UKRAINE – ANTI-DUMPING MEASURES ON AMMONIUM NITRATE REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 20 July 2018
Document codes: WT/DS493/R
Complainant: Russia
Respondent: Ukraine
Third parties: Argentina, Australia, Brazil, Canada, Colombia, China, EU, Japan, Kazakhstan, Mexico, Norway, Qatar, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 5.8, 11.2, 11.3, 6.1, 6.2, 6.4, 6.5.1, 6.8, Annex II, 6.9, 12.2, 12.2.2, 2.1, 2.2, 2.2.1, 2.2.1.1, 2.4, 11.1, 11.2, 11.3, 3.1, 3.2, 3.4, 3.5, 18.1, 1, 17.4, VI  Anti-dumping

UKRAINE – ANTI-DUMPING MEASURES ON AMMONIUM NITRATE
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 9
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of Russia 12
Annex B-2 First integrated executive summary of the arguments of Ukraine 21
Annex B-3 Second integrated executive summary of the arguments of Russia 28
Annex B-4 Second integrated executive summary of the arguments of Ukraine 38
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Argentina 49
Annex C-2 Executive summary of the arguments of Australia 52
Annex C-3 Executive summary of the arguments of Brazil 55
Annex C-4 Executive summary of the arguments of China 58
Annex C-5 Executive summary of the arguments of Colombia 61
Annex C-6 Executive summary of the arguments of the European Union 63
Annex C-7 Executive summary of the arguments of Japan 68
Annex C-8 Executive summary of the arguments of Mexico 71
Annex C-9 Executive summary of the arguments of Norway 75
Annex C-10 Executive summary of the arguments of the United States 77
ANNEX D
PANEL COMMUNICATIONS
Contents Page
Annex D-1 Communication dated 23 August 2017 regarding deadlines set out in the
timetable for this dispute
83
Annex D-2 Communication dated 23 August 2017 regarding Ukraine 's first integrated
executive summary
84
Annex D-3 Communication dated 30 August 2017 85
Annex D-4 Communication dated 12 September 2017 86
Annex D-5 Communication dated 21 September 2017 88
Annex D-6 Communication dated 16 October 2017 89
ANNEX E
INTERIM REVIEW
Contents Page
Annex E-1 Interim Review 91

CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015
Argentina – Poultry
Anti-Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from
Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, p. 1727
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft,
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1161
Canada – Continued
Suspension
Appellate Body Report, Canada – Continued Suspension of Obligations in the EC
– Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008,
DSR 2008:XIV, p. 5373
Canada – Welded Pipe Panel Report, Canada – Anti-Dumping Measures on Imports of Certain Carbon
Steel Welded Pipe from the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu, WT/DS482/R and Add.1, adopted 25 January 2017
China – Broiler Products
(Article 21.5 – US)
Panel Report, China  Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States – Recourse to Article 21.5 of the DSU
by the United States, WT/DS427/RW and Add.1, adopted 28 February 2018
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R and
Add.1, adopted 16 November 2012, upheld by Appellate Body Report
WT/DS414/AB/R, DSR 2012:XII, p. 6369
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance
Stainless Steel Seamless Tubes ("HP-SSST") from the European Union,
WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, adopted
28 October 2015
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Panel Reports, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance
Stainless Steel Seamless Tubes ("HP-SSST") from the European Union,
WT/DS454/R and Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted
28 October 2015, as modified by Appellate Body Reports WT/DS454/AB/R /

China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various
Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted
22 February 2012, DSR 2012:VII, p. 3295
China – X-Ray Equipment Panel Report, China – Definitive Anti-Dumping Duties on X-Ray Security
Inspection Equipment from the European Union, WT/DS425/R and Add.1,
adopted 24 April 2013, DSR 2013:III, p. 659
Dominican Republic – Import
and Sale of Cigarettes
Appellate Body Report, Dominican Republic – Measures Affecting the
Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted
19 May 2005, DSR 2005:XV, p. 7367
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted
28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R,
DSR 2011:VIII, p. 4289
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, p. 135
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3

Short title Full case title and citation
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast
Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18 August 2003,
as modified by Appellate Body Report WT/DS219/AB/R, DSR 2003:VII, p. 2701
EC and certain member States
– Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
EU – Biodiesel (Argentina) Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel
from Argentina, WT/DS473/AB/R and Add.1, adopted 26 October 2016
EU – Biodiesel (Argentina) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Argentina, WT/DS473/R and Add.1, adopted 26 October 2016, as modified by
Appellate Body Report WT/DS473/AB/R
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear
from China, WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland
Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI,
p. 5295
Indonesia – Import Licensing
Regimes
Panel Report, Indonesia – Importation of Horticultural Products, Animals and
Animal Products, WT/DS477/R, WT/DS478/R, Add.1 and Corr.1, adopted
22 November 2017, as modified by Appellate Body Report WT/DS477/AB/R,

Korea – Certain Paper Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from
Indonesia, WT/DS312/R, adopted 28 November 2005, DSR 2005:XXII,
p. 10637
Mexico – Anti-Dumping
Measures on Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and
Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Anti-Dumping
Measures on Rice
Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice,
Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005, as
modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, p. 11007
Russia – Commercial Vehicles Appellate Body Report, Russia – Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy, WT/DS479/AB/R and Add.1, adopted
9 April 2018
Russia – Commercial Vehicles Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from
Germany and Italy, WT/DS479/R and Add.1, adopted 9 April 2018, as modified
by Appellate Body Report WT/DS479/AB/R
US – Anti-Dumping
Methodologies (China)
Panel Report, United States – Certain Methodologies and Their Application to
Anti-Dumping Proceedings Involving China, WT/DS471/R and Add.1, adopted
22 May 2017, as modified by Appellate Body Report WT/DS471/AB/R
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
US – Corrosion-Resistant Steel
Sunset Review
Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties
on Corrosion-Resistant Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Corrosion-Resistant Steel
Sunset Review
Panel Report, United States – Sunset Review of Anti-Dumping Duties on
Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/R,
adopted 9 January 2004, as modified by Appellate Body Report
WT/DS244/AB/R, DSR 2004:I, p. 85
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014, DSR 2014:VIII, p. 3027

Short title Full case title and citation
US – Countervailing Duty
Investigation on DRAMS
Appellate Body Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea,
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, p. 521
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted
23 August 2001, DSR 2001:X, p. 4697
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – OCTG (Korea) Panel Report, United States – Anti-Dumping Measures on Certain Oil Country
Tubular Goods from Korea, WT/DS488/R and Add.1, adopted 12 January 2018
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Oil Country Tubular
Goods Sunset Reviews
Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil
Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted
17 December 2004, as modified by Appellate Body Report WT/DS268/AB/R,
DSR 2004:VIII, p. 3421
US – Oil Country Tubular
Goods Sunset Reviews
(Article 21.5 – Argentina)
Panel Report, 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, WT/DS268/RW, adopted 11 May 2007, as modified by Appellate
Body Report WT/DS268/AB/RW, DSR 2007:IX, p. 3609
US – Shrimp II (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from
Viet Nam, WT/DS429/R and Add.1, adopted 22 April 2015, upheld by Appellate
Body Report WT/DS429/AB/R
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R,
adopted 17 February 2004, DSR 2004:II, p. 571
US – Softwood Lumber IV
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada – Recourse by Canada
to Article 21.5 of the DSU, WT/DS257/AB/RW, adopted 20 December 2005,
DSR 2005:XXIII, p. 11357
US – Softwood Lumber V
(Article 21.5 – Canada)
Appellate Body Report, United States – Final Dumping Determination on
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by
Canada, WT/DS264/AB/RW, adopted 1 September 2006, DSR 2006:XII,
p. 5087
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the
DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1,
DSR 2006:XI, p. 4865
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on
Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008,
DSR 2008:II, p. 513
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, p. 323
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset
Reviews, WT/DS322/R, adopted 23 January 2007, as modified by Appellate
Body Report WT/DS322/AB/R, DSR 2007:I, p. 97
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994
BCI Business Confidential Information
DDSR Digital Dispute Settlement Registry
District Court District Administrative Court of Ukraine
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
EuroChem JSC MCC EuroChem
GAAP Generally accepted accounting principles
GATT 1994 General Agreement on Tariffs and Trade 1994
Gazprom JSC Gazprom
ICIT Intergovernmental Commission on International Trade
MEDT of Ukraine Ministry of Economic Development and Trade of Ukraine
RIP Review investigation period
SCM Agreement Agreement on Subsidies and Countervailing Measures
WTO World Trade Organization

1 INTRODUCTION
1.1 Complaint by the Russian Federation
1.1. On 7 May 2015 , the Russian Federation (Russia) requested consultations with Ukraine
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994
(GATT 1994) and Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (Anti -Dumping Agreement) with respect to the
measures and claims set out below.1
1.2. Consultations were held on 25 June 2015, but failed to resolve this dispute.
1.2 Panel establishment and composition
1.3. On 29 February 2016 , Russia requested the establishment of a panel. 2 At its meeting on
22 April 2016 , the Dispute Settlement Body (DSB) established a panel pursuant to
Russia's request, in accordance with Article 6 of the DSU.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by the Russian Federation in
document WT/DS493/2 and to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for in those agreements.4
1.5. On 23 January 2017, Russia requested the Director-General to determine the composition of
the panel, pursuant to Article 8.7 of the DSU . On 2 February 2017 , the Director -General
accordingly composed the Panel as follows:
Chairperson: Ms Andrea Marie Dawes

Members: Mr José Antonio Buencamino
 Ms Penelope Jane Ridings

1.6. Argentina, Australia, Brazil, Canada, China, Colombia, the European Union, Japan,
Kazakhstan, Mexico, Norway, Qatar, and the United States notified their interest in participating in
the Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.7. After consultation with the parties, we adopted our Working Procedures5 and timetable on
3 April 2017. We amended the Working Procedures on 21 September 2017 6 and the timetable on
12 September 2017.7 We updated the timetable on 27 November 2017.

1 Request for consultations by Russia, WT/DS493/1 (Russia's consultation request).
2 Request for the establishment of a panel by Russia, WT/DS493/2 (Russia's panel request).
3 DSB, Minutes of the meeting held on 22 April 2016, WT/DSB/M/377.
4 Constitution note of the Panel, WT/DS493/3.
5 See the Panel's Working Procedures in Annex A-1.
6 Paragraph 26(a) of the Working Procedures provides that each party and third party shall submit all
documents to the Panel by filing them via the Digital Dispute Settlement Registry (DDSR), and that the
electronic version of the documents uploaded into the DDSR shall constitute the official version for the purpose
of the record of the dispute. In our communication of 12 September 2017, and pursuant to
Russia's communication on this matter, we invited the parties to comment on our proposal to modify
paragraph 26(a) by adding a footnote that specifically addresses situations where a party uploads submissions
or exhibits on the DDSR without facing any apparent technical difficulty, but other users, including the other
party, do not have access to them due to, inter alia, technical issues relating to the DDSR. We amended the
Working Procedures on 21 September 2017 after considering the parties' comments in this regard. Our
communications in this regard are set out in Annexes D-4 and D-5 of this Report.

1.8. We held our first substantive meeting with the parties on 26 and 27 July 2017, and a session
with the third parties on 27 July 2017. We held our second substantive meeting with the parties on
21 and 22 November 2017 . We issued the descriptive part of our Report to the parties on
29 January 2017, the Interim Report on 24 April 2018, and the Final Report on 29 May 2018.
1.3.2 Additional Working Procedures on Business Confidential Information
1.9. After consultation with the parties, we adopted , on 3 April 2017, Additional Working
Procedures on Business Confidential Information (BCI).
1.3.3 Request for a Preliminary Ruling
1.10. On 12 June 2017, Ukraine requested a preliminary ruling that certain claims and measures
invoked by Russia fall outside our terms of reference. 8 Ukraine requested us to issue this ruling
prior to 15 September 2017, but we declined to do so. 9 We address Ukraine's request for a
preliminary ruling in our findings below.
1.3.4 Communications addressing procedural issues
1.11. We issued several communications to the parties addressing procedural issues arising in this
dispute. These communications are set out in Annex D of this Report.10
2 FACTUAL ASPECTS
2.1. The Ukrainian authorities11 originally imposed anti-dumping duties on imports of ammonium
nitrate from Russia following an anti-dumping investigation on imports of this product into Ukraine.
These duties were imposed by the Intergovernmental Commission on International Trade (ICIT)
through its decision of 21 May 2008 (2008 original decision). 12 This 2008 original decision was
successfully challenged by the Russian producer JSC MCC EuroChem (EuroChem) before the
domestic courts in Ukraine. ICIT implemente d these court judgments through an amendment
decision on 25 October 2010, which amended the 2008 original decision (2010 amendment).13
2.2. The Ukrainian authorities subsequently initiated an interim and expiry review (underlying
reviews) of these original measu res. Pursuant to the underlying reviews, the Ministry of Economic
Development and Trade of Ukraine (MEDT of Ukraine) issued its " [m]aterials" on interim and

7 In our communication of 12 September 2017, we agreed to Russia's request to extend the deadline for
the parties' second written submission as Ukraine's delay in filing its written response to Russia's questions
following the first substantive meeting had deprived it of an adequate opportunity to prepare its rebuttal
submission within the deadlines originally set in the timetable. Our communications of 23 August 2017 and
30 August 2017 set out the reasons for this delay on the part of Ukraine, and our decisions in this regard.
These communications are set out in Annexes D-1, D-3, and D-4.
8 Ukraine's first written submission, para. 72.
9 Ukraine's opening statement at the first meeting of the Panel, para. 7.
10 Russia objected to Ukraine's designation of UKR-53 (BCI), UKR-54 (BCI), and UKR-55 (BCI) as BCI in
these proceedings. While we have cited these exhibits in footnote 263 below, we have not found it necessary to
reproduce, or refer to any specific content from the exhibits in our report. Therefore, the question of redaction
of references to such exhibits because they are BCI does not arise. We note that Russia has had access to
these exhibits throughout the course of the proceedings, and Russia does not contend that its participation in
these proceedings was affected by the designation of these documents as BCI. (Communication to the parties
on 16 October 2017, (Annex D-6); Russia's response to Panel question No. 45, paras. 5-10). We do not
consider it necessary to address this procedural objection in order to resolve this dispute.
11 Under Ukrainian domestic law, the Intergovernmental Commission on International Trade (ICIT) has
the power to initiate an anti-dumping investigation; to terminate or extend anti-dumping measures (as in the
case of expiry reviews); or to terminate, extend, or change the extent of anti-dumping measures (as in the
case of interim reviews). (Ukraine's response to Panel question No. 1, paras. 1-2). The Ministry of Economic
Development and Trade of Ukraine (MEDT of Ukraine) is responsible for conducting the anti-dumping
investigation or review, as well as drafting a final report containing its conclusions and recommendations. This
report forms the basis for ICIT's final decision. (Ukraine's response to Panel question No. 1, para. 3). We use
the term "Ukrainian authorities" to refer to both ICIT and MEDT of Ukraine.
12 CIT, Decision on the application of definitive anti-dumping measures on imports of ammonium nitrate
originating in Russia No. АD-176/2008/143-47 (21 May 2008) (2008 original decision), (Exhibit RUS-2b).
13 ICIT, Decision implementing court orders regarding EuroChem (25 October 2010) (2010
amendment), (Exhibit RUS-8b).

expiry review of the anti-dumping measures on imports of ammonium nitrate originating in Russia
(Investigation Report 14), which contained its findings and recommendations for the continued
imposition of anti -dumping duties, but at modified rates. 15 ICIT issued its notice on the changes
and extension of anti -dumping measures on imports of ammonium nitrate originating in Russia
(2014 extension decision) on the basis of this report , thereby continuing the imposition of
anti-dumping duties on imports of ammonium nitrate from Russia at modified rates.16
2.3. Russia challenges in these panel proceedings the Ukrainian authorities' determinations in the
underlying reviews, as well as their conduct during these reviews. 17 Russia also challenges certain
aspects of the original anti-dumping measures imposed by ICIT.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATION
3.1. Russia requests us to find that18:
a. With respect to the Ukrainian authorities ' dumping determinations in the underlying
reviews, Ukraine acted inconsistently with:
i. Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement because in determining the
constructed normal value, the Ukrainian authorities failed to calculate costs on the
basis of records kept by the Russian producers and exporters, even though the costs
associated with the production and sale of ammonium nitrate were accurately and
reasonably reflected in these exporters' and producers ' records, and the records
were in a ccordance with the generally accepted accounting principles (GAAP) of the
country of origin and export;
ii. Articles 2.2 and 2.2.1.1 of the Anti -Dumping Agreement because the Ukrainian
authorities replaced the cost of gas actually borne by the Russian producers and
exporters for production of ammonium nitrate with data on gas prices outside Russia
that did not reflect the cost of production in the country of origin, and used such
prices subsequently for constructing the normal value;
iii. Article 2.2.1 of the Anti -Dumping Agreement because the Ukrainian authorities
improperly treated the domestic sales of ammonium nitrate of the Russian producers
and exporters as not being in the ordinary course of tra de and disregarded them in
determining normal value;
iv. Article 2.4 of the Anti -Dumping Agreement because the Ukrainian authorities failed
to make a fair comparison between the export price and the constructed normal
value by improperly calculating constructe d normal value for ammonium nitrate
produced in Russia;
v. Article 2.1 of the Anti -Dumping Agreement because the Ukrainian authorities failed
to determine the dumping margins of the Russian producers and exporters by
comparing the export price of ammonium nitrate exported from Russia to Ukraine
with the domestic sales price of the like product in Russia; and
vi. Articles 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement because the Ukrainian
authorities calculated and relied on dumping margins for ammonium nitrate which

14 Russia objects to the use of the term "Investigation Report", and asks us to use the term "disclosure"
to refer to this document. (Russia's second written submission, para. 5). We do not share Russia's concern
regarding the use of this term "Investigation Report", and note that the paragraph makes it quite clear that we
use this term as a shorthand. We use the term "disclosure" to refer to this document when reviewing
Russia's claims under Articles 6.9 and 6.2 of the Anti-Dumping Agreement.
15 MEDT of Ukraine, Materials on interim and expiry review of the anti-dumping measures on imports of
ammonium nitrate originating in Russia (25 June 2014) (Investigation Report), (Exhibit RUS-10b).
16 ICIT, Notice on the changes and extension of anti-dumping measures on imports of ammonium
nitrate originating in Russia (8 July 2014) (2014 extension decision), (Exhibit RUS-4b).
17 The documents relied upon with respect to these claims are the Investigation Report of MEDT of
Ukraine, and the 2014 extension decision issued by ICIT.
18 Russia's first written submission, para. 347.

were not established consistently with Articles 2.1, 2.2, 2.2.1, 2.2.1.1, and 2.4 of the
Anti-Dumping Agreement.
b. Ukraine acted inconsistently with Article 5.8 of the Anti-Dumping Agreement because the
Ukrainian authorities failed to terminate the original anti-dumping measures in respect of
EuroChem, whose dumping margin was de minimis , and imposed a 0% anti -dumping
duty on this exporter.19
c. Ukraine acted inconsistently with Articles 5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping
Agreement because the Ukrainian authorities included EuroChem, whose dumping
margin was de minimis , in the scope of the underlying reviews and imposed
anti-dumping duties on it following their determinations in these reviews.20
d. Ukraine acted inconsistently with Articles 11.1, 11.2 , and 11.3 of the Anti -Dumping
Agreement because the Ukrainian authorities determined and relied on injury which was
not established in accordance with Articles 3.1 and 3.4 of the Anti -Dumping Agreement,
and in particular failed to establish facts and to conduct an unbiased and objective
examination of these facts in its likelihood-of-injury determination.
e. With respect to the Ukrainian authorities ' conduct in the underlying review s, Ukraine
acted inconsistently with:
i. Article 6.8 and paragraphs 3, 5 , and 6 of Annex II to the Anti -Dumping Agreement
because of the numerous procedural violations by the Ukrainian authorities.
ii. Articles 6.2 and 6.9 of the Anti -Dumping Agreement because the Ukrainian
authorities failed to adequately disclose the essential facts under consideration which
formed the basis for the decision to apply anti -dumping measures, which included
the essential facts underlying the:
 determinations on the existence of dumping, the calculation of the dumping
margins, including relevant data and formula applied;

 determination of injury 21, including the price comparisons and the underlying
data, information on import, and domestic prices used therein.

iii. Article 6.9 of the Anti -Dumping Agreement because the Ukrainian authorities failed
to give interested parties sufficient time to defend their interest s by commenting on
MEDT of Ukraine's disclosure.
f. Ukraine acted inconsistently with Articles 12.2 and 12.2.2 of the Anti -Dumping
Agreement because the Ukrainian authorities failed to provide in sufficient detail in the
2014 extension decision and the Investigation Report the findings and conclusions
reached on all issues of fact and law that they considered in making their preliminary
and final determinations and failed to provide all r elevant information and reasons which
led to the imposition of the measure.
g. Ukraine violated Articles 1 and 18.1 of the Anti-Dumping Agreement as well as Article VI
of the GATT 1994 as a consequence of violations under the Anti-Dumping Agreement.

19 Russia's response to Panel question No. 24, paras. 57-58. Ukraine in its comments on the descriptive
part of the report stated that Russia had not made this claim in its first written submission. We note, however,
that as part of its request for a preliminary ruling in its first written submission, Ukraine asked us to find that
this "claim", along with the measures challenged as part of this claim, were outside our terms of reference.
(Ukraine's first written submission, paras. 72(i), 224-225, and 230-231). Whether this claim falls outside our
terms of reference is a separate issue that we discuss below.
20 Russia's response to Panel question No. 24, paras. 59, 60, and 65-66.
21 In its request for findings Russia also alleged that there was no disclosure of essential facts regarding
the determination of "causation". But no claim regarding the disclosure of such facts is presented in the
arguments section of the first written submission, or subsequent submissions.

3.2. Ukraine requests us to reject Russia's claims in this dispute in their entirety while , as noted
above, also contending that several claims as well as certain measures invoked as part of some of
these claims fall outside our terms of reference.22
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries as provided to us in
accordance with paragraph 19 of the Working Procedures (see Annexes B-1 to B-4).23
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Argentina, Australia, Brazil, China, Colombia, the European Union, Japan,
Mexico, Norway, and the United States are reflected in their executive summaries, provided in
accordance with paragraph 19 of the Working Procedures (see Annexes C -1 t o C -10). Canada,
Kazakhstan, and Qatar did not submit written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. On 24 April 2018, we issued our Interim Report to the parties. On 8 May 2018, Russia and
Ukraine each submitted written requests for the Panel to review precise aspects of the Interim
Report. Neither party requested for an interim review meeting. On 15 May 2018, both parties
submitted comments on the other party's requests for review.
6.2. The parties' requests made at the interim review stage as well as the Panel's discussion and
disposition of those requests are set out in Annex E-1.
7 FINDINGS
7.1. In this section, we first set out the general principles regarding treaty interpretation,
standard of review and burden of proof, as well as certain rules under Article 11 of the
Anti-Dumping Agreement applicable to determinations made in interim and expiry reviews, which
we apply in this dispute . We then set out our findings on issues raised by Ukraine regarding our
terms of reference, and finally proceed to examin e on substantive grounds the claims and
measures that fall within our terms of reference. In making these findings, we first set out the
relevant legal standard, and then apply that standard to resolve the jurisdictional and substantive
issues before us.
7.1 General principles regarding treaty interpretation, the standard of review, and
burden of proof
7.1.1 Treaty interpretation
7.2. Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the
existing provisions of the covered agreements "in accordance with customary rules of
interpretation of public international law". Article 17.6(ii) of the Anti-Dumping Agreement similarly
requires panels to interpret that Agreement 's provisions in accordance with the customary rules of
interpretation of public international law. 24 It is generally accepted that the principles codified in
Articles 31 and 32 of the Vienna Convention on the Law of Treaties are such customary rules.

22 Ukraine's first written submission, paras. 72 and 396.
23 In our communication of 23 August 2017, we noted that Ukraine submitted two separate executive
summaries as part of its first integrated executive summary, namely: (a) an executive summary of its first
written submission; and (b) an executive summary of its oral statement. However, inconsistently with
paragraph 20 of our Working Procedures, the combined length of these documents exceeded 15 pages. We
informed Ukraine that we would thus only accept one of the two executive summaries, which were within the
page limit set out in paragraph 20, and asked it to identify the document we should use in this regard. Ukraine
asked us to treat the executive summary of its oral statement as the first integrated executive summary. Our
communications in this regard are set out in Annexes D-2 and D-3.
24 Article 17.6(ii) of the Anti-Dumping Agreement also provides that if a panel finds that a provision of
the Anti-Dumping Agreement admits of more than one permissible interpretation, it shall uphold a measure
that rests upon one of those interpretations.

7.1.2 Standard of review
7.3. Article 11 of the DSU provides, in relevant part, that:
[A] panel should make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements.
In addition, Article 17.6 of the Anti -Dumping Agreement sets forth the special standard of review
applicable to disputes under the Anti-Dumping Agreement:

(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objective, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance
with customary rules of interpretation of public international law. Where the panel
finds that a relevant provision of the Agreement admits of more than one perm issible
interpretation, the panel shall find the authorities ' measure to be in conformity with
the Agreement if it rests upon one of those permissible interpretations.
Thus, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement together establish the
standard of review we will apply with respect to both the factual and the legal aspects of the
present dispute.

7.4. The Appellate Body has explained that where a panel is reviewing an investigating
authority's determination, the "objective assessmen t" standard in Article 11 of the DSU requires a
panel to review whether the authority has provided a reasoned and adequate explanation as
to: (a) how the evidence on the record supported their factual findings; and (b) how those factual
findings support th e overall determination. 25 In reviewing an investigating authority 's
determination, a panel should not conduct a de novo review of the evidence, nor substitute its
judgment for that of the investigating authority. A panel must limit its examination to the e vidence
that was before the investigating authority during the investigation 26 and must take into account
all such evidence submitted by the parties to the dispute. 27 At the same time, a panel must not
simply defer to the conclusions of the investigating aut hority; a panel 's examination of those
conclusions must be "in-depth" and "critical and searching".28
7.5. In the context of Article 17.6(i) of the Anti -Dumping Agreement, the Appellate Body has
clarified that while the text of this provision is couched in terms of an obligation on a panel, in
effect it defines when an investigating authority can be considered to have acted inconsistently
with the Anti -Dumping Agreement in the course of its "establishment" and "evaluation" of the
relevant facts. 29 Therefore, a panel must assess if the establishment of the facts by the
investigating authority was proper and if the evaluation of those facts by that authority was
unbiased and objective. 30 If these broad standards have not been met, a panel must hold th e
investigating authority 's establishment or evaluation of the facts to be inconsistent with the
Anti-Dumping Agreement.31

25 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS, para. 186; US – Lamb,
para. 103.
26 Article 17.5(ii) requires a panel to examine the matter based on the facts made available to the
authorities.
27 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 187.
28 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
29 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
30 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
31 Appellate Body Report, US – Hot-Rolled Steel, para. 56.

7.1.3 Burden of proof
7.6. The general principles applicable to the allocation of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO Agreement must assert
and prove its claim. 32 Therefore, as the complaining party in this proceeding, Russia bears the
burden of demonstrating that the challenged aspects of the measures at issue are inconsist ent
with the Anti -Dumping Agreement and the GATT 1994. The Appellate Body has stated that a
complaining party will satisfy its burden when it establishes a prima facie case, namely a case
which, in the absence of effective refutation by the defending party , requires a panel, as a matter
of law, to rule in favour of the complaining party.33 Finally, it is generally for each party asserting a
fact to provide proof thereof.34
7.2 Substantive and procedural rules under Article 11 of the Anti -Dumping Agreement
applicable to interim and expiry reviews
7.7. Article 11.2 of the Anti -Dumping Agreement applies to interim reviews whereas Article 11.3
of this Agreement applies to expiry reviews. Several WTO panels have taken the view that these
two Articles operationalize the gene ral principle in Article 11.1 of the Anti -Dumping Agreement
that an anti-dumping duty remain in force for as long as, and to the extent necessary to ,
counteract dumping which is causing injury. 35 Thus, according to these panels, Article 11.1 does
not impose independent obligations on a Member.36
7.8. Article 11.2 provides for an examination of whether "continued imposition of the
[anti-dumping] duty is necessary to offset dumping", "whether the injury would be likely to
continue or recur if the duty were removed o r varied", "or both". If as a result of a review under
Article 11.2, the investigating authorities determine that the imposition of the anti-dumping duty is
no longer warranted, the duty shall be terminated immediately. Article 11.3 requires termination
of the anti -dumping duty no longer than five years from the date of its imposition unless the
authorities determine, in a review, that expiry of this duty would be "likely to lead to continuation
or recurrence of dumping and injury". The Appellate Body has c oncluded, based on its
understanding of the words "review" and "determine" in Article 11.3, that in making a
likelihood-of-dumping or likelihood -of-injury determination investigating authorities are obliged to
act with an "appropriate degree of diligence" in order to arrive at a "reasoned conclusion". 37
Article 11.2 uses the same two words, and we consider that the same standard applies under this
provision as well.38
7.9. With respect to procedural rules, Article 11.4 of the Anti-Dumping Agreement states that the
provisions of Article 6 of this Agreement regarding evidence and procedure, which include
Articles 6.2, 6.8, and 6.9 of this Agreement, would apply to Article 11 reviews.39 Article 12.3 of the
Anti-Dumping Agreement states that Article 12 of this Agreement, which sets out public notice
obligations, shall apply mutatis mutandis to Article 11 reviews.
7.3 Findings on terms of reference
7.10. In its request for a preliminary ruling, Ukraine asked us to find that Russia 's panel request
was deficient and inconsistent with Article 6.2 of the DSU, insofar as it concern ed the claims set
out in the following item numbers of this request:

32 Appellate Body Report, US – Wool Shirts and Blouses, p. 16, DSR 1997:1, p. 337.
33 Appellate Body Report, EC – Hormones, paras. 98 and 104.
34 Appellate Body Report, US – Wool Shirts and Blouses, p. 16, DSR 1997:1, p. 337.
35 Panel Reports, US – Shrimp II (Viet Nam), para. 7.364; EC – Tube or Pipe Fittings, para. 7.113; and
US – DRAMS, para. 6.41.
36 Panel Reports, US – Shrimp II (Viet Nam), para. 7.363; EC – Tube or Pipe Fittings, para. 7.113.
37 Appellate Body Reports, US – Corrosion-Resistant Steel Sunset Review, para. 111; US – Oil Country
Tubular Goods Sunset Reviews, paras. 283-284.
38 See, e.g. Panel Report, US – Shrimp II (Viet Nam), para. 7.367.
39 See, e.g. Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 152; Panel
Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), fn 78.

a. item number 1, concerning claims under Articles 5.8, 11.1, 11.2, and 11.3 of the
Anti-Dumping Agreement40;
b. item number 4, concerning claims under Article 6.8 and paragraphs 3, 5, and 6 of
Annex II to the Anti-Dumping Agreement41; and
c. item number 17, concerning claims under Articles 11.1, 11.2, 11.3, 3.1, and 3.4 of the
Anti-Dumping Agreement.42
7.11. Ukraine also contended that the 2008 original decision as amended by the 2010 amendment
of ICIT and the 2010 amendment were outside the scope of the panel request. 43 Ukraine asserted
that the determinations made by the Ukrainian authorities in relation to the original investigation
fall outside our terms of reference because in its panel request Russia only challenged the
determinations made by these authorities in the interim and expiry reviews.
7.12. Further, Ukraine ask ed us to find that claims set out in the following ite m numbers of the
panel request were not subject to consultations, and did not reasonably evolve from the legal basis
set out in the consultation request:
a. item number 7, concerning claims under Articles 12.2 and 12.2.2 of the Anti -Dumping
Agreement44; and
b. item number 17, insofar as it concern ed the claims under Articles 3.1 and 3.4 of the
Anti-Dumping Agreement.45
7.13. Ukraine asked us to find, on this basis, that the aforementioned claims and measures fall
outside our terms of reference. We will first consider Ukraine's submissions regarding the
consistency of Russia's panel request with Article 6.2 of the DSU , and then examine its
submissions regarding claims that it alleges are outside our terms of reference because they were
outside the scope of the consultation request.
7.3.1 Consistency of Russia's panel request with Article 6.2 of the DSU
7.3.1.1 Legal Standard
7.14. Pursuant to our terms of reference, set out in paragraph 1.4 above, we must examine the
"matter" referred to the DSB by Russia in its panel request. We recall that the terms of reference,
and the panel request on which they are based, serve the due process objective of notifying
respondents and potential thir d parties of the nature of the dispute and of the parameters of the
case to which they must begin preparing a response.46 However, due process is not constitutive of,
but rather follows from, the proper establishment of a panel's jurisdiction, and therefore a deficient
panel request cannot be cured by a complainant 's subsequent written submissions.47 Article 6.2 of
the DSU requires that a panel request:
[I]ndicate whether consultations were held, identify the specific measures at issue and
provide a brief sum mary of the legal basis of the complaint sufficient to present the
problem clearly.
7.15. Article 6.2 imposes two distinct requirements, which a panel request needs to comply
with: (a) identify the specific measures at issue ; and (b) provide a brief summary of t he legal

40 See also Russia's first written submission, para. 347(7).
41 See also Russia's first written submission, para. 347(9).
42 See also Russia's first written submission, para. 347(8).
43 Ukraine's first written submission, paras. 30-32.
44 See also Russia's first written submission, para. 347(12).
45 Russia's first written submission, para. 347(8).
46 Appellate Body Report, US – Continued Zeroing, para. 161.
47 Appellate Body Report, China – Raw Materials, para. 233 (referring to Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 640).

basis of the complaint. 48 These two elements i.e. the measures and the claims together comprise
the matter referred to the DSB , which we are required to examine .49 Compliance with these
Article 6.2 requirements must be demonstrated on the face of th e panel request. 50 Further,
compliance must be determined on the merits of each case, based on a consideration of the panel
request as a whole, and in light of the attendant circumstances.51
7.3.1.1.1 Specific measures at issue
7.16. Article 6.2 of the DSU requires identifi cation of the "specific" measures at issue. This
specificity requirement means that the measures at issue must be identified with sufficient
precision so that what is referred to adjudication by a panel may be discerned from the panel
request.52 However, as long as each measure is discernible from the panel request, a complainant
is not required to identify each challenged measure independently from other measures in order to
comply with this specificity requirement.53
7.3.1.1.2 Brief summary of the legal basis of the complaint
7.17. To be consistent with Article 6.2 of the DSU, a panel request must: (a) set out the legal
basis of the complaint; and (b) provide a brief summary of that legal basis sufficient to present the
problem clearly. The "legal basis" of the complaint pe rtains to the specific provision of the covered
agreement that contains the obligation alleged to be violated. 54 A "brief summary" of the legal
basis of the complaint aims to succinctly explain how or why the measure at issue is considered by
the complainant to be violating the WTO obligation in question, and the narrative part of the panel
request serves this function. 55 The brief summary must be sufficient to present the problem
clearly.56 Moreover, the panel request must also plainly connect the challenged measure(s) with
the provision(s) of the covered agreements claimed to have been infringed.57
7.3.1.2 Measures Ukraine alleges were outside the scope of Russia's panel request
7.18. Russia, as noted earlier, challenges certain aspects of the original anti -dumping measures
imposed by the Ukrainian authorities on imports of ammonium nitrate from Russia. We recall in
this regard that following the original investigation, ICIT imposed anti -dumping dut ies on
ammonium nitrate exported to Ukraine by certain Russian producers, including EuroChem. ICIT
imposed these duties through its decision of 21 May 2008 , which we refer to as the 2008 original
decision.58 EuroChem challenged this decision, and specifically the dumping determina tions made
for EuroChem, before the domestic courts in Ukraine. The Ukrainian courts r uled in favour of
EuroChem.59

48 See, e.g. Appellate Body Reports, Argentina – Import Measures, para. 5.39; and US – Carbon Steel,
para. 125.
49 See, e.g. Appellate Body Reports, Guatemala – Cement I, paras. 69-76; US – Carbon Steel,
para. 125; US – Continued Zeroing, para. 160; and EC and certain member States – Large Civil Aircraft,
para. 639.
50 Appellate Body Report, US – Carbon Steel, para. 127.
51 Appellate Body Report, US – Carbon Steel, para. 127.
52 Appellate Body Report, US – Continued Zeroing, para. 168. See also ibid. para. 169. The Appellate
Body stated that the identification of a measure needs be framed only with sufficient particularity to indicate
the nature of the measure and the gist of what is at issue.
53 Appellate Body Report, US – Continued Zeroing, para. 170.
54 Appellate Body Report, EC – Selected Customs Matters, para. 130.
55 Appellate Body Reports, EC – Selected Customs Matters, para. 130; US – Countervailing and
56 Appellate Body Report, EC – Selected Customs Matters, para. 130.
57 Appellate Body Report, China – Raw Materials, para. 220 (referring to Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 162).
58 2008 original decision, (Exhibit RUS-2b).
59 See, e.g. Judgment of the Kiev District Administrative Court No. 5/411 (6 February 2009) (Judgment
of the District Court 2009), (Exhibit RUS-6b). This judgment of the District Court was upheld by higher courts
in Ukraine (Judgment of the Kiev Appellate Administrative Court No. 2-a-8850/08 (26 August 2009) (Judgment
of the Appellate Court 2009), (Exhibit RUS-5b); Judgment of the Higher Administrative Court of Ukraine
No. K-42562/09 (20 May 2010) (Judgment of the Higher Court), (Exhibit RUS-7b)).

7.19. In pursuance of these court judgments, ICIT issued the 2010 amendment, which amended
the 2008 original decision60 by reducing the anti-dumping duty rate for EuroChem from 10.78% to
0%.61 Ukraine contends that the 2008 original decision as amended by the 2010 amendment of
ICIT (2008 amended decision), and the 2010 amendment were not identified in Russia 's panel
request as the "specific measures at issue", and therefore, they fall outside our terms of reference.
7.20. Russia does not challenge the 2008 original decision in and of itself. 62 Instead, Russia
challenges the 2008 amended decision as well as the 2010 amendment.63 Thus, we must consider
whether Russia's panel request covered the: (a) 2008 amended decision ; and (b) the 2010
amendment.64
7.21. Article 6.2 of the DSU requires, inter alia, that the panel request "identif [ies] the specific
measures at issue". Measures not prop erly identified in the panel request fall outside a
panel's terms of reference65, and cannot be the subject of panel findings or recommendations. The
measures at issue must be identified with sufficient precision so that what is referred to
adjudication may be discerned from the panel request. 66 A panel request will satisfy this
requirement where it identifies the measure at issue with sufficient particularity so as to indicate
the nature of the measure and the gist of what is at issue. 67 Therefore, the issue that we have to
consider is whether the panel request, read as a whole, identified the 2008 amended decision and
the 2010 amendment with sufficient precision, in a manner consistent with Article 6.2 of the DSU.
7.22. We note that the opening paragraph of the pan el request refers to the measures subjected
to WTO consultations between Ukraine and Russia. The opening paragraph states that Russia
requested consultations with respect to:
Ukraine's measures imposing anti -dumping duties on imports of ammonium nitrate
originating in the Russian Federation in connection with expiry and interim reviews.
These measures are set forth in the Decision of the Intergovernmental Commission on
International Trade No. AD -315/2014/4421-06 of 1 July 2014 and Notice "On the
changes and extension of anti -dumping measures in respect of import to Ukraine of
ammonium nitrate, origin from the Russian Federation", published on 8 July 2014 in
"Uryadoviy Courier", No 120, including any and all annexes, notices, communications
and reports of the Ministry of Economic Development and Trade of Ukraine and any
amendments thereof.[*]68
 [*fn original]2 The definitive anti-dumping measures were imposed through the Decision of the
Intergovernmental Commission on International Trade No. AD -176/2008/143-47 of
21 May 2008 "On the Application of the Definitive Anti -Dumping Measures on Import
into Ukraine of Ammonium Nitrate Originating in the Russian Federation", as amended
by the Decision No. AD -245/2010/4403-47 of 25 October 2010 . The expiry review was
initiated pursuant to the Decision of the Intergovernmental Commission on In ternational Trade
No. AD-294/2013/4423-06 of 24 May 2013. According to this Decision, the anti -dumping duties
on import of ammonium nitrate originating in the Russian Federation were t o remain in force
pending the outcome of the review. The interim review was initiated pursuant to the Decision of
the Intergovernmental Commission on International Trade No. AD -296/2013/4423-06 of
2 July 2013. As a result of the simultaneously conducted ex piry and interim reviews, the
definitive anti-dumping duty rates on imports of ammonium nitrate from the Russian Federation,
that were initially imposed by the Decision No. AD -176/2008/143-47 of 21 May 2008, were
increased and extended for the duration of five years by the Decision of the Intergovernmental
Commission on Intern ational Trade No. AD-315/2014/4421-06 of 1 July 2014, which came into
force on 8 July 2014.

60 2010 amendment, (Exhibit RUS-8b).
61 2010 amendment, (Exhibit RUS-8b).
62 See, e.g. Russia's opening statement at the second meeting of the Panel, para. 153; response to
Panel question No. 24, para. 57.
63 Russia's opening statement at the second meeting of the Panel, para. 153; response to Panel
question No. 24, para. 57.
64 As Russia does not independently challenge the 2008 original decision, we do not find it necessary to
rule on whether the 2008 original decision falls within our terms of reference.
65 Appellate Body Reports, Dominican Republic – Import and Sale of Cigarettes, para. 120; EC and
certain member States – Large Civil Aircraft, para. 790.
66 Appellate Body Report, US – Continued Zeroing, para. 168.
67 Appellate Body Report, US – Continued Zeroing, para. 169.
68 Emphasis added; certain fns omitted.

7.23. Then, item number 1 of the panel request states:
[Russia] considers that the measures at iss ue are inconsistent with
Ukraine's obligations under the following provisions of the Anti -Dumping Agreement
and the GATT:
1. Articles 5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement, because Ukraine
failed to exclude a certain Russian exporter whose dumping margin was de minimis
from the anti -dumping measures [*] and because Ukraine subjected this exporter to
expiry and interim reviews [.]69
[*fn original]3 The following decisions of Ukrainian authorities determined that in the original
investigation a dumping margin of JSC MHK EuroChem was de minimis : the Decision of the
District Administrative Court of the City of Kiev of 6 February 2009 No 5/411, the Decision of the
Kiev Appellate Administrative Court of 26 August 2009 No. 2 -а-8850/08 and the Decision of the
Higher Administrative Court of Ukraine of 20 May 2010 No. К-42562/09 and No. К-42568/09, the
Decision of the Intergovernmental Commission on Internati onal Trade
No. AD-245/2010/4403-47 of 25 October 2010 "On reversal of Decision of the
Intergovernmental Commission on International Trade No. AD -176/2008/143-47 of
21 May 2008 "On the Application of the Definitive Anti -Dumping Measures on Import
into Ukraine of Ammonium Nitrate Originating in the Russian Federation" in respect of
JSC MHK EuroChem".
7.24. The part of footnote 2 marked in bold above refers to the 2008 amended decision. Item
number 1 of the panel request states that Russia claims violations under Articles 5.8, 11.1, 11.2,
and 11.3 because of the alleged failure of the Ukrainian authorities to exclude a certain Russian
exporter from the "anti-dumping measures". The reference to the "anti-dumping measures" here is
followed by footnote 3, which refers to the 2010 amendment, and notes that it amended the
2008 original decision. Thus, the references to the 2008 amended decision and the 2010
amendment in footnotes 2 and 3 show that Russia took issue, in its panel request, with the alleged
failure to exclu de the Russian exporter from the 2008 amended decision. Thus, in our view,
Russia's panel request was sufficiently precise to identify the measures, i.e. 2008 amended
decision, and the 2010 amendment, which were being referred for adjudication.
7.25. Ukraine argues that these references were not sufficient to identify these measures as the
specific measures at issue because:
a. the phrase "in connection with the expiry and interim reviews" in the opening paragraph
of the panel request restricted the scope of Russ ia's challenge to the underlying
reviews70; and
b. measures could not have been identified in footnotes 2 and 3 of the panel request,
because footnotes do not "ha[ve] the value, or the substance, to determine the terms of
reference of the Panel".71
7.26. With respec t to Ukraine 's first argument, the opening paragraph of the panel request
cannot be read in isolation from other parts of the panel request, including item number 1 of this
request, as a panel request needs to be read as a whole. We already noted in paragraph 7.24
above that footnote 2 of the panel request and the reference to "anti -dumping measures" in item
number 1 of the panel request covered both the 2008 amended decision, and the 2010
amendment. Therefore, we disagree with Ukraine that the phrase "in connection with the expiry
and interim reviews" in the opening paragraph of the panel request restricted the scope of
Russia's challenge to the underlying reviews.
7.27. With respect to the second argument, we note that nothing in Article 6.2 of the DSU
specifically prohibits the identification of the specific measures in the footnotes of a panel request.
Therefore, we are not persuaded by Ukraine 's argument that the measures identified in a footnote
of the panel request fall outside our terms of reference . We also not e that the Appellate Body in
US – Countervailing and Anti-Dumping Measures (China) found that "footnotes are part of the text

69 Emphasis added.
70 Ukraine's opening statement at the first meeting of the Panel, para. 12.
71 Ukraine's opening statement at the first meeting of the Panel, para. 19.

of a panel request, and may be relevant to the identification of the measure at issue or the
presentation of the legal basis of the complaint".72
7.28. Based on the foregoing, we find that the 2008 amended decision and the 2010 amendment
were identified as specific measures at issue in the panel request, and thus do not fall outside our
terms of reference.
7.3.1.3 Claims that Ukraine alleges were not presented in Russia's panel request in
conformity with Article 6.2 of the DSU
7.29. Ukraine argues that item numbers 1, 4 , and 17 of the pan el request do not meet the
requirement under Article 6.2 of the DSU as the claims in these item numbers were not set out in
sufficient detail in this request . We understand Ukraine's arguments to be based on the view that
Russia failed to provide in each o f these item numbers a brief summary of the legal basis of the
complaint that was sufficient to present the problem clearly. Hence, in Ukraine's view, the claims
presented in these item numbers, and set out in paragraph 7.10 above, fall outside our terms of
reference.
7.3.1.3.1 Claims presented in item number 1 of Russia's panel request
7.30. Ukraine argues that item number 1 of the panel request, which concerns Russia's claims
under Articles 5.8, 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement, is inconsistent with
Article 6.2 of the DSU as it does not clearly state which of the multiple obligations in these
provisions the claims relate to. 73 The question before us therefore is whether Russia 's panel
request sets out these claims with adequate clarity, and specifically whether it provides a "brief
summary" of these claims which is sufficient to present the problem clearly. We recall that the
brief summary would be sufficient to present the problem clearly when, as stated in
paragraph 7.17 above, it succinctly explains how or why the measure at issue is considered by the
complainant to be violating the WTO obligation in question . Moreover, the panel request must
plainly connect the challenged measure(s) with the provision(s) of the covered agreements
claimed to have been infringed.
7.31. Item number 1 of the panel request states in this regard:
[Russia] considers that the measures at issue are inconsistent with
Ukraine's obligations u nder the following provisions of the Anti -Dumping Agreement
and the GATT:
1. Articles 5.8, 11.1, 11.2 and 11.3 of the Anti-Dumping Agreement, because Ukraine
failed to exclude a certain Russian exporter whose dumping margin was de minimis
from the anti -dumping measures[*] and because Ukraine subjected this exporter to
expiry and interim reviews[.]74
7.32. The word "because" is used twice in item number 1. This suggests that in this item number,
Russia challenged two aspects of the measures at issue : first, that Ukraine failed to exclude a
certain Russian exporter whose dumping margin was de minimis from the "anti -dumping
measures"; second, that Ukraine subjected this exporter to expiry and interim reviews.
7.33. Regarding the first aspect, in the narrative part of the panel request, Russia claimed that
Ukraine failed to exclude a certain Russian exporter whose dumping margin was de minimis from
the "anti -dumping measures". The reference to anti-dumping measures, a s stated in
paragraph 7.24 above, is followed by footnote 3, which refers to the 2010 amendment and notes
that it amended the 2008 original decision . These are the determinations made in the original
investigation phase. Footnote 3 also identifies the court decisions as well as the 2010 amendment
as the decisions of the Ukrainian authorities pursuant to which they allegedly determined a de
minimis dumping margin for EuroChem in the original investigation. This suggests, as noted
above, that the fi rst aspect of item number 1 concerns Ukraine 's failure to exclude a Russian

72 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.39; see also
Panel Report, Indonesia – Import Licensing Regimes, preliminary ruling of the panel, para. 3.15.
74 Emphasis added; fn omitted.

exporter from the scope of the original anti -dumping investigation phase. The second sentence of
Article 5.8 states that"[t]here shall be immediate termination [of an investigation] in cases where
the authorities determine that the margin of dumping is de minimis". In claiming in item number 1
that Ukraine failed to exclude a ce rtain Russia exporter from the anti -dumping measures whose
dumping margin was de minimis Russia relies on th is text of th e second sentence of Article 5.8.
The narrative part of the request does make it clear that this first aspect is concerned with
Ukraine's failure to exclude an exporter with a de minimis dumping margin from the original
investigation phase, which in Russia 's view was contrary to the requirements under the second
sentence of Article 5.8.
7.34. Regarding the second aspect, the narrative part in item number 1 identifies the issue as
Ukraine's subjection of an exporter to an interim and expiry review, when it should have excluded
this exporter from the "anti -dumping mea sures", i.e. determinations made in the original
investigation phase. Russia invokes Articles 5.8, 11.1, 11.2 and 11.3 of the Anti -Dumping
Agreement in this regard. All these Articles could be potentially relevant to the issue identified by
Russia. The second sentence of Article 5.8, as stated above, requires the "immediate terminatio n"
of the investigation in respect of an exporter with a de minimis margin of dumping. Article 11.2
sets out obligations concerning interim reviews, while Article 11.3 sets out obligations concerning
expiry reviews. Specifically, Article 11.2 provides that the authorities shall review the "need for the
continued imposition of the [anti -dumping] duty". Article 11.3 provides that an authority shall
determine whether "the expiry of the duty" would be likely to lead to continuation or recurrence of
dumping and injury. Articles 11.2 and 11.3 have been understood in past cases to operationalize
the general principle set out in Article 11.1, which provides that an "anti -dumping duty shall
remain in force only as long as and to the extent necessary to counteract dum ping which is
causing injury". Therefore, the narrative part of the panel request, coupled with the references to
Articles 5.8, 11.1, 11.2 , and 11.3, makes it sufficiently clear that Russia intended to challenge
under these provisions Ukraine's decision to subject an exporter to the interim and expiry reviews
when it should have terminated the investigation against it.
7.35. Based on the foregoing, we find that item number 1 of Russia 's panel request was
consistent with Article 6.2 of the DSU as it provided a brief summary of the legal basis which was
sufficient to present the problem clearly . Thus, we find that the claims presented in this item
number are within our terms of reference.
7.3.1.3.2 Claims presented in item number 4 of Russia's panel request
7.36. Ukraine argues that item number 4 of the panel request, in which Russia claims that
Ukraine violated Article 6.8 and paragraphs 3, 5 , and 6 of Annex II of the
Anti-Dumping Agreement, is inconsistent with Article 6.2 of the DSU as it does not indicate which
aspects of the investigation were in violation of these provisions. 75 Ukraine contends that it was
"completely blindsided" by Russia 's arguments in its first written submission that took issue with
MEDT of Ukraine 's decision to reject the gas prices set ou t in the records of the investigated
Russian producers, and replace it with the average price of gas exported from Russia at the
German border.76
7.37. Russia's claims under Article 6.8 and paragraphs 3, 5 , and 6 of Annex II of the
Anti-Dumping Agreement are presented in item number 4 of the panel request, which states:
[Russia] considers that the measures at issue are inconsistent with
Ukraine's obligations under the following provisions of the Anti -Dumping Agreement
and the GATT:
4. Article 6.8 and Annex II, in particular paragraphs 3, 5 and 6, of the Anti -Dumping
Agreement, because:
(i) Ukraine failed to take into account all information pertaining to the determination
of the dumping margins which was verifiable, supplied in a timely fashion and
appropriately submitted so that it could be used in the investigation without undue
difficulties;

76 Ukraine's first written submission, para. 44.

(ii) Ukraine failed to inform the Russian exporters and producers of the reasons why
the supplied information and evidence were not accepted;
(iii) Ukraine failed to g ive the Russian exporters and producers an opportunity to
provide further explanations within a reasonable period of time[.]77
7.38. We note that Russia's panel request identified the relevant legal provision s that it invoked,
namely, Article 6.8 and paragraphs 3 , 5 , and 6 of Annex II of the Anti -Dumping Agreement.
Ukraine's argument that Russia simply referred to the legal provisions at issue in its panel request,
and did not indicate in any detail what aspects of the investigation were conducted in violation of
these provisions, takes issue with the degree of clarity with wh ich Russia presented its claims.
Thus, the issue before us is whether Russia 's panel request, insofar as this item number is
concerned, provided a brief summary of the legal basis that was sufficient to present the problem
clearly.
7.39. We consider that the ita licized part of the quoted extract in item number 4(i) of
Russia's panel request, set out in paragraph 7.37 above, makes it clear that Russia took issue with
the Ukrainian authorities ' alleged failure to take into account all information pertaining to the
determination of dumping. This includes information furnished by these producers with respect to
their cost of production, including the gas prices that they paid, which was rejected by MEDT of
Ukraine.78 Thus, contrary to Ukraine 's argument, the panel reques t, and specifically item
number 4(i), does identify the aspect of the investigation that Russia took issue with, namely, the
Ukrainian authorities' alleged failure to take into account all information pertaining to dumping
determinations.
7.40. Item numbers 4(ii) and (iii) have to be understood in this context. The panel request could
have been clearer if Russia were to additionally explain tha t it took issue with the rejection of
certain information pertaining to constructed normal value, or that it took issue with the rejection
of gas prices paid by the investigated Russian producers. However, we consider it to be sufficiently
clear to meet the obligations under Article 6.2 of the DSU to provide a "brief summary" that was
sufficient to clearly present the "problem", i.e. MEDT of Ukraine's alleged failure to take into
account all information pertaining to its dumping determinations. Therefore, this request covers
claims regarding the alleged use of facts available in constructing the normal value by rejecting
the gas prices reported by the investigated Russian producers in their records.
7.41. Based on the foregoing, we find that item number 4 of Russi a's panel request sets out a
brief summary of the legal basis that is sufficient to present the problem clearly. Thus, we find the
claims presented in this item number to be within our terms of reference.
7.3.1.3.3 Claims presented in item number 17 of Russia's panel request
7.42. Ukraine argues that item number 17 of the panel request does not clearly state which of the
multiple obligations in Articles 11.1, 11.2, 11.3, 3.1, and 3.4 of the Anti -Dumping Agreement its
claims relate to. 79 The issue before us is whether Russia's panel request , insofar as the claims
presented in item number 17 of the panel request are concerned, provides a brief summary of the
legal basis sufficient to present the problem clearly . We must address this question based on a
review of the panel request as a whole.
7.43. In terms of the structure of the panel request, item numbers 14, 15, and 16 precede item
number 17, and state:
[Russia] considers the measures at issue are inconsistent with Ukraine 's obligations
under the following provisions of the Anti-Dumping Agreement and the GATT:
…

77 Emphasis added.
78 Ukraine notes that these gas prices were the only information pertaining to the dumping
determinations that were rejected by MEDT of Ukraine. (Ukraine's response to Panel question No. 29,
para. 97).
79 Ukraine's first written submission, para. 43.

14. Articles 3.1 and 3.2 of the Anti -Dumping Agreement because
Ukraine's determination on injury was not based on positive evidence and did not
involve an objective examination of the volume of the allegedly dumped imports and
the effect of those imports on prices in the domestic market for like products.
15. Articles 3.1 and 3.4 of the Anti -Dumping Agreement because Ukraine failed to
base findings on injury on positive evidence and to conduct an objective examination
of all relevant factors and indices having a bearing on the state of the domestic
industry.
16. Articles 3.1 and 3.5 of the Anti -Dumping Agreement because Ukraine fail ed to
conduct an objective examination of factors other than the allegedly dumped imports
and attributed the alleged injury to the allegedly dumped imports.
7.44. Each of these item numbers set out the relevant provisions of Article 3 that Russia alleges
the Ukrainian authorities infringed through the actions or omissions identified therein . In our view,
item number 17 needs to be read in conjunction with item numbers 14, 15, and 16. Item number
14, which refers to Articles 3.1 and 3.2, and item number 15, which refers to Articles 3.1 and 3.4,
set out the aspects of the alleged injury analysis made by MEDT of Ukraine, that Russia took issue
with, namely: (a) the considerations regarding the volume of allegedly dumped imports and the
effect of those imports on domestic like product prices; and (b) the examination of the state of the
domestic industry. Paragraph 16 refers to causation-related issues under Article 3.5. These are the
aspects of the relevant measures that Russia took issue with in its panel request.80
7.45. Item number 17 immediately follows item numbers 14, 15, and 16 , and states that the
measures were inconsistent with Ukraine's obligations under:
17. Articles 11.1, 11.2 and 11.3 of the Anti -Dumping Agreement because Ukraine
determined and relied on injury which was not established in accordance with
Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.
7.46. Item number 17 refers to the provisions at issue, namely Articles 11.1, 11.2, and 11.3. It
does not specifically identify the textual obligations under these provisions that Russia invokes in
its claims. However, considering item number 17 immediately follows item numbers 14, 15, and
16, cross-refers to the Article 3 injury provisions discussed in these item numbers, and states that
the violations under Articles 11.1, 11.2, and 11.3 occurred because Ukraine "determined and relied
on injury"81 not established in accordance with these Article 3 injury provisions, it is clear that
Russia was invoking the injury related provisions of Articles 11.2 and 11.3. In particular,
Articles 11.2 and 11.3, while worded differently, both refer to the likeliho od of continuation or
recurrence of injury, and these cross references, along with the reference to "injury" in item
number 17 make it clear that it is this aspect of Articles 11.2 and 11.3 that Russia sought to
challenge. Articles 11.2 and 11.3 operationalize the general principle under Article 11.1, and thus a
failure to follow these provisions could lead to a failure to ensure that anti -dumping duty remains
in force only as long as and to the extent necessary to counteract dumping which is causing injury.
Thus, when read as a whole, the panel request plainly connects the relevant aspects of the
measures with the legal basis of its complaint, and succinctly explains how or why Russia
considers Ukraine to have acted inconsistently with these provisions.
7.47. Based on the foregoing, we find that item number 17 of Russia's panel request sets out a
brief summary of the legal basis that is sufficient to present the problem clearly. Thus, to the
extent Russia's claims in item number 17 of the panel request are based o n the premise that the
Ukrainian authorities acted inconsistently with Articles 11.1, 11.2 , and 11.3 because they
determined and relied on injury not established in accordance with Articles 3.1, 3.2, 3.4, and 3.5,
this request is not inconsistent with Article 6.2 of the DSU.

80 However, Russia does not pursue any causation-related claims in its first written submission.
81 Emphasis added.

7.3.1.4 Overall conclusion
7.48. Based on the foregoing, we find that the claims presented in the following item numbers fall
within our terms of reference:
a. item number 1 of the panel request with respect to the claims specified under
Articles 5.8, 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement;
b. item number 4 of the panel request with respect to claims under Article 6.8 and
paragraphs 3, 5, and 6 of Annex II of the Anti-Dumping Agreement; and
c. item number 17 of the panel request with respect to claims under Articles 11.1, 11.2,
and 11.3 of the Anti-Dumping Agreement insofar as they are based on the view that the
Ukrainian authorities determined and relied on injury which was not established in
accordance with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement.
7.3.2 Claims that Ukraine alleges were outside the scope of the consultation request
7.3.2.1 Legal standard
7.49. Article 4.4 of the DSU provides that a consultation request shall be "submitted in writing
and shall give the reasons for the request, including identification of the measures at issue and an
indication of the legal basis for the complaint ". The issue before us concerns the indication of the
legal basis of the complaint in Russia 's consultation request. The language of Article 4.4 in thi s
regard has been understood to impose a less stringent standard than Article 6.2 of the DSU, where
a mere "indication" of the legal basis would not suffice.82
7.50. The Appellate Body has clarified in this regard that a claim specified in the panel request will
not necessarily fall outside a panel 's terms of reference because they are not specified in the
consultation request.83 In particular, there is no need for a precise and exact identity between a
consultation request and a panel request. 84 The rationale is th at consultations may lead to
reformulation of the complaint that takes into account new information such that additional
provisions of the covered agreements become relevant. 85 The panel request may thus refer to
additional provisions that are not invoked in the consultation request.
7.51. However, the legal basis or claims set out in the panel request still need to reasonably
evolve from the legal basis that formed the subject of consultations.86 The panel request must thus
not change the essence of the measures a nd the legal basis set out in the consultation request. 87
In examining the sufficiency of the request for consultations, a panel should examine the
consultation request, and not consider what happened in the consultations.88
7.3.2.2 Whether Russia 's "public notice" claims under Articles 12.2 and 12.2.2 fall
outside our terms of reference in light of its consultation request
7.52. In item number 7 of its panel request, Russia stated:
[Russia] considers that the measures at issue are inconsistent with
Ukraine's obligations under the following provisions of the Anti -Dumping Agreement
and the GATT:
…

82 Panel Report, EC – Fasteners (China), para. 7.206.
83 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
84 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 137 (referring to Appellate
85 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
86 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
87 Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice, paras. 137-138; Brazil – Aircraft,
para. 132.
88 Appellate Body Report, US – Upland Cotton, para. 287.

7. Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement, because Ukraine failed to
provide in sufficient detail in the Decision of the Intergovernmental Commission on
International Trade No. AD-315/2014/4421-06 of 1 July 2014, as referred to in Notice
"On the changes and extension of anti -dumping measures in respect of import to
Ukraine of ammonium nitrate, origin from the Russian Federation", and in the
Communication of the Min istry of Economic Development and Trade of Ukraine
No. 4421-10/21367-07 of 25 June 2014 the findings and conclusions reached on all
issues of fact and law it considered in making its preliminary and final determinations
and failed to provide all relevant i nformation and reasons, which have led to the
imposition of the measure. Ukraine did not provide the calculations used to determine
the dumping margins in the final determination and the data it relied upon in order to
make the calculations.
7.53. Russia's consultation request does not refer either to Articles 12.2 and 12.2.2 or the
subject matter governed under Article 12, such as the adequacy of the public notice issued by an
investigating authority. However, Russia contends that its claims under Articles 12.2/12.2.2 in the
panel request naturally evolved from the legal basis set out in item number 10 of the consultation
request, which deals with its claims under Article 6.9 of the Anti -Dumping Agreement . In item
number 10, Russia stated:
The measures at issue appear to be inconsistent with Ukraine 's WTO obligations, in
particular, under the following provisions of the Anti -Dumping Agreement and the
GATT 1994:
…
10. Article 6.9 of the Anti -Dumping Agreement because Ukraine failed to adequately
disclose the essential facts under consideration which form the basis for the decision
to impose antidumping measures, including the essential facts underlying the
determinations of the existence of dumping and the calculation of the margins of
dumping, the determinati on of injury, and the casual link. Ukraine failed to provide
sufficient time for all interested parties to review and response to the essential facts
under consideration in order to defend their interests.
7.54. Russia asserts that both Article 6.9 and Articles 12.2/12.2.2 conceptually relate to the
obligation to disclose information underlying an investigating authority's decision.89 Further, Russia
notes that the issuance of a public notice within the meaning of Articles 12.2/12.2.2 is an event
that follows the disclosure of essential facts, and asserts that a failure to "provide sufficient
details" in the public notice, as required under Articles 12.2/12.2.2 is a logical consequence of, and
closely connected to, the failure to disclose essential facts. 90 The question before us is whether
Russia's claims in the panel request under Articles 12.2 and 12.2.2 reasonably evolve d from the
legal basis of the consultation request, including its claims under Article 6.9 of the Anti -Dumping
Agreement set out in item number 10 of that request, or whether it changed its essence.
7.55. We recall that the Appellate Body in China – GOES as well as Russia – Commercial Vehicles
distinguished between the obligations under Article 12.2.2 and Article 6.9 of the Anti -Dumping
Agreement, by noting that Article 12.2.2 governs the disclosure of matters of fact and law and
reasons at the conclusion of the anti -dumping investigations, while Article 6.9 requires the
disclosure of "facts" in the course of the investigation its elf.91 We consider that these provisions
are distinct in the following important ways92:
a. they govern different aspects of the investigation process as Article 6.9 applies before a
final determination is made, while Articles 12.2 and 12.2.2 apply once that
determination is made;

89 Russia's comments on Ukraine's preliminary ruling request, para. 125.
90 Russia's comments on Ukraine's preliminary ruling request, paras. 123 and 125.
92 Thus, while both Article 6.9 and Articles 12.2/12.2.2 could be characterized as transparency
obligations, such characterization is not dispositive of the issues before us.

b. Article 6.9 requires disclosure to interested parties, whereas Articles 12.2 and 12.2.2
require notice to the "public", which is broader than interested parties93; and
c. the scope and legal standard under these provisions are different, with Article 6.9 in
certain cases requiring disclosure of facts that need not be disclosed in a public notice
pursuant to Articles 12.2 and 12.2.2.94
7.56. Taking into account the se differences between Article 6.9 and Articles 12.2/12.2.2, we do
not consider that Russia's public notice claims under Articles 12.2 and 12.2.2 could be said to have
reasonably evolved from its claims under Article 6.9 in item number 10 of the consultation
request. Moreover, the factual basis of Russia's claims under Article 6.9 and Articles 12.2/12.2.2 is
not identical. In particular, Russia challenges ICIT 's 2014 extension decision as part of its
Articles 12.2/12.2.2 claims, but this document is not a disclosure document, and hence not
relevant to its Article 6.9 claims. 95 Further, a s Russia contends, item number 7 of the panel
request covers claims under Articles 12.2/12.2.2 challenging the Ukrainian authorities ' alleged
failure to disclose in sufficient detail the data underlying its injury margin calculations.96 However,
Russia does not make any claim under Article 6.9 regarding the disclosure of the data underlying
the injury margins. In these circumstances, we do not consider that Russia 's claims under
Articles 12.2/12.2.2 reasonably evolved from its claims under Article 6.9.
7.57. We no te that Russia also contends that in describing the measures in the consultation
request, it challenged "all annexes, notices and reports" of MEDT of Ukraine. 97 Russia states that
the reference to "notices" in the plural in its consultation request cover s the "public notice" of the
final determination.98 It is not entirely clear to us whether Russia refers to this description of the
measures in the consultation request in support of a view that its public notice claims under
Articles 12.2/12.2.2 evolved from its consultation request. If so, we do not consider that such a
vague reference to "notices" in the description of the measures at issue could have indicated that
Russia intended to raise public notice claims under Articles 12.2 and 12.2.2.
7.58. Based on the foregoing, we find that Russia's claims in the panel request under Articles 12.2
and 12.2.2 of the Anti -Dumping Agreement fall outside our terms of reference because they did
not reasonably evolve from the legal basis set out in its consultation request.99
7.3.2.3 Whether Russia 's "claims" under Articles 3.1 and 3.4 fall outside our terms of
reference in light of its consultation request
7.59. In its request for a preliminary ruling, Ukraine contended that Russia 's claims under
Articles 3.1 and 3.4 of the Anti-Dumping Agreement were outside our terms of reference because
they were not mentioned in the consultation request, and their addition in the panel request

93 The panels in China – HP-SSST (Japan) / China – HP-SSST (EU) stated that the object of Article 6.9 is
to provide interested parties with sufficient factual information to defend their interests during the
investigation. By contrast, the object of Article 12.2.2 is to ensure that the investigating authorities' reasons
for concluding as it did can be discerned and understood by the public. (Panel Reports, China – HP-SSST
(Japan) / China – HP-SSST (EU), para. 7.275)
94 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), paras. 7.274-7.275.
95 Russia's first written submission, para. 328.
96 Russia's second written submission, paras. 724-727 and 730.
97 Russia's comments on Ukraine's preliminary ruling request, para. 126.
98 Russia's comments on Ukraine's preliminary ruling request, para. 127.
99 We note that a similar decision was made by the panel in EC – Fasteners (China). In that case, the
panel examined whether a claim under Article 6.9 regarding the disclosure of the EU authorities' dumping
determinations in an anti-dumping investigation on fasteners was within its terms of reference. The claim was
made in the panel request, but there was no reference to Article 6.9 in the consultation request, or a narrative
description indicating that China might intend to raise a claim under Article 6.9 in this context. (Panel Report,
EC – Fasteners (China), para. 7.506). China, while acknowledging that it did not invoke Article 6.9 in the
consultation request, noted that in the context of presenting its claims under Articles 6.2 and 6.4 of the
Anti-Dumping Agreement it had referred to the EU authorities' failure to provide opportunity to the interested
parties to see all relevant information, including information relating to dumping margin calculations. (Panel
Report, EC – Fasteners (China), para. 7.503; China's consultation request in EC – Fasteners (China),
para. 2(xiv)). Noting the differences in the nature of obligations set forth in Articles 6.2 and 6.4, and that set
out in Article 6.9, the panel concluded that China's claims under Article 6.9 could not have reasonably evolved
from these claims under Articles 6.2 and 6.4. (Panel Report, EC – Fasteners (China), para. 7.508).

broadened the scope of this dispute. 100 In response to Russia 's clarification that it is not making
independent claims under Articles 3.1 and 3.4, and not requesting independent findings in this
regard, Ukraine acknowledged that its request had become moot.101
7.60. Based on the foregoing, we find Ukraine's request for a ruling that Russia's "claims" under
Articles 3.1 and 3.4 in item number 17 of Russia's panel request fall outside our terms of reference
to be moot, and do not make any findings in this regard.
7.3.2.4 Overall conclusion
7.61. Based on the foregoing, we find that the claims presented under Articles 12.2 and 12.2.2 of
the Anti -Dumping Agreement in item number 7 of the panel request fall outside our terms of
reference because they did not reasonably evolve from the legal basis set out in its consultation
request. We do not make any findings on whethe r Russia's "claims" presented under Articles 3.1
and 3.4 of the Anti -Dumping Agreement in item number 17 of the panel request fall outside our
terms of reference.
7.4 Dumping and likelihood-of-dumping determinations
7.62. Russia contends that MEDT of Ukraine 's dumping determinations in the underlying reviews
were inconsistent with Articles 2.1, 2.2, 2.2.1, 2.2.1.1, and 2.4 of the Anti-Dumping Agreement.102
Russia submits that in addition to violating these provisions of Article 2, MEDT of Ukraine acted
inconsistently with Articles 11.1, 11.2, and 11.3 of the Anti -Dumping Agreement because it relied
on these Article 2-inconsistent dumping determinations to make its likelihood -of-dumping
determination.103 Russia asserts that MEDT of Ukraine also acted inconsistently wi th Article 11.1 of
the Anti -Dumping Agreement because in its view this provision does not permit the continued
imposition of anti-dumping duty if no dumping exists.104 Russia argues that if MEDT of Ukraine had
properly calculated the dumping margin in the un derlying reviews, no dumping would have been
found to exist, and no anti-dumping duties could have been imposed.105 Ukraine asks us to dismiss
all of Russia's claims.
7.63. In making our findings, we first examine Russia's claims under Articles 2.2.1.1 and 2.2 (cost
adjustment claims), then its claims under Articles 2.2.1, 2.1, and 2.4, and finally those under
Articles 11.1, 11.2, and 11.3.

100 Ukraine's first written submission, paras. 66 and 70.
101 Ukraine's response to Panel question No. 51(a), para. 21.
102 There is no dispute between the parties that Article 2 of the Anti-Dumping Agreement applies in the
context of the underlying reviews, and that we can make findings under the relevant provisions of Article 2. We
recall in this regard that in US – Corrosion-Resistant Steel Sunset Review the Appellate Body stated that should
investigating authorities choose to rely upon dumping margin calculations in making their
likelihood-of-dumping determination in an expiry review, these margins must be calculated consistently with
Article 2.4 of the Anti-Dumping Agreement. If they are not consistent with Article 2.4, this "could give rise to
an inconsistency not only with Article 2.4, but also with Article 11.3" of the Anti-Dumping Agreement.
(Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 127 (emphasis added)). We
understand this statement of the Appellate Body to suggest that if dumping margins are calculated
inconsistently with Article 2 obligations in the context of a review, there could be independent violations under
the relevant provisions of Article 2 of the Anti-Dumping Agreement, in addition to any violation under
Article 11.2 or Article 11.3. We note that in EU – Footwear (China) the panel adopted a different approach. The
EU authorities in that case had calculated dumping margins in an expiry review, and relied on those margins to
make their likelihood-of-dumping determination. The panel took the view that Article 2 is not directly applicable
to a determination under Article 11.3, and thus it would review the likelihood-of-dumping determination in
order to consider whether the complainant had shown a violation under Article 11.3 of the Anti-Dumping
Agreement, and not in order to make findings as to whether those determinations were inconsistent with
Article 2. (Panel Report, EU – Footwear (China), para. 7.157). In this case, however, we see no reason why we
should not make findings under Article 2. We find it relevant to note that the dumping margins that MEDT of
Ukraine calculated in the underlying reviews formed the basis of revisions in the anti-dumping duty rate
imposed on the investigated Russian producers, and these margins were not used purely for the purposes of
making a likelihood-of-dumping determination under Articles 11.2 and 11.3.
103 Russia's first written submission, paras. 147 and 151; second written submission, para. 408.
104 Russia's second written submission, para. 409.
105 Russia's second written submission, paras. 409-410.

7.4.1 Cost adjustment claims under Articles 2.2.1.1 and 2.2 of the Anti -Dumping
Agreement
7.64. Russia claims that:
a. MEDT of Ukraine acted inconsistently with Articles 2.2.1.1 and 2.2 because in calculating
the cost of production of the investigated Russian producers, as part of its dumping
determinations, it rejected the price of gas that they paid, and reported in their records
(reported gas cost).106
b. MEDT of Ukraine acted inconsistently with Articles 2.2 and 2.2.1.1 because it replaced
the reported gas cost with gas prices outside Russia, specifically the price of gas
exported from Russia to the German border, adjusted for transportation expe nses
(surrogate price of gas).107
7.4.1.1 Legal standard
7.65. Article 2.2.1.1 of the Anti-Dumping Agreement, in relevant part, provides:
For the purpose of paragraph 2, costs shall normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such
records are in accordance with the generally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and
sale of the product under consideration.
7.66. "[P]aragraph 2" in Article 2.2.1.1 refers to Article 2.2 of the Anti -Dumping Agreement,
which states that:
When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular ma rket
situation or the low volume of the sales in the domestic market of the exporting
country, such sales do not permit a proper comparison, the margin of dumping shall
be determined by comparison with a comparable price of the like product when
exported to an appropriate third country, provided that this price is representative, or
with the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits.108
7.67. The first sentence of Article 2.2.1.1 states that costs shall "normally" be calculated on the
basis of the records kept by the exporter or producer under investigation, provided that such
records are: (a) in accordance with the GAAP of the exporting country (first condition); and
(b) reasonably reflect the costs associated with the production and sale of the product under
consideration (second condition).
7.68. Even though the question whether the use of the word "normally" in the opening sentence
permits investigating authorities to reject the record costs even when these two conditions are met
has been alluded to in previous disputes, neither a panel nor the Appellate Body has made findings
on this issue. In EU – Biodiesel (Argentina), for instance, noting that the investigating authority
relied explicitly on the second condition of Article 2.2.1.1 of the Anti -Dumping Agreement in
rejecting the record costs, the panel and the Appellate Body did not consider if the use of the word
"normally" suggested there could be some basis other than these two conditions to reject the
record costs.109

106 Russia's first written submission, paras. 76-77.
107 Russia's first written submission, paras. 104-105. Ukraine submits that this price represented the
price at the German border (Waidhaus), adjusted back to represent costs in Russia. (Ukraine's first written
submission, para. 186; opening statement at the first meeting of the Panel, paras. 105 and 109; and opening
statement at the second meeting of the Panel, para. 147).
108 Emphasis added; fns omitted.
109 Appellate Body Report, EU – Biodiesel (Argentina), fn 120; Panel Report, EU – Biodiesel (Argentina),
para. 7.227.

7.69. With respect to the second condition of Article 2.2.1.1 of the Anti -Dumping Agreement, the
Appellate Body in EU – Biodiesel (Argentina) understood the focus of this condition to be on
whether the records of the exporter or producer reasonably reflect their costs, rather than whether
the costs incurred by them are reasonable. 110 Thus, the second condition does not permit
investigating authorities to reject the record costs because the costs do not pertain to the
production and sale of the product under consideration in what the authorities consider to be
"normal circumstances".111 Instead, the Appellate Body found that the records of an exporter or
producer could be said to reasonably reflect the costs associated with the production and sale of
the product under consideration, when the records suitably and sufficiently correspond to or
reproduce those costs incurred by the investigated exporter or producer that have a genuine
relationship with the production and sale of the specific product under consideration.112
7.70. Both the panel and the Appellate Body in EU – Biodiesel (Argentina) recognized that there
may be circumstances where records that meet the first condition of Article 2.2.1.1, and are thus
GAAP compliant, may not reasonably reflect the costs associated with the production and sale of
the product under consideration. This may be the case, for instance, when transactions involving
inputs purchased by the exporter or producer are not at arm's length.113
7.71. Regarding Article 2.2, the issue in this dispute is whether the cost of production determined
for the investigated Russian producers in the underlying reviews was the cost "in the country of
origin". The Appellate Body has noted that Article 2.2 does not specify the type of evidence or
information that must be used to determine the cost of production in the country of origin, and
does not preclude the possibility that the authority may have to use out -of-country evidence for
this purpose. 114 However, the reference to " in the country of origin" indicated to the Appellate
Body that the information or evidence used by the authorities to determine the cost of production,
must be apt to or capable of yielding the cost of production in the country of origin. 115 This
suggested to the Appellate Body that information or evidence from outside the country of origin
may need to be adapted in order to ensure that it is suitable to determine the cost of production in
the country of origin.116
7.4.1.2 MEDT of Ukraine's cost assessments in the underlying reviews
MEDT of Ukraine calculated the dumping margins for two of the investigated Russian 7.72.
producers.117 In calculating these dumping margins, MEDT of Ukraine constructed the normal
value of the investigated Russian producers on the basis of their cos t of production. However, in
doing so, MEDT of Ukraine rejected their reported gas cost, and replaced it with the surrogate
price of gas.
MEDT of Ukraine stated in this regard that "the price for gas indicated in the accounting 7.73.
records of [the] Russian pro ducers [could not] be used to analyse the production expenses
incurred" by them. 118 This is because their "records" did "not completely reflect the costs
associated with production and sale of the [product under consideration], in particular, the gas
expenses".119 The parties do not dispute that the reported gas cost was the price actually paid by
the investigated Russian producers for gas. MEDT of Ukraine concluded, however, that their
records did not completely reflect the costs associated with the production and sale of ammonium

110 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.20 and 6.37.
111 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.30. In that case, the European Union had
argued that the EU authorities were permitted to consider whether costs in the records pertained to the
product and sale of biodiesel in normal circumstances, i.e. in the absence of the alleged distortion caused by
Argentina's export tax system.
112 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.26.
113 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.33; Panel Report, EU – Biodiesel
(Argentina), para. 7.232 and fn 400.
114 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.70 and 6.73.
115 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.70.
116 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.70 and 6.73.
117 Ukraine's first written submission, para. 342; Investigation Report, (Exhibit RUS-10b), pp. 27-28.
118 Investigation Report, (Exhibit RUS-10b), p. 23.
119 Investigation Report, (Exhibit RUS-10b), p. 23.

nitrate because the gas price in those records was distorted. 120 It reached this conclusion on the
following grounds:
a. the gas price in the domestic Russian market was not a market price, as the state
controlled the price for gas121;
b. due t o the existence of state control, the price of gas for the investigated Russian
producers was much lower than the selling price of gas exported from Russia and the
prices for producers in other countries, as well as the market price in certain countries
such as the United States, Canada, Japan, or the European Union122;
c. calculations that showed that JSC Gazprom (Gazprom), a Russian supplier of gas, was
selling below its cost of production and that the profitability of this supplier was due to
export sales.123
With respect to allegations of government regulation of the price of gas in Russia, Ukraine 7.74.
acknowledges that it is the price of Gazprom, and not that of other independent domestic
suppliers, that was subject to price control in Russia. 124 However, Ukraine submits that the prices
set by other independent gas suppliers in Russia were aligned with the regulated price of Gazprom
due to the dominant position of this supplier in the domestic Russian market. 125 In addition,
though Ukraine confirms that MEDT of Ukrain e did not ask the investigated Russian producers to
provide information regarding their suppliers of gas 126, it asserts that MEDT of Ukraine "logically
inferred" that Gazprom was virtually the sole supplier of gas. 127 However, Ukraine acknowledges
that there w as no relationship between Gazprom and the investigated Russian producers 128, and
we note that MEDT of Ukraine did not make any finding that the reported gas cost was affected by
any relationship between the investigated Russian producers and their gas suppliers.
Even though Russia questions Ukraine 's assertion that MEDT of Ukraine found Gazprom to 7.75.
be virtually the sole supplier of gas, the substance of its claims is that the findings made by MEDT
of Ukraine, as set out in the Investigation Report, did not constitute an adequate basis to conclude
that the records of the investigated Russian producers, insofar as the reported gas cost was
concerned, did not reasonably reflect the costs associated with the production and sale of
ammonium nitrate. 129 To address R ussia's claims under Articles 2.2.1.1 and 2.2, therefore, we
examine whether MEDT of Ukraine 's findings in the Investigation Report constituted an adequate
basis to meet the requirements under Articles 2.2.1.1 and 2.2 of the Anti-Dumping Agreement.
7.4.1.3 Rejection of the reported gas cost
Russia makes claims under Article 2.2.1.1 as well as Article 2.2 challenging MEDT of 7.76.
Ukraine's rejection of the reported gas cost, but its arguments focus on alleged violations of
Article 2.2.1.1. In presenting its claim under Article 2.2, for example, Russia contends that MEDT
of Ukraine constructed the normal value of the investigated Russian producers inconsistently with
this provision because it used costs that were calculated inconsistently with Article 2.2.1.1.130

120 Investigation Report, (Exhibit RUS-10b), p. 23.
121 Investigation Report, (Exhibit RUS-10b), pp. 21-22.
122 Investigation Report, (Exhibit RUS-10b), p. 22.
123 Investigation Report, (Exhibit RUS-10b), pp. 22-23. Ukraine does not contend that Gazprom was an
interested party in the underlying reviews, or participated in the review in any manner.
124 See, e.g. Ukraine's response to Panel question No. 10(a), para. 34.
125 Ukraine's response to Panel question No. 10(a), para. 35.
126 Ukraine's response to Panel question No. 9, para. 31.
127 Ukraine's response to Panel question No. 9, para. 31.
128 Ukraine's response to Panel question No. 8, para. 30. Ukraine asserts that MEDT of Ukraine "logically
inferred" that Gazprom was virtually the sole supplier of gas to the investigated Russian producers, but states
that though the relations between Gazprom and these producers were examined no demonstrable link could be
established between them. (Ukraine's responses to Panel question No. 8, para. 17, and No. 8.2, para. 30).
129 See, e.g. Russia's first written submission, paras. 59-78. While questioning Ukraine's argument that
Gazprom was virtually the sole supplier of gas, Russia submits that even if MEDT of Ukraine had properly
established the identity of the Russian gas suppliers it would still have violated Articles 2.2.1.1 and 2.2.
(Russia's second written submission, para. 102).
130 Russia's first written submission, para. 77.

Therefore, we find it useful to first examine Russia 's claim under Article 2.2.1.1, and then turn to
its claim under Article 2.2.
7.77. With respect to Article 2.2.1.1, Russia asserts that MEDT of Ukraine relied on the second
condition of Article 2.2.1.1 to reject the repo rted gas cost, but it did not properly meet this
condition.131 Further, Russia submits that because MEDT of Ukraine relied on this second condition
in the underlying reviews, arguments that it advances in the panel proceedings on other legal
bases, such as t he use of the word "normally" in the first sentence of Article 2.2.1.1, constitute
ex post facto rationalizations which we must reject.132
7.78. Ukraine relies on two alternative bases under Article 2.2.1.1 of the Anti -Dumping
Agreement to justify MEDT of Ukraine 's rejection of the reported gas cost. 133 First, Ukraine
contends that the second condition of Article 2.2.1.1 permits rejection of costs reported in an
exporter's or producer's records when the records do not reasonably reflect the costs associated
with the production and sale of the product under consideration, here, ammonium nitrate. 134
Ukraine submits that the records of the investigated Russian producers, insofar as the reported
gas cost was concerned, did not meet this second condition, and hence MEDT of U kraine was
justified in rejecting it.135 Second, relying on the use of the word "normally" in the first sentence of
Article 2.2.1.1, Ukraine asserts that MEDT of Ukraine was permitted to depart from the obligation
to "normally" calculate the cost of producti on of the product under consideration on the basis of
the exporter 's or producer 's records because the gas price in the domestic Russian market was
fixed by the state, not of a commercial nature, and below the cost of production of gas. 136 In
particular, Ukraine notes that "normally" means "under normal or ordinary conditions; as a rule",
and submits that the use of this word in the first sentence of Article 2.2.1.1 suggests that the use
of an exporter's or producer's records to calculate its cost of production is not mandatory in every
case where the two conditions of Article 2.2.1.1 are met.137
7.4.1.3.1 Ukraine's arguments based on the use of the word "normally"
7.79. We note that though Ukraine relies on the use of the word "normally" in Article 2.2.1.1,
MEDT of Ukraine rejected the reported gas cost based on the italicized part of the following
provision of Ukrainian law (Article 7(9) of Ukraine's anti-dumping law):
For the purpose of this Article, costs shall be generally calculated on the basis of
accounting reports of the party, a subject to an anti -dumping investigation, under
condition such accounting report is made according to the principles and norms of
bookkeeping, generally accepted in the country which is a subject of consideration and
completely reflects the costs, related to the production and sale of products subject to
consideration.138
7.80. While this italicized part is not identical, in terms of its wording, to the second condition of
Article 2.2.1.1, Ukraine does not argue that the scope and purpose of this part of Ukrainian law is
different from the second condition of Article 2.2.1.1. Instead, Ukraine itself relies on the second
condition of Article 2.2.1.1 to justify MEDT of Ukraine 's rejection of the reported gas cost. Further,
MEDT of Ukraine's finding, as set out in paragraph 7.73 above, that the records of the investigated
Russian producers "[did] not completely reflect the c osts associated with production and sale of
the Products, in particular, the gas expenses" shows that MEDT of Ukraine 's decision was based on
perceived problems with the records of these producers insofar as they did not completely reflect

131 Russia's first written submission, para. 63; opening statement at the first meeting of the Panel,
para. 59.
132 Russia's opening statement at the first meeting of the Panel, paras. 59-60.
133 Ukraine does not dispute that the records of the investigated Russian producers were
GAAP-compliant, and thus complied with the first condition under Article 2.2.1.1.
134 Ukraine's first written submission, paras. 166-167.
135 Ukraine's first written submission, paras. 144-145.
136 Ukraine's first written submission, para. 162.
137 Ukraine's first written submission, para. 91.
138 Law "On Protection of the National Producer from the Dumped Import", N 330-XIV (with changes and
amendments) (22 December 1998), (Exhibit UKR-9) (emphasis added); Ukraine's responses to Panel question
No. 6(a), para. 12, and No. 6(b), para. 14; and Confidential version of the Investigation Report,
(Exhibit UKR-52b (BCI)), p. 26.

the gas expenses.139 MEDT of Ukraine did not conclude in the Investigation Report , for example,
that though the records were maintained consistently with the first and the second conditions of
Article 2.2.1.1 or analogous provisions of domestic law, it would neverth eless reject this cost
because of the perceived distortions in the domestic Russian market for gas. Therefore, we find
that Ukraine's arguments based on the use of the word "normally" in Article 2.2.1.1 constitute ex
post facto rationalizations, which we c annot consider.140 Instead, we will limit our review to the
parties' arguments on the second condition of Article 2.2.1.1.141
7.4.1.3.2 Rejection of the reported gas cost pursuant to the second condition of
Article 2.2.1.1
7.81. The specific question before us is whether MEDT of Ukraine provided an adequate basis to
reject the reported gas cost of the investigated Russian producers because their records did not
meet the second condition of Article 2.2.1.1, i.e. they did not reasonably reflect the costs
associated with the production and sale of ammonium nitrate.
7.82. Russia argues that while the second condition of Article 2.2.1.1 permits investigating
authorities to examine whether the records of the exporter or producer reasonably reflect their
costs, it does not permit them to e xamine whether the reported costs are reasonable.142 However,
in Russia's view, in rejecting the reported gas cost of the investigated Russian producers based on
a finding that the price of gas in Russia was regulated by the government, and lower than the
export price of Russian gas, and prices in third countries, MEDT of Ukraine essentially examined
the reasonableness of the reported gas cost. 143 Thus, it acted inconsistently with the second
condition of Article 2.2.1.1, as interpreted by the Appellate Body in EU – Biodiesel (Argentina).
Further, noting that Ukraine relies on the panel 's and the Appellate Body 's statement in EU –
Biodiesel (Argentina) that the second condition permits investigating authorities to examine
non-arm's length transactions or other p ractices which may affect the reliability of the record
costs, Russia submits that MEDT of Ukraine did not reject the reported gas cost because of any
alleged effect of "non-arm's length" transactions and "other practices" on the records of the
investigated Russian producers. 144 Therefore, in Russia 's view, Ukraine's arguments based on the
terms "non -arm's length" and "other practices" are ex post facto rationalizations as MEDT of
Ukraine did not itself make its determination by relying on these terms.
7.83. In Ukraine 's view, "non-arm's length transactions" and "other practices" are "legal
exceptions" carved out by the Appellate Body in EU – Biodiesel (Argentina) under Article 2.2.1.1.
Ukraine argues that MEDT of Ukraine was justified in rejecting the re ported gas cost because such
non-arm's length transactions and other practices affected the reliability of the reported gas cost.
In support of its argument, Ukraine proposes definitions of the term "arm 's length", and presents
its interpretation of the te rm "other practices". 145 Based on these definitions and interpretation,

139 Investigation Report, (Exhibit RUS-10b), p. 23.
140 Pursuant to Article 17.5(ii) of the Anti-Dumping Agreement, a WTO panel should examine the matter
based on "the facts made available in conformity with appropriate domestic procedures to the authorities of the
importing Member". This precludes us from considering ex post facto rationalizations that have no basis in the
determinations made by the investigating authority. Moreover, the manner in which Ukraine presents its
argument on this issue further confirms that its submissions based on the use of the word "normally"
constitute ex post facto rationalizations. In particular, instead of providing any proper basis in the underlying
determination that could suggest that MEDT of Ukraine relied on the word "normally" in Article 2.2.1.1 to reject
the reported gas cost, it states that there is "no[] need to get to the discussion of 'normally'", but should "the
Panel deem it useful" it would "be pleased to discuss" why MEDT of Ukraine was justified, in light of the use of
the word "normally" in Article 2.2.1.1, in rejecting the reported gas cost. (Ukraine's opening statement at the
141 We find our view to be consistent with that taken by the panel and the Appellate Body in EU –
Biodiesel (Argentina), where, having noted that the investigating authority relied on a provision analogous to
the second condition of Article 2.2.1.1 under domestic law to reject the record costs, the panel and the
Appellate Body did not examine whether the authority's decision to reject such costs could be justified based
on the word "normally" in the first sentence of Article 2.2.1.1. (Appellate Body Report, EU – Biodiesel
(Argentina), fn 120; Panel Report, EU – Biodiesel (Argentina), para. 7.227).
142 Russia's first written submission, paras. 51 and 66 (referring to Panel Report, EU – Biodiesel
(Argentina), fn 400; and Appellate Body Report, EU – Biodiesel (Argentina), para. 6.41).
143 Russia's first written submission, para. 67.
144 Russia's opening statement at the first meeting of the Panel, paras. 51-52; response to Panel
question No. 7, paras. 12-13.
145 Ukraine's opening statement at the first meeting of the Panel, paras. 94-100.

Ukraine submits that the reported gas cost was affected by non -arm's length transactions and
other practices because the gas price in the domestic Russian market was distorted due to
governmental regulation. Specifically, Ukraine contends that the reported gas cost was purchased
at non-arm's length prices because the domestic prices were set pursuant to governmental decree,
rather than profit maximization motivations of the gas suppliers, and were below cost. 146 Ukraine
asserts that alternatively, if the transactions between the investigated Russian producers and their
suppliers cannot be categorized as non -arm's length transactions, they qualify as "other practices"
affecting the reliabilit y of the records. 147 In response to Russia 's statement that
Ukraine's arguments based on these terms constitute ex post facto rationalizations , Ukraine
submits that while MEDT of Ukraine may not have specifically mentioned in the Investigation
Report that it was rejecting the reported gas cost because of the effect of "non -arm's length" or
"other practices" on the records of the investigated Russian producers, it did meet the substance
of these two "exceptions". 148 On this basis, Ukraine justifies MEDT of Ukrai ne's rejection of the
reported gas cost.
7.84. Considering how heavily the parties, and especially Ukraine relies on the observations of the
panel in EU – Biodiesel (Argentina) that investigating authorities are free pursuant to the second
condition of Article 2.2.1.1 to "examine non-arms-length transactions or other practices which may
affect the rel iability of the reported costs" , we find it useful to commence our analysis by setting
out the panel's observations in their proper context. We recall that in making these observations in
footnote 400 of its report, the panel in EU – Biodiesel (Argentina) stated149:
[W]e do not understand the phrase "reasonably reflect" to mean that whatever is
recorded in the records of the producer or exporter must be automatically a ccepted.
Nor does it mean, as argued by Argentina, that the words "reasonably reflect" are
limited only to the "allocation" of costs. The investigating authorities are certainly free
to examine the reliability and accuracy of the costs recorded in the reco rds of the
producers/exporters, and thus, whether those records "reasonably reflect" such costs.
In particular, the investigating authorities are free to examine whether all costs
incurred are captured and none has been left out; they can examine whether t he
actual costs incurred have been over or understated; and they can examine if the
allocations made, for example for depreciation or amortization, are appropriate and in
accordance with proper accounting standards. They are also free to examine
non-arms-length transactions or other practices which may affect the reliability of the
reported costs. But, in our view, the examination of the records that flows from the
term "reasonably reflect" in Article 2.2.1.1 does not involve an examination of the
"reasonableness" of the reported costs themselves, when the actual costs recorded in
the records of the producer or exporter are otherwise found, within acceptable limits,
to be accurate and faithful.150
7.85. We consider these observations to reflect that panel's view that in certain cases the records
of an exporter or producer under investigation, while otherwise consistent with the first condition
of Article 2.2.1.1, and thus GAAP -compliant, may not reasonably reflect the costs associated with
the production and sale of the product under consideration .151 We recognize that investigating
authorities are free to examine the reliability and accuracy of the costs in the records of the
investigated exporter or producer. However, we do not find it necessary to consider, in the
abstract, whether the conditions in the domestic Russian market and the conditions of sale of gas

146 Ukraine's opening statement at the first meeting of the Panel, para. 98.
147 Ukraine's opening statement at the first meeting of the Panel, para. 100.
148 Ukraine's second written submission, para. 36.
149 The Appellate Body reproduced these observations in questioning the European Union's reading of
the panel report. (Appellate Body Report, EU – Biodiesel (Argentina), para. 6.41).
150 Emphasis added.
151 The Appellate Body in EU – Biodiesel (Argentina) also discussed other situations where
GAAP-compliant records may not reasonably reflect the costs associated with production and sale of the
product under consideration. For instance, it noted that although the product under consideration in a
particular anti-dumping investigation may be limited to a single model, size, type, or specification of a product,
the exporter or producer under investigation may export or produce a number of different products. However,
the records of such exporter or producer may include costs that concern multiple products without allocating
them on a product-by-product or model-by-model basis. Thus, the manner in which an exporter or producer
registers its costs may not reasonably reflect the costs associated with the production and sale of the product
under consideration in a specific anti-dumping investigation. (Appellate Body Report, EU – Biodiesel
(Argentina), fn 127).

met the definitions of "non-arm's length transactions" proposed by Ukraine, or its interpretation of
what it refers to as an "other -practices" "exc eption".152 Instead, the question is whether the
records of the exporter s or producers reasonably reflect the costs associated with production and
sale of the product under conside ration. This is a question which needs to be assessed on a
case-by-case basis, taking into account the evidence before the investigating authority, and the
determination that it makes.
7.86. In light of this, we must examine whether MEDT of Ukraine provided an adequate basis in
the Investigation Report to find that the records of the investigated Russian producers, insofar as
the reported gas cost was concerned, did not reasonably reflect the costs associated wit h the
production and sale of ammonium nitrate , as is provided for under the second condition of
Article 2.2.1.1. In making this examination, we will consider Ukraine 's argument that the reliability
of the reported gas cost was affected due to the condition s that MEDT of Ukraine found to exist in
the domestic Russian market for gas.
We note in this regard that Article 2.2.1.1 forms part of the disciplines set out in Article 2 of 7.87.
the Anti-Dumping Agreement. Article 2 provides the relevant rules governing the "determination of
dumping". Dumping arises from the pricing behavior of individual exporters or foreign
producers.153 The first sentence of Article 2.2.1.1 is concerned with establishing the costs for these
individual exporters or producers under investigation.154 The Appellate Body has stated that the
phrase "costs associated with the production and sale of the product under consideration" in the
second condition of Article 2.2.1.1 means the costs incurred by the producer or exporter that are
genuinely related to the production and sale of the product under consideration. 155 The phrase
"reasonably reflect" in Article 2.2.1.1 refers to the "records" of the individual exporter or producer
under investigation, while the term "reasonably" qualifies the rep roduction or correspondence of
the costs in those records. 156 To the extent the costs are genuinely related to the production and
sale of the product under consideration in a particular anti -dumping investigation, there is no
additional standard of reasonabl eness that applies to "costs" in the second condition under
Article 2.2.1.1.157
We set out in paragraph 7.73 above the factual basis on which MEDT of Ukraine found that 7.88.
the records of the investigated Russian producers did not meet the second condition of
Article 2.2.1.1. We recall that MEDT of Ukraine found that the gas price in the domestic Russia n
market was not a market price as the state controlled this price , that this price was artificially
lower than the export price of gas from Russia as well as the price of gas in other countries, and
that it was below the cost of production. 158 MEDT of Ukraine concluded on thi s factual basis that
the records of the investigated Russian producers did not completely reflect the costs associated
with the production and sale of ammonium nitrate, insofar as the reported gas cost was
concerned. Thus, MEDT of Ukraine found that these records did not meet the second condition of
Article 2.2.1.1.
7.89. We do not consider this factual basis to have been adequate for MEDT of Ukraine to
conclude that the records of the investigated Russian producers did not reasonably reflect the
costs associated with the production and sale of ammonium nitrate . MEDT of Ukraine examined
whether due to government regulation of gas price in Russia, the costs incurred by these
producers were lower compared to prices in other countries, or export prices of gas from Ru ssia.
This shows that MEDT of Ukraine 's enquiry was focused on whether the cost of gas incurred by
these producers in the production and sale of ammonium nitrate was reasonable, or was the cost
they would incur under what it considered to be normal circumstances, i.e. in the absence of the
alleged distortions in the domestic Russian market for gas. However, that is not the purpose of the
enquiry under the second condition of Article 2.2.1.1. This second condition permits investigating
authorities to examine whether the records reasonably reflect the costs associated with the
production and sale of the product under consideration . This is different from an examination on

152 We do not consider that either the panel or the Appellate Body in EU – Biodiesel (Argentina) "carved
out" an open-ended "exception" for "non-arm's -length transactions or other practices" as Ukraine appears to
suggest. (Ukraine's opening statement at the first meeting of the Panel, para. 91).
153 Appellate Body Reports, US – Zeroing (Japan), para. 111; US – Stainless Steel (Mexico), para. 98.
154 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.17.
155 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.30.
156 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.20.
157 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.37.
158 Investigation Report, (Exhibit RUS-10b), pp. 21-23; Ukraine's second written submission, para. 31.

whether the costs contained in the records are not reasonable because , for instance, they are
lower than those in other countries , which is what MEDT of Ukraine examined in the underlying
reviews.
7.90. In addition, MEDT of Ukraine took the view in its Investigatio n Report that Gazprom sells
gas in the domestic Russian market below cost. However, there is nothing in this report that shows
that this affected the reliability of the records of the investigated Russian producers , such that the
records did not reasonably reflect the cost s associated with production and sale of ammonium
nitrate. In particular, we note that MEDT of Ukraine did not find that Gazprom was affiliated with
these producers, and Ukraine has not pointed to anything in the Investigation Report that suggests
that MEDT of Ukraine even considered who these producers ' suppliers were.159 Further, we note
that Article 2.2.1.1 forms part of Article 2, which sets out the relevant rules regarding the
determination of dumping. Article 2 is concerned with the pricing behaviour of individual exporters
and producers. The exporters and producers may source inputs used to produce the product under
consideration from multiple unrelated suppliers. The prices paid by the producer to these unrelated
suppliers would form part of the costs that it incurs to produce the product under consi deration.
We do not consider that the investigated Russian producers ' own records could be said to be
unreliable, or not reasonably reflect the costs associated with the production and sale of the
product under investigation, because its unrelated suppliers' prices are government regulated,
lower than the prices prevailing in other countries, or allegedly priced below their cost of
production. In these circumstances, we do not consider that the factual findings relied upon by
MEDT of Ukraine, and set out in paragraph 7.73 above, provided a sufficient basis for MEDT of
Ukraine to conclude that the records of the investigated Russian producers d id not reasonably
reflect the costs associated with the production and sale of ammonium nitrate.
7.91. Our conclusions in this regard are consistent with the legal findings and interpretation
developed by the panel and the Appellate Body in EU – Biodiesel (Argentina). We recall that in that
case, the EU authorities had found that the domestic prices of the main input (soybeans and
soybean oil) used by the biodiesel producers in Argentina were artificially lower than international
prices due to distortions created by Argentina's export tax system, and consequently the costs of
these inputs were not reasonably reflected in the records of the investigated Argentin ian
producers.160 First, the panel, and then the Appellate Body, found that this was not a sufficient
factual basis under the second condition of Article 2.2.1.1 to reject the reported cost of these
inputs. We note Ukraine's argument in this regard that the factual circumstances in EU – Biodiesel
(Argentina) and those before us are different, because in that ca se the investigating authority did
not find any evidence of direct state intervention in regulating the costs of input and the distortion
was not appreciable, even though the Argentinian export tax system had a price depressing effect
on input prices. 161 However, nothing in the panel or the Appellate Body report in EU – Biodiesel

159 We note Russia's argument that MEDT of Ukraine presumed that Gazprom was the only company
that produced and supplied gas in Russia. (Russia's second written submission, para. 111). Ukraine
acknowledges that MEDT of Ukraine did not ask the investigated Russian producers the names of their gas
suppliers. (See, e.g. Ukraine's response to Panel question No. 9, para. 31). Instead, Ukraine contends that
MEDT of Ukraine "logically inferred" that Gazprom was the main and virtually sole supplier of gas. However, it
does not point to anything in MEDT of Ukraine's own findings to support that view, and its argument is
undermined by its own acknowledgment that EuroChem had other suppliers. (Ukraine's response to Panel
question No. 8, fn 10). There is no reference to such suppliers of EuroChem in the Investigation Report, or any
finding that the records of the investigated Russian producers, insofar as they reflected the prices paid to these
suppliers, were unreliable. Further, while Ukraine contends that EuroChem did not cooperate with MEDT of
Ukraine in this regard, we note that it does not argue, and the Investigation Report does not show, that MEDT
of Ukraine found EuroChem to be a non-cooperating exporter pursuant to the criteria in Article 6.8 and Annex
II of the Anti-Dumping Agreement. (See, e.g. Ukraine's opening statement at the second meeting of the Panel,
paras. 63-64). In addition, while it contends that prices of suppliers other than Gazprom were affected by
prices of Gazprom, which allegedly accounted for 56% of Russian gas sales, there is, again, nothing in MEDT of
Ukraine's finding to support this view. (Ukraine's response to Panel question No. 10(a), para. 35). Such
arguments are therefore, ex post facto rationalizations, and there is no correlation in MEDT of
Ukraine's findings between alleged below-cost sales by Gazprom and the reliability of the records of the
investigated Russian producers.
160 Panel Report, EU – Biodiesel (Argentina), para. 7.221. The EU authorities found that the export taxes
on soybeans and soybean oil depressed the domestic price of soybeans and soybean oil to an artificially-low
level which, as a consequence, affected the costs of the biodiesel producers. Specifically, the EU authorities
found that the difference between the international and domestic prices of soybeans and soybean oil was
equivalent to export taxes on the product and the expenses involved in exporting them. (Panel Report, EU –
Biodiesel (Argentina), para. 7.181).
161 Ukraine's first written submission, paras. 116-118 and 138.

(Argentina) suggests that the economic level, and the direct or indirect nature of the regulation in
question, were relevant to the panel's or Appellate Body 's analysis of the second condition under
Article 2.2.1.1. Instead the legal findings and interpretation developed in that dispute are relevant
to the facts before us. 162 Therefore, we do not consider that MEDT of Ukraine had a proper basis
under the second condition of Article 2.2.1.1 to reject the reported gas cost of the investigated
Russian producers.163
7.92. Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with
Article 2.2.1.1 of the Anti-Dumping Agreement because it did not provide an adequate basis under
the second condition of Article 2.2.1.1 to reject the reported gas cost of the investigated Russian
producers.164 In light of this finding under Article 2.2.1.1, we do not find it necessary to resolve
Russia's claim under Article 2.2 of the Anti -Dumping Agre ement. We therefore exercise judicial
economy with respect to this claim.
7.4.1.4 Replacement of reported gas cost with surrogate price of gas
7.93. Russia makes claims under Articles 2.2 and 2.2.1.1 challenging MEDT of
Ukraine's calculation of the cost of production of the investigated Russian producers on the basis of
the surrogate price of gas. Russia contends that MEDT of Ukraine acted inconsistently with
Articles 2.2 and 2.2.1.1 because in using a surrogate price of gas that did not represent the cost in
Russia it failed to calculate the cost of production in the "country of origin". 165 Article 2.2
specifically requires investigating authorities to calculate the cost of production in the country of
origin. Russia's claim raises the question as to whether the surrogate price of gas used by MEDT of
Ukraine reflected costs in the "country of origin", i.e. Russia. We thus find it useful to first examine
Russia's claim under Article 2.2 of the Anti -Dumping Agreement, and then turn to i ts claim under
Article 2.2.1.1 of the Anti-Dumping Agreement.
7.94. We recall that the surrogate price of gas was the export price of Russian gas at the German
border, adjusted for transportation expenses. Russia asserts that MEDT of Ukraine could not have
used this surrogate price of gas to calculate the cost in the country of origin as it was a price
charged outside Russia and was determined under market conditions different from those in

162 Ukraine also distinguishes the panel and the Appellate Body Report in EU – Biodiesel (Argentina) by
contending that "governmental price-fixing" of the domestic Russian gas prices was WTO-inconsistent,
specifically invoking Article XVII:1(b) and the second Ad Note to Article VI:1 of the GATT 1994 in this regard.
(Ukraine's opening statement at the first meeting of the Panel, paras. 76-79). We do not find these arguments
to be relevant to our analysis, considering that our terms of reference require us to review MEDT of
Ukraine's determinations, and not Russia's compliance with its own WTO obligations. Similarly, Ukraine argues
that MEDT of Ukraine found that the gas prices were set inconsistently with Russia's WTO commitments, as set
out in its Working Party Report. (Ukraine's opening statement at the second meeting of the Panel, paras. 36-37
and 41). We note that while there is a discussion in the Investigation Report on statements and concerns
raised by WTO Members about the domestic gas prices in Russia, the report does not as such identify any
WTO-commitment that was violated by Russia. In any case, Ukraine does not contend that Russia's Working
Party Report or its Accession Protocol provides legal justification for MEDT of Ukraine's decision to reject the
reported gas cost. To the extent Ukraine alleges that Russia failed to comply with its own WTO commitments,
we note that such issues have to be resolved through the DSU. (Appellate Body Report, Canada – Continued
Suspension, para. 371).
163 Ukraine also relies, as context, on Articles 2.3 and 2.2.1 of the Anti-Dumping Agreement and the
second Ad Note to Article VI:1 of the GATT 1994 to advance the view that prices that are not of a "commercial
nature" are unreliable. (Ukraine's first written submission, paras. 151-152). We note that the provisions cited
by Ukraine permit rejection of prices only in the specific circumstances set out therein. Those circumstances
are not applicable here. Article 2.3, for example, permits construction of export prices where, inter alia, it
appears to the authorities concerned that the export price is unreliable because of "association or a
compensatory arrangement" between the exporter and the importer or a third party. Article 2.2.1 permits
investigating authorities to reject domestic sales as a basis for calculating normal value, only when the specific
circumstances set out therein are met. The second Ad Note of Article VI:1 applies only to certain types of
non-market economies, specifically those economies in which the country has a complete or substantially
complete monopoly on its trade and the State fixes all prices. (Appellate Body Report, EC – Fasteners (China),
fn 460). It is not alleged that Russia meets these criteria.
164 Our findings in this dispute are limited to the second condition of Article 2.2.1.1 of the Anti-Dumping
Agreement, which we found was invoked by MEDT of Ukraine to reject the gas prices of the investigated
Russian producers.
165 Russia's first written submission, para. 96; second written submission, para. 326; and opening
statement at the second meeting with the Panel, para. 99.

Russia.166 In addition, Russia asserts that MEDT of Ukraine did not adapt the surrogate price of gas
to reflect the price of gas in Russia. 167 Ukraine does not argue that the price of gas exported from
Russia to the German border was in and of itself a price in the "country of origin", but contends
that this price was adapted to ensure that the resulting surrogate price of gas reflected the price in
Russia.168 In particular, Ukraine argues that it adapted the price of gas exported from Russia to
the German border by making an adjustment for transport expenses.169
7.95. The question before us is whether the surrogate price of gas used by MEDT of Ukraine in
calculating the cost of production of the investigated Russian producers was the cost in the
"country of origin", i.e. Russia. We note that the panel and the Appellate Body in EU – Biodiesel
(Argentina) addressed a similar claim under Article 2.2.
7.96. In that case, having found that the domestic price of soybean used in the production of
biodiesel w as artificially lower than international soybean prices due to distortions cr eated by
Argentina's export tax system, the EU authorities replaced this domestic price with the price that it
considered Argentinian producers would have paid in the absence of the distortions created by this
tax system.170 In particular, they replaced this price with the average reference price of soybeans
published by Argentina's Ministry of Agriculture for export during the investigated period,
free-on-board, minus fobbing cost. 171 The question before that panel was whether this average
reference price represented the cost of Argentinian producers in the "country of origin". The panel
found that it did not.
7.97. The panel noted that the EU authorities specifically selected this average reference price to
remove the perceived distortions in the domestic price of s oybeans, and thus they selected this
price precisely because it was not the cost of soybeans in Argentina. 172 Moreover, the panel found
it irrelevant that the average reference price was published by Argentina's Ministry of Agriculture
as this cost did not r epresent the cost of soybeans for domestic purchasers of soybean in
Argentina.173 Accordingly, the panel concluded that the EU authorities acted inconsistently with
Article 2.2 because this average reference price did not constitute the cost in the "country of
origin".
7.98. On appeal, the European Union argued, inter alia, that the subtraction of the fobbing costs
from the average reference price published by Argentin a's Ministry of Agriculture rendered the
surrogate price for soybeans used by the EU authorities a reasonable proxy for the undistorted
price of soybeans in Argentina. 174 The Appellate Body noted that other than pointing to the
deduction of fobbing costs, the European Union had not asserted that the EU authorities adapted,
or even considered adapting, th e information used in their calculation in order to ensure that it
represented the cost of production in Argentina .175 Instead, like the panel, the Appellate Body
found that the EU authorities specifically selected the surrogate price for soybeans to remove the
perceived distortion in the cost of soybeans in Argentina.176
7.99. In the underlying reviews, MEDT of Ukraine concluded that the export price from Russia at
the German border was representative, and could be used to calculate the cost of production
because Germany was the biggest consumer of Russian natural gas, and this price was revised
according to market conditions in 2012. 177 Ukraine does not argue in these proceedings that this
export price was in and of itself the cost in the country of origin. 178 Indeed, the export price from
Russia to Germany was not the cost of gas for the investigated Russian producers in Russia.
Instead, Ukraine's argument is that MEDT of Ukraine adapted this export price to ensure that this

166 Russia's first written submission, para. 99.
167 Russia's second written submission, para. 343.
168 Ukraine's response to Panel question No. 12(c), para. 57.
169 Ukraine's response to Panel question No. 12(c), para. 57.
170 Panel Report, EU – Biodiesel (Argentina), para. 7.257.
171 Panel Report, EU – Biodiesel (Argentina), para. 7.257.
172 Panel Report, EU – Biodiesel (Argentina), para. 7.258.
173 Panel Report, EU – Biodiesel (Argentina), para. 7.259.
174 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.79.
175 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.81.
176 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.81.
177 Investigation Report, (Exhibit RUS-10b), p. 23.
178 Ukraine's response to Panel question No. 12(c), para. 57.

price reflected the cost of gas in Russia. 179 We recognize that investigating authorit ies may use
out-of-country evidence to calculate the cost of production in the country of origin provided they
adapt this evidence to reflect the cost in the country of origin. However, except for an adjustment
for transportation expenses, the record does not show how MEDT of Ukraine adapted this export
price to reflect the prices in Russia. We do not see any explanations in the Investigation Report as
to why adjustments for such transportation expenses were adequate to adapt the out -of-country
evidence, i.e. export price from Russia at the German border, to reflect the cost of the investigated
Russian producers in the country of origin. Instead, MEDT of Ukraine's explanation suggests that it
selected this price because the export price was an out-of-country benchmark, and that it did not
adapt this price to reflect costs in Russia. In these circumstances, we do not consider that the
adjustment for transportation expenses made by MEDT of Ukraine w as sufficient to adapt the
export price from Russia to reflect the cost of gas in the country of origin, i.e. Russia. We note that
the panel and the Appellate Body in EU – Biodiesel (Argentina) reached a similar conclusion under
Article 2.2. In particular, as stated above, the panel and the Appellate Body found that
adjustments for fobbing costs were not sufficient to adapt the average reference price of soybeans
published by Argentina's Ministry of Agriculture for export to prices in the "country of origin" under
Article 2.2.
7.100. We note in this regard Ukraine 's argument that it could not use gas price in the domestic
market in Russia to calculate the cost of production of the investigated Russian producers because
there was no undistorted domestic market for g as in Russia. 180 Ukraine relies on the Appellate
Body report in US – Softwood Lumber IV in support of its arguments.181 Specifically, Ukraine relies
on the Appellate Body 's finding under Article 14(d) of the Agreement on Subsidies and
Countervailing Measures ( SCM Agreement) that investigating authorities may use out -of-country
benchmarks when private prices in a country are distorted due to the government 's predominant
role in the market.182 Ukraine submits that the Appellate Body 's findings support the view that the
obligations of investigating authorities should not be interpreted in a manner that undermines the
right of Members to countervail subsidies, or, as is allegedly the case here, counteract injurious
dumping.183
7.101. We disagree with Ukraine 's argument that MEDT of Ukraine could not use the gas price in
the domestic Russian market to calculate the cost of production of these producers in the
underlying reviews. As noted above, we have found that MEDT of Ukraine did not provide a proper
basis to reject the repor ted gas cost of the investigated Russian producers. We also consider
Ukraine's reliance on the Appellate Body's finding under Article 14(d) of the SCM Agreement in
US – Softwood Lumber IV to be inapposite. We note that Article 14 of the SCM Agreement is titled
"[c]alculation of the amount of a subsidy in terms of the benefit to the recipient". Article 14(d) is
concerned with the assessment of the "benefit" granted to an exporter or producer due to
governmental provision of goods and services. In interpret ing the text of Article 14(d), the
Appellate Body stated that a government 's role in providing a financial contribution, in terms of
provision of goods and services, may be so predominant that it effectively determines the price at
which private suppliers sell the same or similar goods, thereby making the entire domestic market
distorted.184 The Appellate Body considered that in these circumstances, the comparison of the
price at which the government provides goods with the price at which private suppliers se ll these
goods in the domestic market could indicate a benefit that was artificially low, or even zero, such
that the full extent of the subsidy would not be captured, thereby undermining the rights of
Members under the SCM Agreement to countervail subsidies.185
7.102. Article 2.2 of the Anti -Dumping Agreement concerns the calculation of the cost of
production of an investigated producer in its country of origin to construct normal value , for the
purpose of ultimately ascertaining whether this producer is dumping, a nd the dumping margin.
Unlike Article 14(d), the purpose of Article 2.2 is not to ascertain the benefit conferred on such a
producer by the government al provision of goods and services , and the extent of such benefit.
Thus, the purpose of cost calculation under Article 2.2 of the Anti -Dumping Agreement, and
benefit calculation under Article 14(d) of the SCM Agreement is different, and should not be

179 Ukraine's response to Panel question No. 12(c), para. 57.
180 Ukraine's opening statement at the first meeting of the Panel, para. 105.
181 Ukraine's first written submission, paras. 176-179.
182 Ukraine's first written submission, para. 179.
183 Ukraine's first written submission, para. 183.
184 Appellate Body Report, US – Softwood Lumber IV, paras. 93 and 101.
185 Appellate Body Report, US – Softwood Lumber IV, para. 100.

conflated. Considering the underlying review s concern a determination in an anti -dumping
proceeding, rather th an an anti -subsidy proceeding, the question of ascertaining the benefit
granted to a producer through the governmental provision of goods and services does not arise.
Therefore, we disagree with Ukraine that the Appellate Body 's findings under Article 14(d) are
relevant to our interpretation of Article 2.2 of the Anti -Dumping Agreement. We also do not
consider that our findings undermine the rights of a Member to countervail subsidies in a manner
consistent with the relevant provisions of the SCM Agreement or the GATT 1994, as neither the
SCM Agreement nor the subsidy-related aspects of the GATT 1994 are before us.
7.103. Based on the foregoing, we conclude that MEDT of Ukraine acted inconsistently with
Article 2.2 of the Anti -Dumping Agreement because it failed to calculate the cost of production of
the investigated Russian producers "in the country of origin". Having found that MEDT of Ukraine
acted inconsistently with Article 2.2 of the Anti-Dumping Agreement, we do not find it necessary to
resolve Russia's claim under Article 2.2.1.1 of the Anti -Dumping Agreement in this regard .
Therefore, we exercise judicial economy with respect to this claim.
7.4.2 Claims under Articles 2.2.1 and 2.1 of the Anti -Dumping Agreement regarding
MEDT of Ukraine's ordinary-course-of-trade test
7.104. Russia claims that MEDT of Ukraine acted inconsistently with Article 2.2.1 of the
Anti-Dumping Agreement in finding that the investigated Russian producers ' domestic sales of
ammonium nitrate were outside the ordinary course of trade by reason of price because186:
a. in conducting its ordinary-course-of-trade test under Article 2.2.1, MEDT of Ukraine used
a cost of production that was calculated inconsistently with Article 2.2.1.1;
b. it failed to analyse whether alleged b elow-cost domestic sales were made "within an
extended period of time", "in substantial quantities" , or "at prices which [did] not
provide for the recovery of all costs within a reasonable period of time", as is required
under Article 2.2.1; and
c. even if it conducted this analysis, the use of costs that were calculated inconsistently
with Article 2.2.1.1 infected the results of its ordinary-course-of-trade test.
7.105. Russia also claims that MEDT of Ukraine acted inconsistently with Article 2.1 of the
Anti-Dumping Agreement, because it should have determined the dumping margin of the
investigated Russian producers by comparing their export price with their domestic sales price of
ammonium nitrate.187 According to Russia, MEDT of Ukraine failed to do so because it con ducted
an ordinary -course-of-trade test inconsistently with its obligations under Articles 2.2.1 and
2.2.1.1.188
7.106. Ukraine asks us to dismiss Russia's Article 2.2.1 claim, asserting that:
a. even if we find that the costs of the investigated Russian producers we re calculated
inconsistently with Article 2.2.1.1, we cannot on that basis find consequential violations
under Article 2.2.1, as these two provisions contain different obligations and Russia has
not demonstrated that the domestic sales of these producers would have been found to
be in the ordinary course of trade if the reported gas cost was used to calculate the cost
of production189; and
b. contrary to Russia 's arguments, MEDT of Ukraine analysed whether alleged below -cost
domestic sales were made "within an extended period of time", "in substantial
quantities", or "at prices which do not provide for the recovery of all costs within a
reasonable period of time".190

186 Russia's first written submission, paras. 118-120; second written submission, para. 353.
187 Russia's first written submission, paras. 140-141.
188 Russia's first written submission, paras. 139-141; second written submission, para. 405.
189 Ukraine's first written submission, para. 197; second written submission, paras. 65-66; and opening
statement at the second meeting of the Panel, para. 168.
190 Ukraine's response to Panel question No. 14, para. 59; second written submission, paras. 62-63.

7.107. Ukraine also asks us to dismiss Russia 's Article 2.1 claim, contending that this is a
definitional provision that does not impose independent obligations.
7.4.2.1 Legal standard
7.108. Article 2.2.1 of the Anti-Dumping Agreement states:
Sales of the like product in the domestic market of the exporting country or sales to a
third country at prices below per unit (fixed and variable) costs of production plus
administrative, selling and general costs may be treated as not being in the ordinary
course of trade by reason of price and may be disregarded in determining normal
value only if the authorities[*] determine that such sales are made within an extended
period of time[ **] in substantial quantities[ ***] and are at prices which do not
provide for the recovery of all costs within a reasonable period of time. If prices which
are below per unit costs at the time of sa le are above weighted average per unit costs
for the period of investigation, such prices shall be considered to provide for recovery
of costs within a reasonable period of time.191
[*fn original]3 When in this Agreement the term "authorities" is used, it s hall be interpreted as
meaning authorities at an appropriate senior level.
[**fn original]4 The extended period of time should normally be one year but shall in no case be
less than six months.
[***fn original] 5 Sales below per unit costs are made in subst antial quantities when the
authorities establish that the weighted average selling price of the transactions under
consideration for the determination of the normal value is below the weighted average per unit
costs, or that the volume of sales below per unit costs represents not less than 20 per cent of the
volume sold in transactions under consideration for the determination of the normal value.
7.109. Article 2.2.1 describes a methodology for determining whether below -cost sales may be
treated as not being made in the ordinary course of trade. 192 The first sentence of Article 2.2.1
refers to the "[s]ales of the like product in the domestic market of the exporting country or sales
to a third country at prices below per unit (fixed and variable) costs of production plus
administrative, selling and general costs".193 It states that "such sales", i.e. below -cost sales, may
be treated as not being in the ordinary course of trade by reason of price, and disregarded in
determining normal value, only if the requirements set out in Article 2.2.1 are met. The
methodology under the first sentence of Article 2.2.1 involves two steps.194
7.110. First, the below -cost sales that may potentially be treated as not being in the ordinary
course of trade by reason of price must be ascertained.195 This requires investigating authorities to
identify sales that are made at prices below "per unit (fixed and variable) costs of production plus
administrative, selling and general costs". Second, the investigating authorit ies must determine
whether such be low-cost sales display the following three specific characteristics, i.e. they are
made: (a) within an extended period of time; ( b) in substantial quantities; and ( c) at prices which
do not provide for the recovery of all costs within a reasonable period o f time.196 Only when the
below-cost sales are found to exhibit all three of these characteristics, they can be treated as not
being made in the ordinary course of trade by reason of price. 197 Though these three specific
characteristics show that investigating authorities may act inconsistently with Article 2.2.1 in
different ways, Article 2.2.1 does not contain multiple and distinct obligations in this regard. 198
Instead, Article 2.2.1 sets out a single obligation whereby investigating authorit ies may disregard
below-cost sales of the like product only if it determines the below -cost sales display these three
characteristics.199

191 Emphasis added.
192 Panel Report, EC – Salmon (Norway), para. 7.231.
193 Emphasis added.
194 Panel Report, EC – Salmon (Norway), para. 7.232.
195 Panel Report, EC – Salmon (Norway), para. 7.232.
196 Panel Report, EC – Salmon (Norway), para. 7.233.
197 Panel Report, EC – Salmon (Norway), para. 7.233.
198 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.22.
199 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.22.

7.111. Article 2.1 of the Anti-Dumping Agreement states:
For the purpose of this Agreement, a product is to be considered as being dumped,
i.e. introduced into the commerce of another country at less than its normal value, if
the export price of the product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product when destined
for consumption in the exporting country.
7.112. The Appellate Body in US – Zeroing (Japan) found Article 2.1 to be a definitional provision
that does not impose independent obligations, stating that:
Article 2.1 of the Anti -Dumping Agreement and Article VI:1 of th e GATT 1994 are
definitional provisions. They set out a definition of "dumping" for the purposes of the
Anti-Dumping Agreement and the GATT 1994. The definitions in Article 2.1 and
Article VI:1 are no doubt central to the interpretation of other provisions of the
Anti-Dumping Agreement, such as the obligations relating to, inter alia, the calculation
of margins of dumping, volume of dumped imports, and levy of anti-dumping duties to
counteract injurious dumping. But, Article 2.1 and Article VI:1, read in is olation, do
not impose independent obligations.200
7.4.2.2 Evaluation
7.4.2.2.1 Claim under Article 2.2.1
7.113. We noted in paragraphs 7.109-7.110 above that the methodology under the first sentence
of Article 2.2.1 involves two steps. We understand Ukraine to argue that MEDT of Ukraine
conducted its ordinary -course-of-trade test in the underlying reviews on the basis of these two
steps. First, MEDT of Ukraine found that the domestic selling prices of the investigated Russian
producers were "lower than [the] reasonable per unit costs for its production (taking into account
the natural gas value adjustment)".201 As the italicized part of MEDT of Ukraine 's finding shows,
and Ukraine confirms, MEDT of Ukraine did not use the reported gas cost of the investigated
Russian producers when ascertaining whether their domestic sales were below cost. 202 Second,
Ukraine submits that MEDT of Ukraine assessed whether these below -cost sales met the three
characteristics set out in the first sentence of Article 2.2.1, and found that:
a. Considering this determination was made for the period of review, which was 12 months,
below-cost sales were made over an extended period of time (i.e. the first
characteristic).
b. Below-cost sales were made in substantial quantities (i.e. the second characteristic)
because the weighted average selling price of the transactions under consideration for
the determination of the normal value was "below weighted average per unit costs".203
c. Below-cost sales were at prices which did not provide for the recovery of all costs within
a reasonable period of time (i.e. the third characteristic), because the weighted average
selling price was below the weighted average costs during the period of review.204
7.114. Ukraine confirms that the weighted average costs used as part of this assessment were
calculated on the basis of the surrogate price of gas, and not the reported gas cost of the
investigated Russian producers. 205 Thus, MEDT of Ukraine used the surrogate pric e of gas, rather
than the reported gas cost, first, to identify the below -cost sales, and second, to assess whether
the below -cost sales exhibited the characteristics set out in the first sentence of Article 2.2.1,
specifically the second and the third cha racteristics. We have already found that MEDT of

200 Appellate Body Report, US – Zeroing (Japan), para. 140 (fn omitted). See also, Panel Report, EU –
Footwear (China), para. 7.260.
201 Investigation Report, (Exhibit RUS-10b), pp. 25-26. (emphasis added)
202 Ukraine's response to Panel question No. 50, paras. 17-18.
203 Ukraine's response to Panel question No. 14, paras. 59, 61, and 63 (emphasis added); Investigation
Report, (Exhibit RUS-10b), pp. 25-26.
204 Ukraine's responses to Panel question No. 14, paras. 59, 61, and 63, and No. 49, paras. 5-16.
205 Ukraine's response to Panel question No. 50, paras. 17-18.

Ukraine's rejection of the reported gas cost was inconsistent with Article 2.2.1.1 of the
Anti-Dumping Agreement. Thus, the use of costs that were calculated inconsistently with
Article 2.2.1.1 tainted MEDT of Ukraine's ordinary-course-of-trade test.
7.115. Ukraine takes the view that a finding that MEDT of Ukraine calculated costs inconsistently
with Article 2.2.1.1 cannot lead to a violation of Article 2.2.1. In this regard, Ukraine puts forth
two arguments. First, Ukraine argues that cost calculations under Article 2.2.1.1 and the
ordinary-course-of-trade test under Article 2.2.1 are separate and sequential obligations, and to
find a consequential viola tion under Article 2.2.1 due to inconsistencies with Article 2.2.1.1 would
"greatly diminish[]" the importance of this provision, and create systemic problems. 206 Second,
Ukraine asserts that Russia has not made a prima facie case that if costs were not calc ulated on
the basis of the methodology adopted by MEDT of Ukraine, the results of the
ordinary-course-of-trade test under Article 2.2.1 would be different. 207 We disagree with
Ukraine's arguments.
7.116. With respect to its first argument, we note that Article 2.2.1.1 applies to "[p]aragraph 2".
The reference to "[p]aragraph 2" covers not just Article 2.2 but also Article 2.2.1. The panel in
EC – Salmon (Norway) recognized that the rules for calculating the costs used in a determination
under Article 2.2.1 are found in Article 2.2.1.1.208 It would follow, in our view, that costs used in
the ordinary -course-of-trade test under Article 2.2.1 must be consistent with Article 2.2.1.1.
Further, if we were to accept Ukraine 's arguments, we would essentially be concluding that the
investigating authority was free to disregard the specific rules under Article 2.2.1.1 when
calculating the cost of production used for the purposes of the ordinary -course-of-trade test under
Article 2.2.1. However, there is nothing in the text of Article 2.2.1 or Article 2.2.1.1 to support
such a view. Such an interpretation is also likely to create systemic problems as in conducting their
ordinary-course-of-trade test under Article 2.2.1 investigating authorities would be free to use a
cost of pr oduction calculated inconsistently with Article 2.2.1.1, thereby frustrating the very
purpose of this test.209
7.117. As regards Ukraine 's second argument, we are not permitted to examine whether the
results of MEDT of Ukraine 's ordinary-course-of-trade test would have been different if it had
calculated the costs consistently with its obligations under Article 2.2.1.1 as such an examination
would be outside our mandate, and would require us to conduct a de novo review of the record
evidence. Thus, Russia is not obligated to show that the results of MEDT of
Ukraine's ordinary-course-of-trade test would have been different if the reported gas cost was
used. We note that Ukraine's argument is that the outcome of the ordinary -course-of-trade test
would not have changed if MEDT of Ukraine had calculated the costs of the investigated Russian
producers consistently with Article 2.2.1.1 and thus essentially argues that the violations under
Article 2.2.1 constituted harmless error. We do not consider such an argument of harmless error to
be relevant to our analysis.210
7.118. Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with
Article 2.2.1 of the Anti -Dumping Agreement because in making its determinations under this
provision it relied on co sts that were calculated inconsistently with Article 2.2.1.1 of the
Anti-Dumping Agreement.

206 Ukraine's response to Panel question No. 15, paras. 67-70.
207 Ukraine's response to Panel question No. 15, paras. 71-72.
208 Panel Report, EC – Salmon (Norway), para. 7.252.
209 Ukraine also makes a contextual argument under Article 2.2.2 of the Anti-Dumping Agreement,
contending that if the use of costs calculated inconsistently with Article 2.2.1.1 in the ordinary-course-of-trade
test could lead to a violation under Article 2.2.1, then any mistake in the determination of administrative,
selling, and general costs or profits under Article 2.2.2 in the ordinary-course-of-trade test could also lead to a
violation under Article 2.2.1. Such a result, in Ukraine's view, will be "undesirable and de facto absurd"
because it would not clarify what authorities should rectify under Article 2.2.1. (Ukraine's response to Panel
question No. 15, para. 70). We disagree. While we do not address a claim under Article 2.2.2 in this dispute, in
our view, a violation under Article 2.2.1 due to an investigating authority's failure to follow the specific rules
set out in the Anti-Dumping Agreement would not be undesirable or absurd.
210 See, e.g. Panel Reports, EC – Salmon (Norway), fn 763; and US – Anti-Dumping Methodologies
(China), para. 7.92. These panels have taken a similar view with respect to parties' arguments based on the
concept of harmless error.

7.4.2.2.2 Claim under Article 2.1 of the Anti-Dumping Agreement
7.119. Russia asserts that if in calculating the cost of production, MEDT of Ukraine had used the
reported gas cost o f the investigated Russian producers, instead of the surrogate price of gas, it
would not have been able to conclude that the domestic sales of these producers were outside the
ordinary course of trade by reason of price. 211 Thus, it would not have had a pro per basis under
Article 2.2 of the Anti -Dumping Agreement to disregard the domestic sales of the investigated
Russian producers in calculating normal value, and would not have been able to construct the
normal value.212 Therefore, in Russia's view, MEDT of Ukraine should have calculated the dumping
margins of these producers by comparing the export price with the comparable price of the like
product destined for consumption in Russia, as provided in Article 2.1. Russia submits that MEDT
of Ukraine acted inconsistently with Article 2.1 by failing to do so. 213 With respect to the Appellate
Body's finding in US – Zeroing (EC) that Article 2.1 is a definitional provision, and read in isolation,
does not impose independent obligations, Russia asserts that it strongly disagrees with the
approach set out in this finding. 214 Russia argues that nothing in the text of Article 2.1 indicates
that it does not contain an independent obligation. 215 Ukraine argues that Article 2.1 is a
definitional provision and does not impose obli gations in isolation.216 Further, Ukraine submits that
Article 2.1 does not apply to the facts of the present case as there were no sales of ammonium
nitrate in Russia in the ordinary course of trade.217
7.120. Article 2.1 stipulates that a product is to be considere d as being dumped i.e. introduced
into the commerce of another country at less than its normal value, "if the export price of the
product exported from one country to another is less than the comparable price, in the ordinary
course of trade, for the like product when destined for consumption in the exporting country ". We
share the Appellate Body's view, set out in paragraph 7.112 above, that Article 2.1 is a definitional
provision, which when read in isolation, does not impose independent obligations.
7.121. We note that while Russia expresses strong disagreement with the Appellate Body 's view
in this regard, it does not properly show how MEDT of Ukraine co uld be said to have acted
inconsistently with this provision in the underlying reviews. In particular, Russia 's Article 2.1 claim
is premised on its view that if MEDT of Ukraine had complied with its obligations under
Articles 2.2.1.1 and 2.2.1 in the manner proposed by Russia, it would not have found any basis to
conclude that the domestic sales of the investigated Russian producers were not in the ordinary
course of trade by reason of price. However as we noted in paragraph 7.117 above, it is not for us
to conduct a de novo review of the record evidence to ascertain what the results of MEDT of
Ukraine's ordinary-course-of-trade test under Article 2.2.1 would have been if the
WTO-inconsistencies that we have found with respect to MEDT of Ukraine 's determination in this
regard were removed. Further, Russia's claim is essentially based on a hypothesis that if MEDT of
Ukraine conducted its dumping d eterminations in the manner proposed by Russia, it would not
have any basis to construct the normal value, but would have used domestic sales instead. Even if
one assumes that were true, Russia does not show how that makes MEDT of Ukraine 's dumping
determinations in the underlying reviews inconsistent with Article 2.1 of the Anti -Dumping
Agreement. In any case, our role is to resolve this dispute based on the determinations actually
made by the investigating authority, and not on the basis of hypothetical situations.
7.122. Based on the foregoing, we find that Russia has not shown that MEDT of Ukraine acted
inconsistently with Article 2.1 of the Anti-Dumping Agreement, and reject Russia's claim.
7.4.3 Fair comparison under Article 2.4 of the Anti-Dumping Agreement
7.123. Russia contends that a comparison of the investigated Russian producers' export price with
a constructed normal value, which was inflated due to the replacement of the reported gas cost
with the surrogate price of gas, was not "fair" within the meaning of the fi rst sentence of

211 Russia's first written submission, para. 140.
212 Russia's response to Panel question No. 16, para. 32; second written submission, para. 405; and first
written submission, para. 140.
213 Russia's second written submission, para. 405.
214 Russia's opening statement at the second meeting of the Panel, para. 132.
215 Russia's opening statement at the second meeting of the Panel, para. 136.
216 Ukraine's first written submission, para. 19.
217 Ukraine's first written submission, paras. 20-22.

Article 2.4.218 Russia clarifies that its claim is under the first sentence of Article 2.4, and not the
second or third, and thus Russia is not arguing that adjustments should have been made to the
export price or constructed normal value to ensure a fair comparison between them. 219 Ukraine
states that the substance of Russia 's claim concerns MEDT of Ukraine 's calculation of the
constructed normal value based on the surrogate price of gas. 220 Ukraine submits that this is an
issue governed under Article 2.2.1.1, not Article 2.4.221
7.124. The first sentence of Article 2.4 of the Anti -Dumping Agreement provides that "[a] fair
comparison shall be made between the export price and the normal value". This is an independent
obligation under Article 2.4.222
7.125. We have already found that MEDT of Ukraine acted inconsistently with Articles 2.2,
2.2.1.1, and 2.2.1 of the Anti -Dumping Agreement by rejecting the reported gas cost and
replacing it with the surrogate price of gas in calculating the cost of production of the investigated
Russian producers. Thus, MEDT of Ukraine constructed the normal value of ammonium nitrate in a
WTO-inconsistent manner.
7.126. Russia's claim under Article 2.4 is that MEDT of Ukraine failed to make a "fair" comparison
between the export price and no rmal value because the constructed normal value was "inflated"
due to the use of the surrogate price of gas, instead of the reported gas cost. Thus, Russia 's claim
takes issue with the manner in which MEDT of Ukraine constructed the normal value. Having
already concluded that MEDT of Ukraine constructed the normal value of ammonium nitrate in a
WTO-inconsistent manner, we do not find it necessary to additionally consider whether by
comparing such a constructed normal value with the export price of the inves tigated Russian
producers, MEDT of Ukraine also acted inconsistently with the fair comparison obligation under
Article 2.4.
7.127. Based on the foregoing, we exercise judicial economy with respect to Russia 's claim under
Article 2.4 of the Anti-Dumping Agreement.223
7.4.4 Claims under Articles 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement
7.128. Russia, as noted in paragraph 7.62 above, argues that MEDT of Ukraine ac ted
inconsistently with Articles 11.2 and 11.3 of the Anti -Dumping Agreement because in making its
likelihood-of-dumping determinations it relied on dumping margins that were calculated
inconsistently with Articles 2.1, 2.2, 2.2.1, 2.2.1.1, and 2.4 of the Anti-Dumping Agreement. 224
Russia also makes an independent claim under Article 11.1 in this regard. 225 Ukraine asks us to
dismiss these claims based on its view that MEDT of Ukraine calculated the dumping margins
consistently with Article 2 of the Anti-Dumping Agreement.226
7.129. We recall that Article 11.2 provides that interested parties shall have the right to request
the authorities to examine whether the continued imposition of the anti-dumping duty is necessary
to offset dumping, and if the authorities det ermine that the anti -dumping duty is no longer
warranted, they shall terminate it immediately . Article 11.3 requires a determination that the
expiry of the anti-dumping duty would be likely to lead to, inter alia, continuation or recurrence of

218 Russia's first written submission, para. 133.
219 Russia's response to Panel question No. 17, para. 34.
220 See, e.g. Ukraine's second written submission, para. 70.
221 Ukraine's second written submission, para. 71.
222 See, e.g. Appellate Body Reports, US – Zeroing (Japan), para. 168; US – Softwood Lumber V
(Article 21.5 – Canada), para. 142. The Appellate Body in US – Softwood Lumber V (Article 21.5 – Canada)
found, for example, that the manner in which the dumping margin was calculated by the investigating
authority was not impartial, even-handed or unbiased, and thus did not satisfy the fair comparison requirement
under Article 2.4 of the Anti-Dumping Agreement. (See also Panel Report, US – Zeroing (Japan), para. 7.154).
223 We note that the Appellate Body in EU – Biodiesel (Argentina), having upheld the panel's finding that
the EU authorities acted inconsistently with Articles 2.2.1.1 and 2.2 in calculating the cost of production used
for the purpose of constructing normal value, found it unnecessary to examine whether the EU authorities
acted inconsistently with the obligation under Article 2.4 to make a fair comparison between the export price
and the constructed normal value. (Appellate Body Report, EU – Biodiesel (Argentina), para. 6.89).
225 Russia's first written submission, para. 152; second written submission, paras. 409-410.
226 Ukraine's first written submission, para. 209.

dumping. These determinations must rest on a sufficient factual basis that allows the investigating
authorities to draw reasoned and adequate conclusions.
7.130. Past panels and the Appellate Body have held that if investigating authorities rely on
dumping margin calculations as part of their determinations under Article 11.2 or Article 11.3, they
must ensure that the margins are calculated consistently with Article 2.227 If the dumping margins
relied on in this regard are calculated inconsistently with the relevant provisions of Article 2, this
inconsistency would lead to a violation not just under the relevant provisions of Article 2, but also
Articles 11.2 or 11.3 of the Anti-Dumping Agreement.228 We agree with these findings, and find no
reason to adopt a different approach in these proceedings.
7.131. We note that MEDT of Ukraine made a likelihood -of-dumping determination as part of the
underlying reviews. It is undisputed that MEDT of Ukraine relied on the dumping margins that it
calculated for the investigated Russian producers to make affirmative determinations regarding the
likelihood of dumping. 229 We have already found that MEDT of Ukraine calculated the dumping
margins inconsistently with Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti-Dumping Agreement in the
underlying reviews. Th erefore, we find that MEDT of Ukraine also acted inconsistently with
Articles 11.2 and 11.3 of the Anti-Dumping Agreement.
7.132. With respect to Article 11.1 of the Anti -Dumping Agreement, while Russia asserts that its
claim under this provision is independent o f its claims under Articles 11.2 and 11.3 230, we do not
consider additional findings under Article 11.1 to be necessary to resolve this dispute. 231 Thus, we
exercise judicial economy with respect to this claim under Article 11.1.
7.133. Based on the foregoing, we find that the Ukrainian authorities acted inconsistently with
Articles 11.2 and 11.3 of the Anti -Dumping Agreement in relying on dumping margin s calculated
inconsistently with Articles 2.2, 2.2.1 and 2.2.1.1 to make their likelih ood-of-dumping
determinations. We exercise judicial economy with respect to Russia 's claim under Article 11.1 of
the Anti-Dumping Agreement.
7.5 Non-termination of investigation against EuroChem
7.134. We recall, as stated in paragraph 2.1 above, that the Ukrainian authorities originally
imposed anti -dumping duties on imports of ammonium nitrate from Russia through the
2008 original decision. EuroChem successfully challenged this decision before the domestic courts
in Ukraine. ICIT, as discussed in more detail in paragraph 7.137 below, implemented t he
judgments of these courts through the 2010 amendment to the 2008 original decision, thereby
reducing the anti-dumping duty on EuroChem to 0%. The Ukrainian authorities, however, included
EuroChem within the scope of the underlying reviews, and imposed an anti -dumping duty of
36.03% on it pursuant to the 2014 extension decision.232

227 Panel Report, US – Shrimp II (Viet Nam), para. 7.393; Appellate Body Report, US –
Corrosion-Resistant Sunset Steel Review, para. 127.
228 Panel Report, US – Shrimp II (Viet Nam), para. 7.393; Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 127.
229 Russia's response to Panel question No. 18, para. 37; Ukraine's response to Panel question No. 18,
para. 74.
230 Russia's response to Panel question No. 5, para. 3.
231 Russia claims that MEDT of Ukraine violated Article 11.1 because the dumping determinations were
inconsistent with the relevant provisions of Article 2. (Russia's second written submission, para. 408). This
issue is adequately resolved through our findings under Articles 11.2 and 11.3. Further, Russia contends that
MEDT of Ukraine would have determined negative dumping margins for the investigated Russian producers if it
had used their reported gas cost to calculate these dumping margins, and thus would not have imposed
anti-dumping duties. (Russia's second written submission, para. 410). We cannot find a violation under
Article 11.1 on this basis as we are not permitted to speculate on whether MEDT of Ukraine would have found
these margins to be negative if it calculated them consistently with its WTO obligations.
232 2014 extension decision, (Exhibit RUS-4b).

7.135. Russia claims that the Ukrainian authorities acted inconsistently with their WTO obligations
in respect of their treatment of EuroChem in the original investigation phase 233 as well as in the
underlying reviews, stating in particular that:
a. With respect to determinations made in relation to the original investigation, the
Ukrainian authorities acted inconsistently with Article 5.8 of the Anti -Dumping
Agreement because234:
i. the 2008 decision, as amended by the 2010 amendment, which we refer to as the
2008 amended decision, failed to terminate the investigation against EuroChem; and
ii. the 2010 amendment impo sed a 0% anti -dumping duty on EuroChem, rather than
terminate the investigation against it.
b. With respect to the underlying reviews, the Ukrainian authorities acted inconsistently
with Article 5.8 of the Anti-Dumping Agreement because they235:
i. included EuroChem within the scope of the underlying reviews, instead of excluding
it from the scope of such measures; and
ii. imposed an anti-dumping duty on this producer following the determinations made in
the underlying reviews.
c. With respect to the underlying reviews, t he Ukrainian authorities' inclusion of EuroChem
within the scope of the underlying reviews , as well as subsequent duty imposition, also
resulted in violations under Articles 11.1, 11.2, and 11.3 of the Anti -Dumping
Agreement.236
7.5.1 Treatment of EuroChem in the original investigation phase
7.136. MEDT of Ukraine calculated an above de minimis dumping margin of 10.78% for EuroChem
in the original investigation on imports of ammonium nitrate from Russia. 237 ICIT accepted the
recommendations and dumping margins proposed by MEDT of Ukraine, and on this basis imposed
an anti -dumping duty of 10.78% on EuroChem, through its 2008 original decision. EuroChem
challenged this decision before the District Administrati ve Court of Ukraine (District Court),
contending that the authorities had made errors in calculating its dumping margin. The District
Court concluded:
The case files reaffirm the calculations of the normal value presented by the plaintiff,
the export price and the dumping margin which has a negative value/rate.
…
Based on the evidence collected and examined in the court session in the aggregate,
the court comes to the conclusion on the absence of dumping , and, therefore, on
the need to satisfy the claims of the plaintiff for declaring unlawful and partial reversal
of the [2008 original decision].238

233 We use the term "original investigation phase" to refer collectively to the original investigation before
MEDT of Ukraine/ICIT, domestic court proceedings where the Ukrainian authorities' original determinations
were challenged under domestic law, and ICIT's order implementing the judgment of these domestic courts.
234 Russia's response to Panel question No. 24, paras. 56-58; second written submission, para. 455.
235 Russia's response to Panel question No. 24, paras. 56 and 59-60; second written submission,
para. 455.
236 Russia's second written submission, para. 461; response to Panel question No. 47, para. 33.
237 Ukraine's response to Panel question No. 19(a), para. 75; Russia's response to Panel question
No. 19(a), para. 38.
238 Judgment of the District Court 2009, (Exhibit RUS-6b) (emphasis added). In addressing
EuroChem's petition, the District Court found that MEDT of Ukraine erroneously considered in the original
investigation that EuroChem had provided a discount on domestic sales prices that were used in calculation of
the normal value, and thus incorrectly adjusted this normal value by adding the value of the discount to the

7.137. This judgment was upheld on appeal by the higher courts in Ukraine. 239 ICIT implemented
these court judgments, noting in its 2010 amendment that "in pursuance of" t he judgments of the
Ukrainian courts, including the District Court, it had decided:
1. To terminate in regards of [EuroChem], Commission decision of 21.05.2008
number AD-176/2008 / 143-47 "\On the Application of the Definitive Anti -Dumping
Measures on Impo rt into Ukraine of Ammonium Nitrate Originating in the Russian
Federation "[i.e. the 2008 decision].
2. The third paragraph of Section. 2.4 [of the 2008 decision] shall be read as follows:
"For the exporter JSC MCC EuroChem, which is located at: 115114, Ru ssian
Federation, m. Moscow Kozhevnicheskiy travel, 4, d. 1.2 - 0% ".240
7.138. Both parties take the view that though the 2010 amendment specifically refers to
ICIT's decision to "terminate" the 2008 original decision with regard to EuroChem, there was no
termination within the meaning of Article 5.8 of the Anti -Dumping Agreement, which requires
"immediate termination in cases where the authorities determine that the margin of dumping is de
minimis".241 Ukraine acknowledges that EuroChem , despite imposition of a 0 % duty, was not
formally excluded from the scope of the original anti -dumping measures. 242 The Ukrainian
authorities subsequently included EuroChem in the scope of the underlying reviews; MEDT of
Ukraine calculated an above de minimis dumping margin for this producer in these reviews; and
ICIT imposed an anti-dumping duty on this basis.243
7.5.2 Legal standard
7.139. Article 5.8 of the Anti-Dumping Agreement states:
An application under paragraph 1 shall be rejected and an investigation shall be
terminated promptly as soon as the authorities concerned are satisfied that there is
not sufficient evidence of either dumping or of injury to justify proceeding with the
case. There shall be immediate termination in cases where the authorities
determine that the margin of dumping is de minimis, or that the volume of
dumped imports, actual or potential, or the injury, is negligible. The margin
of dumping shall be considered to be de minimis if this margin is less than
2 per cent, expressed as a percentage of the export price. The volume of
dumped imports shall normally be regarded as negligible if the volume of dumped
imports from a particular country is found to account for l ess than 3 per cent of
imports of the like product in the importing Member, unless countries which
individually account for less than 3 per cent of the imports of the like product in the

domestic sales prices when calculating the dumping margin. The District Court found that no such discount
had, in fact, been given by EuroChem, and thus the adjustment to the normal value was not correct.
239 Judgment of the Appellate Court 2009, (Exhibit RUS-5b). In upholding the judgment of the District
Court, the Kiev Appellate Administrative Court concluded that the District Court "correctly established the
circumstances of the case, the court's decision was rendered pursuant to the norms of substantive and
procedural law, the respondent did not prove the lawfulness of the issued decision [i.e. the 2008 original
decision] and acted contrary to the Constitution and the laws of Ukraine". The Higher Administrative Court of
Ukraine, which heard appeals against the judgment of the District Court, and the Kiev Appellate Administrative
Court concluded, inter alia:
It also follows from the case files that no discounts were granted by the claimant [i.e. EuroChem]
in the ordinary course of trade operations, the conclusion of the first instance court that [MEDT
of Ukraine] did not have any grounds for adjustment is lawful.
Under such circumstances, the panel of judges is of the opinion that the first instance court and
the court of appeal correctly established the actual circumstances of the case, thoroughly
investigated the existing evidence, correctly evaluated them and made a lawful and grounded
decision in accordance with the requirements of substantive and procedural law.
(Judgment of the Higher Court, (Exhibit RUS-7b))
240 2010 amendment, (Exhibit RUS-8b). (emphasis added)
241 Russia's response to Panel question No. 20, para. 41; Ukraine's response to Panel question No. 20,
para. 78.
242 Ukraine's response to Panel question No. 20, para. 79.
243 Investigation Report, (Exhibit RUS-10b), p. 28; 2014 extension decision, (Exhibit RUS-4b).

importing Member collectively account for more than 7 per cent of impor ts of the like
product in the importing Member.244
7.140. The second sentence of Article 5.8 requires "immediate termination" of the investigation
where investigating authorities determine that the margin of dumping is de minimis, i.e. less than
2%. The second sent ence has been interpreted by the Appellate Body in Mexico – Anti-Dumping
Measures on Rice. Based on the text of the second sentence, and in light of the context provided
by other provisions of the Anti -Dumping Agreement, it concluded that Article 5.8 requi res
immediate termination of the investigation in respect of producers for which a zero or de minimis
dumping margin is determined in the original investigation. 245 The Appellate Body also stated that
the only way to terminate immediately an investigation in respect of such producers is to exclude
them from the scope of the anti -dumping duty order. 246 Investigating authorities cannot impose
anti-dumping duties – including duties at 0% – on producers excluded from such measures. 247
Indeed, the issuance of an order imposing anti -dumping duty is the ultimate step of an
"investigation" contemplated under Article 5.8, and follows the final determination made by the
investigating authority.248 Therefore, if the investigation itself were to be terminated, there could
be no order imposing anti-dumping duty, even at 0% rates .249 The parties do not dispute this
interpretation of the second sentence of Article 5.8 by the Appellate Body in Mexico –
Anti-Dumping Measures on Rice, or ask us to revisit it.
7.141. Past panels or the Appellate Body have not made any specific findings under Articles 11.1,
11.2, or 11.3 of the Anti -Dumping Agreement regarding the inclusion of a producer found to have
had de minimis dumping margin in the original investigation, within the scope of an interim or
expiry review. But in addressing claims under Article 5.8 of the Anti -Dumping Agreement and
Article 11.9 of the SCM Agreement, the panel in Mexico – Anti-Dumping Measures on Rice
examined the WTO -consistency of a domestic law provision that required an annu al review of
producers that were found not to have engaged in, inter alia , dumping during the original
investigation.250 The panel in that case found that the logical consequence of terminating an
investigation against a producer that was found not to be dum ping in the original investigation is
that this producer cannot be subjected to administrative or changed circumstances reviews, the
latter being a review conducted under Article 11.2 of the Anti -Dumping Agreement.251 The panel
concluded on this basis that t his domestic law provision was inconsistent with Article 5.8 of the
Anti-Dumping Agreement. 252 On appeal, the Appellate Body agreed with the panel 's finding,
noting, inter alia , that because changed circumstances reviews under Article 11.2 examine "the
need for the continued imposition of the duty", producers excluded from the anti -dumping
measure by virtue of their de minimis dumping margins in the original investigation cannot be
subjected to changed circumstances reviews. 253 The Appell ate Body added that if investigating
authorities were to undertake a review of producers that were excluded from the anti -dumping
measure by virtue of their de minimis margins, those producers effectively would be made subject
to the anti-dumping measure, inconsistently with Article 5.8.254
7.5.3 Evaluation
7.142. We will first examine Russia's claim under Article 5.8 alleging that the Ukrainian authorities
acted inconsistently with the second sentence of this provision in the context of the original
investigation phase. Then we will examine its claim under Article 5.8 challenging
EuroChem's inclusion in the underlying reviews as well as the subsequent imposition of

244 Emphasis added.
245 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 217; Panel Report, Mexico –
Anti-Dumping Measures on Rice, para. 7.140.
246 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219.
247 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 305.
248 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219.
249 See, e.g. Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 219. The Appellate
Body found that given that the order establishing anti-dumping duties necessarily occurs after the final
determination is made, the only way to terminate immediately an investigation in respect of producers for
which a de minimis dumping margin is determined is to exclude them from the scope of the anti-dumping duty
order.
250 Panel Report, Mexico – Anti-Dumping Measures on Rice, paras. 7.250-7.251.
251 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.251.
252 Panel Report, Mexico – Anti-Dumping Measures on Rice, para. 7.251.
253 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 305. (emphasis added)
254 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 305.

anti-dumping duty on it pursuant to the reviews. Finally, we will examine Russia 's claims under
Articles 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement.
7.5.3.1 Claim under Article 5.8 of the Anti -Dumping Agreement concerning the
determinations in the original investigation phase
7.143. Russia contends that the Ukrainian authorities acted inconsistently with Article 5.8 of the
Anti-Dumping Agreement because in implementing the Ukrainian court judgments that found that
EuroChem had a negative dumping rate in the original investigation , ICIT: (a) failed to exclude,
through the 2008 amended decision, EuroChem from the scope of the original anti-dumping
measures; and (b) imposed anti-dumping duty of 0% on EuroChem through the 2010 amendment
rather than terminate the measure against it by excluding it from the scope of these measures.
Russia argues, relying on the Appellate Bod y Report in Mexico – Anti-Dumping Measures on Rice ,
that the only way to terminate an investigation immediately in respect of a producer with a de
minimis margin of dumping, as required by Article 5.8 of the Anti -Dumping Agreement, is to
exclude it from the scope of the anti -dumping duty order.255 The Ukrainian authorities failed to do
so, and thus, according to Russia, acted inconsistently with Article 5.8.
7.144. Russia disputes in this regard Ukraine 's argument that the obligations under Article 5.8 do
not app ly to the present case because the Ukrainian courts did not have the legal competence
under domestic law to calculate EuroChem's dumping margin , and the Ukrainian authorities
themselves never calculated a de minimis dumping margin for EuroChem in the origi nal
investigation. Russia asserts that such an argument is based on Ukrainian domestic law, and is not
relevant in WTO proceedings. 256 Russia asserts that considering ICIT implemented the orders of
Ukrainian courts that found absence of dumping by EuroChem, the combined effect of the
Ukrainian court judgments, and their implementation by ICIT 's 2010 amendment, was that the
dumping margin in the original investigation phase for EuroChem was found to be de minimis.257
7.145. Ukraine, in rebutting Russia 's arguments, does not dispute that if a de minimis dumping
margin is determined for a producer in the original investigation, pursuant to the second sentence
of Article 5.8, the investigating authority would have to terminate the investigation against this
producer. Ukraine acknowledges that the imposition of a 0% anti -dumping duty on EuroChem is
evidence that its authorities did not terminate, within the meaning of Article 5.8, the investigation
against EuroChem.258 However, it argues that the "central aspect" of the Appellate Body's finding
in Mexico – Anti-Dumping Measures on Rice was that there should be a legally valid determination
of a de minimis dumping margin in respect of a given producer. 259 Ukraine also contends that in
the original determination, the Ukrainia n authorities calculated an above de minimis dumping
margin for EuroChem because: (a) the Ukrainian courts did not have the authority under domestic
law to recalculate EuroChem's dumping margin; (b) ICIT imposed an anti -dumping duty of 0% on
EuroChem to implement the court orders, but never recalculated its dumping margin.260 Therefore,
in Ukraine 's view, the obligations under the second sentence of Article 5.8 of the Anti -Dumping
Agreement were not triggered in the present case.261
7.146. We note that the parties do not disagree on the legal interpretation of the second sentence
of Article 5.8, which requires "immediate termination in cases where the authorities determine that
the margin of dumping is de minimis". Instead, they disagree on whether these obligations we re
triggered in the present case, as Ukraine contends no legally valid de minimis dumping margin was
determined for EuroChem in the original investigation phase. Thus, the question that we have to
address is a factual one: Was a de minimis dumping margin d etermined for EuroChem in the
original investigation phase? If it was, then the obligations under the second sentence of
Article 5.8 of the Anti -Dumping Agreement would apply, and we would rule that the Ukrainian
authorities were required to terminate the original investigation against EuroChem.

255 Russia's first written submission, para. 175.
256 Russia's second written submission, para. 479.
257 Russia's second written submission, para. 474; opening statement at the second meeting of the
Panel, para. 171.
258 Ukraine's response to Panel question No. 20, paras. 78-79.
259 Ukraine's first written submission, para. 238.
260 Ukraine's first written submission, para. 253; response to Panel question No. 21, para. 83; and
opening statement at the first meeting of the Panel, para. 138.
261 Ukraine's first written submission, para. 256.

7.147. In this regard, w e note, as set out in paragraph 7.136 above, that the District Court
concluded that there was "absence of dumping" by EuroChem in the original investigation. Further,
the District Court found that the case files reaffirmed the ca lculations presented by EuroChem
showing that its dumping margin had a "negative value/rate". This District Court judgment was
upheld by higher courts, which found that the District Court had correctly established the
circumstances of the case, and thoroug hly investigated the existing evidence. 262 ICIT itself
implemented these court judgments, stating that in "pursuance" of the court judgments it had
decided to, inter alia , make the anti -dumping duty on EuroChem 0%. We find nothing in this
2010 amendment, or other evidence on record that would suggest to us that in implementing the
court judgments, ICIT disputed the finding of the courts that EuroChem had a negative value/rate
of dumping.263 Indeed, Ukraine submits that it does not question the legal validity of the rulings
made in the court judgments for EuroChem.264 In these circumstances, we agree with Russia that
the combined effect of the Ukrainian court judgments, and their implementation by
ICIT's 2010 amendment was that the dumping margin for EuroChem in th e original investigation
phase was de minimis.265
7.148. Further, Ukraine's argument as to why no "legally valid" dumping margin was calculated
for EuroChem in the original investigation phase is based on the following principal grounds:
a. the courts made their find ings based on dumping margin calculations presented by
EuroChem alone, and ICIT itself could not provide refuting evidence to the Ukrainian
courts as it has a policy of not disclosing confidential dumping margin calculations in
court proceedings, which in Ukraine are open to the public266;
b. the Ukrainian courts were not permitted to calculate any dumping margins as only MEDT
of Ukraine and ICIT have the authority under Ukrainian law to calculate dumping
margins267;
c. ICIT's 2010 amendment only enforced the rulings of the Ukrainian courts that
EuroChem's dumping margin was not correctly determined, and ICIT itself did not
recalculate the dumping margin originally determined268; and
d. in the absence of any specific instructions by the court to reopen the investigation and
apply a particular methodology for calculating the dumping margin, ICIT could not
recalculate the dumping margin, but had to bring down the duty to 0%.269
7.149. These grounds, however, are essentially matters under Ukrainian domestic law. It is up to
each WTO Member to decide how it implements decisions of its domestic courts, but these
arrangements or classifications under domestic law are not determinative of issues raised in WTO

262 See fn 239 above.
263 Ukraine submits in this regard that ICIT did not accept that EuroChem had a negative or de minimis
dumping margin because it did not exclude EuroChem from the original anti-dumping measures but merely
assigned it a 0% duty. (Ukraine's response to Panel question No. 21, para. 82). We do not see how
ICIT's conduct in this regard, which Russia alleges is WTO-inconsistent, is proof that ICIT did not accept the
courts' finding (which it implemented) that EuroChem had a negative rate of dumping. Moreover, Ukraine
submits that Exhibits UKR-53 (BCI), UKR-54 (BCI), UKR-55 (BCI), and UKR-56 (BCI) show that the Ukrainian
authorities did not recalculate the dumping margin, and did not endorse any dumping margin calculated by the
Courts. (Ukraine's second written submission, para. 99). However, Ukraine does not attempt to show what in
these exhibits supports Ukraine's submission in this regard.
264 Ukraine's first written submission, para. 253.
265 We also find it relevant to note that accepting Ukraine's argument essentially means that if
investigating authorities correctly calculate the dumping margin in an original investigation, and find the
dumping margin to be de minimis, they would be required, pursuant to the second sentence of Article 5.8, to
immediately terminate the investigation against an exporter. But, if the margins are calculated as above de
minimis due to substantive or clerical errors in the authorities' determination, and these errors are successfully
challenged in domestic courts, investigating authorities may rely on domestic law provisions to avoid complying
with the obligations under this second sentence. We do not consider that such an asymmetrical application of
the second sentence of Article 5.8 is rational, or intended under the Anti-Dumping Agreement.
266 Ukraine's response to Panel question No. 21, paras. 84-85.
267 Ukraine's opening statement at the first meeting of the Panel, paras. 138 and 142; response to Panel
question No. 21, para. 83.
268 Ukraine's opening statement at the first meeting of the Panel, para. 138.
269 Ukraine's second written submission, para. 97; response to Panel question No. 22, paras. 92-93.

dispute settlement proceedings. 270 Thus, we are not persuaded that the grounds advanced by
Ukraine show that no de minimis dumping margin was determined for EuroChem in the original
investigation phase.
7.150. We note, for instance, Ukraine 's assertion that because court hearings are open to the
public in Ukraine, ICIT could not provide its own dumping calculations, or refuting evidence to the
courts. Thus, the courts' judgments were based on submissions made by EuroChem alone. Even if
this was true, such supposed restraints on ICIT arise under domestic law. We do not see how they
affect the probative value of the court judgments, as implemented by ICIT, in these panel
proceedings.271 Further, considering ICIT implemented court judgments that found that EuroChem
had a negative rate of dumping, we do not see on what basis Ukraine now argues that no negative
or de minimis dumping margin was found for EuroChem in the original investigation phase. The
fact that in implementing the court judgments which found negative rate of dumping, ICIT did not,
or could not, rec alculate the dumping margin itself is, again, a matter of domestic law, and does
not diminish the probative value of these court judgments or ICIT 's order implementing it. 272
Ukraine thus has failed to rebut Russia 's submission that the record evidence in th e original
investigation phase shows the absence of dumping by EuroChem.
7.151. Therefore, we agree with Russia that the obligation under the second sentence of
Article 5.8 applies in this case because EuroChem had a de minimis dumping margin in the original
investigation phase. In these circumstances, the Ukrainian authorities would have been required
pursuant to the second sentence of Article 5.8 to immediately terminate the investigation against
EuroChem. As stated in paragra ph 7.140 above, the only way to terminate the investigation
against a producer found to have de minimis dumping margin in the original investigation is to
exclude that producer from the scope of the anti -dumping measures, and not to impose any
anti-dumping duty on it, even at a 0% rate. However, as Ukraine acknowledges, the Ukrainian
authorities failed to exclude EuroChem from the scope of the origina l anti -dumping measures,
specifically the 2008 amended decision. They also imposed a 0% anti -dumping duty on EuroChem
through the 2010 amendment. Thus, the Ukrainian authorities acted inconsistently with Article 5.8
of the Anti-Dumping Agreement.
7.152. Based on the foregoing, we find that the Ukrainian authorities acted inconsistently with
Article 5.8 of the Anti-Dumping Agreement because they:
a. failed to exclude EuroChem from the scope o f the original anti -dumping measures,
specifically the 2008 amended decision; and
b. imposed a 0% anti -dumping duty on EuroChem through the 2010 amendment, instead
of excluding it from the scope of the anti-dumping duty order.

270 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 82.
271 See, e.g. Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), fn 452. The Appellate
Body noted in this case that restrictions under domestic law on the executive branch from taking any action on
a matter during the pendency of domestic judicial proceedings could not provide a basis for delaying
compliance with the DSB's recommendations and rulings beyond the reasonable period of time.
272 In any event, we observe that Ukraine has changed its factual arguments over the course of the
proceedings on whether, as a matter of Ukrainian domestic law, the Ukrainian authorities could recalculate the
dumping margin pursuant to the court judgments. In its first written submission, Ukraine stated that "under
the Ukrainian Anti-Dumping Law and the Constitution of Ukraine (Article 19), a re-calculation of a dumping
margin can be performed only in course of a review of an anti-dumping duty". (Ukraine's first written
submission, fn 85). However, in subsequent responses it stated that "[i]t is only when the Court specifically
instructs ICIT to reopen the investigation and adopt a particular methodology" can ICIT recalculate the
dumping margin. (Ukraine's response to Panel question No. 22, para. 94). These two descriptions appear to
contradict each other. The first description suggests that the Ukrainian authorities can only calculate the
dumping margins in a review, and thus cannot do so pursuant to a court judgment. The second description
suggests that the Ukrainian courts can ask ICIT to recalculate dumping margins even in the absence of a
review. In this regard, we also observe that in support of its argument that absent court instructions to reopen
the investigation and to apply a particular methodology to calculate the dumping margin, ICIT had no other
option under Ukrainian law but to reduce the anti-dumping duty down to zero, Ukraine cites Articles 258-259 of
the Code of Administrative Procedure of Ukraine (Exhibit UKR-43) and Article 4 of Ukraine's Law on
enforcement proceedings, (Exhibit UKR-44). (Ukraine's second written submission, para. 97; response to Panel
question No. 22, para. 92). Ukraine does not show how these provisions of Ukrainian law support its argument.

7.5.3.2 Claim under Article 5.8 of the Anti -Dumping Agreement concerning the
underlying reviews
7.153. Russia argues that the Ukrainian authorities' inclusion of EuroChem within the scope of the
underlying reviews, and their decision to impose an anti-dumping duty on this producer through
the 2014 extension decision was inconsistent with the obligation under Article 5.8 to "immediately
terminate" an investigation against a producer found not to be dumping in the original
investigation.273 We note that Ukraine makes two main arguments as to why the Ukrainian
authorities did not violate the second sentence of Article 5.8 in including EuroChem in the
underlying reviews, and then imposing an anti-dumping dut y on it following the review
determinations. First, it argues that no legally valid de minimis dumping margin was determined
for EuroChem in the original investigatio n phase.274 Second, it submits, relying on the panel
reports in US – Corrosion-Resistant Steel Sunset Review and US – DRAMS, that Article 5.8 does
not apply to review determinations, and thus Russia 's claim under this provision fails. 275 Thus,
Ukraine contends that even if the dumping margin calculated in a review is de minimis, Article 5.8
does not impose an obligation on investigating authorities to terminate such a review. In any case,
Ukraine notes that the margin calculated for EuroChem in the underlying r eviews was not de
minimis.
7.154. We have already rejected in paragraph 7.151 above Ukraine 's first argument that no
legally valid de minimis dumping margin was determined for EuroChem in the original investigation
phase. With respect to its second argument, we note Russia 's submission that Ukraine 's reliance
on the panel reports in US – Corrosion-Resistant Steel Sunset Review and US – DRAMS is
inapposite because the question before the Panel is not whether a de minimis threshold applies in
review determinations, as was discussed by the panels in these two cases.276 Instead, the question
in Russia's view concerns the consequences of a finding that a producer had a de minimis dumping
margin in the original investigation phase on the subsequent interim or expiry review. 277 We
agree.
7.155. The interpretative issue before us is indeed not the same as that before the panels in US –
Corrosion-Resistant Steel Sunset Review and US – DRAMS. The issue in those cases was whether
the de minimis standard of Article 5.8 applies in the context of determinations made in expiry and
other types of reviews. The panels found in this context that the de minimis standard of Article 5.8
applies to original investigations, not such types of reviews. 278 In contrast, the issue before us is
whether Article 5.8 permits investigating authorit ies to include in a review a producer found to
have had a de minimis dumping margin in the original investigation and impose anti -dumping
duties on it pursuant to such review.
7.156. We consider that once an investigation is terminated, or brought to an end against a
producer, it cannot subsequently be revived through an interim or expiry review. We f ind support
for this view in the panel and the Appellate Body reports in Mexico – Anti-Dumping Measures on
Rice which stated that the logical consequence of terminating an investigation against a producer
that was found not to be dumping in the original in vestigation is that this producer cannot be
subjected to administrative or changed circumstances reviews. 279 The inclusion of such a producer
in an interim or expiry review as well as the subsequent anti -dumping duty imposition on it
following such reviews w ould be inconsistent with the obligation under the second sentence of
Article 5.8 to immediately terminate the original investigation against it. Therefore, we reject
Ukraine's second argument as well.
7.157. Based on the foregoing, we find that the Ukrainian au thorities acted inconsistently with
Article 5.8 of the Anti -Dumping Agreement in including EuroChem within the scope of the review
determinations, and in imposing anti-dumping duties on it through the 2014 extension decision.

273 Russia's response to Panel question No. 24, paras. 59-60.
274 Ukraine's first written submission, para. 238.
275 Ukraine's second written submission, paras. 90-91.
276 Russia's opening statement at the second meeting of the Panel, para. 160.
277 Russia's opening statement at the second meeting of the Panel, para. 160.
278 Panel Reports, US – Corrosion-Resistant Steel Sunset Review, para. 7.85; US – DRAMS,
paras. 6.89-6.90.
279 See para. 7.140 above.

7.5.3.3 Claims under Articles 11.1, 11 .2, and 11.3 of the Anti -Dumping Agreement
concerning the underlying reviews
7.158. Russia's claims under Articles 11.1, 11.2, and 11.3 are based on the "link" between these
provisions and Article 5.8.280 Russia contends that the Ukrainian authorities acted inconsi stently
with Articles 11.2 and 11.3 of the Anti -Dumping Agreement by including EuroChem within the
scope of the underlying reviews and imposing anti-dumping duties on it following these reviews.281
Russia also submits that the Ukrainian authorities acted inc onsistently with Article 11.1 of the
Anti-Dumping Agreement because if there should have been no anti -dumping duty to start with,
the question of that duty remaining in force to the extent necessary to counteract dumping, as
provided in Article 11.1 does not arise.282 Ukraine argues that Russia 's claims under Articles 11.1,
11.2, and 11.3 must be rejected because they are purely consequential to its claims under
Article 5.8; that, in its first written submission, Russia merely cited the provisions of Articles 11.1,
11.2, and 11.3 without specifying any action or inaction of the Ukrainian authorities that resulted
in a violation under these provisions; and that Russia has failed to make a prima facie case as to
why these provisions were violated.283
7.159. We note that Russia's claims under Articles 11.1, 11.2, and 11.3 arise from the same basis
as its claims under Articles 5.8 with respect to the underlying reviews, namely, the inclusion of
EuroChem within the scope of the underlying reviews and imposition of anti -dumping duty on it
following the determinations made in the underlying reviews. In these circumstances, we do not
consider that additional findings under these provisions would contribute towards the positive
resolution of this dispute.
7.160. Based on the foregoing, we exercise judicial economy with respect to Russia's claims under
Articles 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement.
7.6 Likelihood-of-injury determination
7.161. In its panel request, and its request for findings in the first written submission, Russia
claimed that Ukraine acted inconsistently with Articles 11.1, 11.2 , and 11.3 of the
Anti-Dumping Agreement because the Ukrainian authorities "determined and relied on" injury
which was not established in accordance with Articles 3.1 and 3.4 of this Agreeme nt.284 Russia
explains that this request covers the following two separate claims285:
a. MEDT of Ukraine violated Articles 11.2, 11.3, and 3.1 of the Anti -Dumping Agreement
because it failed to exclude imports of the Russian producer EuroChem, which had
negative dumping margin in the original investigation phase, from the volume of
dumped imports286; and
b. MEDT of Ukraine violated Articles 11.2, 11.3, and 3.4 of the Anti -Dumping Agreement
because its evaluation of economic factors and indices having a bearing on the state of
the Ukrainian domestic industry was not based on an objective examination of positive
evidence.287

280 Russia's first written submission, paras. 172 and 177.
282 Russia's response to Panel question No. 26, para. 73.
283 Ukraine's first written submission, para. 235; second written submission, paras. 112 and 115.
284 Russian's panel request, item number 17; first written submission, para. 347(8).
285 In addition to these two claims, Russia made what it described as an "argument" challenging MEDT
of Ukraine's analysis in a section of the Investigation Report titled "[p]ossibility of new types of dumping that
will cause injury to the national producer". (Russia's response to Panel question No. 37, para. 110). In this
section, MEDT of Ukraine considered certain arguments regarding the possible increase of imports from Russia
into Ukraine because, for instance, other countries had already imposed anti-dumping duties on Russian
exports of ammonium nitrate, and Ukraine was one of the key consumers of ammonium nitrate from Russia.
(Investigation Report, (Exhibit RUS-10b), p. 16). Russia clarified that this "argument" does not pertain to any
of the two claims made by Russia in these proceedings. (Russia's response to Panel question No. 53, para. 45).
Therefore, we have no basis to address this argument.
286 Russia's response to Panel question No. 33, para. 94.
287 Russia's response to Panel question No. 33, para. 94.

7.162. In response to Ukraine 's submission that MEDT of Ukraine made a likelihood -of-injury
determination in the underlying reviews, and that Article 11, not Article 3, applies to such a
determination, Russia states that when investigating authorit ies assess the current state of the
domestic industry in a review to ascertain whether the industry is suffering injury, this assessment
has to comply with the relev ant provisions of Article 3.288 Russia asserts that MEDT of Ukraine
made such an assessment in the underlying reviews, and thus made an injury determination
within the meaning of Article 3, but this determination did not comply with Articles 3.1 and 3.4.289
However, Russia clarifies that it is not actually making independent claims under Articles 3.1 and
3.4, in the sense that it is not asking us to make independent findings under these provisions. 290
Instead, it is contending that because MEDT of Ukraine relied on an injury assessment that did not
comply with Article 3 to make its likelihood -of-injury determination, it acted inconsistently with
Articles 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement.291
7.163. Ukraine states that MEDT of Ukraine was neither required t o nor made an injury
determination under Article 3 of the Anti -Dumping Agreement. 292 Instead, it made a
likelihood-of-injury determination within the meaning of Articles 11.2 and 11.3. Ukraine asks us to
dismiss Russia's injury-related claims because they su ffer from a legal error inasmuch as Russia
asks us to review MEDT of Ukraine 's likelihood-of-injury determination under Article 3, rather than
Article 11 of the Anti-Dumping Agreement.293
7.6.1 Legal standard
7.164. The enquiries relating to injury under Article 11.2 and Article 11.3 of the
Anti-Dumping Agreement, while worded differently, are similar. Article 11.2 states that interested
parties shall have the right to request the authorities to examine, inter alia, "whether the injury
would be likely to continue or recur if the [anti -dumping] duty were removed or varied". If
pursuant to a review conducted under Article 11.2, the authorities determine that the
anti-dumping duty is no longer warranted, they shall terminate this duty immediately. Article 11.3
refers to a determination on whether the expiry of the existing anti -dumping duty "would be likely
to lead to continuation or recurrence of dumping and injury". Article 11.3 requires investigating
authorities to terminate the existing anti -dumping duty unless the authori ties find a likelihood of
injury (and dumping) in the expiry review.
7.165. Neither Article 11.2 nor Article 11.3 prescribes a specific methodology that investigating
authorities must follow when making a likelihood -of-injury determination. Thus, investigating
authorities have some discretion in this regard. However, like in the context of
likelihood-of-dumping determinations, the use of the words "review" and "determine" in
Article 11.3 suggests that the investigating authorities' likelihood-of-injury determination must rest
on a sufficient factual basis that allows the authorities to draw reasoned and adequate
conclusions.294 Considering the use of the words "review" and "determine" in Article 11.2, as
stated above, the same standard may be said to apply to likelih ood-of-injury determinations made
in the context of interim reviews conducted pursuant to this provision. 295 Moreover, as we noted
above, investigating authorities are also under a general obligation, pursuant to Article 17.6(i) of
the Anti-Dumping Agreement, to establish facts properly and evaluate them in an unbiased and
objective manner, and this obligation applies in reviews as well. Therefore, if the
authorities' conclusions regarding the likelihood of injury are not reasoned and adequate, or based
on a sufficient factual basis, thus showing that their determination was not based on an objective
and unbiased evaluation of properly established facts, the determination would be inconsistent
with Articles 11.2 and 11.3 of the Anti-Dumping Agreement.
7.166. With res pect to the application of Article 3 of the Anti -Dumping Agreement to
likelihood-of-injury determinations made in the context of Article 11 reviews, the Appellate Body

288 Russia's response to Panel question No. 32(b), para. 93.
289 Russia's responses to Panel question No. 32(a), para. 92; and No. 31, para. 91.
290 Russia's responses to Panel question No. 32(a), para. 92; and No. 51, para. 35.
291 Russia's responses to Panel question No. 32(a), para. 92; and No. 51, para. 35; opening statement
at the second meeting of the Panel, para. 200.
292 Ukraine's first written submission, paras. 269 and 274.
293 Ukraine's first written submission, paras. 264 and 305.
294 See, e.g. Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284.
295 Panel Report, US – Shrimp II (Viet Nam), paras. 7.367 and 7.375. This panel took a similar view with
respect to the obligations under Article 11.2 of the Anti-Dumping Agreement.

has noted that Article 3 is titled "[d]etermination of injury" and lays down the steps involved and
the evidence to be examined in order to make an injury determination. 296 This determination is
mandatory in the context of an original investigation where investigating authorities must
demonstrate, pursuant t o such a determination, that the domestic industry is facing injury or a
threat thereof at the time of this investigation. 297 However, the Appellate Body has clarified that
such an injury determination under Article 3 is not required in an expiry review, whi ch requires a
likelihood-of-injury determination, not an injury determination.298
7.167. The Appellate Body's clarification was based on the fact that there are no cross -references
to Article 3 in the text of Article 11.3, and Article 3 itself does not indicate tha t the investigating
authorities must make an injury determination in a review. 299 The Appellate Body also explained
that the lack of a textual basis to apply Article 3 in likelihood-of-injury determinations makes sense
in light of the different nature and pu rpose of original investigations on one hand, and reviews on
the other. In particular, unlike in the case of an original investigation, investigating authorities are
not required to demonstrate in an interim or expiry review that the domestic industry is s uffering
material injury at the time of the review. Instead, to allow authorities to maintain an existing
anti-dumping duty, Article 11.3 requires them to review an anti -dumping duty order that has
already been established – following the prerequisite determinations of dumping and injury – so as
to determine whether that order should be continued or revoked. 300 Similarly, Article 11.2 gives
interested parties the right to request investigating authorities to, inter alia, examine whether the
injury would be li kely to continue or recur if the anti -dumping duty were removed, or varied, or
both.
7.168. While injury determinations are not required in the context of reviews, certain of the
analyses mandated by Article 3 may prove to be probative, or possibly even required, in order for
investigating authorities to arrive at a "reasoned conclusion". 301 Factors such as the volume, price
effects, and the impact on the domestic industry of dumped imports, taking into account the
conditions of competition, may be relevant to varyi ng degrees in a given likelihood -of-injury
determination.302 The necessity of conducting such an analysis in a given case results from the
requirements imposed by Article 11.3 (or Article 11.2) – not Article 3 – that a likelihood -of-injury
determination rest on a sufficient factual basis so as to allow the authorities to draw reasoned and
adequate conclusions.303
7.169. While there is no obligation to make an injury determination under Articles 11.2 and 11.3,
past panels have dealt with situations where the investigat ing authorities were alleged to have
made an injury determination under Article 3 in a review. In EU – Footwear (China), there was no
dispute between the parties that the investigating authority had made an injury determination,
and relied on it in making its likelihood -of-injury determination. 304 The panel stated that if
investigating authorities make an injury determination in a review that is inconsistent with
Article 3, and rely on that injury determination to make a likelihood -of-injury determination, the
inconsistency with Article 3 would taint the likelihood determination. 305 The panel's rationale was
that in such a case the likelihood determination would not rest on a sufficient factual basis, and
thus not allow the investigating authorities to draw reasoned and adequate conclusions regarding
the likelihood of injury. 306 Thus, the likelihood -of-injury determination would be inconsistent with

296 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 277.
297 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 279. See, e.g.
Article 3.5 of the Anti-Dumping Agreement, which requires investigating authorities to "demonstrate[] that the
dumped imports are … causing injury … to the domestic industry".
298 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 279.
299 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 278. The Appellate
Body's findings were under Article 11.3, not Article 11.2, but considering the similar text and nature of enquiry
on injury in both of these provisions, we consider that the Appellate Body's finding is equally relevant to
determinations under Article 11.2.
300 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 279.
301 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284.
302 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284.
303 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284. While the
Appellate Body reached its conclusions with respect to Article 11.3, considering the similar text and purpose of
Article 11.2 of the Anti-Dumping Agreement, the same standards may be said to apply to likelihood-of-injury
determinations in interim reviews as well.
304 Panel Report, EU – Footwear (China), paras. 7.334 and 7.338.
305 Panel Report, EU – Footwear (China), para. 7.337.
306 Panel Report, EU – Footwear (China), para. 7.337.

Article 11.3. On the basis of this understanding, that panel considered whether the investiga ting
authority had failed to act in accordance with Article 3 of the Anti -Dumping Agreement when it
made its injury determination in the review. 307 However, it clarified that it would make its findings
under Article 11.3, not Article 3 per se, as Article 3 is not directly applicable to likelihood -of-injury
determinations.308 In US – Oil Country Tubular Goods Sunset Reviews , the panel stated that it
would address the complainant 's claims under Article 3 only to the extent it found that the
investigating authorit y had made an injury determination, as opposed to a likelihood -of-injury
determination in the expiry review. 309 Having concluded that the investigating authority did not
make an injury determination, the panel confined its review to claims under Article 11.3, and
declined those relating to Article 3.310
7.6.2 Evaluation
7.170. We must consider two threshold questions before examining the substantive aspects of
Russia's injury-related claims. First, we must decide whether, as a legal matter, we can examine
the consistency of injury-related aspects of MEDT of Ukraine 's determinations in an interim and
expiry review with Article 3 of the Anti-Dumping Agreement. We acknowledge Russia's clarification
that it is not making independent claims under Article 3, and thus we are not expected to make
independent findings of violations with respect to Article 3 provisions.311 But, Russia claims that
MEDT of Ukraine acted inconsistently with Articles 11.1, 11.2 , and 11.3 "because it determined
and relied on injury wh ich was not established in accordance with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement". 312 Russia asks us to conclude, as part of its Article 11 claims, that
MEDT of Ukraine 's determinations did not comply with Articles 3.1 and 3.4 (without making
independent findings in this regard). 313 Therefore, we must consider whether MEDT of Ukraine
made a determination in the underlying reviews that is governed under Article 3, and specifically
Articles 3.1 and 3.4.
7.171. In this regard, Russia acknowledges the Appella te Body 's finding in US – Oil Country
Tubular Goods Sunset Reviews that Article 3 does not apply to expiry reviews, and does not ask us
to deviate from these findings of the Appellate Body. 314 However, it asserts that if investigating
authorities make a dete rmination of injury under Article 3, they must ensure that this injury
determination complies with the relevant provisions of Article 3.315 Russia contends that MEDT of
Ukraine made such an injury determination in the underlying reviews. 316 In our view, the issue
that we have to resolve is a factual one : Did MEDT of Ukraine make an injury determination under
Article 3 of the Anti-Dumping Agreement?
7.172. If we find that MEDT of Ukraine did not make such an injury determination, then the
second question that we must address is whether we can , consistent with our terms of reference,
examine Russia 's injury-related claims under Articles 11.1, 11.2 , and 11.3 . In particular,

307 Panel Report, EU – Footwear (China), para. 7.340.
308 Panel Report, EU – Footwear (China), para. 7.157.
309 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, para. 7.276.
310 Panel Report, US – Oil Country Tubular Goods Sunset Reviews, para. 7.279.
311 Russia's response to Panel question No. 51(a), para. 35.
312 Russia's first written submission, para. 347(8), opening statement at first meeting of the Panel,
313 See, e.g. Russia's first written submission, para. 347(8); second written submission, paras. 551 and
553; and opening statement at the second meeting of the Panel, para. 200.
314 Russia's second written submission, para. 569. Russia appears to distinguish the Appellate Body
Report in US – Oil Country Tubular Goods Sunset Reviews by arguing that provisions other than Articles 3.7
and 3.8 were not subject to detailed analysis in this case. (Russia's second written submission,
paras. 563-565). But it ultimately concludes, based on its understanding of the panel's and the
Appellate Body's finding in this case, that Article 3 generally does not apply to expiry reviews, but if
investigating authorities make an examination falling within Article 3, then they are bound by Article 3.
(Russia's second written submission, para. 569). We do not preclude the possibility that investigating
authorities may, on their own volition, make an injury determination under Article 3 in the context of a review,
in which case they would have to follow the obligations under Article 3. But, contrary to Russia's assertion, the
Appellate Body's finding is not limited to Articles 3.7 and 3.8 of the Anti-Dumping Agreement. The Appellate
Body specifically upheld the panel's finding that Article 3 does not apply to likelihood-of-injury determinations,
and declined to make any findings under Articles 3.1, 3.2, 3.4, and 3.5. (Appellate Body Report, US – Oil
Country Tubular Goods Sunset Reviews, para. 285).
315 Russia's second written submission, paras. 566 and 569; opening statement at the first meeting of
the Panel, paras. 133-134.
316 Russia's response to Panel question No. 31, para. 91.

considering Russia claimed in the panel request that the Ukrainian authorities acted inconsistentl y
with these Article 11 provisions because they "determined and relied on injury" which was not
established in accordan ce with provisions of Article 3, should Russia 's claim fail if we find that
MEDT of Ukraine did not make such an injury determination?
7.6.2.1 Whether MEDT of Ukraine made an injury determination under Article 3 in the
underlying reviews
7.173. Russia bears the burden of establishing that MEDT of Ukraine made an injury
determination under Article 3 in the underlying reviews. 317 Ukraine denies that MEDT of Ukraine
made such an injury determination, and submits instead that MEDT of Ukraine only examined, as
part of its likelihood -of-injury determination, whether the domestic industry had completely
recovered from the material injury it was found to suffer in the original investigation. 318 Russia
contends, however, that MEDT of Ukraine made such an injury determination because it assessed
the current state of the domestic industry in the underlying reviews, and did not make a purely
prospective analysis.319 Russia makes two main arguments in support of its view.
7.174. First, noting that Articles 11.2 and 11.3 refer to the likelihood of continuation or recurrence
of injury to the domestic industry, Russia states that MEDT of Ukraine made a
likelihood-of-continuation-of-injury determination in the underlying reviews, and not a
likelihood-of-recurrence-of-injury determination, though Ukraine disputes this statement.320 Russia
asserts that considering only existing injury can continue, investigating authorities can make a
positive determination of likelihood of continuation of injury only when they find that the domestic
industry is suffering material injury during the period of review, or currently suffering injury. 321
Therefore, in Russia's view, MEDT of Ukraine must have examin ed the existing or current state of
the domestic industry, and thus made an injury determination under Article 3. Second, Russia
points to MEDT of Ukraine 's statements in several parts of the Investigation Report that allegedly
show that it made such an injury determination.322
7.175. Regarding Russia's first argument, as we stated above, whether or not MEDT of Ukraine
made an injury determination is a factual issue that has to be resolved based on an examination of
its Investigation Report. Thus, we cannot assume t hat MEDT of Ukraine made an injury
determination, even assuming that MEDT of Ukraine made a determination regarding the likelihood
of continuation, not recurrence of injury, to the domestic industry. 323 We thus turn to
Russia's second argument, i.e. the Inve stigation Report shows that MEDT of Ukraine made an
injury determination under Article 3.
7.176. Russia quotes from parts of the Investigation Report that allegedly show that MEDT of
Ukraine made an injury determination. Russia notes in this regard that:
a. MEDT of Ukraine examined and evaluated such factors qualifying the state of the
domestic industry as the volume of dumped imports, production and sales of ammonium
nitrate by domestic producers, capacity utilization and stock reserves, productivity of

317 Russia as the complainant has the burden of making a prima facie case with respect to its claims.
Moreover, as the party asserting that MEDT of Ukraine made an injury determination, it has the burden to
prove it.
318 Ukraine's first written submission, para. 270.
319 See, e.g. Russia's response to Panel question No. 32(a), para. 92.
320 Russia's response to Panel question No. 35(b), para. 104; Ukraine's second written submission,
para, 137. Ukraine states that MEDT of Ukraine made a determination regarding the recurrence, not
continuation, of injury to the domestic industry.
321 Russia's response to Panel question No. 35(b), para. 105.
322 Russia's response to Panel question No. 31, paras. 88-91.
323 Russia does not argue that MEDT of Ukraine was required to make an injury determination because it
made a likelihood-of-continuation-of-injury determination. (Russia's response to Panel question No. 55,
para. 49). Instead, Russia's argues that MEDT of Ukraine made a likelihood-of-continuation-of-injury
determination in support of its factual assertion that MEDT of Ukraine made an injury determination.
Considering, as stated above, we have to examine, as a factual matter, whether MEDT of Ukraine made an
injury determination, we do not find it necessary to resolve the disagreement between the parties as to
whether MEDT of Ukraine made a determination regarding the continuation, or recurrence, of injury to the
domestic industry.

labour, investments, the financial performance of the domestic producers, and the
liquidity of assets.324
b. It assessed through such an examination whether the conditions of the domestic
industry had deteriorated due to dumped imports.325
c. Based on this analysis of t he current state of the domestic industry, MEDT of Ukraine
concluded that injury to the domestic industry was not completely eliminated, and
further when making its recommendations stated that the level of anti -dumping
measures "was not sufficient to eliminate injury to the [domestic industry]".326
7.177. Russia takes the view that MEDT of Ukraine could only have reached a conclusion that
injury to the domestic industry was not completely eliminated by examining the current state of
the domestic industry, and this e xamination was not conducted in accordance with Article 3 of the
Anti-Dumping Agreement. 327 In addition, Russia submits that the following references in the
Investigation Report show that MEDT of Ukraine made an injury determination:
a. MEDT of Ukraine stated i n section 11.3 of the Investigation Report that it would conduct
an "analysis of the state of the Ukrainian [domestic] industry"328;
b. considered "the changes in the situation of the Ukrainian domestic industry since the
imposition of the anti-dumping measures"329; and
c. concluded that "the Ukrainian industry had not completely recovered from the injury".330
7.178. Russia states that there is no difference between a finding that the domestic industry did
not completely recover from injury, and a finding that the domestic industry was suffering material
injury caused by dumped imports.331
7.179. To ascertain whether MEDT of Ukraine made an injury determination, we must holistically
review its injury analysis, and consider the references relied upon by Russia in their proper
context. We note that MEDT of Ukraine 's analysis on injury -related issues is contained in
section 11 of the Investigation Report, specifically sub -sections 11.1, 11.2, 11.3, and 11.4. Russia
quotes mainly from section 11.3 in support of its view that MEDT of Ukrain e made an injury
determination.
7.180. Section 11.3 is titled "[e]xamination of the effect the dumping import had on the Claimant
[i.e. the domestic industry]". 332 MEDT of Ukraine stated here that "[b]ased on information
obtained during the [period of ] [r]eview", i t "determined whether the [domestic industry 's ]
conditions [had] deteriorated due to the dumped imports". Based on its consideration of the
performance of the domestic industry across various economic factors and indices having a
bearing on the state of the domestic industry, it concluded:
The analysis of the information provided demonstrated that the consequence of the
anti-dumping measures in respect of the import into Ukraine of Product originating
from the Russian Federation was the opportunity of the national producers to increase
the production volumes, the percentage of the used production capacity, the growth of
sales of the Products and the share in the domestic market of Ukraine, and retain the
number of employees on the Claimant's payroll.

324 Russia's response to Panel question No. 31, para. 88.
325 Russia's second written submission, para. 590.
326 Russia's response to Panel question No. 31, paras. 89-90. See also opening statement at the second
meeting of the Panel, paras. 215-216.
327 Russia's second written submission, para. 593.
328 Russia's response to Panel question No. 31, para. 91; second written submission, para. 598.
329 Russia's response to Panel question No. 31, para. 91; second written submission, para. 598.
330 Russia's response to Panel question No. 31, para. 91; second written submission, para. 598.
331 Russia's second written submission, para. 588.
332 Investigation Report, (Exhibit RUS-10b), p. 34.

However, the financial performance of the Claimant and the ratio of coverage of the
current liabilities precludes the Ministry from concluding that the injury is completely
eliminated that was caused to the national producer due to the definitive anti-dumping
measures in respect of the import into Ukraine of the Product originating from the
Russian Federation.333
7.181. Having reviewed section 11.3 of the Investigation Report as a whole, it appears to us that
MEDT of Ukraine was assessing in this section the effectiveness of the anti -dumping measures
already in place, rather than establishing that the domestic industry was suffering material injury
during the period of review. For instance, in setting out its conclusions in section 11.3, quoted
above, MEDT of Ukraine consi dered "the consequence of the anti -dumping measures", which were
put in place following the dumping and injury determinations in the original investigations, on the
performance of the domestic industry. It acknowledged the improvement in performance in light of
the existence of such measures, while also noting the negative performance in profitability.
Similarly, in concluding that "the injury [was] [not] completely eliminated" "due to the definitive
anti-dumping measures", MEDT of Ukraine was reviewing the effectiveness of the original
anti-dumping measures in eliminating the injury established in the original investigation. These are
precisely the sort of analyses that investigating authorit ies could be expected to make to
determine whether the expiry of the anti -dumping duty, or change in its rate thereof, would lead
to the continuation or recurrence of injury to the domestic industry. We do not see why such an
analysis should be understood to be an injury determination, as opposed to an analysis of the
possible impact on the domestic industry if the anti -dumping duties originally imposed were to
expire, or be varied.334
7.182. Further, we find it conceivable that in assessing the effectiveness of the an ti-dumping
measures already in force, and considering whether the existing anti -dumping duty had the
desired effect of mitigating the material injury that the domestic industry was found to suffer in
the original investigation, investigating authorities would consider the current state of the domestic
industry. It is also conceivable that as a result of the anti -dumping measure already in force, the
situation of that domestic industry may have improved relative to the original period of
investigation, but t he likelihood of continuation or recurrence of injury to the domestic industry
persists. Thus, some of the analyses that would be relevant in an injury determination, such as the
effect of subject imports on prices, or the impact of those imports on the do mestic industry, may
also be relevant in a likelihood -of-injury determination. Indeed, it may be difficult to make an
objective and unbiased examination of the likelihood of injury without considering to some extent
the effect of imports from the subject c ountries on the current state of the domestic industry.
However, such a consideration does not show that the investigating authorities were making an
injury determination, as opposed to a likelihood -of-injury determination. We consider our views to
be consistent with that taken by the Appellate Body in US – Oil Country Tubular Goods Sunset
Reviews, where it stated:
[W]e are of the view that the fundamental requirement of Article 3.1 that an injury
determination be based on "positive evidence" and an "object ive examination" would
be equally relevant to likelihood determinations under Article 11.3. It seems to us that
factors such as the volume, price effects, and the impact on the domestic industry of
dumped imports, taking into account the conditions of competition, may be relevant to
varying degrees in a given likelihood -of-injury determination. An investigating
authority may also, in its own judgement, consider other factors contained in Article 3
when making a likelihood -of-injury determination. But the ne cessity of conducting
such an analysis in a given case results from the requirement imposed by Article 11.3

333 Investigation Report, (Exhibit RUS-10b), p. 35. (emphasis added)
334 We note that, at first glance, and when read in isolation, certain statements in the Investigation
Report may suggest that MEDT of Ukraine was making an injury determination. For instance, the above-quoted
title of section 11.3 reads" [e]xamination of the effect the dumping import had on the Claimant". However,
when read in proper context, it is clear that MEDT of Ukraine was not making such an injury determination, i.e.
a determination that dumped imports caused material injury to the domestic industry during the period of
review. For example, as is clear from the conclusion of section 11.3, MEDT of Ukraine was focused on the
impact of the original anti-dumping measures on the economic state of the domestic industry.

– not Article 3 – that a likelihood -of-injury determination rest on a "sufficient factual
basis" that allows the agency to draw "reasoned and adequate conclusions".335
7.183. The Appellate Body 's statement recognizes that factors such as the impact of dumped
imports on the domestic industry, taking into account the conditions of competition, may be
relevant to varying degrees in a given likelihood-of-injury determination.336 However, the necessity
of conducting such an analysis arises from Article 11.3 of the Anti -Dumping Agreement, which
governs likelihood -of-injury determinations, and not Article 3, which governs injury
determinations. Hence, just because an investigating authority considers the existing state of the
domestic industry, based, inter alia, on various factors and indices showing the performance of
that industry, does not mean that it was seeking to establish that the domestic industry was
suffering material injury during the period of review.
7.184. Moreover, in assessing whether MEDT of Ukraine made an injury determination, we must
consider the totality of its injury -related analysis in the underlying reviews, including that
contained in sections 11.1, 11.2, and 11.4 of the Investigation Report. In section 11.1, MEDT of
Ukraine considered the impact of the definitive anti-dumping measures already in force, and noted
that these measures had the "expected result" considering the changes in the volume and p rice of
dumped imports during the examined period. 337 It considered that in case of termination of the
existing anti -dumping measures, the volume of the imports from Russia could increase. 338 In
section 11.2, in considering the price effects of subject imports on the domestic industry, MEDT of
Ukraine evaluated the effect of subject imports on domestic industry prices during the time the
anti-dumping measures were applied. 339 In section 11.4, MEDT of Ukraine focused on whether
imports from Russia could increase if the existing anti-dumping duties were suspended or reduced,
by considering facts such as the production capacity and export orientation of Russian producers of
ammonium nitrate.340 These references show that MEDT of Ukraine 's analysis was focused on the
impact of the anti-dumping measures already in force, and the likelihood of injury to the domestic
industry continuing or recurring if such measures were terminated. This further confirms our view
that MEDT of Ukraine was making a likelihood-of-injury determination in the underlying reviews.
7.185. Based on the foregoing, we find that Russia has not established that MEDT of Ukraine
made an injury determination under Article 3 of the Anti -Dumping Agreement in the underlying
reviews. Considering Article 3 governs injury determinations, and not likelihood -of-injury
determinations, we cannot examine whether MEDT of Ukraine 's determinations in the underlying
reviews were consistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
7.6.2.2 Whether Russia can claim viol ations under Articles 11.1, 11.2, and 11.3 even if
MEDT of Ukraine did not determine injury under Articles 3.1 and 3.4
7.186. We set out in paragraph 7.161 above the two claims that Russia makes with respect to
MEDT of Ukraine 's injury analysis in the underlying reviews. These claims are derived from item
number 17 of the panel request. We stated in paragraph 7.44 above that item number 17 of the
panel request needs to be read in conjunction with item numbers 14-16 of that request. In item
numbers 14-16, Russia stated how different aspects of the Ukrai nian authorities' "determination"
and "findings" on injury were inconsistent with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti -Dumping
Agreement. In item number 17, Russia cross -referred to the Article 3 violations alleged in item
numbers 14-16, and stated that Ukrainian authorities acted inconsistently with Articles 11.1, 11.2,
and 11.3 of the Anti -Dumping Agreement because they " determined and relied on injury which

335 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 284. (emphasis
original)
336 We understand the Appellate Body's statement in US – Oil Country Tubular Goods Sunset Reviews
that the fundamental requirement of Article 3.1 that an injury determination be based on "positive evidence"
and an "objective examination" would be equally relevant to likelihood determinations under Article 11.3 to
mean that likelihood determinations should rest on a sufficient factual basis so as to allow the investigating
authorities to draw reasoned and adequate conclusions. This does not mean that a likelihood-of-injury
determination can be found to be inconsistent with Article 3.1 of the Anti-Dumping Agreement. We recall, as
set out in footnote 314 above, the Appellate Body itself decided not to make a finding under, inter alia,
Article 3.1 of the Anti-Dumping Agreement.
337 Investigation Report, (Exhibit RUS-10b), p. 32.
338 Investigation Report, (Exhibit RUS-10b), pp. 32-33.
339 Investigation Report, (Exhibit RUS-10b), pp. 33-34.
340 Investigation Report, (Exhibit RUS-10b), pp. 38-39.

was not established in accordance with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping
Agreement".341 Russia did not invoke Articles 3.2 and 3.5 in its first written submission, but,
closely reflecting its panel request, asked us to find that:
Ukraine acted inconsistently with Articles 11.1, 11.2 and 11.3 of the Anti -Dumping
Agreement because it determined and relied on injury which was not established in
accordance with Articles 3.1 and 3.4 of the Anti -Dumping Agreement. In particular,
Ukraine failed to properly establish facts and to conduct an unbiased and objective
examination of these facts in its likelihood of injury determination[.]342
7.187. In our view, Russia 's claims, as presented in its panel request , clearly showed that its
claims under Articles 11.1, 11.2, and 11.3 were dependent on the premise that MEDT of Ukraine
determined, and then relied on, injury not established in accordance with Articles 3.1 and 3.4.
However, in response to our questions at the second substantive meeting, Russia argued that its
two claims did not depend, or did not entirely depend, on a conclusion that MEDT of Ukraine failed
to act in compliance with Articles 3.1 and 3.4.343
7.188. Russia's first claim, as set out in paragraph 7.161 above, is that MEDT o f Ukraine violated
Articles 11.2, 11.3, and 3.1 of the Anti-Dumping Agreement because it failed to exclude imports of
the Russian producer EuroChem, which had a negative dumping margin in the original
investigation phase, from the volume of dumped imports. Russia explains that Article 11.3 itself
obligates investigating authorities to make an objective examination of positive evidence, and thus
we need not examine this aspect of the measure under Article 3.1 as well. 344 Therefore, Russia
contends that we may examine pursuant to Article 11.3 whether MEDT of Ukraine 's action to
include imports from EuroChem in the volume of subject imports was objective and unbiased, even
if we do not examine whether MEDT of Ukraine acted in accordance with Article 3.1 in this
regard.345
7.189. Russia's second claim, as also set out in paragraph 7.161 above, is that MEDT of Ukraine
violated Articles 11.2, 11.3, and 3.4 of the Anti -Dumping Agreement because its evaluation of the
economic factors and indices having a bearing on the state of the Ukrainian domestic industry was
not based on an objective examination of positive evidence. Russia sta tes that this second claim is
premised on Russia 's view that MEDT of Ukraine acted inconsistently with Article 3.4 of the
Anti-Dumping Agreement.346 However, it qualifies this acknowledgment by stating that its claims
of violations under Articles 11.2 and 11.3 do not "entirely depend[]" on violation of Article 3.4, as
the obligation under Article 11.3 to make an objective examination based on positive evidence
applies to expiry reviews even if the panel cannot find any inconsistency under Article 3.4.347
Therefore, Russia appears to argue that because the objectivity standard under Article 11.3
applies, even if we do not examine whether MEDT of Ukraine acted in accordance with Article 3.4
in this regard, its claim under Article 11.3 should succeed.
7.190. While we find Russia's responses somewhat confusing in certain respects348, the main point
that it makes is that a WTO panel can review the objectivity of an investigating
authority's likelihood-of-injury analysis under Article 11.3 (and Article 11.2), even if it did not
make an injury determination under Article 3. We, of course, agree. Articles 11.2 and 11.3 are
precisely the provisions setting out the rules applicable to a likelihood -of-injury determination.

341 Emphasis added.
342 Russia's first written submission, para. 347(8) (emphasis added). Russia reiterated in its opening
statement at the first substantive meeting, as well as its second written submission, how MEDT of
Ukraine's determination and reliance on injury not established in accordance with Articles 3.1 and 3.4 had led
to violations under these Article 11 provisions. (Russia's opening statement at first meeting of the Panel,
343 Russia's response to Panel question No. 52, paras. 40 and 42.
344 Russia's response to Panel question No. 52, para. 38.
345 See, e.g. Russia's response to Panel question No. 52, paras. 38 and 40.
346 See, e.g. Russia's response to Panel question No. 52, para. 41.
347 See, e.g. Russia's response to Panel question No. 52, para. 42.
348 It is not clear to us for example how Russia reconciles its statement that its second claim is premised
on its view that MEDT of Ukraine acted inconsistently with Article 3.4, with its statement that this claim does
not "entirely depend[]" on our conclusion regarding any violation under Article 3.4. (Russia's response to Panel
question No. 52, paras. 41-42). Moreover, while Russia invokes the standard of objectivity under Article 11.3,
it does not specifically invoke Article 11.1 or Article 11.2 in its responses, though it makes claims under these
provisions as well. (See, e.g. Russia's response to Panel question No. 52, paras. 38-39 and 42).

However, the question before us is not whether a panel can review a likelihood -of-injury
determination under Articles 11.2 and 11.3, but whether, having claimed violations under
Articles 11.1, 11.2, and 11.3 in its panel request because MEDT of Ukraine determined, and relied
on, injury not established in accordance with Articles 3.1 and 3.4, Russia can now claim violations
under these Article 11 provisions even if MEDT of Ukraine did not make an injury determination
under Article 3.
7.191. It is well established that the panel request delineates the scope of the claims that the
complainant may pursue before a panel, and that a panel's terms of reference do not extend to
matters that fall outside this scope. Nothing in Russia 's panel request suggests that it intended to
challenge MEDT of Ukraine 's likelihood-of-injury determination on its own terms under
Articles 11.1, 11.2, and 11.3. Indeed, the panel request does not even refer to a determination
regarding the likelihood of continuation or recurrence of injury to the domestic industry, as is
provided for in Articles 11.2 and 11.3. Instead, item number 17 of Russia 's panel request clearly
states that Russia claims violations under Articles 11.1, 11.2, and 11.3 because MEDT of Ukraine
determined and relied on injury not established in accordance with Articles 3.1 and 3.4.
Russia's request for findings in paragraph 347(8) of its first written submission further confirms
our understanding of the nature of Russia 's Article 11 claims in this regard. 349 It follows, that if
MEDT of Ukraine did not make an injury determinat ion under Article 3, as we found that it did not,
Russia's Article 11 claims must also fail.350
7.6.2.3 Conclusion
7.192. Based on the foregoing, we find that Russia has not established that MEDT of Ukraine
acted inconsistently with Articles 11.1, 11.2, and 11.3 of the Ant i-Dumping Agreement because it
determined and relied on injury not established in accordance with Articles 3.1 and 3.4 of the
Anti-Dumping Agreement.351
7.7 Facts available
7.193. Russia challenges under Article 6.8 and paragraphs 3, 5, and 6 of Annex II of the
Anti-Dumping Agreement MEDT of Ukraine 's rejection of the reported gas cost of the investigated
Russian producers, and its use of the surrogate price of gas instead, to calculate the cost of
production of these producers. 352 Russia submits that by doing so, MEDT o f Ukraine de facto
resorted to "facts available".353 Russia asserts that the conditions under Article 6.8 for use of "facts
available" were not met in this case, and that MEDT of Ukraine acted inconsistently with Article 6.8
and paragraphs 3, 5, and 6 of Annex II of the Anti-Dumping Agreement in rejecting the costs data
of the investigated Russian producers because354:
a. First, it resorted to "facts available" though the investigated Russian producers
cooperated and provided necessary information within a reasonable period of time.
b. Second, it failed to inform the investigated Russian producers of the reasons for the
rejection of submitted evidence and information and also failed to give them an
opportunity to provide such explanations within a reasonable period of time.

349 In any case, defects in a panel request cannot be cured in subsequent submissions made by the
parties in panel proceedings. (Appellate Body Report, US – Carbon Steel, para. 127).
350 We also disagree with the distinction that Russia draws between its first and second claims,
inasmuch as it states that its first claim does not depend on whether MEDT of Ukraine relied on an injury
determination that was not made in accordance with Article 3.1, even if its second claim could be said to be
premised on the view that MEDT of Ukraine relied on an injury determination not made in accordance with
Article 3.4. Both of these claims are derived from item number 17 of the panel request and paragraph 347(8)
of the request for findings section of its first written submission, and Russia did not make the sort of distinction
in its panel request or the first written submission that it now seeks to make.
351 We find our views to be consistent with taken by past panels. (See, e.g. Panel Report, US – OCTG
(Korea), paras. 7.320-7.324).
352 Russia's first written submission, paras. 249 and 275-276.
353 Russia's opening statement at the second meeting of the Panel, para. 249.
354 Russia's response to Panel question No. 28, paras. 78-80; first written submission, para. 270.

c. Third, although the investigated Russian producers fully cooperated and submitted
verifiable information in a timely fashion so that it could be used in the underlying
reviews without undue difficulties, this information was rejected.
7.194. Ukraine sub mits that MEDT of Ukraine rejected the reported gas cost on substantive
grounds, pursuant to the rules set out in Article 2.2.1.1 of the Anti -Dumping Agreement, and did
not take a decision to resort to facts available under Article 6.8 to reject this cost. 355 Ukraine
contends that considering MEDT of Ukraine did not use facts available under Article 6.8,
Russia's claim in this regard is devoid of any factual basis.356
7.195. We note that Article 6.8 states that "[i]n cases in which any interested party refuses
access to, or otherwise does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final determinations, affirmative or
negative, may be made on the basis of facts available". Article 6.8 further states that the
"provisions of Annex II [of the Anti -Dumping Agreement] shall be observed in the application of
this paragraph". Article 6.8 identifies the circumstances in which investigating authorities may
overcome a lack of information in responses of interested parties, by using "facts" which are
otherwise "available" to the investigating authorities. 357 In particular, it permits investigating
authorities, under certain circumstances, to fill in the gaps in the information necessary to arrive at
conclusions regarding dumping and injury.358
7.196. In reviewing the factual basis of Russia 's claims, we note that Russia has not alleged the
rejection of any information other than the reported gas cost. Thus, the factual basis of
Russia's claims in this regard is limited to the rejection of the reported gas cost. 359 With respect to
the rejection of this cost, the Investigation Report shows that MEDT of Ukraine rejected the
reported gas cost after finding, pursuant to a domestic law provision analogous to the second
condition of Article 2.2.1.1, that the records of the investigated Russian producers did not
completely reflect the costs associated with the production and sale of ammonium nitrate , insofar
as the reported gas cost was concerned .360 Russia has not pointed to anything in the Investigation
Report that suggests that MEDT of Ukraine rejected the reported gas cost pursuant to the criteria
set forth in Article 6.8 or Annex II of the Anti -Dumping Agreement. Thus Russia has not shown
that MEDT of Ukraine resorted to the facts available mechanism under Article 6.8. In these
circumstances, we agree with Ukraine that Russia 's claims do not have a proper factual basis, and
therefore, must fail.361
7.197. In this regard, we note our finding above that MEDT of Ukraine 's rejection of the reported
gas cost was inconsistent with Article 2.2.1.1 because it did not provide a sufficient basis under
the second condition to justify such rejection. However, that finding does not mean that we can
also find a violation with respect to a determin ation ( under Article 6.8 or Annex II of the
Anti-Dumping Agreement) that was never made by MEDT of Ukraine.362

355 Ukraine's first written submission, para. 311.
356 Ukraine's first written submission, para. 312.
357 Appellate Body Report, US – Hot-Rolled Steel, para. 77.
358 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 291.
359 See e.g. Russia's responses to Panel question No. 28, paras. 77-80, and No. 29, para. 81.
360 Investigation Report, (Exhibit RUS-10b), p. 23.
361 Russia argues that Article 6.8 applies not only when investigating authorities reject information
submitted by investigated exporters or producers on evidentiary grounds, but also when such rejection is for
substantive reasons. (Russia's opening statement at the second meeting of the Panel, para. 246). In our view,
the question of whether an investigating authority acted inconsistently with Article 6.8 of the Anti-Dumping
Agreement has to be necessarily assessed on a case-by-case basis considering, inter alia, the specific nature
and scope of the findings made by these authorities, and the information rejected. However, when, as here, it
is clear that the investigating authority did not make a determination based on the criteria set forth in
Article 6.8 or Annex II, but rather rejected the reported gas cost based on its view that the records did not
meet the analogous domestic law provisions of the second condition of Article 2.2.1.1, we see no factual basis
to find a violation under Article 6.8, or paragraphs 3, 5, and 6 of Annex II of the Anti-Dumping Agreement. We
find support for our view in the panel report in US – Shrimp II (Viet Nam), where, having concluded that the
investigating authority did not make a determination based on facts available, the panel rejected the claims
under Article 6.8 and Annex II of the Anti-Dumping Agreement. (Panel Report, US – Shrimp II (Viet Nam),
para. 7.233).
362 The Anti-Dumping Agreement recognizes that in certain situations it may not be possible for
investigating authorities to use an exporter's or producer's data for substantive reasons. For example, in

7.198. Based on the foregoing, we find that Russia has not established that MEDT of Ukraine
acted inconsistently with Article 6.8, and paragraphs 3, 5, an d 6 of Annex II of the Anti -Dumping
Agreement.
7.8 Disclosure of essential facts
7.199. In the underlying reviews, the disclosure took place through the issuance of the
Investigation Report by MEDT of Ukraine. This report contained MEDT of Ukraine 's draft findings
and recommendations regarding the continued imposition of anti -dumping duty on imports of
ammonium nitrate from Russia, at modified rates. ICIT subsequently issued its notice accepting
the findings and recommendations made in this report.
7.200. MEDT of Ukraine prepared a confidential and a non -confidential version of its Investigation
Report. It made the non-confidential version of the Investigation Report available to the interested
parties. In this section, we refer to this document as the "disclosure". We also refer, where
relevant, to the Confidential Version of the Investigation Report. The disclosure was issued on
25 June 2014, and MEDT of Ukraine gave interested parties time until 27 June 2014, i.e. two days,
to file their comments on the disclosure.
7.201. Russia claims that this disclosure was inconsistent with Articles 6.9 and 6.2 of the
Anti-Dumping Agreement because MEDT of Ukraine failed to set out in this disclosure the essential
facts underlying its likelihood -of-injury and dumping determinations (d isclosure claims).363 Russia
also claims that MEDT of Ukraine acted inconsistently with Article 6.9 of the Anti -Dumping
Agreement because it failed to give the interested parties "sufficient time" to respond to the
disclosure.364 Ukraine asks us to dismiss all of Russia's claims.
7.8.1 Legal standard
7.202. Article 6.9 of the Anti -Dumping Agreement, which sets out the specific obligations that
apply to the disclosure of essential facts, states:
The authorities shall, before a final determination is made, inform all interest ed
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests.
7.203. As the first sentence makes clear, Article 6.9 requires the disclosure of essential facts, and
not all the facts that are before an investigating authority.365 The context provided by the last part
of the first sentence of Article 6.9, and its second sentence clarifies that essential fac ts are those
facts that "form the basis for the decision whether to apply definitive measures", and the
disclosure of which ensures the ability of the interested parties to defend their interests. 366 These
are the facts that are significant in the process of reaching a decision on whether or not to apply
definitive measures, and include facts that are salient for a decision to apply definitive measures,
as well as those that are salient for a contrary outcome. 367 Thus, essential facts are not only those
facts that support the decision ultimately reached by the investigating authorities, but include
those facts that are necessary to the process of analysis and decision -making by the investigating
authorities.368 Whether a particular fact is significant in the process of reaching such decisions, and
thus essential, would depend on the nature and scope of the substantive obligations that
investigating authorities need to meet to apply definitive measures, the content of a particular

addition to Article 2.2.1.1, which permits rejection of costs in an exporter's or producer's records if the
conditions set out therein are not met, Articles 2.2.2 (ii) and (iii) of the Anti-Dumping Agreement refer to
situations where profit is determined on the basis of the data of "other exporters or producers subject to
investigation". If an investigating authority acts inconsistently with the rules set out in these provisions, a
panel may find violations under these particular provisions. However, we do not see any textual basis to
conclude that findings of violations under these provisions could automatically lead to violations under
Article 6.8 or paragraphs 3, 5, and 6 of Annex II of the Anti-Dumping Agreement.
363 Russia's first written submission, para. 347(10); response to Panel question No. 38, para. 111.
364 Russia's first written submission, para. 347(11).
365 Appellate Body Report, China – GOES, para. 240.
366 Appellate Body Report, China – GOES, para. 240.
367 Appellate Body Report, China – GOES, para. 240.
368 Panel Report, EC – Salmon (Norway), para. 7.807.

finding needed to satisfy the substantive obligation at issue, and the factual circumstances of each
case, including the arguments and evidence submitted by the interested parties.369
7.204. In the context of an original investigation, where investigating authorities may take an
affirmative decision to apply definitive measures only when dumping, injury , and causal link
between dumping and injury exist, the Appellate Body has stated that essential facts would include
those facts that form the basis of the authorities ' conclusions on dumping, injury, and causal link.
Essential facts would also include those facts that would be necessary to understand the factual
basis of the intermediate findings that form the basis of the authorities ' conclusions on dumping,
injury, and causal link. 370 Such facts could include the data forming the basis for these
intermediate findings.371
7.205. In our view, in the context of a review carried out under Article 11.3 of the Anti -Dumping
Agreement, where definitive measures must be terminated unless the investigating authorities find
a likelihood of continuation or recurrence of dumping and injury to the domestic industry, the
essential facts would include those facts that form the basis for the
authorities' likelihood-of-dumping and likelihood-of-injury determinations. They would a lso include
the facts that would be necessary to understand the factual basis of the intermediate findings that
form the basis of these determinations.
7.206. Where there is a revision in the dumping margins pursuant to interim reviews under
Article 11.2 of the Anti-Dumping Agreement, and subsequent modification in the anti -dumping
duty rate, the essential facts would include those facts that are necessary to understand the
factual basis of the new dumping determinations. The Appellate Body has clarified in this regard
that with respect to dumping determinations, investigating authorities are expected to disclose,
inter alia, the home market and export sales being used, the adjustments made thereto, and the
calculation methodology that they applied to determine the dumping margin.372
7.207. These essential facts must be disclosed in a coherent manner so as to permit an interested
party to understand the basis for the decision to apply definitive measures. 373 This means that the
interested party must be able to clearly underst and what data was used by the investigating
authorities in their determinations, and how, so that it can defend its interests. 374 It also means
that the disclosure should allow the interested parties to comment on the completeness and
correctness of the conc lusions reached by the investigating authorities from the facts being
considered, to provide additional information or correct perceived errors, and to comment on or
make arguments as to the proper interpretation of those facts.375
7.208. When the essential facts a re confidential, investigating authorities may meet their
disclosure obligations through the disclosure of non -confidential summaries of those facts. 376 The
Appellate Body has clarified in this regard , however, that even if a WTO panel finds that essential
facts redacted from a disclosure on grounds of confidentiality were not properly treated as
confidential under Article 6.5 of the Anti-Dumping Agreement the panel cannot presume that such
inconsistencies with Article 6.5 will also lead to inconsistencies with Article 6.9.377 Instead, the
panel must examine whether any disclosure made, including that made through non -confidential
summaries, meet the legal standard under Article 6.9.378 All disclosures should take pl ace in
sufficient time for the parties to defend their interests.
7.209. The question whether the failure to disclose essential facts leads to a violation under
Article 6.9 as well as Article 6.2 has been discussed in past cases. The panels in EC – Salmon

369 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.130.
370 See, e.g. Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.130.
371 See, e.g. Appellate Body Report, China – GOES, para. 248; and Panel Reports, China – HP-SSST
(Japan) / China – HP-SSST (EU), para. 7.241.
372 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131.
373 Appellate Body Reports, China – GOES, para. 240; China – HP-SSST (Japan) / China – HP-SSST
(EU), para. 5.130.
374 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), paras. 5.131 and 5.133.
375 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131; China –
GOES, fn 390; and Panel Report, EC – Salmon (Norway), para. 7.805.
377 Appellate Body Report, Russia – Commercial Vehicles, para. 5.183.
378 Appellate Body Report, Russia – Commercial Vehicles, paras. 5.183 and 5.189.

(Norway) and Guatemala – Cement II , for instance, examined the claims regarding failure to
disclose essential facts under Article 6.9. Based on their conclusions under Article 6.9, they
exercised judicial economy on the Article 6.2 claims, or rejected them.379
7.8.2 Evaluation
7.210. We will first consider Russia 's claims under Articles 6.2 and 6.9 of the Anti -Dumping
Agreement concerning MEDT of Ukraine 's alleged failure to disclose the essential facts under
consideration, specifically those concerning its likelihood-of-injury and dumping determinations.
Then, we will consider Russia's claim under Article 6.9 concerning MEDT of Ukraine's alleged failure
to give the interested parties "sufficient time" to comment on the disclosure.
7.8.2.1 Disclosure claims
7.211. Russia contends that MEDT of Ukraine's failure to provide the investigated Russian
producers with the essential facts deprived them of an "opportunity to defend their interests ".380
Thus, in the view of Russia, MEDT of Ukraine acted inconsistently with Articles 6.2 and 6.9 of the
Anti-Dumping Agreement.381 While Russia makes claims under Article 6.2 and Article 6.9, it does
not raise any factual issues with respect to its Article 6.2 claims that are additional to, or distinct
from, those it presents with respect to its Article 6.9 claims. Instead, it confirms that the factual
basis of its claims under Articles 6.2 and 6.9 with respect to the disclosure of essential facts is the
same.382 Nonetheless, Russia submits that its claims under Article 6.2 are independent of, and not
consequential to, its claims under Article 6.9.383
7.212. Considering the factual basis of Russia 's claims concerns the disclosure of essential facts,
which is an issue specifically addressed under Article 6.9, and it does not provide any separate
basis for us to make independent f indings under Article 6.2, we will not make any findings under
Article 6.2.384 To the extent we find a violation under Article 6.9 of the Anti-Dumping Agreement,
we will exercise judicial economy with respect to Russia 's corresponding claim under Article 6.2 of
the Anti -Dumping Agreement . If we find no violation under Article 6.9, we will reject
Russia's corresponding claim under Article 6.2 as well. Our approach is consistent with that taken
by past panels.385
7.8.2.1.1 Disclosure of essential facts forming the basis of the likelihood -of-injury
determination
7.213. Russia claims that MEDT of Ukraine failed to disclose the essential facts underlying its
likelihood-of-injury determination386, specifically the facts underlying its conclusions regarding:
a. the negative impact of dumpe d imports on domestic industry prices, or price effects 387;
and
b. the economic state of the domestic industry.388

380 Russia's second written submission, para. 668; opening statement at the first meeting of the Panel,
para. 148.
381 Russia's second written submission, para. 667. See also first written submission, para. 313.
382 Russia's response to Panel question No. 38, para. 111.
383 Russia's second written submission, para. 666; opening statement at the first meeting of the Panel,
paras. 146-147.
384 Russia explains that "[e]ven if certain information [were] not considered as essential facts" there
would "still [be] a broader obligation under Article 6.2 to provide interested parties with a full opportunity to
defend their interests". Thus, in the view of Russia, investigating authorities "may" violate this obligation under
Article 6.2 if they fail to disclose information that does not qualify as essential facts but nevertheless, enables
interested parties to defend their interests. (Russia's second written submission, para. 667). However, Russia
does not show why the situation it hypothesizes is relevant to the facts of this case.
386 Russia's first written submission, para. 298.
387 Russia's first written submission, para. 300.
388 Russia's first written submission, para. 301.

7.214. In its second written submission, Russia also contended that MEDT of Ukraine 's failure to
disclose the export price of the domestic industry in the disclosure resulted in a violation of
Article 6.9.389 Russia asserts that this particular information formed part of the essential facts that
MEDT of Ukraine was required to disclose, but makes no argument showing why this inf ormation
was relevant to the conclusions set out in the paragraph above, or why it constituted an essential
fact. In the absence of any arguments from Russia in this regard, we decline to address this issue
in our analysis below.
7.8.2.1.1.1 Disclosure on price effects
7.215. Russia contends that the disclosure does not contain any figures or analysis on price
effects, or any substantial facts supporting the conclusion that the alleged dumped imports had a
negative impact on domestic industry prices. 390 In particular, Russia as serts that the level of
price-undercutting, price -suppression, or price -depression (if any) is unclear from the
disclosure.391 Ukraine argues that Russia has not made a prima facie case that these facts were
"essential".392 In Ukraine's view, investigating authorities are not obligated to make a price effects
analysis as part of their likelihood -of-injury determinations, and thus the analysis on price effects
or the facts underlying them is not "essential".393 The issue before us is whether the analysis and
figures on price effects were "essential", and if so, whether MEDT of Ukraine disclosed them
consistently with Article 6.9 of the Anti-Dumping Agreement.
7.216. To the extent Russia 's reference to the "analysis" on price effects refers to the reasoning
based on which MEDT of Ukraine reached its conclusions, we agree with Ukraine that investigating
authorities are not required to disclose them. Investigating authorities need to disclose the
essential facts under Article 6.9, not their reasoning.394
7.217. However, as stated in paragraph 7.205 above, investigating authorities are required to
disclose the essential facts underlying their likelihood -of-injury determination, including the facts
necessary to understand the basis of intermediate findings or analysis on which this determination
is based. MEDT of Ukraine 's price effects analysis, in section 11.2 of the disclosure, formed one of
the bases for its overall likelihood -of-injury determination in section 11 of the disclosure. Thus, as
part of its disclosure of the essential facts underlying its likelihood -of-injury determination, MEDT
of Uk raine would have been required to disclose the facts necessary to understand the factual
basis of its price effects analysis, irrespective of whether it was required under the Anti-Dumping
Agreement to conduct such an analysis in the first place.395

389 Russia's second written submission, para. 688.
390 Russia's first written submission, para. 300.
391 Russia's first written submission, para. 300.
392 Ukraine's first written submission, para. 325.
393 Ukraine's first written submission, paras. 326-327.
394 See, e.g. Panel Reports, China – GOES, para. 7.407; Argentina – Poultry Anti-Dumping Duties,
paras. 7.227-7.228; and US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 7.148.
395 The panel and the Appellate Body report in China – GOES support this view. In China – GOES, the
issue was the disclosure of essential facts underlying a price effects analysis made under Article 3.2 of the
Anti-Dumping Agreement. Article 3.2 states that "[w]ith regard to the effect of the dumped imports on prices"
the investigating authority shall consider whether there has been a significant price undercutting by dumped
imports, or whether the effect of such imports is to depress or suppress domestic prices. The panel in this
dispute agreed with China that its authorities had not made any specific finding that the subject imports were
significantly undercutting the prices of domestically produced like products. (Panel Report, China – GOES,
para. 7.553). But it found that in reaching an affirmative conclusion on the existence of price suppression and
price depression, the investigating authority had relied on its finding of low prices of subject imports relative to
domestic like product prices. For this reason, the panel considered that the investigating authority was required
to disclose information on the price comparisons underlying the finding regarding the low prices of subject
imports, or price undercutting. (Panel Report, China – GOES, paras. 7.568-7.569). This finding of the panel
was upheld by the Appellate Body. (Appellate Body Report, China – GOES, paras. 250-251). Thus, the panel
and the Appellate Body found that to the extent the investigating authority made its price depression and
suppression analysis by relying on its findings of price undercutting by subject imports, it would have to
disclose the factual basis of this finding, irrespective of whether it was required to make a price undercutting
analysis under Article 3.2 in the first place. This finding confirms our view that the relevant issue is not
whether MEDT of Ukraine was required to make a price effects analysis in a review. Instead, even assuming
there was no such requirement, to the extent MEDT of Ukraine made such an analysis, and it formed the basis
of its likelihood-of-injury determination, the facts underlying that analysis would be essential.

7.218. In the u nderlying reviews MEDT of Ukraine conducted its price effects analysis by
comparing the export price of the investigated Russian producers (subject import prices) with the
domestic selling prices and cost of production of the domestic industry. 396 This analysis is set out
in section 11.2 of the disclosure.
7.219. Table 11.2.1 in this section sets out the subject import prices, domestic industry prices and
domestic industry costs, in 2010, 2011, 2012 , and the period of review. The actual figures on
domestic industry prices and costs were set out in the Confidential Version of the Investigation
Report, but redacted from the disclosure. Instead, growth/drop percentage rate s were provided as
follows:
Table 1: Table 11.2.1
 2010 2011 2012 RIP
Average price of
Product originating
in the Russian
Federation
186.2 265.1 260 274.8
Growth/drop rate, % - 42.37 39.63 47.58
Average price of
ammonium nitrate of
the national
producers

Growth/drop rate, % - 42.12 46.47 45.39
Cost of sales of the
domestic producers,
USD/t

Growth/drop rate, % - 29.33 61.19 58.76
Source: Investigation Report, (Exhibit RUS-10b), p. 33; Ukraine's translation of Table 11.2.1 (Exhibit UKR-17).
7.220. In the accompanying text in section 11.2, MEDT of Ukraine stated that:
During the examination period, the prices of import of the Product to Ukraine were
lower than the sales price and the production cost of like products sold by the
Claimant in the domestic market of Ukraine.
…
These conditions of the import into Ukraine of the Product under the Review
negatively influenced the construction of sale prices for like products of the national
manufacturers in the domestic market of Ukraine and deprived them of the
opportunities to se ll their own Products at the prices proportionate to the increased
production cost, which led to losses by the national producer in 2012 and the [review
investigation period] from the sales of the Product in the domestic market of
Ukraine.397
7.221. The italicized part in the first paragraph of the quoted excerpt shows that MEDT of Ukraine
found that:
a. subject import prices were lower than the prices at which the domestic industry sold the
like product in the Ukrainian market; and
b. subject import prices were lower than the cost of production of the domestic industry.
7.222. The second paragraph of the quoted excerpt shows that MEDT of Ukraine relied, inter alia,
on this finding of lower -priced subject imports to conclude that these conditions negatively
affected the domestic producers' sales prices for the like products, and deprived them of the
opportunity to sell their products at prices proportionate to the increased production cost, which in
turn led to losses. 398 MEDT of Ukraine went on to conclude based on this analysis th at imports

396 Ukraine's response to Panel question No. 42, para. 106.
397 Investigation Report, (Exhibit RUS-10b), p. 33. (emphasis added)
398 Investigation Report, (Exhibit RUS-10b), p. 33.

from Russia, during the time -frame the original anti -dumping measures were applied, adversely
affected the sales price of the domestic industry, leading to losses in their sales in the domestic
Ukrainian market. 399 This shows that the existence of lower-priced subject imports formed the
basis of MEDT of Ukraine's price effects analysis. Therefore, interested parties would have required
access to information regarding the price comparison between subject import prices, domestic
industry prices, and domestic industry costs to understand the factual basi s of its price effects
analysis. If this information was confidential, an adequate non -confidential summary would be
required.
7.223. However, as Russia argues, the disclosure does not contain any information regarding the
level of price -undercutting or price -suppression, or any price comparisons. 400 Specifically,
Table 11.2.1 does not disclose this information. While it does disclose the year -on-year
growth/drop percentage rates, such rates do not provide any in dication of the prices of subject
imports relative to domestic industry prices and costs. 401 Specifically, they do not indicate whether
subject imports were higher or lower than domestic industry prices or costs during the examined
period.402 Thus, such rates were not sufficient to understand the factual basis of MEDT of
Ukraine's conclusion that subject imports were priced lower than domestic industry prices and
costs.
7.224. Ukraine additionally argues that MEDT of Ukraine disclosed the factual basis of its
conclusions regarding the differences between subject import prices and domestic industry costs
through the disclosure of injury margins. MEDT of Ukraine determined these injury margins
pursuant to domestic law requirements , to calculate the amount of anti -dumping duty rate
sufficient to avoid injury to the domestic industry.403
7.225. There are important differences in the comparison figures on domestic industry costs and
subject imports discussed in Table 11.2.1 of the disclosure, and relied upon by MEDT of Ukraine to
make its price effects analysis, and the injury margins. First, unlike Table 11.2.1, these margins
were calculated only for the period of review, and not 2010 -2012. Second, MEDT of Ukraine
calculated, for the period of review, exporter-specific injury margin of 20.51% for one producer,
and 36.03% for the other. It also calculated an injury margin of 36.03% at a country -wide level.
Third, while Table 11.2.1 represent ed the differences between subject imports and domestic
industry costs, Ukraine does not appear to argue that the injury margins disclosed these
differences as such. Instead, the injury margins represent ed the differences between subject
import prices and a target price, which, in turn was based on the domestic industry costs. 404 To
calculate the target price, MEDT of Ukraine added a 10% profit margin to the cost of production.405
7.226. Ukraine takes the view that the knowledge of injury margins would have allowed
interested parties to understand the differences between subject import prices and domestic
industry costs during the period of review. 406 In particular, Ukraine asserts that the disclosure of
injury margins for the period of review would have allowed the investigated Russian producers to
know that their prices were lower than the cost of production of t he domestic industry by 10-20%,

399 Investigation Report, (Exhibit RUS-10b), pp. 33-34.
400 Russia's first written submission, paras. 300 and 347(10).
401 See, e.g. Appellate Body Report, China – GOES; paras. 246-247; and Panel Reports, China – X-Ray
Equipment, para. 7.409; and China – GOES, para. 7.572. In China – GOES, for example, China argued that its
investigating authority disclosed the essential facts regarding its price depression and suppression analysis,
which was found to be based on the low-price of subject imports relative to domestic industry prices, by
disclosing percentage changes in average domestic prices as well as costs over a given period. The panel as
well as the Appellate Body found that the disclosure of such trends was not sufficient to meet the
authorities' obligation to disclose the essential facts regarding its price depression analysis.
402 For example, assume in a hypothetical situation, the domestic industry prices and cost increased or
decreased in the period of review relative to what they were in the year before, but remained higher than the
subject import prices. In such a situation, the growth/drop percentage rates showing changes in domestic
industry prices and costs would not provide any indication on whether the subject import prices were lower or
higher than those prices and costs.
403 Investigation Report, (Exhibit RUS-10b), p. 29. MEDT of Ukraine explained in the disclosure that
pursuant to Ukrainian domestic law, the amount of final anti-dumping duty rate may not exceed the amount of
dumping margin, and may be lower than this margin, if such a lower rate was sufficient to avoid the injury
suffered by the domestic industry. (Investigation Report, (Exhibit RUS-10b), p. 30).
404 Ukraine's response to Panel question No. 56(a)(i), para. 29.
405 Ukraine's response to Panel question No. 56(a)(i), para. 29.
406 Ukraine's response to Panel question No. 56(a)(i), para. 29.

though it does not show how. 407 Further, in Ukraine 's view, once the Russian producers had
knowledge of the injury margin during the period of review, they could assess the difference s
between the subject import prices and cos t of production over 2010 -2012 as well because
Table 11.2.1 provided the growth/ drop percentage rates, representing the year -on-year changes
in subject import imports and domestic industry cost. 408 Finally, Ukraine submits that because the
two exporting Russ ian producers for which injury margins were calculated made up 100% of
Russian exports to Ukraine, the disclosure of injury margins effectively led to a disclosure of the
basis of MEDT of Ukraine 's finding that subject imports were lower -priced than domest ic industry
costs.409 We disagree with Ukraine's arguments.
7.227. Investigating authorities are required to disclose essential facts in a coherent manner.
Thus, interested parties are not expected to engage in back -calculations and inferential reasoning,
or piece together a puzzle to derive the essential facts. To derive, on the basis of these injury
margins, the differences between subject import prices and domestic industry costs for the period
2010-2012 and the period of review based on which MEDT of Ukraine rea ched its conclusions on
price effects, the interested parties would have to do precisely that. We are not convinced that
interested parties should have had to derive the essential facts through such kind of
back-calculations and inferential reasoning when MEDT of Ukraine could just as well have disclosed
these facts in a coherent manner. Therefore, we find that the disclosure of such injury margins
was not sufficient to understand the factual basis of MEDT of Ukraine's price effects analysis.
7.228. Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with Article 6.9
of the Anti-Dumping Agreement because it failed to disclose the essential facts that were required
to understand the factual basis of its conclusions on price effect s in section 11.2 of the
Investigation Report, and which formed one of the bases of its affirmative determination on the
likelihood of injury. We exercise judicial economy on Russia 's claim under Article 6.2 of the
Anti-Dumping Agreement insofar a s it aris es from the same factual basis as this claim under
Article 6.9 of the Anti-Dumping Agreement.
7.8.2.1.1.2 Disclosure of essential facts regarding the economic state of the domestic
Ukrainian industry
7.229. In section 11.3 of the disclosure, MEDT of Ukraine analysed and made findings regarding
the economic state of the domestic industry. In its analysis, it examined various economic factors
and indices (indices) having a bearing on the state of the domestic industry. The section contains
six tables that show the performance o f the domestic industry across these indices for the period
2010, 2011, 2012 , and the period of review (Injury Tables 11.3.1 to 11.3.6). Tables 11.3.1 to
11.3.6 of the Confidential Version of the Investigation Report set out the absolute figures showing
the domestic industry's performance for the period 2010-2012 and the period of review across the
different indices examined in these tables.410 It also provided a growth/drop percentage rate,
which shows, in percentage form, the year -on-year changes in the per formance of the domestic
industry from 2010 up to the period of review. The absolute figures were redacted from the
disclosure, and the growth/drop percentage rates were provided instead. The tables were also
accompanied by narrative text. 411 The domestic in dustry, whose performance these Injury Tables

407 Ukraine's response to Panel question No. 56(a)(i), para. 29.
408 Ukraine's response to Panel question No. 56(a)(i), paras. 29-30.
409 Ukraine's response to Panel question No. 56(b), paras. 31-32.
410 MEDT of Ukraine examined the following indices in the Injury Tables: Table 11.3.1 – (a) sales of
ammonium nitrate by domestic producers in the domestic market, (b) domestic consumption, (c) share of
sales by the domestic producers in domestic consumption; Table 11.3.2 – (a) production volumes of the
product of the national producer, (b) capacity utilization, (c) warehouse stock balance of the national producers
at the end of the period; Table 11.3.3 – (a) average number of employees of domestic producers, (b) average
monthly salaries in companies of the domestic producers, (c) employees engaged in production, sales and
management, (d) employed in production of the product, (e) labour productivity; Table 11.3.4 – (a) domestic
producers' investments; Table 11.3.5 – (a) financial result (profit/loss) of the domestic producers from sales of
the ammonium nitrate in the internal market, (b) profitability on sales of ammonium nitrate by the domestic
producers; Table 11.3.6 – absolute liquidity. (Investigation Report, (Exhibit RUS-10b), pp. 34-36; Confidential
Version of the Investigation Report, (Exhibit UKR-52b (BCI)), pp. 41-43).
411 Investigation Report, (Exhibit RUS-10b), pp. 34-36.

represented, comprised the following domestic producers: JSC Azot OJSC, JSC Rivneazot, CJSC
Severodonetsk Azot Association, and JSC Concern Stirol.412
7.230. Russia contends that the absolute figures redacted from Inju ry Tables 11.3.1 to 11.3.6
constituted the essential facts underlying MEDT of Ukraine 's likelihood-of-injury determination,
which it should have disclosed. 413 Russia asserts that these figures represented aggregate figures
of four different producers, and thus could not have been redacted for reasons of confidentiality.414
Further, Russia submits that MEDT of Ukraine did not comply with Article 6.5 of the Anti-Dumping
Agreement when treating these figures as confidential, as this provision permits confidential
treatment of information only when "good cause" is shown, but no such good cause was shown by
the domestic industry.415
7.231. Ukraine asserts that Russia has not made a prima facie case showing why the data in the
Injury Tables constituted essential facts. 416 Ukraine submits in this regard that the sufficiency of
the disclosure should be assessed taking into account the determinations made by the
investigating authority.417 Ukraine contends that in the underlying reviews, MEDT of Ukraine made
its determinations on the basis of the trends in the various economic indices examined in the
Injury Tables, rather than the absolute figures, and disclosed these trends through the
growth/drop percentage rates.418 Thus, in Ukraine's view, MEDT of Ukraine disclosed the essenti al
facts forming the basis of its likelihood -of-injury determination, specifically its analysis of the state
of the domestic industry.
7.232. Further, Ukraine notes that Article 6.9 does not require the disclosure of essential facts
that benefit from confidential treatment under Article 6.5 of the Anti -Dumping Agreement, and
when essential facts are properly treated as confidential under Article 6.5, disclosure obligations
can be met through the issuance of non -confidential summaries of such essential facts. 419 Ukraine
submits that absolute figures redacted from the Injury Tables were confidential, as they
represented the aggregated figures of producers belonging to a single group of companies,
namely, the Ostchem Group, and these producers sought confidential treatm ent for these
aggregated figures. 420 Ukraine points to a collective submission made by these four domestic
producers (Exhibit UKR-51b) in support of its view. Ukraine notes that in any case Russia did not
make a claim under Article 6.5 of the Anti-Dumping Agreement, and therefore cannot question the
confidential treatment of these absolute figures under this provision. Ukraine asserts that MEDT of
Ukraine met its disclosure obligations through the issuance of non -confidential summaries,
namely, the growth/drop percentage rates.421
7.233. We begin our analysis by noting that Russia has not made any claim under Article 6.5
challenging the confidential treatment of the absolute figures, and thus, we cannot examine
whether MEDT of Ukraine acted inconsistently with this pro vision in treating these absolute figures
as confidential. 422 We also note that Ukraine has asserted that the domestic industry sought
confidential treatment for the absolute figures in the Injury Tables, and except information
pertaining to certain indices in Injury Table 11.3.3423, has substantiated its assertion by pointing to

412 Investigation Report, (Exhibit RUS-10b), p. 7.
414 Russia's response to Panel question No. 39, para. 114.
415 Russia's opening statement at the second meeting of the Panel, paras. 264 and 265-266.
416 Ukraine's first written submission, para. 328.
417 Ukraine's first written submission, para. 339.
418 Ukraine's first written submission, paras. 340-341.
419 Ukraine's first written submission, para. 335.
420 Ukraine's response to Panel question No. 40, para. 102; second written submission, para. 181.
421 Ukraine's first written submission, para. 337.
422 Our decision in this regard is consistent with that taken by other panels, which, in the absence of a
claim under Article 6.5, have declined to examine whether the confidential treatment of essential facts was
justified under this provision. (See, e.g. Panel Report, Korea – Certain Paper, para. 7.327). See also Panel
Report, China – Broiler Products (Article 21.5 – US), para. 7.327.
423 Table 11.3.3 sets out figures pertaining to, inter alia, the following indices: (a) average monthly
salaries in companies of the domestic producers; (b) employees engaged in production, sales and
management; (c) employment in production of the product; and (d) labour productivity. Ukraine, as stated
above, relied on Exhibit UKR-51b, to show that the domestic industry requested confidential treatment for
aggregate figures pertaining to the indices set out in the Injury Tables. But Exhibit UKR-51b does not contain
any request for confidential treatment for figures pertaining to these indices contained in Injury Table 11.3.3.

the relevant evidence on the record. 424 In addition, as clarified by the Appellate Body in its recent
report in Russia – Commercial Vehicles "regardless of whether or not the essential f acts at issue
[are] treated [by the investigating authority] as confidential consistently with the requirements of
Article 6.5, a panel must examine whether any disclosure made – including that made through
non-confidential summaries under Article 6.5.1 – meets the requirements of Article 6.9".425
Therefore, even if we were to assume that MEDT of Ukraine did not treat the essential facts at
issue as confidential consistently with Article 6.5, as is argued by Russia, we would still have to
examine whether any disclosure made, which includes in this case the growth/drop percentage
rates disclosed by MEDT of Ukraine, was sufficient to discharge its obligations under Article 6.9.
Thus, the question before us is not whether MEDT of Ukraine acted inconsistently wit h Article 6.9
in failing to disclose the absolute figures redacted from the Injury Tables, but whether the
disclosure that it made was sufficient to meet the requirements of Article 6.9.
7.234. Ukraine, as noted earlier, makes two main (and alternative) arguments in this regard.
First, it contends that MEDT of Ukraine made its determinations based on trends, rather than
absolute figures, and the growth/drop percentage rates were sufficient to disclose the factual basis
of the determinations actually made. Thus, in Ukraine's view, the growth/drop percentage rates,
not the absolute figures, were the essential facts that needed to be disclosed. Russia does not
respond to this argument. Instead, noting Ukraine 's argument that the absolute figures redacted
from the tables do not amount to essential facts, Russia simply asserts that "exactly those
numbers [i.e. the absolute figures] that are missing precluded the Russian producers from a
proper defence".426
7.235. Second, Ukraine contends that these rates constituted an adequate non-confidential
summary of confidential facts, i.e. the absolute figures. Russia, instead of properly responding to
this argument, continued to assert throughout these proceedings that the failure to disclose the
absolute figures led to a violation of Article 6.9, and insisted that MEDT of Ukraine was required to
disclose these figures to comply with its obligations in this regard. 427 These arguments, however,

424 Ukraine's response to Panel question No. 58(b), para. 34 and Annex I. Exhibit UKR-51b did not
contain any request for confidential treatment for absolute figures pertaining to the following indices:
(a) domestic consumption and share of sales by the domestic industry in Table 11.3.1; or (b) production
volumes of the domestic industry in Table 11.3.2. However, with respect to domestic consumption and share of
sales, we note Ukraine's argument that domestic consumption was calculated as the sum of total import sales
(which was disclosed) and domestic sales of the domestic industry (for which confidential treatment was
requested), and thus disclosure of absolute figures pertaining to these indices would have allowed interested
parties to calculate the domestic sales volume of the domestic industry, thereby compromising its confidential
treatment. Having reviewed the Confidential Version of the Investigation Report and the disclosure, we agree
with Ukraine that, as a matter of fact, the disclosure of absolute figures with respect to domestic consumption
would have compromised the confidential treatment of domestic sales of the domestic industry as interested
parties could simply subtract figures on total volume of import sales from the volume of total domestic
consumption. Similarly, the disclosure of the percentage market share of the domestic industry in domestic
consumption would have also allowed interested parties to calculate the volume of domestic sales of the
domestic industry in absolute terms. With respect to production volumes of the domestic industry, we note that
this information was disclosed in another section of the disclosure (Table 4.1.1). Thus, while we could agree
that this particular information could have been presented in a more organized manner in the disclosure,
having reviewed the narrative part of Table 4.1.1, we consider that interested parties should have been able to
understand that these figures pertained to the domestic production of the domestic industry, and make their
comments on the disclosure on the basis of this information.
425 Appellate Body Report, Russia – Commercial Vehicles, para. 5.189. The panel in that case had found
that if confidential treatment was granted to information that constitutes essential facts without complying with
the requirements of Article 6.5, the obligations under Article 6.9 may not be met through the disclosure of
non-confidential summaries within the meaning of Article 6.5.1 of the Anti-Dumping Agreement. (Appellate
Body Report, Russia – Commercial Vehicles, para. 5.188; Panel Report, Russia – Commercial Vehicles,
paras. 7.268-7.269). The panel accordingly did not consider it necessary to examine the alleged disclosure of
essential facts made through the non-confidential summaries of confidential information. (Appellate Body
Report, Russia – Commercial Vehicles, para. 5.188; Panel Report, Russia – Commercial Vehicles, para. 7.269).
The Appellate Body noted that the panel understood that where essential facts are not properly treated as
confidential in accordance with Article 6.5, this would automatically lead to an inconsistency with Article 6.9.
The Appellate Body found this understanding to be erroneous and reversed the panel's findings in this regard.
(Appellate Body Report, Russia – Commercial Vehicles, para. 5.189).
426 Russia's opening statement at the first meeting of the Panel, para. 152.
427 For example, even as late as in its second written submission, Russia argued that "[w]ithout the
knowledge of concrete figures", the Russian producers were unable to meaningfully address the issue by
commenting on the figures, and that the information in the "blank space", i.e. redacted figures in the Injury
Tables, should be treated as essential facts that MEDT of Ukraine failed to disclose. (Russia's second written

do not fully address Ukraine 's point that the growth/drop percentages rates were adequate
non-confidential summaries of confidential facts that it could not disclose. In response to our
question to Russia as to why the growth/drop percentage rates did not constitute an adequate
non-confidential summary Russia simply stated:
[Russia] is of a strong opinion that the knowledge of the rate of increase/decrease
across the factors is not enough to enable interested parties to properly defend their
interests in accordance with the Anti -Dumping Agreement. These data do not give a
concrete picture as to how the figures relate to each other, nor are they helpful to
assess the state of the domestic industry. Taken alone, they might be indicative for
one factor but together the figures do not add up to the sufficient degree of clarity to
understand whether the l ikelihood-of-injury determination rests on objective
examination of positive evidence.
As an illustrative example, the absence of figures on sales in combination with the
absence of figures on production volumes precludes interested parties from
understanding the ratio between these numbers. In this regard, [Russia] recalls
Appellate Body's understanding that essential facts are not only "those that are salient
for a decision to apply definitive measures", but also "those that are salient for a
contrary outcome."428
7.236. Ukraine contends that this response of Russia is substantially equal to a failure to
respond.429 Ukraine states that instead of providing a concrete response to the Panel 's questions,
Russia argues, essentially, that absolute figures should have bee n provided because such figures
are generally more informative than a rate of increase/decrease, and that Russia cannot calculate
the ratio of sales to production. 430 Ukraine submits that while absolute figures may well be more
informative, to the extent they could not be disclosed on grounds of confidentiality, Russia does
not present any argument as to why such rates could not constitute sufficient disclosure of the
confidential figures.431 We agree.
7.237. We note for instance that Russia argues that the absence of figures on sales and
production volumes precluded interested parties from understanding the ratio between these
numbers. However, Russia does not at all substantia te why such information was necessary to
understand the factual basis of MEDT of Ukraine 's determinations. It also does not substantiate
why such information was salient for a decision to apply definitive measures, or salient to a
contrary outcome. Similarly, in the opening statement that it presented at the second meeting of
the Panel, Russia asserted that the non -confidential summaries provided in the Injury Tables were
not consistent with Article 6.5.1 of the Anti -Dumping Agreement because these Tables did not
show how the information across the different tables were related, in particular, the information on
sales (Table 11.3.1) and that on production volumes (Table 11.3.2).432 Russia, we note, has not
pursued any claim under Article 6.5.1 in these proceed ings. In addition, Russia 's statement is
extremely unclear. It is not clear to us, for instance, what kind of relation Russia expects between
the information in the different Injury Tables for the growth/drop percentage rates to constitute an
adequate non-confidential summary, and why.
7.238. We cannot make the case for Russia by considering, without adequate arguments from it,
why: (a) the growth/ drop percentage rates were not sufficient to meet MEDT of
Ukraine's disclosure obligations though Ukraine contends that taking into account the nature of the
determination made by MEDT of Ukraine (i.e. a determination based on trends, rather than
absolute figures) the growth/ drop percentages were sufficient to meet these disclosure
obligations; and (b) the growth/drop per centage rates did not constitute an adequate

submission, paras. 683-684). We note that these arguments were made under a subheading of the written
submission titled "[t]he information provided does not constitute an effective non-confidential summary". But
the arguments presented under this subheading focus on why MEDT of Ukraine needed to disclose absolute
figures to comply with its obligation under Article 6.9. (Russia's second written submission, paras. 681-684).
428 Russia's response to Panel question No. 39(b), paras. 118-119. See also second written submission,
para. 683.
429 Ukraine's second written submission, para. 188.
430 Ukraine's second written submission, para. 188.
431 Ukraine's second written submission, para. 189.
432 See also Russia's second written submission, para. 683.

non-confidential summary, which was sufficient to understand the factual basis of MEDT of
Ukraine's determinations. That was the task for Russia, which it has failed to fulfil.
7.239. Based on the foregoing, we find th at Russia has not established that MEDT of Ukraine
acted inconsistently with Article 6.9 of the Anti-Dumping Agreement with respect to the disclosure
of the essential facts underlying its analysis of the state of the domestic industry. We thus reject
Russia's corresponding claim under Article 6.2 of the Anti-Dumping Agreement as well.
7.8.2.1.2 Disclosure of essential facts forming the basis of the dumping determinations
7.240. Russia contends that MEDT of Ukraine failed to disclose the essential facts underlying its
dumping determinations, particularly the relevant data and formula applied in making the dumping
calculations, and the precise figures used. 433 Russia submits that the disclosure does not set out
the calculation methodology, whether in the form o f worksheets and computer output or in details
of the data and formulas applied. 434 Ukraine does not deny that the precise figures or the data
underlying MEDT of Ukraine 's dumping determinations, specifically, constructed normal value,
export price, and adjustments, were not disclosed to the investigated Russian producers. Instead,
Ukraine takes the view that this data was already in the possession of the investigated producers,
and MEDT of Ukraine provided sufficient details in the narrative part of the disclosure to ena ble
these producers to know which specific data in their possession was used to calculate their
dumping margins, and how.435
7.241. We note that Russia 's claim concerns the disclosure of the precise figures, data , and
formulas used for dumping determinations. In the underlying reviews MEDT of Ukraine calculated
separate dumping margins for the Russian producers EuroChem and JSC Dorogobuzh.436 MEDT of
Ukraine did not provide in the disclosure the actual figures showing the constructed normal value,
export price, and adjustments.437 The actual figures were instead replaced with an empty bracket.
Ukraine also does not deny that MEDT of Ukraine did not disclose the data underlying its
calculations of constructed normal value, export price , and adjustments to the interested p arties,
though it contends that this data was already in the possession of the concerned producers. With
respect to the formulas, the specific formulas that Russia alleges were not disclosed are certain
formulas applied by MEDT of Ukraine in calculating th e cost of production of the product under
consideration, and subsequently used in construct ing normal value. Specifically, MEDT of Ukraine
set out in the Confidential Version of the Investigation Report certain formulas used for calculating
the cost of ammonia and nitric acid, but the disclosure does not refer to these formulas.438
7.242. Ukraine does not dispute that the figures, data, and formulas that MEDT of Ukraine did not
disclose were essential facts. Instead, its arguments are based on the form in which such facts
need to be disclosed . Thus, the question before us is whether MEDT of Ukraine disclosed, in a
coherent manner, the facts necessary to understand the factual basis of its dumping
determinations.
7.243. In addressing this question, we recall, as stated i n paragraph 7.207 above, that the
disclosure should allow the interested parties to comment on the completeness and correctness of
the conclusions the investigating authorities reached from the facts being considered, to provide
additional information or correct perceived errors, and to comment or make arguments as to the
proper interpretation of those facts.439 Moreover, the disclosure must allow the interested party to
clearly understand what data the investigating authority has used, and how, to determine the
dumping margin.440 We consider in this regard Ukraine 's argument that though MEDT of Ukraine
did not disclose the precise figures, it did provide sufficient details in the disclosure to enable these

433 Russia's first written submission, paras. 347(10), 304, and 308-310.
434 Russia's first written submission, para. 310.
435 Ukraine's first written submission, paras. 349, 355, and 358.
436 Ukraine's first written submission, para. 342.
437 Investigation Report, (Exhibit RUS-10b), pp. 19-21 and 24-28. It is not argued that company-specific
disclosures were provided to the investigated Russian producers disclosing these details. Thus, this report is
the only document relevant to our review.
438 Investigation Report, (Exhibit RUS-10b), pp. 24-27; Confidential version of the Investigation Report,
(Exhibit UKR-52b (BCI)), pp. 31-34.
439 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131; China –
GOES, fn 390; and Panel Report, EC – Salmon (Norway), para. 7.805.
440 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131.

producers to know which specific data in their possession was used to calculate their dumping
margins, and how. The issue before us is similar to that discussed by the panel and the Appellate
Body in China – HP-SSST (Japan) / China – HP-SSST (EU).
7.244. In that dispute, noting that the basic data underlying dumping determinations constitute s
essential facts, the panel focused on the manner in which these facts were disclosed. 441 The panel
found that the investigating authority had described, in the narrative part of its disclosure, the
sales data under consideration, the basis for determining normal value and export price, and the
adjustments made thereto. 442 Moreover, the investig ating authority had specified when it used
data or made adjustments requested by the exporters, and in addition, disclosed actual data when
it departed from the data submitted by the exporters. 443 The panel found that the complainants
had not shown why these narrative descriptions were not sufficient to meet the investigating
authority's obligations under Article 6.9.444
7.245. The Appellate Body reversed the panel 's findings. It found that such a disclosure was not
sufficient to meet an investigating authority 's obligation under Article 6.9 of the
Anti-Dumping Agreement.445 In particular, it found that the mere fact that an investigating
authority refers in its disclosure to data that is in the possession of an interested party does not
mean that the investigating authority has:
a. disclosed the factual basis for its determination in a manner that enables interested
parties to comment on the completeness and correctness of the conclusions the
investigating authority reached from the facts being considered, and to comment on or
make arguments as to the proper interpretation of those facts446; and
b. disclosed the essential facts that are salient for a decision to apply definitive measures,
as well as those that are salient for a contrary outcome, in a coherent way, so as to
permit an interested party to understand the basis for the decision whether or not to
apply definitive measures, and to defend its interests.447
7.246. Ukraine seeks to distinguish these findings by arguing that the dispute in China – HP-SSST
(Japan) / China – HP-SSST (EU) concerned a situation where the investigated producers submitted
various data, and it was not clear which data was selected by the investigating authority to
calculate the dumping margins. 448 Ukraine submits that by contrast in the present case MEDT of
Ukraine specifically identified the data used to determine the dumping margins in the narrative
part of the disclosure.449
7.247. Contrary to Ukraine 's arguments, however, the Appellate Body 's finding in China –
HP-SSST (Japan) / China – HP-SSST (EU) is not limited to cases where investigating authorit ies
select some data, from amongst various data furnished by the investigated producers. The
Appellate Body also raised other concerns. In particular, it said that such a type of disclosure
would not allow the investigated producers to correct clerical and mathematical errors in dumping
margin calculations or confirm that the investigating authority determined the dumping margin in
the manner it purported to do. 450 Moreover, it stated that mere references to the data in
possession of the investigated producer in the narrative part of a disclosure would not result in the
disclosure of such essential facts to interested parties other than this producer. 451 Thus, we do not
agree with Ukraine 's understanding of the scope of the A ppellate Body 's findings in China –
HP-SSST (Japan) / China – HP-SSST (EU).
7.248. Instead, we find the concerns raised by the Appellate Body to be fully applicable to the
situation before us. In particular, we do not consider that in the absence of precise figur es or the

441 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.235.
442 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.236.
443 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.236.
444 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.236.
445 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), paras. 5.131 and 5.133.
446 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.131.
447 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.133.
448 Ukraine's first written submission, para. 348.
449 Ukraine's first written submission, paras. 349, 355, and 358.
450 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), fn 323.
451 Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), fn 325.

underlying data used for constructed normal value, export price , and adjustments, interested
parties would be able to comment on the accuracy of the calculations made by MEDT of Ukraine or
confirm that it actually did what it purported to do. We also find that MEDT of Ukraine 's failure to
disclose certain formulas used in calculating the cost of production deprived the interested parties
of an opportunity to understand the basis for this calculation and comment on it.
7.249. Based on the foregoing, we fi nd that MEDT of Ukraine acted inconsistently with Article 6.9
of the Anti -Dumping Agreement because it failed to disclose in a coherent manner the facts
necessary to understand the factual basis of its dumping determinations, including the precise
figures and data underlying its calculation of constructed normal value, export price , and
adjustments thereto. Moreover, insofar as MEDT of Ukraine failed to disclose certain formulas that
it used to calculate the cost of production, and constructed normal value, it also acted
inconsistently with Article 6.9 of the Anti -Dumping Agreement. We exercise judicial economy on
Russia's claim under Article 6.2 of the Anti-Dumping Agreement insofar as it arises from the same
factual basis as this claim under Article 6.9.
7.8.2.2 Sufficiency of time given to respond to disclosure
7.250. MEDT of Ukraine gave the interested parties two days to comment on the disclosure.
Russia considers this to be an "outrageous violation" of Article 6.9, which requires investigating
authorities to give int erested parties "sufficient time" to comment on the disclosed essential
facts.452 Russia states that taking into account the complexity of the issues discussed in the
disclosure, the time of two days was insufficient. 453 Further, according to Russia, MEDT of
Ukraine's decision to reject EuroChem's comments on the disclosure on the ground that they were
filed after business hours on the due date was inconsistent with Article 6.9.454 Ukraine considers
that the time of two days was sufficient in this case, and notes that two of the three Russian
producers filed comments on the disclosure. 455 With respect to EuroChem, Ukraine notes that it
filed its comments on the disclosure after working hours on the due date and thus MEDT of
Ukraine could not accept them.456
7.251. Article 6.9 stipulates that the disclosure of essential facts should take place in sufficient
time for the parties to defend their interests. Thus, while Article 6.9 does not prescribe any
particular time-frame, it does suggest that the time should be sufficient for the parties to defend
their interests. We consider that the sufficiency of the time that investigating authorities give to
parties to comment on the disclosure has to be assessed on a case -by-case basis considering,
inter alia, the nature and complexity of the issues to which the parties have to respond in order to
defend their interest.
7.252. Russia notes in this regard that the disclosure covered several issues regarding the product
under consideration, export price and normal value determinations, dumping mar gin calculations
as well as analyses on the injury suffered by the domestic industry.457 Russia states that interested
parties needed time to prepare a proper response regarding each part of these analyses. 458
Moreover, Russia observes that the investigated Russian producers became aware of MEDT of
Ukraine's proposed rejection of the reported gas cost only when they received the disclosure, and
would have needed time to make comments in this regard. 459 Ukraine does not deny that the
investigated Russian producers became aware of MEDT of Ukraine 's rejection of the reported gas
cost only when the disclosure was issued. 460 But Ukraine contends that the investigated Russian
producers were on notice prior to the issuance of the disclosure that MEDT of Ukraine would reject
their reported gas cost for two reasons. First, these producers were aware that the domestic
industry had requested MEDT of Ukraine to reject this reported gas cost. 461 Second, an
investigating authority in another jurisdiction that initiate d anti-dumping investigations on imports

452 Russia's first written submission, paras. 321-324; second written submission, paras. 695-697 and
699.
453 Russia's second written submission, paras. 698-699.
454 Russia's second written submission, para. 707.
455 Ukraine's first written submission, paras. 362 and 367.
456 Ukraine's first written submission, para. 368.
457 Russia's opening statement at the second meeting of the Panel, para. 271.
458 Russia's opening statement at the second meeting of the Panel, para. 271.
459 Russia's first written submission, para. 321
460 Ukraine's response to Panel question No. 41, para. 104.
461 Ukraine's first written submission, para. 364.

of ammonium nitrate, and in which the same producers had participated, had done the same. 462
Ukraine also asserts that the disclosure was quite short, and thus two days was sufficient for the
parties to respond to it.
7.253. We agree with Russia that "two days" was insufficient time for the parties to comment on
this disclosure, and thus not sufficient to defend their interests before the Ukrainian authorities.
Besides the broad range of issues to which the investigated Russi an producers had to respond, the
disclosure was the first time that the investigated Russian producers were made aware of the
factual basis of MEDT of Ukraine's dumping determinations, including the facts based on which the
surrogate price of gas (rather t han the reported gas cost) would be ascertained.463 This added to
the complexity of the issues to which the investigated Russian producers had to respond.
7.254. We disagree in this regard with Ukraine's argument that the investigated Russian
producers were on notice that MEDT of Ukraine would reject the reported gas cost because that is
what the domestic industry had requested, and that is what certain other anti -dumping authorities
had done. The purpose of a disclosure under Article 6.9 is to disclose the essential facts that form
the basis of an investigating authority 's decision to apply definitive measures in sufficient time for
the parties to defend their interests . Investigating authorities cannot forego this obligation simply
because their decision to impose definitive measures is based on grounds that are similar or
identical to that taken by investigating authorities in other jurisdictions, or based on a request
made by the domestic industry. 464 Moreover, timely disclosure would also have been necessary to
allow the interested parties to comment on the appropriateness or correctness of the facts that
MEDT of Ukraine decided to use to calculate the surrogate price of gas, which could not have been
communicated to them earlier than the disclosure. In any case, our findings are based on a review
of the disclosure as a whole, and not just the disclosure regarding the gas prices used for normal
value construction.
7.255. Based on the foregoing, we find that MEDT of Ukraine acted inconsistently with Article 6.9
of the Anti -Dumping Agreement by failing to give the parties "sufficient time" to defend their
interests.465
7.9 Consequential claims
7.256. Russia contends that as a consequence of violations under the Anti -Dumping Agreement,
the Ukrainian authoritie s acted inconsistently with Articles 1 and 18.1 of the Anti -Dumping
Agreement as well as Article VI of the GATT 1994.466 Ukraine asks us to reject these claims.467
7.257. With respect to Russia 's claims under Articles 1 and 18.1 of the Anti -Dumping Agreement,
we note that these claims are consequential to findings of violations under other provisions of the
Anti-Dumping Agreement. Having found substantive violations under various provisions of the
Anti-Dumping Agreement, we do not find it necessary to address Russia 's consequential claims in

462 Ukraine's first written submission, para. 365.
463 Ukraine's response to Panel question No. 41, para. 104.
464 We note that Ukraine contends that in EU – Footwear (China), the investigating authority gave the
interested parties only five days to comment on the disclosure, and this time was considered by the panel to be
"sufficient" within the meaning of Article 6.9. (Ukraine's first written submission, para. 361). We do not share
Ukraine's understanding of the panel report in EU – Footwear (China). In that case, the investigating authority
first issued a general disclosure, and subsequently sent an additional disclosure document, which reflected
revisions made by the authority in response to comments received on the general disclosure. The authority
gave interested parties five days to respond to this additional disclosure document. It is the time given to the
interested parties to respond to this more limited additional disclosure document that was challenged in EU –
Footwear (China). (Panel Report, EU – Footwear (China), para. 7.833). Unlike in EU – Footwear (China),
MEDT of Ukraine issued only one disclosure, and gave interested parties only two days to respond to that
disclosure. Thus, we find Ukraine's reliance on EU – Footwear (China) to be inapposite.
465 We note Russia's argument that MEDT of Ukraine's refusal to accept comments from EuroChem on
the due date for submissions also led to a violation of Article 6.9. (Russia's opening statement at the second
meeting of the Panel, para. 281). We have already found that the time given to the interested parties to
comment on the disclosure was not sufficient for them to defend their interests. We thus need not separately
address Russia's arguments challenging MEDT of Ukraine's decision to not accept EuroChem's comments on
the disclosure.
466 Russia's first written submission, paras. 345 and 347(13).
467 Ukraine's first written submission, paras. 25-26.

this regard to secure a positive resolution of this dispute. Th us, we exercise judicial economy with
respect to Russia's claims under Articles 1 and 18.1 of the Anti-Dumping Agreement.
7.258. With respect to Russia 's claims under Article VI of the GATT 1994, we note that Russia
simply presented a claim under Article VI, without identifying either in its panel request or in its
written submissions the specific paragraphs or the specific obligations under these paragraphs that
it seeks to challenge.468 This was Russia's task, which it has failed to undertake. 469 Therefore, we
reject Russia's claim under Article VI of the GATT 1994.
7.259. Based on the foregoing, we exercise judicial economy on Russia 's claims under Articles 1
and 18.1 of the Anti-Dumping Agreement, but reject its claim under Article VI of the GATT 1994.
8 FINDINGS AND RECOMMENDATION
8.1. For the reasons set forth in this Report, with respect to Ukraine 's request for a preliminary
ruling on our terms of reference, we find that:
a. ICIT's 2008 amend ed decision and the 2010 amendment are within our terms of
reference;
b. the claims identified in the following item numbers of Russia 's panel request are within
our terms of reference:
i. item number 1 of the panel request with respect to the claims under Articles 5.8,
11.1, 11.2, and 11.3 of the Anti-Dumping Agreement;
ii. item number 4 of the panel request with respect to claims under Article 6.8 and
paragraphs 3, 5, and 6 of Annex II of the Anti-Dumping Agreement;
iii. item number 17 of the panel request with respect to claims under Articles 11.1,
11.2, and 11.3 of the Anti -Dumping Agreement insofar as they are based on the
view that the Ukrainian authorities determined and relied on injury which was not
established in accordance with Articles 3.1, 3.2, 3.4 , and 3. 5 of the Anti -Dumping
Agreement;
c. the claims identified in item number 7 of Russia 's panel request under Articles 12.2 and
12.2.2 of the Anti-Dumping Agreement fall outside our terms of reference because they
did not reasonably evolve from the legal basis set out in the consultation request, and
thus we do not consider these claims; and
d. Ukraine's request for a ruling that the alleged claims identified in item number 17 of the
panel request under Articles 3.1 and 3.4 of the Anti-Dumping Agreement fall outside our
terms of reference is moot.
8.2. For the reasons set forth in this Report, with respect to Russia 's claims concerning the
Ukrainian authorities ' dumping and likelihood -of-dumping determinations in the underlying
reviews, we find that:
a. the Ukrainian authorities acted inconsistently with Article 2.2.1.1 of the Anti -Dumping
Agreement in rejecting the reported gas cost of the investigated Russian producers
without providing an adequate basis under the second condition of Article 2.2.1.1;

468 Russia's panel request, item number 19; first written submission, paras. 341, 344-346, and 347(13).
469 See, e.g. Panel Report, US – OCTG (Korea), para. 7.337. The panel in US – OCTG (Korea) reached a
similar conclusion with respect to a claim of consequential violation under Article VI. We note that some panels
have made findings of consequential violations under Article VI without identifying the specific obligation under
this provision which was violated. (See, e.g. Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU),
para. 7.336; and Canada – Welded Pipe, para. 7.223). However, we do not consider this approach is warranted
in the present case.

b. the Ukrainian authorities acted inconsistently with Article 2.2 of the Anti -Dumping
Agreement in using a cost for gas that did not reflect the cost of the product under
consideration "in the country of origin", i.e. Russia;
c. the Ukrainian authoriti es acted inconsistently with Article 2.2.1 of the Anti -Dumping
Agreement by relying on costs that were calculated inconsistently with Article 2.2.1.1 of
the Anti-Dumping Agreement to make their determinations under Article 2.2.1;
d. the Ukrainian authorities acted inconsistently with Articles 11.2 and 11.3 of the
Anti-Dumping Agreement in relying on dumping margins calculated inconsistently with
Articles 2.2, 2.2.1, and 2.2.1.1 of the Anti -Dumping Agreement to make their
likelihood-of-dumping determinations;
e. Russia has failed to establish that the Ukrainian authorities acted inconsistently with
Article 2.1 of the Anti -Dumping Agreement in connection with the Ukrainian
authorities' decision to not use the domestic sales price of the like product in Russia to
calculate normal value of the investigated Russian producers;
f. we do not need to address , and exercise judicial economy on , Russia's claim under
Article 2.2 in connection with the Ukrainian authorities' rejection of the reported gas cost
of the investigated Russian producers;
g. we do not need to address, and exercise judicial economy on, Russia's claim under
Article 2.2.1.1 of the Anti -Dumping Agreement in connection with the Ukrainian
authorities' use of the export price of gas from Russia at the German border to calculate
the cost of production of the investigated Russian producers;
h. we do not need to address , and exercise judicial economy on , Russia's claim under
Article 2.4 of the Anti -Dumping Agreement in connection with the Ukrainian
authorities' alleged failure to make a fair comparison between the export price and the
constructed normal value; and
i. we do not need to address , and exercise judicial economy on , Russia's claim under
Article 11.1 of the Anti-Dumping Agreement.
8.3. For the reason s set forth in this report, with respect to Russia 's claims concerning the
non-termination of the investigation against EuroChem, we find that:
a. the Ukrainian authorities acted inconsistently with Article 5.8 of the Anti -Dumping
Agreement by:
i. failing to exc lude EuroChem from the scope of the original anti -dumping measures,
specifically the 2008 amended decision;
ii. imposing a 0% anti -dumping duty on EuroChem through the 2010 amendment,
instead of excluding it from the scope of the anti-dumping duty order;
iii. including EuroChem within the scope of the review determinations, and imposing
anti-dumping duties on it through the 2014 extension decision;
b. we do not need to address , and exercise judicial economy on , Russia's claims under
Articles 11.1, 11.2, and 11.3 of the Anti-Dumping Agreement.
8.4. For the reasons set forth in this Report, we find that Russia has not established that the
Ukrainian authorities acted inconsistently with Articles 11.1, 11.2, and 11.3 of the Anti -Dumping
Agreement in connection wi th the Ukrainian authorities ' alleged determination of and reliance on
injury not established in accordance with Articles 3.1 and 3.4 of the Anti -Dumping Agreement in
making their likelihood-of-injury determination.
8.5. For the reasons set forth in this Report , with respect to Russia 's claims challenging the
Ukrainian authorities' conduct in the underlying reviews, we find that:

a. the Ukrainian authorities acted inconsistently with Article 6.9 of the Anti -Dumping
Agreement in failing to disclose the essential facts underlying:
i. MEDT of Ukraine's price effects analysis, which formed part of the determinations on
likelihood of injury;
ii. MEDT of Ukraine's dumping determinations;
b. the Ukrainian authorities acted inconsistently with Article 6.9 of the Anti -Dumping
Agreement in failing to give interested parties sufficient time to comment on MEDT of
Ukraine's disclosure;
c. Russia has failed to establish that the Ukrainian authorities acted inconsistently with
Article 6.8, and paragraphs 3, 5, and 6 of Annex II of the Anti -Dumping Agreement in
connection with alleged procedural violations by the Ukrainian authorities;
d. Russia has failed to establish that the Ukrainian authorities acted inconsistently with
Article 6.9 of the Anti-Dumping Agreement in connection with the disclo sure of essential
facts underlying its analysis of the economic state of the domestic industry , as part of
the likelihood-of-injury determination;
e. Russia has failed to establish that the Ukrainian authorities acted inconsistently with
Article 6.2 of the Anti-Dumping Agreement in connection with the disclosure of essential
facts underlying its analysis of the economic state of the domestic industry , as part of
the likelihood-of-injury determination; and
f. we do not need to address , and exercise judicial econom y on, Russia's claims that the
Ukrainian authorities acted inconsistently with Article 6.2 of the Anti -Dumping
Agreement in failing to disclose the essential facts underlying:
i. MEDT of Ukraine's price effects analysis, which formed part of its determination s on
likelihood of injury;
ii. MEDT of Ukraine's dumping determinations.
8.6. For the reasons set forth in this Report, with respect to the Russia 's claims of consequential
violations, we find that:
a. Russia has failed to establish that the Ukrainian authorities acte d inconsistently with
Article VI of the GATT 1994 as a consequence of alleged violations under the
Anti-Dumping Agreement; and
b. we do not need to address, and exercise judicial economy on , Russia's claims under
Articles 1 and 18.1 of the Anti-Dumping Agreement.
8.7. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are
inconsistent with certain provisions of the Anti -Dumping Agreement, they have nullified or
impaired benefits accruing to Russia under this agreement.
8.8. Pursuant to Article 19.1 of the DSU, we recommend that Ukraine bring its measures into
conformity with its obligations under the Anti-Dumping Agreement.