 or Article 19.2, Argentina fails to establish that the Panel acted
contrary to those provisions. Further, with regard to the argument that the Panel denied Argentina's
"right" to termination of the anti-dumping duty or der in question, the United States responds that
Argentina has never attempted to demons trate that such a right even exists. 139 No such right can be

136Ibid., para. 12 (referring to Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) ,
paras. 108-109).
137Ibid., para. 12.
139Ibid., para. 15.

found in either the Anti-Dumping Agreement or the DSU. 140 The United States also points out that
Article 3.2 is directed to the DSB, not to panels or to the Appellate Body.
2. Argentina's Request for a Suggestion under Article 19.1 of the DSU
(a) The Panel's Obligations under Articles 11 and 12.7 of the DSU
65. The United States argues that Argentina's claims under Articles 11 and 12.7 of the DSU are
"baseless and should be rejected" because "[t]he simple fact is that [the text of] Article 19.1 provides
that a panel or the Appellate Body 'may' suggest ways in which a Member 'could' implement a
recommendation."
141
66. The United States contends that the Panel did not err in declining to make a suggestion under
Article 19.1 of the DSU with regard to implemen tation of the recommendations and rulings of the
DSB. Article 11 of the DSU requires a panel to assess objectively the "matter" before it, and the
"matter" before a panel comprises the "claims" and "measures" in question. 142 In the United States'
view, a request for a suggestion is neither a claim nor a measure. Therefore, the requirements of
Article 11 do not extend to a panel's exercise of its discretion to make a suggestion.
67. Further, the United States argues that the Pa nel had no obligation under Article 12.7 of the
DSU to provide a rationale for choosing not to ma ke a suggestion under Article 19.1, because the
Panel's decision was not a "finding" or a "recomme ndation" as provided under Article 12.7, nor has
Argentina argued that it is.
143 According to the United States, a "suggestion" under Article 19.1 is
distinct from a "recommendation" or "finding". 144 The United States also argues that nothing in
Article 19.1 requires an explanation of a panel's exer cise of its discretion to make a suggestion, nor is
there any guidance under this provision regarding how a panel or the Appellate Body should respond
to a party's request for a suggestion. In response to Argentina's argument that the Panel failed to set
out the applicability of Article 19.1, the United States contends that the Panel did recognize its
applicability but, in the light of the fact that Artic le 19.1 states that WTO panels "may" suggest means
of implementation, simply elected not to exercise its discretion to make a suggestion.145

140United States' appellee's submission, para. 15 (referring to Appellate Body Report, US – Anti-
Dumping Measures on Oil Country Tubular Goods, para. 187).
141Ibid., para. 18.
142Ibid., para. 19 (referring to Appellate Body Report, Guatemala –Cement I, paras. 72-73).
143Ibid., para. 21.
144Ibid., para. 18.
145Ibid., para. 23.

(b) Request for the Appellate Body to Make a Suggestion under
Article 19.1 of the DSU
68. The United States requests the Appellate Body to dismiss Argentina's request that it make a
suggestion under Article 19.1 of the DSU in this ap peal. According to the United States, Argentina's
claim that a suggestion from the Appellate Body is "vital" or "necessary to help resolve" the dispute is
unsubstantiated.
146 As the DSU attaches no legal con sequences to suggestions made under
Article 19.1, the United States contends that a sugg estion cannot, therefore, be "vital" or "necessary"
to resolve a dispute. 147 The United States submits that Argen tina links its argument for a suggestion
to its flawed interpretation of the temporal limita tions provided for in Articles 11.3 and 11.4 of the
Anti-Dumping Agreement . Even if a suggestion were "necessary", as Argentina would have it, "a
legal requirement of automatic termination for correctable breaches would obviate any need for a
suggestion."148 In any case, the United States asserts that it is well established that a WTO Member
has the right to determine its "means of implementation".149
69. For these reasons, the United States requests the Appellate Body to find that the Panel did not
err by refusing to make a suggestion under Article 19.1 of the DSU and to reject Argentina's request
that the Appellate Body make a suggestion in the current appeal.
E. Arguments of the Third Participants
1. China
70. China argues that the USDOC's Section 129 Determination "as a whole" constitutes the
measure taken by the United States to comply with the recommendations and rulings of the DSB and
that, because the volume analysis was an "inseparable basis" for that determination, it too was part of
the measure taken to comply.150
71. China agrees with the United States that th e DSB recommendations and rulings are an
appropriate starting point for assessing a Member's compliance, and that they are important in
identifying the "measure taken to comply". 151 However, China considers that the United States

146United States' appellee's submission, para. 24 (referring to Argentina's other appellant's submission,
paras. 87 and 94, respectively.)
147Ibid., para. 25.
148Ibid.
149Ibid., para. 26 (referring to Appellate Body Report, US – Anti-Dumping Measures on Oil Country
Tubular Goods, para. 187).
150China's third participant's submission, para. 63.
151Ibid., paras. 33-34 (referring to United States' appellant's submission, paras. 37-38).

misreads the findings made by the original panel. China notes that the original panel concluded that
the USDOC's likelihood-of-dumping determination was inconsistent with Article 11.3 of the Anti-
Dumping Agreement after finding that one of the factual bases of that determination was not proper,
that is, that dumping had continued over the life of the order. 152 The original panel did not find that
the continuation of dumping over the life of the order was an independent measure, nor did the
USDOC make a new and separate determination that w as limited to this evidentiary basis. Rather,
China observes, the USDOC's Section 129 Determination was aimed at addressing the original panel's
findings on the likelihood-of-dumping determination. China considers that the USDOC made a
single and new finding in its Section 129 Determination, wh ich was therefore the "measure taken to
comply" under Article 21.5 of the DSU.
153 China also notes that the plain language of Article 21.5
authorizes a compliance panel to decide on the consistency of a measure with the covered
agreements.154 In China's view, the fact that the S ection 129 Determination was premised on two
evidentiary bases, coupled with the Panel's mandate to examine the consis tency with the covered
agreements, means that "it is permissible for the compliance Panel to review these two factual bases
from the angles of the DSB recommendations and rulings as well as Article 11.3 of the [ Anti-
Dumping] Agreement."155 For China, it is "unreasonable and illogical" to conclude that, even though
the Section 129 Determination is a "measure taken to comply", the evidentiary basis thereunder is
not.156
72. With respect to the United States' reliance on the Appellate Body Report in EC – Bed Linen
(Article 21.5 – India) for its argument that the volume analysis was not part of the "measure taken to
comply", China submits that the reasoning in that case can be distinguished from the present situation
on three grounds. 157 First, China argues that the "other factors" analysis at issue in EC – Bed Linen
(Article 21.5 – India) was a necessary part of the legal analysis with respect to causation under
Article 3.5 of the Anti-Dumping Agreement, whereas the volume analysis in the current appeal is just
part of the evidentiary basis used by the USDOC to make a likelihood-of-dumping determination.
China also points out that the "other factors" analysis in EC – Bed Linen (Article 21.5 – India) was an
independent legal finding that the Appellate B ody found was not an inseparable element of the
compliance measure. China contrasts that situation to that of the present dispute by arguing that the

152China's third participant's submission, para. 36 (referring to Original Panel Report, para. 7.221).
153Ibid., paras. 37-38 (referring to Section 129 Determination, supra, footnote 11, pp. 2 and 11).
154Ibid., para. 38 (referring to Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil) ,
para. 41). China also cites the Appellate Body's reasoning in US – Shrimp (Article 21.5 – Malaysia) in support
of its view that the volume analysis forms part of the new measure that must be reviewed "in its totality". ( Ibid.,
155Ibid., para. 39.
156Ibid., para. 40.
157Ibid., paras. 46-62 (referring to United States' appellant's submission, paras. 44, 47, and 48).

volume analysis is "inseparable"
158 from the revised likelihood-of-dumping determination. China
explains that, had the USDOC not incorporated the volume analysis into its factual reasoning, it might
not have been possible for the USDOC to have made an affirmative likelihood-of-dumping
determination.
73. Another difference, in China's view, between the present appeal and EC – Bed Linen
(Article 21.5 – India) concerns the changed "aspect" of the Section 129 Determination. 159 C h i n a
submits that the "aspect" at issue in EC – Bed Linen (Article 21.5 – India) was the "other factors"
analysis required pursuant to Article 3.5 of the Anti-Dumping Agreement , and that the comparable
"aspect" in the present dispute is the likelihood-o f-dumping determination required by Article 11.3. 160
In EC – Bed Linen (Article 21.5 – India) , the "other factors" aspect did not change between the
original proceedings and the compliance proceedings. By contrast, in this dispute, the USDOC made
a new likelihood-of-dumping determination in the Section 129 Determination (albeit generating the
same affirmative result), and therefore the "aspect" at issue was changed between the original
proceedings and the compliance proceedings. For China, the volume analysis can only be regarded as
a "sub-aspect" of the "measure taken to comply".161
74. Finally, China distinguishes EC – Bed Linen (Article 21.5 – India) on the basis that a finding
was made by the panel in that dispute on the "other factors" analysis. In this dispute, there was
no finding made on the volume analysis in the origin al proceedings because the original panel
exercised judicial economy. Therefore, it cannot be said that this dispute has been finally resolved.
Hence, this is not a case where the claim relating to the volume analysis is being given a "second
chance".
162
2. European Communities
75. The European Communities states that the le gal basis for, and the existence of, the
mandatory/discretionary doctrine referred to by the United States is "obscure" and does not derive

158China's third participant's submission, para. 51.
159China explains that the USDOC and the USITC are responsible for making likelihood-of-dumping
and likelihood-of-injury determinations, respectively. According to China, each of these determinations
constitutes an "aspect" of a sunset determination under Article 11.3 of the Anti-Dumping Agreement .
Therefore, in the case of the Section 129 Determination, the measure actually concerns only one aspect, that is,
the likelihood-of-dumping determination. (Ibid., footnote 21 to para. 53)
160Ibid., paras. 52-53.
161Ibid., para. 54.
162Ibid., para. 61.

from the Anti-Dumping Agreement , the WTO Agreement , or WTO case law. 163 The European
Communities notes that the arguments made by the United States in US – Zeroing (EC) on the
mandatory/discretionary doctrine were rejected by the Appellate Body. 164 The European
Communities submits that many of the core concep ts associated with the mandatory/discretionary
doctrine have "fallen by the way-side" 165, including: that the measure must be adopted by the
"legislature", as opposed to the "executive"166; that it must be "binding"167; that it needs to have been
applied 168; and that it is allegedly susceptible to di fferent interpretations by various municipal
courts.169
76. Regarding the United States' argument that , according to the mandatory/discretionary
doctrine, a measure can only be impugned if it leads to WTO-inconsistent action in all cases , the
European Communities argues that a mechanistic application of that test would mean that a measure
would "never or almost never" be found inconsistent "as such" with WTO rules. 170 In the European
Communities' view, this approach contradicts both the WTO Agreement and the Anti-Dumping
Agreement. Furthermore, the European Communities obser ves that, in deference to interpretations
advanced by the executive branch, United States courts have refused to correct the USDOC's WTO-
inconsistent interpretations of ambiguous United St ates statutes and, thereby, have denied economic
operators effective remedies in United States courts.
77. Secondly, the European Communities argues that the United States' appeal regarding the
scope of "measures taken to comply" should be rejected. The European Communities submits that the
United States and Argentina offer two competing mode ls with regard to determining the scope of the
"measure taken to comply": (i) the "measure model", under which compliance panels refer to the
original measure in general; and (ii) the "ele ment of the measure model", according to which
compliance panels focus on certain elements of the original measure. 171 The European Communities
considers neither model to be satisfactory in all ca ses and asserts that a relevant consideration for

163European Communities' third participant's submission, paras. 2-3 (referring to United States'
appellant's submission, para. 9).
164Ibid., paras. 2-3 and 6 (referring to Appellate Body Report, US – Zeroing (EC), paras. 211-214).
165Ibid., para. 4.
166Ibid. (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 81).
167Ibid., para. 4 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
paras. 38 and 85; and Appellate Body Report, Guatemala – Cement I, para. 69 and footnote 47 thereto).
168Ibid., para. 4 (referring to Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review ,
para. 82).
170Ibid., para. 5.
171Ibid., para. 10.

identifying the measure taken to comply is whether there is one WTO obligation at stake. According
to the European Communities, if an investiga ting authority's determination involves one WTO
obligation and one finding on that obligation, a co mpliance panel should treat that determination as
being indivisible. The European Communities argues that the present dispute is distinguishable from
EC – Bed Linen (Article 21.5 – India) because, whilst this case involves one obligation and one finding
regarding Article 11.3 of the Anti-Dumping Agreement, EC – Bed Linen (Art icle 21.5 – India)
concerned multiple obligations under the second a nd third sentences of Article 3.5 of the same
Agreement. Moreover, contrary to the United States' assertion, the European Communities was in fact
not required to change its "other factors" analysis in EC – Bed Linen (Article 21.5 – India).
172
78. At the oral hearing, the European Communities made arguments concerning the amended
waiver provisions. The European Communities agrees with the Panel that there remains a
mechanistic relationship between an affirmative waiver and a finding of likelihood of dumping with
respect to the waiving exporter, which, especially in circumstances where there is only one exporter
and one country, would inevitably "taint" the or der-wide likelihood-of-dum ping determination.
According to the European Communities, under th e new provisions, a statement by the waiving
exporter that it is likely to dump would make it ev en more likely that the USDOC would make an
affirmative likelihood-of-dumping determination at the order-wide level.
79. The European Communities also commented at the oral hearing on the permissibility of
developing a new evidentiary basis for purposes of the Section 129 Determination. On the specific
facts of this case, the European Communities considers that the investigation conducted by the
USDOC was internally inconsistent. Despite the fact that a new sunset review had been "initiated" in
2005, the likelihood-of-dumping determina tion was assessed through the "prism" 173 of 2000. The
European Communities considers that the USDOC should have either returned to its original sunset
review (without initiating a new one) and made a likelihood-of-dumping de termination through a
2000 "prism", or initiated a new Article 11.3 review in 2005 and assessed the prospect of likelihood of
dumping after 2005. 174 Instead, in the Section 129 Determin ation, the USDOC failed to make the
type of prospective assessment required by Article 11.3 of the Anti-Dumping Agreement.

172European Communities' third participant's submission, para. 16 (referring to United States'
appellant's submission, para. 42).
173European Communities' statement at the oral hearing.
174Ibid.

3. Japan
80. Japan asserts that the Panel correctly concl uded that the amended waiver provisions are
inconsistent as such with Article 11.3 of the Anti-Dumping Agreement . Japan emphasizes that
domestic investigating authorities have an obligation "to arrive at a reasoned conclusion on the basis
of positive evidence", and to undertake "an active rather than a passive decision-making role". 175 In
Japan's view, the United States' sunset review mechanism "does not comport with these requirements"
because it is "opaque, arcane, and permits th e USDOC to make decisions without active
investigation".176 According to Japan, the arguments made by the United States in defending the
relevant statutory and regulatory provisions "sim ply underline the absence of any provisions to
regulate the decision-making with regard to the USDOC's order-wide determinations". 177 Japan
submits that the Panel reached its conclusion wi th respect to order-wide determinations as a
consequence of specific and clear arguments raised by Argentina in regard to the impact of company-
specific determinations on order-wid e determinations. Japan maintains that the relationship between
company-specific and order-wide determinations in the United States has not changed since the
original proceedings, and that the United States repeats the arguments it made in the original
proceedings, even though they were rejected by the original panel and the Appellate Body.178
81. Japan also argues that it was within the Pa nel's mandate to make a finding on the WTO-
consistency of the USDOC's volume analysis. First, Japan submits that Argentina's challenge to the
consistency of the volume analysis is not a ne w claim because it was raised in the original
proceedings, and the United States has therefore been given "sufficient opportunity to submit
evidence and arguments on this point". 179 The Panel's finding therefore does not raise due process
concerns. Secondly, in Japan's view, the finding by the original panel that the factual basis of the
USDOC's likelihood-of-dumping determ ination was inadequate means th at it was appropriate for the
Panel in these Article 21.5 proceedings to examine "w hether the factors, including volume decline, of
the USDOC's re-determination [are] based on a sufficient factual basis or not".180

175Japan's third participant's submission, para. 7 (referring to Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review, para. 111). (original emphasis)
176Ibid., para. 7.
177Ibid.
178Ibid., para. 10 (referring to Original Panel Report, para. 7.102; and Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, paras. 233-234).
179Ibid., para. 14.
180Ibid., para. 15.

82. Moreover, according to Japan, "the United St ates was not entitled to assume that the volume
analysis was consistent with its obligations under the [ Anti-Dumping] Agreement ."
181 R a t h e r , t h e
original panel indicated that the volume analysis w ould be inconsistent if it lacked an evidentiary
basis, so the United States had a "reasonable period of time" to bring its likelihood-of-dumping
determination into conformity with Article 11.3. Japan submits that the United States should have
used that time "to provide the volume analysis with a sufficient factual basis, as part of the likelihood
re-determination".
182 At the oral hearing, Japan argued that the fact that the original panel exercised
judicial economy on the volume analysis means that the claim was not resolved. Therefore, the
limitations on the scope of the Article 21.5 proceedings do not apply.
83. In addition, Japan requested at the oral hear ing that the Appellate Body limit the Panel's
interpretative findings regarding the new evidence that can be coll ected for purposes of implementing
the recommendations and rulings of the DSB in or iginal proceedings. Japan takes no position on the
Panel's ruling on the facts of this case, but contends that the Panel's findings are too broad insofar as
they articulate unqualified principles that apply to all trade remedy cases. According to Japan, the
Panel's findings ignore the unique character of trade remedy agreements, which set out specific
procedural requirements for the conduct of trade remedy investigations that are not replicated in other
covered agreements, including the Agreement on the Application of Sanitary and Phytosanitary
Measures (the "SPS Agreement"). Japan therefore requests the Appellate Body to correct the Panel's
finding that implementation in trade remedy disputes is the same as in all other disputes and to take
into account the broader systemic implications of its findings when addressing the very specific new
facts at issue in this dispute.183
4. Korea
84. Pursuant to Rule 24(2) of the Working Procedures , Korea chose not to submit a third
participant's submission. At the oral hearing, Korea focused on the Panel's finding that the USDOC
was not precluded from developing a new evidentiary basis for its Section 129 Determination. Korea
contends that allowing the United States to star t all over again would mean that investigating
authorities are allowed to conduct inconsistent sunset reviews and justify the results only years later.
For Korea, this would effectively undermine the fundamental purpose of the sunset review provisions,
namely, the five-year temporal limit on the dura tion of an anti-dumping duty order. Korea also
believes that the Panel's interpretation of Articles 11.3 and 11.4 of the Anti-Dumping Agreement

181Japan's third participant's submission, para. 17.
182Ibid.
183Japan's statement at the oral hearing.

departs from the ordinary meaning of the terms used in these Articles and cannot be justified by the
"broader, horizontal considerations"184 of the WTO dispute settlement system referred to by the Panel.
5. Mexico
85. Mexico chose not to submit a third participant' s submission pursuant to Rule 24(2) of the
Working Procedures. In its statement at the oral hearing, Mexico expressed support for Argentina's
request for a suggestion, under Article 19.1 of th e DSU, that the United States terminate the anti-
dumping duties. According to Mexico, Argentina has a right to termination of the order, because the
Panel found that the United States still had not brou ght itself into compliance after the expiration of
the "reasonable period of time". In Mexico's view, Article 11.3 of the Anti-Dumping Agreement
requires termination at this stage, and the Appellate Body should give effect to that provision, either
through a direct interpretation of Article 11.3, or through a suggestion under Article 19.1 of the DSU.

III. Issues Raised in This Appeal
86. The following issues are raised in this appeal:
(a) whether the Panel erred in finding that Section 751(c)(4)(B) 185 of the United States
Tariff Act of 1930 (the "Tariff Ac t"), operating in conjunction with
Section 751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the United States
Code of Federal Regulations (the "Regulations"), is incons istent with Article 11.3 of
the Anti-Dumping Agreement; and whether, in reaching this finding, the Panel failed
to make an objective assessment of the matte r before it, as required by Article 11 of
the DSU;
(b) whether the Panel erred in concluding that the finding of the United States
Department of Commerce (the "USDOC") concerning the decline in import volumes
after the imposition of the anti-dumping duty order, which was made in the original
sunset determination and incorporated into the Section 129 Determination, was
properly before it;

184Panel Report, para. 7.51.
185Section 751 of the United States Tariff Act of 1930 is codified as Section 1675 of Title 19 of the
United States Code. See Exhibit ARG-33 submitted by Argentina to the Panel.

(c) whether the Panel erred in finding that th e USDOC did not act inconsistently with
Articles 11.3 and 11.4 of the Anti-Dumping Agreement by developing a new
evidentiary basis pertaining to the original review period for purposes of its
Section 129 Determination; and whether, in reaching this finding, the Panel acted
inconsistently with its obligation under Ar ticle 11 of the DSU to make an objective
assessment of the matter before it, and acted inconsistently with Articles 3.2 and 19.2
of the DSU by diminishing Argentina's rights and the United States' obligations under
Articles 11.3 and 11.4 of the Anti-Dumping Agreement; and
(d) whether, in rejecting Argentina's request for a suggestion pursuant to Article 19.1 of
the DSU, the Panel failed to make an objec tive assessment of the matter before it, as
required by Article 11 of the DSU, and failed to set out "the applicability of relevant
provisions and the basic rationale behind [its] findings and recommendations", as
required by Article 12.7 of the DSU.

IV. Amended Waiver Provisions
87. We begin with the United States' appeal of th e Panel's findings relating to Section 751(c)(4)
of the Tariff Act and Section 351.218(d)(2) of the Regulations, the so-called "amended waiver
provisions". Before examining the issue raised on appeal, we briefly set out the panel's and the
Appellate Body's findings in the original proceed ings; the measures taken by the United States to
comply with the recommendations and rulings of th e DSB arising from the original proceedings; the
Panel's findings in these Article 21.5 proceedings; and the claims and arguments raised in this appeal
by the participants.
A. Original Proceedings
88. Before the original panel, Argentina asserte d that Section 751(c)(4) of the Tariff Act and
Section 351.218(d)(2)(iii) of the Regulations were in consistent as such with Article 11.3 of the Anti-
Dumping Agreement.
186 At the outset of its analysis, the original panel distinguished between the two
waiver situations contemplated in the United Stat es' statute and Regulations, which it described as
follows:

186In the original proceedings, Argentina also challenged the consistency of the waiver provisions with
Articles 6.1 and 6.2 of the Anti-Dumping Agreement.

We note that Section 751(c)(4)(A) of the Tariff Act provides
that an interested party may elect to waive its participation in
sunset review proceedings conducte d by the USDOC and participate
only in sunset review proceedings conducted by the USITC. Section
351.218(d)(2)(i) of the Regulations provides that an interested party
may waive participation by filing a statement of waiver with the
USDOC. We will refer to this as an "explicit
" or "affirmative "
waiver. Further, according to Section 351.218(d)(2)(iii) of the
Regulations, the USDOC will consider the failure of an interested
party to submit a complete substantive response to the notice of
initiation of a sunset review to cons titute a waiver of participation in
the USDOC's sunset review proceedings. We will refer to this as an
"implicit
" or "deemed" waiver.187 (original underlining)

The original panel noted that the "dee med" waiver category was "create[d]" 188 in the Regulations and
that, consequently, "[its] findings regarding affirmative waivers will have implications on the Tariff
Act whereas those relating to d eemed waivers will only affect Section 351.218(d)(2)(iii) of the
Regulations."189
89. The original panel examined the consistency of each of the two categories of waivers with
Article 11.3 of the Anti-Dumping Agreement. As regards "deemed" waivers, in situations where an
exporter files an incomplete response, the origin al panel found that the USDOC's determination
cannot be "supported by reasoned and adequate conclusions based on the facts before an investigating
authority", because "the USDOC is precluded from taking into consideration, in its determination with
respect to a given exporter, the facts submitted by that exporter (or any other facts before it that might
be relevant to its determination), and it is furt her precluded from receiving, much less considering,
any other facts relevant to this question". 190 With regard to situations where an exporter fails to
respond to the notice of initiation, the original panel found that "an a ffirmative [likelihood-of-
dumping] determination based exclusively upon the f act that the exporter did not respond to a notice
of initiation, and which disregards entirely even th e possibility that other relevant information might
be in the record, is not supported by reasoned and adequate conclusions based on the facts before an
investigating authority, inconsistently with Article 11.3."191 The original panel also "consider[ed] that
even in a case of affirmative waiver, the investig ating authority's obligation to make a determination
supported by reasoned and adequate conclusions based on the facts before it continues to apply."192 In

187Original Panel Report, para. 7.83.
188Ibid., para. 7.85.
189Ibid.
190Ibid., para. 7.93.
191Ibid., para. 7.95. (footnote omitted)
192Ibid., para. 7.99.

the original panel's view, "[t]he investigating au thority cannot simply assume, without further inquiry,
that dumping is likely to continue or recur b ecause the exporter chose not to participate in the
review."
193 Thus, the original panel found that "the provisions of [United States] law relating to
affirmative waivers are also inconsistent with the obligation to determine likelihood of continuation or
recurrence of dumping under Article 11.3 of the [Anti-Dumping] Agreement."194
90. The United States pointed out that, under United States law, "the final likelihood
determination in a sunset review is ma de on an order-wide basis for a country." 195 It argued that,
"[a]lthough [United States] law mandates an affirmative finding of likelihood with respect to
exporters that have waived their right to participat e in a sunset review, it does not do so with respect
to the order-wide determination." 196 The original panel rejected this argument because, "[t]o the
extent that the order-wide determination of likeli hood is based in whole or in part upon a company-
specific determination that was improperly est ablished, [it did] not see how the order-wide
determination can be supported by reasoned and ade quate conclusions based on the facts before the
investigating authority."197
91. The original panel concluded that:
... both affirmative and deemed waiv ers provisions of [United States]
law, i.e. Section 751(c)(4)(B) of the Tariff Act and Section
351.218(d)(2)(iii) of the USDOC's Regu lations, are inconsistent with
the investigating authorities' obligation to determine likelihood of
continuation or recurrence of dumping under Article 11.3 of the Anti-
Dumping Agreement.
198

193Original Panel Report, para. 7.99.
194Ibid.
195Ibid., para. 7.100.
196Ibid. (referring to the United States' re sponse to Questions 4(c) and 5( d) posed by the original panel
at the first meeting with the parties, Original Panel Re port, p. E-23, paras. 24-25 and p. E-25, para. 30; and
United States' second written submission to the original panel, Original Panel Report, p. C-9, para. 21).
197Ibid., para. 7.101.
198Ibid., para. 7.103.

92. The Appellate Body upheld the original pane l's findings, even though it disagreed with the
original panel's approach to company-specific determinations. 199 According to the Appellate Body,
"[b]ecause the waiver provisions require the USDOC to arrive at affirmative company-specific
determinations without regard to any evidence on the record, these determinations are merely
assumptions made by the agency, rather than findings supported by evidence." 200 The Appellate
Body further reasoned that, "even assuming that the USDOC takes into account the totality of record
evidence in making its order-wide determination, it is clear that, as a result of the operation of the
waiver provisions, certain order-wide likelihood determinations made by the USDOC will be based,
at least in part, on statutorily-mandated assumptions about a company's likelihood of dumping." 201
"[T]his result", the Appellate Body reasoned, "is inc onsistent with the obligation of an investigating
authority under Article 11.3 to 'arrive at a reasone d conclusion' on the basis of 'positive evidence'." 202
Therefore, the Appellate Body upheld the original panel's findings that "Section 751(c)(4)(B) of the
Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as such,
with Article 11.3 of the Anti-Dumping Agreement."203
B. Measures Taken to Comply
93. In order to comply with the recommendations and rulings of the DSB, the United States
introduced three amendments to its Regulations204, which became effective on 31 October 2005. Two
of the three modifications are relevant for purposes of this appeal. 205 First, Section 351.218(d)(2)(ii)
of the Regulations, which sets out the contents of a statement of waiver, was revised and a new
requirement was introduced whereby a respondent inte rested party wishing to waive its participation
in the USDOC component of a sunset review must subm it "a statement that [it] is likely to dump ... if

199According to the Appellate Body:
... it was neither necessary nor relevant for the [original] Panel to
draw a conclusion as to the WTO-consistency of the company-specific
determinations resulting from the waiver provisions. [Rather,] the relevant
inquiry ... [was] whether the order-wide likelihood determination would
be rendered inconsistent with Article 11.3 by virtue of the operation of the
waiver provisions.
(Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 232 (original emphasis))
200Ibid., para. 234. (original emphasis)
201Ibid. (original emphasis)
202Ibid. (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 111
and 114 (footnotes omitted)).
203Ibid., para. 235.
204Supra, footnote 9, p. 62061.
205Ibid., p. 62062. The third change relates to the use of waivers in countervailing duty sunset reviews
and is not directly relevant for purposes of this appeal.

the order is revoked or the investigation is terminated."
206 Secondly, Section 351.218(d)(2)(iii) of the
Regulations, which dealt with "deemed" waivers, was repealed. 207 The USDOC explained that, as a
consequence of the repeal of this provision, it "will no longer make company-specific likelihood
findings for companies that fail to file a statement of waiver and fail to file a substantive response to
the notice of initiation". 208 Section 751(c)(4)(B) of the Tariff Act was neither repealed nor
amended.209
C. Panel Proceedings pursuant to Article 21.5 of the DSU
94. In these Article 21.5 proceedings, Argentina claimed that the amendments to the Regulations
failed to bring the United States into compliance with its obligations under Article 11.3 of the Anti-
Dumping Agreement . The United States responded that it had fully "implemented the DSB
recommendations and rulings regarding the WTO-in consistencies found in [United States] law by
eliminating deemed waivers and by requiring exporters who chose to affirmatively waive their right to
participate in a sunset review to acknowledge in wr iting that they would be likely to continue or
resume dumping in the case of the revocation of the duty."210
95. The Panel began its analysis by "identify[ing] the scope of the current waiver provisions
subject to Argentina's claim". 211 It found that "the concept of waiver set out in Section 751(c)(4) of
the Statute, in conjunction with the regulatory provis ions in Section 351.218(d)(2), now refers only to
the affirmative waiver situation that is, where an exporter elects not to participate in a review by
filing an affirmative statement of waiver, accompan ied by a statement that the exporter is likely to
continue or resume dumping in the absence of the order." 212 Having identified the scope of the
amended waiver provisions, the Panel proceeded to describe the issue before it as follows:

206Supra, footnote 9, p. 62064.
207Before its repeal, Section 351.218(d)(2)(iii) provided:
No response from a respondent interested party . The Secretary will
consider the failure by a respondent interested party to file a complete
substantive response to a notice of in itiation under paragraph (d)(3) of this
section as a waiver of participation in a sunset review before the [USDOC].
(See Exhibit US-13 submitted by the United States to the Panel)
208Supra, footnote 9, p. 62062.
209The text of Section 751(c)(4)(B) is reproduced infra at para. 106.
210Panel Report, para. 7.7.
211Ibid., para. 7.21.

[W]hether, after the amendments made by the United States
with a view to implementing th e DSB recommendations and rulings
in the original proceedings, the waiver provision under Section
751(c)(4)(B) of the Tariff Act, opera ting in conjunction with Section
751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the
Regulations, precludes the USDOC in some or all situations arising
in sunset reviews from making a reasoned determination of
likelihood of continuation or recurrence of dumping based on an
adequate factual foundation, as required by Article 11.3 of the Anti-
Dumping Agreement.
213

96. Looking at the operation of the amended waiver provisions, the Panel observed that "in some
situations, the statutory and regulatory waiver provisions may not necessarily preclude the USDOC
from arriving at reasoned conclusions of likelihood of continuation or recurrence of dumping on the
basis of an adequate factual foundation as required by Article 11.3." 214 The Panel explained that "in a
sunset review where all exporters explicitly and a ffirmatively waive their right to participate and
acknowledge, in accordance with Sec tion 351.218(d)(2)(ii) of the Regulations, that they are likely to
continue or resume dumping if the measure is revoked, it may well be reasonable for the USDOC to
find likelihood for these exporters individua lly and ... on an order-wide basis." 215 However, the Panel
went on to find that "there may be other situa tions where the waiver provisions may preclude the
USDOC from reaching reasoned conclusions on an adequate factual basis." 216 The Panel referred to a
situation involving multiple exporters, where some neither file a complete substantive response nor
expressly waive their right to participate and simply remain silent after the initiation of the sunset
review, while others follow Section 351.218(d)(2)(ii) of the Regulations and affirmatively waive their
right to participate. In a situation such as this, the Panel considered that "the USDOC may have to
find likelihood on an order-wide basis because of th e company-specific determinations that it may
have made under Section 751(c)(4)(B) for the waiving exporters."217
97. The Panel rejected the United States' argu ment that, "where the USDOC makes such
company-specific findings for some exporters unde r Section 751(c)(4)(B), those findings would be
taken into account in the order-wide determinati on, but they would not necessarily determine the
outcome of the order-wide determination." 218 The Panel found it "difficult to understand how the

213Panel Report, para. 7.35. The Panel observed that it would "base [its] ultimate assessment of
Argentina's claim regarding waiv ers on the USDOC's order-wide, as opposed to company-specific,
determinations". (Ibid. (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
para. 232))
214Ibid., para. 7.36.
215Ibid.
216Ibid., para. 7.37.
217Ibid.
218Ibid., para. 7.39.

USDOC would find no likelihood of continuation or recurrence of dumping on an order-wide basis in
a sunset review where it may have made an affirm ative likelihood determination for some exporters
pursuant to Section 751(c)(4)(B) of the Tariff Act."
219 Rather, the Panel explained that it could
"reasonably conclude that in every sunset review involving multiple exporters the USDOC will have
to find likelihood on an order-wide basis if one exporter waives its right to participate".220
98. The Panel then examined whether the amende d waiver provisions are consistent with
Article 11.3 of the Anti-Dumping Agreement . The Panel explained that "[t]he provisions of
Section 751(c)(4)(B) of the Tariff Act ... would pr eclude the USDOC from taking into consideration
evidence submitted by cooperating exporters or evidence otherwise collected by the USDOC in sunset
reviews where there is at least one other exporter who waives its right to participate." 221 "In such
cases", the Panel continued, "the USDOC's or der-wide determination would be based on the
assumption that because one exporter waived its right to participate and acknowle dged to be likely to
continue or resume dumping, other exporters are also likely to continue or resume dumping."222 Thus,
the Panel reasoned, the USDOC "would fail to observe the obligation of the investigating authorities
to make reasoned determinations of likelihood of continuation or recurrence of dumping based on a
sufficient factual premise in accordance with Article 11.3 of the [Anti-Dumping] Agreement."223
99. The Panel concluded:
Having found that the [United States] statutory and regulatory waiver
provisions may, in some situations, preclude the USDOC from
making a reasoned determination of likelihood of continuation or
recurrence of dumping based on an adequate factual foundation—
such as where the USDOC may be required to make an affirmative
finding on an order-wide basis due to an affirmative finding,
pursuant to Section 751(c)(4)(B) of the Tariff Act, for individual
exporters who waive their right to participate—we thus find Section
751(c)(4)(B) of the Tariff Act, opera ting in conjunction with Section
751(c)(4)(A) of the Tariff Act and Section 351.218(d)(2) of the
Regulations, to be inconsistent with Article 11.3 of the [Anti-
Dumping] Agreement.
224

219Panel Report, para. 7.39.
220Ibid.
221Ibid., para. 7.40.
222Ibid. (footnote omitted)
223Ibid., para. 7.40.
224Ibid., para. 7.41.

D. Claims and Arguments on Appeal
100. The United States claims on appeal that the Pa nel erred in concluding that the amended
waiver provisions are inconsiste nt with Article 11.3 of the Anti-Dumping Agreement . First, the
United States argues that the Panel committed a legal error by applying an incorrect standard in its
evaluation of the amended provisions. According to the United States, the Panel evaluated whether
Section 751(c)(4) could breach the Anti-Dumping Agreement , rather than whether the statute
mandates a breach.225 Secondly, the United States asserts that the Panel reversed the burden of proof
by relieving Argentina of its burden to provide evidence and arguments establishing a breach of
Article 11.3, and, instead, relying on "pure speculation".226 Thirdly, the United States submits that the
Panel failed to make an objective assessment of th e matter before it, as required by Article 11 of the
DSU.227
101. Argentina asserts that the United States' arguments "are premised upon an erroneous
understanding of the Appellate Body's findings [in the original proceedings ] as to why the waiver
provisions were found to be inc onsistent with ... Article 11.3 of the Anti-Dumping Agreement". 228
According to Argentina, "[t]he A ppellate Body was ... quite clear th at the WTO-inconsistency of the
waiver provisions resulted from statutorily-mandated company-specific determinations that taint the
order-wide determinations, because in such cases, the determination will be based 'at least in part, on
statutorily-mandated assumptions about a company's likelihood of dumping.'" 229 Argentina argues
that "the same WTO-inconsistency remains" 230 because "[t]he modification of the waiver regulation
by the United States did nothing to address the source of the ... violation." 231 It adds that "[t]he fact
that the statutory-mandate is now triggered by an affirmative statement and an 'admission' has not
changed the nature of the viola tion of Article 11.3", because "[t]he statutory-mandate strips [the]
USDOC of its ability to assess evidence with respec t to a waiving company in order to 'arrive at a

225United States' appellant's submission, subheading III. A, p. 4. According to the United States, the
Panel examined whether there was any provision in Unit ed States law that preclud ed Section 751(c)(4) from
requiring an affirmative order-wide determination in cases where an exporter filed a statement of waiver. Such
an approach, the United States argues, is contrary to the standard set out by the GATT panel in US – Tobacco
whereby "a statute need not unambiguously require a WTO-consistent result, but only ... permit a WTO-
consistent result". ( Ibid., para. 13) The United States points out that the Appellate Body referred to the US –
Tobacco GATT panel report in US – 1916 Act . (Ibid., para. 9 (referring to Appellate Body Report, US – 1916
Act, para. 88))
226Ibid., para. 14.
227Ibid., para. 24.
 229Ibid., para. 17 (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews ,
para. 234 (original emphasis)).
230Ibid., para. 18.
231Ibid., para. 19. (original underlining)

reasoned conclusion' on the basis of the evidence de veloped for that company and, as a result, the
order-wide determination 'will be based, at least in part, on statutorily-mandated assumptions about a
company's likelihood of dumping.'"
232
E. Consistency of the Amended Waiver Provisions with Article 11.3 of the Anti-Dumping
Agreement
102. We turn now to assess the consistency of the am ended waiver provisions with Article 11.3 of
the Anti-Dumping Agreement and begin our examination by setti ng out the requirements established
in this provision, as interpreted by the Appellate Body. Article 11.3 of the Anti-Dumping Agreement
provides:
Notwithstanding the provisions of pa ragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five
years from its imposition (or from the date of the most recent review
under paragraph 2 if that revi ew has covered both dumping and
injury, or under this paragraph), unless the authorities determine, in a
review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to that date, that the expiry of
the duty would be likely to lead to continuation or recurrence of
dumping and injury.* The duty may remain in force pending the
outcome of such a review.

*[Original footnote 22] When the amount of the anti-dumping duty is
assessed on a retrospective basis, a finding in the most recent assessment
proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied
shall not by itself require the authorities to terminate the definitive duty.

103. The Appellate Body has explained that Artic le 11.3 "imposes a temporal limitation on the
maintenance of anti-dumping duties" and "lays down a mandatory rule with an exception". 233
Article 11.3 requires WTO Members to terminate an anti-dumping duty within five years of its
imposition unless the following three conditions are satisfied:

 232Argentina's appellee's submission, para. 19 (quoting Appellate Body Report, US – Oil Country
Tubular Goods Sunset Reviews, para. 234 (original emphasis)).
233Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 104.

[F]irst, that a review be initiated be fore the expiry of five years from
the date of the imposition of the duty; second, that in the review the
authorities determine that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping; and third, that in the
review the authorities determine that the expiry of the duty would be
likely to lead to continuation or recurrence of injury. If any one of
these conditions is not satisfied, the duty must be terminated.
234
(original emphasis; footnote omitted)

104. The review conducted by an investigating au thority pursuant to Article 11.3 has been
described by the Appellate Body as "combining both investigatory and adjudicatory aspects",
requiring investigating authorities to take "an activ e rather than a passive decision-making role". 235
The words "review" and "determine" in Article 11 .3 have been read by the Appellate Body as
indicating that "authorities conducting a sunset revi ew must act with an appropriate degree of
diligence and arrive at a reasoned conclusion on the b asis of information gathered as part of a process
of reconsideration and examination." 236 The Appellate Body further explained that "[t]he plain
meaning of the terms 'review' and 'determine' in Artic le 11.3 ... compel an inv estigating authority in a
sunset review to undertake an examination, on th e basis of positive evidence, of the likelihood of
continuation or recurrence of dumping and injury" and that, "[i]n drawing conclusions from that
examination, the investigating authority must arrive at a reasoned determination resting on a sufficient
factual basis; it may not rely on assumptions or conjecture."237 The requirements that a determination
be based on "positive evidence" and a "sufficient factual basis" "govern all aspects of an investigating
authority's likelihood determination".238
105. At the same time, the Appellate Body has held that "Article 11.3 does not expressly prescribe
any specific methodology for investigating authoritie s to use in making a likelihood determination in
a sunset review", nor does it "identify any particular factors that authorities must take into account in
making such a determination."
239 The Appellate Body has also indicated that, where an investigating
authority chooses to make its likelihood-of-dumpi ng determination on an order-wide basis, the
examination of the WTO-consistency of that dete rmination must also be made on an order-wide
basis.240

234Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 104.
235Ibid., para. 111. (original emphasis)
236Ibid.
237Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 180.
238Ibid., para. 302.
239Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 123. (footnote omitted)
240Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 231.

106. Having set out the requirements of Article 11.3 of the Anti-Dumping Agreement , we now
examine the consistency of the amended waiver provi sions. The relevant provisions of United States
law, for purposes of this appeal, are Section 751(c )(4) of the Tariff Act and Section 351.218(d)(2)(ii)
of the Regulations. Section 751(c)(4) of the Tariff Act provides:
W
AIVER OF PARTICIPATION BY CERTAIN INTERESTED PARTIES
(A) IN GENERAL .—An interested party described in Section
771(9)(A) or (B) may elect not to participate in a review conducted
by the administering authority under this subsection and to
participate only in the review conducted by the [USITC] under this
subsection.
(B) E
FFECT OF WAIVER .—In a review in which an interested party
waives its participation pursuant to this paragraph, the administering
authority shall conclude that revocation of the order or termination of
the investigation would be likely to lead to continuation or recurrence
of dumping or a countervailable subsidy (as the case may be) with
respect to that interested party.
241

107. The relevant part of the amended Section 351.218(d)(2)(ii) of the Regulations states:
Contents of statement of waiver. Every statement of waiver must
include a statement indicating that the respondent interested party
waives participation in the sunset review before the [USDOC]; a
statement that the respondent interest ed party is likely to dump ... if
the order is revoked or the investigation is terminated[.]
242

108. Pursuant to Section 751(c)(4)(A) of the Tariff Act, an interested party is allowed to
waive its right to participate in the review c onducted by the USDOC while still being able to
participate in the review conducted by the United States International Trade Commission (the
"USITC").243 In such instances, Section 751(c)(4)(B) re quires the USDOC to make an affirmative
determination of likely dumping "with respect to that interested party". Section 351.218(d)(2)(ii) of
the Regulations sets out the contents of the statemen t that must be submitted by the interested party
wishing to waive its participation. As a result of the amendments to the Regulations, the statement of
waiver now must include "a statement that the res pondent interested party is likely to dump ... if the
order is revoked or the investigation is terminated."

241See Exhibit ARG-33 submitted by Argentina to the Panel.
242See supra, footnote 9, p. 62064.
243We assume, and Argentina has not alleged otherwise, that an exporter that fails to respond to the
USDOC's notice of initiation, or provides an incomplete re sponse, does not waive its right to participate in the
USITC component of the sunset review.

109. Argentina does not appeal the Panel's finding that "the concept of waiver set out in
Section 751(c)(4) of the Statute, in conj unction with the regulatory provisions in
Section 351.218(d)(2), now refers only to the affirmative waiver situation that is, where an
exporter elects not to participate in a review by filing an affirmative statement of waiver,
accompanied by a statement that the exporter is likel y to continue or resume dumping in the absence
of the order."
244 Argentina confirmed at the oral hearing that it does not contest this finding.
Consequently, in our analysis, we proceed on the basis that the amended waiver provisions require the
USDOC to make an affirmative company-specific finding only in cases where an exporter files a
statement of waiver, that is, in cases of "affirmative" waiver.245
110. In addition to the elimination of "deemed" waiv ers, there are significan t differences in the
requirements that apply to "affirmative" waiver s under the amended Regulations. Prior to the
amendments, an exporter wishing affirmatively to waive its participation in the USDOC's sunset
review had to submit a statement of waiver "indicating that [it] waives participation in the sunset
review".
246 The amendments to the Regulations intro duced a new requirement: in addition to the
statement indicating its intention to waive its partic ipation, a waiving exporter must also include "a
statement that [it] is likely to dump ... if the order is revoked or the investigation is terminated." The
Panel acknowledged that this statemen t "may constitute at least part of the evidentiary basis on which

244Panel Report, para. 7.31. (original emphasis; footnote omitted)
245In US – Section 211 Appropriations Act, the Appellate Body stated that:
... a panel may examine the municipa l law of a WTO Member for the
purpose of determining whether that Member has complied with its
obligations under the WTO Agreement . Such an assessment is a legal
characterization by a panel. And, therefore, a panel's assessment of
municipal law as to its consistency with WTO obligations is subject to
appellate review under Article 17.6 of the DSU.
(Appellate Body Report, US – Section 211 Appropriations Act, para. 105)
246Prior to the amendments, Section 351.218(d)(2)(ii) read as follows:
Contents of statement of waiver . Every statement of waiver must include a
statement indicating that the respondent interested party waives participation
in the sunset review before the [USDOC] and the following information:
(A) The name, address, and phone number of the respondent interested party
waiving participation in the sunset review before the [USDOC];
(B) The name, address, and phone number of legal counsel or other
representative, if any;
(C) The subject merchandise and country subject to the sunset review; and
(D) The citation and date of publication in the F EDERAL REGISTER of the
notice of initiation.
(See Exhibit US-13 submitted by the United States to the Panel)

the authorities may base their sunset determinations".
247 Argentina recognizes that this statement is an
admission that may be accorded weight.248
111. The significance of the amendments made to th e Regulations lies in the relationship between
the statement submitted by the waiv ing exporter and the conclusion th at the USDOC is required to
draw from the waiver pursuant to Section 751(c)(4)(B) of the Tariff Act. Prior to the amendments to
the Regulations, the statement submitted by the waiv ing exporter indicated only that the exporter did
not intend to participate in the USDOC sunset re view; the statement said nothing about whether
the exporter was likely to dump if the order we re revoked or the investigation terminated.
Nevertheless, that was the conclusion drawn fro m the waiver by the USDOC in accordance with
Section 751(c)(4)(B). The waiver triggered the conclusion and there was no evidentiary basis to
support it. Therefore, the conclusion drawn by th e USDOC pursuant to Section 751(c)(4)(B) was a
mere assumption. As the Appellate Body explaine d in the original proceedings, the USDOC arrived
at "affirmative company-specific determinations wit hout regard to any evidence on record", and thus
the company-specific determinations were "merely assumptions made by the agency, rather than
findings supported by evidence".249
112. Pursuant to the amended Regulations, an e xporter who chooses to waive participation
must now submit a statement indicating that it is likely to dump if the order is revoked or the
investigation is terminated. The conclusion draw n by the USDOC from the statement, pursuant to
Section 751(c)(4)(B) of the Tariff Act, is now sy nonymous with the statement submitted by the
waiving exporter; there is a clear relationship be tween the statement and the conclusion drawn by the
USDOC. A statement by an interested party who elects to make an admission, plainly against its own
interest
250, as to its future conduct thereby provides significant, and sometimes overwhelming,
evidence for the conclusion that is mandated by the statute. The st atement required by the amended
Regulations is such an admission and constitutes evid ence that warrants the finding that is statutorily

247Panel Report, para. 7.36.
248Argentina's appellee's submission, paras. 19 and 25; Argentina's response to questioning at the oral
hearing.
249Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 234. (original
emphasis)
250Admissions are generally taken to be reliable because they are adverse to the interests of the parties
making them. There may be exceptional circumstances wh ere this may not be the case. Argentina offered a
hypothetical example at the oral hearing involving st rategic behaviour by a foreign affiliate of a petitioner
domestic industry. The affiliate files a statement of waiver in order to make an affirmative order-wide
determination more likely, for the benefit of its parent company. However, the United States has indicated that,
if such a situation were to arise, evidence contradic ting the waiving exporter's ad mission may be placed on the
record of the sunset review and must be considered by the USDOC before it makes the order-wide
determination. (United States' response to questioning at the oral hearing) See also United States' response to
Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.

mandated, because there is an unremarkable, and en tirely rational, chain of reasoning that links the
evidence of what a party says it will do to the finding that such party is likely to act in accordance
with its acknowledged intention. Accordingly, th e waiving exporter's statement clearly constitutes
positive evidence and provides a reasoned basis fo r the USDOC to make the company-specific
findings required by Section 751( c)(4)(B) of the Tariff Act. In these circumstances, we do not
consider that the company-specific findings that rest upon the exporter's statement can be described as
"merely assumptions made by the agency, rather than findings supported by evidence". 251 Likewise,
although the company-specific finding of likelihood of dumping is still statutorily mandated, the legal
consequence mandated by the statute does not go beyond what is declared by the waiving exporter in
its statement of waiver. Therefore, even though Section 751(c)(4)(B) has not been amended, the
manner in which it operates in conjunction with th e amended Regulations has changed significantly,
and this informs our assessment of the consiste ncy of the amended waiver provisions with
Article 11.3 of the Anti-Dumping Agreement.
113. We also note that exporters are not compelled to waive their right to participate in a sunset
review. An exporter that submits a statement of waiver does so voluntarily. Exporters have the
option to participate actively in the proceedings before the USDOC and to submit evidence.
Alternatively, exporters may choose to remain silent , by failing to respond to a notice of initiation, in
which case no company-specific determination will be made by the USDOC for that exporter.
252
114. Having considered the underlying basis of the company-specific findings, we now address the
relationship of these findings with the order-wide de termination. The United States asserted that,
"[i]n making its order-wide de termination, [the USDOC] must consider all information and argument
on the record of the sunset proceeding". 253 Argentina's argument is that, in the original proceedings,
the Appellate Body did not consider relevant whether other evidence in the record would be
considered by the USDOC when making the order-wide determination. 254 Argentina points to the
following statement made by the Appellate Body in the original proceedings:

251Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 234. (original
emphasis)
252See supra, para. 93.
253United States' response to Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.
(emphasis added)
254Argentina's appellee's submission, paras. 2, 17-18, and 36.

[E]ven assuming that the USDOC ta kes into account the totality of
record evidence in making its orde r-wide determination, it is clear
that, as a result of the operation of the waiver provisions, certain
order-wide likelihood determinations made by the USDOC will be
based, at least in part, on statutorily-mandated assumptions about a
company's likelihood of dumping.
255 (original emphasis)

115. The Appellate Body's statement must be read in the light of the measures at issue in the
original proceedings. As we have explained, be fore the amendments to the Regulations, the USDOC
made company-specific findings for exporters that f iled incomplete submissions or failed to respond
to a notice of initiation. In addition, the company- specific findings with resp ect to waiving exporters
were based on statements that said nothing about wh ether the exporter was likely to dump if the order
were revoked or the investigation terminated. In neither case were the company-specific findings
based on positive evidence; instead, the company-specific findings were based on assumptions. This
flaw could not be rectified by the USDOC's cons ideration, at the order-wide level, of evidence
contradicting the company-specific finding. This is because the finding was based on an assumption,
and not on evidence, and therefore was not capable of being properly weighed at the order-wide level
against other evidence that may have been on the record.
116. The situation of the amended waiver provisions is different. We explained above that
company-specific findings are no longer based merely on assumptions. Rather, the company-specific
finding is based on a statement by the exporter that it is likely to dump if the order were revoked or
the investigation terminated. This statement cons titutes positive evidence. In addition, the amended
waiver provisions do not preclude the USDOC from considering other evidence on the record when
making an order-wide determination.
256 Thus, at both the company-specific and order-wide levels of
analysis, the USDOC's findings would have an eviden tiary basis and the totality of the evidence must
be weighed before the order-wide determination is made.
117. Turning to the Panel's analysis, we note that, even though Argentina did not premise its claim
on whether the company-specific findings were dete rminative for the order-wide determination, the
Panel focused its reasoning on this issue. The Panel described the relationship between company-
specific findings and the order-wide determination as follows:

255Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 234.
256United States' appellant's submission, paras. 12 an d 31-32. See also United States' response to
Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.

Given that Section 751(c)(4)(B) requires the USDOC to make an
affirmative likelihood determinati on for individual exporters who
waive their right to participate, it seems to us that such company-
specific determinations would necessarily have a significant impact
on, or even determine , the outcome of the USDOC's order-wide
determination. Hence, we can re asonably conclude that in every
sunset review involving multiple exporters the USDOC will have to
find likelihood on an order-wide basis if one exporter waives its right
to participate, because otherw ise the USDOC would have found no
likelihood with respect to the exporters who waive their right to
participate.
257 (emphasis added)

In such cases, the Panel added, "[t]he provisions of Section 751(c)(4)(B) of the Tariff Act ... would
preclude the USDOC from taking into considerati on evidence submitted by cooperating exporters or
evidence otherwise collected by the USDOC in sun set reviews where there is at least one other
exporter who waives its right to participate" and, as a result, "the USDOC's order-wide determination
would be based on the assumption that because one exporter waived its right to participate and
acknowledged to be likely to continue or resume dum ping, other exporters are also likely to continue
or resume dumping."258
118. We are unable to agree with the Panel's analysis for several reasons. First, the Panel did not
fully appreciate the consequences that flow from th e fact that, under the amended waiver provisions,
the company-specific findings are now based on positiv e evidence taking the form of an admission.
Secondly, as we have noted, Argentina did not set out to demonstrate that the company-specific
findings determine the outcome of the order-wide de termination. Rather, Argentina sought to prove
that "the order-wide determination will be based, at least in part, on statutorily-mandated findings",
which Argentina claims is sufficient to establish a violation of Article 11.3 of the Anti-Dumping
Agreement.259
119. In addition, we note that the Panel conclude d that the amended waiver provisions "would
preclude the USDOC from taking into considerati on evidence submitted by cooperating exporters or
evidence otherwise collected by the USDOC in sun set reviews where there is at least one other
exporter who waives its right to participate". 260 The Panel also concluded that "company-specific
determinations would necessarily have a significant impact on, or even determine, the outcome of the

257Panel Report, para. 7.39.
258Ibid., para. 7.40. (footnote omitted)
259Argentina's appellee's submission, para. 48 (referring to Appellate Body Report, US – Oil Country
260Panel Report, para. 7.40.

USDOC's order-wide determination."
261 However, the United States emphasized before the Panel
that, "[i]n making its order-wide determination, [the USDOC] must consider all information and
argument on the record of the sunset proceeding." 262 Furthermore, the United States pointed out that
"the relevance of ... a company-specific finding to the ultimate likelihood determination always would
depend on the facts on the administrative record in that sunset review."263
120. We observe that a respondent's explanation of the basis on which its investigating authority
will make a determination will have more weight if it is confirmed by the text of the applicable laws
or regulations. But the United States' statements that the USDOC must consider all information and
arguments on the record, and that the relevance of a company-specific finding to the order-wide
likelihood determination would alwa ys depend on the facts of each case, cannot be rejected merely
because there is no legal instrument that expressly requires the USDOC to act in this way. This is
insufficient to support properly a finding of incons istency as such. Thus, the Panel's reasoning seems
speculative, and this is reflected in the language used in the Panel Report.264
121. In sum, on the basis of the evidence on the Pa nel record, we are not persuaded that the
amended waiver provisions preclude the USDOC from making a reasoned determination with a
sufficient factual basis, as required by Article 11.3 of the Anti-Dumping Agreement . Under the
amended waiver provisions, a company-specific findi ng is not based on an assumption but, rather, on
a statement by the waiving exporter indicating that it is likely to dump if the order were revoked or the
investigation terminated. Moreover, the ame nded waiver provisions do not preclude the USDOC
from considering other evidence on the record of the sunset review. Indeed, under Article 11.3 of the
Anti-Dumping Agreement, the USDOC would have to consider any other evidence on the record, and
assess the statement of waiver in the light of th at other evidence, before making the order-wide
determination. If it failed to do so, it would not exercise the degree of diligence required of

261Panel Report, para. 7.39.
262United States' response to Question 4(a) posed by the Panel, Panel Report, p. E-58, para. 13.
(emphasis added)
263Ibid.
264For example, the Panel stated that "the USDOC may have to find likelihood on an order-wide basis
because of the company-spec ific determinations that it may have ma de under Section 75 1(c)(4)(B) for the
waiving exporters." (Panel Report, para. 7.37 (emphasis added)) Later, the Panel found it " difficult to
understand how the USDOC would find no likelihood of continuation or recurrence of dumping on an order-
wide basis in a sunset review where it may have made an affirmative likelihood determination for some
exporters pursuant to Section 751( c)(4)(B) of the Tariff Act." ( Ibid., para. 7.39 (emphasis added)) Finally, the
Panel stated that it " [could] reasonably conclude that in every sunset review involving multiple exporters the
USDOC will have to find likelihood on an order-wide ba sis if one exporter waives its right to participate,
because otherwise the USDOC would ha ve found no likelihood with respect to the ex porters who waive their
right to participate." (Ibid. (emphasis added))

investigating authorities, nor could it make a reasoned determination with a sufficient factual basis, as
required by Article 11.3 of the Anti-Dumping Agreement.
122. For these reasons, we reverse the Panel's finding, in paragr aphs 7.41 and 8.1(a) of the
Panel Report, that Section 751(c)(4)(B) of the Tariff Act, operating in conjunction with
Section 751(c)(4)(A) of the Tariff Act and Section 3 51.218(d)(2) of the Regulations, is inconsistent
with Article 11.3 of the Anti-Dumping Agreement. In the light of our finding, we do not consider it
necessary to examine whether the Panel failed to make an objective assessment of the matter before it,
as required by Article 11 of the DSU.

V. The USDOC's Finding on Import Volumes
123. We turn now to the United States' appeal of the Panel's conclusion that it could properly
examine the USDOC's finding that the volume of imports of oil country tubular goods ("OCTG")
from Argentina declined after the imposition of the anti-dumping duty order. We begin with a brief
summary of the relevant aspects of the original proceedings and a descrip tion of the Section 129
Determination issued by the USDOC after the or iginal panel and Appella te Body reports were
adopted by the DSB. This is followed by a summar y of the findings of the Panel in these Article 21.5
proceedings and the claims and arguments raised in this appeal. We then consider whether it was
proper for the Panel to examine the USDOC's finding that import volumes declined after the
imposition of the anti-dumping duty order, which is incorporated into the Section 129 Determination.
A. Original Proceedings
124. In the original sunset review, the USDOC based its affirmative determination of likelihood of
dumping on two bases: (i) that dumping continued above de minimis levels during the time the anti-
dumping duty order was in place; and (ii) that im port volumes declined after the imposition of the
anti-dumping duty order.
265 Argentina argued before the origin al panel that the USDOC's likelihood-
of-dumping determination did not meet th e requirements of Article 11.3 of the Anti-Dumping
Agreement.266
125. The original panel began its assessment with the first basis of the USDOC's determination. It
noted that the USDOC had relied on the dumping ma rgin determined for Ar gentine OCTG in the
original investigation to conclude that dumpi ng had continued during the time the anti-dumping duty
order was in place. The original panel rejected th is approach because, in its view, "the original

265Original Panel Report, para. 7.213.
266Ibid., paras. 3.1, 7.214, and 7.218.

determination of dumping by itself cannot represent a sufficient factual basis for concluding that
dumping continued during the life of the measure, le t alone representing an adequate factual basis to
conclude that dumping is likely to continue or recur after the expiry of the order."
267 Therefore, the
original panel concluded that "the USDOC's likelihood determination in the instant sunset review was
inconsistent with Article 11.3 of the Anti-Dumping Agreement."268
126. At the interim review stage, Argentina requ ested that the original panel "make findings
regarding the USDOC's reliance on the post-order d ecline in the volume of imports of OCTG from
Argentina".269 The United States suggested that the original panel exercise judicial economy with
respect to the USDOC's finding on import volumes.270
127. In response, the original panel stated:
We note that in paragraphs 7.20 1-7.206 below, we made the
relevant factual findings regardi ng Argentina's claim challenging the
USDOC's determinations in the OCTG sunset review. In particular,
in paragraph 7.202, we observed as a matter of fact that the USDOC
had based its likelihood determina tion on the facts that dumping had
continued over the life of the measure and that import volumes of the
subject product had declined. It is, therefore, clear that we have
made relevant factual findings in th is regard. As far as legal findings
are concerned, we note that we have decided Argentina's claim
regarding the USDOC's likelihood determinations in the OCTG
sunset review. We have found that the USDOC's reliance on the
existence of the original dumping margin was inconsistent with
Article 11.3 of the Anti-Dumping Agreement. We therefore did not
need to address whether the USDOC's reliance on declined import
volumes was yet another action incons istent with that article.
Argentina argues that we should make a finding in this regard in case
our decision is appealed and the Appellate Body finds that the
USDOC's reliance on the original dumping margin was in fact
consistent with Article 11.3. We do not consider, however, that it
would be appropriate to make an additional legal finding based on
the hypothetical situation Argentina posits. We therefore decline to
make additional findings in this regard.
271

267Original Panel Report, para. 7.219.
268Ibid., para. 7.221.
269Ibid., para. 6.9.
270Ibid., para. 6.10.
271Ibid., para. 6.11.

Argentina did not appeal the original panel's decision not to make an additional finding on the
USDOC's volume analysis. Neither did the United St ates appeal the original panel's finding that the
likelihood-of-dumping determination was in consistent with Article 11.3 of the Anti-Dumping
Agreement.
B. Measures Taken to Comply
128. On 16 December 2005, the USDOC made a new likelihood-of-dumping determination
pursuant to Section 129 of the Uruguay Round Ag reements Act (the "URAA"). The USDOC
concluded that "there is likelihood of continuation or recurrence of dumping had the antidumping duty
order on OCTG from Argentina been revoked in 2000, i.e., at the end of the original sunset review
period."272 The analysis in the Section 129 Determination focuses on whether dumping continued
during the time the anti-dumping duty order was in place, that is, the first basis of the original sunset
determination. The USDOC did not re-examine the s econd basis of its original sunset review, that is,
the finding that the volume of imports had dec lined after the imposition of the anti-dumping duty
order. Nevertheless, the Section 129 Determina tion contains several references to the USDOC's
previous finding regarding the volume of imports.273
C. Panel Proceedings pursuant to Article 21.5 of the DSU
129. Before the Panel, Argentina asserted that the Section 129 Determinati on fails to bring the
United States into conformity with Article 11.3 of the Anti-Dumping Agreement . Argentina
challenged the USDOC's findings regarding likely past dumping, as well as the post-order decline in
import volumes.274 The United States responded that the incor poration of the analysis of the decline
in import volumes from the original sunset determin ation into the Section 129 Determination is not
part of the "measure taken to comply" with the recommendations and rulings of the DSB. 275 T h e
United States underscored that "the original panel and the Appellate Body did not make any findings
regarding the USDOC's volume analysis in the original proceedings".276

272Section 129 Determination, supra, footnote 11, p. 11.
273See infra, para. 145.
274Panel Report, paras. 7.64 and 7.81.
275Ibid., para. 7.82.
276Ibid.

130. The Panel observed that both Argentina and the United States noted that "the original panel
applied judicial economy with respect to the USDOC's volume analysis."
277 The Panel then stated
that "[t]he issue ... here is whether the volume analysis used by the USDOC in its Section 129
Determination—the basis of an issue that was rais ed and argued in the original proceedings, but on
which the [original] panel did not make a finding—is part of the measure taken to comply by the
United States and is therefore properly before [the Panel]."278
131. In resolving this issue, the Panel noted that the USDOC based its conclusion in the
Section 129 Determination on both the finding of likely past dumping and the finding on import
volumes from the original sunset review. 279 "As such", the Panel "consider[ed] the volume analysis
from the original sunset review to have become an integral part of the Section 129 Determination." 280
The Panel therefore found that "the volume analysis from the original sunset review is part of the
measure taken to comply by the United States an d hence is properly before [the Panel] in these
proceedings."281
132. The Panel rejected the United States' argument that Argentina was precluded from raising the
claim in the Article 21.5 panel proceedings because th e original panel had declined to make a finding
on that issue.282 The Panel explained:
The fact that a panel, in an orig inal dispute settlement proceeding,
did not make findings regarding certain issues relating to the
investigating authorities' determina tion that were raised and argued
before the panel, cannot preclude a compliance panel, in its
assessment under Article 21.5 of the DSU of the measures taken to
comply with the DSB recommendations and rulings, from reviewing
those aspects which have been incorp orated by the authorities in the
measure taken to comply.
283

In addition, the Panel rejected the United States' reliance on the Appellate Body's findings in
EC – Bed Linen (Article 21.5 – India) because it considered that the facts in that case differed from
those before it. The Panel explained that the panel in the original proceedings in EC – Bed Linen

277Panel Report, footnote 56 to para. 7.89 (referring to Argentina's and the United States' responses to
Question 17(a) posed by the Panel, Panel Report, p. E-25, paras. 65-68 and p. E-72, paras. 68-69, respectively).
278Ibid., para. 7.90.
279Ibid., para. 7.91.
280Ibid.
281Ibid.
282Ibid., para. 7.92.
283Ibid.

dismissed India's claim because India had failed to make out a prima facie case, whereas the original
panel in this dispute exercised judicial economy with respect to Argentina's claim.284
133. Having decided that the USDOC's finding on import volumes was properly before it, the
Panel examined its consistenc y with Article 11.3 of the Anti-Dumping Agreement . In the Panel's
view, the USDOC's finding regarding the decline in the volume of imports was not based on a
thorough evaluation of all possible causes of such a decline. The Panel pointed out that "the
Section 129 Determination fails to examine potentia l reasons, other than a likelihood of continuation
or recurrence of dumping, that could have tr iggered the decline in the volume of imports."
285 For this
reason, the Panel found that "[t]he USDOC's determ ination regarding the decline in the volume of
imports lacks a sufficient factual basis."286 The Panel concluded:
We have found above that both factual foundations of the USDOC's
order-wide likelihood determination with respect to the imports of
OCTG from Argentina, i.e. its findings regarding likely past dumping
and the volume of imports, lack a sufficient factual basis. We
therefore find the USDOC's order-wide determination to be
inconsistent with Article 11.3 of the [Anti-Dumping] Agreement.
287

D. Claims and Arguments on Appeal
134. The United States claims that the Panel erred in finding that the USDOC's "volume analysis
was part of the measure taken to comply, even though that analysis was from the original
determination and was simply incorporated by reference in the Section 129 determination." 288 Th e
United States emphasizes that "[t]he text of Artic le 21.5 [of the DSU] provides that a compliance
proceeding concerns the measure taken to comply with the recommendations and rulings of the DSB.
Thus, the recommendations and rulings are the a ppropriate starting point for an analysis of
compliance."289 The United States explains that "the original Panel declined to make any
recommendations or rulings regarding the volume analysis" and, therefore, "there was no

284Panel Report, paras. 7.93-7.96.
285Ibid., para. 7.101 and footnote 76 thereto. Siderca explained that it had diversified its export markets
following the imposition of the anti-dumping duty order by the USDOC. Thus, the decline in United States
imports of OCTG from Argentina was the result of this di versification rather than an alleged inability to sell in
the United States without dumping. (Argentina's first wr itten submission to the Panel, Panel Report, p. A-33,
para. 130) See also Siderca's response to the USDOC questionnaire (30 November 2005) (public version)
(Exhibit ARG-15 submitted by Argentina to the Panel), pp. 7-10.
286Panel Report, para. 7.101.
287Ibid., para. 7.102.
289Ibid., para. 37. (original emphasis)

recommendation or ruling with which to comply in that respect."
290 As a result, the United States
argues, "the unaltered, original volume analysis, which was incorporated by reference into the
section 129 determination, was not part of the measure taken to comply, and was not within the scope
of the compliance proceeding."291
135. In support of its argument, the United States refers to the Appellate Body Report in EC – Bed
Linen (Article 21.5 – India) where the Appellate Body held that, the fact that a particular analysis is
incorporated into a re-determination, or indeed form s part of the basis for a re-determination, does not
render that analysis an inseparable part of the measure taken to comply. 292 The United States also
relies on the Appellate Body's finding that a claim in respect of which a complainant had failed to
make a prima facie case in the original proceedings cannot be reasserted in the Article 21.5
proceedings.293 For the United States, this reasoning "i s equally applicable when a panel has
exercised judicial economy, in particular when the complaining party d eclines to appeal such
exercise".294 The United States refers also to what it describes as "another logically, and procedurally,
troubling aspect to the Panel's reasoning". 295 The United States submits that, under the approach
followed by the Panel, "if a panel declines to make findings with respect to a particular aspect of a
measure in an original proceeding, the responding Member is, nevertheless, under an obligation to
guess that the panel might have thought there were WTO inconsistencies with that aspect of the
measure".296 Moreover, the United States argues that a respondent whose measure is found to be
WTO-inconsistent for the first time by a complianc e panel is not given a "reasonable period of time"
to bring itself into conformity, as is the case in original proceedings.297
136. For these reasons, the United States requests the Appellate Body to reverse the Panel's finding
that "the original volume analysis was part of the measure taken to comply" and that, as a
consequence, "the Panel's finding that the volume an alysis is inconsistent with Article 11.3 should be
declared moot and of no legal effect."298

290United States' appellant's submission, para. 38. (original emphasis)
291Ibid.
292Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 86).
293Ibid., para. 47 (referring to Appellate Body Report, EC – Bed Linen (Article 21-5 – India), para. 96).
294Ibid., para. 48.
295Ibid., para. 49.
296Ibid. (original emphasis)
297Ibid., para. 36.
298Ibid., para. 51.

137. Argentina contends that the USDOC incorporat ed by reference and relied upon the volume
analysis in the Section 129 Determination and, therefor e, it is part of the "measure taken to comply".
According to Argentina, the situation in the present case is different from the situation in EC – Bed
Linen (Article 21.5 – India) where the Appellate Body stated that a complainant could not reassert a
claim in the Article 21.5 proceedings if the or iginal panel made a definitive ruling of WTO-
consistency or found that the complainant failed to make a prima facie case.299 Either of these
findings constitute a "final resolution" of the issu e between the parties, which is not the case where
the original panel exercises judicial economy. 300 Argentina draws attention to a statement by the
Appellate Body in EC – Bed Linen (Article 21.5 – India) that a complainant should not be prevented
from reasserting a claim if the panel exercises false judicial economy. 301 In addition, Argentina
argues that the United States cannot unilaterally de termine the scope of the "measures taken to
comply". Finally, Argentina dismisses the United States' arguments of procedural unfairness, because
the issue of the decline in import volumes was argued by the parties both before the original panel and
in the Article 21.5 panel proceedings.
E. Whether the USDOC's Finding on Import Volumes was Properly Before the Panel
138. The issue on appeal is whether the USDOC's fi nding that the volume of imports of OCTG
from Argentina declined after the imposition of the anti-dumping duty order—which was made in the
original sunset determination and incorporated in to the Section 129 Determination—is part of the
"measure taken to comply" within the meaning of Article 21.5 of the DSU.
139. Article 21.5 of the DSU provides, in relevant part:
Where there is disagreement as to th e existence or consistency with a
covered agreement of measures taken to comply with the
recommendations and rulings such dispute shall be decided through
recourse to these dispute settlement procedures, including wherever
possible resort to the original panel.

140. The Appellate Body has explained that a "Member 's designation of a measure as one taken 'to
comply', or not, is relevant to this inquiry, but it cannot be conclusive."
302 Instead, "it is, ultimately,

299Argentina's appellee's submission, para. 81 (referring to Appellate Body Report, EC – Bed Linen
(Article 21.5 – India), para. 96).
300Ibid., para. 81.
301Argentina relies in particular on the Appellate Body's statement that the issue raised in the EC – Bed
Linen (Article 21.5 – India) appeal "is different from a situation where a panel, on its own initiative, exercises
'judicial economy' by not ruling on the substance of a claim." ( Ibid., para. 82 (quoting Appellate Body Report,
EC – Bed Linen (Article 21.5 – India), footnote 115 to para. 96 (original emphasis)))
302Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 73. (footnote
omitted)

for an Article 21.5 panel—and not for the complain ant or the respondent—to determine which of the
measures listed in the request for its estab lishment are 'measures taken to comply'."
303 Nonetheless,
the Appellate Body has cautioned that "characterizing an act by a Member as a measure taken to
comply when that Member maintains otherwise is not something that should be done lightly by a
panel."
304
141. Turning to the particular facts of this case, we recall that the USDOC's affirmative
determination of likelihood of dumping in the Sec tion 129 Determination is premised on two factual
bases: (i) the finding of likely past dumping during the period of review; and (ii) the finding that
import volumes declined after the imposition of the anti-dumping duty order, which was made in the
original sunset determination and is incor porated into the Section 129 Determination.
305 I t i s
undisputed that the USDOC did not conduct a new an alysis of the volume of imports for purposes of
the Section 129 Determination. It is also undisputed that no changes were made by the USDOC to the
analysis it had conducted in the original sunset revi ew; rather, that analysis is incorporated by
reference without modification. Furthermore, it is undisputed that Argentina challenged the USDOC's
volume analysis in the original panel proceedings and the original panel did not make a finding
regarding the WTO-consistency of that analysis. Although the original panel did not expressly label it
as such, Argentina and the United States both have ch aracterized the original panel's approach to the
issue as an exercise of judicial economy.306
142. The Appellate Body has explained that the fi rst sentence of Article 21.5 establishes an
"express link between the 'measures taken to comp ly' and the recommendations and rulings of the
DSB" and, therefore, "determining the scope of 'measures taken to comply' in any given case must
also involve examination of the recommendations a nd rulings contained in the original report(s)
adopted by the DSB."
307 Accordingly, to determine the scope of the "measure taken to comply" in
this case, we look first to the recommendations and rulings of the DSB in the original proceedings and
to what they required of the United States . We then examine the specific steps taken by the United
States to bring into conformity the measure found to be inconsistent in the original proceedings.

303Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 78. (footnote omitted)
304Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 74.
305Panel Report, para. 7.87.
306Ibid., footnote 56 to para. 7.89. The original panel's decision not to make findings as to the WTO-
consistency of the USDOC's volume analysis was not appealed by Argentina.
307Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 68.

143. The original panel concluded that "the USDOC 's likelihood determination in the instant
sunset review was inconsistent with Ar ticle 11.3 of the Anti-Dumping Agreement." 308 It is evident
from this language that the original panel's fi nding of WTO-inconsistency is addressed to the
USDOC's likelihood-of-dumping determination. Ther efore, to comply with the original panel's
finding, as adopted by the DSB, the United States had to bring its determ ination of likelihood of
dumping into conformity with Article 11.3 of the Anti-Dumping Agreement. How it chose to do so
was, in principle, a matter for the United States to decide. The original panel did not make a specific
legal finding concerning the USDOC's finding on im port volumes because it had already found that
the factual basis of the original sunset determin ation was not proper. Thus, the original panel
considered that this finding invalidated the likelihood-of-dumping determination. 309 There was no
need for it to consider whether that determinati on was defective for other reasons. The original
panel's conclusion concerning the USDOC's likel ihood-of-dumping determination should not be
confused with the particular reason that provided the basis for that conclusion.
144. Turning to the steps taken by the USDOC to br ing its measure into compliance, we note that
the Section 129 Determination states expressly that the review was initiated "to address the [original
panel's] findings concerning the [U SDOC's] likelihood determination". 310 In the Section 129
Determination, the USDOC concluded that "there is likelihood of continuation or recurrence of
dumping had the antidumping duty order on OCTG from Argentina been revoked in 2000, i.e., at the
end of the original sunset review period."311
145. As noted earlier, the finding on import volumes is one of two factual premises on the basis of
which the USDOC made its affirmative determin ation of likelihood of dumping. The Section 129
Determination indicates that the USDOC relied on both factual premises to make its affirmative
determination. This is evident in the following excerpts from the Section 129 Determination:
Based upon this information and argument, as well as findings on
import volumes during 1995-2000 from the original sunset review ,
we continue to find that revocation of the order would be likely to
lead to continuation or recurrence of dumping.

308Original Panel Report, para. 7.221.
309We note that, in response to Argentina's request at the interim review stage that it make a finding on
the USDOC's reliance on the post-order decline in the volume of imports, the original panel stated that it had
"decided Argentina's claim regarding the USDOC's likelihood determinations in the OCTG sunset review".
(Ibid., para. 6.11)
310Section 129 Determination, supra, footnote 11, p. 2.
311Ibid., p. 11.

In making our likelihood determination, we also relied on our
previous finding regarding th e volume of imports of subject
merchandise for the period before and the period after the issuance of
the antidumping duty order.

In assessing likelihood, we also rely on our previous finding
regarding the volume of imports of subject merchandise for the
period before and the period afte r the issuance of the antidumping
duty order. In the original sunset review, we found that after
imposition of the order, import volumes significantly decreased from
pre-order levels. Declining impor t volumes after, and apparently
resulting from, imposition of an antidumping duty order indicate that
exporters would need to dump to sell at pre-order levels.
312 (footnote
omitted; emphasis added)

Before the Panel, the United States agreed that , "in addition to its finding regarding likely past
dumping, the USDOC relied on its volume analysis from the original sunset review as the basis of its
new sunset determination."313
146. The USDOC's reasoning in the Section 129 Dete rmination indicates that the two factual
premises operated together to support the determination of likelihood of dumping. 314 The affirmative
determination of likelihood of dum ping follows consideration of both the finding of likely dumping
during the time the anti-dumping dut y order was in place and the finding that the volume of imports
declined after the imposition of the order. Becau se the likelihood-of-dumping determination in the
Section 129 Determination is premised on bot h bases, which together support the affirmative
likelihood determination, we consider that the US DOC's finding that the volume of imports declined
after imposition of the anti-dumping duty order is an in tegral part of the "measure taken to comply" in
this case. This is consistent with the Appellate Body's statement in US – Shrimp (Article 21.5 –

312Section 129 Determination, supra, footnote 11, pp. 1, 6, and 11.
313Panel Report, para. 7.90.
 314The European Communities states that the likelihood-of-dumping determination is based on a single
bundle of facts and evidence that cannot be divided. (European Communities' statement at the oral hearing) The
European Communities also points out that the proper test to determine whether an aspect of a measure is part of
the "measure taken to comply" is "whether what is at stake is just one WTO obligation, or more than one". The
European Communities argues that, in this case, "there is one WTO obligation: ... to make the determination in
Article 11.3 of the Anti-Dumping Agreement " and "one finding". According to the European Communities,
"this is sufficient to distinguish [this] case from the EC – Bed Linen (Article 21.5 – India) case, which involved
different legal obligations". (European Communities' third participant's submission, paras. 15-16)
 China argues that, "since the volume analysis is an indispensable factual basis of the USDOC's
Section 129 Determination, it is unreasonable and illogical to conclude that the measure constitutes a measure
taken to comply while the factual basis thereunder is not part of such a compliance measure." (China's third
participant's submission, para. 40)

Malaysia) that "the task of a panel in a matter referred to it by the DSB for an Article 21.5 proceeding
is to consider [the] new measure in its totality."315
147. We further note that the Appellate Body considered in US – Softwood Lumber IV
(Article 21.5 – Canada) that "[s]ome measures with a particularly close relationship to the declared
'measure taken to comply', and to the recommend ations and rulings of the DSB, may also be
susceptible to review by a panel acting under Article 21.5." 316 The Appellate Body noted that this
"requires an Article 21.5 panel to examine the fact ual and legal background against which a declared
'measure taken to comply' is adopted" because "[o]nly th en is a panel in a position to take a view as to
whether there are sufficiently close links for it to ch aracterize such an other measure as one 'taken to
comply' and, consequently, to assess its consistency with the covered agreements in an Article 21.5
proceeding."317 If a measure that is formally separate from, but closely linked to, a declared "measure
taken to comply" can fall within the scope of an Article 21.5 proceeding, this would suggest a fortiori
that, when both factual bases are relied upon for a likelihood-of-dumping determination, they can be
considered by an Article 21.5 panel when assessi ng the consistency of th at determination with
Article 11.3.
148. The United States points out that "the original Panel declined to make any recommendations
or rulings regarding the volume analysis" and, therefore, the finding on import volumes could not be
part of the "measure taken to comply".
318 The United States submits that, in EC – Bed Linen
(Article 21.5 – India) , the Appellate Body recognized that th e fact that a particular analysis is
incorporated into a re-determination does not render th at analysis an inseparable part of the "measure
taken to comply". 319 We see significant differences between the facts before the Appellate Body in
EC – Bed Linen (Article 21.5 – India) and those of this appeal. In EC – Bed Linen (Article 21.5 –
India), the issue concerned the investigating authority' s examination of the "other known factors" that
could be injuring the domestic industry at the same time as the dumped imports, and the non-
attribution of that injury, which were considered to be separable components of the "measure taken to
comply" in that case. In the present case, the USDOC's finding on import volumes is merely one
factual basis underlying a single inquiry: the likelihood-of-dumping determination. Moreover, the
likelihood-of-dumping determina tion is supported by the findi ng on import volumes operating
together with the finding of dumping during the period of review (1995-2000). In these
circumstances, we consider that the USDOC's findi ng on import volumes is an integral part of the

315Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para. 87. (emphasis added)
316Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 77.
317Ibid.
319Ibid., para. 44 (referring to Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 86).

likelihood-of-dumping dete rmination. In addition, we note that EC – Bed Linen (Article 21.5 –
India) concerned a claim for which the complain ant was found not to have made out a prima facie
case in the original proceedings. This is not what occurred in the original proceedings in the present
case. The participants have characterized the orig inal panel's approach as an exercise of judicial
economy.
320 We do not express a view on whether this is a proper characterization of the approach
taken by the original panel. In any event, even if the original panel's approach should properly be
characterized as judicial economy, it would still mean that the central rationale of the Appellate Body
in EC – Bed Linen (Article 21.5 – India) would not be applicable. 321 The Appellate Body explained
that the issue raised in that case differ ed "from a situation where a panel, on its own initiative,
exercises 'judicial economy' by not ruling on the substance of a claim."322
149. The United States also raises several concer ns related to the nature of Article 21.5
proceedings, which, in its view, should lead to th e conclusion that it was improper for the Panel to
consider Argentina's claim. First, the United Stat es submits that, because the original panel did not
make a specific finding concerning the USDOC's vol ume analysis, the United States is placed in the
position of having "to guess that the panel might have thought there were WTO-inconsistencies"
with respect to that aspect of the measure. 323 Secondly, the United States points out that a respondent
whose measure is found to be WTO-inconsistent fo r the first time by a compliance panel is not given
a "reasonable period of time" to bring itself into c onformity, as is the case in original proceedings. 324
Instead, the Member concerned could immediately face the suspension of concessions or other
obligations.
150. We do not consider that the concerns identifie d by the United States require that the finding
on import volumes be excluded from the scope of these Article 21.5 proceedings. The original panel
found that the USDOC's likelihood-of-dumping determ ination in the original sunset review was
inconsistent with Article 11.3 of the Anti-Dumping Agreement because it lacked a proper factual
basis. Therefore, the USDOC had to bring its likelihood-of-dumping determination into conformity

321In EC – Bed Linen (Article 21.5 – India) , the Appellate Body referred to situations where there was
a finding of WTO-consistency or the complainant had failed to make out a prima facie case in the original
proceedings. (Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 96) See also Appellate Body
Report, US – Shrimp (Article 21.5 – Malaysia), para. 97.
322The Appellate Body went on to indicate that, "in a situation where a panel, in declining to rule on a
certain claim, has provided only a partial resolution of the matter at issue, a complainant should not be held
responsible for the panel's false exercise of judicial economy, such that a complainant would not be prevented
from raising the claim in a subsequent proceeding." (Appellate Body Report, EC – Bed Linen (Article 21.5 –
India), footnote 115 to para. 96)
323United States' appellant's submission, para. 49. (original emphasis)
324Ibid., para. 36.

with Article 11.3 by ensuring that it rested on a prop er factual basis. On the basis of the original
panel's conclusions, the USDOC could not assume that its findings regarding the alleged decline in
the volume of imports were WTO-consistent. Th e United States was given a "reasonable period of
time" to bring the USDOC's likelihood-of-dumpi ng determination into compliance following the
adoption by the DSB of the panel and the Appellate Body reports in the original proceedings.
Moreover, Argentina's arguments relating to the finding on import volumes were not raised for the
first time in these Article 21.5 proceedings. Instead, the parties have offered arguments and counter-
arguments on the issue twice, first in the orig inal proceedings, and then in these Article 21.5
proceedings. Additionally, we do not believe that Argentina is unfairly getting a "second chance", as
would be the case where a panel or the Appellate Bo dy had found the measure to be WTO-consistent
in the original proceedings, or that the complainant failed to make out a prima facie case.325
151. Furthermore, we recall that the aim of Article 21.5 of the DSU is to promote the prompt
compliance with DSB recommendations and rulings and the consistency of "measures taken to
comply" with the covered agreements by ma king it unnecessary for a complainant to begin new
proceedings and by making efficient use of the or iginal panelists and their relevant experience. 326
These considerations support the Pa nel's finding that the volume analysis was properly before it.
Requiring Argentina to initiate new WTO proceedings against the United States in order to challenge
the USDOC's finding on import volumes would entail a significant delay. 327 Moreover, it would be
difficult to reconcile this with the objective that Article 21.5 panels "exami ne fully the 'consistency
with a covered agreement of the measures taken to comply', as required by [that provision]". 328
Finally, it seems difficult to conceive how the tw o factual bases could each be examined by separate
panels (one of which is operati ng pursuant to Article 21.5), considering that both factual premises
together support the USDOC's likelihood-of-dumping determination.
152. For these reasons, we find that the USDOC's finding on import volumes is part of the
"measure taken to comply" for purposes of these Article 21.5 proceedings. Accordingly, we uphold
the Panel's finding, in paragraphs 7.91 and 7.96 of the Panel Report, that the USDOC's volume
analysis was properly before the Panel. It thereb y follows that the Panel's findings, in paragraphs
7.101, 7.102, and 8.1(c) of the Panel Report, also stand.

325Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 96; Appellate Body Report,
326Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 72.
327The aim of prompt compliance is also embodied in Articles 3.3 and 21.1 of the DSU.
328Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil), para. 41.

VI. New Evidentiary Basis
153. We proceed to Argentina's claim that th e USDOC was not permitted to develop a new
evidentiary basis for its Section 129 Determination. Be fore assessing the merits of this claim, we first
summarize the Panel's findings and then provide an ov erview of the claims and arguments raised by
the participants in this appeal.
A. Panel Proceedings pursuant to Article 21.5 of the DSU
154. We recall that, as part of the measures take n by the United States to comply with the
recommendations and rulings of the DSB stemming from the original proceedings, the USDOC made
a new likelihood-of-dumping determ ination concerning imports of Argentine OCTG, pursuant to
Section 129 of the URAA.
329 Upon initiating the Section 12 9 proceedings, the USDOC issued
questionnaires to three Argentine OCTG producers in which it solicited facts pertaining to the original
review period.330 The Section 129 Determination is based on the answers to the questionnaires by two
of these producers, as well as on the information on the record from the original sunset review.331
155. Before the Panel, Argentina claimed that the USDOC was precluded, under Articles 11.3
and 11.4 of the Anti-Dumping Agreement , from developing "a 'new and different' factual basis in
the 2005 Section 129 review which was not de veloped in the original sunset review". 332 The United
States responded that Argentina's claim had "no text ual support" and that the approach advocated by
Argentina "would make implementation impossible in cases where a Member's determination is found
to lack a sufficient factual basis".333

329See supra, Section V.B.
330The USDOC's questionnaire to Argentine exporters asked for information regarding production
volumes, per-unit cost of manufacture, interest expenses, and consolidated and unconsolidated financial
statements for the fiscal years between July 1995 and June 2000. The questionnaire also asked exporters to
describe the nature of their sales process in their domestic and export markets. (Panel Report, footnote 36 to
para. 7.48) See also USDOC questionnaire to Acindar, Tubhier, and Siderca (31 October 2005) (Exhibit
ARG-13 submitted by Argentina to the Panel).
331Panel Report, para. 7.48. See also Argentina's other appellant's submission, para. 24, where
Argentina lists the following as constituting the "new evidentiary basis" of the Section 129 Determination:
financial statements for Argentine producers for 1995 to 2000; cost information for 10 categories of OCTG
products; a description of each company's sales and ma rketing processes; a statement as to whether the
company exported OCTG to the United States during the 1995-2000 period; confidential import statistics from
the United States Customs and Border Protection; observed selling prices in the United States market during the
1995-2000 period from an industry publication; financial statements of United States producers; and data from
Argentine export statistics.
332Panel Report, para. 7.43.
333Ibid., para. 7.44.

156. The Panel identified the core issue before it as being whether, under Articles 11.3 and 11.4 of
the Anti-Dumping Agreement , the USDOC was allowed to base its Section 129 Determination on
facts pertaining to the original review period—that is, 1995 to 2000—which it collected for the first
time in 2005. 334 In addressing this issue, the Panel turned to the text of Articles 11.3 and 11.4 of
the Anti-Dumping Agreement and explained that, although bot h provisions "reflect temporal
considerations", neither provision, "in isolation, resolve[s] the issue".335 Instead, the Panel considered
that "the resolution of Argentina's claim must ha ve regard to broader, horizontal considerations
underpinning the operation of the WTO dispute settlement system." 336 In the Panel's view,
"Argentina's proposition that the United States was somehow precluded from developing a new
factual basis in its implementing sunset re-determi nation in this case runs counter to the overall
operation of the WTO dispute settlement system, and, in particular, the notion of implementation of
the DSB recommendations and rulings embodied in the relevant provisions of the DSU." 337
Considering the context provided by Articles 3.7, 19.1, and 22.1 of the DSU, the Panel concluded that
"[c]learly ... the non-conforming measure is to be br ought into a state of conformity with specified
treaty provisions either by withdrawing such a measure completely, or, where possible, by
modifying it by revising the inconsistent aspect of the measure involved." 338
157. Finally, the Panel referred to several previous panels that had dealt with similar situations
involving implementation in trade remedies and other areas. 339 According to the Panel, "[t]hese
examples demonstrate that competent authorities of WTO Members may need to collect new
information supplementary to that on the record of their original determinations in making subsequent
determinations in the context of implementing the DSB recommendations and rulings." 340 The Panel
further observed that "[t]he WTO-consistency of collecting new facts in the implementation of the DSB
recommendations and rulings was not que stioned in any one of these cases." 341 Thus, the Panel

334Panel Report, para. 7.49.
335Ibid., para. 7.50.
336Ibid., para. 7.51. The Panel observed that, "pursuant to Article 1.2 of the DSU, the rules and
procedures of the DSU shall apply subject to special or additional rules and procedures identified in Appendix 2
to the DSU. Neither the provisions of Article 11 [of the Anti-Dumping Agreement ] pertaining to reviews,
nor the other provisions of the Agreement pertaining to investigations, are identified as such special or
additional rules and procedures. Accordingly, we believe that the provisions of the DSU and the Anti-Dumping
Agreement must be read together in a coherent manner." (Ibid., footnote 39)
337Ibid., para. 7.52. (original emphasis)
338Ibid., para. 7.54. (original emphasis)
339Ibid., paras. 7.58-7.59. As examples, the Panel referred to Mexico – Corn Syrup (Article 21.5 – US)
and US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) . (Ibid., para. 7.58) The Panel
also mentioned disputes outside of the field of trade remedies, such as Australia – Salmon (Article 21.5 –
Canada) and Japan – Apples (Article 21.5 – US). (Ibid., para. 7.59)
340Ibid., para. 7.60.
341Ibid.

"reject[ed] Argentina's claim that the USDOC acted inconsistently with Articles 11.3 and 11.4 of the
[Anti-Dumping] Agreement by developing a new factual basis pertaining to the original review period
for purposes of its Section 129 Determination."
342
B. Claims and Arguments on Appeal
158. On appeal, Argentina challeng es the Panel's finding that the USDOC was not precluded from
developing a new evidentiary basis for the Section 129 Determination. First, Argentina asserts that
the Panel incorrectly interpreted and applied Articles 11.3 and 11.4 of the Anti-Dumping Agreement,
which contain explicit temporal limita tions applicable to sunset reviews. 343 Argentina further argues
that "[t]he Panel's reliance on 'broader, horizontal considerations underpinning the operation of the
WTO dispute settlement system' led to an incorrect interpretation of the substantive obligations of
Articles 11.3 and 11.4 of the [Anti-Dumping] Agreement." 344 Secondly, Argentina claims that the
Panel did not make an objective assessment of the matter before it, as required by Article 11 of the
DSU, because the Panel "subordinated the actual treaty text of Articles 11.3 and 11.4, and the
disposition of Argentina's claims under these provisions, to broader, 'systemic' considerations of the
WTO dispute settlement system and the hypothetical impact that such a finding might have 'in an
analogous ... context' or in matters 'outside of the trade remedies area.'"
345 Finally, Argentina claims
that the Panel acted inconsistently with Articl es 3.2 and 19.2 of the DSU, because its findings
concerning the USDOC's ability to develop a new fa ctual basis "severely diminished Argentina's
rights, and enhanced the rights of the United States, under the Anti-Dumping Agreement."346
159. The United States responds that "nothing in the text of Articles 11.3 and 11.4 supports
Argentina's assertions" as "[n]either article addresses the issue of whether an investigating authority
may gather new facts to bring a measure into compliance." 347 In addition, the United States argues
that the Panel properly found that Article 19.1 of the DSU "does not prescribe ways in which a WTO-
inconsistent measure may be brought in to conformity with the WTO rules". 348 Furthermore, the
United States questions Argentina's decision to rai se an additional claim under Article 11 of the DSU,
considering that "Argentina is claiming that the Pa nel's interpretation of Articles 11.3 and 11.4 ... was

342Panel Report, para. 7.60.
343Argentina's other appellant's submission, paras. 36-37.
345Ibid., para. 50 (quoting Panel Report, paras. 7.51 and 7.57).
346Ibid., para. 63.

erroneous."349 In any event, the United States asserts th at the Panel properly fulfilled its obligations
under Article 11 of the DSU in its examination of Articles 11.3 and 11.4 of the Anti-Dumping
Agreement and of the context provided by provisions of the DSU, neither of which support
Argentina's position. 350 Accordingly, the United States reque sts that the Appellate Body reject
Argentina's challenge to the Panel's finding that the United States did not act inconsistently with
Articles 11.3 and 11.4 of the Anti-Dumping Agreement by developing a new evidentiary basis for the
Section 129 Determination.351
C. Whether it was Permissible for the USDOC to Develop a New Evidentiary Basis for
the Section 129 Determination
160. The issue raised on appeal is whethe r, under Articles 11.3 and 11.4 of the Anti-Dumping
Agreement, an investigating authority that makes a re-d etermination of likelihood of dumping, for the
purpose of implementing the recommendations and ruli ngs of the DSB, is precluded from developing
a new evidentiary basis pertaining to the original sunset period.352
161. We recall that Article 11.3 of the Anti-Dumping Agreement reads:
Notwithstanding the provisions of pa ragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five
years from its imposition (or from the date of the most recent review
under paragraph 2 if that revi ew has covered both dumping and
injury, or under this paragraph), unless the authorities determine, in a
review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to that date, that the expiry of
the duty would be likely to lead to continuation or recurrence of
dumping and injury.* The duty may remain in force pending the
outcome of such a review.

*[Original footnote 22] When the amount of the anti-dumping duty is
assessed on a retrospective basis, a finding in the most recent assessment
proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied
shall not by itself require the authorities to terminate the definitive duty.

350Ibid., para. 13.
351Ibid., para. 14.
352Argentina does not dispute that the information collected by the USDOC in the Section 129
proceedings related to the original sunset review pe riod, that is, 1995 to 2000. (Argentina's response to
questioning at the oral hearing) See also, Panel Report, paras. 7.48-7.49.

162. Article 11.4 of the Anti-Dumping Agreement provides:
The provisions of Article 6 regarding evidence and procedure shall
apply to any review carried out unde r this Article. Any such review
shall be carried out expeditiously and shall normally be concluded
within 12 months of the date of initiation of the review.

163. As the Appellate Body has explained, these pr ovisions set out several temporal limitations.
353
Article 11.3 provides that an anti-dumping duty must be terminated "five years from its imposition"
unless there is a determination that "the expiry of th e duty would be likely to lead to continuation or
recurrence of dumping and injury." According to th e Appellate Body, this provision thus operates as
"a mandatory rule with an exception".354 There is the additional requirement that the sunset review be
initiated by the investigating authority on its own initiative or upon a request by the domestic
industry "before that date", that is, before the fifth anniversary of the imposition of the anti-dumping
duty order. If the review is requested by the domest ic industry, the request must be made "within a
reasonable period of time prior to" the fifth anniversary. Article 11.4 requires that a sunset review "be
carried out expeditiously" and that it "normally be concluded within 12 m onths of the date of
initiation of the review". Article 6 of the Anti-Dumping Agreement, which applies to sunset reviews
by virtue of the reference made in Article 11.4, al so sets out additional temporal requirements relating
to opportunities for the parties to the investigation to present evidence.
164. Argentina's arguments rest on the following distin ction. In certain circumstances, Argentina
submits, a WTO Member may seek to bring a sunset determination into compliance by making a
re-determination of likelihood of dumping in order to "clarify" or "explain" its original sunset
determination. However, Argentina considers that such a possibility is for eclosed in circumstances
where the investigating authority seeks to develop a new evidentiary basis for its re-determination
because it had not developed an adequate evidentiary foundation for its original sunset determination.
Thus, we consider the specific question raised by Argentina and proceed on the premise that an
investigating authority is not precluded from maki ng a re-determination of likelihood of dumping in
order to comply with the recommendations and rulings of the DSB.355

353See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 104.
354Ibid.
355As the Panel noted, WTO Members have often chosen to rectify the measure found to be WTO-
inconsistent, rather than w ithdraw it without replacement. In a numbe r of disputes involving trade remedies,
WTO Members have sought to comply by having their investigating authorities issue a re-determination, which
seeks to correct the deficiencies found in the original determination. Several of these re-determinations have
been the subject of Article 21 .5 proceedings: for example, EC – Bed Linen (Article 21.5 – India) ; Mexico –
Corn Syrup (Article 21.5 – US) ; US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) ;
and US – Softwood Lumber VI (Article 21.5 – Canada). (See Panel Report, para. 7.58)

165. According to Argentina, the limitation on developing a new evidentiary basis in a
re-determination derives from the requirement in Artic le 11.3 that an investigating authority make a
"determination" of likelihood of dumping in a review initiated before the fifth anniversary of the
imposition of the anti-dumping duty. 356 Argentina points out that, in accordance with the Appellate
Body's interpretation of Article 11.3, a determ ination of likelihood of dumping must rest on a
sufficient factual basis. Argentina reads the tempor al requirement in Article 11.3, together with the
Appellate Body's interpretati on of the term "determine" 357 in that provision, to mean that the
evidentiary basis for the likelihood determination has to be developed in the original sunset review
and cannot be developed at a later stage. Argentina submits that the Panel in this case allowed the
United States to continue the anti-dumping duty without having developed evidence at the time of the
review, and allowed the United States to develop new information later. In so doing, the Panel
diminished Argentina's right to termination of the anti-dumping duty unless a proper review was
conducted at the time prescribed by Article 11.3. Further, Argentina argues that this right is
confirmed by the language in Article 11.3 that states that "[t]he duty may remain in force pending the
outcome of such a review."
358
166. At the same time, Argentina accepts that implementation of DSB recommendations and
rulings through a re-determination of likelihood of dumping would be possible where an investigating
authority merely "clarifies" the information developed in the original sunset review or "further explains
its reasoning".359 This is permissible, according to Argentina, because clarification of information or
further explanation of evidence already on the record does not necessarily mean that the investigating
authority was not "active" in the initial sunset revi ew. On this basis, Argentina draws a distinction
between the facts of this case and those of US – Anti-Dumping Duty Measures on Oil Country
Tubular Goods, where the Appellate Body stated that the temporal limitation of Article 11.3 does not
affect the provisions of the DSU governing, inter alia , the means of implementation and the

356Argentina's other appellant's submission, para. 29.
357See Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras 110-111 and 114;
and Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 180.
358See Argentina's other appellant's submission, para. 29.
359Ibid., para. 34; Argentina's response to questioning at the oral hearing.

"reasonable period of time" accorded for implementation.
360 According to Argentina, in that case, the
investigating authority had developed a sufficient evid entiary basis in the original sunset review, but
the panel was not satisfied with the assessment of that evidence. Therefore, in order to comply, the
investigating authority was required to reassess the evidence, rather than to develop an evidentiary
basis that it had not developed in the original sunset review. 361 Argentina thus contends that
implementation through a re-determination is po ssible only if the investigating authority was
sufficiently "active" in developing a comprehensive record in the original sunset determination.
167. Article 11.3 of the Anti-Dumping Agreement does not refer to the steps that an investigating
authority may take to implement DSB recommendations and rulings or to the collection of evidence at
that stage. Article 11.4 states that the provisions of Article 6 of the Anti-Dumping Agreement
regarding evidence and procedure are applicable to sunset reviews. Article 6 contains several
provisions relating to the collection of evidence, including several time periods. However, like
Articles 11.3 and 11.4, Article 6 does not specifically refer to the collection of evidence for purposes
of implementing DSB recommendations and rulings. Th erefore, we do not consider that Articles 11.3
and 11.4 address the specific question of whether an investigating authority can develop a new
evidentiary basis when implementing DSB recommendations and rulings.
168. Neither do Articles 11.3 and 11.4 provide a basis for drawing a distinction between allowing
an investigating authority to clarify information, or provide further explanations, on the one hand, and
to develop a new factual basis, on the other hand. At the oral hearing, Argentina itself recognized that
an investigating authority clarifying information, or providing further explanations, would be allowed
to gather additional information and develop some new facts relating to the original sunset review
period. This illustrates the difficulty of drawi ng the distinction relied upon by Argentina, where
collection of some facts is allowed to clarify info rmation or provide further explanations, but not to
develop a new factual basis.

360In US – Anti-Dumping Measures on Oil Country Tubular Goods, the Appellate Body said:
The mere fact that Article 11.3 sets a temporal limit for termination of an
anti-dumping duty, in the absence of a review leading to a WTO-consistent
determination under that Article for its continuation, does not affect the
other provisions of the DSU governing the implementation of the
recommendations and rulings of the DSB, including, inter alia, the means of
implementation and the reasonable period of time accorded to the
implementing Member for implementation.
(Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 187)
361Argentina's response to questioning at the oral hearing.

169. Argentina offers two hypothetical examples that it considers demonstrate that a WTO
Member's implementation options are restricted by the temporal limitations set out in Articles 11.3
and 11.4 of the Anti-Dumping Agreement. In the first example, an importing Member conducts no
review at all, but fails to terminate the measure after five years. According to Argentina, "the
violating Member would not have the option of bri nging itself into compliance by initiating a review
for the first time after it is found to be in violation."362 At the oral hearing, Argentina offered a second
hypothetical in which the importing Member initia tes the sunset review within the time-limit
prescribed in Article 11.3, but does nothing further. In this situation, Argentina also considers that the
importing Member could bring itself into compliance only by terminating the anti-dumping duty
order.
170. The hypothetical examples described by Argentin a differ significantly from the facts in this
case. The first hypothetical concerns the conse quences of non-initiation and not, as in this case, the
qualitative shortcomings of the fact-finding in the or iginal review. The temporal limitations in
Article 11.3 address directly the consequences of non-initiation, but do not speak to the facts of the
present case. Moreover, as we explained earlier, Argentina does not contest that the USDOC initiated
the sunset review on Argentine OCTG within the tim e-limit prescribed in Article 11.3. As for the
second hypothetical, we note that the current case was not an instance where the investigating
authority initiated a review, but then did nothing more.
363 Although inconsistencies were found in the
original WTO proceedings, the USDOC did conduct a sunset review of the anti-dumping duty order
on OCTG from Argentina. It did not simply refuse to terminate the anti-dumping duties after five
years. Therefore, these hypothetical examples do not resolve the issue raised by Argentina in this
appeal.
171. Argentina argues, furthermore, that allowing an investigating authority to develop a new
evidentiary basis would reduce to inutility the tempor al limitations set out in Articles 11.3 and 11.4 of
the Anti-Dumping Agreement.364 We do not share this view. As explained above, Argentina's claim
that the USDOC was precluded from developing a new evidentiary basis is premised on the
qualitative shortcomings of the fact-finding in the original review. It does not implicate the temporal
requirements of Article 11.3, which remain valid ev en if an investigating authority is allowed to
collect additional facts relating to the original re view period when making a re-determination of the

362Argentina's other appellant's submission, para. 32.
363The Appellate Body has explained that "[t]he plain meaning of the terms 'review' and 'determine' in
Article 11.3 ... compel an investigating authority in a sunset review to undertake an examination, on the basis of
positive evidence, of the likelihood of continuation or recurrence of dumping and injury." (Appellate Body
Report, US – Oil Country Tubular Goods Sunset Reviews, para. 180)
364Argentina's other appellant's submission, para. 44.

likelihood of dumping for the purpose of implemen ting recommendations and rulings of the DSB.
Moreover, an investigating authority seeking to co mply with an adverse WTO ruling by conducting a
sunset re-determination would have to comply with all of the substantive obligations set out in
Articles 11.3 and 11.4. This means that any addi tional factual information relating to the initial
review period that is collected for purposes of the re-determination would have to be "sufficient", and
the conclusion reached on the basis of those facts would have to be "reasoned".
365 It also means that
the anti-dumping duties could not remain in place unl ess the investigating authority concluded in the
re-determination that dumping and injury were likely to continue or recur. Furthermore, the due
process and evidentiary obligations established in Article 11.4, by virtue of its reference to Article 6,
would apply also to the process leading to the re-determination.
172. We note that Argentina consid ers that the Panel failed to fulfil properly its duties under
Article 11 of the DSU by "subordinat[ing] the actual treaty text of Articles 11.3 and 11.4, and the
disposition of Argentina's claims under these provisions, to broader, 'systemic' considerations of the
WTO dispute settlement system". 366 We have found that Articles 11.3 and 11.4 do not address
specifically whether an investigating authority ma y collect additional facts relating to the initial
review period when making a re-determination of likelihood of dumping. Therefore, the Panel did not
subordinate the text of these provisions to broade r systemic considerations of the WTO dispute
settlement system when it found that the USDOC could develop a new evidentiary basis.
173. We next address the provisions of the DSU refe rred to by the Panel and the participants to
examine whether they provide us with contextual guidance. We note that the requirement in
Article 19.1, first sentence, to "bring the measure into conformity" does not indicate that the choice of
means of implementation is conf ined to withdrawal of the measure that was found to be WTO-
inconsistent. Article 19.1, second sentence, confer s authority on panels and the Appellate Body to
suggest "ways in which the Member concerne d could implement the recommendations", which
implies that several "ways" of implementation may be possible. 367 The obligation under Article 21.3
that the Member concerned "inform the DSB of its intentions in respect of implementation" also
suggests that alternative means of implementation may exist and that the choice belongs, in principle,
to the Member. This implies that an investiga ting authority would not seem to be precluded from
gathering additional facts relating to the review period in order to implement the recommendations

365Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 302.
366Argentina's other appellant's submission, para. 50 (quoting Panel Report, paras. 7.51 and 7.57).
367We note that Article 3.7 of the DSU states that "the first objective of the dispute settlement
mechanism is usually to secure the withdrawal of the measures" found to be WTO-inconsistent. In our view,
this does not exclude that the inconsistent measure to be withdr awn can be brought into compliance by
modifying or replacing it with a revised measure. See also Panel Report, para. 7.54.

and rulings of the DSB regarding an original sunset review determination. Fi nally, in this regard, we
note the Appellate Body's statement in US – Anti-Dumping Measures on Oil Country Tubular Goods ,
that the temporal limitation in Article 11.3 of the Anti-Dumping Agreement "does not affect the other
provisions of the DSU governing the implementation of the recommendations and rulings of the DSB,
including, inter alia, the means of implementation and the reasonable period of time accorded to the
implementing Member for implementation".368 We believe also that the provisions of the DSU should
not be read as altering the disciplines of Articles 11.3 and 11.4.
174. Before concluding, we note that the implem entation of DSB recommendations and rulings in
cases where a sunset review was found to be inco nsistent with Articles 11.3 and 11.4 of the Anti-
Dumping Agreement raises systemic questions. For example, on what basis may an anti-dumping
duty order be maintained after a sunset determin ation has been found to be inconsistent with
Article 11.3 or 11.4 of the Anti-Dumping Agreement?369 These questions do not fall within the scope
of the issue appealed by Argentina that the USDOC was precluded from developing a new evidentiary
basis in the Section 129 Determination. Therefore, we do not address them further in this appeal.
175. In the light of the above, we uphold the Panel's finding, in paragr aphs 7.60 and 8.1(b) of the
Panel Report, that the USDOC did not act inconsis tently with the United States' obligations under
Articles 11.3 and 11.4 of the Anti-Dumping Agreement "by developing a new factual basis pertaining
to the original review period for purpos es of its Section 129 Determination". 370 Furthermore, we do
not find error in the Panel's consideration of certain provisions of the DSU as appropriate context and,
therefore, reject Argentina's claim that the Panel did not make an objective assessment of the matter
before it, as required by Article 11 of the DSU.

VII. Argentina's Request for a Suggestion
176. Finally, we consider Argentina's request for a suggestion, pursuant to Article 19.1 of the
DSU, that the anti-dumping duty order on OCTG from Argentina be terminated.

368Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 187.
369This question, in turn, raises other issues, such as: when does a sunset review reach an "outcome" for
the purpose of Article 11.3, last sentence; and what is implied by the requirements in Article 11.4 that the
review "be carried out expeditiously" and that it "shall normally be concluded within 12 months of the date of
initiation"?
370Because we see no error in the Pa nel's disposition of this issue, we do not consider that the Panel
diminished the rights of Argentina and the obligations of the United St ates, in breach of Article 3.2 and
Article 19.2 of the DSU.

177. Argentina requested that the Panel make a sugg estion, pursuant to Article 19.1 of the DSU,
that the United States implement its recommendations by terminating the anti-dumping duty order on
Argentine OCTG. According to Argentina, a sugges tion was justified in the light of the particular
facts of the case, the nature of the obligation of Article 11.3 of the Anti-Dumping Agreement, and the
overall objective of the dispute settlement mechanism.
371 The United States maintained that a WTO
Member retains the right to determine the manne r in which it implements the recommendations and
rulings of the DSB, and that, while Argentina prefe rred to have the measure terminated, the relevant
question before the Panel was the existence or consistency of the "measure taken to comply".372
178. In response to Argentina's request, the Panel noted that "Article 19.1 of the DSU states that
WTO panels may suggest ways through which the Member concerned could implement their
recommendations."373 The Panel added that, "[i]n the circ umstances of the present proceedings, [it
saw] no particular reason to make such a suggestion and therefore decline[d] Argentina's request."374
179. On appeal, Argentina asserts that the manne r in which the Panel "summarily" dismissed
Argentina's request for a suggestion for withdrawal of the anti-dumping duty order was inconsistent
with the Panel's duties under Articles 11 and 12.7 of th e DSU. Argentina argues that the Panel failed
to fulfil its duties under Article 11 because it did no t "reasonably consider" Argentina's request for a
suggestion under Article 19.1 of the DSU, and becau se it failed to assess objectively the fact that the
United States has twice violated its obligations under Article 11.3 of the Anti-Dumping Agreement.375
Furthermore, Argentina submits that the Panel did not comply with its obligations under Article 12.7
to set out the "applicability" of Article 19.1 in the context of the present dispute and to provide a basic
rationale for its refusal of Argentina's request. 376 The United States responds that the requirement in
Article 11 of the DSU to make an objective assess ment of the "matter" entails a consideration of
claims and measures and does not apply to a request for a suggestion under Article 19.1.377 Moreover,
the United States argues that the obligation under Artic le 12.7 to state a "basic rationale" relates to
"findings" and "recommendations", and is not applicable to a request for a suggestion.378

371Argentina's first written submission to the Panel, Panel Report, pp. A-53 to A-55, paras. 210-224.
372United States' first written submission to the Panel, Panel Report, pp. A-75 to A-76, paras. 85-87.
373Panel Report, para. 9.4. (footnote omitted)
374Ibid., para. 9.4.
375Argentina's other appellant's submission, paras. 78 and 81.
376Ibid., para. 89.
377United States' appellee's submission, para. 19 (referring to Appellate Body Report, Guatemala –
Cement I, paras. 72-73).
378Ibid., para. 21.

180. In addition to its claims under Articles 11 and 12.7 of the DSU, Argentina requests that the
Appellate Body exercise its authority under Article 19.1 and make, itself, a suggestion that the United
States revoke its anti-dumping duty order on Argentine OCTG. 379 The United States submits that the
Appellate Body should decline Argentina's request.380
181. Article 19.1 of the DSU provides:
Where a panel or the Appellate Body concludes that a measure is
inconsistent with a covered agreement, it shall recommend that the
Member concerned bring the measure into conformity with that
agreement. In addition to its recommendations, the panel or
Appellate Body may suggest ways in which the Member concerned
could implement the recommendations. (footnotes omitted;
emphasis added)

182. The first sentence of Article 19.1 requires panels or the Appellate Body, if they find the
challenged measure to be inconsistent with a provi sion of the covered agreements, to recommend that
the respondent Member bring its measure into confor mity with that agreement. The second sentence
confers a discretionary right, authorizing panels and the Appellate Body to suggest ways in which
those recommendations may be implemented. The Appellate Body has explained that the second
sentence of Article 19.1 "does not oblige panels to make ... a suggestion".
381
183. The Panel addressed Argentina's request for a suggestion in paragraph 9.4 of the Panel
Report. The Panel's explanation is brief, but it is sufficient to convey that the Panel considered
Argentina's request and that, in the light of the discretionary nature of the authority to make a
suggestion, the Panel declined to exercise that discre tion. The discretionary nature of the authority to
make a suggestion under Article 19.1 must be kept in mind when examining the sufficiency of a
panel's decision not to exercise su ch authority. However, it should not relieve a panel from engaging
with the arguments put forward by a party in suppor t of such a request. In the present case, Argentina
offered several reasons in support of its request for a suggestion. 382 Although it would have been
advisable for the Panel to articulate more clearly th e reasons why it declined to exercise its discretion
to make a suggestion, this does not mean that Pa nel's exercise of its discretion was improper, and,

379Argentina's other appellant's submission, paras. 102 and 106.
381Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, para. 189.
 382Before the Panel, Argentina argued that a sugges tion was justified because Argentina's rights under
Article 11.3 had been "undermined completely" by the United States' implementation. Argentina explained that
the USDOC had failed to conduct a WTO-consistent sunset review on two occasions—first in 2000, and again
in 2005. According to Argentina, the respondent Member should not be given endless opportunities to correct a
sunset determination. This would render meaningless the requirements of Article 11.3. (Argentina's first written
submission to the Panel, Panel Report, pp. A-53 to A-54, paras. 211-218)

thus, even assuming arguendo that Articles 11 and 12.7 were applicable to a request for suggestion,
we do not consider that, in the circumstances of this case, the Panel failed to fulfil its duties under
those provisions.
383
184. We noted earlier that Articles 19.1 and 21.3 of the DSU suggest that alternative means of
implementation may exist and that the choice bel ongs, in principle, to the implementing Member. 384
In addition, we indicated that several systemic qu estions arise in connection with the implementation
of DSB recommendations and rulings in cases where a sunset review was found to be inconsistent
with Articles 11.3 and 11.4 of the Anti-Dumping Agreement .385 These complex questions are
implicated in Argentina's request for a suggesti on that the United States terminate the anti-dumping
duty order. We believe that these questions are beyond the scope of the issues raised by the
participants in this appeal and, furthermore, we do not consider that we should resolve them in the
context of considering a request for a suggestion under Article 19.1 of the DSU. For these reasons,
we decline Argentina's request that we make a suggestion on how the United States could implement
the recommendations in this case.

VIII. Findings and Conclusions
185. For the reasons set out in this Report, the Appellate Body:
(a) reverses the Panel's finding, in paragraphs 7. 41 and 8.1(a) of the Panel Report,
that Section 751(c)(4)(B) of the Tariff Act, operating in conjunction with
Section 751(c)(4)(A) of the Tariff Act and S ection 351.218(d)(2) of the Regulations,
is inconsistent with Article 11.3 of the Anti-Dumping Agreement; and in the light of
this finding, does not consider it necessary to examine whether the Panel failed to
make an objective assessment of the matter be fore it, as required by Article 11 of the
DSU;
(b) upholds the Panel's finding, in paragraphs 7.91 and 7.96 of the Panel Report, that the
USDOC's volume analysis was properly before the Panel; consequently, the Panel's
findings, in paragraphs 7.101, 7.102, and 8.1(c) of the Panel Report, also stand;

383In the light of the above, we need not decide here whether the requirements of Articles 11 and 12.7
are applicable to a panel's consideration of a request for a suggestion pursuant to Article 19.1 of the DSU.
384See supra, para. 173.
385See supra, para. 174.

(c) upholds the Panel's finding, in paragraphs 7.60 and 8.1(b) of the Panel Report, that
the USDOC did not act inconsistently w ith the United States' obligations under
Articles 11.3 and 11.4 of the Anti-Dumping Agreement by developing a new factual
basis pertaining to the original review period for purposes of its Section 129
Determination; and finds
 that the Panel did not fail to make an objective assessment of
the matter before it, as required by Article 11 of the DSU, by considering certain
provisions of the DSU as appropriate context; and
(d) rejects Argentina's claims that, in declin ing to make a suggestion pursuant to
Article 19.1 of the DSU, the Panel did not properly fulfil its duties under Articles 11
and 12.7 of the DSU.
186. The Appellate Body recommends that the Dispute Settlement Bo dy request the United States
to implement fully the recommendations and rulings of the DSB.

Signed in the original in Geneva this 23rd day of March 2007 by:

Yasuhei Taniguchi
Presiding Member

 _________________________ _________________________
 Merit E. Janow David Unterhalter
 Member Member

ANNEX I

16 January 2007
 (07-0180)
 Original: English

Recourse to Article 21.5 of the DSU by Argentina

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 12 January 20 07, 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 on : Rec ourse to Article 21.5 of the DSU by Argentina
(WT/DS268/RW) and certain legal interpretations developed by the Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 751(c)(4)(B) of the Tariff Ac t of 1930, operating in conjunction with section
751(c)(4)(A) of the Tariff Act and section 351.218(d) (2) of Title 19 of the Code of Federal
Regulations, are inconsistent with Article 11.3 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 ("Antidumping Agreement").
1 This finding is in
error and is based on erroneous findings on issues of law and related legal inte rpretations, such as the
finding that U.S. law, including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii)
of the Department of Commerce's regulations, precludes the Department of Commerce from making
an order-wide determination of likelihood of continuation or recu rrence of dumping, supported by
reasoned and adequate conclusions based on the fact s before the agency, wher e an interested party
elects not to participate in the sunset review at the Department of Commerce.

Other errors include, for example, reversi ng the burden of proof by failing to require
Argentina to prove its claim and instead requiring the United States to disprove it; in addition, the
Panel applied the wrong legal standard by evaluating whether the statute "may" breach the
Antidumping Agreement, rather than whether the st atute mandates a breach of that Agreement.

1See, e.g., paras. 7.32-7.41, 8.1(a).

Further, the Panel failed to make an objective assessme nt of the matter before it, including a failure to
make an objective assessment of the facts of the case, contrary to Article 11 of DSU . For example,
the Panel based its conclusion not on the evidence contained in the panel record – indeed, this
provision of U.S. law had never been used – but rather on the basis of pure speculation by the Panel as
to what the United States would do if the law were to be invoked. For example, the Panel moves from
speculating that evidence would "necessarily" have a "significant impact" on the U.S. determination at
issue to concluding that the United States would be unable to consider any additional evidence.

2. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
"volume analysis" incorporated by reference in the Section 129 determination forms part of the
measure taken to comply within the meaning of Article 21.5 of the DSU for purposes of these
proceedings.2 This conclusion is in error and is b ased on erroneous findings on issues of law and
related legal interpretations of DSU Article 21.5. Fo r example, in the original proceeding, there were
no recommendations or rulings pertaining to the volu me analysis, and, in the redetermination, the
volume analysis was an unchanged aspect of the origin al determination that was simply incorporated
by reference, as was the case in EC – Bed Linen (Article 21.5 – India).3

2See, e.g., paras. 7.88-7.96. Paragraphs 7.98-7.101 and 8.1(c)(2) would be rendered moot if the United
States were to prevail with respect to this claim.
3Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India: Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, adopted 24 April
2003 ("EC – Bed Linen (Article 21.5 – India)").

ANNEX II

26 January 2007
 (07-0370)
 Original: English

Recourse to Article 21.5 of the DSU by Argentina

Notification of an Other Appeal by Argentina
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 23(1) of the Working Procedures for Appellate Review

 The following notification, dated 24 January 2007, from the Delegation of Argentina, is being
circulated to Members.

 Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU") and Rule 23(1) of the Working Procedures for Appellate Review ,
Argentina hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in
the Report of the Panel on United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods (OCTG) from Argentina – Recou rse to Article 21.5 of the DSU By Argentina
(WT/DS268/RW) (the "Panel Report") and certain legal interpretations developed by the Panel in this
dispute.

1. Argentina seeks review by the Appellate Body of the Panel's conclusions, and its related legal
findings and interpretations, that "[t]he USDOC did not act inconsistently with Articles 11.3 and 11.4
of the Agreement by developing a new factual ba sis for its Section 129 Determination." This
conclusion is set out in paragraph 8.1(b) of th e Panel Report. The rela ted legal findings and
interpretations of the Panel are set out in paragraphs 7.47 to 7.61 of the Panel Report.

2. The Panel acted inconsistently with its obliga tion under Article 11 of the DSU to make an
objective assessment of the matter before it. The Pane l determined that "the resolution of Argentina's
claim must have regard to broader, horizontal c onsiderations underpinning the operation of the WTO
dispute settlement system."
1 By basing its findings on "broader, horizontal considerations
underpinning the operation of the WTO dispute settleme nt system", rather than on the specific claims
and arguments raised by Argentina, the Panel fa iled to make an objective assessment of "the matter
before it", including "the facts of the case" and "the applicability of and confor mity with the relevant
covered agreements."

3. The Panel's findings set out in paragraphs 8.1( b) and 7.47 to 7.61 of the Panel Report were
also inconsistent with Articles 3.2 and 19.2 of the DSU. The Panel's findings have diminished
Argentina's right under Article 11.3 of the Anti-Du mping Agreement to termination of the measure
after five years in the absence of compliance with the requirements of Articles 11.3 and 11.4. The
Panel's findings also diminished the obligation of the United States to terminate the antidumping
measure on Argentine OCTG absent a review a nd determination consiste nt with Articles 11.3
and 11.4 of the Anti-Dumping Agreement.

4. The Panel acted inconsistently with its obliga tion under Article 11 of the DSU by failing to
objectively assess Argentina's request for a suggestion pursuant to Article 19.1 of the DSU. Noting
the original Panel's conclusion that it "saw no par ticular reason to make a suggestion and therefore
decline[ed] Argentina's request"
2, Argentina provided additional argument and explanation as the
need for a suggestion during the DSU Article 21.5 pr oceeding. However, without any analysis, the
Panel simply repeated its statement that it "saw no particular reason to make a suggestion and
therefore decline[ed] Argentina's request." 3 The Panel also violated Article 12.7 of the DSU by
failing to set out the findings of fact, the applicability of relevant provisions and the basic rationale
behind its finding that there was "no particular reason to make a suggestion."

5. In the light of the Panel's finding that the United States did not bring itself into compliance
with its obligations under the Anti-Dumping Agreement, and in light of the fact that the United States
has not appealed the Panel's finding in the regard,
4 Argentina respectfully requests that the Appellate
Body suggest that the United States terminate th e anti-dumping measure on OCTG from Argentina.
The United States accepts the Panel's decision th at the United States did not achieve compliance
before the expiration of the implementation period. Article 19.1 of the DSU authorizes Panels and the
Appellate Body to make suggesti ons, and to suggest ways in which the Member concerned could
implement the recommendations. A suggestion to te rminate the anti-dumping measure is appropriate
and necessary in this case in order to protect the spec ific rights of Argentina which the United States
violated, and continues to violate.

 2WT/DS268/R, para. 8.5.
 3Panel Report, para. 9.4.
 4While the U.S. Notice of Appeal and the U.S. Appellant's Submission allege certain legal errors
related to the Panel's consideration of the matter before it, the United States does not appeal the Panel's findings
in paragraph 8.1(c)(1) of the Panel's Report. The Panel concluded that the Section 129 Determination, which
was one of the measures taken to comply, is inconsistent with U.S. obligations under the Anti-Dumping
Agreement. Thus, the United States does not challenge th e conclusion that at the United States failed to bring
itself into compliance with its WTO obligations. Stated differently, even if the United States were to prevail on
all its arguments in this appeal, it would still have faile d to bring itself into compliance with its obligations
under the Anti-Dumping [Agreement].