CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN ORIENTED FLAT-ROLLED ELECTRICAL STEEL FROM THE UNITED STATES
Document: Report of the Appellate Body
Date: 18 October 2012
Document codes: WT/DS414/AB/R
Complainant: U.S.
Respondent: China
Third parties: Argentina, EU, Honduras, India, Japan, South Korea, Saudi Arabia, Vietnam, Russia
Dispute stage: Implementation & Compliance
Agreements cited: Art. VI  GATT 1994Art. 1  Anti-dumpingArt. 10, 11.2, 11.3, 12.7, 12.8, 22.3, 12.7, 12.8, 22.3, 22.5, 15.1, 15.2  Subsidies and Countervailing Measures (SCM)Art. 6.9, 12.2.2, 6.8, Annex II, 6.4, 6.5.1, 3.1, 3.2  Anti-dumping

CHINA – COUNTERVAILING AND ANTI-DUMPING DUTIES ON GRAIN ORIENTED
FLAT-ROLLED ELECTRICAL STEEL FROM THE UNITED STATES

AB-2012-4

Report of the Appellate Body

APPELLATE BODY

China, Appellant
United States, Appellee

Argentina, Third Participant
European Union, Third Participant
Honduras, Third Participant
India, Third Participant
Japan, Third Participant
Korea, Third Participant
Saudi Arabia, Third Participant
Viet Nam, Third Participant

 AB-2012-4

 Present:

 Unterhalter, Presiding Member
 Van den Bossche, Member
 Zhang, Member

I. Introduction
1. China appeals certain issues of law and legal in terpretations developed in the Panel Report,

1 (the "Panel Report"). The Panel was established on 25 March 2011 to
consider a complaint by the United States con cerning China's measures imposing anti-dumping and
countervailing duties on grain oriented flat-rolled electrical steel ("GOES") from the United States, as
set forth in the Ministry of Commerce of the People's Republic of China ("MOFCOM")
Announcement No. 21 of 10 April 2010 and its annexes2 (the "Final Determination").
2. The anti-dumping and countervailing duty investigations at issue in this dispute were initiated
as a result of an application filed by two Chin ese steel producers, namely, Wuhan Iron and Steel
(Group) Corporation ("WISCO") and Baosteel Group Corporation ("Baosteel"). The applicants
alleged that 27 US federal and state laws provide d countervailable subsidies to producers of GOES in
the United States.3 Further, the applicants alleged that dumped and subsidized imports of GOES from

1WT/DS414/R, 15 June 2012.
2MOFCOM Announcement No. 21 [2010] (10 April 2010) and its annexes (English translation as
contained in Panel Exhibit CHN-16). We note that the United States also submitted an English translation of
MOFCOM's final determination as part of Panel Exhibit US-28. However, throughout its Report, the Panel
cited the exhibit submitted by China (Panel Exhibit CH N-16) when referring to the Final Determination.
Similarly, in this Report, we refer to the English translation as contained in Panel Exhibit CHN-16.
3Panel Report, para. 2.2. On 20 July 2009, the applicants filed an additional application challenging
alleged subsidies provided under a further 10 US federal and state laws. (Ibid.)

the United States, and dumped imports of GOES from Russia, caused, and threatened to cause, injury
to the Chinese domestic industry. MOFCOM in itiated the anti-dumping and countervailing duty
investigations at issue on 1 June 2009 with respect to imports of GOES from the United States.
4 Two
exporters/producers of GOES in the United Stat es—AK Steel Corporation ("AK Steel") and ATI
Allegheny Ludlum Corporation ("ATI")—registered as respondents in both investigations. The
period of anti-dumping and countervailing duty inves tigations was from 1 March 2008 to 28 February
2009, and the period of injury investigation was from 1 January 2006 to 31 March 2009.5
3. On 10 April 2010, MOFCOM issued its Fi nal Determination. MOFCOM calculated
ad valorem subsidy rates of 11.7% for AK Steel, 12% fo r ATI, and 44.6% for "all others", namely,
US exporters/producers that did not register for the investigations and were unknown to MOFCOM.
MOFCOM calculated a dumping margin of 7.8% for AK Steel, 19.9% for ATI, and 64.8% for "all
others".6 Moreover, MOFCOM conducted a cumulative assessment of injury and causation, and
collectively took into account GOES imports from both Russia and the United States. 7 In the course
of its injury analysis, "MOFCOM found that the ef fect of subject imports was to 'significantly
depress[] and suppress[] the price of domestic like products.'" 8 MOFCOM also assessed relevant
economic indicators relating to the state of the Chinese domestic industry. On the basis of its
examination, MOFCOM found that there was a causal link between, on the one hand, the dumped
imports of GOES from Russia and the dumped and subsidized imports of GOES from the
United States, and, on the other hand, the mate rial injury suffered by the domestic industry.
9 On this
basis, MOFCOM imposed anti-dumping and countervailing duties on GOES from the United States at
the above-mentioned rates.10
4. Before the Panel, the United States challenged various aspects of MOFCOM's investigations
and Final Determination. Specifically, the United States challenged MOFCOM's decision to initiate
the countervailing duty investigation with respect to 11 US federal and state programmes under

4Panel Report, para. 2.2. The countervailing duty in vestigation was initiated with respect to 28 of the
37 US federal and state laws referred to in the application and additional application. On 1 June 2009,
MOFCOM also initiated an anti-dumping investigation on imports of GOES from Russia. (Ibid.)
5United States' first written submission to the Pane l, para. 17 (referring to MOFCOM Initiation of
Anti-subsidy Investigation on Imported Grain Oriented Flat-rolled Electrical Steel Originating in the US, Public
Notice [2009] No. 41 (1 June 2009) (Panel Exhibit US-6 (English version)), p. 2; and MOFCOM Initiation of
Antidumping Investigation on Imported Grain Oriented Flat-rolled Electrical Steel Originating in the US and
Russia, Public Notice [2009] No. 40 (1 June 2009) (Panel Exhibit US-7 (English version)), p. 2).
6Panel Report, paras. 2.5, 7.370, and 7.371.
7Panel Report, para. 7.475.
8Panel Report, para. 7.475 (quoting Final Determination (Panel Exhibit CHN-16 (English version)),
p. 59). The Panel found that MOFCOM did not make a finding of significant price undercutting. ( Ibid.,
para. 7.553)
9Panel Report, paras. 2.5 and 7.598.
10Pursuant to the Final Determination, MOFCOM also imposed anti-dumping duties on imports of
GOES from Russia. (Final Determination (Panel Exhibit CH N-16 (English version)), p. 3) These duties are not
at issue in this dispute.

Articles 11.2 and 11.3 of the Agreement on Subsidies and Countervailing Measures (the
"SCM Agreement").11 Furthermore, the United States challenged MOFCOM's failure to require the
applicants to provide adequate non-confiden tial summaries of confid ential information under
Article 6.5.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (the " Anti-Dumping Agreement") and Article 12.4.1 of the SCM Agreement.12 The
United States also challenged MOFCOM's use of "fact s available" to calculate the subsidy rates for
the two known US respondents, as well as the calculation of the "all others" anti-dumping and
countervailing duty rates, under Article 6.8 of , and paragraph 1 of Annex II to, the Anti-Dumping
Agreement, Article VI:2 of the General Agreement on Ta riffs and Trade 1994 (the "GATT 1994"),
and Article 12.7 of the SCM Agreement.13 In addition, the United States challenged MOFCOM's
findings of price effects under Articles 3.1 and 3.2 of the Anti-Dumping Agreement and Articles 15.1
and 15.2 of the SCM Agreement14, as well as MOFCOM's causation analysis under Articles 3.1
and 3.5 of the Anti-Dumping Agreement and Articles 15.1 and 15.5 of the SCM Agreement.15 Finally,
the United States challenged as insufficient MO FCOM's disclosure of the essential facts under
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement 16, as well as
MOFCOM's public notice of its preliminary and fi nal determinations under Article 12.2.2 of the
Anti-Dumping Agreement and Articles 22.3 and 22.5 of the SCM Agreement.17
5. The Panel Report was circulated to Members of the World Trade Organization (the "WTO")
on 15 June 2012. In its Report, the Panel found that China acted inconsistently with:
(a) Article 11.3 of the SCM Agreement , on the basis that MOFCOM initiated
countervailing duty investigations into each of the 11 programmes challenged before
the Panel by the United States, without sufficient evidence to justify this;
(b) Article 12.4.1 of the SCM Agreement and Article 6.5.1 of the Anti-Dumping
Agreement, on the basis that MOFCOM did not require the applicants to furnish
non-confidential summaries in sufficient de tail to permit a reasonable understanding
of the substance of the information submitted in confidence;

11Panel Report, para. 7.11.
12Panel Report, para. 7.151.
13Panel Report, paras. 7.227, 7.372, 7.428, and 7.436.
14Panel Report, para. 7.476.
15Panel Report, para. 7.593.
16Panel Report, paras. 7.398, 7.456, 7.557, and 7.641.
17Panel Report, paras. 7.315, 7.342, 7.415, 7.469, 7.578, and 7.664.

(c) Article 12.7 of the SCM Agreement, in connection with MOFCOM's use of a 100%
utilization rate in calculating the subsid y rates for the two known respondents under
certain procurement programmes;
(d) Articles 6.8, 6.9, 12.2, 12.2.2 of, and paragraph 1 of Annex II to, the Anti-Dumping
Agreement, in connection with the resort to facts available to calculate the "all others"
dumping margin for unknown exporters and due to deficiencies in the related
essential facts disclosure and public notice and explanation;
(e) Articles 12.7, 12.8, 22.3, and 22.5 of the SCM Agreement , in connection with the
resort to facts available to calculate the "all others" subsidy rate for unknown
exporters and due to deficiencies in the re lated essential facts disclosure and public
notice and explanation;
(f) Articles 15.1, 15.2, 12.8, and 22.5 of the SCM Agreement and Articles 3.1, 3.2, 6.9,
and 12.2.2 of the Anti-Dumping Agreement, in connection with MOFCOM's findings
regarding the price effects of subject impor ts and due to deficiencies in the related
essential facts disclosure and public notice and explanation;
(g) Articles 15.1, 15.5, 12.8, and 22.5 of the SCM Agreement and Articles 3.1, 3.5, 6.9,
and 12.2.2 of the Anti-Dumping Agreement, in connection with MOFCOM's finding
that subject imports caused material injury to the domestic industry and due to
deficiencies in the related essential facts disclosure and public notice and explanation;
and
(h) Article 10 of the SCM Agreement and Article 1 of the Anti-Dumping Agreement, as a
consequence of the foregoing violations of these Agreements.
18
6. The Panel also found that the United States had not established that China had acted
inconsistently with:
(a) Article 12.2.2 of the Anti-Dumping Agreement, by not including in a public notice or
separate report the data and calculations u sed to determine the respondent companies'
final dumping margins;
(b) Article 12.7 of the SCM Agreement, due to MOFCOM's resort to facts available to
calculate the subsidy rates for the two known respondents under certain procurement
programmes; and

18Panel Report, para. 8.1(a)-(h).

(c) Article 22.3 of the SCM Agreement, in connection with MOFCOM's explanation of
the findings and conclusions supporting its determination that the bidding process
under the United States Government procurem ent statutes at issue did not result in
prices that reflected market conditions.19
7. On 20 July 2012, China notified the Dispute Settle ment Body (the "DSB") of its intention to
appeal certain issues of law covered in the Panel Re port and certain legal interpretations developed by
the Panel, pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (the "DSU"), and filed a Notice of Appeal 20 and an appellant's submission,
pursuant to Rules 20 and 21, respectively, of the Working Procedures for Appellate Review 21 (the
"Working Procedures"). On 7 August 2012, the United States filed an appellee's submission. 22 On
10 August 2012, the European Union, Japan, Korea, and Saudi Arabia each filed a third participant's
submission.23 Each of the remaining third participants s ubsequently notified its intention to appear at
the oral hearing. 24 The oral hearing in this appeal was held on 27 and 28 August 2012. The
participants and four of the third participants (t he European Union, Japan, Korea, and Saudi Arabia)
made oral statements. The participants and thir d participants responded to questions posed by the
Members of the Appellate Body Division hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Claims of Error by China – Appellant
1. Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement – Interpretation and Application
8. China appeals the Panel's interpretation and application of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement. China argues that the Panel erred in interpreting
the phrase "the effect of" in these provisions to mean that an investigating authority must demonstrate
that adverse price effects were caused by dumped and/or subsidized imports. 25 Moreover, China
contends that the Panel erred in its application of Articles 3.2 and 15.2 by applying the obligations

19Panel Report, para. 8.2(a)-(c). The Panel did not consider it necessary to make findings with regard
to the following claims: (a) under Article 11.2 of the SCM Agreement , with respect to the initiation of the
countervailing duty investigations at issue; and (b) under Article VI:2 of the GATT 1994, with respect to the
imposition of an "all others" anti-dumping duty greater in amount than the appropriate dumping margin. ( Ibid.,
paras. 7.50, 7.432, and 8.3(a)-(b))
20WT/DS414/5 (attached as Annex I to this Report).
21WT/AB/WP/6, 16 August 2010.
22Pursuant to Rule 22 of the Working Procedures.
23Pursuant to Rule 24(1) of the Working Procedures.
24Pursuant to Rule 24(4) of the Working Procedures . Notification was received from Argentina,
Honduras, and India on 13 August 2012, and from Viet Nam on 15 August 2012.

contained therein to findings not made by MOFCOM, and by imposing obligations on an
investigating authority that do not exist in these provisions.
26
(a) Interpretation of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
9. At the outset, China submits that Article 3.1 of the Anti-Dumping Agreement and Article 15.1
of the SCM Agreement are "chapeau" provisions that place the i ssue of "the effect of the [dumped or
subsidized] imports on prices" in th e broader context of Articles 3 and 15, respectively. Articles 3.1
and 15.1 impose the broad and overarching obligation on an authority to rely on "positive evidence"
and conduct an "objective examination" in its injury determination. However, these provisions "say
nothing about the nature of the specific obligations to consider adverse price effects" of the subject
imports.27 Rather, the obligations on an investigating authority with regard to price effects are
enumerated in Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement,
and these provisions provide "all of the substantive content" of an authority's obligation in this
regard.28
10. China maintains that Articles 3.2 and 15.2 impose "only a limited obligation on authorities" to
"consider" the price effects of the subject imports, that is, to "examine; look at attentively; [and]
think carefully" about such price effects.29 China finds support for its position in findings by panels in
prior disputes that Article 3.2 requires an investigatin g authority to consider whether or not any of the
price effects described therein are present in a gi ven investigation, and does not require that an
explicit determination be made in this regard.30 China argues that, had Members intended to impose a
more specific or demanding obliga tion—for example, to draw conclusions or to provide specific
analysis—they would have used terms such as "eva luate" or "demonstrate" that appear in other
paragraphs of Articles 3 and 15.
11. China further contends that Articles 3.2 and 15 .2 do not use any language that suggests the
need to establish a causal link between price effects and subject imports. In China's view, the term
"the effect of" simply means the consequence of a certain cause, and focuses on the "consequence"
rather than the cause. This is confirmed by the u se of the word "effect" as a noun, rather than as a
verb, because the element of causation becomes relevant only when the word is used as a verb. Used
as a verb, "effect" means "to bring about". In this respect, China contrasts the noun "effect" used in

26China's Notice of Appeal, para. 6 (referring to Panel Report, paras. 7.523-7.536).
29China's appellant's submission para. 51 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 485).
30China's appellant's submission, paras. 53 and 54 (referring to Panel Report, Thailand – H-Beams ,

Articles 3.2 and 15.2 with the verb "affect" used in Articles 3.4 and 15.4. China alleges that the noun
"effect" is concerned with the present situation, but "does not imply a causal relationship between the
effect itself and any particular prior event". 31 In contrast, the verb "affect", which means "to have an
effect on", does not refer to the status quo itself, but rather is concerned with how the status quo came
to be. "Affect" thus "requires a heightened showing … that draws a connection between" a prior
event and the consequence.32
12. Moreover, China argues that Articles 3.2 and 15.2 do not prescribe any specific methodology
for evaluating the three price effects listed in these provisions, that is, significant price undercutting,
price depression, and price suppression. Instead, an investigating authority's assessment of these price
effects is guided only by the broad principles of Articles 3.1 and 15.1 to base its assessment on
positive evidence and an objective examination. 33 Within the bounds of these principles, an authority
can conduct the price effects analysis "in a manner of its choosing" and is not required to make
specific findings on the evidence.34
13. Furthermore, China highlights that Articles 3. 2 and 15.2 use the conjunction "or" to indicate
that the three price effects are alternatives, and that "adverse price effects can be discerned through
either a comparison of domestic and subject import prices, or a comparison of domestic price trends
themselves in connection with cost trends." 35 China maintains that several panels in prior disputes
have confirmed that a consideration of price unde rcutting is not a required step in the analysis. 36
China further alleges that the te rm "otherwise" in Articles 3.2 and 15.2 creates a distinction between
price undercutting, on the one hand, and price de pression and suppression, on the other hand, and
"reflects the market reality that price suppression/price depression is not contingent upon price
undercutting".
37 Finally, China emphasizes that the last sentence of Articles 3.2 and 15.2 expressly
confirms that no single factor "can necessarily give decisive guidance", and that this sentence has a
"limiting effect" on the weight accorded to each of the considerations enumerated in the first two
sentences.38
14. Turning to the context of the term "the effect of" in Articles 3.2 and 15.2, China submits that
various provisions under Articles 3 and 15 expressl y distinguish between the "existence" of price

33China's appellant's submission, paras. 61-63 (referring to Appellate Body Report,
Mexico – Anti-Dumping Measures on Rice, para. 204).
36China's appellant's submission, para. 65 (referring to Panel Report, US – Countervailing Duty
Investigation on DRAMS , para. 7.265; Panel Report, Korea – Certain Paper , para. 7.242; Panel Report,
EC – Salmon (Norway), para. 7.638; and Panel Report, EC – Fasteners (China), para. 7.325).

effects and the "consequent impact" of the subject imports.
39 China notes that, under Articles 3.1
and 15.1, an authority is required to examine, on the one hand, the volume of the subject imports and
the effects of such imports on domestic prices, and, on the other hand, the consequent impact of such
imports on the domestic industry. C onsistent with this distinction, Articles 3.2 and 15.2 elaborate on
the elements in the examination of the import volume and the price effects. Articles 3.4 and 15.4 shift
the focus to a broader consideration regarding th e impact of the subject imports on the domestic
industry. Articles 3.5 and 15.5 then further shift the focus to the requirement of finding a causal
relationship between subject imports and injury to the domestic industry. Thus, China argues, the
"effects" are not themselves the results of a causatio n determination but, rather, serve as the basis for
the causation determination required under Articles 3. 5 and 15.5. In China's view, this reflects the
"fundamental difference" between Articles 3.2 and 15. 2, on the one hand, and Articles 3.5 and 15.5,
on the other hand.
40 Specifically, the former provisions do not require that there be a causal
relationship between the effects of subject imports and subject imports themselves. In contrast, the
latter provisions require the authorities to perform a causation analysis that involves "isolating the
injury caused" by the subject imports from the injury caused by other factors. 41 China further asserts
that the obligation to "consider" the price effect s merely requires an authority to "think carefully"
about the existence of price undercutting, price depression, or price suppression. 42 In contrast, the
obligation to "demonstrate" a causal link requires a more rigorous analysis. Thus, China emphasizes
that the distinct obligations under Articles 3.5 and 15.5 should not be grafted onto Articles 3.2
and 15.2.
15. Moreover, China contends that the object and purpose of the Anti-Dumping Agreement and
the SCM Agreement is to strike a balance between setting forth obligations an authority must follow in
imposing anti-dumping and countervailing measures and leaving the authority with discretion as to
how to implement these obligations. China further submits that the object and purpose of a particular
provision should also be taken into account "if doi ng so assists the interpreter in determining the
treaty's object and purpose on the whole".
43 As regards Articles 3.2 and 15.2, China argues that their
object and purpose is "to identify certain specifi c volume and price circumstances in the domestic
market under investigation", but to leave an authority with broad discretion in ascertaining the
existence of such circumstances. 44 Therefore, interpreting Articles 3.2 and 15.2 as setting forth more

43China's appellant's submission, para. 82 (quoting Appellate Body Report, EC – Chicken Cuts ,
para. 238).

limited obligations properly respects the object and purpose of the Anti-Dumping Agreement and the
SCM Agreement of leaving authorities with discretion as to how to ascertain price effects.
16. China criticizes the Panel for concluding that "merely showing the existence of significant
price depression [and suppression] does not suffice for purposes of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement", and that "[a]n authority must also show that
such price depression [and suppression] is an effect of the subject imports."
45 China asserts that, in so
finding, the Panel appeared to read into these pr ovisions a requirement that MOFCOM demonstrate
that subject imports "affected" domestic prices, even though these provisions do not contain such a
requirement.
46 Moreover, the Panel ignored the term "cons ider" in Articles 3.2 and 15.2 and, instead,
created an obligation to "demonstrate" or "show" a causal link between the subject imports and the
price effects, despite the absence of such an obligation under these provisions. 47 In China's view, the
Panel's interpretive errors are rev ealed by the fact that, in examin ing MOFCOM's analysis regarding
whether price suppression was an effect of th e subject imports, the Panel analyzed whether
MOFCOM sufficiently isolated the subject imports as the cause of the price suppression.
Specifically, the Panel found that MOFCOM's anal ysis was not based on positive evidence and did
not involve an objective examination because, on the basis of the evidence before it, MOFCOM could
not have found that the subject imports were "the only reason" for the price suppression.
48
17. Moreover, China argues, the Panel's interpre tation does not take into account the use of
different terms in different paragr aphs of Articles 3 and 15, includi ng the terms "effect", "affecting",
and "causal relationship". In this respect, Ch ina refers to the statement of the panel in Egypt – Steel
Rebar that interpreting Article 3.4 of the Anti-Dumping Agreement as requiring a causation and
non-attribution analysis would make Article 3.5 "redundant". 49 Similarly, China argues that, under
the Panel's interpretation, the obligations set fo rth in Articles 3.5 and 15.5 are duplicated in
Articles 3.2 and 15.2, whereby investigating au thorities effectively must determine a causal
relationship between subject imports and price eff ects under Articles 3.2 and 15.2. In China's view,
the Panel's interpretation of Articles 3.2 and 15.2 would make Articles 3.5 and 15.5 redundant.
18. Finally, China contends that the Panel misconstrued the guidance provided by the panel report
in EC – Countervailing Measures on DRAM Chips . The panel in that dispute rejected the
complainant's claim that the investigating author ity erred by failing to take into account "other

45China's appellant's submission, para. 90 and footnote 49 to para. 100 (quoting Panel Report,
para. 7.520).
46China's appellant's submission, para. 92 (referring to Panel Report, paras. 7.521 and 7.522).
47China's appellant's submission, para. 93 (referring to Panel Report, paras. 7.521 and 7.522) and
49China's appellant's submission, para. 101 (quoting Panel Report, Egypt – Steel Rebar, para. 7.64).

factors" that affected domestic prices in analyzing the price effects mentioned in Article 15.2 of the
SCM Agreement . The panel found that Article 15.2 did not require the authority to differentiate
among various causes of the price effects, noting that such an examination was part of the causation
analysis under Article 15.5 of the SCM Agreement. China maintains that, in attempting to distinguish
that dispute from the present dispute, the Panel not ed that the United States was not suggesting that
MOFCOM should have considered the effects of "o ther known factors" on domestic prices, but only
that MOFCOM should have considered the effect of subject imports on prices.
50 In China's view, the
Panel attempted to create a distinction without a di fference, because the requirement to consider the
effects of other known factors, and the requirement to consider the effect of subject imports on prices,
both stem from the same obligation to establish a causal link.
19. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding
that MOFCOM's price effects analysis was in consistent "with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement, as set forth in
paragraphs 7.554 and 8.1(f) of the Panel Report".
51
(b) Application of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
20. China submits that, even if the Appellate B ody agrees with the Panel's interpretation of
Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, the Panel still
erred in its application of these pr ovisions to MOFCOM's Final Determ ination. According to China,
the Panel "fundamentally misunders t[ood] MOFCOM's Final Determina tions about the adverse price
effects in this case". 52 The Panel's "overarching error" is that it failed to consider MOFCOM's
discussion about price effects "as written and as a whol e, and instead … substitute[d] its own analytic
framework for that of the authority". 53 In doing so, the Panel "improperly ignore[d] some aspects of
the discussion, focuse[d] on certain elements that ac tually were not part of the discussion, and never
consider[ed] the MOFCOM discussion a bout this issue in its entirety". 54 China adds that
"[e]ssentially, the Panel criticize[d] price compar isons that were never the basis of MOFCOM's
consideration."55
21. China asserts that MOFCOM's discussion about adverse price effects rested on several
specific propositions. First, MOFCOM cited the "d eveloping trend of price", which showed that

subject import prices and domestic prices followed th e same price pattern of first increasing and then
decreasing.56 Second, MOFCOM cited a "pricing policy" whereby subject imports "aimed at setting
the price" at a level below domestic prices. 57 Third, MOFCOM cited the increasing import volume
since 2008, and that the domestic producers "lower ed their price to keep the market share". 58 Based
on these three elements, MOFCOM then noted the key facts about price suppression in 2008 and the
first quarter of 2009, and price depression in the first quarter of 2009, and summarized its
consideration of price effects in two concluding paragraphs that we re "largely overlooked" by the
Panel.
59
22. China asserts that the Panel never addressed "one of the key elements of MOFCOM's
discussion", that is, that both subject import prices and domestic prices followed the same trends of
first increasing and then decreasi ng over the period of investigation. 60 China notes that, although
MOFCOM referred to this fact twice in its analys is, the Panel referred only to the drop in subject
import prices in the first quarter of 2009 without di scussing "at all the parallel trend in subject import
prices and domestic prices over the period".61
23. China also argues that the Panel dismissed the role of import volume effects by finding that
such effects were not the primary basis for MOFCOM's Final Determination. MOFCOM never
considered that subject import volume was the sole factor in its Final Determination, and instead
relied on multiple factors, including the volume of subject imports. More over, acknowledging the
relevance of subject import price should not rende r the subject import volume any less important to
MOFCOM's analysis. The Panel found that MOFCOM 's price effects finding could not be "upheld
purely on the basis of MOFCOM's findings regardi ng the effect of the increase in the volume of
subject imports".62 China submits that, by the Panel's logic, "if the volume of subject imports could
not explain everything, the volume of subject imports could explain nothing." 63 China considers that
the Panel erred "[b]y dismissing and giving no weight to the effect of the volume of subject imports"
in its evaluation of MOFCOM's Final Determination.64

56China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
57China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
58China's appellant's submission, para. 118 (quoting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
62China's appellant's submission, para. 127 (quoting Panel Report, para. 7.542). (underlining added by
China)

24. China contends that the Panel mistakenly assume d that MOFCOM's reference to "low price"
meant a price comparison between the subject im ports and like domestic pr oducts, and erroneously
found that such a price comparison was central to MOFCOM's analysis. In so finding, the Panel
"misstate[d] the MOFCOM discussion and then buil[t] its findings from that mistaken premise".
65 As
China explains, MOFCOM never stated that subject import prices were low relative to domestic
prices. MOFCOM noted that subject import prices were "at a low price", but never compared subject
import prices to domestic prices over the entire period.
66 In fact, China explains, MOFCOM
subsequently affirmed that it was not making a finding in respect of price undercutting so as to
emphasize that price depression and price suppression occurred for other reasons, "namely, the large
increase in subject import volume and the sharp drop in average subject import prices in Q1 2009". 67
Although the Panel correctly recognized that MOFC OM had not made a specific finding of price
undercutting, the Panel then asserted that MOFCOM nevertheless relied on the existence of price
undercutting. According to China, MOFCOM's reference to "low price" is not the same thing as price
undercutting, since low-priced imports can exist rega rdless of the level of prices of subject imports
relative to the prices of domestic products. China c onsiders that this understanding is confirmed by
the text of Articles 3.2 and 15.2, which make clear that significant price depression and price
suppression can exist in the absence of price undercu tting. China points out that these provisions also
refer to the effect of "such imports", not the "pri ces of such imports". In China's view, MOFCOM's
price effects discussion focused on factors other than the existence of price undercutting and did not
depend on price comparisons.
25. China also argues that, although MOFCOM did refer to a "pricing policy" aiming at setting
subject import prices lower than domestic prices, it never said that the policy actually resulted in
lower import prices. MOFCOM did not make any findings of price undercutting, and in fact noted
that average domestic prices were actually lower than average subject import prices in the first quarter
of 2009. Instead, MOFCOM relied on the pricing po licy evidence, consisting of a contract for the
sales of GOES and certain price negotiations
68, to demonstrate "efforts by import sources to charge
lower prices to win business" 69, and that "domestic prices were being forced to react to import
prices".70 According to China, MOFCOM noted, and the Panel ignored, that domestic producers were
reacting to subject import competition and were lowering domestic prices so as to compete more

66China's appellant's submission, para. 130 (quoting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
68Specifically, such evidence includes a contract between a Russian trading company and a Chinese
buyer of subject imports, as well as examples of price negotiations between a Chinese supplier and its
customers. (Panel Report, para. 7.532)

effectively and minimize any further loss of market sh are. China maintains that the erosion of market
share stopped in the first quarter of 2009, but only after domestic producers "react[ed] to import prices
at the end of 2008" by "lower[ing] their prices considerably". 71 China further faults the Panel for
artificially limiting its consideration of the eviden ce supporting the pricing policy to the first quarter
of 2009. The Panel acknowledged that the cont ract relied on by MOFCOM may have been of
relevance regarding the broader relationship between domestic and subject import prices, but then
made the observation that the contracts were only in effect starting in the first quarter of 2009. In
doing so, the Panel did not recognize the distin ction between a "low price policy" and price
undercutting, and therefore improperly used MOFC OM's finding about the absence of any actual
price undercutting in the first quarter of 2009 to ignor e the other implications of this evidence. In
China's view, "[s]ubject imports that are trying to set lower prices can trigger adverse price effects,
whether they actually achieve prices lower than the domestic price level or not."72
26. China also contends that the Panel improperly rejected MOFCOM's use of average unit values
("AUVs") and instead imposed alternative methodologies not reflected in the text of Article 3.2 of the
Anti-Dumping Agreement or Article 15.2 of the SCM Agreement. In support of this contention, China
advances arguments regarding the following three aspect s of the Panel's analysis. First, contrary to
the Panel's conclusion, China argues that it did rebut the United States' argument that prices were not
compared at the same level of trade. China point s to an answer it provided in response to a question
from the Panel that indicated that the AUVs relie d upon reflected the "average unit revenue" received
by subject import and domestic s uppliers "at the same physical stage of getting the goods to the
customer".73 China further maintains that MOFCOM did not have evidence that would have allowed
for a comparison of specific prices in specific distri bution channels, and that there was no evidence to
support the United States' contention that domestic prices were at the level of end-users, whereas
subject import prices were at the level of importers who then resold to end-users. More
fundamentally, China argues, the AUVs considered by MOFCOM did not consist of specific prices or
relate to specific sales channels. Furthermore, China contends that, while investigating authorities
must take account of the "level of trade" for purposes of Article 2.4 of the Anti-Dumping Agreement,
that concept cannot simply be extrapolated to Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement. China notes that, whereas Article 2.4 explicitly refers to different
levels of trade, Articles 3.2 and 15.2 do not. Ch ina considers that this understanding is confirmed by

73China's appellant's submission, para. 157 (referring to China's response to Panel Question 64
following the second Panel meeting, para. 141).

the panel's statement in Egypt – Steel Rebar that there is "no requirement that the price undercutting
analysis must be conducted in any particular way, that is, at any particular level of trade".
74
27. In addition, China challenges the Panel's conc lusion that MOFCOM made no effort to take
into account different grades of GOES at issue. Again, China argues, the Panel misunderstood the
very nature of AUVs, and instead extrapolated a concept of "differences … in physical
characteristics" from Article 2.4 of the Anti-Dumping Agreement that does not necessarily apply to
Articles 3.2 and 15.2.75 Although the Panel was technically corr ect that the subject imports fell under
two tariff headings, the two tariff lines represented the same product, with the only difference being
that they represented GOES of different widths. Chin a emphasizes that this is a physical difference,
not a difference in grade. Moreover, virtually a ll of the subject imports—that is, 97% of subject
import shipment quantity and 99% of subject impor t shipment value—were under only one of the two
tariff headings. In China's view, disaggregating the analysis would have had no material effect on the
analysis, and MOFCOM did not have the data to conduct such a comparison.
28. Moreover, China contests the Panel's criticis m of MOFCOM's reliance on annual AUVs to
capture price trends for the products at issu e. In China's view, annual AUVs still allow an
investigating authority to compare trends over tim e. A more disaggregated analysis may be an
alternative approach, "[b]ut there is nothing i nherently non-objective about using annual AUVs". 76
China further notes that MOFCOM also considered quarterly AUVs for the first quarters of 2008 and
2009. The point of a price depression analysis is to consider trends over time. A trend will be
analytically valid regardless of the degree of aggregation of individual prices, as long as the
aggregation is applied consistently. According to China, for a price suppression analysis in which
prices are compared to costs, annual AUVs are a be tter approach since some costs accrue monthly or
quarterly, whereas other costs accrue only annually.
29. China additionally argues that the Panel imposed multiple alternative methodologies that none
of the respondents raised during the course of MOFCOM 's investigation. According to China, "[t]he
Panel essentially embrace[d] arguments made by the United States after the fact during the panel
proceedings, not arguments the respondents had presented to MOFCOM during the underlying
investigations."
77 China contends that, although investiga ting authorities have an inherent duty to
investigate, they also have discretion to frame th eir investigations and analyses in the light of the
information that they gather and the arguments presented by the parties. In particular, while
respondent parties are free to propose methodologies during the course of an investigation, their

74China's appellant's submission, para. 161 (quoting Panel Report, Egypt – Steel Rebar, para. 7.73).

failure to do so during the investigation is relevant for evaluating the reasonableness and objectivity of
how the authority undertakes its investigation.78
30. According to China, where a covered agre ement does not prescribe any methodology, the
investigating authority has discretion, particularly where the respondents do not advocate a particular
methodology during the investigation. Two of the alternative methodologies—ensuring price
comparability by accounting for levels of trade a nd different product groups—were not presented in
any form to MOFCOM during the investigation. MOFCOM did not have data on a grade-specific or
transaction-specific basis that it considered representa tive, reliable, or otherwise appropriate for this
investigation. China submits that "authorities must make practical choices based on the information
they have available"
79, and that, in cases like the current inves tigation, where no party argued for a
more disaggregated analysis, MOFCOM did not pursue this issue.
31. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding
that MOFCOM's price effects analysis was in consistent "with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement, as set forth in
paragraphs 7.554 and 8.1(f) of the Panel Report".
80
(c) Article 11 of the DSU
32. China submits that the Panel's misreading of MOFCOM's findings of fact and its
misapplication of these findings to the legal standard "so exceeded the proper bounds of review"81 that
the Panel violated its obligations under Article 11 of the DSU. China notes that the Appellate Body
has emphasized that it is critical for panels to consider pieces of evidence not just individually, but
also in their totality. In several disputes, the Appellate Body has found an Article 11 violation based
on the panel's failure to consider the totality of the evidence.
82 This obligation is particularly pertinent
where the investigating authority itself relied on the totality of the evidence in its analysis. China
argues that a panel is not to conduct a de novo review of the evidence gathered by the authority, but
rather is required "to conduct a review based on the analysis performed by the authority". 83 China
adds that panels must be even-handed in their re view and consider all of the arguments and evidence
of the parties in a balanced and consistent way.

78China's appellant's submission, para. 185 (referring to Panel Report, Egypt – Steel Rebar, paras. 7.104
and 7.105).
82China's appellant's submission, para. 196 (referring to Appellate Body Report, US – Continued
Zeroing, para. 331; Appellate Body Report, Japan – DRAMs (Korea) , para. 139; and Appellate Body Report,
US – Countervailing Duty Investigation on DRAMS, para. 188).

33. China asserts that the Panel erred by improperl y assuming, despite China's statements to the
contrary, that references to "low price" in th e Final Determination were synonymous with a
comparison between the prices of subject imports and like domestic products, when they were, in fact,
references to price undercutting. During the first quarter of 2009, the only period for which the Panel
found the existence of price depression, MOFCOM found that subject imports were actually priced
higher than the domestic like product. Thus, wit hout evidentiary support, the Panel ignored this
finding of MOFCOM and concluded the exact opposite.
34. China further argues that "[t]he egregiousness of this misunderstanding is heightened by the
fact that the Panel relie[d] on this single factor to invalidate MOFCOM's price depression and price
suppression findings."
84 China recalls that MOFCOM's discu ssion about adverse price effects rested
on three specific propositions. First, MOFCOM cited the developing trend of price, which showed
that subject import prices and domestic prices followed the same price pattern of first increasing and
then decreasing. Second, MOFCOM cited a prici ng policy whereby subject imports aimed at setting
the price at a level below domestic prices. Third, MOFCOM cited the increasing import volume since
2008, and that domestic producers lowered their price to keep their market share. China contends that
"it was an analysis of the totality of the circumstances that produced the conclusion of price
depression and price suppression." 85 Relying on the reasoning of the Appellate Body in
US – Countervailing Duty Investigation on DRAMS and Japan – DRAMs (Korea) , China argues that
the Panel erred by conducting a de novo review of evidence that was di rectly contradicted by that
conducted by MOFCOM during the investigation. Ch ina maintains that mistakes in interpreting the
evidence that are determinative to a panel's conclusi on of an issue are not harmless errors, but rather
amount to a panel's failure to perform an objective assessment of that evidence in contravention of
Article 11 of the DSU.
2. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement – Disclosure of Essential Facts
35. China appeals the Panel's finding that China act ed inconsistently with its obligations under
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement regarding the
disclosure of essential facts relating to MOFCOM's price effects analysis. China argues that the
Panel's finding rested on its erroneous interpre tation and application of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement. China maintains that MOFCOM
was only required to consider the existence of adve rse price effects and, in this respect, MOFCOM
adequately disclosed the essential facts regarding th e adverse price effects it found to exist, namely,

significant price depression and suppression. China submits that the essential facts regarding
significant price depression and suppression are wh ether domestic prices were trending downward,
and whether domestic prices were keeping up with cha nging costs. In particular, China submits that
the essential facts regarding these price effects did not include any facts about the "comparison"
between subject import prices and domestic prices, or the causal relationship between these two
variables.
86
36. China maintains that MOFCOM disclosed the essential facts underlying its finding of
significant price depression and suppression. With regard to price depression, China alleges that
MOFCOM provided the essential facts by disclos ing, in MOFCOM Announcement No. 99 of
10 December 200987 (the "Preliminary Determination") and in the disclosure of essential facts 88 (the
"Final Injury Disclosure"), that average domestic prices had fallen by 30.25% during the first quarter
of 2009 compared to the first quarter of 2008. 89 With respect to price suppression, China contends
that MOFCOM provided the essential facts when it discl osed, in its Preliminary Determination, that
the price-cost differential in calendar year 2008 "dropped by 7% compared with 2007", and that the
price-cost differential "dropped continually and greatly by 75%" during the first quarter of 2009
compared to the first quarter of 2008.
90 China submits that, in both instances, this degree of
disclosure was sufficient, and that any further de tail would have "compromise[d] the confidentiality"
of business confidential information.91
37. China contends that, even if the Appellate B ody agrees with the Panel's interpretation that
Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement require some
assessment of the causal relationship between subject imports and adverse price effects, the Panel still

86China's appellant's submission, paras. 210-212.
87MOFCOM Announcement No. 99 [200 9] (10 December 2009) (English translation as contained in
Panel Exhibit CHN-17) (the "Preliminary Determination"). We note that the United States also submitted an
English translation of MOFCOM's preliminary determination as part of Panel Exhibit US-5. However,
throughout its Report, the Panel cited the exhibit submitte d by China (Panel Exhibit CHN-17) when referring to
the Preliminary Determination. Similarly, in this Repo rt, we refer to the English translation as contained in
Panel Exhibit CHN-17.
88Essential Facts Under Consideration Which Form th e Basis of the Determination on Industry Injury
Investigation of the Antidumping Investigation of GOES from the US and Russia and the Anti-subsidy
Investigation of GOES from the US, Shang Diao Cha Han (2010) No. 67 (5 March 2010) (English translation as
contained in Panel Exhibit CHN-29). We note that the United States also submitted an English translation of
MOFCOM's disclosure document as part of Panel Exhibit US-27. However, throughout its Report, the Panel
cited the exhibit submitted by China (Panel Exhibit CHN-29) when referring to the Final Injury Disclosure.
Similarly, in this Report, we refer to the English translation as contained in Panel Exhibit CHN-29.
89China's appellant's submission, para. 213 (referrin g to Preliminary Determination (Panel Exhibit
CHN-17 (English version)), p. 55; and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)),
p. 10).
90China's appellant's submission, para. 214 (referrin g to Preliminary Determination (Panel Exhibit
CHN-17 (English version)), p. 56; and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)),
p. 15).

erred in finding that MOFCOM's disclosure of the essential facts was insuffici ent for the purposes of
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement. China contends
that the Panel erroneously assumed that a comparison between subject import prices and domestic
prices was "an essential part" of MOFCOM's price effects analysis
92, when, in fact, such price
comparison was never "essential" to MOFCOM's price effects analysis.
38. More specifically, China asserts that the Panel erred in three respects by concluding that
MOFCOM's disclosure of the essential facts was "ins ufficient" for the purposes of Article 6.9 and
Article 12.8. First, China argues that "the Panel unreasonably criticize[d] MOFCOM for not
providing the same level of detail that China provide d in its submissions to the Panel regarding the
pricing policy." 93 China maintains that the "essential f act" relied on by MOFCOM in its Final
Determination was the fact that the importers were attempting to charge lower prices than the prices
of the like domestic products. Thus, MOFCOM's reasoning did not depend on the dates of the
contracts submitted as evidence for such pricing policy or whether the subject imports were successful
in undercutting domestic prices. Second, China claims that, in the light of the fact that MOFCOM did
not make a finding of price undercutting, the Panel improperly criticized MOFCOM for not disclosing
the margins of underselling during the period 2006-2008. These margins were never "essential facts"
that "form[ed] the basis of the decision" to impose measures within the meaning of Articles 6.9
and 12.8.
94 Third, China contends that the Panel e rred by only focusing on one aspect of MOFCOM's
analysis—the pricing policy—without considering other elements considered by MOFCOM, namely,
the significance of decreasing import prices and increasing import volumes, which were properly
disclosed by MOFCOM.
39. For the foregoing reasons, China requests the A ppellate Body to reverse the Panel's finding
that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of
the SCM Agreement, as set forth in paragraphs 7.575 and 8.1(f) of the Panel Report.95
3. Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement – Public Notice Requirements
40. China appeals the Panel's finding that China act ed inconsistently with its obligations under
Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement regarding the
public notice and explanation of MOFCOM's price eff ects analysis. China argues that this finding of
inconsistency by the Panel rested on its improper in terpretation and applicati on of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement. China maintains that these

provisions only require an investigating authority to consider the existence of adverse price effects. In
this respect, MOFCOM adequately provided public notice and explanation of its findings regarding
the existence of significant price depression and suppression.
41. China asserts that both price depression and su ppression were addressed in MOFCOM's Final
Determination. Regarding price depression, th e Final Determination established that average
domestic prices fell by 30.25% during the first quarter of 2009 compared to the first quarter of 2008.96
With regard to price suppression, the Final Determina tion indicated that the price-cost differential in
calendar year 2008 dropped by 7% compared with 2007, and dropped even more substantially by 75%
during the first quarter of 2009 compared to the first quarter of 2008. 97 According to China, the Panel
did not examine any of these findings. Rather, the Panel erroneously focused on the sufficiency of the
public notice regarding the existence and specific marg ins of price undercutting. In China's view, the
evidence about price undercutting is precisely what the Appellate Body considered to be "supporting
record evidence" that does not need to be disclosed pursuant to Article 22.5 of the SCM Agreement.98
42. In addition, China argues that, in the event th e Appellate Body finds that the Panel correctly
interpreted and applied Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement, the Panel still erred in its finding regarding MOFCOM's public notice under
Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement. China
reiterates that the Panel mistakenly treated a comparison of subject import prices to domestic prices as
an "essential element" and "an important aspect" of MOFCOM's examination of price effects.
99 China
claims that, in doing so, the Panel made three errors . First, the Panel ignored the fact that MOFCOM
disclosed the relevant facts regarding the pricing po licy of importers, that is, the existence of the
"contracts and records of price setting" collected during an on-site verification. 100 Second, the Panel
confused what MOFCOM discussed in the Final Dete rmination with China's submissions before the
Panel and, thus, faulted MOFCOM for not disclosing a fact that was never one of the "matters of fact"
that "led to the imposition of final measures", na mely, the margin by which the prices of subject
imports were below the prices of domestic products. 101 Third, the Panel ignored relevant context
found in Article 12.2 of the Anti-Dumping Agreement and Article 22.3 of the SCM Agreement, which
provide that the public notice requirement extends only to those facts "considered material" by the

96China's appellant's submission, para. 225 (referrin g to Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
97China's appellant's submission, para. 225 (referrin g to Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
98China's appellant's submission, para. 227 (referring to Appellate Body Report, US – Countervailing

investigating authority.
102 Therefore, given that MOFCOM did not make any findings of significant
price undercutting, it is clear that it did not consider such facts to be "material" for its Final
Determination.
43. For these reasons, China requests the Appellate Body to reverse the Panel's findings of
inconsistency with Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement, as set forth in paragraphs 7.592 and 8.1(f) of the Panel Report.
B. Arguments of the United States – Appellee
1. Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement – Interpretation and Application
44. The United States requests the Appellate Body to reject China's appeal of the Panel's
interpretation and application of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement. The United States submits that the Panel properly concluded that the phrase "the
effect of the [dumped or subsidized] imports" in Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement requires an authority to assess whether significant price
depression or suppression is the effect of the subject imports. Moreover, the Panel, in its application
of the legal standard contained in these provisi ons, correctly concluded that MOFCOM's findings
regarding the "low price" of subject imports and the alleged "pricing policies" of importers were
neither supported by positive evidence nor obj ectively examined by MOFCOM, as required by
Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the SCM Agreement.103
(a) Interpretation of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
45. At the outset, the United States argues that Article 3.1 of the Anti-Dumping Agreement and
Article 15.1 of the SCM Agreement provide important context for the interpretation of Articles 3.2
and 15.2. Pursuant to Articles 3.1 and 15.1, an investigating authority must base its injury
determination on "positive evidence", and must conduc t an "objective examination" of the volume of
dumped or subsidized imports, their effect on the prices in the domestic market for the domestic like
product, and their consequent impact on the dom estic producers of such products. Articles 3.2
and 15.2 then elaborate on the standards for exam ining the effect of subject imports on domestic
prices.

46. Turning to the text of Articles 3.2 and 15.2, the United States submits that, irrespective of
whether China's interpretation of the word "consid er" is correct, that interpretation would not be
dispositive of whether the Panel correctly conclu ded that MOFCOM's price effects analysis was
inconsistent with Articles 3.1 and 3.2 and Articles 15.1 and 15.2. According to the United States,
MOFCOM did more than merely "consider" whet her the price effects existed, because it expressly
found that the subject imports caused significant price depression and suppression. Thus, there was
no need for the Panel to address whether it was suff icient for MOFCOM to merely "consider" price
depression or suppression, rather than to make a findi ng in this respect. Given that MOFCOM's price
effects finding formed a significant aspect of its injury and causation analysis, the Panel properly
evaluated whether the finding was consistent with the requirement, under Articles 3.1 and 15.1, that
an injury and causation determination be based on positive evidence and involve an objective
examination.
47. The United States recalls China's position that Articles 3.2 and 15.2 do not use any language
that suggests a causal link between the price e ffects and the dumped or subsidized imports. 104 In the
United States' view, the interpretation advocated by China reads these provisions as though they do
not contain any language suggesting that price de pression and suppression must be the " effect of"
dumped or subsidized imports. While agreeing that the dictionary definition of the word "effect" is
"[s]omething accomplished, caused or produced, a result, a consequence" 105, the United States
disagrees with China that this defi nition "does not focus on the cause" of the price effects observed in
the market.106 Contrary to China's claim, the dictionary definition of "effect" clearly connotes that the
effect in question is a result of something else, re gardless of whether it is used as a noun or as a verb.
Moreover, noting that Articles 3.2 and 15.2 specifically require an authority to consider whether "the
effect of the [dumped or subsidized] imports on prices" is significant price depression or suppression,
the United States maintains that the text of th ese provisions explicitly connects a cause—that is,
dumped or subsidized imports—to price depressive or suppressive effects in the market.
48. Furthermore, while agreeing that Articles 3.2 and 15.2 do not impose any specific
methodology for evaluating price effects, the Un ited States emphasizes that any methodology an
authority employs must meet the requirements under Articles 3.1 and 15.1 that an injury
determination be based on positive evidence and involve an objective examination. The United States
adds that the Panel did not find that MOFCOM wa s required to use any particular methodology for

104United States' appellee's submission, para. 29 (referring to China's appellant's submission,
paras. 43-109).
105United States' appellee's submission, para. 32 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786).
106United States' appellee's submission, para. 32 (referring to China's appellant's submission, para. 55).

assessing the price effects under Articles 3.2 and 15.2, but rather found that MOFCOM failed to base
its price effects finding on positive evidence and failed to conduct an objective examination.
49. As regards the relationship between the three types of price effects listed in Articles 3.2
and 15.2, the United States recalls China's argument that the three types of effects are entirely
independent of each other, and that an aut hority may choose to examine price depression or
suppression without providing any evaluation of price undercutting.
107 The United States submits that
an authority can make a finding of significant pri ce effects without findin g that there has been
significant price undercutting during the period of i nvestigation. For example, the United States
maintains that imports may garner a price prem ium over the domestically produced product because
of superior quality. Thus, should import prices de cline, prices for the domestic product may follow
suit to maintain the price differential. Conseque ntly, the subject imports may cause price depression
or suppression even if they are not undercutting domestic prices.108
50. Nonetheless, the United States emphasizes that, as an analytical matter, this does not mean
that price undercutting is entirely distinct from price depression or suppression. Rather, examining
the relative price levels of the domestically produced and imported products is "typically essential to a
complete analysis of price effects". 109 According to the United States, viewed in isolation, the fact
that price depression or suppression exists does not itself establish that the dumped or subsidized
imports have had an "effect" on prices of the domestically produced like product, because a number of
factors in any market may cause price depression or suppression. Thus, to evaluate whether
significant price depression or suppression is the effect of subject imports, an authority "will
ordinarily need to examine in detail the manner in which prices of domestic and subject merchandises
reacted to each [other] during the period".
110 The United States contends that, even in circumstances
where dumped or subsidized imports cause price depression or suppression without undercutting
domestic prices, an objective authority should perform a comparison of the pric ing levels of imports
and domestically produced products, as well as a revi ew of their relative pricing trends, so as to
ensure that it has performed an objective examination of the positive evidence before it.
51. Turning to the context of the term "the effect of" in Articles 3.2 and 15.2, the United States
submits that, where Article 3 of the Anti-Dumping Agreement and Article 15 of the SCM Agreement
merely instruct an investigating authority to examine the existence of a factor, these provisions use
appropriate language to signify this. For example, the first sentence of Ar ticles 3.2 and 15.2 requires

107United States' appellee's submission, para. 46 (referring to China's appellant's submission,
paras. 64-67).

an authority to consider what the volumes of the subject imports are, and not what are the effects of
those volumes. In contrast, the second sentence of Ar ticles 3.2 and 15.2 explicitly requires that price
depression or suppression be "the effect of such imports". Thus, under Articles 3.2 and 15.2, an
authority has "differing obligations" with respect to its analysis of the volume of the subject imports,
on the one hand, and their price effects, on the other hand. 111 Nonetheless, in the view of the
United States, China incorrectly perceives Articl es 3.2 and 15.2 as imposing the same obligation
regarding both, whereby these provisions require only an examination of whether price suppression or
depression existed during the period of investigation.
52. Furthermore, the United States maintains that Articles 3.5 and 15.5, on the one hand, and
Articles 3.2 and 15.2, on the other hand, both address aspects of an authority's causation analysis, with
each set of provisions containing different language re garding the nature of the causal effects to be
examined. More specifically, Articles 3.2 and 15.2 require an authority to consider whether subject
imports have undercut domestic prices, or whether price depression or suppression is the effect of
such imports. In contrast, Articles 3.5 and 15.5 require an examination of "all relevant evidence
before the authorities" and a demonstration, through a non-attribution analysis, that material injury is
caused by the subject imports, as opposed to "other factors". In the United States' view, this
non-attribution obligation does not exist in Articles 3.2 and 15.2, as these provisions do not require an
assessment of whether "other known injury factors" break the apparent causal link between the subject
imports and the price effects.
53. Moreover, noting that China seeks to support its interpretation of Articles 3.2 and 15.2 by
reference to the "object and purpose" of these pr ovisions, the United States emphasizes that, pursuant
to Article 31 of the Vienna Convention on the Law of Treaties 112 (the " Vienna Convention "), the
interpretative analysis has to be made in the light of the object and purpose of the treaty, not of
individual provisions of that treaty.
54. The United States stresses that the Panel properl y construed Articles 3.2 and 15.2 as requiring
an investigating authority to establish a causal relationship between the dumped and subsidized
imports, on the one hand, and any significant price depression or suppression, on the other hand. In
the United States' view, the Panel's interpretation is consistent with the text of Articles 3.2 and 15.2,
which specifically provide that an investigating auth ority consider whether "the effect of the [dumped
or subsidized] imports on prices" is to depress prices to a significant degree or prevent price increases,
which otherwise would have occurred, to a signi ficant degree. Thus, the Panel's interpretation
"follows directly from the plain language" used in Articles 3.2 and 15.2, and the United States

112Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679.

disagrees with China's argument that the Pane l "essentially graft[ed] on the second sentence of
Articles 3.2 and 15.2 legal obligations that do[] not exist in these two provisions".
113
55. The United States submits that the Panel's interpretation of the term "the effect of" in
Articles 3.2 and 15.2 is also consistent with th e context of these provisions. According to the
United States, although Articles 3.5 and 15.5 impo se important requirements on an investigating
authority regarding the analysis of causation, ot her paragraphs of Articles 3 and 15 also contain
language addressing an authority's obligations to assess the causal effects of the subject imports on the
domestic industry. Thus, Articles 3.5 and 15.5 do not contain the only causal analysis obligations in
the provisions regarding inju ry determinations in the Anti-Dumping Agreement and the
SCM Agreement. Rather, Articles 3.2 and 15.2 are also intended to embody specific aspects of an
authority's causal link analysis in anti-dumpi ng and countervailing duty investigations. The
United States emphasizes, however, that, unlike Ar ticles 3.5 and 15.5, Articles 3.2 and 15.2 do not
impose an obligation to conduct a non-attribution anal ysis. In the United States' view, this difference
explains the finding of the panel in Egypt – Steel Rebar that an authority need not engage in the type
of non-attribution analysis required by Articles 3.5 and 15.5 when examining the impact of the
imports on the domestic industry.114
56. The United States further argues that the Pane l correctly distinguished the present dispute
from EC – Countervailing Measures on DRAM Chips . In that dispute, the panel only found that an
authority need not conduct a non-attribution anal ysis as part of its price undercutting analysis. 115 The
United States therefore considers that the panel repo rt in that dispute does not lend support to China's
view that an investigating authority need not fi nd any causal relationship between the subject imports
and the price effects listed in Articles 3.2 and 15.2. Thus, the Panel correctly found that the panel
report in EC – Countervailing Measures on DRAM Chips does not stand for "the proposition that an
authority is not required by Article 15.2 of the SCM Agreement to show that the relevant price
depression is an effect of subject imports".116
57. For the foregoing reasons, the United States subm its that the Appellate Body should reject
China's appeal regarding the Panel's interpretation of Articles 3.2 and 15.2, and regarding the Panel's
ultimate finding that MOFCOM's price effects analysis was inconsistent with Articles 3.1 and 3.2 of
the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement , as set forth in
paragraphs 7.554 and 8.1(f) of the Panel Report.

113United States' appellee's submission, para. 35 (quoting China's appellant's submission, para. 47).
114United States' appellee's submission, para. 42 (referring to Panel Report, Egypt – Steel Rebar ,
para. 7.62).
115United States' appellee's submission, para. 42 (referring to Panel Report, EC – Countervailing

(b) Application of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
58. The United States submits that the Panel did no t, as China argues, misconstrue MOFCOM's
findings about the "low price" of subject imports a nd the importers' pricing strategies, create findings
that MOFCOM never made, or accord insufficient weight to other elements relied on by MOFCOM in
its price effects analysis. According to the United States, the Panel reasonably found that
MOFCOM's "low price" finding was an important component of its price effects analysis, that
MOFCOM had not based this finding on "pos itive evidence" or performed an "objective
examination", and that it therefore acted inconsistent ly with its obligations under Articles 3.1 and 3.2
of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement.
59. The United States asserts that there are se veral problems with China's argument that
MOFCOM found parallel price trends to be a key elem ent in its price effects analysis. First, China
never made this argument before th e Panel, and therefore has no basis to argue that the Panel should
have addressed it. Second, there is no indication in the Final Determination that a parallel pricing
finding was an independent ground for its price effects analysis. Rather, MOFCOM stated that the
sale of subject imports at a "low price" was one of the two causes of price depression, not parallel
pricing trends. Third, the pricing information disclosed by MOFCOM does not support a finding that
parallel pricing trends caused price depression. Because prices for subject imports and Chinese
products both rose in 2007 and 2008, the prices did not cause any price depression. Although China
claims that there was a sharp drop of subject import prices in the first quarter of 2009, the AUVs for
subject imports declined by only 1.25% between the first quarters of 2008 and 2009. When this
decline is compared to the 30.25% decline in domes tic prices during the first quarter of 2009, it is
evident that parallel pricing tre nds did not explain the price depression or suppression during the first
quarter of 2009. Finally, the United States ob serves that China has not challenged the Panel's
conclusion that, following a 17.57% increase in s ubject import prices in 2008, a 1.25% decrease in
subject import prices could not have had the effect of depressing domestic prices. The United States
considers that China therefore has no grounds for challenging the Panel's analysis, "[s]ince this
finding goes to the heart of the analytical probl ems identified by the Panel concerning MOFCOM's
pricing analysis".
117
60. Regarding the Panel's assessment of subject import volume effects, the United States argues
that the Panel correctly concluded that MOFCOM 's Final Determination did not support China's
argument that volume effects were the primary basis for MOFCOM's finding that price depression
was an effect of subject imports. As the Pane l noted, China relied on parts of MOFCOM's Final

Determination that appear to le nd equal weight to considerations of both subject import volume and
price. The United States also points to the Panel's finding that "MOFCOM refers both to the
increased volume of subject imports, and the alle gedly low price thereof", and that the Panel
reasonably concluded that "there is nothing in MO FCOM's determination to indicate that MOFCOM
relied more heavily on the increase in volume of s ubject imports than it did on the low price thereof
for the purpose of establishing that price depression was an effect of imports."
118 The United States
further argues that, because MOFCOM consistently and repeatedly relied on th e "low prices" of the
subject imports as a central basis for its finding of significant price depression and suppression, the
Panel acted properly in "evaluating the final determination as MOFCOM wrote it"
119, and therefore in
assessing whether MOFCOM had provided "positive eviden ce" to support its "low price" finding and
had performed an "objective examination" of that evidence.
61. Furthermore, the United States disagrees with China that MOFCOM's "low price" finding was
not central to MOFCOM's analysis. Accord ing to the United States, "in no fewer than six instances,
MOFCOM directly linked price depression and price suppression to 'low prices' and in no fewer than
five additional instances linked 'low prices' to the ma terial injury purportedl y sustained by China's
domestic GOES industry." 120 Thus, China's argument that price comparisons were not "central" to
MOFCOM's analysis cannot be reconciled with even a "casual reading" of MOFCOM's Final
Determination.121 Nor does the United States see a basis for China's suggestion that MOFCOM's use
of the term "low prices" does not mean that it actually compared prices of the domestically produced
product with the subject imports.
62. The United States also rejects China's argument th at "low prices" can exist regardless of the
relationship between prices of subject imports a nd domestic prices. Low-priced imports, in the
United States' view, must be low priced in rela tion to something that is higher priced, and any
meaningful discussion of low-priced imports must include a comparison of subject import prices to
domestic prices. As a result, and as the Panel f ound, MOFCOM could only have made a finding of
low prices by comparing the pricing levels of th e subject imports and the domestic products. In
addition, according to the United States, China ack nowledged before the Panel that MOFCOM made
such a comparison. The United States points to, inter alia, China's statement that documents it had
submitted at the Panel's request "support the finding reached by MOFCOM that subject imports from
Russia and the United States were charging prices lower than domestic prices , and had a pricing

120United States' appellee's submission, para. 68. (original emphasis)
121United States' appellee's submission, para. 68 (referring to China's appellant's submission, paras. 34
and 117).

policy to keep their prices lower". 122 According to the United States, the Panel construed the Final
Determination exactly as it was written and assessed its content in a reasoned and objective manner.
63. The United States further disagrees with China's argument that MOFCOM's use of the term
"pricing policy" was not intended to reflect prices actually charged. In the United States' view,
MOFCOM's price depression finding specifically indicat ed that the result of the "pricing policy" was
to keep import prices at a lower level than those of domestic products and that, as a result of this
policy, "the product concerned was kept at a low price." 123 Given the linkage of these two findings,
the United States considers that it is clear that MOFCOM found that the alleged policy was effective
at keeping the prices of subject imports lower than that of the domestic products. The United States
adds that MOFCOM's conclusion regarding the pricing policy indicated that MOFCOM did not
simply find that importers were "attempting" to set subject import prices lower than domestic prices,
but rather found that they actually did so.
124
64. The United States also rejects China's argumen t that the Panel improperly imposed specific
methodologies on MOFCOM under Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of
the SCM Agreement. According to the United States, the Panel did not state that Articles 3.2 and 15.2
require an investigating authority to perform its pr ice analysis and comparisons using any particular
methodology. The United States adds that it did no t claim before the Panel that an authority was
required to use specific price comparison methodol ogies under Articles 3.2 and 15.2, but rather that
MOFCOM's "low-price" and "pricing strategy" fi ndings were not supported by "positive evidence"
and did not reflect an "objective examination", as required by Articles 3.1 and 15.1. In the
United States' view, China "largely fails to acknowle dge that Articles 3.1 and 15.1 were the basis for
the Panel findings in question".125
65. The United States maintains that, in any event, China's arguments do not call into question the
validity of the Panel's analysis regarding MOFC OM's reliance on annual AUV s. According to the
United States, the Panel reasonably concluded that the United States had established that MOFCOM's
reliance on annual AUVs to make price comparison s failed to satisfy the "positive evidence" and
"objective examination" requirements of Articles 3.1 and 15.1. Specifically, the United States
contended that the AUV data was unreliable given th e particular circumstances of the GOES market,

122United States' appellee's submission, para. 72 (quo ting China's response to the Panel's request of
18 November 2011 for certain confidential data, p. 2). (emphasis added by the United States) See also ibid.
(referring to China's second written submission to the Panel, paras. 102 and 104; and China's response to Panel
Question 69 following the second Panel meeting, para. 160).
123United States' appellee's submission, para. 69 (quo ting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).

including a non-homogenous product that was classifi ed under two different tariff headings and was
sold in different grades with different product ch aracteristics. Moreover, during the course of the
Panel proceedings, China provided evidence show ing that GOES was subject to intense price
fluctuations within the course of a single year , thus calling into question MOFCOM's reliance on
annual AUVs.
66. The United States takes issue with the arguments raised by China regarding three aspects of
the Panel's analysis in relation to MOFCOM's relia nce on AUVs. First, with regard to whether the
prices of subject imports and domestic like products we re compared at the same level of trade, the
only information China provided to the Panel indica ted that the AUVs for subject imports related to
"transactions between the exporter and the first Ch inese purchaser, which is typically an importer that
will then resell the product—at a profit—to the end user".
126 The United States also contends that
China acknowledged that the AUV data that MOFCOM used was "not a comparison of specific prices
in specific distribution channels".127 The United States further argues that China's reliance on Egypt –
Steel Rebar is misplaced because the panel in that case di d not indicate that an investigating authority
could have positive evidence and conduct an objectiv e examination of price differences when it
compared prices at different levels of trade.128
67. Second, the United States argues that China did not contest that the AUV data did not account
for differences in product grades, but instead confirmed that MOFCOM did not attempt to collect
more precise data, or even to use the available cu stoms data in its record. As the United States
asserts, the record shows that the product covered by the investigation was a non-homogenous product
that was classified under two different tariff headings and was sold in different grades with different
product characteristics. According to the United St ates, the record also shows that there were
considerable variations in the AUVs for the two ta riff headings, indicating that a single comparison of
the two product categories combined would likely reflect an inaccurate assessment of comparative
pricing levels between the subject imports and domestic products.
68. Third, the United States considers that the Pa nel also reasonably concluded that MOFCOM's
use of annual pricing data for its price comparisons was not sufficiently preci se in terms of the time
periods covered. The record shows that GOES was subject to intense price fluctuations within the
course of a single year. Thus, according to the United States, the Panel properly noted that, " given the
possibility of prices varying over time , an objective and impartial inves tigating authority would rather

127United States' appellee's submission, para. 86 (quoting China's appellant's submission, para. 158).
128United States' appellee's submission, footnote 132 to para. 86 (referring to Panel Report, Egypt –
Steel Rebar, para. 7.73).

conduct contemporaneous price comp arisons, or at least price comparisons during a relatively short
period of time."129
69. Finally, the United States disagrees with Ch ina's argument that MOFCOM could not have
been expected to have conducted the level of co mparative analysis demanded by the Panel because
such concerns were neither raised nor argued by the respondents during the investigation. The
United States submits that the record shows that one of the respondents, ATI, in its comments on the
Preliminary Determination, specifically raised th e issue that MOFCOM had not conducted a price
comparison between subject imports and domestic li ke products, and had also argued that MOFCOM
had distorted the analysis by using price trends on an annual basis. The United States argues that, in
any event, Articles 3.1 and 15.1 place no limitati on on a complainant's ability to argue that an
authority acted inconsistently with its obligation to conduct an objective examination of the matter
before it and to have positive evidence in support of its findings. Rather, as the Appellate Body has
found, the obligations under Articles 3.1 and 15.1 ar e "absolute" and provide for no exceptions or
qualifications.130 Moreover, in Mexico – Steel Pipes and Tubes, the panel rejected the argument that it
should dismiss a claim under Article 3.1 regarding the use of a particular period of investigation
merely because no party had raised a complaint in th is regard during the investigation proceedings.
Rather, the panel found that the selection of the investigation period was linked to the investigating
authority's obligation under Article 3.1 to conduct an objective examination of positive evidence, and
that the authority was bound by this obligation rega rdless of whether the issue was raised during the
investigation.
131 Accordingly, the United States argues that the Panel appropriately considered the
United States' claims in the present dispute.
70. For the foregoing reasons, the United States reque sts the Appellate Body to reject China's
appeal regarding the Panel's finding that MOFCOM's price effects analysis was inconsistent with
Articles 3.1 and 3.2 of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the
SCM Agreement, as set forth in paragraphs 7.554 and 8.1(f) of the Panel Report.
(c) Article 11 of the DSU
71. The United States submits that China's claims under Article 11 of the DSU merely repeat
arguments that China has already raised in respect of the Panel's interpretation, application, reasoning,
and findings. It refers to its earlier arguments demonstrating that the Panel's analysis of MOFCOM's

129United States' appellee's submission, para. 88 (quoting Panel Report, para. 7.528). (emphasis added
by the United States)
130United States' appellee's submission, para. 92 (referring to Appellate Body Report, EC – Bed Linen
(Article 21.5 – India), para. 109).
131United States' appellee's submission, para. 92 (referring to Panel Report, Mexico – Steel Pipes and
Tubes, para. 7.259).

price effects finding was correct. The United St ates further notes that the Appellate Body has
required that a claim under Article 11 should not be made merely as a subsidiary argument or
claim.
132 The United States adds that, to rise to the le vel of an Article 11 violation, a mistake on the
part of the panel must constitute a "deliberate disr egard of evidence or gross negligence amounting to
bad faith".133
72. The United States rejects the argument that MO FCOM did not make a finding that subject
imports were priced lower than domestic products. It refers to its arguments above that MOFCOM
repeatedly found that subject imports were priced "low" during the investigation period, and that its
analysis "made clear that this finding was based on a comparison of domestic and subject import
prices".
134 According to the United States, China acknowledged before the Panel that MOFCOM
engaged in price comparisons for domestic produc ts and subject imports, and that MOFCOM had
reached a finding that subject imports " were charging prices lower than domestic prices , and had a
pricing policy to keep their prices lower". 135 In the light of these st atements by China, the
United States maintains that "the Panel did not commit error by evaluating MOFCOM's determination
on the basis of specific findings included in the determination."136
73. The United States also argues that the Panel did not fail to give consideration to the totality of
the evidence. The Panel did not mistakenly fail to give the proper weight to MOFCOM's "low price"
finding or to other aspects of MOFCOM's affirm ative price effects finding. According to the
United States, in rejecting China's claim that the increasing volume of imports alone could support
MOFCOM's finding of significant price depression and suppression, the Panel correctly pointed out
that a "panel must exercise great caution in dete rmining whether or not to engage in analyses not
undertaken by the investigating authority itself." 137 The United States further argues that the Final
Determination does not indicate that it gave greater weight to findings on parallel pricing trends and a
pricing policy aimed at undercutting subject import pri ces than it gave to its finding of "low price" of
subject imports. As a result, the United States argues, the Panel was correct in finding that it had no
basis to conclude that these findings could, by themselves, support MOFCOM's pricing analysis.

132United States' appellee's submission, para. 95 (referring to Appellate Body Report, EC and certain
member States – Large Civil Aircraft, para. 761, in turn referring to Appellate Body Report, Chile – Price Band
System (Article 21.5 – Argentina), para. 238, in turn referring to Appellate Body Report, US – Steel Safeguards,
para. 498; and Appellate Body Report, China – Publications and Audiovisual Products, para. 189).
133United States' appellee's submission, para. 96 (referring to Appellate Body Report, EC – Hormones,
paras. 133 and 138).
135United States' appellee's submission, para. 98 (quo ting China's response to the Panel's request of
18 November 2011 for certain confidential data, p. 2). (emphasis added by the United States)

2. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement – Disclosure of Essential Facts
74. The United States submits that the Panel was co rrect in concluding that MOFCOM failed to
disclose the "essential facts" within the meaning of Article 6.9 of the Anti-Dumping Agreement and
Article 12.8 of the SCM Agreement. The United States contests China's argument that the Panel erred
in its interpretation of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement, leading it to make incorrect findings under Articles 6.9 and 12.8. Specifically, the
United States disagrees with China that, because Articles 3.2 and 15.2 only require MOFCOM to find
that price depression and suppression existed in the market, the only "essential facts" it needed to
disclose were the declines in domestic prices (in c onnection with price depression) and changes in the
price-cost ratio of the Chinese domestic industry (in connection with price suppression). This, in the
United States' view, ignores that Articles 3.2 an d 15.2 both require that price depression or
suppression be the "effect" of the imports under inves tigation. In fact, the United States argues,
MOFCOM attempted to satisfy this requirement by referring to the "low price" of subject imports.
75. Moreover, the United States submits that MO FCOM failed to disclose the essential facts
supporting its conclusion of "low" s ubject import prices, which underpinned its finding of significant
price depression and suppression. The United States agrees with the Panel that, because MOFCOM's
conclusion regarding the "low price" of subject im ports was essential to support its price depression
and suppression finding, MOFCOM was required to disclose not only the conclusion regarding the
existence of a "low price" but also the "essential fa cts" supporting this conclu sion, in order to allow
interested parties to defend their interests. The United States highlights that the only disclosure made
by MOFCOM in its Final Injury Disclosure consis ts of AUV data for the subject imports, without
including any information about, or comparison with, AUVs of the domestic product.138
76. The United States disagrees with China's argume nt that, even if Articles 3.2 and 15.2 impose
an obligation to find some causal relationship betw een subject imports and adverse price effects,
MOFCOM still met its obligation to disclose the essential facts underl ying its price effects finding by
referring to the pricing policy of importers. The Un ited States argues, first, that the Panel correctly
recognized that MOFCOM's conclusion regarding th e "low price" of subject imports formed an
essential part of the reasoning MOFCOM used to support its price depression and suppression finding.
Second, the United States highlights that, in an y event, the Panel properly found that MOFCOM's
"vague references" to the "pricing policy" of the im porters "did not constitute an adequate disclosure
of essential facts to support MOFCOM's price effects finding". 139 According to the United States, the

Panel correctly recognized that Articles 6.9 and 12 .8 require disclosure of "facts", and not merely
assertions. The Panel also recognized that such f acts indeed existed and, once China had disclosed
them to the Panel, the United States was able to challenge their relevance for MOFCOM's price
depression finding.
77. In addition, the United States disagrees with China's position that "the margins of underselling
over the 2006-2008 period"
140 and the "facts about prices of subject imports relative to domestic
prices" were never essential facts that "'form[ed] the basis of the decision' to impose measures". 141
According to the United States, China's position is at odds with the language of the Final
Determination, in which MOFCOM repeatedly re ferred to the "low price" of subject imports. 142
Finally, the United States argues that the Panel di d not improperly focus its analysis on the pricing
policy of exporters, thereby ignoring MOFCOM's references to decreasing import prices and
increasing import volume. 143 Rather, it found that the references in MOFCOM's Preliminary
Determination and Final Injury Disclosure to the lo w price strategies of the Russian and US exporters
"were insufficient as a summary of the essential facts supporting the conclusion of low import
prices".144
78. For these reasons, the United States requests the A ppellate Body to uphold the Panel's finding
of inconsistency with Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement, as set forth in paragraphs 7.575 and 8.1(f) of the Panel Report.
3. Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement – Public Notice Requirements
79. The United States argues that the Panel properly found that MOFCOM's failure to include in
its Final Determination information material to its price effects anal ysis was inconsistent with the
public notice requirements of Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement . The United States contests China's argume nt that the Panel's allegedly flawed
interpretation of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement
led it to make incorrect findings under Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5
of the SCM Agreement.145 In the United States' view, China's argument that the Final Determination

141United States' appellee's submission, para. 108 (quoting China's appellant's submission, para. 220).
143United States' appellee's submission, para. 109 (referring to China's appellant's submission,
para. 221).
145United States' appellee's submission, para. 112 (referring to China's appellant's submission,
paras. 223-225).

only needed to contain a reference to the existe nce of price depression and suppression ignores that
Articles 3.2 and 15.2 require that price depression and suppression be the "effect" of subject imports.
80. The United States further argues that the Panel did not fault MOFCOM for failing to disclose
specific margins of price undercutting per se. Rather, "the Panel referre d to the existence of these
margins ... to illustrate that 'MOFCOM had before it information on the prices of subject imports and
the prices of the domestic product and undertook a comparative analysis of this information.'" 146 The
United States highlights that MOFCOM's Final Dete rmination disclosed no meaningful information
comparing the prices of subject imports and do mestic products, or identifying how the "pricing
policy" of importers affected the prices that they charged vis-à-vis domestic products.
81. The United States also reiterates that, in the light of the repeated references to the "low price"
of subject imports in the Final Determination, Chin a's argument that prices of subject imports relative
to prices of domestic products were not "matters of fact" that led to the imposition of final
measures147, or that they were not considered "material" by MOFCOM, is "implausible". 148
Moreover, the United States contends that China's reference to the disclosure of other elements
purportedly relevant to MOFCOM's price effects anal ysis, such as the pricing policy of importers, is
"no substitute" for a disclosure of information regarding the existence of "low" import prices.149
82. For these reasons, the United States requests the A ppellate Body to uphold the Panel's finding
of inconsistency with Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement, as set forth in paragraphs 7.592 and 8.1(f) of the Panel Report.
C. Arguments of the Third Participants
1. European Union
83. The European Union submits that, although a "literal reading" of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement could suggest that an investigating
authority must consider whether the price effects listed therein are caused by subject imports, these
provisions must be read together with th e other paragraphs of Article 3 of the Anti-Dumping
Agreement and Article 15 of the SCM Agreement .150 The European Union recalls that Articles 3.5
and 15.5 lay down precise requirements for establis hing the causal relationship between subject
imports and injury to the domestic industry. Thus, in the European Union's view, reading into

147United States' appellee's submission, para. 116 (quoting China's appellant's submission, para. 230).
148United States' appellee's submission, para. 116 (referring to China's appellant's submission,
para. 231).
150European Union's third participant's submission, para. 4.

Articles 3.2 and 15.2 an obligatio n to examine the existence of a causal link between the subject
imports and price depression/suppression would anti cipate and unnecessarily duplicate part of the
overall causal analysis that the investigating author ity must conduct pursuant to Articles 3.5 and 15.5.
The European Union recalls that, in attempti ng to distinguish the requirements imposed by
Articles 3.2 and 15.2 from the causation analysis mandated by Articles 3.5 and 15.5, the Panel noted
that the former provisions do not require a non-attribution analysis regarding factors other than the
subject imports. In the European Union's view, th e Panel's approach would still lead to an overlap
between these two sets of obligations, because the analysis required by Articles 3.5 and 15.5 is not
limited to a non-attribution analysis, and because it may be difficult to consider the causal link
between subject imports and effect s on domestic prices without taking into account factors other than
subject imports.
84. The European Union therefore contends that Articles 3.2 and 15.2 do not require an
examination of whether there is a causal link between subject imports and price effects. Rather, these
provisions require the investigating authority onl y to "consider" whether there is some rational
connection between subject imports and the price effect s listed therein. This connection is inherent in
the notion of "price undercutting", which involves a price comparison between subject imports and
like domestic products. As regards price depr ession and suppression, the investigating authority
should consider whether the observed decline in the prices of the like domestic products, or their
inability to increase, is consistent with the observed evolution of the prices and/or volume of the
subject imports. The European Union adds that the answer to the interpretative question raised by
China's appeal is "ultimately inconsequential", b ecause the investigating au thority would, in any
event, be required to examine the causal link between subject imports and price effects as part of the
analysis required by either: (i) Articles 3.2 and 15.2 ; (ii) Articles 3.5 and 15.5; or (iii) both sets of
provisions.
151
85. The European Union further submits that the use of the conjunction "or" in Articles 3.2
and 15.2 indicates that the investigating authority is not required to make a positive finding with
regard to all three price effects, but that this do es not mean that the authority may freely choose which
type of price effect to consider. In the Europ ean Union's view, although a finding of price depression
or suppression may, in theory, be independent fro m a finding of price undercutting, the examination
of price undercutting will often shed decisive light on the causal relationship between subject imports
and price depression/suppression. For example, where import prices are much higher than domestic
prices, "it would in normal circumstances be implau sible to argue" that subject imports have caused

151European Union's third participant's submission, para. 9.

price depression or suppression.152 Finally, the European Union maintains that, despite the absence of
an express finding by MOFCOM on price undercutti ng, the Panel should have examined whether
MOFCOM had properly "considered" the existence of that price effect, and the Panel would have
found that MOFCOM had not done so.
86. The European Union dismisses China's allegation that the Panel erred in requiring the use of
specific methodologies in order to conduct a price e ffects analysis. While the European Union agrees
that Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement do not
prescribe any specific methodology for examining pr ice effects, this does not mean that the
investigating authority enjoys unfettered discreti on. As the European Union states, "whatever
methodology is chosen, the investigating authority must ensure that a determination of injury is made
on the basis of 'positive evidence' of the effects of the dumped imports and involves an 'objective
examination' of such evidence."153 The European Union adds that th e examination of the price effects
of subject imports under Articles 3.2 and 15.2 necessarily entails some form of comparison of prices
or of prices and costs. The European Union agr ees with the Panel that, whenever prices are to be
compared, the investigating authority must en sure that they are "properly comparable". 154 T h e
European Union agrees that the obligat ions imposed by Article 2.4 of the Anti-Dumping Agreement
cannot be transposed as such to the injury context. However, this does not mean that an investigating
authority "is free to disregard any difference concerning the factors mentioned in Article 2.4 … such
as physical characteristics or levels of trade, when conducting an examination of price effects".
155
87. The European Union states that it is "concerned with MOFCOM's apparent failure to take into
account the differences in physical characteristics between the different grades of the subject
product".156 The European Union adds that, while single AUV comparisons may be appropriate if the
product is homogeneous, doing so when there are very different product types with widely diverging
prices may yield "differences between the mix of product types, rather than genuine price
undercutting or price depression". 157 The European Union considers that the cases on which China
relies do not support the position that Articles 3.1 and 3.2 impose no obligation to take into account
differences between product types, models, or grades. 158 In particular, the European Union notes that,

152European Union's third participant's submission, para. 12.
153European Union's third participant's submission, para. 16 (referring to Appellate Body Report,
EC – Bed Linen (Article 21.5 – India), para. 113).
154European Union's third participant's submission, para. 17 (quoting Panel Report, para. 7.530).
155European Union's third participant's submission, para. 18.
156European Union's third participant's submission, para. 19 (referring to Panel Report, para. 7.528).
157European Union's third participant's submission, para. 20.
158European Union's third participant's submission, para. 21 (referring to China's appellant's
submission, paras. 61-63, in turn referring to Appellate Body Report, Mexico – Anti-Dumping Measures on
Rice, para. 204; and para. 152, in turn referring to Panel Report, Egypt – Steel Rebar , para. 7.73, and Panel

although China seeks to rely on the panel's statement in EC – Fasteners (China), the panel in that case
stated that adjustments to prices in the context of a price undercutting analysis "may be a useful
means of ensuring that the requirements … in Article 3.1 are satisfied".
159 The European Union
further notes that, when the price differentials be tween the various types or grades of the subject
product are large, "even relatively small differences in product mix can have a substantial impact on
the outcome of the price undercutting analysis".160
88. The European Union disagrees with China's ar gument that the use of single AUVs obviates
the need to make adjustments for differences in the level of trade, because China's argument is
factually incorrect. Moreover, the European Union contends that the panel report in Egypt – Steel
Rebar should be read differently to how China reads it. According to the European Union, although
the panel in that dispute held that the Egyptian au thorities were not required to make a comparison "at
any particular level of trade" 161, the underlying assumption was that prices had nevertheless been
compared at the same level of trade, albeit diffe rently from the level preferred by Turkey. The
European Union also disagrees with China's ar gument that MOFCOM's failure to take price
differences into account is excused by the fact th at such arguments were not raised during the
investigation. According to the European Union, "i t is well-established that the complaining party is
not confined to the arguments made by the exporter during the antidumping investigation."162
89. With regard to the disclosure of "essential fact s", the European Union argues that, pursuant to
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement, an investigating
authority is required to disclose all essential facts re lating to its analysis of all price effects examined
under Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement. Moreover,
the object and purpose of the disclosure require ment under Articles 6.9 and 12.8 is to provide
interested parties in an investigation with an opportu nity to effectively exercise their right of defence
by commenting on the facts that are essential for th e investigating authority's process of analysis and
decision-making. Therefore, any disclosure of essential facts concerning the price analysis covers not
only the authority's conclusions about the existence of price effects, but also the underlying data and
methodology employed to reach those conclusions.

159European Union's third participant's submission, para. 22 (quoting Panel Report, EC – Fasteners
(China), para. 7.328).
160European Union's third participant's submission, para. 23.
161European Union's third participant's submission, para. 24 (quoting Panel Report, Egypt – Steel
Rebar, para. 7.73).
162European Union's third participant's submission, para. 25 (referring to Appellate Body Report,
Thailand – H-Beams , para. 94; Appellate Body Report, US – Lamb , para. 113; and Appellate Body Report,
US – Corrosion-Resistant Steel Sunset Review, para. 131).

90. The European Union further argues that, while an investigating authority "enjoys a certain
discretion" in adopting a methodology for examining the price effects of dumped imports, it does not
enjoy "unfettered discretion". 163 If investigating authorities were exempt from disclosing the
underlying data and methodologies employed in the context of a price analysis, their "discretion
would become complete, and a verification that the examination was conducted objectively and was
based on positive evidence would be nearly impossible".
164 Finally, the European Union agrees with
the Panel that, where confidential information is an "essential fact under consideration", the disclosure
obligation cannot be simply set aside, but must be met through the disclosure of meaningful
non-confidential summaries.
165
91. Finally, with regard to the public notice re quirements, the European Union submits that,
pursuant to Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement,
investigating authorities must make available in a public notice all relevant information on matters of
fact and law and reasons that have led to th e imposition of the final measure, including, inter alia,
their price effects finding. In the European Un ion's view, since MOFCOM failed to include all
relevant information concerning price undercutting in the public notice of the Final Determination, the
Appellate Body should uphold the Panel's findings that China acted inconsistently with
Articles 12.2.2 and 22.5.
2. Japan
92. Japan argues that Article 3.1 of the Anti-Dumping Agreement requires investigating
authorities to conduct an "objective examination" of the effect of dumped imports on prices of like
domestic products and to base this examination on "positive evidence". Article 3.2, in turn, clarifies
this obligation by requiring the authorities to consid er one of the three price effects listed therein.
Japan disagrees with China's interpretation of Article 3.2, because it fails to consider the words "effect
of" in conjunction with the words "the dumped imports" in Articles 3.1 and 3.2 of the Anti-Dumping
Agreement.166 Japan maintains that, under Article 3.2, i nvestigating authorities are required to show
that price undercutting, price depression, or price suppression has occurred as an effect of dumped
imports. Therefore, "it is obviously normal" to c onsider the price of dumped imports in relation to
that of the like domestic product. 167 In Japan's view, when the import price is higher than the
domestic price, this may indicate that imported and domestic products are not in competition with

163European Union's third participant's submission, para. 29 (referring to Appellate Body Report,
Mexico – Anti-Dumping Measures on Rice , para. 204; Appellate Body Report, EC – Bed Linen (Article 21.5 –
164European Union's third participant's submission, para. 29.
165European Union's third participant's submission, para. 30 (referring to Panel Report, para. 7.571).
166Japan's third participant's submission, para. 4.
167Japan's third participant's submission, para. 4.

each other, and that price depression or price s uppression could not be an effect of the dumped
imports.
93. Japan submits that, under Article 3.2, inves tigating authorities are required to weigh the
merits of positive evidence regarding whether there has been price undercutting, price depression, or
price suppression as a consequence of the price of dumped imports. Thus, Japan submits that the
Panel succinctly summarized the authorities' ob ligations under Article 3.2 in accordance with a
correct interpretation of this provision. Japan a dds that the authorities' deliberation in accordance
with Article 3.2 "must be apparent from the documents forming the basis for [the panel's] review".
168
94. With regard to the disclosure of "essential facts", Japan argues that, when investigating
authorities intend to base their final injury determination on price depression or suppression, they
must, under Article 6.9 of the Anti-Dumping Agreement, disclose facts that are essential to a finding
of these price effects. Japan recalls that Article 3.2 of the Anti-Dumping Agreement requires
authorities to consider the consequential relations hip between dumped imports and prices of domestic
like products. Japan submits that, if MOFCOM's finding of such relationship is based on the
comparison between the prices of subject imports and the prices of like domestic products, the
essential facts that MOFCOM was required to disclose include these prices.
95. Japan argues that the requirement under Article 12.2.2 of the Anti-Dumping Agreement that
the public notice of the final determination contain "a ll relevant information on the matters of fact and
law and reasons" must be understood in the context of Article 12.2, which requires authorities to set
forth explanations on "all issues of fact and law cons idered material by the investigating authorities".
Accordingly, the issues that are relevant to, and material in, the establishment of injury, must be
explained by an investigating authority in its fina l determination "such that its reasons for concluding
as it did can be discerned and are understood".
169
96. Japan submits that, as discussed in th e context of Article 6.9 of the Anti-Dumping Agreement,
price depression or suppression would be essential fact s underlying a final injury determination when
investigating authorities base their determination on these issues. These issues would therefore be
relevant and material to the final injury determ ination. Moreover, authorities must provide an
explanation of sufficient detail to allow readers of the public notice to discern and understand the
reasons for the conclusion that the dumped imports significantly depressed or suppressed the prices of

168Japan's third participant's submission, para. 6 (quoting Panel Report, Thailand – H-Beams ,
para. 7.179).
169Japan's third participant's submission, para. 12 (quoting Panel Report, EU – Footwear (China) ,
para. 7.844).

domestic like products and were thus causing injury. In Japan's vi ew, a mere statement regarding
domestic prices alone would not be sufficient.
3. Korea
97. With regard to the interpretation of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement , Korea maintains that the fact that causation requirements are
addressed by other provisions of these Agreemen ts "does shed an important light" on the
interpretation of Articles 3.2 and 15.2, and China' s arguments in this respect should be carefully
analyzed.170 Korea, however, does not subscribe to the view that Articles 3.2 and 15.2 categorically
exclude a causation analysis. Korea acknowledges th at the word "consider" in Articles 3.2 and 15.2
imposes a lower level of obligation on the invest igating authorities than the word "demonstrate"
contained in Articles 3.5 and 15.5. Nonetheless, the word "consider" requires investigating authorities
to take certain concrete action, and the fact that the authorities fulfilled this requirement should be
proven by evidence.171
98. In Korea's view, the word "effect" arguably carries both a meaning of "causation" and a
meaning of "consequence". Moreover, noting the phr ase "the effect of the [dumped or subsidized]
imports on prices" in Articles 3.2 and 15.2, Korea ma intains that the word "effect" in these provisions
should not be interpreted in isolation, but should be properly regarded as indicating a relationship
between the subject imports and the price effects. According to Korea, examining this relationship
would essentially be a causation discussion, though not id entical to that required under Article 3.5 of
the Anti-Dumping Agreement and Article 15.5 of the SCM Agreement.
99. Korea further notes that the verb "affect" in Ar ticles 3.4 and 15.4 means "to have an effect
on". Thus, in the context of Articles 3 and 15, th e interpretations of "effect" and "affect" can be
"virtually [the] same". 172 Finally, Korea recalls that the panel in Korea – Commercial Vessels found
that the term "the effect of the subsidy" in Article 6.3 of the SCM Agreement requires a causation
analysis, and argues that that panel's finding may provide useful context for the interpretative question
in this dispute.173
100. Regarding China's claim under Article 11 of the DSU, Korea argues that, although
investigating authorities possess wide latitude in evaluating evidence collected, and in adopting

170Korea's third participant's submission, para. 8.
171Korea's third participant's submission, para. 11 (referring to Panel Report, Thailand – H-Beams ,
para. 7.161).
172Korea's third participant's submission, para. 16.
173Korea's third participant's submission, para. 18 (referring to Panel Report, Korea – Commercial
Vessels, paras. 7.612-7.616).

specific methodologies to evaluate that evidence, such discretion "is not unbridled … and is only
permitted within the parameters of relevant provisions at issue".
174 Korea adds that the obligations
contained in Articles 3 and 15 shoul d be interpreted and implemented together with the overarching
requirements of "positive evidence" and "objective ex amination" appearing in Articles 3.1 and 15.1.
Viewed from this perspective, Ko rea argues, the assertion that an i nvestigating authority is accorded
with discretion may not be "determinative" as to wh ether the authority acted consistently with its
obligations under Articles 3 and 15.175
101. Korea concurs with the view that, when an inv estigating authority has relied on the totality of
the evidence, a reviewing panel is also obliged to follow the same methodology. Korea considers that
the Appellate Body report in US – Countervailing Duty Investigation on DRAMS stands for the
proposition that a panel may not conduct a de novo review of the evidence gathered by the authority.
Rather, Korea argues, "the panel is to conduct a revi ew using the same analytical tool adopted by the
authority at issue." 176 Korea thus considers that a panel must assess whether an investigating
authority's determination is supported by the totality of evidence on the record, but "may well reach a
conclusion that, in a particular dispute at issue, such totality of evidence does not support the findings
of the investigating authority as an 'unbiased and objective investigating authority'".177
4. Saudi Arabia
102. Saudi Arabia submits that the Anti-Dumping Agreement and the SCM Agreement reflect a
delicate balance between the interests of the par ties subject to anti-dumping and countervailing duty
investigations and those of the investigating author ities tasked with completing the investigations in a
thorough and timely manner. Saudi Arabia request s the Appellate Body to interpret the relevant
provisions of these Agreements in the light of this balance.
103. Saudi Arabia submits that the Panel's interpretation of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement is consistent with the text of the second sentence
of these provisions. These sentences establish that an y observed price effects must be attributable to
the subject imports by stipulating that price underc utting is "by the [dumped or subsidized] imports",
and that "the effect of the [dumped or subsidized] im ports" is to "depress prices" or to "prevent price
increases". This reading of Articles 3.2 and 15.2 is confirmed by the ordinary meaning of the word

174Korea's third participant's submission, para. 20.
175Korea's third participant's submission, para. 21.
176Korea's third participant's submission, para. 23.
177Korea's third participant's submission, para. 25.

"effect", and by the fact that "cau se and effect are correlative terms". 178 Moreover, Saudi Arabia
argues, the fact that the first sentence of Articles 3.2 and 15.2 "establishes that volume effects must be
attributed to the subject imports" further supports this reading of Articles 3.2 and 15.2, because an
interpretation of the second sentence as not requiring the attribution of observed price effects to the
subject imports would create "incongruous standards for volume effects and price effects".179
104. Saudi Arabia submits that settled jurisprudence by the Appellate Body supports the Panel's
interpretation. Saudi Arabia recalls the Appellate Body's findings in EC – Bed Linen (Article 21.5 –
India) that "[i]t is clear from the text of Article 3.2 that investigating authorities must consider
whether there has been a significant increase in dumped imports, and that they must examine the
effect of dumped imports on prices resulting from price und ercutting, price depression, or price
suppression"180, and that, "[i]n stipulating how to undertake the analyses of volume and prices,
Article 3.2 refers consiste ntly to 'dumped imports'." 181 In Saudi Arabia's view, the Appellate Body's
statements "establish that Articles 3.2 and 15.2 impose on authorities a clear obligation to examine
price effects that are attributed to subject imports".182
105. Saudi Arabia further contends that an interp retation that did not require the authorities to
examine the effect of the subject imports would nullify the non-attribution requirement of Articles 3.5
and 15.5. Saudi Arabia notes that the price effects within the meaning of Articles 3.2 and 15.2 are one
of the factors that the authorities must examine to determine whether the subject imports caused injury
to the domestic industry under Articles 3.5 and 15.5. In carrying out the causation analysis, an
investigating authority must ensure that injury caused by other known factors is not wrongly
attributed to the subject imports.183 This non-attribution requirement, however, would not be satisfied
if an authority merely examined domestic or im port prices generally, rather than examining the
specific price effects of dumped or subsidized imports . Therefore, Saudi Arabia maintains, unless the
adverse price effects are properly attributed to the subject imports, it would be impossible to
determine whether such imports are responsible for the injured state of the domestic industry.

178Saudi Arabia's third participant's submission, para. 6 (quoting The Oxford English Dictionary
Online, OED Online (Oxford University Press), a ccessed 9 August 2012, available online at:
<http://www.oed.com/view/Entry/29147#eid9876036>).
179Saudi Arabia's third participant's submission, para. 8.
180Saudi Arabia's third participant's submissi on, para. 9 (quoting Appellate Body Report, EC – Bed
Linen (Article 21.5 – India), para. 111 (original emphasis)).
181Saudi Arabia's third participant's submission, para. 9 (quoting Appellate Body Report, EC – Tube or
Pipe Fittings, para. 111).
182Saudi Arabia's third participant's submission, para. 9. (original emphasis)
183Saudi Arabia's third participant's submission, para. 12 (referring to Appellate Body Report,
US – Hot-Rolled Steel , paras. 226-228; and Appellate Body Report, EC – Tube or Pipe Fittings , paras. 175
and 188).

106. Saudi Arabia considers that the legal standard set out by the Panel for disclosure of essential
facts is consistent with the text of Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement, as well as with established WTO jurisprude nce. In Saudi Arabia's view, the proper
legal standard should balance the interests of th e parties, who must have sufficient time and
information to participate meaningfu lly in a trade remedy investigation, with an authority's interest in
efficient administration of the investigation.
107. Saudi Arabia argues that the text of Artic les 6.9 and 12.8 imposes two "straightforward"
obligations on an investigating authority: (i) to disclose "the essential facts under consideration which
form the basis for the decision whether to apply defi nitive measures"; and (ii) "to do so in sufficient
time so that parties can defend their interests".
184 In Saudi Arabia's view, the essential facts are those
that "'underlie the investigating authority's final findings and conclusions' in respect of the essential
elements that must exist in order to apply definite measures". 185 Such facts also "include the 'facts
necessary to the process of analysis and decision-making by the investigating authority, not only those
that support the decision ultimately reached '."186 Finally, Saudi Arabia submits that it should be
ensured that the disciplines in Articles 6.9 and 12.8 permit interested parties to defend fully their
interests by requiring authorities to disclose all reco rd evidence relating to the essential elements that
must be established before the application of definitive measures.
108. Saudi Arabia considers that the Panel's enunc iation of the public notice standard under
Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement appropriately
balances the transparency obligations of both Ag reements with the practical concerns of the
investigating authorities regarding the efficient ad ministration of trade remedy investigations.
Saudi Arabia contends that the fi ndings of the Appellate Body in US – Countervailing Duty
Investigation on DRAMS offer a balanced approach that imposes manageable, yet important, public
notice obligations on Members' investigating authoriti es. In that dispute, the Appellate Body held
that, although the text of Article 22.5 "do es not require the agency to cite or discuss every piece of
supporting record evidence for each fact in the final determination" 187, the investigating authority
"must provide a 'reasoned and ad equate explanation as to: (i) how the evidence on the record

184Saudi Arabia's third participant's submissi on, para. 19 (referring to Panel Report, EC – Salmon
(Norway), para. 7.794).
185Saudi Arabia's third participant's submission, para. 20 (quoting Panel Report, Mexico – Olive Oil ,
para. 7.110).
186Saudi Arabia's third participant's submission, para. 20 (quoting Panel Report, EC – Salmon
(Norway), para. 7.807). (emphasis added by Saudi Arabia)
187Saudi Arabia's third participant's submissi on, para. 24 (quoting Appellate Body Report,
US – Countervailing Duty Investigation on DRAMS, para. 164 (original emphasis)).

supported its factual findings; and (ii) how those factual findings supported the overall …
determination', and this should be directly 'discernible from the published determination itself'."188
109. Finally, Saudi Arabia adds that the informati on that must be contained in the public notice
depends on its relationship with the investigating authority's determination. In the case of injury and
price effects, if an authority's injury determina tion relies on certain price effects information, then
such information must be included in the public notice announcing that determination.
III. Issues Raised in This Appeal
110. The following issues are raised in this appeal:
(a) whether, in assessing MOFCOM's finding of significant price depression and
suppression189, the Panel erred in finding that China acted inconsistently with
Articles 3.1 and 3.2 of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the
SCM Agreement, and, in particular:
(i) whether the Panel erred in its inte rpretation of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement;
(ii) whether the Panel erred in its application of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement , read together with
Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the
SCM Agreement; and
(iii) whether the Panel acted inconsistently with its duty to make an objective
assessment under Article 11 of the DSU;
(b) whether, in relation to MOFCOM's price effects finding, the Panel erred in finding
that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement and
Article 12.8 of the SCM Agreement by failing to disclose "essential facts"; and

188Saudi Arabia's third participant's submissi on, para. 24 (quoting Appellate Body Report,
US – Countervailing Duty Investigation on DRAMS, para. 186).
189In this Report, we also use the term "price e ffects finding" to refer to MOFCOM's finding of
significant price depression and supp ression. In addition, unless otherwise specified, we follow the practice of
the parties and the Panel in using the term "price depression" or "significant price depression", and "price
suppression" or "significant price suppression", as shorthan d references to the price effects that are identified in
Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as follows: "to depress
prices to a significant degree or [to] prevent price increases, which otherwise would have occurred, to a
significant degree".

(c) whether, in relation to MOFCOM's price effects finding, the Panel erred in finding
that China acted inconsistently with Article 12.2.2 of the Anti-Dumping Agreement
and Article 22.5 of the SCM Agreement by failing to disclose "all relevant
information on the matters of fact".
IV. The Scope of China's Appeal
111. Before commencing our analysis of the issues rai sed in China's appeal, we consider it useful
to discuss the scope of China's appeal and the impli cations for our review. In its Notice of Appeal,
China seeks review by the Appellate Body of the Pa nel's interpretation and application of Article 3.2
of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as it relates to the finding of
adverse price effects of subject imports
190 by the Ministry of Commerce of the People's Republic of
China ("MOFCOM"), that is, significant price depression and suppression. Thus, China's Notice of
Appeal does not include a request that the Appellate Body review the Panel's findings as they relate to
Articles 3.1 and 15.1. Nonetheless, in its appella nt's submission, China requests the Appellate Body
to reverse the Panel's ultimate finding that MOFCOM 's price effects finding was inconsistent with
Articles 3.1 and 3.2 of the Anti-Dumping Agreement , and Articles 15.1 and 15.2 of the
SCM Agreement, on the basis of the Panel's alleged errors in its interpretation and application of
Articles 3.2 and 15.2.
191 China explains that, whereas Articles 3.1 and 15.1 set out the overarching
principle that informs an investigating authority's analysis under subsequent paragraphs of Articles 3
and 15, Articles 3.2 and 15.2 provide "all of the subs tantive content" of an investigating authority's
obligation in considering adverse price effects. 192 China adds that, although it is not challenging the
Panel's interpretation and applica tion of Articles 3.1 and 15.1, it no netheless takes issue with how the
Panel applied the overarching prin ciple under Articles 3.1 and 15.1 in characterizing the substantive
content of an authority's obligation under Articles 3.2 and 15.2.193
112. We recall that, before the Panel, the Unite d States alleged that MOFCOM's finding of
significant price depression and suppression was inc onsistent with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement, and Articles 15.1 and 15.2 of the SCM Agreement, because MOFCOM did
not base its finding on "positive evidence", and di d not conduct an "objective examination", with
respect to: (i) the existence of significant price depression and suppression during the period of
investigation; and (ii) whether any such price depression and suppression were the effects of subject

190We use the term "subject imports" to refer to dumped and/or subsidized imports subject to an
investigation.
191China's appellant's submission, paras. 109 and 192.
193China's response to questioning at the oral hearing.

imports.194 In addressing these claims, the Panel began by noting that it was called upon to determine
whether the quality of the evidence relied on by MOFCOM in its price effects finding met the
"positive evidence" standard set forth in Article s 3.1 and 15.1, and whether MOFCOM undertook an
objective examination of the evidence as required by these provisions. Subsequently, in examining
the United States' claims in respect of MOFCOM 's price effects finding, the Panel applied the
standard in Articles 3.2 and 15.2, in conjunction with the obligation set out in Articles 3.1 and 15.1, in
finding that MOFCOM's price effects finding was "inconsistent with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement, and Articles 15.1 and 15.2 of the SCM Agreement".195
113. Thus, the Panel did not make separate findings under Articles 3.1 and 15.1, on the one hand,
and Articles 3.2 and 15.2, on the other hand. Rather , given that the standard in Articles 3.1 and 15.1
informed the Panel's analysis of MOFCOM's pr ice effects finding under Articles 3.2 and 15.2, the
Panel's finding of inconsistency under these provisions was based on an integrated analysis of both
sets of provisions. Therefore, even though China has not challenged the Panel's interpretation and
application of Articles 3.1 and 15.1, we consider th at our examination of th e Panel's analysis under
Articles 3.2 and 15.2 cannot be conducted in isola tion from the Panel's analysis pursuant to the
standard under Articles 3.1 and 15.1. It follows that we will examine the Panel's analysis of
MOFCOM's price effects finding in the light of th e interpretation of Articles 3.1 and 15.1 that has
been developed in the Appellate Body's relevant jurisprudence.
196
114. Finally, we recall that MOFCOM's price effects finding forms part of its overall
determination regarding injury to the domestic i ndustry caused by the dumped and subsidized imports
of grain oriented flat-rolled electrical steel ("GOES") from Russia 197 and the United States. Before
the Panel, the United States' challenge of this de termination concerned: (i) the consistency of
MOFCOM's price effects finding with Articles 3.1 and 3.2 of the Anti-Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement ; and (ii) the consistency of MOFCOM's causation
finding with Articles 3.1 and 3.5 of the Anti-Dumping Agreement and Articles 15.1 and 15.5 of the
SCM Agreement. The Panel upheld the United States' claims under all of these provisions. China has

194Panel Report, paras. 7.485 and 7.490.
195Panel Report, para. 7.554.
196See Appellate Body Report, Thailand – H-Beams , paras. 106 and 107; Appellate Body Report,
US – Hot-Rolled Steel, paras. 192, 193, 196, and 204-206; and Appellate Body Report, Mexico – Anti-Dumping
Measures on Rice , paras. 163-166, 180, 181, 204, and 205. See also Panel Report, para. 7.513 (referring to
Appellate Body Report, US – Hot-Rolled Steel, para. 192; and Appellate Body Report, Mexico – Anti-Dumping
Measures on Rice, paras. 163 and 164).
197As indicated in the Introduction of this Report, MOFCOM initiated an anti-dumping investigation on
imports of GOES from both Russia and the United States, and initiated a countervailing duty investigation only
with respect to GOES imports from the United States. (See supra, para. 2 and footnote 4 thereto) Moreover,
MOFCOM conducted a single injury and causation analysis relating to both the anti-dumping and
countervailing duty investigations, and performed a cumulative assessment of injury by collectively taking into
account GOES imports from both Russia and the United States. (See supra, para. 3)

limited its appeal, however, to the Panel's finding with respect to MOFCOM's price effects finding,
and does not appeal the Panel's finding that MOFC OM's causation finding was inconsistent with
Articles 3.1 and 3.5 of Anti-Dumping Agreement and Articles 15.1 and 15.5 of the SCM Agreement.
198
Thus, the Panel's finding regarding MOFCOM's causa tion finding stands, even if we were to reverse
the Panel's finding in respect of MOFCOM's price effects finding.
115. With the above considerations in mind, we turn to review the specific errors alleged by China
regarding the Panel's interpretation and application of Articles 3.2 and 15.2.
V. Interpretation of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement
116. China claims that the Panel erred in its interpretation of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement in stating that:
… merely showing the existence of significant price depression [and
suppression] does not suffice for the purposes of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement.
An authority must also show that such price depression [and
suppression are] an effect of the subject imports.
199
China maintains that the Panel failed properly to analyze the meaning of Articles 3.2 and 15.2, and
thereby imposed obligations on investigating author ities that are not found in these provisions. China
submits that the Panel's interpreta tive errors are further revealed by aspects of its examination of
MOFCOM's price effects finding.
117. In order to address China's claim regarding the a lleged errors in the Panel's interpretation, we
begin by recalling the Panel's relevant findings an d the context in which the Panel made the above
statement. We then analyze the interpretation of the relevant obligations under Articles 3.2 and 15.2,
as well as China's specific arguments concerning the Panel's errors in the interpretation of these
provisions.
A. The Panel's Findings
118. Before the Panel, the United States alleged that MOFCOM's price effects finding was
inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement, and Articles 15.1 and 15.2 of
the SCM Agreement, because MOFCOM did not base its finding on positive evidence, and did not
conduct an objective examination, with respect to : (i) the existence of significant price depression

198Panel Report, paras. 7.638 and 8.1(g).

and suppression during the period of investigation; and (ii) whether any such price depression and
suppression were the effects of subject imports.
119. With regard to the first part of the Unite d States' claim, the Panel found that MOFCOM
properly determined that there existed significant price depression and suppression "per se" during the
period of investigation. 200 Specifically, the Panel found that MOFCOM's finding regarding the
existence of price depression per se could rest on its finding that domestic prices fell by 30.25% in the
first quarter of 2009. 201 Furthermore, the Panel found "no flaws" 202 in MOFCOM's reliance on
changes in the price-cost ratio of like domestic products to find the existence of price suppression
per se in 2008 and the first quarter of 2009.
120. The Panel went on to examine the second part of the United States' claim. MOFCOM found
that significant price depression and suppression were the effects of subject imports, and the
United States maintained that this finding of MOFCOM was not based on positive evidence and did
not involve an objective examination. The Panel not ed China's argument that the need to establish a
link between price effects and subject imports is not contained in Articles 3.2 and 15.2, but rather is
part of the broader obligations in Article 3.5 of the Anti-Dumping Agreement and Article 15.5 of the
SCM Agreement.203 The Panel then stated:
Having regard to the text of the relevant provisions, we note that the
analysis envisaged by the second sentence of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement
concerns "the effect of the [dumped/subsidized] imports on prices."
Furthermore, the authority must consider whether "the effect of
[dumped/subsidized] imports is … to depress prices to a significant
degree". Accordingly, merely showing the existence of significant
price depression does not suffice for the purposes of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement. An authority must also show that such price
depression is an effect of the subject imports.
204
121. The Panel also found that "[t]he same necessarily applies in respect of an authority's finding
of price suppression." 205 Applying this interpretation to the facts of the case, the Panel found that

200Panel Report, paras. 7.515-7.517 and 7.546.
201Panel Report, para. 7.517.
202Panel Report, para. 7.546.
203Panel Report, para. 7.519.
204Panel Report, para. 7.520.
205Panel Report, para. 7.547.

MOFCOM's finding that significant price depression and suppression were the effects of subject
imports was neither made pursuant to an objective examination, nor based on positive evidence.
206
B. Interpretation of Article 3.2 of the An ti-Dumping Agreement and Article 15.2 of the
SCM Agreement
122. Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement provide:
With regard to the volume of the [dumped or subsidized] imports, the
investigating authorities shall cons ider whether there has been a
significant increase in [dumped or subsidized] imports, either in
absolute terms or relative to production or consumption in the
importing Member. With regard to the effect of the [dumped or
subsidized] imports on prices, the investigating authorities shall
consider whether there has been a significant price undercutting by
the [dumped or subsidized] imports as compared with the price of a
like product of the importing Member, or whether the effect of such
imports is otherwise to depress prices to a significant degree or [to]
prevent price increases, which otherwise would have occurred, to a
significant degree. No one or sev eral of these factors can necessarily
give decisive guidance.
123. China contends that the Panel misinterpreted Articles 3.2 and 15.2 by erroneously requiring
MOFCOM to demonstrate a causal link between subject imports, on the one hand, and significant
price depression and suppression, on the other hand, even though these provisions do not impose such
an obligation. Rather, according to China, an investigating authority is only required to "consider" the
"existence" of significant price depression or suppression.
207 In response, the United States contends
that the Panel properly construed Articles 3.2 and 15.2 as requiring an investigating authority to assess
whether significant price depression and suppression in the market are the "effect of [dumped or
subsidized] imports".208
124. Thus, although three price effects are set out in Articles 3.2 and 15.2, the interpretative
question raised by China on appeal concerns but two of these price effects. Specifically, China's
appeal raises the question as to the scope of an investigating authority's obligations, under Articles 3.2
and 15.2, to "consider … whether the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would have occurred, to a significant
degree". To analyze this question, we first exam ine the framework for an injury determination under
Article 3 of the Anti-Dumping Agreement and Article 15 of the SCM Agreement, so as to situate in

206Panel Report, paras. 7.543 and 7.551. The Panel's application of the relevant provisions to the facts
of the case and China's appeal in that regard is analyzed in section VI below.

their context the specific obligations addressed by Chin a's appeal. We then tu rn to the interpretation
of specific terms in Articles 3.2 and 15.2 that are relevant to China's appeal.
1. The Framework for an Injury Determin ation Provided by Article 3 of the
Anti-Dumping Agreement and Article 15 of the SCM Agreement
125. Article 3 of the Anti-Dumping Agreement and Article 15 of the SCM Agreement are entitled
"Determination of Injury". The word "injury" is de fined in these agreements as "material injury to a
domestic industry, threat of material injury to a domestic industry or material retardation of the
establishment of such an industry".209 Articles 3 and 15 both contain several paragraphs setting out an
investigating authority's obligations with regard to various aspects of an injury determination in anti-
dumping and countervailing duty investig ations. Articles 3.1 and 15.1 re quire that a determination of
injury "be based on positive evidence and involve an objective examination of both (a) the volume of
the [dumped or subsidized] imports and the effect of the [dumped or subsidized] imports on prices in
the domestic market for like products, and (b) the consequent impact of these imports on [the]
domestic producers of such products".
126. The Appellate Body has found that Article 3.1 of the Anti-Dumping Agreement "is an
overarching provision that sets forth a Member's fundamental, substantive obligation" with respect to the
injury determination, and "informs the more detailed obligations in succeeding paragraphs". 210
According to the Appellate Body, the term "positive evidence" relates to the quality of the evidence
that an investigating authority may rely upon in making a determination, and requires the evidence to be
affirmative, objective, verifiable, and credible.
211 Furthermore, the Appellate Body has found that the
term "objective examinati on" requires that an investigating authority's examination "conform to the
dictates of the basic principles of good faith and fundamental fairness", and be conducted "in an
unbiased manner, without favouring the interests of any interested party, or group of interested parties,
in the investigation".212
127. In addition to setting forth the overarching ob ligation regarding the manner in which an
investigating authority must conduct a determinati on of injury caused by subject imports to the
domestic industry, Articles 3.1 and 15.1 also outlin e the content of such a determination, which
consists of the following components: (i) the volum e of subject imports; (ii) the effect of such
imports on the prices of like domes tic products; and (iii) the conseque nt impact of such imports on
the domestic producers of the like products. The other paragraphs under Articles 3 and 15 further
elaborate on the three essential components referenced in Articles 3.1 and 15.1. Articles 3.2 and 15.2

209Footnote 9 of the Anti-Dumping Agreement and footnote 45 of the SCM Agreement.
210Appellate Body Report, Thailand – H-Beams, para. 106.
211Appellate Body Report, US – Hot-Rolled Steel, para. 192.
212Appellate Body Report, US – Hot-Rolled Steel, para. 193.

concern items (i) and (ii) above, and spell out th e precise content of an investigating authority's
consideration regarding the volume of subject imports and the eff ect of such imports on domestic
prices. Articles 3.4 and 15.4, together with Artic les 3.5 and 15.5, concern item (iii), that is, the
"consequent impact" of the same imports on the dom estic industry. More specifically, Articles 3.4
and 15.4 set out the economic factors that must be ev aluated regarding the impact of such imports on
the state of the domestic industry, and Articles 3. 5 and 15.5 require an investigating authority to
demonstrate that subject imports are causing injury to the domestic industry.
213
128. The paragraphs of Articles 3 a nd 15 thus stipulate, in detail, an investigating authority's
obligations in determining the injury to the domes tic industry caused by subject imports. Together,
these provisions provide an investigating authority with the relevant framework and disciplines for
conducting an injury and causation analysis. These provisions contemplate a logical progression of
inquiry leading to an investigating authority's u ltimate injury and causation determination. This
inquiry entails a consideration of the volume of subject imports and their price effects, and requires an
examination of the impact of such imports on th e domestic industry as revealed by a number of
economic factors. These various elements are th en linked through a causation analysis between
subject imports and the injury to the domestic industr y, taking into account all factors that are being
considered and evaluated. 214 Specifically, pursuant to Articles 3.5 and 15.5, it must be demonstrated
that dumped or subsidized imports are causing injury " through the effects of" dumping or subsidies
"[a]s set forth in paragraphs 2 and 4". 215 Thus, the inquiry set forth in Articles 3.2 and 15.2, and the
examination required in Articles 3.4 and 15.4, are ne cessary in order to answer the ultimate question
in Articles 3.5 and 15.5 as to whether subject imports are causing injury to the domestic industry. The
outcomes of these inquiries thus form the basis fo r the overall causation analysis contemplated in
Articles 3.5 and 15.5. As further explained below, the interpretation of Articles 3.2 and 15.2 should
be consistent with the role these provisions play in the overall framework of an injury determination
under Articles 3 and 15.

213Additionally, Articles 3.3 and 15.3 stipulate the conditions under which an investigating authority
may cumulatively assess the effects of imports from more than one country. Articles 3.6 and 15.6 specify that
the effect of the subject imports must be assessed in relation to the production of the like domestic product.
Articles 3.7 and 3.8 of the Anti-Dumping Agreement and Articles 15.7 and 15.8 of the SCM Agreement set out
the requirements regarding the determination of a threat of material injury.
214As the Appellate Body has found, "Article 3.1 an d the succeeding paragraphs of Article 3 [of the
Anti-Dumping Agreement] clearly indicate that volume and prices [of the dumped imports], and the consequent
impact on the domestic industry, are closely interrelated for purposes of the injury determination." (Appellate
Body Report, EC – Tube or Pipe Fittings, para. 115)
215Emphasis added.

2. The Obligation to "Consider"
129. Turning to the obligations in Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of
the SCM Agreement , an investigating authority is instru cted to "consider" a series of specific
inquiries. With regard to the volume of subject im ports, an investigating authority must "consider
whether there has been a significant increase in [dumpe d or subsidized] imports". With regard to the
effect of such imports on domestic prices, the au thority must "consider whether there has been a
significant price undercutting by the [dumped or subs idized] imports as compared with the price of a
like product of the importing Member, or whether the e ffect of such imports is otherwise to depress
prices to a significant degree or [to] prevent price increases, which otherwise would have occurred, to
a significant degree".
130. The notion of the word "consider", when cast as an obligation upon a decision maker, is to
oblige it to take something into account in reaching its decision.216 By the use of the word "consider",
Articles 3.2 and 15.2 do not impose an obligation on an investigating authority to make a definitive
determination on the volume of subject imports and the e ffect of such imports on domestic prices. 217
Nonetheless, an authority's consideration of the volume of subject im ports and their price effects
pursuant to Articles 3.2 and 15.2 is also subject to the overarching principles, under Articles 3.1
and 15.1, that it be based on positive evidence and in volve an objective examination. In other words,
the fact that no definitive determination is required does not diminish the rigour that is required of the
inquiry under Articles 3.2 and 15.2.
131. Furthermore, while the consideration of a matter is to be distinguished from the definitive
determination of that matter, this does not diminish the scope of what the investigating authority is
required to consider. The fact that the authority is only required to consider, rather than to make a
final determination, does not change the subject matter that requires consideration under Articles 3.2
and 15.2, which includes "whether the effect of" th e subject imports is to depress prices or prevent

216The meaning of the word "consider" includes "look at attentively", "think over", and "take into
account". ( Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 496)
217This stands in contrast with the words used in other paragraphs of Articles 3 and 15. For example,
the word "demonstrate" in Articles 3.5 and 15.5 requires an investigating authority to make a definitive
determination regarding the causal relationship between subject imports and injury to the domestic industry.
Relevant findings by panels in prior disputes also support the above understanding of the word "consider". For
example, the panel in Thailand – H-Beams noted that the term "consider" in Article 3.2 does not require an
explicit "finding" or "determination" by the investigating authority as to whether the increase in dumped imports
is "significant". (Panel Report, Thailand – H-Beams, para. 7.161) Similarly, the panel in Korea – Certain Paper
stated that Article 3.2 does not generally require the investigating authority to make a determination about the
"significance" of price effects, or indeed as to whether there were price effects as such. (Panel Report, Korea –

price increases to a significant degree. We furt her discuss below what th is requirement entails.
218
Finally, an investigating authority's consideration under Articles 3.2 and 15.2 must be reflected in
relevant documentation, such as an authority's final determination, so as to allow an interested party to
verify whether the authority indeed considered such factors.219
132. On appeal, China maintains that Articles 3. 2 and 15.2 impose "only a limited obligation on
authorities" to "consider" the price effects of subject im ports, that is, to "examine; look at attentively;
[and] think carefully about" such price effects. 220 China finds support for its position in the panels'
findings in Korea – Certain Paper and Thailand – H-Beams that Article 3.2 of the Anti-Dumping
Agreement requires an investigating authority to consider the price effects described therein, but does
not require that a determinati on be made in this regard. 221 In our view, China is correct that an
investigating authority's obligation in this r espect does not require it to reach a definitive
determination. However, as noted above, this doe s not alter the subject matter of the authority's
consideration, or the fact that the authority's consideration must be based on positive evidence and
involve an objective examination, and must be reflected in relevant documentation, such as an
authority's final determination.
3. The Obligation to Consider "Whether the Effect of Such Imports" Is to
Depress Prices or Prevent Price Increases
133. The second sentence of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement provides that, "[w]ith regard to the effect of the [dumped or subsidized] imports on
prices", an investigating authority must consider "whether there has been a significant price
undercutting by the [dumped or subsidized] imports as compared with the price of a like product of
the importing Member, or whether the effect of such imports is otherwise to depress prices to a
significant degree, or [to] prevent price increa ses, which otherwise would have occurred, to a
significant degree". As noted above, China's a ppeal regarding the Panel's interpretation of
Articles 3.2 and 15.2 concerns an investigating author ity's obligation with respect to the last two price
effects, that is, its obligation to consider whethe r the effect of dumped or subsidized imports is
significant price depression or suppression. We turn now to examine the interpretation of Articles 3.2
and 15.2 with regard to an investigating authority's obligation to consider the effect of subject imports
on domestic prices and, in particular, the last two price effects listed therein.

218See infra, paras. 133-154.
219See, for example, Panel Report, Thailand – H-Beams , para. 7.161; and Panel Report,
Korea – Certain Paper, para. 7.253.
220China's appellant's submission, para. 51 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 485).
221China's appellant's submission, paras. 53 and 54 (referring to Panel Report, Thailand – H-Beams ,

(a) The Text of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
134. China contends that Articles 3.2 and 15.2 do not use any language that suggests the need to
establish a link between domestic prices and subject imports. China notes that the ordinary meaning
of the word "effect" is "something accomplished, caused or produced; a result, a consequence". 222
According to China, therefore, the term "the effe ct of" simply means the consequence of a certain
cause, and focuses on the consequence, rather than the cause. In China's view, this is confirmed by
the use of the word "effect" as a noun, rather than as a verb, because the element of causation
becomes relevant only when the word is used as a verb meaning to "bring about".223
135. The definition of the word "effect" is, inter alia , "something accomplished, caused, or
produced; a result, a consequence". 224 The definition of this word thus implies that an "effect" is "a
result" of something else. Although the word "effect " could be used independently of the factors that
produced it, this is not the case in Articles 3.2 and 15.2. Rather, these provisions postulate certain
inquiries as to the "effect" of subject imports on do mestic prices, and each inquiry links the subject
imports with the prices of the like domestic products.
136. First, an investigating authority must consid er "whether there has been a significant price
undercutting by the [dumped or subsidized ] imports as compared with the price of a like product of
the importing Member".
225 Thus, with regard to significant price undercutting, Articles 3.2 and 15.2
expressly establish a link between the price of subject imports and that of like domestic products, by
requiring that a comparison be made between the two. Second, an investigating authority is required
to consider " whether the effect of such [dumped or subsidized ] imports " on the prices of the like
domestic products is to depress or suppress such prices to a significant degree. 226 B y a s k i n g t h e
question "whether the effect of " the subject imports is significant price depression or suppression, the
second sentence of Articles 3.2 and 15.2 specifically in structs an investigating authority to consider
whether certain price effects are the consequences of subject imports. Moreover, the syntactic
relation expressed by the terms " to depress prices" and "[ to] prevent price increases" is of a subject
(dumped or subsidized imports) doing something to an object (domestic prices). The language of
Articles 3.2 and 15.2 thus expressly links signifi cant price depression and suppression with subject
imports, and contemplates an inquiry into the re lationship between two variables, namely, subject

222China's appellant's submission, para. 55 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786).
223China's appellant's submission, para. 58 (quoting The New Shorter Oxford English Dictionary ,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), Vol. 1, p. 786).
224Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 798.
225Emphasis added.
226Emphasis added.

imports and domestic prices. More specifically, an investigating authority is required to consider
whether a first variable—that is, subject impor ts—has explanatory force for the occurrence of
significant depression or suppression of a second variable—that is, domestic prices.
137. The two inquiries set out in the second sentence of Articles 3.2 and 15.2 are separated by the
words "or" and "otherwise". This indicates that the elements relevant to the consideration of
significant price undercutting may differ from those rele vant to the consideration of significant price
depression and suppression. Thus, even if prices of subject imports do not significantly undercut
those of like domestic products, subject imports could still have a price-depressing or price-
suppressing effect on domestic prices.
138. Given that Articles 3.2 and 15.2 contemplate an inquiry into the relationship between subject
imports and domestic prices, it is not sufficient for an investigating authority to confine its
consideration to what is happening to domestic pr ices for purposes of considering significant price
depression or suppression. Thus, for example, it w ould not be sufficient to identify a downward trend
in the price of like domestic products over the pe riod of investigation when considering significant
price depression, or to note that prices have not ri sen, even though they would normally be expected
to have risen, when analyzing significant price supp ression. Rather, an investigating authority is
required to examine domestic pric es in conjunction with subject im ports in order to understand
whether subject imports have explanatory force for the occurrence of significant depression or
suppression of domestic prices. Moreover, the reference to "the effect of such [dumped or subsidized]
imports"
227 in Articles 3.2 and 15.2 indicates that the e ffect stems from the relevant aspects of such
imports, including the price and/or the volume of such imports.
139. In our view, therefore, China's argument, that Articles 3.2 and 15.2 do not use any language
suggesting the need to establish a link between subject imports and domestic prices, focuses on a
meaning of the word "effect" abstracted from the imme diate context in which this word is situated.
As noted, Articles 3.2 and 15.2 expressly postulate an inquiry into the relationship between subject
imports and domestic prices by requiring a consideration of whether the effect of subject imports is to
depress or suppress domestic prices. The fact that the word "effect" is used as a noun does not mean
that the link between domestic prices and subject imports expressly referenced in these provisions
need not be analyzed.
140. We are also not persuaded by China's relian ce on the alleged difference between the word
"effect" in Articles 3.2 and 15.2, on the one hand, and the word "affecting" in Articles 3.4 and 15.4,
on the other hand, in support of its interpretation. China argues that the wo rd "effect" is concerned

227Emphasis added.

with the present situation, but does not "imply a causal relationship between the effect itself and any
particular prior event".228 In contrast, the word "affect", which means "to have an effect on", does not
refer to the status quo but rather is concerned with how the status quo came to be. Contrary to China's
argument, Articles 3.2 and 15.2 link the "effect" on dom estic prices with the "particular prior event"
leading to it, that is, the subject imports, by specifically requiring the investigating authority to
consider whether the effect of subject imports is " to depress prices" or "[ to] prevent price
increases".229 These infinitives—"to depress" and "to prev ent"—specify the way in which the subject
imports may "affect" domestic prices. Therefore, the language used in Articles 3.2 and 15.2 does not
simply refer to a "status quo", but rather instruct s the investigating authority to consider whether
subject imports have explanatory force for certain specified consequences, that is, the significant
depression or suppression of domestic prices.
141. Our interpretation is reinforced by the ve ry concepts of price depression and price
suppression.230 Price depression refers to a situation in which prices are pushed down, or reduced, by
something. An examination of price depression, by definition, calls for more than a simple
observation of a price decline, and also encompasses an analysis of what is pushing down the prices.
With regard to price suppression, Articles 3.2 and 15.2 require the investigating authority to consider
"whether the effect of" subject imports is "[to] prevent price increases, which otherwise would have
occurred, to a significant degree". 231 By the terms of these provisions, price suppression cannot be
properly examined without a consideration of whet her, in the absence of subject imports, prices
"otherwise would have" increased. The concepts of price depression and price suppression thus both
implicate an analysis concerning the question of what brings about such price phenomena.
142. Therefore, a consideration of significant pr ice depression or suppression under Articles 3.2
and 15.2 encompasses by definition an analysis of whether the domestic prices are depressed or
suppressed by subject imports. As a corollary of this understanding, Articles 3.2 and 15.2 would

229Emphasis added.
230In US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body recognized that the concepts of
price suppression and price depression could overlap, but it also pointed out that Article 6.3(c) of the
SCM Agreement mentions them as distinct concepts. Specifically, the Appellate Body noted that:
… price depression is a directly observable phenomenon, [whereas] price
suppression is not so. Falling prices can be observed; by contrast, price
suppression concerns whether prices are less than they would otherwise
have been in consequence of various factors, in this case, the subsidies. The
identification of price suppression, ther efore, presupposes a comparison of
an observable factual situation (prices) with a counterfactual situation (what
prices would have been) where one has to determine whether, in the absence
of the subsidies ... prices would have increased or would have increased
more than they actually did.
(Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 351)
231Emphasis added.

appear to make a unitary analysis of the effect of subject imports on domestic prices more appropriate,
rather than a two-step analysis that first seeks to identify the market phenomena and then, as a second
step, examines whether such phenomena are an effect of subject imports. In this regard, we recall that
the concepts of price depression and price suppression also exist under Article 6.3 of the
SCM Agreement. Article 6.3 provides that, through the use of subsidies by a Member, serious
prejudice to the interests of another Member may ar ise where the effect of the subsidies is certain
market phenomena, including, inter alia, significant suppression or depression of the price of a like
product of another Member in the same market. Th e Appellate Body has found that consideration of
the effect of the challenged subsidies is intrinsic to the identification of those market phenomena.
Thus, "[a]ny attempt to identify one of the market phenomena in Article 6.3 without considering the
subsidies at issue can only be preliminary in na ture since Article 6.3 requires that the market
phenomenon be the effect of the challenged subsidy."
232 Similarly, in the context of Articles 3.2
and 15.2, we consider that a unitary approach to the analysis of significant price depression and
suppression would be preferred because it "has a sound conceptual foundation". 233 In this dispute,
therefore, we consider the Panel's finding of the "existence" of price depression and price suppression
"per se "234 as being merely of a preliminary nature. Moreover, "[t]his also means that a two-step
approach simply defers the core of the analysis to the second step." 235 Thus, a panel does not
necessarily commit a legal error if it chooses to c onduct a two-step analysis, as long as the panel also
examines, as a second step, whether "the effect of" subject imports is significant price depression or
suppression.
(b) The Context of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
143. Having analyzed the relevant text of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement, we turn to examine the interpretation of these provisions in the
light of their proper context. As discussed above 236, the various paragraphs under Articles 3 and 15
provide an investigating authority with the re levant framework and disciplines for conducting an
injury and causation analysis. These provisions co ntemplate a logical progression in an authority's
examination leading to the ultimate injury and causa tion determination. Moreover, by virtue of the
phrase " through the effects of" dumping or subsidies "[ a]s set forth in paragraphs 2 and 4" 237,
Articles 3.5 and 15.5 make clear that the inquiries set forth in Articles 3.2 and 15.2, and the
examination required in Articles 3.4 and 15.4, are n ecessary in order to answer the ultimate question

232Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1109.
233Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 354.
234Panel Report, paras. 7.515-7.517 and 7.546.
235Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 1109.
236See supra, paras. 125-128.
237Emphasis added.

in Articles 3.5 and 15.5 as to whether subject imports are causing injury to the domestic industry. The
outcomes of these inquiries thus form the basis fo r the overall causation analysis contemplated in
Articles 3.5 and 15.5.
144. The context of Articles 3.2 and 15.2 thus make s clear that the analysis pursuant to these
provisions is intended to develop an investigating authority's overall examination under Articles 3
and 15 towards a definitive determination on the injury caused by subject imports to the domestic
industry. In this regard, an investigating authorit y's inquiry regarding the last two price effects listed
in Articles 3.2 and 15.2 must provide it with a me aningful understanding of whether subject imports
have explanatory force for the significant depressi on or suppression of domestic prices that may be
occurring in the domestic market. This understandi ng, in turn, allows the authority to determine
whether subject imports, through their price effects, are causing injury to the domestic industry within
the meaning of Articles 3.5 and 15.5. Therefore, the context of Articles 3.2 and 15.2 also supports the
view that, under these provisions, the authority must conduct an analysis of the relationship between
subject imports and domestic prices , and, in particular, of whether such imports have explanatory
force for the significant depression or suppression of domestic prices, in order to have a meaningful
basis on which to conduct its causation analysis pursuant to Articles 3.5 and 15.5.
145. On appeal, China submits that various provisions under Articles 3 and 15 "expressly
distinguish" between the existence of price effects and the consequent impact of subject imports. 238
Thus, China argues, the price effects considered under Articles 3.2 and 15.2 are not themselves the
result of a causation determination. Rather, they serve as the basis for the causation determination
required under Articles 3.5 and 15.5. We agree that the analysis under Articles 3.2 and 15.2 serves as
a basis for the analysis under Articles 3.5 and 15.5 concerning injury caused by subject imports to the
domestic industry and the non-attribution of injury cau sed by other factors. Nonetheless, we fail to
see why this precludes an interpretation whereby an investigating authority, in carrying out the inquiry
under Articles 3.2 and 15.2, is required to consider the explanatory force of the subject imports in
relation to the significant depression or suppression of domestic prices. On the contrary, without such
a consideration, the authority would not be able to ensure that its analysis regarding price depression
or suppression under Articles 3.2 and 15.2 provides a meaningful basis on which it could further
analyze whether, through such pr ice effects, subject imports are causing injury to the domestic
industry within the meaning of Articles 3.5 and 15.5.
146. Moreover, China's argument that Articles 3.2 and 15.2 merely concern the "existence" of
price effects, and do not concern a link between such effects and the subject imports, reflects a flawed
interpretation of the term "the effect of" in these provisions. As noted above, China's interpretation

fails to situate the term "the effect of" in th e context of the inquiry required under Articles 3.2
and 15.2. This inquiry expressly links the described price effects with the subject imports by
requiring an investigating authority to consider "whether the effect of such [dumped or subsidized ]
imports" is to depress or suppress domestic prices to a significant degree.
147. Interpreting Articles 3.2 and 15.2 as requiring a consideration of the relationship between
subject imports and domestic pric es does not result in duplicating the causation analysis under
Articles 3.5 and 15.5. Rather, Articles 3.5 and 15.5, on the one hand, and Articles 3.2 and 15.2, on the
other hand, posit different inquiries. The analysis pursuant to Articles 3.5 and 15.5 concerns the
causal relationship between subject imports and injury to the domestic industry. In contrast, the
analysis under Articles 3.2 and 15.2 concerns the re lationship between subject imports and a different
variable, that is, domestic prices. As discussed, an understanding of the latter relationship serves as a
basis for the injury and causation analysis under Articles 3.5 and 15.5. In addition, Articles 3.5
and 15.5 require an investigating authority to de monstrate that subject imports are causing injury
"through the effects of [dumping or subsidies]", as set forth in Articles 3.2 and 15.2, as well as in
Articles 3.4 and 15.4. We recall that Articles 3.4 and 15.4 require an investigating authority to
examine the impact of subject imports on the domes tic industry on the basis of "all relevant economic
factors and indices having a bearing on the state of the industry", and provide a list of such factors and
indicia that the authority must evaluate. T hus, the examination under Articles 3.5 and 15.5
encompasses "all relevant evidence" before the authority, including the volume of subject imports and
their price effects listed under Articles 3.2 and 15.2, as well as all relevant economic factors
concerning the state of the domestic industry listed in Articles 3.4 and 15.4. The examination under
Articles 3.5 and 15.5, by definition, covers a broade r scope than the scope of the elements considered
in relation to price depression and suppression under Articles 3.2 and 15.2.
148. China maintains that Articles 3.2 and 15.2, like Articles 3.4 and 15.4, are concerned with the
evaluation of relevant indicia concerning the domest ic industry. Specifically, Articles 3.2 and 15.2
instruct an investigating authority to consider "the effect of" subject imports on domestic prices, and
Articles 3.4 and 15.4 direct an investigating author ity to examine relevant economic factors regarding
"the impact of" such imports on the domestic industr y. In China's view, therefore, if Articles 3.2
and 15.2 are interpreted as requiring a considerati on of the relationship betw een subject imports and
domestic prices, Articles 3.4 and 15.4 must also be interpreted as requiring an examination of the link
between subject imports, on the one hand, and each of the economic factors listed in Articles 3.4
and 15.4, on the other hand. Such a result would lead to a duplicative analysis of causation at each

step of an investigating authority's examination under Articles 3 and 15, and grafts onto Articles 3.2
and 15.2, as well as Articles 3.4 and 15.4, an obligation that exists under Articles 3.5 and 15.5.239
149. We recall that Articles 3.4 and 15.4 requir e an investigating authority to examine the impact
of subject imports on the domestic industry on the basis of "all relevant economic factors and indices
having a bearing on the state of the industry". Articles 3.4 and 15.4 thus do not merely require an
examination of the state of the domestic industry, bu t contemplate that an investigating authority must
derive an understanding of the impact of subject imports on the basis of such an examination.
Consequently, Articles 3.4 and 15.4 are concerned w ith the relationship between subject imports and
the state of the domestic industry, and this relationship is analytically akin to the type of link
contemplated by the term "the effect of" under Ar ticles 3.2 and 15.2. In other words, Articles 3.4
and 15.4 require an examination of the explanator y force of subject imports for the state of the
domestic industry. In our view, such an interpre tation does not duplicate the relevant obligations in
Articles 3.5 and 15.5. As noted, the inquiry set forth in Articles 3.2 and 15.2, and the examination
required under Articles 3.4 and 15. 4, are necessary in order to answer the ultimate question in
Articles 3.5 and 15.5 as to whether subject imports ar e causing injury to the domestic industry. The
outcomes of these inquiries form the basis for the overall causation analysis contemplated in
Articles 3.5 and 15.5. Thus, similar to the consid eration under Articles 3.2 and 15.2, the examination
under Articles 3.4 and 15.4 contributes to, rather than duplicates, the overall determination required
under Articles 3.5 and 15.5.
150. Moreover, an investigating authority is required to examine the impact of subject imports on
the domestic industry pursuant to Articles 3.4 and 15.4, but is not required to demonstrate that subject
imports are causing injury to the domestic industry. Rather, the latter analysis is specifically
mandated by Articles 3.5 and 15.5. The demonstra tion of the causal relationship under Articles 3.5
and 15.5 requires an investigating authority to exam ine "all relevant evidence" before it, and thus
covers a broader scope than the examination under Articles 3.4 a nd 15.4. As discussed below,
Articles 3.5 and 15.5 further impose a requirement to conduct a non-attribution analysis regarding all
factors causing injury to the domestic industry. Given these intrinsic differences between Articles 3.4
and 15.4, on the one hand, and Articles 3.5 and 15.5, on the other hand, we do not consider that our
interpretation leads to a "duplicative analysis of causation", as China suggests.
151. Articles 3.5 and 15.5 require an investigating authority to "examine any known factors other
than the [dumped or subsidized] imports which at the same time are injuring the domestic industry",
and to ensure that "the injuries caused by these othe r factors [are not] attributed to the [dumped or

239China's appellant's submission, para. 101; China's response to questioning at the oral hearing.

subsidized] imports".
240 As the Appellate Body has found, the non-attribution language of
Articles 3.5 and 15.5 requires that "an assessment must involve separating and distinguishing the
injurious effects of the other factors from the injurious effects of the dumped imports". 241 In contrast,
Articles 3.2 and 15.2 require an investigating auth ority to consider the relationship between subject
imports and domestic prices, so as to understand whether the form er may have explanatory force for
the occurrence of significant depression or suppression of the latter. For this purpose, the authority is
not required to conduct a fully fle dged and exhaustive analysis of all known factors that may cause
injury to the domestic industry, or to separate and distinguish the injury caused by such factors.
152. This does not mean that an investigating aut hority may disregard evidence that calls into
question the explanatory force of subject imports for significant depression or suppression of domestic
prices. Rather, where an authority is faced with el ements other than subject imports that may explain
the significant depression or suppression of domestic prices, it must consider relevant evidence
pertaining to such elements for purposes of unders tanding whether subject imports indeed have a
depressive or suppressive effect on domestic prices. This understanding is also reinforced by the very
concept of price suppression under Articles 3.2 a nd 15.2, which concerns prevention of price
increases "which otherwise would have occurred" . Moreover, by taking into account evidence
pertaining to such elements, an authority also en sures that its consideration of significant price
depression and suppression under Articles 3.2 and 15.2 is properly based on positive evidence and
involves an objective examination, as required by Articles 3.1 and 15.1.
(c) The Objective of Article 3 of the Anti-Dumping Agreement and
Article 15 of the SCM Agreement
153. As described above
242, the various paragraphs under Article 3 of the Anti-Dumping Agreement
and Article 15 of the SCM Agreement set forth, in detail, an investigating authority's obligations in
determining the injury to the domestic industry caused by subject imports. Thus, it may be discerned,
from the totality of these paragraphs, that Articl es 3 and 15 are intended to delineate the framework
and relevant disciplines for the authority's analysis in reaching a final determination on the injury
caused by subject imports, and to ensure that the analysis and the conclusion drawn therefrom is
robust. Thus, we are unable to agree with China's contention that interpreting Articles 3.2 and 15.2 as
setting forth "more limited" obligations properly r espects the "object and purpose" of "leav[ing] the

240Pursuant to Articles 3.5 and 15.5, these other factors include the volume and prices of imports not
sold at dumped or subsidized prices; contraction in demand or changes in the patterns of consumption; trade-
restrictive practices of, and competi tion between, the foreign and domestic producers; developments in
technology; and the export performance and productivity of the domestic industry.
241Appellate Body Report, US – Hot-Rolled Steel, para. 223.
242See supra, paras. 125-128.

authorities with discretion on the issue of price effects". 243 The requirement to consider whether
subject imports have explanatory force for significant price depression or suppression occurring in the
domestic market, pursuant to Articles 3.2 and 15.2, is not within the "discretion" of the investigating
authority. Rather, it is an obligation that stems fro m the language of the provisions and forms part of
the framework and relevant disciplines set out in Articles 3 and 15 for the authority's injury and
causation determination. The objective of Articles 3 and 15, therefore, does not place the limitation
on the interpretation of Articles 3.2 and 15.2 suggested by China.
4. Summary of the Interpretation of Article 3.2 of the Anti-Dumping Agreement
and Article 15.2 of the SCM Agreement
154. In sum, we reach the above interpretation on the b asis of the text and context of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, together with the objective of
Articles 3 and 15 discerned from various paragraphs th ereunder. Specifically, with regard to price
depression and suppression under the second sentence of Articles 3.2 and 15.2, an investigating
authority is required to consider the relationship between subject imports and prices of like domestic
products, so as to understand whether subject imports provide explanatory force for the occurrence of
significant depression or suppression of domestic prices. The outcome of this inquiry will enable the
authority to advance its analysis, and to have a m eaningful basis for its determination as to whether
subject imports, through such price effects, are causing injury to the domestic industry. Moreover, the
inquiry under Articles 3.2 and 15.2 does not duplicate the different and broader examination regarding
the causal relationship between subject imports a nd injury to the domestic industry pursuant to
Articles 3.5 and 15.5. Neither do Articles 3.2 and 15 .2 require an authority to conduct an exhaustive
and fully fledged non-attribution analysis regarding all possible factors that may be causing injury to
the domestic industry. Rather, the investigating authority's inquiry under Articles 3.2 and 15.2 is
focused on the relationship between subject imports and domestic prices, and the authority may not
disregard evidence that calls into question the explanatory force of the former for significant
depression or suppression of the latter.
C. The Panel's Interpretation of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement
155. Having set out the proper interpretation of th e relevant elements of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, we turn to examine China's claim
that the Panel erred in its interpretation of these pr ovisions. China maintains that the Panel failed to
analyze properly the meaning of the terms "consider " and "effect" in Articles 3.2 and 15.2. Instead,
the Panel erroneously incorporated the stricter standard of causation provided under Articles 3.5

and 15.5 into Articles 3.2 and 15.2. China also submits that the Pane l misconstrued guidance
provided by relevant jurisprudence and wrongly reject ed China's attempt to dr aw on such guidance.
Finally, China argues that the Panel's interpretati ve error is manifested in its analysis of the
United States' claim regarding MOFCOM's finding of significant price suppression. We briefly recall
the Panel's interpretation, before addressing, in turn, each of China's arguments.
156. In interpreting Articles 3.2 and 15.2, the Panel found that:
Having regard to the text of the relevant provisions, we note that the
analysis envisaged by the second sentence of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement
concerns "the effect of the [dumped/subsidized] imports on prices."
Furthermore, the authority must consider whether "the effect of
[dumped/subsidized] imports is … to depress prices to a significant
degree". Accordingly, merely showing the existence of significant
price depression does not suffice for the purposes of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement. An authority must also show that such price
depression is an effect of the subject imports.
244
The Panel also found that "[t]he same necessarily a pplies in respect of an authority's finding of price
suppression."245 The Panel thus conducted a very brief analysis regarding the interpretation of
Articles 3.2 and 15.2. The Panel noted that these provisions require an inve stigating authority to
consider "whether the effect of" subject impor ts is to depress or suppress domestic prices to a
significant degree. On this basis, the Panel f ound that these provisions impose the obligation to
"show" that price depression and suppression is an effect of subject imports.
157. China refers to the Panel's statemen t that "[a]n authority must also show that such price
depression is an effect of the subject imports" 246, quoted above, as well as its statement that "an
investigating authority must demonstrate that price depression is an effect of subject imports". 247
China asserts that, in making these statements, the Pa nel ignored the term "consider" in Articles 3.2
and 15.2 and, instead, created an obligation to "d emonstrate" or "show" a causal link between subject
imports and price effects, despite the absence of such an obligation under these provisions.248
158. As discussed above, by virtue of the word "consid er", an investigating authority is required to
take into account the price effects listed in Artic les 3.2 and 15.2 in reaching its overall injury and
causation determination. Thus, the authority is not required to make a definitive determination of

244Panel Report, para. 7.520. (emphasis added)
245Panel Report, para. 7.547.
246Panel Report, para. 7.520. (emphasis added)
247Panel Report, para. 7.547. (emphasis added)
248China's appellant's submission, paras. 93 and 104 (referring to Panel Report, para. 7.520).

significant price depression and suppression, such as the determination contemplated in Articles 3.5
and 15.5, where it must "demonstrate" the causal relationship between subject imports and injury to
the domestic industry. We note that the Panel began its analysis by stating, correctly, that Articles 3.2
and 15.2 require an investigating authority to "consid er" whether the effect of subject imports is price
depression. The Panel nonetheless went on to use the words "show" and "demonstrate", which seem
to suggest a different standard. In our view, to the extent the Panel used the words "show" and
"demonstrate" to mean that an authority is required to make a definitive determination, the Panel's use
of these words is not consistent with a proper unde rstanding of the word "consider" in Articles 3.2
and 15.2. However, to the extent the Panel used the words "show" and "demonstrate" to mean that the
authority's consideration of price effects must be reflected in relevant documentation produced by the
authority in its investigation, and must be based on positive evidence and involve an objective
examination, this is consistent w ith our interpretation, set out above , that the consideration of price
effects must conform to the standard in Articl es 3.1 and 15.1 and be reflected in relevant
documentation.249
159. Whatever the ambiguity in the Panel's use of the words "show" and "demonstrate", we agree
with the Panel that, because Articles 3.2 and 15.2 require an investigating authority to consider
whether the effect of subject imports is to depress prices of like domestic products to a significant
degree, "merely showing the existence of significant price depression does not suffice for the purposes
of Article 3.2 of the Anti-Dumping Agreemen t and Article 15.2 of the SCM Agreement". 250 W e
recall our interpretation, set out above 251, that Articles 3.2 and 15.2 contemplate an inquiry into the
relationship between two variables, whereby an auth ority must consider whether a first variable—that
is, subject imports—has explanatory force for the occurrence of depression or suppression of a second
variable—that is, domestic prices. Thus, as the Panel rightly found, it is not sufficient for an authority
to confine its consideration to wh at is happening to domestic prices alone for purposes of the inquiry
stipulated in Articles 3.2 and 15.2.
160. China further alleges that the Panel " appear[ed] to interpret the word 'effect' as if it were the
word 'affect'", thereby improperly reading into Articles 3.2 and 15.2 a requirement that MOFCOM
demonstrate that imports "affected" domestic prices.
252 As support for this assertion, China relies on
the following: (i) the Panel's articulation of the relevant obligation under Articles 3.2 and 15.2, as
quoted above; (ii) the Panel's discussion of the finding in the panel report in EC – Countervailing

249See supra, paras. 129-132.
250Panel Report, para. 7.520. (emphasis added)
251See supra, paras. 135-142.
252China's appellant's submission, para. 92 (referring to Panel Report, paras. 7.521 and 7.522).
(emphasis added)

Measures on DRAM Chips ; and (iii) as an illustration of the in terpretation reached by the Panel, the
Panel's analysis of MOFCOM's finding regarding significant price suppression.
161. With regard to the Panel's articulation of the relevant obligation under Articles 3.2 and 15.2,
China acknowledges that the Panel's analysis am ounts to "a restatement of the text of the
provision".
253 To the extent the Panel's interpretation re presents a mere restatement of the text of
Articles 3.2 and 15.2, that, in itself, is not an erro r. Nonetheless, a mere restatement, in our view,
does not do justice to the interpretative question that w as before the Panel. In any event, we are also
not persuaded by the argument that, under the Pane l's interpretation, the obligations regarding the
causation analysis between subject imports and injury to the domestic industry pursuant to
Articles 3.5 and 15.5 are "duplicated" in Articles 3.2 and 15.2. 254 The Panel merely repeated what is
expressly required under these provisions, namely, that an investigating authority must consider
"whether the effect of" subject imports is to depress or suppress domestic prices to a significant
degree. Moreover, as discussed above, interpreti ng Articles 3.2 and 15.2 as requiring a consideration
of the explanatory force of subject imports for significant depression and suppression of domestic
prices does not result in duplicating the causation an alysis under Articles 3.5 and 15.5. Rather, the
analysis under Articles 3.5 and 15.5 concerns th e causal relationship between subject imports and
injury to the domestic industry , and covers a broader scope of elem ents than those relevant to an
analysis under Articles 3.2 and 15.2.
162. With regard to the Panel's discussion of the panel's finding in EC – Countervailing Measures
on DRAM Chips , China submits that the Panel misconstr ued the guidance provided by the panel
report in that dispute. According to China, the Panel failed to recognize the panel's finding in that
dispute that Article 15.2 of the SCM Agreement does not require the investigating authority to draw a
causal link between subsidized imports and price effects.
163. In response to China's reliance on the panel report in EC – Countervailing Measures on
DRAM Chips, the Panel distinguished that dispute from the present dispute, stating that:
… the panel in EC – Countervailing Measures on DRAM Chips was
dealing with a different issue than th e one at hand. In particular, that
panel had to consider Korea's clai m that the European Communities
should have examined a variety of factors known to have been
affecting domestic prices, in additi on to subject imports. The panel
reasoned that such analysis of all known factors was not required
under Article 15.2 of the SCM Agreement, but noted that such
analysis was required under Article 15.5 of the SCM Agreement.
The Panel in the present case is not c onfronted with this issue. The

United States is not suggesting that MOFCOM should have
considered the effect of other known factors on domestic prices. The
United States is merely suggesting that MOFCOM was required, by
Article 15.2 of the SCM Agreement, to consider the effect of subject
imports on prices.
255
China takes issue with the last two sentences quoted above, arguing that the Panel "attempt[ed] to
create a distinction without a difference", because the requirement to consider the effects of other
known factors, and the requirement to consider the effect of subject imports on domestic prices, both
stem from the same obligation to establish a causal link.256
164. We note that the issue before the panel in EC – Countervailing Measures on DRAM Chips
was whether, in the context of a price undercutting analysis, the investigating authority was required
to consider a number of other factors affecting prices of dynamic random access memory chips
(DRAMs) in the domestic market. 257 The panel in that dispute found that, with regard to price
undercutting, Article 15.2 of the SCM Agreement does not require an investigating authority "to
establish a causal link between the subsidized impor ts and the domestic prices which would require it
to examine all other factors affecting domestic prices at the same time". 258 Thus, in making this
finding, the panel was of the view that the inquiry under Article 15.2 "focuse[d] on the effect of the
subsidized imports on prices", rather than an exha ustive non-attribution analys is as contemplated in
Article 15.5. 259 In any event, the panel's above findi ng, which concerned the consideration of
significant price undercutting, does not affect our understanding that the explanatory force of subject
imports for significant price depression and suppression must be seen in the light of relevant evidence
indicating that other factors may explain th e depression and suppression of domestic prices.
Moreover, in this dispute, we are not called upon to interpret the scope and meaning of an
investigating authority's obligation in consid ering whether there has been significant price
undercutting by subject imports. In our view, therefore, the Panel in the present dispute rightly
concluded that the panel report in EC – Countervailing Measures on DRAM Chips does not stand for
the proposition that an investigating authority is not required by Article 15.2 of the SCM Agreement to
consider whether significant price depression or suppression is an effect of subject imports.260
165. Finally, China contends that the Panel's inte rpretive errors regarding Articles 3.2 and 15.2
"can perhaps be seen most clearly … in its discu ssion of MOFCOM's determination on 'whether price

255Panel Report, para. 7.522.
257See Panel Report, EC – Countervailing Measures on DRAM Chips, paras. 7.327 and 7.337.
258Panel Report, EC – Countervailing Measures on DRAM Chips, para. 7.338. (emphasis added)
259Panel Report, EC – Countervailing Measures on DRAM Chips, para. 7.338.
260Panel Report, para. 7.522.

suppression was an effect of subject imports'".
261 According to China, th e Panel analyzed whether
MOFCOM sufficiently isolated subject imports as the cause for significant price suppression, and
found that MOFCOM's finding was not based on positive evidence and did not involve an objective
examination, because MOFCOM could not have found that subject imports were "the only reason" for
the price suppression.262 Thus, the Panel wrongly interpreted Articles 3.2 and 15.2 as "impos[ing]" an
obligation on MOFCOM to make "a determination that 'the only reason' for price suppression was
'because of' subject imports", even though such a requirement is not present in Articles 3.2
and 15.2.263 China's argument is thus not directed at the Panel's articulation of the relevant legal
standard. Rather, China contends that the Panel's er ror in its legal interpretation is illustrated by its
examination of MOFCOM's finding of significant price suppression. Reviewing China's argument
therefore requires us to examine the relevant portion of the Panel's analysis in applying Articles 3.2
and 15.2 to the facts of the case, so as to glean the legal standard that the Panel actually imposed.
166. The Panel first found that, in determining that price suppression per se existed in 2008 and the
first quarter of 2009, MOFCOM properly relied on the ch anges in the price-cost ratio of like domestic
products, which showed that prices di d not rise despite increases in costs. 264 Turning to the issue of
whether MOFCOM also correctly found that price suppression was an effect of subject imports, the
Panel examined the United States' argument that MOFCOM failed to consider whether, in the relevant
factual circumstances, changes in the price-cost ra tio merely reflected changes in the underlying cost
structure of the domestic industry. 265 In this respect, the Panel noted that a significant amount of new
capacity was added in 2008 by Baosteel Group Cor poration ("Baosteel"), one of the two Chinese
producers comprising the domestic industry. Thus, in the Panel's view, "[a]n objective and impartial
investigating authority would have recognized the need" 266 to "examine whether the 2008 change in
the price-cost ratio was merely a function of the inclusion of the additional start-up costs incurred by
Baosteel, rather than an adverse effect of subject imports on price". 267 Instead, the Panel found that
"MOFCOM simply assumed that (i) prices should have been able to rise with costs, and (ii) the only
reason prices were not able to rise with costs was because of the effect of subject imports."268

264Panel Report, para. 7.546.
265Before addressing this argument, the Panel firs t noted that, because MOFCOM relied on the same
analysis "to show that both price de pression and price suppression was an effect of subject imports, the same
flaws that undermined MOFCOM's finding that price de pression was an effect of subject imports also
undermine MOFCOM's finding that price suppression was an effect of subject imports." (Panel Report,
para. 7.547)
266Panel Report, para. 7.549.
267Panel Report, para. 7.548. (emphasis added)
268Panel Report, para. 7.550. (emphasis added)

167. Thus, contrary to China's argument, the Panel's reference to " the only reason prices were not
able to rise with costs" does not indica te a standard that the Panel imposed. 269 Rather, it was a
reference to what MOFCOM found in its Announc ement No. 21 of 10 April 2010 and its annexes 270
(the "Final Determination"). 271 Specifically, the Panel noted that, without a proper analysis or
supporting evidence, "MOFCOM simply assumed" th at the subject imports, alone, explained the
significant suppression of domestic prices. Moreover, a review of the totality of the Panel's findings
confirms that, in making the above statement, the Panel was focusing on the lack of a proper analysis,
or supporting evidence, underlying MOFCOM's finding that the identified price suppression was an
effect of the subject imports. For example, the Pa nel stated that, "because of the risk of Baosteel's
start-up costs distorting the results of a simple analysis of changes in the price-cost ratio, MOFCOM
should have considered whether the underlying cost structure of the domestic industry in 2007 was
comparable to that in 2008 and the first quarter of 2009."
272 The Panel also stated that "[a]n objective
and impartial investigating author ity would have recognized the need to check … the possibility that
the change in the price-cost ratio between 2007 and 2 008 was, at least in part, a reflection of the start-
up costs associated with the commencement of Baosteel's operations in May 2008."273 In addition, the
Panel expressed concern regarding the quality of the evidence relied on by MOFCOM, noting that,
while China argued that the cost structures in 2007 and 2008 were comparable because Baosteel
would also have incurred start-up costs in 2007, MOFCOM's record only included costs booked by
Baosteel as of 2008.274
168. The Panel, therefore, was concerned with th e perceived lack of objectivity in MOFCOM's
examination, as well as the quality of the supporting evidence underlying MOFCOM's finding that the
effect of subject imports was significant price suppression. As the Pane l found, although MOFCOM
relied on the change in the price-cost ratio to find significant price suppression, it failed to ensure that
the cost structures in 2007 and 2008 were compar able. The Panel also found that the evidence

269Panel Report, para. 7.550. (emphasis added)
270MOFCOM Announcement No. 21 [2010] (10 April 2010) and its annexes (English translation as
contained in Panel Exhibit CHN-16). We note that the United States also submitted an English translation of
MOFCOM's final determination as part of Panel Exhibit US-28. However, throughout its Report, the Panel
cited the exhibit submitted by China (Panel Exhibit CH N-16) when referring to the Final Determination.
Similarly, in this Report, we refer to the English translation as contained in Panel Exhibit CHN-16.
271This is also confirmed by the Panel's statemen t that the United States was not suggesting that
MOFCOM should have considered the effect of other known factors on domestic prices. (Panel Report,
para. 7.522)
272Panel Report, para. 7.548. (emphasis added)
273Panel Report, para. 7.549.
274Panel Report, para. 7.548. We recall that the Panel applied the standard in Articles 3.2 and 15.2,
in conjunction with the obligation set out in Articles 3.1 and 15.1, in order to determine whether MOFCOM's
finding that the effects of subject imports were significant price depression and suppression was based on
positive evidence and involved an objective examination of the evidence. Therefore, our examination of the
Panel's relevant findings under Articles 3.2 and 15.2 cannot be conducted in isolation from the Panel's analysis
pursuant to the standard under Articles 3.1 and 15.1. (See supra, paras. 112 and 113)

relating to Baosteel's start-up costs in 2008, which suggested that the cost structures might not be
comparable, should have prompted MOFCOM to have considered whether the price-cost ratio was a
reliable basis for finding that the effect of s ubject imports was to suppress domestic prices to a
significant degree. Thus, the Panel's finding was dire cted at MOFCOM's failure to consider whether
the evidence relating to the domestic industry's co st structure may have called into question the
explanatory force of subject imports for the significant suppression of domestic prices. Therefore, in
our view, the Panel's analysis reveals that the Pane l applied a standard that is consistent with our
interpretation above.
D. Conclusion
169. As summarized in paragraph 154 above, we cons ider that Articles 3.2 and 15.2 require an
investigating authority to consider the relations hip between subject impor ts and prices of like
domestic products, so as to unders tand whether subject imports provide explanatory force for the
occurrence of significant depression or suppression of domestic prices. We are therefore not
persuaded by the interpretation advanced by China, before the Panel and on appeal, that Articles 3.2
and 15.2 merely require an investigating authority to consider the existence of price depression or
suppression, and do not require the establishment of any link between subject imports and these price
effects. We therefore also consider that the Panel did not err in not adopting China's interpretation.
VI. The Panel's Assessment of MOFCOM's Price Effects Analysis
170. We now turn to consider China's claims as they relate to the Panel's assessment of
MOFCOM's finding of significant price depression and suppression.
A. The Panel's Findings
171. The Panel first addressed MOFCOM's price effects analysis as it related to significant price
depression. The Panel considered that, although MOFCOM found that significant price depression
was an effect of both the increase in volume of subject imports, and the low price thereof, it would
limit its examination to the part of MOFCOM's Final Determination that was challenged by the
United States, namely, the "effect of the low price of subject imports".
275 The Panel added that it
would then complete its evaluation by considering wh ether, "even if MOFCOM's analysis of the price
effects of subject imports was flawed, MOFCOM's finding that price depression was an effect of
subject imports might nevertheless stand on the basis of MOFCOM's analysis of the effect of the
increase in the volume of subject imports in depressing domestic prices."
276 The Panel then proceeded

275Panel Report, para. 7.518.
276Panel Report, para. 7.518.

to examine whether MOFCOM's price depression fi nding was based on an objective examination of
positive evidence, stating that it would examine the probative value of MOFCOM's findings "that
subject import prices were 'low' relative to domestic prices, and that there was a 'pricing policy' of
setting subject import prices lower than domestic prices."277
172. With regard to evidence of the "low price" of subject imports, the Panel considered, inter alia,
data collected by MOFCOM, but not referred to in its Final Determination, regarding the average unit
values ("AUVs") of subject impor ts and domestic like products. 278 China maintained that this data,
supplied in response to a request of the Panel, refl ected that AUVs of subject imports were 8 to 12%
below the AUVs for domestic sales in the years 2006 to 2008. 279 The Panel identified "a number of
misgivings" regarding the AUV data, particularly concerning "MOFCOM's failure to consider the
need for adjustments to ensure price comparability".280 First, the Panel considered that China failed to
rebut the United States' argument that subject impo rt and domestic AUVs were fixed at different
levels of trade. Second, the Panel noted that MO FCOM did not make adjustments to account for the
fact that the AUV data covered pr oducts of different grades. Third, the Panel considered that, given
the possibility of prices varying over time, the determination of a single price point to represent prices
throughout the course of an entire year did not pr ovide a sufficiently preci se basis for comparing
prices.281
173. The Panel was not persuaded by China's argumen t that price comparability did not arise as an
issue. The Panel considered that, although MOFCOM did not make a finding of significant price
undercutting within the meaning of Articles 3.2 and 15.2, MOFCOM nevertheless relied on a finding
that subject import prices undercut domestic prices. In the Panel's view, a finding as to the existence
of price undercutting necessarily entails a comparison of prices, and an investigating authority should
ensure that the prices it is using for its compar ison are properly comparable . The Panel concluded
that MOFCOM's reliance on AUVs, without consider ing or making adjustments to ensure price
comparability, was "neither objective, nor based on positive evidence".282

277Panel Report, para. 7.524 (referring to Final Determination (Panel Exhibit CHN-16 (English
version)), pp. 58 and 59).
278The AUV data at issue represented the volume wei ghted average unit values for all transactions
during a given calendar year. (Panel Report, footnote 497 to para. 7.527)
279Panel Report, para. 7.527 and footnote 497 thereto (referring to China's second written submission to
the Panel, footnote 95 to para. 102). China explained that it provided ranges of the relevant AUVs in order to
protect business confidential information (BCI) for the two domestic producers at issue. The Panel considered
that, although China "failed to respond fully" to the Panel's request, it was still able to address the relevant issues
using the more limited data provided by China. (Ibid., para. 7.527)
280Panel Report, para. 7.528.
281Panel Report, para. 7.528.
282Panel Report, para. 7.530.

174. With regard to the evidence of a "pricing po licy" aimed at setting subject import prices lower
than domestic prices, the Panel reviewed the relevant contracts and records of price setting referred to
in MOFCOM's Final Determination, and which were supplied by China in r esponse to a request from
the Panel. That evidence consisted of four docum ents. One of the documents was a contract, dated
9 January 2009
283, between a Russian trading company and a Chinese buyer, which MOFCOM relied
on to support its finding that Russian companies se t their prices lower than Wuhan Iron and Steel
(Group) Corporation ("WISCO"), one of the Chin ese domestic producers. The Panel considered,
however, that MOFCOM's finding that there was no price undercutting during the first quarter of
2009 "undermine[d] the probative value" of this contract.
284 The other three documents reflected
price negotiations in Decem ber 2008 and February 2009 285 between a Chinese supplier and its
customers and, in each of these documents, "the Chinese supplier quoted a price, the customer
responded by noting the specific amount by which the Chinese offer was higher than the alternatives
available from Russian or U.S. suppliers, and th e Chinese supplier was then forced to lower its
price".286 With respect to the evidence regarding price negotiations in February 2009, the Panel
considered that MOFCOM's finding that there was no price undercutting during the first quarter of
2009 "undermine[d] the probative value" of that evidence.287
175. Finally, the Panel addressed MOFCOM's reliance on a decrease in subject import prices in the
first quarter of 2009. The Panel noted MOFCOM's findings regarding the price trend of subject
imports during the period of investigation, and that the price of subject imports was not lower than the
price of like domestic products in the first quarter of 2009. The Panel explained that it was not
persuaded that MOFCOM could pr operly have found that, following a 17.57% increase in subject
import prices in 2008, a 1.25% decrease in subject import prices in the first quarter of 2009 could
have had the effect of depressing domestic prices, pa rticularly since subject import prices remained
higher than domestic prices during that period.288
176. For these reasons, the Panel did not consider "t hat the evidence available to MOFCOM could
have allowed an objective and impartial investigating authority to determine that subject imports were
priced lower than domestic products." 289 The Panel also considered whether, even if MOFCOM's
analysis of the effect of subject import prices was flawed, MOFCOM's price depression finding might
nevertheless stand on the basis of its analysis of the effect of subject import volume. The Panel

283Panel Exhibit CHN-37 (BCI).
284Panel Report, para. 7.533.
285Panel Exhibits CHN-38 (BCI), CHN-39 (BCI), and CHN-40 (BCI).
286Panel Report, para. 7.532 (quoting China's response to the Panel's request of 18 November 2011 for
certain confidential data, p. 2).
287Panel Report, para. 7.534.
288Panel Report, para. 7.535.
289Panel Report, para. 7.536.

considered that it was "not possibl e to conclude that MOFCOM's finding that price depression was an
effect of subject imports might be upheld purely on the basis of MOFCOM's findings regarding the
effect of the increase in the volume of subject imports." 290 Thus, the Panel found that "MOFCOM's
determination that price depression was an effect of subject imports was neither made pursuant to an
objective examination, nor based on positive evidence."
291
177. In respect of MOFCOM's analysis of price suppression, the Panel noted that the United States
relied on the same arguments as it did to cha llenge MOFCOM's price depression finding, and
considered that "the same flaws that undermined MOFCOM's finding that price depression was an
effect of subject imports also undermine MOFCOM's finding that price suppression was an effect of
subject imports."
292 The Panel also considered, "for the sake of completeness" 293, the United States'
additional argument concerning alleged changes in the underlying cost structure of the domestic
industry. The Panel concluded that MOFCOM shou ld have examined the complex issue of whether
domestic prices would have been able to rise to th e full extent of the start-up costs incurred by the
domestic industry. The Panel thus found that "MO FCOM's determination that price suppression was
an effect of subject imports was not made pursuan t to an objective examination, based on positive
evidence."294
178. For the foregoing reasons, the Panel concluded that MOFCOM's finding regarding the price
effects of subject imports was inconsis tent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement
and Articles 15.1 and 15.2 of the SCM Agreement.
B. Assessment of the Panel's Analysis
179. We begin by examining the nature and scope of the claims that China advances to challenge
the Panel's analysis of MOFCOM's finding of significant price depression and suppression.
180. China appeals the Panel's application of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement.295 China submits that the Panel fundamentally misunderstood
MOFCOM's analysis by considering that the refere nce to the "low price" of subject imports in
MOFCOM's Final Determination meant that subject import prices undercut dom estic prices, and that
MOFCOM had relied on this factor in reaching its finding of significant price depression and
suppression. China argues that, contrary to the view adopted by the Panel, MOFCOM "never

290Panel Report, para. 7.542.
291Panel Report, para. 7.543.
292Panel Report, para. 7.547.
293Panel Report, para. 7.547.
294Panel Report, para. 7.551.
295See China's Notice of Appeal, para. 6. See also supra, paras. 111-115, for a discussion of the scope
of China's appeal.

compared subject import prices relative to domestic prices over the entire period"
296, and MOFCOM's
price effects discussion did not focus on "the exis tence of price undercutting [and] did not depend on
price comparability".297 The implication of China's arguments on appeal is that, if the Panel had been
wrong to insist that MOFCOM's price effects finding rested on the existence of price undercutting, its
basis for rejecting the AUV data submitted by Chin a during the Panel proceedings would have been
unwarranted. In the alternative, China argues that, even if MOFCOM conducted and relied upon
price comparisons constituting price undercutting for its price effects finding, the Panel nevertheless
erred in finding that MOFCOM should have made ce rtain adjustments to ensure price comparability.
China maintains that such adjustments are not required by Articles 3.2 and 15.2, and that, even if they
were, they were not necessary in the circumstances of this case.
181. China further contends that the Panel failed to have regard, or to have sufficient regard, to
factors that did sustain MOFCOM's finding of significant price depression and suppression.
According to China, MOFCOM's price effects finding in fact rested on three other propositions, two
relating to the prices of subject imports, and one relating to the volume of subject imports.
298 With
regard to the effect of subject import prices, China argues that MOFCOM relied on the following
factors: (i) a "pricing policy", whereby subject imports aimed at setting prices below domestic prices;
and (ii) parallel price trends, by which subject import prices and domestic prices followed the same
pattern of first increasing through 2008, and then decreasing in the first quarter of 2009. Moreover,
with regard to the effect of subject import volume, China maintains that a key element of MOFCOM's
reasoning is its reliance on increases in the volume of subject imports beginning in 2008.
182. Finally, China also claims that the Panel erre d by failing to make an objective assessment as
required by Article 11 of the DSU. According to Ch ina, the Panel "mischaracterize[d] a fact that is
fundamental and ultimately determinative to its analys is" by equating the reference to "low price" in
MOFCOM's Final Determination with the existe nce of price undercutting by subject imports.
299
China further argues that the Panel erred by rely ing on this single factor to invalidate MOFCOM's
finding of significant price depression and suppression, and thus failed to take into account "the

299China's appellant's submission, para. 200. China also argues that this was contradicted by
MOFCOM's finding that subject imports were not priced lower than domestic products in the first quarter of
2009. (Ibid., para. 201)

totality of the circumstances that produced the conclusion of price depression and price
suppression".300
183. In its appeal, China seeks to challenge the Pa nel's understanding of MOFCOM's price effects
analysis in its Final Determinati on and, in doing so, asserts claims th at the Panel erred both in its
application of Articles 3.2 and 15.2, and in its duty to make an objective assessment of the facts under
Article 11 of the DSU. This is now familiar yet difficult terrain in the application of the
Appellate Body's standard of review. Although a panel's findings of fact, as distinguished from legal
interpretations or legal conclusions, are in princi ple not subject to review by the Appellate Body,
Article 11 of the DSU may be relied upon to ch allenge a panel's failure to make an objective
assessment of the matter before it, including an objective assessment of the facts of the case. 301 In
previous cases, the Appellate Body has recognized the difficulty of clearly distinguishing between
issues of legal application and issues of fact. In mo st cases, however, the issue raised by a particular
claim "will either be one of application of the law to the facts or an issue of the objective assessment
of facts, and not both". 302 The Appellate Body has found that allegations implicating a panel's
appreciation of facts and evidence fall under Article 11 of the DSU. 303 By contrast, "[t]he consistency
or inconsistency of a given fact or set of facts w ith the requirements of a given treaty provision is … a
legal characterization issue" and is therefore a legal question.304
184. As we understand it, China's key contention is that the Panel erred by misunderstanding what
"low price" meant in MOFCOM's Final Determinat ion, and in determini ng that MOFCOM relied on
that factor in its price effects analysis and conclusions. According to China, in evaluating
MOFCOM's price effects analysis, the Panel improperly focused on this single factor (that is, the "low
price" of subject imports in the form of price unde rcutting), and failed to give proper regard to other
factors (that is, a pricing policy aiming at price un dercutting, parallel price trends between subject
import and domestic prices, and increases in subject import volume). As China puts it in its Notice of

300China's appellant's submission, para. 204. China c ontends that the Panel's failure to take into
account the totality of the circumstan ces supporting MOFCOM's price effe cts finding was contrary to the
Appellate Body's guidance regarding a panel's proper standard of review in US – Countervailing Duty
Investigation on DRAMS and Japan – DRAMs (Korea). (Ibid., paras. 205-208)
301The Appellate Body has previously explained that panels, as triers of fact, have discretion in the
appreciation of the evidence, and that the Appellate Body will not interfere lightly with a panel's exercise of this
discretion. The Appellate Body has noted that it will not base a finding of inconsistency under Article 11 of the
DSU simply on the conclusion that it might have reached a different fact ual finding. In stead, for a claim
regarding a panel's factual assessment to succeed under Article 11, the Appellate Body must be satisfied that the
panel has exceeded its authority as the trier of facts. (Appellate Body Report, US – Wheat Gluten , para. 151;
Appellate Body Report, US – Carbon Steel, para. 142)
302Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 872. (original
emphasis)
303Appellate Body Report, US – Upland Cotton , para. 399; Appellate Body Report, US – Upland
Cotton (Article 21.5 – Brazil) , para. 385; Appellate Body Report, EC and certain member States – Large Civil
Aircraft, para. 1005.

Appeal, "[r]ather than apply the legal standard to MOFCOM's final determinations as written, the
Panel examined findings never made by the authorit y and instead ignored or dismissed key factors
that MOFCOM had discussed in its determinations."
305 Although there are arguably features of the
Panel's analysis on appeal that concern facts that were before MOFCOM and before the Panel itself,
we understand China's appeal to address the ma nner in which the Panel examined and applied
Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement , read together
with Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the SCM Agreement , to
MOFCOM's Final Determination. 306 Thus, we consider that, when the Panel examined the question
of whether MOFCOM relied on the existence of pr ice undercutting in 2006 to 2008 to find significant
price depression and suppression, it was examin ing whether MOFCOM's Final Determination
complied with the legal standard for a price e ffects analysis conducted on the basis of "positive
evidence" and involving an "objective examination". In order to give proper consideration to the
Panel's analysis and to China's appeal, we therefor e examine this issue in the light of the Panel's
application of the legal standard under Articles 3.2 and 15.2, read together with Articles 3.1 and 15.1,
to MOFCOM's Final Determination. Accordingly, there is no basis separately to consider whether the
Panel, in assessing the significance of "low price" in MOFCOM's Final Determ ination, conducted an
objective assessment of the facts under Article 11 of the DSU.
185. On the basis of the foregoing discussion, we now turn to assess China's arguments concerning
the Panel's analysis of each of these factors in r espect of MOFCOM's Final Determination. Once we
have done so, we then provide an overall assessment of China's claims on appeal.
1. The "Low Price" of Subject Imports
186. China contends that the Panel misstated MOFCOM's discussion of the "low price" of subject
imports by erroneously suggesting that those prices were low relative to domestic prices . In China's
view, MOFCOM "note[d] that subject import prices we re 'at a low price', but never compared subject
import prices relative to domestic prices over the entire period". 307 China considers that, although the
Panel correctly recognized that MOFCOM had not made a specific finding of significant price
undercutting, the Panel then asserted that MOFCOM nevertheless relied on the existence of price
undercutting. According to China, MOFCOM's reference to "low price" is not the same thing as price
undercutting since "'[l]ow-priced' imports can exist re gardless of the relative prices of subject imports

305China's Notice of Appeal, para. 6(a).
306As we have explained, although China has not cha llenged the Panel's interpretation and application
of Articles 3.1 and 15.1, we consider that our examination of the Panel's analysis under Articles 3.2 and 15.2
cannot be conducted in isolation from the Panel's analysis pursuant to the standard under Articles 3.1 and 15.1.
(See supra, paras. 112 and 113)
307China's appellant's submission, para. 130 (quoting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).

and domestic [products]."308 In China's view, MOFCOM's price effects discussion focused on factors
other than the existence of price undercutting and "did not depend on price comparability".309
187. According to the United States, "China has no b asis for its claims that MOFCOM did not rely
on the 'low prices' of imports as a central component of its pricing analysis or that MOFCOM did not
draw its conclusion about the low prices of impor ts from a price comparis on of domestic and import
prices."310 The United States refers to instances in which MOFCOM linked "low price" to price
depression and suppression or the material injury purportedly sustained by China's domestic GOES
industry.311 In addition, the United States argues that "low priced" imports must be low priced in
relation to something that is higher priced. The Un ited States also refers to statements by MOFCOM,
and by China before the Panel, that MOFCOM relied on a finding that subject import prices were
lower than domestic prices.312
188. As outlined above, China's appeal calls on us to consider whether the Panel properly
determined that, in referring to the "low price" of subject imports, MOFCOM was referring to the
existence of price undercutting, and was relying on that factor in reaching its finding of significant
price depression and suppression.
189. In the price effects analysis of its Final De termination, MOFCOM's discussion of the "low
price" of subject imports is set out in the following statement:
Because the sale of the product concerned was kept at a low price,
and the import volume of the pr oduct concerned increased greatly
beginning from 2008, under this im pact, domestic producers lowered
their price to keep the market share.
313 (emphasis added)
190. This sentence indicates MOFCOM's view that domestic producers lowered their prices due to
two factors, namely, the "low price" and the increased volume of subject imports. We note that the
reference to "low price" does not indicate in relati on to what, or over what time period, the prices of
subject imports were considered to be low. We further note that this section of MOFCOM's Final
Determination does not provide furt her explanation or reasoning as to the significance of this "low
price" factor.
191. China, however, sought to explain the significance of the term "low price" before the Panel.
According to China, information collected by MOFCOM confirmed that, from 2006 to 2008, the

311United States' appellee's submission, paras. 60-63.
312United States' appellee's submission, paras. 71 and 72.
313Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.

AUVs of subject imports were consistently below those of domestic products, demonstrating that the
"subject import prices were both 'low' and 'lower' than domestic prices."
314 When China subsequently
provided the Panel with annual ranges of the AUV data to which China had referred, it further
explained that this record evidence "confirm[ed] the magnitude and consiste ncy with which subject
[import] AUVs were lower than domestic AUVs".315
192. The Panel then asked the parties to comment on the underlying evidence supplied by China.
China stated as follows:
As China explained during the second meeting, the ranged data
includes the actual AUVs. The United States is simply wrong to say
the ranged data does not reflect any actual AUVs. The range
includes the AUVs. China's point is simply that given the use for
which the AUV data has been requested—to confirm the factual
statement that subject import prices were lower than domestic
prices—the range of AUVs and ra nge of underselling margins
accomplished that objective.
If MOFCOM had based its findings of adverse price effects on price
undercutting, or had otherwise relied on the magnitude of the
underselling margins, then perhaps the U.S. argument would have
some relevance. But MOFCOM findings do not rely on the
magnitude of the underselling margins, and simply note the existence
of underselling as a supporting fact for the findings of price
depression, price [suppression], and causation. The information
China has provided is more than su fficient to confirm the existence
of underselling during much of the period of investigation, until the
domestic producers had to react to the large volume of low priced
subject imports, and lower the domestic price.
316 (original
underlining)
193. On the basis of this submission, the Panel c onsidered that, although MOFCOM did not make
a finding of significant price undercutting, China ha d nevertheless conceded that MOFCOM relied on
a finding that subject import prices undercut domestic prices to support its finding of significant price
depression and suppression.317

314China's second written submission to the Panel, para. 102.
315China's response to the Panel's request of 18 November 2011 for certain confidential data, p. 1.
316China's response to Panel Question 69 following the second Panel meeting, paras. 160 and 161.
317Panel Report, paras. 7.529 and 7.530 (referring to China's response to Panel Question 69 following
the second Panel meeting, para. 161). The Panel al so referred to MOFCOM's statement in its Final
Determination that it had made "a comparative analysis of price" consisting of "an analysis on the low-price
sales" of subject imports. ( Ibid., footnote 505 to para. 7.530 (quoting Final Determination (Panel Exhibit
CHN-16 (English version)), p. 70) Although China argued that the reference to "comparative" had been a
reference to price depression and suppression, and not to price undercutting, the Pane l stated that it saw "no
basis on which to conclude that MOFCOM [was] referring to anything other than a co mparative analysis of the
price of subject imports relative to domestic sales". (Ibid.)

194. On appeal, China now requests the Appellate B ody to conclude that the Panel, when faced
with the arguments and evidence presented by the pa rties, was wrong to conclude that MOFCOM had
relied on a comparison of subject import and dom estic prices in the years 2006 to 2008, and the
existence of price undercutting, to support its findi ng of significant price depression and suppression.
Specifically, China argues that MOFCOM's use of "low price" did not refer to the existence of price
undercutting, but could rather be understood either as a reference to the prices of subject imports in
relation to their historical prices, or as a reference to the low price established by virtue of the sale of
subject imports at dumped and/or subsidized levels.
318 In any event, China argues, MOFCOM did not
rely on its reference to the "low price" of subject imports, as evidenced by the fact that this reference
does not appear in two core paragraphs of MOFC OM's Final Determination that reflect MOFCOM's
ultimate price effects finding.319
195. We are not persuaded by these arguments by China on appeal. After China had averred to the
Panel that MOFCOM relied on evidence of price undercutting to support its finding that subject
imports were kept at a "low price", the Panel requ ested China to provide the underlying evidence, and
then asked the parties to comment on that eviden ce. Thus, when the Panel found that China had
"concede[d]"320 that MOFCOM relied on the existence of price undercutting from 2006 to 2008 to
support its finding of significant price depression and suppression, that finding was drawn on the basis
of China's representations to the Panel that MOFCOM had an evidentiary basis in the investigation
record for its conclusion. In particular, as we ha ve observed, the Panel referred to China's statement
that MOFCOM "note[d] the existence of price undercutting as a supporting fact" for its finding of
significant price depression and suppression.
321 While the statements and evidence a party provides to
explain some aspect of an investigating authority's determination are not dispositive as to its meaning,
a panel may place reliance on such statements in its re view of that determination. If the party then
advances a different position on appeal that challe nges a panel's reliance on representations the party
made before the panel, that party would have to explain why its previous account of the determination
is no longer to be relied upon. We do not see that China has provided us with a basis upon which to
disregard statements regarding the AUV data that were made by China during the Panel proceedings,
and on which the Panel relied in reviewing MOFCOM's Final Determination. Accordingly, even if
the reference to "low price" in MOFCOM's Final De termination could be read in different ways, we
consider that it was proper for the Panel to rely on China's statements to the Panel, and for us to
review the Panel's findings on the basis of that reliance.

318China's response to questioning at the oral hearing.
319China's opening statemen t and response to questioning at th e oral hearing (referring to Final
Determination (Panel Exhibit CHN-16 (English version)), p. 59).
320Panel Report, para. 7.530.
321Panel Report, para. 7.529 (referring to China's response to Panel Question 69 following the second
Panel meeting, para. 161).

196. For the foregoing reasons, we consider that the Panel was correct to conclude that, although
MOFCOM did not make a finding of significant price undercutting, MOFCOM's finding as to the
"low price" of subject imports referred to the existence of price undercutting between 2006 and 2008,
and that MOFCOM relied on this factor to support its finding of significant price depression and
suppression.
2. Comparisons of AUV Data to Establish "Low Price"
197. China submits that, even if MOFCOM conducte d and relied upon price comparisons and the
existence of price undercutting fro m 2006 to 2008, the Panel nevert heless erred by mandating the use
of certain adjustments to ensure price comparability that are not required by Articles 3.2 and 15.2.
China argues, moreover, that even if price compar ability is required, the Panel imposed specific price
comparison methodologies that were "not necessary at all" 322 in the circumstances of this case,
particularly given that concerns regarding price comparability were neither raised nor argued by the
respondents during the investigation. According to China, although investigating authorities have an
inherent duty to investigate prices to some degr ee, they also "have discretion to frame their
investigations and analyses in light of the inform ation gathered by the authorities and the arguments
presented to the authorities by the parties".323
198. The United States contends that the Panel never found that Articles 3.2 and 15.2 require an
investigating authority to perform its price co mparisons and analysis using any particular
methodology. Instead, the United States argues, the Panel evaluated whether MOFCOM conducted
an "objective examination" on the basis of "positiv e evidence". According to the United States, the
Panel reasonably concluded that there we re "significant evidentiary deficiencies" 324 in MOFCOM's
findings, and China has not adequately rebutted th e reasons the Panel provided for finding that
MOFCOM's use of AUV data was not objective. The United States also rejects China's argument that
objections to the AUV data were neither rai sed nor argued by the respondents during the
investigation. The United States maintains that the record shows that the respondents had raised
objections to MOFCOM's price comparisons, and th at, in any event, there is no limitation on what
arguments a respondent can bring in panel proceedings under Articles 3.1 and 15.1.325
199. We recall that the Panel identified "a number of misgivings" regarding the AUV data relied
upon by MOFCOM and, in particular, "MOFCOM's failu re to consider the need for adjustments to

325United States' appellee's submission, paras. 90-92.

ensure price comparability".326 First, the Panel considered that China failed to rebut the United States'
argument that subject import and dom estic AUVs were fixed at different levels of trade. Second, the
Panel noted that MOFCOM did not make adjustme nts to account for the fact that the AUV data
covered products of different grades. Third, the Pa nel considered that, given the possibility of prices
varying over time, the determination of a single pr ice point to represent prices throughout the course
of an entire year did not provide a sufficiently pr ecise basis for comparing prices. Having concluded
that MOFCOM relied on comparisons of subject impor t and domestic prices to find the existence of
price undercutting by subject imports, the Panel cons idered that an investigating authority in these
circumstances must "ensure that the prices it is using for its comparison are properly comparable". 327
As the Panel stated, "[a]s soon as price comparisons are made, price comparability necessarily arises
as an issue."
328 The Panel thus found that, because MOFCOM relied on a comparison of subject
import and domestic prices without considering the need for adjustments to ensure price
comparability, MOFCOM's reasoning was "neither objective, nor based on positive evidence".329
200. In response to questioning at the oral hearing, both participants agreed that an investigating
authority must ensure comparability betw een prices that are being compared. 330 Indeed, although
there is no explicit requirement in Articles 3.2 and 15.2, we do not see how a failure to ensure price
comparability could be consistent with the requirement under Articles 3.1 and 15.1 that a
determination of injury be based on "positive evid ence" and involve an "objective examination" of,
inter alia , the effect of subject imports on the prices of domestic like products. Indeed, if subject
import and domestic pric es were not comparable, this would defeat the explanatory force that subject
import prices might have for the depression or suppression of domestic prices.331 We therefore see no
reason to disagree with the Panel when it stated th at "[a]s soon as price comparisons are made, price
comparability necessarily arises as an issue."332
201. China further asserts that pri ce adjustments were not necessary in the circumstances of this
case. In this respect, China argues that the Panel did not have a basis to insist on price adjustments to
ensure price comparability in this case, particularly given the limited, if any, attention such issues
attracted before MOFCOM. Addressing the latter point first, we do not consider that the question of
whether price adjustments are needed to ensure pri ce comparability is to be determined by whether a
respondent objects to the use of unadjusted prices. We have explained that a price effects finding is

326Panel Report, para. 7.528.
327Panel Report, para. 7.530.
328Panel Report, para. 7.530.
329Panel Report, para. 7.530.
330China's and United States' responses to questioning at the oral hearing.
331We note that similar considerations of price comparability are reflected in Article 2.4 of the
Anti-Dumping Agreement and Article 6.5 of the SCM Agreement.
332Panel Report, para. 7.530.

subject to the requirement that a determination of injury be based on "positive evidence" and involve
an "objective examination". As the Appellate Body stated in EC – Bed Linen (Article 21.5 – India) ,
the obligations under Articles 3.1 and 3.2 "must be met by every investigating authority in every
injury determination".
333 For these reasons, while we may ag ree with China that investigating
authorities "have discretion to frame their investig ations and analyses in li ght of the information
gathered by the authorities and the arguments presented to the authorities by the parties"334, authorities
remain bound by their overarching obligation to conduct an objective examination on the basis of
positive evidence, irrespective of how the issues were presented or argued during the investigation.
202. Moreover, we observe that these arguments by Ch ina appear to be directed at whether the
Panel had an adequate evidentiary basis for its fi nding that price adjustments were warranted in the
circumstances of this case. China maintains, for instance, that there was " no evidence in the record"
to support the United States' argument that th e AUVs for subject imports and domestic products
reflected transactions at different levels of trade because "imports were sold to traders while domestic
products were sold to end-users".335 With regard to the product grade of subject imports and domestic
products, China argues that, because virtually all of the subject imports—97% of subject import
quantity, and 99% of subject import value— were under one of the two tariff headings,
"[d]isaggregating the analysis would have ha d no material effect at all on the analysis". 336 Finally,
with regard to the use of annual AUV data, Chin a asserts that, while further disaggregation on a
monthly or quarterly basis may have been possible, annual AUVs still permit an investigating
authority to compare trends over time, and that th ere is therefore "nothing inherently non-objective
about using annual AUVs".337
203. In each of these instances, the Panel's consid eration of the need for a particular price
adjustment rested on factual contentions before the Panel. That is, whether the issue concerned the
level of trade at which subject imports and domestic products were sold in China, the allocation of
subject imports under different tariff headings, or the degree of variability of domestic prices over
time, each of China's arguments is directed at whet her the Panel had an adequa te evidentiary basis for
its finding that price adjustments were warranted. Because these issues appear largely directed at the
Panel's appreciation of the evidence, they are issues that we would typically consider in evaluating
whether a panel had acted consistently with its duty to make an objective assessment of the facts

333Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 109. See also Panel Report,
Mexico – Steel Pipes and Tubes , para. 7.259 (stating that an investigating authority is "bound to satisfy its
obligations whether or not this issue is raised by an interested party in the course of an investigation").

under Article 11 of the DSU. These issues, however, were not addressed in China's Article 11 claim,
and we therefore do not review them as part of China's appeal.
3. Pricing Policy of Subject Imports
204. China also challenges the Panel's treatment of MOFCOM's analysis regarding the existence of
a "pricing policy" aimed at setting subject import prices lower than domestic prices. China argues
that MOFCOM never stated that the policy actually resulted in lower import prices. Instead, China
asserts that MOFCOM relied on evidence of the pricing policy to demonstrate "efforts by import
sources to charge lower prices to win business"
338, and "that domestic prices were being forced to
react to import prices".339 China considers that the Panel faile d to recognize the distinction between a
low price policy and price undercutting, and theref ore improperly used MOFCOM's finding about the
absence of actual price undercutting in the first qua rter of 2009 to ignore other implications of this
evidence. In China's view, "[s]ubject imports that are trying to set lower prices can trigger adverse
price effects, whether they actually achieve prices lower than the domestic price level or not."340
205. According to the United States, MOFCOM f ound that the "pricing policy" was aimed at
setting import prices lower than domestic prices and that, as a result of this policy, "the product
concerned was kept at a low price."
341 Given this finding, the United States considers that the Panel
properly concluded "that MOFCOM found that the a lleged policy was effective at keeping prices
lower than the domestic products." 342 On that basis, the United States argues, the Panel properly
rejected MOFCOM's reliance on evidence concerning the first quarter of 2009 since MOFCOM found
that subject imports were actually priced higher than domestic products in that quarter.343
206. We consider that the existence of a pricing policy by importers to undercut the prices of
domestic producers could, when successful, lead to actual price undercutting. Even in the absence of
price undercutting, however, a policy that aims to un dercut a competitor's prices may still be relevant
to an examination of its price depressive or suppressive effects. Indeed, a policy aimed at price
undercutting may very well depress and suppress domestic prices in instances where, as China asserts,
"domestic producers were reacting to subject impor t competition and were lowering domestic prices
so as to compete more effectively and minimize any further loss of market share."
344 In this respect, if
an importer pursues a policy of undercutting a comp etitor, but that competitor anticipates or responds

341United States' appellee's submission, para. 69 (quo ting Final Determination (Panel Exhibit CHN-16
(English version)), p. 58).
343United States' appellee's submission, footnote 90 to para. 69.

to that policy by lowering its price to win the sale, this may still reveal that subject imports have the
effect of depressing, or preventing the increase of, domestic prices.
207. The Panel considered that the existence of a pricing policy was "undermine[d]" by the fact
that there was no price undercutting during the first quarter of 2009.
345 Having examined only the
question as to whether the existence of a pricing policy resulted in price undercutting by subject
import prices, the Panel did not also examine whethe r that policy could, even in the absence of price
undercutting, support a finding of significant pri ce depression and suppression. The Panel did not
address the proper question before it and therefore failed to consider the explanatory force that a
policy aimed at price undercutting could have for the depression or suppression of domestic prices.
That prices were higher for subject imports than do mestic like products in the first quarter of 2009
does not necessarily negate the significance of a policy aimed at price undercutting for findings of
price depression and suppression, and we therefore do not consider that it was appropriate for the
Panel to have rejected MOFCOM's reliance on the pricing policy on the grounds that it did.
4. Parallel Trends of Subject Import and Domestic Prices
208. China further asserts that the Panel never discu ssed "one of the key elements of MOFCOM's
discussion"346, namely, that subject import prices and domestic prices followed the same trends of first
increasing and then decreasing over the period of investigation. China notes that, although
MOFCOM referred to this fact twice in its analysis , the Panel refers only to the drop in subject import
prices in the first quarter of 2009, without ever di scussing "the parallel trend in subject import prices
and domestic prices over the period".347
209. The United States maintains that there is no indication in MOFCOM's Final Determination
that MOFCOM relied on parallel pric e trends for its price effects analysis. The United States also
argues that "the pricing information actually di sclosed by MOFCOM does not support a finding that
'parallel' pricing trends caused price depression" 348 because MOFCOM did not find price depression
when the trends were parallel in 2007 and 2008, and yet found price depression when the trends were
not parallel in the first quarter of 2009.
210. We can conceive of ways in which an observa tion of parallel price trends might support a
price depression or suppression analysis. For instan ce, the fact that prices of subject imports and
domestic products move in tandem might indicate the nature of competition between the products, and
may explain the extent to which factors relating to the pricing behaviour of importers have an effect

345Panel Report, paras. 7.533 and 7.534.

on domestic prices. The difficulty we have with this issue on appeal, however, is that there is no basis
on which to draw any such conclusions in this case. In its Final Determination, MOFCOM referred
twice to the price trends of subject imports and domestic products, in both instances noting that the
"developing trend" of price for the two products was "basically the same" in that the price initially
rose and then dropped. 349 Apart from these two references, however, MOFCOM did not provide any
further description of these price trends, or set out any explanation or reas oning regarding the role
such trends played in MOFCOM's price effects analysis and findings. 350 We note, moreover, that,
although China argues that parallel price trends is "one of the key elements of MOFCOM's
discussion"351, China has not explained before the Panel, or now on appeal, what the significance of
this element was to the analysis set out in MO FCOM's Final Determination. In the absence of
sufficient reasoning in MOFCOM's Final Determination, or an elucidation of the Final Determination
by China, as to what explanatory force parallel price trends had for the depression or suppression of
domestic prices, we see no basis to fault the Pane l for failing to recognize or discuss the significance
of these trends for MOFCOM's analysis.
5. Increases in Subject Import Volume
211. China further argues that the Panel erred in fi nding that increases in the volume of subject
imports were not the primary basis for MOFCOM's finding of significant price depression and
suppression. China maintains that it never argued that subject import volume was the sole factor
expressed in MOFCOM's determination, but rather that it was one of several key factors. China
asserts that, by finding that MOFCOM's price effect s finding could not be upheld purely on the basis
of subject import volume alone, the Panel erred "[b]y dismissing and giving no weight to the effect of
the volume of subject imports" as expressed in MOFCOM's Final Determination.352
212. The United States argues that the Panel addressed China's claim and properly rejected it.
According to the United States, the Panel noted that China relied on extracts from MOFCOM's

349Final Determination (Panel Exhibit CHN-16 (English version)), pp. 58 and 59.
350In the absence of such explanation or reasoning, th e issue of the parallel price trends raises certain
unresolved questions. We note, for instance, that the Panel questioned the significance of the price trends when
it stated that it was not persuaded that, following a 17 .57% increase in subject im port price in 2008, a 1.25%
decrease in subject import price in the first quarter of 2009 could have had the effect of depressing domestic
prices. (Panel Report, para. 7.535) This also raises a qu estion as to whether it is appr opriate to consider subject
import and domestic price trends in the first quarter of 2009 as "parallel" given that, although they both
decreased in that period, they did so at very different rates—1.25% for subject import prices, and 30.25% for
domestic prices. If parallel price trends were indeed significant for MOFCOM's analysis, then we would have
expected some explanation in MOFCOM's Final Determina tion as to what significance the fact that a modest
decrease in subject import prices follow ed a larger increase in those prices, and that there was a divergence in
subject import and domestic price trends in the first quarter of 2009, had for MOFCOM's overall price effects
analysis.

analysis that appeared to lend equal weight to c onsiderations of subject import volume and price, and
that MOFCOM referred both to the volume and pric e features of subject imports. The United States
contends that "[a]lthough China claims that MOFCOM focused solely or primarily on the volumes of
imports in its analysis, this was not at all evident on the face of MOFCOM's determination."
353
213. At the outset of its analysis, the Panel expl ained that, although MOFCOM's price effects
finding relied on "both the increase in volume of subject imports, and the low price thereof", the Panel
would first focus on the United States' arguments as they relate "to MOFCOM's finding that subject
imports were priced lowe r than domestic products". 354 After doing so, the Panel stated that it would
"complete [its] evaluation by considering whether, ev en if MOFCOM's analysis of the price effects of
subject imports was flawed, MOFCOM's finding that price depression was an effect of subject
imports might nevertheless stand on the basis of MO FCOM's analysis of the effect of the increase in
the volume of subject imports in depressing domestic prices."
355
214. Following its analysis of the effect of subject import prices, the Panel turned to consider
whether or not MOFCOM's Final Determination s upported "China's argument that volume effects
were the primary basis for MOFCOM's finding that price depression was an effect of subject
imports."356 The Panel considered that statements referred to by China in MOFCOM's Final
Determination "appear to lend e qual weight to considerations of both subject import volume and
price"357, and that MOFCOM's analysis was under a h eading entitled "[t]he impact of the import price
of the product concerned on the price of domestic like products." 358 The Panel concluded that there
was "nothing in MOFCOM's determ ination to indicate that MOFCOM relied more heavily on the
increase in the volume of subject imports than it di d on the low price thereof for the purpose of
establishing that price depression was an effect of subject imports."359
215. The Panel further considered that "a panel must exercise great caution in determining whether
or not to engage in analyses not undertak en by the investigating authority itself" 360, and stated that
there was "nothing in MOFCOM's determination to suggest that MOFCOM itself found that the
volume effects of subject imports alone were sufficient to conclude that price depression was an effect
of subject imports." 361 The Panel considered that MOFCOM's analysis of subject import prices was

354Panel Report, para. 7.518.
355Panel Report, para. 7.518.
356Panel Report, para. 7.538.
357Panel Report, para. 7.539.
358Panel Report, para. 7.540 (quoting Final Determination (Panel Exhibit CHN-16 (English version)),
p. 58). (emphasis added by the Panel)
359Panel Report, para. 7.540.
360Panel Report, para. 7.542.
361Panel Report, footnote 522 to para. 7.542.

"so central" to its analysis that the flaws the Pa nel had found with that an alysis "must invalidate
MOFCOM's overall conclusion that price depre ssion was an effect of subject imports". 362 As the
Panel explained, it was therefore "not possible to conclude that MOFCOM's finding that price
depression was an effect of subject imports might be upheld purely on the basis of MOFCOM's
findings regarding the effect of the increase in the volume of subject imports."
363
216. We see no disagreement between the participants that MOFCOM's finding of significant price
depression and suppression rested on an examination of the effect of both the prices and volume of
subject imports on domestic prices. This approach is consistent with the requirements of Articles 3.2
and 15.2 whereby the effect of subject imports on domestic prices may be examined through the
vector of subject import prices, subject import volumes, or both. However, in circumstances where an
investigating authority relies on both subject import prices and volume, a panel must still allow for the
possibility that either prices or volume was sufficient by itself to sustain a finding. 364 We therefore do
not consider that the focus of the Panel's inquiry should have been on whether the effects of either
subject import volume or prices was the primary basis for MOFCOM's price effects finding.
217. In its analysis, the Panel observed that ex tracts on which China relied to establish the
importance of subject import volume for MOFCOM 's analysis showed that MOFCOM's Final
Determination referred "both to the increased volume of subject imports, and the allegedly low price
thereof"365, and appeared "to lend equal weight to cons iderations of both subject import volume and
price".366 We further note that, when MOFCOM referred to "low price" in its analysis of the effect of
subject import prices on domestic prices, it also referred to subject import volume:
Because the sale of the product concerned was kept at a low price,
and the import volume of the pr oduct concerned increased greatly
beginning from 2008, under this im pact, domestic producers lowered
their price to keep the market share.367
218. Subsequently, when MOFCOM stated its finding of significant price depression and
suppression, it also referred both to the effect of subject import prices and volume:

362Panel Report, para. 7.542.
363Panel Report, para. 7.542.
364As a logical matter, the fact that an investigating authority relies more heavily on one of two
potential factors does not support the in ference that the lesser factor was by itself necessarily insufficient to
sustain that finding, or that both factors together were insufficient to sustain it. In any event, we recognize that,
given the inter-relationship of product volumes and prices, it is not clear that an investigating authority may in
practice easily separate and assess the relative contribution of the volumes versus the prices of subject imports
on domestic prices.
365Panel Report, para. 7.540.
366Panel Report, para. 7.539.
367Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.

To be more specific, the sharp increase of the import volume of the
product concerned since the beginning of 2008 and the drop of the
import price of the product concerned in Q1 2009 significantly
depressed and suppressed the price of domestic like products.
368
219. However, while MOFCOM's Fina l Determination referred to both the prices and volume of
subject imports, there is no explanation or reasoni ng as to whether or how the prices and volume of
subject imports interacted to produce an effect on domestic prices. We recall that, under the heading
in MOFCOM's Final Determination that referre d to the "import quantity" of subject imports,
MOFCOM identified increases in the volume of subject imports of 0.91% from 2006 to 2007, 60.64%
from 2007 to 2008, and 23.57% when comparing quantiti es in the first quarter of 2009 with the first
quarter of 2008. 369 We also recall that, under the heading in MOFCOM's Final Determination that
referred to the "import price" of subject imports, MOFCOM identified price increases of 2.97% from
2006 to 2007, and 17.57% from 2007 to 2008, followed by a price drop of 1.25% in the first quarter
of 2009 as compared to the first quarter of 2008.
370 Without further explanation or reasoning,
however, MOFCOM's Final Determination does not indicate how these two factors may have
interacted, or whether the effect of either prices or volume alone could have sustained MOFCOM's
finding of significant price depression or suppression.

220. In this respect, we further recall the Pane l's conclusion that "[t]here [was] nothing in
MOFCOM's determination to suggest that MOFCOM itself found that the volume effects of subject
imports alone were sufficient to conclude that price depression was an effect of subject imports." 371
Without further explanation or reasoning in MOFC OM's Final Determination regarding the manner in
which the effects of the prices and volume of su bject imports operated either independently or
together to depress domestic prices, we understand the Panel to have concluded that it was itself
unable to disentangle the relative contribution of these effects in MOFCOM's Final Determination
without substituting its judgement for that of the authority. The Panel therefore refrained from
conducting an analysis that, in its view, MOFCOM it self had not conducted. To have done so would
have put the Panel at risk of engaging in a de novo review, which would have been inconsistent with a
panel's standard of review in assessing determinations of national authorities.

368Final Determination (Panel Exhibit CHN-16 (English version)), p. 59.
369Final Determination (Panel Exhibit CHN-16 (English version)), p. 57.
370Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.
371Panel Report, footnote 522 to para. 7.542.

221. We therefore agree with the Panel that it was "not possible to conclude that MOFCOM's
finding that price depression was an effect of subject imports might be upheld purely on the basis of
MOFCOM's findings regarding the effect of the increase in the volume of subject imports."372
6. Overall Assessment of China's Application Claim
222. Having reviewed the specific arguments of Chin a, we turn now to an overall assessment of
China's claim that the Panel erred in its application of the legal standard.
223. Above, we considered that the Panel was corre ct to conclude that MOFCOM's finding as to
the "low price" of subject imports referred to the existence of price undercutting between 2006 and
2008, and that MOFCOM relied on this factor to support its finding of significant price depression
and suppression. Moreover, in reviewing China's clai m in the alternative that the Panel nevertheless
erred in imposing certain price comparison methodol ogies, we found no reason to disturb the Panel's
criticism of the AUV data on which MOFCOM relied . For these reasons, we consider that it was
proper for the Panel to conclude that "MOFCOM' s reliance on AUVs, without any consideration of
the need for adjustments to ensu re price comparability, is neither objective, nor based on positive
evidence."373 We further note that, given that the Panel had reason to consider that MOFCOM's price
effects finding did not involve an "objective examin ation" on the basis of "positive evidence", this
would appear also to affirm the Panel's ulti mate finding of inconsistency on these grounds under
Articles 3.1 and 3.2 of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the
SCM Agreement.
224. The remaining elements of China's claim regardi ng the effect of the prices of subject imports
rested on China's contentions that the Panel ignored the role of parallel price trends, and misconceived
the role of a pricing policy aimed at price undercutting by subject imports in the first quarter of 2009.
As we have explained, although MOFCOM's Final Determination refe rred to the fact that subject
import and domestic prices first went up and then down over the period of investigation, no
explanation or reasoning was provided by MOFCOM in its Final Determination, or by China before
the Panel on the basis of the Final Determination, as to how these trends contributed to the price
depressive and suppressive effects of subject import pri ces. With regard to th e Panel's assessment of
a pricing policy aimed at undercutting domestic pric es, we have expressed the view that it was not
appropriate for the Panel to have dismissed the pr icing policy on the grounds that it did because it
failed to consider whether, even in the absence of actual price undercutting, MOFCOM could have
concluded that the policy had the effect of de pressing or suppressing domestic prices. We note,

372Panel Report, para. 7.542.
373Panel Report, para. 7.530.

however, that notwithstanding our disagreement with th e Panel's treatment of the pricing policy, that
factor was, even under China's argument, one of several factors on which MOFCOM relied to
determine the effect of subject import prices on dom estic prices. Accordingly, without a foundation
to conclude that MOFCOM's analysis of the effect of subject import prices could have been sustained
on the basis of the pricing policy alone, we cannot c onclude that rejecting the Panel's analysis would
lead to reversal of the Panel's ultimate finding of inconsistency under Ar ticles 3.1 and 3.2 of the
Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement.
225. In evaluating the implications of these conclu sions for China's claims, we also recall the
Panel's analysis of the effects observed in the firs t quarter of 2009 as set out in paragraph 7.535 of its
Report. In that paragraph, the Panel stated:
Finally, we note that MOFCOM also relied on "the drop of the
import price of the product concerned in Q1 2009" when finding that
price depression was an effect of subject imports. In this regard, we
note MOFCOM's finding that subject import prices fell by 1.25%
from the first quarter of 2008 to the first quarter of 2009. However,
MOFCOM also found that subject import prices increased by 2.97%
and 17.57% in 2007 and 2008 respectively. In addition, MOFCOM
also found that the subject import price was not lower than the
domestic price in the first quarter of 2009. In the absence of any
further clarification by MOFCOM, we are not persuaded that an
objective and impartial investigati ng authority could properly have
found that, following a 17.57% increase in subject import price in
2008, a 1.25% decrease in subject import price in the first quarter of
2009 could have had the effect of depressing domestic prices,
particularly as subject imports prices in any event remained higher
than domestic prices in that period.
374 (footnotes omitted)
226. Here, the Panel expressed its scepticism that, fo llowing several years of increases in subject
import prices, a 1.25% decrease in those prices in the first quarter of 2009 could have had the effect of
depressing domestic prices, which MOFCOM had found fell by 30.25% during that same period. As
we understand it, however, the thrust of this cr itique is broader in the sense that, whether the
contributing factors are argued to be parallel prici ng trends, a policy aimed at undercutting domestic
prices, and/or a 1.25% decrease in the price of subject imports, it is nevertheless anomalous that in the
only period for which domestic prices actually went down—that is, the first quarter of 2009—there
was substantial divergence between the extent of the price decrease for subject imports versus that for
domestic products. Indeed, one w ould normally expect that under the conditions of price competition
indicated by these factors, there would be a closer correlation in the movements in subject import and
domestic prices. Moreover, although China undersco res the importance of the increase in subject
import volume to MOFCOM's finding of signifi cant price depression and suppression, we would

374Panel Report, para. 7.535.

expect that such a factor would also have had the same or similar effects on the price trends of subject
imports and domestic products. The fa ct that there was a substantial di vergence in pricing levels over
that period could suggest that the two produc ts were not in competition with each other 375, or that
there were other factors at work. 376 Therefore, even though we consider that a policy of price
undercutting can explain depressive or suppressive ef fects on domestic prices even in the absence of
actual price undercutting, we do not see that, in the li ght of the pricing dynamic in the first quarter of
2009, there was a basis to conclude so in this case. That pricing dynamic also calls into question
whether the prices of subject imports adequately explain the depression or suppression of domestic
prices.
227. Finally, we take note of the Panel's consider ation that "the same flaws that undermined
MOFCOM's finding that price depression was an effect of subject imports also undermine
MOFCOM's finding that price suppression was an effect of subject imports."
377 Because China
challenges the same elements of the Panel's analysis as it relates to the price effects of depression and
suppression, our conclusions regarding the Panel's an alysis of MOFCOM's Final Determination as it
relates to significant price depression do not lead to a different result with respect to the Panel's
analysis as it relates to significant price suppression.
228. For the foregoing reasons, we find that the Panel di d not err in its application of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, read together with Article 3.1
of the Anti-Dumping Agreement and Article 15.1 of the SCM Agreement.
7. Overall Assessment of China's Article 11 Claim
229. We explained that, although China claimed that the Panel's treatment of MOFCOM's "low
price" discussion constituted both an error in the Pane l's application of the legal standard, and in its
duty to make an objective assessment of the facts unde r Article 11 of the DSU, we would examine the
issue in the light of the Panel's application of the legal standard to MOFCOM's Final Determination.
By contrast, we considered that certain of China' s arguments regarding the need for price adjustments
to ensure price comparability were more clearly di rected at the Panel's appreciation of the evidence,
and that, because these issues were not addressed in China's Article 11 claim, we would not review
them as part of China's appeal.

375In this connection, we note Japan's observation th at the fact that the price of subject imports was
higher than the price of domestic like products in th e first quarter of 2009 "may rather indicate that both
products are not in competition with each other, and th erefore, price depression or price suppression of the
domestic products could not be an effect of the imports". (Japan's third participant's submission, para. 4)
376In other parts of its analysis, the Panel addresses th e effects of Baosteel's entry into the market in
2008 (Panel Report, paras. 7.548 to 7.550), and the effects of domestic capacity and production levels (Panel
Report, paras. 7.629 to 7.637).
377Panel Report, para. 7.547.

230. As we have noted, China also challenges whet her the Panel, in examining MOFCOM's Final
Determination, applied a proper sta ndard of review under Article 11 of the DSU. As was the case in
respect of China's application claim, this aspect of China's Article 11 claim also rests on China's
contention that the Panel relied on the "low pri ce" of subject imports in the form of price
undercutting, and disregarded the totality of factor s that formed the basis for MOFCOM's finding of
significant price depression and suppression. In co nsidering China's application claim, we have
examined the Panel's consideration of these factor s and found that the Panel did not err in its
application of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement ,
read together with Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of the
SCM Agreement. Given the particular focus of China's claims in this case, we therefore consider that,
through our examination and disposition of China's a pplication claim, we have also resolved China's
claim that the Panel did not apply a proper standard of review under Article 11 of the DSU.
231. For the foregoing reasons, we therefore find that the Panel did not act inconsistently with its
duty to make an objective assessment under Article 11 of the DSU.
C. Conclusion
232. We have evaluated and rejected China's clai ms regarding the Panel's interpretation and
application of Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement, as
well as China's claim that the Panel failed to make an objective assessment within the meaning of
Article 11 of the DSU. Having reviewed these claims, we further consider that the Panel's application
of the legal standard under Articles 3.2 and 15.2 , read together with Articles 3.1 and 15.1, is
consistent with the interpretati on we have developed with resp ect to Articles 3.2 and 15.2.
Accordingly, we uphold the finding of the Panel, at paragraphs 7.554 and 8.1( f) of its Report, that
MOFCOM's finding regarding the price effects of s ubject imports was inconsistent with Articles 3.1
and 3.2 of the Anti-Dumping Agreement and Articles 15.1 and 15.2 of the SCM Agreement.
VII. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement
233. We now turn to examine China' s claim regarding the Panel's assessment under Article 6.9 of
the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement. Following a summary of the
Panel's findings, we interpret these provisions before addressing China's specific arguments on appeal.
A. The Panel's Findings
234. The Panel commenced its analysis by examini ng the United States' claim that, in its price
effects analysis, MOFCOM failed to disclose adeq uately the "essential facts" concerning the price

comparisons between domestically produced and impo rted products, as required by Article 6.9 of the
Anti-Dumping Agreement and Article 12.8 of the SCM Agreement.378 The Panel considered that the
"essential facts" that an investigating authority must disclose to interested parties pursuant to
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement are those that
underlie its findings of dumping or subsidization, injury, and causal link, because these elements form
the basis for the decision to apply definitive measures.379
235. Before the Panel, China argued that MOFCOM's injury analysis was based on its finding of
significant price depression and suppression, and that MOFCOM did not make a finding of significant
price undercutting. The Panel found that, even a ccepting China's argument that MOFCOM did not
make a finding of significant price undercutting, th e "low price" of subject imports formed an
essential part of the reasoning MOFCOM used to support its finding of significant price depression
and suppression. Therefore, MOFCOM was require d to disclose not only the conclusion regarding
the existence of a "low price", but also the essentia l facts supporting this conclusion, in order to allow
interested parties to defend their interests.380
236. Acknowledging China's argument that the price comp arison data at issue is confidential, the
Panel reviewed the following non-confidential summa ries provided by MOFCOM that, according to
China, included information underlying the finding of "low price" of subject imports:
(i) The preliminary determination announces significant
margins of dumping, demonstrating that United States exporters were
charging lower prices in China than in their home market;
(ii) The preliminary determination and the final injury disclosure
document state that a "pricing policy aiming at setting the price to a
level lower than that of the dom estic like product was adopted when
selling the product concerned in China";
(iii) The preliminary determination states that "there was no
evidence supporting the claim" that Russian prices were not causing
price suppression. According to Ch ina, this is a reference to the
evidence that the parties had submitted;
(iv) The final injury disclosure document refers to "data obtained
from investigation" to highlight that Russian producers had a pricing

378We note that, before the Panel, the United States additionally argued that the following aspects of
MOFCOM's price effects analysis were not accompanied by adequate disclosure of the "essential facts under
consideration" in accordance with Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement: (i) the price levels for the domestically produc ed product; (ii) the source of the information
on pricing trends for the domestically produced produc t; (iii) information regarding the purported low price
"strategies" adopted by the US and Ru ssian exporters of GOES; and (iv) the levels or trends of the domestic
industry's costs. (Panel Report, para. 7.567)
379Panel Report, para. 7.568.
380Panel Report, para. 7.569.

policy of "setting the price to a lower level than that of the domestic
like product"; and
(v) The preliminary determination notes that the United States
sales were below normal value and we re supported by subsidies. It
also notes the declining trend in subject import average unit values.
381
(footnotes omitted)
237. The Panel found that these non-confidential summaries did not provide a summary of the
essential facts supporting MOFCOM's finding of "low price" of subject imports, as they did not refer
to the prices of subject imports relative to the prices of GOES produced by the domestic Chinese
industry. In particular, the Panel considered that: (i) the existence of dumping or subsidization could
not be used to infer the relative prices of subj ect imports and the domestically produced product;
(ii) information on the trends in subject import AUVs did not indicate that these values were lower
than the values of domestically produced GOES; and ( iii) the references to the low pricing strategies
of the Russian and US exporters were also insu fficient as a summary of the essential facts supporting
the conclusion of "low price" of subject imports, because they merely stated that such a strategy
existed.
382
238. The Panel noted certain instances in which China provided more specific, albeit still
non-confidential, information to the Panel supporting MOFCOM's finding of "low price" of subject
imports. In particular, the Panel referred to: (i) China's explanation of the price setting behaviour that
MOFCOM relied on to conclude that a "low price strategy existed" 383; (ii) information regarding the
dates of the transactions in which the "p ricing strategies" were allegedly employed 384; and
(iii) information on the percentage difference be tween the AUVs of subject imports and domestic
products for 2006, 2007, and 2008. 385 In the Panel's view, information of this type reflected essential
facts supporting MOFCOM's finding of "low price" of subject imports, and should have been included
in MOFCOM Announcement No. 99 of 10 December 2009 386 (the "Preliminary Determination") or

381Panel Report, para. 7.570.
382Panel Report, paras. 7.572 and 7.573.
383Panel Report, para. 7.573. In relation to the price setting behaviour, China explained to the Panel
that "the Chinese supplier quoted a price, the customer responded by noting the specific amount by which the
Chinese offer was higher than the a lternatives available from Russian or US suppliers, and the Chinese supplier
was then forced to lower its price." (Panel Report, para. 7.573 (quoting China's response to the Panel's request of
18 November 2011 for certain confidential data, p. 2))
384Panel Report, para. 7.573 (referring to China's resp onse to the Panel's request of 18 November 2011
for certain confidential data, p. 2).
385Panel Report, para. 7.574.
386MOFCOM Announcement No. 99 [200 9] (10 December 2009) (English translation as contained in
Panel Exhibit CHN-17) (the "Preliminary Determination"). We note that the United States also submitted an
English translation of MOFCOM's preliminary determination as part of Panel Exhibit US-5. However,
throughout its Report, the Panel cited the exhibit submitte d by China (Panel Exhibit CHN-17) when referring to
the Preliminary Determination. Similarly, in this Repo rt, we refer to the English translation as contained in
Panel Exhibit CHN-17.

the disclosure of essential facts 387 (the "Final Injury Disclosure") to allow interested parties to defend
their interests. The Panel concluded that MOFC OM's failure to do so was inconsistent with
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement.388
B. Interpretation
239. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement provide:
The authorities shall, before a final determination is made, inform all
[interested Members and] interested 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.
389
240. At the heart of Articles 6.9 and 12.8 is the requirement to disclose, before a final
determination is made, the ess ential facts under consideration which form the basis for the decision
whether or not to apply definitive measures. As to the type of information that must be disclosed,
these provisions cover "facts under consideration", that is, those facts on the record that may be taken
into account by an authority in reaching a deci sion as to whether or not to apply definitive
anti-dumping and/or countervailing duties. We highlight that, unlike Articles 12.2.2 of the
Anti-Dumping Agreement and 22.5 of the SCM Agreement, which govern the disclosure of matters of
fact and law and reasons at the conclusion of anti-dumping and countervaili ng duty investigations,
Articles 6.9 and 12.8 concern the disclosure of "facts" in the course of such investigations "before a
final determination is made". Moreover, we note that Article s 6.9 and 12.8 do not require the
disclosure of all the facts that are before an authority but , instead, those that ar e "essential"; a word
that carries a connotation of significant, important , or salient. In considering which facts are
"essential", the following question arises: essential for what purpose? The context provided by the
latter part of Articles 6.9 and 12.8 clarifies that such facts are, first, those that "form the basis for the
decision whether to apply definitive measures" and, s econd, those that ensure the ability of interested

387Essential Facts Under Consideration Which Form th e Basis of the Determination on Industry Injury
Investigation of the Antidumping Investigation of GOES from the US and Russia and the Anti-subsidy
Investigation of GOES from the US, Shang Diao Cha Han (2010) No. 67 (5 March 2010) (English translation as
contained in Panel Exhibit CHN-29). We note that the United States also submitted an English translation of
MOFCOM's disclosure document as part of Panel Exhibit US-27. However, throughout its Report, the Panel
cited the exhibit submitted by China (Panel Exhibit CHN-29) when referring to the Final Injury Disclosure.
Similarly, in this Report, we refer to the English translation as contained in Panel Exhibit CHN-29.
388We observe that, given its conclusion with respect to MOFCOM's failure to disclose the "essential
facts" underlying the finding of "low price" of subject imports, the Panel did not consider it necessary to
examine whether MOFCOM's disclosure on other matters described supra , in footnote 378, was also
inconsistent with these provisions. (Panel Report, para. 7.575)
389The bracketed text is included in Article 12.8 of the SCM Agreement, and not in Article 6.9 of the
Anti-Dumping Agreement.

parties to defend their interests.
390 Thus, we understand the "essential facts" to refer to those facts that
are significant in the process of reaching a decision as to whether or not to appl y definitive measures.
Such facts are those that are salient for a decision to apply definitive measures, as well as those that
are salient for a contrary outcome. An authority must disclose such facts, 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. In our view, disclosing the essential fa cts under consideration pursuant to Articles 6.9
and 12.8 is paramount for ensuring the ability of the parties concerned to defend their interests.
241. We agree with the Panel that, "[i]n order to apply definitive measures at the conclusion of
countervailing and anti-dumping inv estigations, an investigating au thority must find dumping or
subsidization, injury and a causal link" 391 between the dumping or subsidization and the injury to the
domestic industry.392 What constitutes an "essential fact" must therefore be understood in the light of
the content of the findings needed to satisfy the subs tantive obligations with respect to the application
of definitive measures under the Anti-Dumping Agreement and the SCM Agreement , as well as the
factual circumstances of each case. These findings each rest on an analysis of various elements that
an authority is required to examine, which, in th e context of an injury analysis, are set out in,
inter alia, Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement and Articles 15.1, 15.2, 15.4,
and 15.5 of the SCM Agreement. Articles 3.2 and 15.2 require investigating authorities to consider
the effect of subject imports on prices. In pa rticular, under the second sentence of these provisions,
authorities must consider whether there has been a significant price undercutting by the dumped or
subsidized imports as compared with the price of a like domestic product, or whether the effect of
such imports is otherwise to depress prices to a significant degree or prevent price increases, which
otherwise would have occurred, to a significant degree.
242. Hence, in the context of the second sentence of Articles 3.2 and 15.2, we consider that the
essential facts that investigating authorities need to disclose are those that are required to understand
the basis for their price effects examination, leading to the decision whether or not to apply definitive

390An effective right for parties to defend their interests requires that, before a final determination is
made, the authority explains, in the light of the substantive obligations of the Anti-Dumping Agreement and the
SCM Agreement, how the essential facts serve as the basis for the decision whether to apply definitive measures.
We agree with the panel in EC – Salmon (Norway) that these provisions are ther efore intended "to provide the
interested parties with the necessary information to enable them to comment on the completeness and
correctness of the facts being considered by the investigating authority, provide additional information or correct
perceived errors, and comment on or make arguments as to the proper interpretation of those facts." (Panel
391Panel Report, para. 7.569.
392We note that, in Mexico – Olive Oil , the panel similarly found that, in the context of the
SCM Agreement, the "essential facts" are "the specific facts that underlie the investigating authority's final
findings and conclusions in respect of the three essential elements—subsi dization, injury and causation—that
must be present for application of definitive measures." (Panel Report, Mexico – Olive Oil, para. 7.110)

measures, so that interested parties can defend th eir interests. We now turn to assess the Panel's
analysis under Articles 6.9 and 12.8.
C. Assessment of the Panel's Analysis under Article 6.9 of the Anti-Dumping Agreement
and Article 12.8 of the SCM Agreement
243. China challenges the Panel's finding that MOFCOM failed to disclose the essential facts
underlying its finding of "low price" of subject imports. China argues that MOFCOM adequately
disclosed, pursuant to Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the
SCM Agreement, the essential facts regarding the existe nce of significant price depression and
suppression. China submits that, contrary to the Panel's view, the essential facts for price depression
and suppression do not include any facts about the comparison of domestic prices to subject import
prices, or the causal relationship between these two variables.
393
244. We recall our finding that the Panel was correct to conclude that, although MOFCOM did not
make a finding of significant price undercutting, MOFC OM's finding as to the "low price" of subject
imports referred to the existence of price unde rcutting between 2006 and 2008, and that MOFCOM
relied on this factor to support its finding of significant price depression and suppression. 394 Thus, in
the context of this aspect of MOFCOM's reasoning, the essential facts included those facts underlying
the existence of price undercutting that would have allowed for an understanding of this element of
MOFCOM's finding of significant price depression and suppression.
245. We observe that, before the Panel, China argued that the essential facts were disclosed in the
Preliminary Determination and the Final Injury Disclosure. 395 These documents contain weighted
average prices for subject imports for the years 2006, 2007, 2008, and the first quarter of 2009.396 The
Preliminary Determination additionally includes pe rcentages reflecting the changes in these prices
during the relevant periods. 397 As to the price of domestic like products, the Preliminary
Determination and the Final Injury Disclosure only contain percentages reflecting price variations for
the years 2006, 2007, 2008, and the first quarter of 2009, without including the prices of domestic
products.398 At a descriptive level, the Preliminary Dete rmination states that one of the factors that
led to the determination of significant price depressi on and suppression was "the constant sales of the

393China's appellant's submission, paras. 211 and 212.
394See supra, para. 196.
395Panel Report, para. 7.561 (referri ng to China's first written submi ssion, para. 306; and China's
opening statement at the first Panel meeting, para. 51).
396Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 55; Final Injury Disclosure
(Panel Exhibit CHN-29 (English version)), p. 9.
397Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 55.
398Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 55; Final Injury Disclosure
(Panel Exhibit CHN-29 (English version)), p. 10.

product concerned at a low price."
399 Importantly, as found by the Panel, MOFCOM did not include,
in the Preliminary Determination or in the Fina l Injury Disclosure, the AUV data mentioned above
nor any other information about price comparis ons between subject import prices and domestic
prices.400
246. On appeal, China argues that "MOFCOM's findings of adverse price effects rested on its
finding of price depression and price suppression, and MOFCOM appropriately disclosed the essential
facts necessary to support those conclusions." 401 Regarding price depression, China asserts that
MOFCOM provided the essential facts by disclosing, in the Preliminary Determination and in the
Final Injury Disclosure, that average domestic pric es had fallen by 30.25% during the first quarter of
2009 compared to the first quarter of 2008. 402 With respect to price suppression, China further asserts
that MOFCOM provided the essential facts when it di sclosed in the Preliminary Determination that
the "price-cost differential" in 2008 "dropped by 7% compared with 2007", and "dropped continually
and greatly by 75%" during the first quarter of 2009 compared to the first quarter of 2008. 403 China
submits that, in both instances, this degree of disclos ure is sufficient and that any further detail would
compromise the confidentiality of business confidential information.404
247. First, we note that the Preliminary Determin ation and the Final Injury Disclosure indeed
contain the information referred to by China. 405 However, the question before us is whether such
disclosure was sufficient to discharge MOFCOM's obligations under Article 6.9 and 12.8. In
particular, did MOFCOM disclose the essential facts c oncerning the "low price" of subject imports?
We recall our finding that the Panel was correct to conclude that MOFCOM's finding as to the "low
price" of subject imports referred to the existe nce of price undercutting between 2006 and 2008, and
that MOFCOM relied on this factor to support its finding of significant price depression and
suppression. Hence, given that MOFCOM relied on th is factor to support its finding of significant
price depression and suppression, we do not consider that MOFCOM discharged its obligations under
Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement by merely
disclosing, with respect to price depression, that average domestic prices had fallen, and, with respect
to price suppression, that the "price-cost differen tial" dropped during the period of investigation.

399Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 57. (emphasis added)
400Panel Report, para. 7.574.
402China's appellant's submission, para. 213 (referring to Preliminary Determination (Panel Exhibit
CHN-17 (English version)), p. 55; and Final Injury Disclosure (Panel Exhibit CHN-29 (English version)),
p. 10).
403China's appellant's submission, para. 214 (quoting Preliminary Determination (Panel Exhibit
CHN-17 (English version)), p. 56).
405See Preliminary Determination (Panel Exhibit CHN-17 (English version)), p.p. 55-56; and Final
Injury Disclosure (Panel Exhibit CHN-29 (English version)), pp. 10 and15.

Indeed, the essential facts that MOFCOM should have disclosed in respect of the "low price" of
subject imports include the price comparisons between subject imports and the like domestic
products. We note that, as found by the Panel, MOFCOM did not provide, in its Preliminary
Determination or in its Final Injury Disclosure, the essential facts relating to the price comparisons
upon which the finding of "low price" of subject imports was based. 406 Such facts should have been
disclosed because they were required for an unders tanding of the occurrence of price undercutting,
which served as a basis for MOFCOM's price effects finding. With respect to China's argument that
disclosing further details would have compromised business confidential information, we agree with
the Panel that, when confidential information c onstitutes "essential facts" within the meaning of
Articles 6.9 and 12.8, the disclosure obligations un der these provisions should be met by disclosing
non-confidential summaries of those facts.407
248. China further submits that "the Panel improperly criticize[d] MOFCOM for not disclosing the
margins of underselling during the 2006-2008 period" 408, given that "[t]hese facts … were never facts
that 'form the basis of the decision' to impose measures." 409 As found above, the essential facts
include the price comparisons that substantiate th e existence of price undercutting, such as the AUV
data provided by China to the Panel. Therefore, we consider that the Panel correctly found that this
information should have been included in the Preliminary Determination or the Final Injury
Disclosure.
249. Additionally, China argues that "the Pa nel unreasonably criticizes MOFCOM for not
providing the same level of detail that China provide d in its submissions to the Panel regarding the
pricing policy."410 In particular, China argues that, althoug h the elements disclosed before the Panel
might be useful facts, they were not "essential facts" for MOFCOM's reasoning in its Final
Determination. In China's view, "MOFCOM's reasoning did not depend on the dates of the
transactions at issue, or whether they were successful in undercutting domestic prices."
411 We are not
persuaded by this argument. First, we note th at the Panel examined the "pricing policy" under
Articles 6.9 and 12.8 because China argued that, by revealing information regarding this policy,
MOFCOM disclosed a non-confidential summary of the information underlying its finding of "low
price" of subject imports. Before the Panel, Ch ina also provided information "regarding the price
setting behaviour it was relying upon to concl ude that a 'low price strategy existed'" 412 and the "dates

406Panel Report, para. 7.574.
407Panel Report, para. 7.571.
412Panel Report, para. 7.573.

of the transactions in which the 'pricing strategies' were allegedly employed".
413 Contrary to China's
position, we do not read the Panel as ascribing im portance to the additional information that China
provided, merely because this information was more detailed than the descriptions in the Preliminary
Determination and the Final Injury Disclosure. To the contrary, the Panel stated that "[i]n order to
allow the respondents to defend their interests, a summary of the 'essential facts' supporting the
finding of a 'low price strategy' was required, rather than merely stating the conclusion that such a
strategy existed."
414 In our view, the Panel was thus focu sing on the need to disclose the essential
facts supporting the finding concerning the pricing policy in order to comply with Articles 6.9
and 12.8. We therefore see no error in the Panel's assessment in this regard.
250. Moreover, China argues that the Panel improperl y focused its analysis on the pricing policy
and did not acknowledge the other factors consider ed in MOFCOM's Final Determination, namely,
the significance of decreasing import prices and increasing import volume. 415 We fail to see how the
Panel's alleged failure to acknow ledge "the significance of decreasing import prices and increasing
import volume" shows that, contrary to the Panel' s finding, MOFCOM did disclose the essential facts
supporting the finding that "the sale of the product concerned was kept at a low price".416 As we have
found, the Panel correctly found that MOFCOM failed to disclose information on the price
comparisons relating to the finding of "low price" of subject imports as required by Articles 6.9
and 12.8.
251. In sum, MOFCOM was required to disclose the "ess ential facts" relating to the "low price" of
subject imports on which it relied fo r its finding of significant price depression and suppression. This
means that, in addition to the finding regarding th e "low price" of subject imports, MOFCOM was
also required to disclose the facts of price undercutti ng that were required to understand that finding.
As the Panel found, the Preliminary Determinati on and the Final Injury Disclosure only state that
subject imports were at a "low price", without provi ding any facts relating to the price comparisons of
subject imports a nd domestic products. 417 We consider that these facts constituted "essential facts"
within the meaning of Articles 6.9 and 12.8, whic h should have been disclosed to all interested
parties. Consequently, we uphold the Panel's finding in paragraphs 7.575 and 8.1(f) of the Panel
Report that China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement and
Article 12.8 of the SCM Agreement.

413Panel Report, para. 7.573.
414Panel Report, para. 7.573.
415China's appellant's submission, para. 221 (referring to Final Determination (Panel Exhibit CHN-16
(English version)), p. 59).
416Preliminary Determination (Panel Exhibit CHN-17 (English version)), p. 56. (emphasis added)
417Panel Report, para. 7.574.

VIII. Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement
252. We now turn to examine China's claim regard ing the Panel's assessment under Article 12.2.2
of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement . After a summary of the
Panel's findings, we interpret these provisions before addressing China's specific arguments on appeal.
A. The Panel's Findings
253. The Panel commenced its analysis by examining the United States' claim that, with regard to
its price effects analysis, MOFCOM failed to provide adequate public notice and explanation
regarding its finding that the prices of GOES fro m the United States and Russia were lower than
prices for the domestically produced product. 418 The Panel then observed that, when confidential
information also forms part of the "relevant info rmation on matters of fact and law" within the
meaning of Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement, an
investigating authority can meet its dual obligations to disclose the relevant information while also
protecting its confidentiality, by providing a non-co nfidential summary in the public notice or in a
separate report.419
254. The Panel reiterated its conclusion that the "low price" of subject imports was an important
aspect of MOFCOM's reasoning leading to the impos ition of final measures, and found that the Final
Determination did not include any indication that a comparative analysis of prices had been
performed, or provide the factual information ar ising from such a comparison. While the Panel
agreed with the Appellate Body's finding in US – Countervailing Duty Investigation on DRAMS that
"Article 22.5 does not require the agency to cite or discuss every piece of supporting record evidence
for each fact in the final determination" 420, it nevertheless considered that the significance of the
conclusion regarding the "low price" of subject im ports in MOFCOM's analysis made it necessary to
include further information on the matters of fact leading to this conclusion. 421 The Panel noted that
"MOFCOM had before it information on the prices of subject imports and the prices of the domestic
product and undertook a comparative analysis of this information." 422 Consequently, the Panel found
that China acted inconsistently with Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of

418We note that, before the Panel, the United States also claimed that MOFC OM acted inconsistently
with Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement by not including in
the Final Determination facts supporting its finding that th e United States and Russia had a strategy of charging
low prices, and by not providing r easons for the acceptance or rejection of arguments submitted by exporters
419Panel Report, para. 7.589.
420Panel Report, para. 7.591 (quoting Appellate Body Report, US – Countervailing Duty Investigation
on DRAMS, para. 164).
421Panel Report, paras. 7.590 and 7.591.
422Panel Report, para. 7.591.

the SCM Agreement by failing adequately to disclose all rele vant information on the matters of fact
underlying MOFCOM's conclusion regarding the existence of "low" subject import prices.
423
B. Interpretation
255. Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the SCM Agreement
provide in relevant part:
A public notice of conclusion or suspension of an investigation in the
case of an affirmative determination providing for the imposition of a
definitive duty … shall contain, or otherwise make available through
a separate report, all relevant information on the matters of fact and
law and reasons which have led to the imposition of final measures
… due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall
contain the information described in [Article 12.2.1 of the
Anti-Dumping Agreement/Article 22.4 of the SCM Agreement].
256. Relevant to this dispute is the requirement in Articles 12.2.2 and 22.5 that a public notice
contain "all relevant information" on "m atters of fact" "which have led to the imposition of final
measures".
424 With regard to "matters of fact", these provisions do not require authorities to disclose
all the factual information that is before them, but rather those facts that allow an understanding of the
factual basis that led to the imposition of final measures. 425 The inclusion of this information should
therefore give a reasoned account of the factual support for an authority's decision to impose final
measures. Moreover, we note that the obligations und er Articles 12.2.2 and 22.5 come at a later stage
in the process than the requirement to disclose the essential facts pursuant to Articles 6.9 and 12.8.
While the disclosure of essential facts must take place "before a final determination is made", the
obligation to give public notice of the conclusi on of an investigation within the meaning of
Articles 12.2.2 and 22.5 is triggered once there is an affirmative determination providing for the
imposition of definitive duties.
257. As noted in our examination of Articles 6.9 and 12.8, the imposition of final anti-dumping or
countervailing duties requires that an authority find s dumping or subsidization, injury, and a causal

423Panel Report, para. 7.592. We note that, given its conclusion with respect to the failure to disclose
adequately all relevant information on the matters of fact underlying MOFCOM's conclusion regarding the "low
price" of subject imports, the Panel did not consider it necessary to address the United States' arguments
described supra, in footnote 418. (Panel Report, para. 7.592)
424We note that, in addition to matters of fact, Articles 12.2.2 and 22.5 also require that the public
notice contain all relevant information on the matters of law and reasons which have led to the imposition of
final measures.
425We observe that, in US – Countervailing Duty Investigation on DRAMS , the Appellate Body held
that Article 22.5 of the SCM Agreement "does not require the agency to cite or discuss every piece of supporting
record evidence for each fact in the fina l determination". (App ellate Body Report, US – Countervailing Duty
Investigation on DRAMS, para. 164)

link between the dumping or subsidization and the in jury to the domestic industry. What constitutes
"relevant information on the matters of fact" is therefore to be understood in the light of the content of
the findings needed to satisfy the substantive re quirements with respect to the imposition of final
measures under the Anti-Dumping Agreement and the SCM Agreement , as well as the factual
circumstances of each case. These findings each r est on an analysis of various elements that an
authority is required to examine, which, in the context of an injury analysis, are set out in, inter alia,
Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement and Articles 15.1, 15.2, 15.4, and 15.5
of the SCM Agreement. Articles 3.2 and 15.2 require, inter alia, an investigating authority to consider
the effect of the subject imports on prices by c onsidering whether there has been significant price
undercutting, or whether the effect of such impor ts is otherwise to depress prices to a significant
degree or prevent price increases, which otherwise w ould have occurred, to a significant degree. We
note that Articles 12.2.2 and 22.5 further undersco re the requirement of public notice of these
elements by cross-referencing, respectively, to Articles 12.2.1 of the Anti-Dumping Agreement
and 22.4 of the SCM Agreement, which require that the public noti ce or report contain considerations
relevant to the injury determination as set out in Articles 3 and 15.
258. Articles 12.2.2 and 22.5 are both situated in the context of provisions that concern the public
notice and explanation of determinations in anti-du mping and countervailing duty investigations. In
the case of an affirmative determination prov iding for the imposition of a definitive duty,
Articles 12.2.2 and 22.5 provide that such notice sha ll contain all relevant information on the matters
of fact and law and reasons whic h have led to the imposition of final measures. Articles 12.2.2
and 22.5 capture the principle that those parties whos e interests are affected by the imposition of final
anti-dumping and countervailing duties are entitled to know, as a matter of fairness and due process,
the facts, law and reasons that have led to the im position of such duties. The obligation of disclosure
under Articles 12.2.2 and 22.5 is framed by the re quirement of "relevance", which entails the
disclosure of the matrix of facts, law and reasons th at logically fit together to render the decision to
impose final measures. By requiring the disclosur e of "all relevant information" regarding these
categories of information, Articles 12.2.2 and 22.5 seek to guarantee that interested parties are able to
pursue judicial review of a final determ ination as provided in Article 13 of the Anti-Dumping
Agreement and Article 23 of the SCM Agreement.
259. With respect to the form in which the relevant information must be disclosed, Articles 12.2.2
and 22.5 allow authorities to decide whether to incl ude the information in the public notice itself "or
otherwise make [it] available through a separate re port". We note that Articles 12.2.2 and 22.5 also
provide that the notice or report shall pay "due re gard … to the requirement for the protection of
confidential information". When confidential inform ation is part of the relevant information on the

matters of fact within the meaning of Articles 12. 2.2 and 22.5, the disclosure obligations under these
provisions should be met by disclosing non-confidential summaries of that information.
260. In sum, in the context of the second sentence of Articles 3.2 and 15.2, we consider that "all
relevant information on the matters of fact" consists of those facts that are required to understand an
investigating authority's price effects examination leading to the imposition of final measures. We
now turn to assess the Panel's analysis under Articles 12.2.2 and 22.5.
C. Assessment of the Panel's Analysis und er Article 12.2.2 of the Anti-Dumping
Agreement and Article 22.5 of the SCM Agreement
261. China challenges the Panel's finding that MOFCOM failed adequately to disclose "all relevant
information on the matters of fact" underlying MO FCOM's conclusion regarding the "low price" of
subject imports, as required by Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement . China argues that MOFCOM adequately pr ovided public notice of its finding of
significant price depression and suppression, which, contrary to the Panel's view, does not require a
causal relationship between subject imports and these adverse price effects.
426 China highlights that
the Panel did not examine this finding and, rather , focused on the existence and magnitude of price
undercutting, thereby making a comparison of subject import prices to domestic prices "essential
elements" and "an important aspect" of MOFCOM's price effects examination.427
262. We recall our finding that the Panel was correct to conclude that, although MOFCOM did not
make a finding of significant price undercutting, MOFC OM's finding as to the "low price" of subject
imports referred to the existence of price unde rcutting between 2006 and 2008, and that MOFCOM
relied on this factor to support its finding of significant price depression and suppression. 428
Accordingly, in the context of this aspect of MO FCOM's reasoning, the "relevant information on the
matters of fact" included those facts underlying the existence of price undercutting that would have
allowed for an understanding of this element of MOFCOM's finding of significant price depression
and suppression.
263. Against this background, we note that the Final Determination 429 contains weighted average
prices for subject imports for the years 2006, 2007, 20 08, and the first quarter of 2009, as well as the
percentages reflecting the changes in these prices during these periods. 430 With respect to the price of

428See supra, para. 196.
429The Final Determination was the document examined by the Panel in the context of the
United States' claim under Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement.
430Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.

the like domestic products, the Final Determination only contains percentages reflecting price
variations for the years 2006, 2007, 2008, and the first quarter of 2009, without including the prices
of domestic products.431 Regarding the impact of subject import prices on the prices of like domestic
products, the Final Determination states that, "[b]ecause the sale of the product concerned was kept at
a low price, and the import volume of the product con cerned increased greatly beginning from 2008,
under this impact, domestic producers lowered their price to keep the market share."
432 As noted in
the context of our examination of Articles 6.9 a nd 12.8, China argued before the Panel that the
existence of price undercutting supported MOFCOM's finding that subject imports were at a "low
price", and, for this purpose, submitted to the Panel data regarding AUVs of subject imports and
domestic products between 2006 and 2008. 433 As found by the Panel, MOFCOM's Final
Determination does not, however, include this AUV data.434
264. On appeal, China argues that MOFCOM adequately provided public notice of its finding
regarding the existence of significant price depre ssion and suppression in the Final Determination by
stating, respectively, that "average prices droppe d", and that the "price-cost differential" dropped. 435
China further argues that the Panel erred by "focus[ing] entirely on the degree of public notice not just
about the existence of price undercutting … but also the specific magnitude of the price
undercutting."436 In China's view, given that the Panel determined that MOFCOM made a finding of
price depression and suppression, and not of price undercutting, the evidence about price undercutting
during the 2006-2008 period is the type of "suppor ting record evidence" that the Appellate Body
considered would not need to be disclosed under Article 22.5 of the SCM Agreement.437 We disagree
with this argument for the following reasons. As f ound above, the Panel was correct to conclude that
MOFCOM's Final Determination relied on evidence of price undercutting to establish that the effects
of subject imports were to depress and suppress prices to a significant degree. 438 Notably, as found by
the Panel, MOFCOM did not disclose information re lating to the price comparisons between subject

431Final Determination (Panel Exhibit CHN-16 (English version)), p. 58.
432Final Determination (Panel Exhibit CHN-16 (English version)), p. 58. (emphasis added)
433Panel Report, para. 7.591 (referring to China's second written submission to the Panel, footnote 95 to
para. 102).
434Panel Report, para. 7.591.
435In particular, similar to its argument in the context of Article 6.9 of the Anti-Dumping Agreement and
Article 12.8 of the SCM Agreement, China asserts that, with respect to price depression, the Final Determination
established that average domestic prices dropped by 30.25% during the first quarter of 2009 compared to the
first quarter of 2008. Regarding price suppression, Chin a further submits that the Final Determination stated
that the "price-cost differential" dropped by 7% during calendar year 2008 compared to calendar year 2007, and
dropped even more substantially by 75% in the first quarter of 2009 compared to the first quarter of 2008.
(China's appellant's submission, para. 225)
437China's appellant's submission, para. 227 (referring to Appellate Body Report, US – Countervailing
438See supra, para. 196.

imports and dom estic products.
439 Thus, MOFCOM's disclosure that "average domestic prices
dropped" and that the "price-cost differential droppe d" is insufficient to convey all the relevant
information on the matters of fact relating to MOFC OM's finding that subject imports were at a "low
price".
265. China further argues that the Panel erred in three respects in considering a comparison of
subject import prices to domestic prices "essential elements" and "an important aspect" of
MOFCOM's Final Determination. First, China subm its that the Panel erred in faulting MOFCOM for
not disclosing the margin by which the prices of subject imports were below the prices of domestic
producers. China highlights that this fact—or any facts about such relative prices—was never a
"matter of fact" on which MOFCOM actually based its decision to impose final measures.
440 Second,
China argues that, pursuant to Articles 12.2 of the Anti-Dumping Agreement and 22.3 of the
SCM Agreement, the public notice requirement only extends to those facts "considered material" by
the investigating authority. China adds that, give n that the Final Determination does not contain any
finding of price undercutting, such facts were not material to MOFCOM's Final Determination.
Consequently, argues China, these facts need not ha ve been disclosed in the Final Determination. 441
At the outset, we note that the facts that an inv estigating authority may consider material to its
determinations are circumscribed by the framework of the substantive provisions of the Anti-Dumping
Agreement and the SCM Agreement. Moreover, we recall our finding, in the context of Articles 3.2
and 15.2, that the Panel was correct to conclude that MOFCOM's finding as to the "low price" of
subject imports referred to the existence of price undercutting between 2006 and 2008, and that
MOFCOM relied on this factor to support its finding of significant price depression and
suppression.
442 Accordingly, we disagree with China' s arguments, as they are premised on its
contention that MOFCOM did not rely on the exis tence of price undercutting for its finding of
significant price depression and suppression.
266. Finally, China asserts that the Panel ignored MOFCOM's finding on the pricing policy of
producers of the product concerned, even though MO FCOM disclosed the basi c facts underlying this
finding, namely, the existence of such a policy, its an alytic relevance, and the fact that the "contracts
and records of price setting" were collected during an onsite verification. China further contends that
the Panel did not take into cons ideration MOFCOM's disclosure of the other two elements discussed
in the Final Determination, namely, decreasing import prices and increasing import volume. 443 We
fail to see how asserting that the Panel ignored MOFCOM's finding on the pricing policy and "the

439Panel Report, para. 7.591.
442See supra, para. 196.

significance of decreasing import prices and increasing import volume" demonstrates that MOFCOM
included in the Final Determination "all relevant information on the matters of fact" with respect to
the "low price" of subject imports. We are therefore not persuaded by China's argument.
267. In sum, MOFCOM was required to disclose "all re levant information on the matters of fact"
relating to the "low price" of subject imports on which it relied for its finding of significant price
depression and suppression. Consequently, in addition to the finding in its Final Determination that
subject imports were at a "low price", MOFCOM was also required to disclose the facts of price
undercutting that were required to understand th at finding. As the Panel found, the Final
Determination only states that s ubject imports were at a "low pr ice", without providing any facts
relating to the price comparisons of subject imports and domestic products. 444 We consider that these
facts constituted "relevant information on the matters of fact" within the meaning of Articles 12.2.2
and 22.5, which should have been included in MOFC OM's Final Determination. Consequently, we
uphold the Panel's finding in paragraphs 7.592 an d 8.1(f) of the Panel Report that China acted
inconsistently with Article 12.2.2 of the Anti-Dumping Agreement and Article 22.5 of the
SCM Agreement.
IX. Findings and Conclusions
268. For the reasons set out in this Report, the Appellate Body:
(a) with respect to the Panel's interpretation of Article 3.2 of the Anti-Dumping
Agreement and Article 15.2 of the SCM Agreement:
(i) finds that Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement require an investigating authority to consider the
relationship between subject imports and the prices of the like domestic
products, so as to understand whether s ubject imports provide explanatory
force for the occurrence of significant depression or suppression of domestic
prices; and
(ii) finds that the Panel did not err in not adopting China's interpretation of
Articles 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement;

444Panel Report, para. 7.591.

(b) with respect to the Panel's assessment of MOFCOM's price effects analysis:
(i) finds that the Panel did not err in it s application of Article 3.2 of the
Anti-Dumping Agreement and Article 15.2 of the SCM Agreement , read
together with Article 3.1 of the Anti-Dumping Agreement and Article 15.1 of
the SCM Agreement;
(ii) finds that the Panel did not act incons istently with its duty to make an
objective assessment under Article 11 of the DSU; and
(iii) upholds the Panel's finding, at paragraphs 7.554 and 8.1(f) of its Report, that
MOFCOM's finding regarding the price effects of subject imports was
inconsistent with Artic les 3.1 and 3.2 of the Anti-Dumping Agreement and
Articles 15.1 and 15.2 of the SCM Agreement;
(c) with respect to the Panel's finding under Article 6.9 of the Anti-Dumping Agreement
and Article 12.8 of the SCM Agreement:
(i) upholds the Panel's finding, at paragraphs 7.575 and 8.1(f) of its Report, that
China acted inconsistently with Article 6.9 of the Anti-Dumping Agreement
and Article 12.8 of the SCM Agreement; and
(d) with respect to the Panel's finding under Article 12.2.2 of the Anti-Dumping
Agreement and Article 22.5 of the SCM Agreement:
(i) upholds the Panel's finding, at paragraphs 7.592 and 8.1(f) of its Report, that
China acted inconsistently with Article 12.2.2 of the Anti-Dumping
Agreement and Article 22.5 of the SCM Agreement.

ANNEX I

23 July 2012
 (12-4026)
 Original: English

Notification of an Appeal by China
under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 20 July 2012, from the Delegation of the People's Republic
of China, is being circulated to Members.

Governing the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate
Review, the People's Republic of China hereby notifies the Dispute Settlement Body of its decision to
appeal to the Appellate Body certain issues of law and legal interpretation covered in the Panel Report
in (WT/DS414) ("Panel Report"). Pursuant to Rule 20(1) of the Working
Procedures for Appellate Review , China is simultaneously filing this Notice of Appeal with the
Appellate Body Secretariat.
2. The measures at issue in this dispute impos ed countervailing duties and anti-dumping duties
on grain oriented flat-rolled electrical steel ("GOES") from the United States. An application for the
initiation of an anti-dumping and countervailing dut y investigation was filed by Chinese petitioners,
alleging the existence of countervailable subsidies and dumping margins that caused or threatened to
cause injury to the domestic Chin ese industry. The Ministry of Commerce for the People's Republic
of China ("MOFCOM") issued an affirmative fina l determination in each of these investigations.
MOFCOM calculated ad valorem subsidy rates of 11.7% and 12% for the respondent companies, and
dumping margins of 7.8% and 19.9%. Furthermore, MOFCOM determined that the domestic industry
was suffering from material injury , and that the injury was caused by the dumped imports of GOES
from Russia and the dumped and subsidized imports of GOES from the United States. MOFCOM
made these determinations in its final determination, Final Determination [2010] No. 21 (10 April
2010).
3. The issues that China raises in this appeal rela te to the Panel's findi ngs and conclusions in
respect of the consistency of the challenged me asures with the Anti-Dumping Agreement and the
Agreement on Subsidies and Countervailing Measures ("SCM Agreement").

4. For the reasons stated below, and as will be deve loped in its submissions and oral statements
to the Appellate Body, China appeals the following e rrors of law and legal in terpretation contained in
the Panel Report and requests the Appellate Body to reverse or modify th e related findings and
conclusions of the Panel. In doing so, China mak es five specific claims, delineated below and to be
detailed in its submissions to the Appellate Body.
1
5. First, China seeks review by the Appellate Body of the Panel's interpretation of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as it relates to MOFCOM's
discussion of the existence of adverse price effects. In particular, the Panel erred in interpreting the
phrase "the effect of" from Article 3.2 of the Anti-Dumping Agreement and Article 15.2 of the
SCM Agreement as meaning that an authority must demonstrate that adverse price effects were
caused by dumped or subsidized imports.
2 In doing so, the Panel did not consider the text, context,
and object and purpose of those provisions and those agreements.3
6. Second, China seeks review by the Appellate Body of the Panel's application of Article 3.2 of
the Anti-Dumping Agreement and Article 15.2 of the SCM Agreement as it relates to MOFCOM's
final determinations with respect to price effects. 4 The Panel's application of the legal standard erred
in several fundamental aspects.5 The Panel's errors of law and legal application include:
(a) The Panel erred in interpreting MOFCOM's fi nal determinations in a manner that caused
the Panel to apply the obligations of Article 3.2 and Article 15.2 to facts not found by
MOFCOM. Rather than apply the legal standa rd to MOFCOM's final determinations as
written, the Panel examined findings never made by the authority and instead ignored or
dismissed key factors that MOFCOM had discussed in its determinations.
6

(b) The Panel erred in requiring specific methodologies to satisfy the obligations of
Article 3.2 and Article 15.2. 7 Instead of deferring to the discretion of the authority when
considering price effects, the Panel impos ed several methodological requirements for
evaluating price effects that do not exist in the text of the agreements and were not raised
by the parties to the underlying investigation.

7. Third, China seeks review by the Appellate Body under Article 11 of the DSU of how the
Panel proceeded in this dispute. The Panel acted inconsistently with Article 11 of the DSU in
conducting its analysis of price depression and pr ice suppression by failing to conduct an objective
assessment of the matter. Specifically, the Panel misinterpreted a fundamental MOFCOM finding of
fact, the result of which caused the Panel to fi nd MOFCOM's price depression and price suppression
findings inconsistent with Article 3.2 and 15.2.
8 In doing so, the Panel also erred in failing to
consider the totality of the evidence. The Panel a pproached individual pieces of evidence in isolation
instead of addressing the ways in which MOFCOM's evidence interrelated. 9 Ultimately, the Panel
erred in failing to focus on the MOFCOM decision as written. The Panel went beyond the rationale

1Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review this Notice of Appeal
includes citations to the paragraphs of the Panel Report containing the alleged errors. These citations, however,
do not prejudice to the ability of China to refer to other paragraphs of the Panel Report in its appeal.
2Panel Report, para. 7.520.
3Ibid. paras. 7.519-7.522, 8.1(f).
4Ibid. paras. 7.536, 8.1(f).
5Ibid. paras. 7.523-7.536.
6Ibid.
7Ibid. paras. 7.528-7.530.
8Ibid. para. 7.542.
9Panel Report, paras. 7.523-7.543.

contained in the determination itself and relied upon the interpretation advocated by the United States
and the Panel's own new price effects analysis.10
8. Fourth, China seeks review by the Appellate Body of the Panel's finding that China acted
inconsistently with its obligations under Article 6.9 of the Anti-Du mping Agreement and Article 12.8
of the SCM Agreement regarding the disclosure of essential facts relating to MOFCOM's price effects
analysis.11 The Panel's finding rested entirely on its e rroneous understanding of the legal obligations
of Article 3.2 of the Anti-Dumping Agreem ent and Article 15.2 of the SCM Agreement. 12 The Panel
adopted a misguided understanding of "essential facts" 13 because the Panel misunderstood the
underlying obligations at issue.
9. Fifth, China seeks review by the Appellate Body of the Panel's finding that China acted
inconsistently with its obliga tions under Article 12.2.2 of the Anti-Dumping Agreement and
Article 22.5 of the SCM Agreement regarding the pu blic notice and explanation of MOFCOM's price
effects analysis. 14 As with China's fourth claim, this Panel finding rested entirely on the Panel's
erroneous understanding of the lega l obligations of Article 3.2 of the Anti-Dumping Agreement and
Article 15.2 of the SCM Agreement. 15 In light of a proper inte rpretation of Article 3.2 and
Article 15.2, MOFCOM adequately provided public notice of its findings regarding the existence of
price depression and price suppression.
10. China respectfully requests that the Appellate Body reverse the findi ngs and conclusions of
the Panel that are based on the errors of law and legal interpretation identified above.

10Ibid.
11Ibid. paras. 7.575, 8.1(f).
12Ibid. paras. 7.573-7.574.
13Ibid. para. 7.575.
14Ibid. paras. 7.592, 8.1(f).
15Ibid. paras. 7.591-7.592.