Document: WT/DS382/R Page D-1 BCI deleted, as indicated [[XX]] ANNEX D ORAL STATEMENTS OF THIRD PARTIES OR EXECUTIVE SUMMARIES THEREOF Contents Page
Document codes: WT/DS382/R
Complainant: Brazil
Respondent: U.S.
Third parties: Argentina, EU, Japan, South Korea, Mexico, Taiwan, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.1, 2.4.2, 2.4, 2  Anti-dumpingArt. VI:1, VI:2, II:1  GATT 1994Art. XVI:4  Agreement Establishing the World Trade OrganizationArt. 9.3  Anti-dumping

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ANNEX D

ORAL STATEMENTS OF THIRD PARTIES OR
EXECUTIVE SUMMARIES THEREOF

Contents Page
Annex D-1 Third Party Oral Statement of the European Union D-2
Annex D-2 Executive Summary of the Third Party Oral Statement of Japan D-4
Annex D-3 Third Party Oral Statement of Korea D-9

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ANNEX D-1

THIRD PARTY ORAL STATEMENT OF
THE EUROPEAN UNION

Mr. Chairman, distinguished Members of the Panel.

1. The European Union appreciates this opportunity to appear before you today. The
European Union makes this third party oral stat ement because of its systemic interest in the DSU.
This case also raises important substantive issues in relation to Article VI of the GATT 1994 and the
Anti-Dumping Agreement . However, none of the issues raised in this proceeding relating to anti-
dumping are new. Brazil's claims appear to be supported by a consistent body of reasoning and
findings, contained in all reports issued by panels and the Appellate Body, lastly in US – Continued
Zeroing. Further, the United States has not raised an ything new in its argumentation to defend its
zeroing methodologies and practices.

2. The European Union's oral statement will th erefore be brief. In its written submission the
European Union set out at length the systemic reasons why in its view, this Panel should follow the
findings and conclusions contained in previous panels and Appellate Body reports on zeroing. It is
beyond dispute that the practice of zeroing in an ti-dumping cases has been contested many times in
WTO dispute settlement proceedings. The Appellate Bo dy in particular has ad judicated on the issues
raised in this case frequently, in cluding in cases involving different variations of zeroing, both in
original anti-dumping investigations and reviews, in different factual circumstances and between
different parties.

3. The United States does not contest this, but argues that this Panel should not follow these
Appellate Body reports. Further, the United States explicitly invites this Panel to re-apply findings
and follow the reasoning contained in panel reports th at have been rejected and overturned –in many
cases more than once– by the Appellate Body, in re ports which have subsequently been adopted by
the DSB. The European Union submits that the suggestion by the United States that, according to
Article 11 of the DSU this Panel should be free to depart from adopted Appellate Body reports on
issues of law and legal interpretations relating to the covered agreements, is misguided. It is rather the
opposite. The Appellate Body itself has addressed this very question in several cases, notably in US –
Stainless Steel from Mexico, and thus the US proposition should be rejected.

4. On the substance, the European Union has set out its views in its written submission, and has
only a few comments in this oral statement, on two specific aspects of the US written submission.

5. First, zeroing has nothing to do with "offsets" or "credits". The key issue, however, and the
fundamental problem raised by this methodology is the selection of the relatively low priced export
transactions per se , as a sub-category, as the only or preponderant basis for the dumping margin
calculation, regardless of whether or not they are cl ustered by purchaser, region or time. This was not

the compromise achieved in the text of Article 2.4.2 of the ADA. It is clear that according to
Article 2.4.2 of the ADA there are only three sub-categories of clustered low priced export
transactions that it is permissible to respond to: t hose clustered by purchaser, region or time. Thus, it
is not permissible, and it is not fair, to pick up low priced export transactions clustered by model or
per se, as the US zeroing methodology does. This is also clear from the term "all" in the first sentence
of Article 2.4.2, and the definitio n of dumping in Article 2.1 of the ADA and Article VI:1 of the
GATT 1994 in terms of the product as a whole; read together with the absence in the targeted

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dumping provisions of any referen ce to a sub-category by model or per se . Thus, the relevant
provisions, and particularly the normal rule and th e exception, are read harmoniously, so as to give
meaning – both legal and economic – to all the treaty terms.

6. Second, the United States continues to re ly on the legally erroneous proposition that the
disciplines of Article 2.4.2 of the ADA are excluded from retrospective assessment proceedings. In
this respect, we believe that the Panel does not need to enter into this issue. Confronted with the same
argument by the United States, the A ppellate Body has repeatedly found that Article VI of the
GATT 1994 and Articles 2.1 and 9.3 of the ADA require that the dumping margin must be established
on the basis of the product under investigation as a whole. In any event, should the Panel enter into
this discussion, we invite the Panel to take into account the analysis set out in our written submission.

7. The European Union stands ready to partic ipate further in the discussion and answer any
questions that this Panel may have in writing. Thank you for your attention.

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ANNEX D-2

EXECUTIVE SUMMARY OF THE THIRD PARTY ORAL
STATEMENT OF JAPAN

I. THE UNITED STATES' REQUEST FOR PRELIMINARY RULINGS SHOULD BE
REJECTED

1. The United States argues that the Second Admini strative Review is not properly within the
Panel's terms of reference, because the final results of it had not been issued at the time of Brazil's
request for consultations.
1 However, it is clear that, in revi ewing Brazil's requests for consultations
and panel establishment, the Second Administrative Review is included in the Panel's terms of
reference.

2. Even though the final result of the Second Administrative Review had not been issued at the
time of the request for consultations, the review ha d been initiated at the time and a final result had
been expected to be issued in a certain period in light of the United States' anti-dumping system. In
previous cases where a certain measure was subject to the dispute, certain amendments to that
measure which took effective even after the consu ltation were also found as falling within the panel's
terms of reference, for example, in Chile – Price Band, as not "changing its essence".
2

3. In its panel request, Brazil mentioned the date and contents of the final result of the Second
Administrative Review. From the description of the request for consultations and panel
establishment, the Second Administrative Review sh ares the essential legal implication – the use of
the zeroing methodology, as well as the same underlying antidumping duty order – with the Original
Investigation and the First Administrative Review, and this shared point is exactly what Brazil is
challenging in this dispute. Brazil does not raise any other issues than zeroing with regard to the
review, therefore, the scope of the dispute has no t been broadened. In this sense, the Second
Administrative Review does not change the essence of the measure at issue. Brazil's requests for
consultations and panel establishment thus provided an opportunity for the United States to define and
delimit the scope of the dispute between them. With respect to US argument that the second
administrative review "was not (and could not have been) subject to consultations"
3, the Appellate
Body admitted "additional measures relate to the sa me duties identified in the consultations request" 4
being within the panel's terms of reference stating:5

The proceedings listed in the consultati ons request and the panel request are
therefore successive stages subsequent to the issuance of the same anti-dumping
duty orders. More specifically, as regard s the periodic reviews, the subsequent
measures assessed actual duty liabilities and updated cash deposit rates that were
imposed on the same products from the same countries as those listed in the
consultations request. With respect to the sunset reviews, the subsequent measures
related to the continued application of duties on the same products from the same
countries as those listed in the consultations request. Moreover, in both its
consultations request and panel request, th e European Communities made clear that

1 United States' First Written Submission, paras. 39-48.
2 Appellate Body Report on Chile – Price Band, para. 139(emphasis in original).
4 Appellate Body Report, US – Continued Zeroing (EC), para. 228.
5 Appellate Body Report, US – Continued Zeroing (EC), para. 228. (footnote omitted)

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it was challenging the specific administrative review and sunset review proceedings
because of the use of the zeroing methodol ogy. Specifically, both the consultations
request and the panel request allege that the USDOC "systematically" applies the
zeroing methodology in all types of review proceedings, which, the
European Communities contends, is a methodology found to be inconsistent with the
covered agreements.

4. In light of the above, Japan considers that the Panel should reject the United States' request
for preliminary rulings with regard to the Second Administrative Review.

5. With respect to US argument that the c ontinued use of the US Zeroing procedures in
successive anti-dumping proceedings is not within the Panel's terms of reference, Japan notes that the
Appellate Body of US-Continued Zeroing (EU) states regarding an ongoing conduct:

As discussed, we are of the view that it can be discerned from the panel request, read
as a whole, that the measures at issue consist of an ongoing conduct, that is, the use
of the zeroing methodology in successive proceedings in each of the 18 cases
whereby anti-dumping duties are maintained. The prospective nature of the remedy
sought by the European Communities is congruent with the fact that the measures at
issue are alleged to be ongoing, with pr ospective application and a life potentially
stretching into the future. Moreover, it is not uncommon for remedies sought in
WTO dispute settlement to have prospective effect, such as a finding against laws or
regulations, as such, or a subsidy progra mme with regularly recurring payments.
6
(emphasis added)

Appellate Body also states:

We see no reason to exclude ongoing conduct t hat consists of the use of the zeroing
methodology from challenge in WTO dispute settlement. The successive
determinations by which duties are maintain ed are connected stages in each of the
18 cases involving imposition, assessment, a nd collection of duties under the same
anti-dumping duty order.The use of the zeroing methodology in a string of these
stages is the allegedly unchanged component of each of the 18 measures at issue. It
is with respect to this ongoing conduct that the European Communities brought its
challenge, seeking its cessation.7 (emphasis added)

6. Therefore, given this conclusion of the Appe llate Body, Japan considers that the Panel should
reject the United States' request for preliminary rulin gs with regard to the continued use of the US
Zeroing procedures in successive anti-dumping proceedings.

II. ZEROING AS USED BY THE USDOC IN PERIODIC REVIEWS IS INCONSISTENT
WITH ARTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT

7. The legal principles governing the WTO-incons istency of the zeroing procedures have been
thoroughly canvassed by the Appellate Body in past WTO disputes, and are well established by now.
Japan notes again that, as the resu lt of the interpretation of the Anti-Dumping Agreement under the
customary rules of interpretation of public international law, the Appellate Body held;

... "dumping" and "margins of dumping" can be found to exist only in relation to
[the] product as defined by [the] authority. They cannot be found to exist for only a

6 Appellate Body Report, US – Continued Zeroing (EC), para.171.
7 Appellate Body Report, US – Continued Zeroing (EC), para. 181(footnote omitted).

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type, model or category of that product. Nor, under any comparison methodology,
can "dumping" and "margins of dumping" be found to exist at the level of an
individual transaction.8

8. Then, with regard to Article 9.3 of the Anti-Dumping Agreement , the Appellate Body held
that "the margin of dumping established for an exporter or foreign producer operates as a ceiling for
the total amount of anti-dumping duties that can be levied on the entries of the subject product (from
that exporter) covered by the duty assessment proceeding".
9 The express reference to Article 2 in the
chapeau of Article 9.3 of the Anti-Dumping Agreement includes, among others, Article 2.1 of the
Anti-Dumping Agreement , which, as noted above, sets forth a definition of "dumping" that applies
"[f]or the purpose of this Agreement". In US – Zeroing (EC) , relying on these textual cross-
references, the Appellate Body made an explic it interpretive connection between a "product as a
whole" requirement of Article 2.1 and dumpi ng determinations in periodic reviews under
Article 9.3.10

9. Accordingly, if, in a periodic review, th e investigating authority chooses to undertake
multiple comparisons at an intermediate stage, it is not permitted to take into account the results of
only some of the multiple comparisons, while di sregarding others. Thus, for purposes of these
reviews, the investigating authority must aggregat e all multiple comparisons to establish a margin of
dumping for the "product" under investigation as a whole. It is required to compare the anti-dumping
duties collected on all entries of the subject merc handise from a given exporter or foreign producer
with that exporter's or foreign producer's margin of dumping for the product as a whole, to ensure that
the total amount of the former does not exceed the latter.
11

10. When applying zeroing as used by the USDOC in periodic reviews, the USDOC compares the
prices of individual export transactions agains t monthly weighted average normal values, and
disregards the amounts by which the export prices exceed the monthly weighted average normal
values, when aggregating the results of the comp arisons to calculate the going-forward cash deposit
rate for the exporter and the duty assessment rate for th e importer concerned. In this way, zeroing as
used by the USDOC results in th e levy of an amount of anti-dumping duty that exceeds an exporter's
margin of dumping, which, under Article 9.3 of the Anti-Dumping Agreement, operates as the ceiling
for the amount of anti-dumping duty that can be levied in respect of the sales made by an exporter.

11. The Appellate Body rejected the United St ates' argument that, in a periodic review,
"dumping" and "margins of dumping" can be determined on an importer- or import-specific basis. In
doing so, the Appellate Body relied in part on Article 6.10 of the Anti-Dumping Agreement as context,
which precludes the calculation of a margin of dumping for each individual import transaction, and it
also requires that margins be calculated for exporters and foreign producers, not importers.
12

12. The United States objects to the Appellate Body 's interpretation that margins of dumping are
determined for foreign producers or exporters. However, as the Appellate Body previously explained,
the United States' misgivings are misplaced. Although margins of dumping are established for foreign
producers or exporters for a product as a whole, Members can assess anti-dumping duties on "a

8 Appellate Body Report, US – Zeroing (Japan), para. 115. (emphasis in original)
9 Appellate Body Report, US – Zeroing (EC) , para. 130 (emphasis in original). See also Appellate
Body Report, US – Zeroing (Japan), para. 155.
10 Appellate Body Report, US – Zeroing (EC) , para. 127, quoting Appellate Body Report, US –
Softwood Lumber V, para. 99.
11 Appellate Body Report, US – Zeroing (EC), para. 132.
12 Appellate Body Report, US – Zeroing (EC) , para. 128. See also Appellate Body Report, US –
Zeroing (Japan), para. 112.

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transaction- or importer-specific basis", "provided that the total amount of anti-dumping duties that
are levied does not exceed the exporters' or foreign producers' margins of dumping".13

13. In light of the above, Japan submits that two administrative reviews concerning imports of
certain orange juice from Brazil are in consistent with Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994 due to the use of zeroing.

14. Additionally, Japan notes the Appellate Body's findings in US – Continued Zeroing (EC) to
address United States' argument concerning Article 17.6(ii) of the Anti-dumping Agreement as
follows:

In our analysis, we have been mindful of the provisions of Article 17.6(ii) of the
Anti-Dumping Agreement. The analysis offered above, applying the customary rules
of interpretation of public internati onal law, does not allow for conflicting
interpretations. We have found, by the application of those rules, that zeroing is
inconsistent with Article 9.3. A holdi ng that zeroing is also consistent with
Article 9.3 would be flatly contradictory. Such contradiction would be repugnant to
the customary rules of treaty interpretati on referred to in the first sentence of
Article 17.6(ii). Consequently, it is not a permissible interpretation within the
meaning of Article 17.6(ii), second sentence.
14

15. Finally, Japan notes the Appellate Body's findings in US – Stainless Steel (Mexico)
concerning whether the panels should follow previo us adopted Appellate Body reports addressing the
same issues as follows:15

The creation of the Appellate Body by WTO Members to review legal
interpretations developed by panels shows that Members recognized the importance
of consistency and stability in the interpre tation of their rights and obligations under
the covered agreements. This is essential to promote "security and predictability" in
the dispute settlement system, and to ensu re the "prompt settlement" of disputes.
The Panel's failure to follow previously adopted Appellate Body reports addressing
the same issues undermines the development of a coherent and predictable body of
jurisprudence clarifying Members' rights and obligations under the covered
agreements as contemplated under the DSU.

16. To provide the security and predictability to Members, Japan strongly expects the Panel to
keep consistency with the Appellate Body's stabled findings regarding zeroing as used by the USDOC
in periodic reviews.

III. THE CONTINUED USE OF ZEROING IN SUCCESSIVE ANTI-DUMPING
PROCEEDINGS BY WHICH DUTIES ARE APPLIED AND MAINTAINED IS
INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT AND THE
GATT 1994

17. The Appellate Body conclude d with respect to the four " cases" for which it was able to
complete the analysis in US – Continued Zeroing (EC):

we conclude that the application and con tinued application of anti-dumping duties is
inconsistent with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the

13 Appellate Body Report, US – Zeroing (EC), para. 131(footnote omitted).
14 Appellate Body Report, US – Continued Zeroing (EC), para. 317.
15 Appellate Body Report, US – Stainless Steel (Mexico), para. 161.

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GATT 1994 to the extent that the duties are maintained at a level calculated through
the use of the zeroing methodology in the periodic reviews in the following
four cases…
16

18. Again, Japan strongly expects the Panel to keep consistency with the Appellate Body's
finding regarding the continued use of zeroing in the consecutive anti-dumping determinations,
including the original investigation and subsequent administrative reviews.

16 Appellate Body Report, US – Continued Zeroing (EC), para. 199.

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ANNEX D-3

THIRD PARTY ORAL STATEMENT
OF KOREA

Mr. Chairman and Members of the Panel,

1. The Republic of Korea ("Korea") appreciates th is opportunity to present its views to the Panel
as a third party.

2. This dispute involves the practice, commonly referred to as "zeroing", by which the USDOC
has treated transactions with negative dumping marg ins as having margins equal to zero in original
investigations and administrative reviews. In Korea' s view, this practice is plainly inconsistent with
relevant provisions of the Anti-Dumping Agreement and Article VI of the GATT 1994. This view has
been upheld by the Appellate Body in numerous previous disputes addressing the USDOC's zeroing
practice.

3. Absent particular reasons for distinguishing th e case at hand, the Panel is obliged to follow
the rulings of the Appellate Body. There is no reas on for the Panel in the current dispute to disregard
the Appellate Body's decisions in the long line of cases involving the zeroing methodology. In this
respect, Korea urges this Panel to follow the well-established WTO jurisprudence and requests that
the Panel find the United States zeroi ng methodology inconsistent with the Anti-Dumping Agreement
and the GATT 1994.

4. As in its Third Party Submission, Korea in this oral statement will present its views with
regard to the preliminary ruling request by the United States and on the use of zeroing methodology in
the USDOC's original investigations and periodic administrative reviews.

I. THE PANEL SHOULD DISMISS THE PRELIMINARY RULING REQUEST BY
THE UNITED STATES

5. The United States has requested preliminary rulings with regard to two issues. The
United States argues (1) that the final determin ation in the second administrative review of the
antidumping order on Certain Orange Juice from Brazil is not within the Panel's terms of reference;
and (2) that the "continued u se of the US 'zeroing proced ures' in successive anti-dumping
proceedings" is not within the Panel's terms of reference due to lack of specificity.

A. T
HE PANEL SHOULD DISMISS THE UNITED STATES' CLAIM THAT THE SECOND
ADMINISTRATIVE REVIEW IS NOT WITHIN THE PANEL'S TERMS OF REFERENCE

6. Contrary to the United States argument, the second administrative review is adequately
described in Brazil's request for consultations. In the Addendum to Brazil's initial request for
consultations, submitted 22 May 2009, Brazil specifically stated that "[t]he consultations, held on
16 January 2009, covered the … the Antidumping Du ty Administrative Review from 1 March 2007 to
29 February 2008 (the "Second Administrative Review")".
1

1 WT/DS382/1/Add.1, para. 3.

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7. It should first be noted that it is beyond disp ute that Brazil's request for establishment of a
panel specifically identified the second administrati ve review as one of "the measures at issue". 2
However, the preliminary ruling request by the Un ited States does not address the significance of this
statement in Brazil's panel request. This silence suggests that the United States believes that the
USDOC's second administrative review can only fall within the Panel's terms of reference if the final
determination in that review was specifically referenced in the consultation request, as well as in the
panel request itself. Yet, that interpretation is not consistent with the provisions of the relevant
agreements.

8. Article 17.3 of the Anti-Dumping Agreement does not contain any language that might be read
to suggest that a Member must wait to request consultations until a final determination has been
issued. By contrast, the first sentence of Article 17.4 of the Anti-Dumping Agreement , which
authorizes WTO Members to refer matters to the DSB for establishment of a panel, specifically
requires complaining Members to wait until (1) c onsultations under Article 17.3 "have failed to
achieve a mutually agreed solution", and (2) "final action has been taken by the administering
authorities of the importing Member to levy anti-dumping duties…". If the administrative authorities
have not yet taken "final action", the matter may not be referred to the DSB for establishment of a
panel.

9. The clear implication is that consultations may be requested before "final action has been
taken by the administering authorities". After all, if consultations could not be requested before such
"final action", there would be no need to include a requirement of "final action" in the first sentence
Article 17.4. Instead, if consultations could be requested only after "final action" by the administering
authorities, then the provisions of the first sentence of Article 17.4 requiring that consultations be held
(and "have failed") would embody a requirement of "final action" as well. Under such an
interpretation, the language requiring "final action" in the first sentence of Article 17.4 would be
redundant.

10. It is well established in WTO jurisprudence th at "a treaty interpreter must give meaning and
effect to all the terms used in a treaty provision and must avoid interpretations which render treaty
terms redundant". In accordance with that principl e, the provisions of Articles 17.3 and 17.4 of the
Anti-Dumping Agreement must be understood to indicate that c onsultations may be requested before
"final action" by the administering authorities, while the establishment of a panel may not be
requested until after that "final action" has occurred.

11. Korea is also unable to find the Un ited States' reliance on the decision in US – Certain EC
Products to be persuasive. In US – Certain EC Products, the EC's request for consultations made
reference to a notice issued by the US Custom s Service withholding liquidation (referred to as the
"March 3
rd Measure") but did not refer to the separate d ecision by the US Trade Representative (the
"USTR") to impose 100 per cent duties on certain EC products (referred to as the "April 19 th action").
The panel and Appellate Body held that the EC's failure to mention the April 19 th action during the
consultations meant that claims regarding that action were outside the panel's terms of reference.

12. The US – Certain EC Products decision can, therefore, be easily distinguished from the
situation presented by Brazil's consultation request in this dispute. Unlike US – Certain EC Products,
this is not a case in which the cons ultation request fails to mention the particular measure. Instead, as
described above, the Addendum to Brazil's consu ltation request clearly refers to the second
administrative review.

13. Moreover, the legal relationship betwee n the March 3rd Measure and the April 19 th action at
issue in US – Certain EC Products is quite different from the lega l relationship between the second

2 WT/DS382/4.

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administrative review described in the Addendum to Brazil's consultation request and the final
determination mentioned in Brazil's panel request. In US – Certain EC Products, the Appellate Body
focused on the fact that the March 3 rd Measure and April 19 th action involved two different
government agencies acting separately pursuant to distinct statutory legal authority. 3 In particular, the
United States Customs Service took its measure on March 3 rd pursuant to Section 113.13 of the Code
of Federal Regulations, Volume 19, while the USTR took its action on April 19th pursuant to
Section 301 of the Trade Act of 1974. 4 In this case, the second administrative review was conducted
by the same agency, the USDOC, that subsequently issued the final results of the review on
11 August 2009. In conducting the review and issu ing the final results, the USDOC acted pursuant to
the same statutory authority, T itle VII of the Tariff Act of 1930, as amended, which establishes the
framework for US antidumping proceedings.

14. The Appellate Body in US – Certain EC Products also noted that there was no "perceptible
correlation" between the March 3
rd Measure and the April 19 th action. The situation in the present
case is clearly different. It is difficult, if not im possible, to maintain that there is no perceptible
correlation between the conduct of the second admi nistrative review of the antidumping order on
Certain Orange Juice from Brazil and final results of that review.

15. Consequently, there is no basis for the argumen t by the United States that Brazil's request for
consultations with respect to the second administra tive review before the USDOC issued its final
determination in that review was somehow improper or invalid.

B. T
HE PANEL SHOULD FIND THAT THE "CONTINUED USE OF THE US 'ZEROING PROCEDURES'"
AS IDENTIFIED IN BRAZIL'S PANEL REQUEST FALLS WITHIN THE PANEL'S TERMS OF
REFERENCE

16. Korea is also of the view that the "continued use of the US 'zeroing procedures'" is within the
Panel's terms of reference. The United States argu es that the description of the measure in Brazil's
panel request lacks specificity because the alleged measure did not exist at the time of the panel
request.

17. As the Appellate Body has explained, the specificity requirement under Article 6.2 of the
DSU is designed to ensure that a panel request "p resent[s] the problem clearly". The Appellate Body
has also found that "the identification of the speci fic measures at issue, pursuant to Article 6.2, is
different from a demonstration of the existence of such measures".

18. Korea notes that item (d) of Brazil's panel request identifies the anti-dumping duty order, case
No A-350-840 and the original investigation and sub sequent administrative reviews under such order.
It appears to be sufficiently clear also in this di spute that the measure referred to is "a string of
connected and sequential determinations" in which the United States uses the zeroing methodology by
which duties are maintained over a period of time under the anti-dumping duty order.

19. In this regard, the Appellate Body in US – Continued Zeroing concluded that a Member's
"ongoing conduct" constitutes a measure a nd is challengeable by another Member.
5 As Brazil notes
in its first written submission, the o ngoing conduct that was at issue in US – Continued Zeroing is
virtually identical to the ongoing conduct at issue in this dispute. The zeroing practice by the USDOC
maintained and applied in succ essive phases of the anti-dumping proceeding under the anti-dumping

3 WT/DS165/AB/R, para. 75.
4 WT/DS165/AB/R, para. 75.
5 Appellate Body Report, US – Continued Zeroing, para. 180.

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duty order on certain orange juice from Brazil is an ongoing conduct that is inconsistent with the Anti-
Dumping Agreement.6

II. THE PANEL SHOULD FIND THAT THE PRACTICE OF "ZEROING" IN
ORIGINAL INVESTIGATIONS IS INCONSISTENT WITH ARTICLE 2.4.2 OF THE
ANTI-DUMPING AGREEMENT

20. The USDOC's utilization of its zeroing methodolog y in original investigations has been found
to be inconsistent, as such and as applied, with Article 2.4.2 of the Anti-Dumping Agreement in
numerous past disputes.7 There no longer appears to be any dispute with respect to this issue.

21. In fact, the USDOC has stated that, effective 22 February 2007, it will no longer utilize the
practice of zeroing in new and pending investigations.
8 However, this change in practice was not
applied to the anti-dumping investigation that is th e subject of the present dispute, because the final
results and the amended final results of the orig inal investigation of anti-dumping duties on certain
orange juice from Brazil were published more than a year before the effective date of the USDOC's
22 February 2007 change in practice.

22. Therefore, Korea considers it imperative that the Panel find the practice of zeroing in the
original investigation of anti-dumping duties on cer tain orange juice from Brazil inconsistent with
Article 2.4.2 of the Anti-Dumping Agreement.

III. AS THE APPELLATE BODY HAS CONSISTENTLY FOUND, THE PANEL
SHOULD FIND THAT THE PRACTICE OF "ZEROING" IN PERIODIC REVIEWS
IS INCONSISTENT WITH ARTICLE 9.3 OF THE ANTI-DUMPING AGREEMENT
AND ARTICLE VI:2 OF THE GATT 1994

23. The Appellate Body has repeatedly ruled that the practice of zeroing in periodic
administrative reviews is inconsistent with the Anti-Dumping Agreement — and it has held that panels
considering this issue should follow the Appellate Body's reasoning on this issue.
9 Nevertheless, the
United States contends that, notwithstanding the rulings by the Appellate Body, the practice of
zeroing in periodic "administrative reviews" s hould be found to be consistent with the Anti-Dumping
Agreement. Korea considers the United States' argumen ts unconvincing and subm its that the Panel
should once again find that the United States' pr actice of zeroing in administrative reviews is
inconsistent with the Anti-Dumping Agreement.

24. In ruling that the USDOC's practice of zer oing in periodic "administrative reviews" is
inconsistent with Article 9.3 of the Anti-Dumping Agreement and GATT Article VI:2, the Appellate
Body has explicitly rejected the United States' ar guments that "dumping" and "margin of dumping"
can be found to exist at the level of individual transactions.
10 Like the Appellate Body, Korea is
unable to find "a textual or contextual basis in the GATT 1994 or the Anti-Dumping Agreement for
treating transactions that occur above normal va lue as "dumped", for purposes of determining the

6 Appellate Body Report, US – Continued Zeroing, para. 199.
7 See Panel Report, US – Anti-Dumping Measures on PET Bags (Thailand); Panel Report, US –
Shrimp (Thailand); Appellate Body Report, EC – Bed Linen (India) ; Appellate Body Report, US – Zeroing
(Japan); Appellate Body Report, US – Continued Zeroing (EC).
8 See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an
Antidumping Investigation: Final Modification , 71 Fed. Reg. 77722 (27 December 2006); and Antidumping
Proceedings: Calculation of the Weighted-Average Dumping Margins in Antidumping Investigations: Change
in Effective Date of Final Modification, 72 Fed. Reg. 3783 (26 January 2007).
9 See, e.g., Appellate Body Report, United States – Mexican Stainless Steel, para. 161 to 162.
10 Appellate Body Report, United States – Continued Zeroing (EC), para. 287.

BCI deleted, as indicated [[XX]]

existence and magnitude of dumping in the original investigation, and as "non-dumped", for purposes
of assessing the final liability for payment of anti-dumping duties in a periodic review". 11 Korea
believes that the United States should bring its pr actice in periodic administrative reviews into
conformity with requirements of the Anti-Dumping Agreement — as it already has with original
investigations.

IV. CONCLUSION

25. Korea requests that the Panel find the United St ates' practice of zeroing as used in the original
investigation and administrative reviews as well as its continued use in successive anti-dumping
proceedings concerning imports from certain orange juice from Brazil to be inconsistent with the
Anti-Dumping Agreement.

26. Korea appreciates this opportunity to particip ate in these proceedings and to present its views
to the Panel.