KOREA – ANTI-DUMPING DUTIES ON PNEUMATIC VALVES FROM JAPAN NOTIFICATION OF AN OTHER APPEAL BY KOREA UNDER ARTICLES 16.4 AND 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
Document: THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 6 June 2018
Document codes: WT/DS504/6
Complainant: Japan
Respondent: South Korea
Third parties: Brazil, China, Ecuador, EU, Norway, Singapore, Turkey, U.S., Vietnam
Dispute stage: Appellate Body
Agreements cited: Art. 3.1  Anti-dumpingArt. VI  GATT 1994Art. 3.2, 3.4, 3.5, 4.1, 6.5, 6.5.1, 6.9, 12.2, 12.2.2, 1  Anti-dumping

KOREA – ANTI-DUMPING DUTIES ON PNEUMATIC VALVES FROM JAPAN
NOTIFICATION OF AN OTHER APPEAL BY KOREA UNDER ARTICLES 16.4 AND 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 communication, dated 4 June 2018, from the delegation of Korea , 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
("Working Procedures"), the Republic of Korea ("Korea") hereby notifies the Dispute Settlement
Body ("DSB") of its decision to appeal to the Appellate Body certain is sues of law and certain legal
interpretations developed by the Panel in its report on Korea – Anti-Dumping Duties on Pneumatic
Valves from Japan (WT/DS504) ("Panel Report").
Pursuant to Rules 23(1) and 23(3) of the Working Procedures, Korea files this Noti ce of Other
Appeal together with its Other Appellant Submission to the Appellate Body Secretariat.1
Korea seeks the review by the Appellate Body of the Panel 's conclusions that Japan has
demonstrated that the Korean Investigating Authorities acted inconsis tently (i) with Articles 3.1
and 3.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (the "Anti-Dumping Agreement") in their causation analysis as a result of flaws in their
analysis of the effect of the dumped imports on prices in the domestic market; 2 and (ii) with
Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement with respect to the treatment of information
as confidential and the obligation to require the furnishing of non -confidential summaries.3 Korea
appeals these findings based on a series of errors of law and legal interpretation of the Panel, as
summarized below. In addition, Korea considers that the Panel failed to make an objective
assessment of the facts of the case as called for by Article 11 of the DSU and Article 17.6 of the
Anti-Dumping Agreement and that this failure vitiated its above-identified findings.
With respect to the Panel 's findings of violation under Articles 3.1 and 3.5 of the Anti -Dumping
Agreement, Korea's other appeal consists of three sets of claims.
First, Korea request s the Appellate Body to reverse the Panel 's finding that Japan 's "causation"
claims under Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within the Panel's terms of
reference.4 In making this erron eous finding, the Panel erred in law since Japan 's panel request
with respect to Articles 3.1 and 3.5 of the Anti -Dumping Agreement failed to provide a brief
summary of the legal basis of the complaint sufficient to present the problem clearly in accordanc e

1 Pursuant to Rule 23(2)(c)(ii) of the Working Procedures, this Notice of Other Appeal includes a brief
statement of the nature of this appeal, including identification of the legal errors in the Panel Report, a list of
the legal provisions of the covered agreements the Panel erred in interpreting and applying, and an indicative
list of the relevant paragraphs of the Panel Report containing the errors – without prejudice to Korea's ability to
rely on other paragraphs of the Panel Report in its appeal.
2 Panel Report, para. 8.4(a).
4 Panel Report, paras. 7.244, and 8.2(b)-(d).

with Article 6.2 of the DSU. The Panel 's contrary findings are in error. In addition, the Panel
erred in law by reaching a conclusion that Japan 's panel request was consistent with Article 6.2 of
the DSU only after "carefully review[ing]" Japan 's written submissions, rather than simply on the
face of the request.5
Second, should the Appellate Body find that Japan 's "independent" causation claim is properly
within the Panel 's terms of reference, Korea requests the Appellate Body to reverse the Panel 's
finding that Korea acted inconsistently with Articles 3.1 and 3.5 of the Anti-Dumping Agreement as
a result of flaws in the analysis of the effect of the dumped imports on prices in the domestic
market,6 since this finding is vitiated by a number of errors of law and legal interpretation. In
particular, and without prejudice to the arguments developed in Korea 's Other Appellant
Submission, the Panel's interpretation and application of Articles 3.1 and 3.5 of the Anti -Dumping
Agreement is in error since the Pan el (i) erroneously subsumed all of the obligations under
Articles 3.2 and 3.4 into Article 3.5 thereby rendering inutile Articles 3.2 and 3.4; 7 (ii) erred in
making findings in the absence of Japan establishing a prima facie case relating to the question o f
competition and price comparability that was the premise of its claim; 8 (iii) erred by imposing a
price effects and price comparability analysis that has no basis in the text of Article 3.5 and that
went well beyond what is required even under Article 3. 2 of the Anti -Dumping Agreement;9 and
(iv) unduly made findings about the investigating authorities ' causation determination based only
on isolated aspects of this determination and without considering the Panel 's contrary findings on
causation as a whole.10
Third, in reaching its findings of violation under Articles 3.1 and 3.5 of the Anti -Dumping
Agreement, the Panel failed to make an objective examination of the matter before it as required
by Article 11 of the DSU and Article 17.6 of the Anti -Dumping Agreement. In particular, the Panel
failed to provide a reasoned and adequate explanation for its finding that Japan 's claims under
Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within its terms of reference and made
findings on the sufficiency of t he brief summary of the legal basis of the complaint that were
internally inconsistent and contradictory. Furthermore, in reaching its finding of violation of
Articles 3.1 and 3.5 of the Anti -Dumping Agreement, the Panel failed to make an objective
examination of the matter before it as required by Article 11 of the DSU and Article 17.6 of the
Anti-Dumping Agreement since, among others, the Panel made the case for Japan, failed to
provide a reasoned and adequate explanation that its findings were supported by a sufficient
evidentiary basis, and made findings that were internally inconsistent and contradictory.
For the reasons to be further elaborated in its submission to the Appellate Body, Korea requests
the Appellate Body to reverse and declare moot and o f no legal effect, the findings, conclusions
and recommendations of the Panel, with respect to the above -identified errors of law and legal
interpretations contained in the Panel Report. In particular, Korea requests the Appellate Body to
reverse the Panel's finding in paragraphs 7.244 and 8.2(b) -(d) of the Panel Report that certain of
Japan's claims relating to Articles 3.1 and 3.5 of the Anti -Dumping Agreement were within its
terms of reference. In addition, Korea requests the Appellate Body to reverse an d declare moot
and of no legal effect the Panel 's finding in, among others, paragraphs 7.349 and 8.4(a) of the
Panel Report that Korea acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping
Agreement.
With respect to the Panel 's finding that Ko rea acted inconsistently with Articles 6.5 and 6.5.1 of
the Anti -Dumping Agreement relating to the treatment of confidential information and the
provision of non-confidential summaries, Korea's request for reversal of the Panel's finding consists
of the following three part claim.

5 Panel Report, paras. 7.222, 7.234, and 7.241.
6 Panel Report, paras. 7.349, and 8.4(a).
7 Panel Report, paras. 7.250-258 (Volume), 7.259-323 (Prices), and 7.324-347 (Impact).
8 Panel Report, para. 7.259. The Panel confirms that Japan's relevant claim was that there is no
competitive relationship between the dumped imports and the domestic like product, such that their prices are
not comparable. The Panel rejected this claim and thus there was no basis for additional findings absent a
prima facie case. See, e.g. Panel report paras. 7.295 (c), 7.315, 7.318, 7.320 confirming that there was such
competition between both products.
9 Panel Report, paras. 7.266-7.272, and 7.297-7.323.

First, Korea submits that the Panel 's finding that Japan 's panel request with respect to its claims
under Article 6.5 and 6.5.1 of the Anti -Dumping Agreement presented the problem clearly in
accordance with Article 6.2 of the DSU is in error and should be reversed. 11 Japan's panel request
suffered from the same shortcomings as other claims which the Panel correctly rejected as outside
its terms of reference. The Panel's finding to the contrary is based on an erroneous application o f
the law to the facts as the panel request, when examined on its face, fails to present the problem
with the required clarity through linking any specific aspects of the challenged measures, or of the
underlying investigation, to any of the specific oblig ations in these provisions. In addition, the
Panel erred in law when examining Japan 's compliance with Article 6.2 of the DSU by taking into
account the scope of the allegations under Articles 6.5 and 6.5.1 as presented in Japan 's written
submissions.12
Second, the Panel erroneously interpreted Article 6.5 of the Anti -Dumping Agreement as requiring
investigating authorities to make express statements as to whether good cause is shown with
respect to confidential information and erred in applying the law to the facts when it found that the
submitters did not show good cause for the confidential treatment of that information. 13 In
particular, the Panel erred in law when it considered that absent an express "indication" on the
record that the Korean Investigat ing Authorities took into account whether the information in
question fell into any of the categories for confidential information set forth under Korean law, no
good cause was shown to exist. 14 This finding is in error since, absent a legal obligation to d o so,
the Korean Investigating Authorities could not be faulted for not making specific statements or
indicating its consideration about each of the requests for confidentiality.
Third, the Panel also erred in law when applying Article 6.5.1 of the Anti -Dumping Agreement to
the facts of the dispute by finding that Korea failed to require the applicants to furnish the required
non-confidential summaries. 15 The applicants submitted "non -confidential summaries" of the
confidential information, prepared by desi gnating the information that they deemed were entitled
to confidential treatment in accordance with Korean law and the guidelines for filling out the
questionnaires. In the public versions of the submissions, certain non -confidential descriptive
narratives are found with respect to all confidential information, and these narratives permitted a
reasonable understanding of the substance of the information and thus enabled interested parties
to defend their interests. The Panel's findings to the contrary are in error and should be reversed.
For the reasons to be further elaborated upon in its submission to the Appellate Body, Korea
therefore requests the Appellate Body to reverse the Panel 's findings that Japan 's claims under
Articles 6.5 and 6.5.1 were within its terms of reference, as set forth in, among others,
paragraphs 7.418 and 8.2(e) of the Panel Report. In addition, Korea requests the Appellate Body
to reverse and declare moot and of no effect the Panel 's finding o f violation of Articles 6.5
and 6.5.1 of the Anti -Dumping Agreement, as set forth in, in p articular, paragraphs 7.451
and 8.4(b)-(c) of the Panel Report.