MOROCCO - DEFINITIVE ANTI-DUMPING MEASURES ON SCHOOL EXERCISE BOOKS FROM TUNISIA FINAL REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 27 July 2021
Document codes: WT/DS578/R
Complainant: Tunisia
Respondent: Morocco
Third parties: Brazil, Canada, China, EU, Japan, Madagascar, Russia, U.S.
Dispute stage: Panel
Agreements cited: Art. 1, 2.1, 2.2, 2.2.1, 2.2.1.1, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 4.1, 5.2, 5.3, 5.4, 5.8, 6.8, 9.2, 11.1(a), 12.2, 12.2.2, Annex II  Anti-dumpingArt. VI:1, VI:6  GATT 1994

MOROCCO - DEFINITIVE ANTI-DUMPING MEASURES
ON SCHOOL EXERCISE BOOKS FROM TUNISIA
FINAL REPORT OF THE PANEL
BCI redacted, as indicated [[***]]

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CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Poultry
Anti-Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil,
, adopted 19 May 2003
Canada – Wheat
Exports and Grain
Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, , adopted 27 September 2004
EC – Tube or Pipe
Fittings
Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable
Cast Iron Tube or Pipe Fittings from Brazil, , adopted 18 August
2003
EC – Tube or Pipe
Fittings
Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast
Iron Tube or Pipe Fittings from Brazil, , adopted 18 August 2003, as
modified by Appellate Body Report
EC – Fasteners
(China)
Appellate Body Report, European Communities – Definitive Anti-Dumping Measures
on Certain Iron or Steel Fasteners from China, , adopted 28 July
2011
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat and
Meat Products (Hormones), , , adopted 13 February
1998
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on Imports
of Cotton-Type Bed Linen from India, , adopted 12 March 2001
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-
Type Bed Linen from India, , adopted 12 March 2001, as modified by
Appellate Body Report
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, , adopted 23 July 1998
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/AB/R,
adopted 16 November 2012
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain Oriented
Flat-Rolled Electrical Steel from the United States, WT/DS414/R and Add.1,
adopted 16 November 2012, upheld by Appellate Body Report WT/DS414/AB/R
China – X-Ray
Equipment
Panel Report, China – Definitive Anti-Dumping Duties on X-Ray Security Inspection
Equipment from the European Union, WT/DS425/R and Add.1, adopted 24 April
2013
China – Autos (US) Panel Report, China – Anti-Dumping and Countervailing Duties on Certain
Automobiles from the United States, WT/DS440/R and Add.1, adopted 18 June
2014
China – HP-SSST
(Japan) / China – HP-
SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China –
Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel
Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/AB/R and
Add.1 / WT/DS460/AB/R and Add.1, adopted 28 October 2015
China – HP-SSST
(Japan) / China – HP-
SSST (EU)
Panel Reports, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan / China –
Measures Imposing Anti-Dumping Duties on High-Performance Stainless Steel
Seamless Tubes ("HP-SSST") from the European Union, WT/DS454/R and Add.1 /
WT/DS460/R, Add.1 and Corr.1, adopted 28 October 2015, as modified by
Appellate Body Reports WT/DS454/AB/R / WT/DS460/AB/R
China – Cellulose Pulp Panel Report, China - Anti-Dumping Measures on Imports of Cellulose Pulp from
Canada, WT/DS483/R and Add.1, adopted 22 May 2017
China — Broiler
Products (Article 21.5
– US)
Panel Report, Anti-Dumping and Countervailing Duty Measures on Broiler Products
from the United States – Recourse to Article 21.5 of the DSU by the United States,
WT/DS427/RW and Add.1, adopted 28 February 2018
Korea – Pneumatic
Valves (Japan)
Appellate Body Report, Korea - Anti-Dumping Duties on Pneumatic Valves from
Japan, WT/DS504/AB/R and Add.1, adopted 30 September 2019
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1,
adopted 19 December 2002

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US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001
US – Softwood
Lumber V
Panel Report, United States – Final Dumping Determination on Softwood Lumber
from Canada, WT/DS264/R, adopted 31 August 2004, as modified by Appellate
Body Report WT/DS264/AB/R
US – Softwood
Lumber V (Article 21.5
– Canada)
Appellate Body Report, United States – Final Dumping Determination on Softwood
Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada,
WT/DS264/AB/RW, adopted 1 September 2006
US – Softwood
Lumber VI (Article
21.5 – Canada)
Appellate Body Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the
DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1
US – Countervailing
Duty Investigation on
DRAMS
Appellate Body Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/AB/R, adopted 20 July 2005
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL)
Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012
US – Orange Juice
(Brazil)
Panel Report, United States – Anti-Dumping Administrative Reviews and Other
Measures Related to Imports of Certain Orange Juice from Brazil, WT/DS382/R,
adopted 17 June 2011
US – OCTG (Korea) Panel Report, United States – Anti-Dumping Measures on Certain Oil Country
Tubular Goods from Korea, WT/DS488/R and Add.1, adopted 12 January 2018
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating
Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9 May 2006, as modified by
Appellate Body Report WT/DS294/AB/R
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset
Reviews, WT/DS322/AB/R, adopted 23 January 2007
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of Fresh,
Chilled or Frozen Lamb Meat from New Zealand and Australia, WT/DS177/AB/R,
WT/DS178/AB/R, adopted 16 May 2001
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from
China, WT/DS392/R, adopted 25 October 2010
Guatemala – Cement
II
Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland
Cement from Mexico, WT/DS156/R, adopted 17 November 2000
India – Agricultural
Products
Panel Report, India – Measures Concerning the Importation of Certain Agricultural
Products, WT/DS430/R and Add.1, adopted 19 June 2015, as modified by Appellate
Body Report WT/DS430/AB/R
Japan – DRAMs
(Korea)
Panel Report, Japan – Countervailing Duties on Dynamic Random Access Memories
from Korea, WT/DS336/R, adopted 17 December 2007, as modified by Appellate
Body Report WT/DS336/AB/R
Mexico – Anti-
Dumping Measures on
Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and
Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December
2005
Mexico – Anti-
Dumping Measures on
Rice
Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice,
Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005, as
modified by Appellate Body Report WT/DS295/AB/R
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU by the
United States, WT/DS132/AB/RW, adopted 21 November 2001
Mexico – Steel Pipes
and Tubes
Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from
Guatemala, WT/DS331/R, adopted 24 July 2007
Pakistan – BOPP Film
(UAE)
Panel Report, Pakistan – Anti-Dumping Measures on Biaxially Oriented
Polypropylene Film from the United Arab Emirates, WT/DS538/R and Add.1,
circulated to WTO Members on 18 January 2021 [appealed by Pakistan 22
February 2021]
Russia – Commercial
Vehicles
Appellate Body Report, Russia – Anti-Dumping Duties on Light Commercial
Vehicles from Germany and Italy, WT/DS479/AB/R and Add.1, adopted 9 April
2018
Russia – Commercial
Vehicles
Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles from
Germany and Italy, WT/DS479/R and Add.1, adopted 9 April 2018, as modified by
Appellate Body Report WT/DS479/AB/R

BCI redacted, as indicated [[***]]

Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of
Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R, adopted 5 April
2001, as modified by Appellate Body Report WT/DS122/AB/R
EU – Fatty Alcohols
(Indonesia)
Panel Report, European Union – Anti-Dumping Measures on Imports of Certain
Fatty Alcohols from Indonesia, WT/DS442/R and Add.1, adopted 29 September
2017, as modified by Appellate Body Report WT/DS442/AB/R
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear from
China, WT/DS405/R, adopted 22 February 2012
Ukraine – Ammonium
Nitrate
Panel Report, Ukraine - Anti-Dumping Measures on Ammonium Nitrate,
WT/DS493/R, Add.1 and Corr.1, adopted 30 September 2019, as upheld by
Appellate Body Report WT/DS493/AB/R

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EXHIBITS REFERRED TO IN THIS REPORT
Exhibit Short title Description/Long title
MAR-CONF-3
(BCI)
Report on the definitive
determination
Ministère de l'industrie, de l'investissement, du commerce
confidentielle)
MAR-6 Reply from SOTEFI to the
deficiency letter dated
15 August 2017
2017 (4 septembre 2017)
MAR-11 Submission by SITPEC and
SOTEFI
Enquête antidumping concernant des importations de
cahiers originaires de T unisie, soumission de SITPEC et
SOTEFI (27 février 2018)
MAR-CONF-15
(BCI)
SOTEFI's responses to the
questionnaire
mise en œuvre des mesures antidumping; questionnaire
destiné aux producteurs/exportateu rs de cahiers en
Tunisie
MAR-21 SOTEFI, Catalogue 2017-2018
MAR-22 SOTEFI, Catalogue 2016 SOTEFI, Catalogue 2016 (27 October 2016)
TUN-2,
MAR-10
Initiation report Ministère de l'industrie, de l'investissement, du commerce
originaires de la Tunisie
(10 mars 2017)
TUN-5,
MAR-17
Report on the preliminary
determination
Ministère de l'industrie, de l'investissement, du commerce
TUN-7, MAR-1 Report on the definitive
determination
Ministère de l'industrie, de l'investissement, du commerce
Maroc, Circulaire n° 5895/211 relative à l'institution d'un
TUN-9 Official Journal No. 6744 of
17 January 2019
Bulletin Officiel n° 6744, Arrêt é conjoint du Ministère de
l'industrie, de l'investissement, du commerce et de
l'économie numérique et du Ministère de l'économie et des
finances n° 3758.18 (10 décembre 2018)
TUN-10 (BCI) Revised data provided by
SITPEC
Fichier Excel intitulé SITPEC COP 28.5.2018, données
TUN-11 (BCI) Revised data provided by
SOTEFI
Fichier Excel intitulé SOTEFI VENTEDOM COPDOM REVISE
fournies par la SOTEFI
TUN-12 (BCI) Excel file containing the
dumping margin calculation
(SITPEC)
(SITPEC)
TUN-14 (BCI) Excel file containing the
dumping margin calculation
(SOTEFI)
(SOTEFI)
TUN-16 (BCI) Excel file submitted as an
attachment to SITPEC's
responses to the initial
questionnaire dated
10 July 2017
Fichier Excel intitulé " SITPEC réponse questionnaire
annexes VENTEMAR VENTEDOM VENTETIER", soumis en
initial le 10 juillet 2017
TUN-21 Presentation by SITPEC and
SOTEFI (30 April 2018)
originaires de Tunisie Audition publique (30 avril 2018)
TUN-29 Tunisian exporters' comments
on the investigation
(27 February 2018)
(27 février 2018)

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Exhibit Short title Description/Long title
TUN-30 (BCI) Excel file on the applicants Fichier Excel intitulé Annexe 2 Participation Requête
et Promograph (10 mars 2017)
TUN-35 (BCI) SITPEC's responses to the initial
questionnaire
Réponses de la SITPEC au questionnaire initial d'enquête
(10 juillet 2017)
TUN-44 (BCI) List of licensed products sold in
the domestic and export
markets
août 2017)
TUN-48 Annex 17, export invoice Annexe 17 à la requête pour l'ouverture de
l'enquête - Facture à l'exportation
l'enquête - Preuves valeur normale
TUN-50 (BCI) Annex 14a, domestic
transportation in Tunisia
l'enquête - Transport interne en Tunisie
TUN-51 (BCI) Annex 14b, input c osts in
Tunisia
l'enquête - Coût des facteurs en Tunisie
TUN-55 (BCI) Excel file provided with
SOTEFI's responses to the
MIICEN questionnaire
Réponses de la SOTEFI au questionnaire d'enquête relatif
TUN-66 MAPAF's responses to the
questionnaire
mise en œuvre des mesures antidumping; questionnaire
destiné aux producteurs/exportateurs de cahiers en
Tunisie
TUN-67 Promograph's responses to the
questionnaire
Réponses de Promograph au questionnaire d'enquête pour
questionnaire destiné aux producteurs/exportateurs de
cahiers en Tunisie
TUN-72 Email dated 4 May 2018 Courriel e n date du 4 mai 2018 adressé à
M. Charles Julien, intitulé "Relance/Tableaux de calcul de
marge de dumping"

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ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994
BCI Business Confidential Information
Dhs dirham
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
FOB Free on board
GATT 1994 General Agreement on Tariffs and Trade 1994
Imprimerie Moderne Imprimerie Moderne S.à.r.l.
MAPAF Manufacture de Papiers et Fournitures
Med Paper Med Paper S.A.
MIICEN Ministry of Industry, Investment, Trade and the Digital Economy of Morocco
Promograph Promograph S.à.r.l.
SITPEC Société industrielle de transformation de papiers, d'emballage et de cartons
Sopalemb Sopalemb S.A.
SOTEFI-Selecta SOTEFI S.à.r.l.
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 115
UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization
Yamama Yamama Group

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1 INTRODUCTION
1.1 Tunisia's complaint
1.1. On 21 February 2019, Tunisia requested consultations with Morocco pursuant to A rticle 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),
Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (Anti-Dumping Agreement) and Article XXIII:1 of the General Agreement on Tariffs
and Trade 1994 (GATT 1994) with respect to the measures and claims set out below.1
1.2. Consultations were held on 11 and 12 June 2019 but failed to resolve this dispute.
1.2 Establishment and composition of the Panel
1.3. On 19 September 2019, Tunisia requested the establishment of a panel pursuant to Article 6
of the DSU with standard terms of reference .2 At its meeting on 2 8 October 2019, the Dispute
Settlement Body (DSB) established a panel, in accordance with Article 6 of the DSU.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by Tunisia in document
WT/DS578/2 and to make suc h findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.4
1.5. On 9 March 2020, Tunisia requested that the Director -General determine the composition of
the Panel, pursuant to Article 8.7 of the DSU. On 19 March 2020, the Director-General accordingly
composed the Panel as follows:
Members: Ms Vera Kanas Grytz
Mr Gustavo Nerio Lunazzi
1.6. Brazil, Canada, China, the European Union, Japan, Madagascar, the Russian Federation and the
United States notified their interest in participating in the Panel proceedings as third parties.
1.3 Panel proceedings
1.3.1 General
1.7. Following consultation with the parties, the Panel adopted its Working Procedures 5 on
8 May 2020 and Additional Working Procedures Concerning Business Confidential Information (BCI)6
on 28 May 2020.
1.8. The Panel issued a partial timetable on 8 May 2020 and revised it on 29 January 2021. Pursuant
to Article 12.10 of the DSU, which provides that "in examining a complaint against a developing
country Member, the panel shall accord sufficient time for the developing country Member to prepare
and present its argumentation", the Panel took into account the respondent's status as a developing
country Member when prepa ring and revising the timetable for the process . T hus, the Panel
accommodated both Morocco's and Tunisia's requests for ample time to prepare the first and second
written submissions.

1 Tunisia's request for consultations, WT/DS578/1.
2 Tunisia's request for establishment of a panel, WT/DS578/2 (Tunisia's panel request).
3 DSB, Minutes of Meeting held on 28 October 2019, WT/DSB/M/436.
4 Constitution note of the Panel, WT/DS578/3.
5 Working Procedures of the Panel (Annex A-1).
6 Additional Working Procedures of the Panel Concerning Business Confidential Information (Annex A-2).

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1.9. The parties presented their first written submissions on 1 1 June 2020 (T unisia) and
23 July 2020 (Morocco) . T he Panel held a first substantive meeting with the parties on 23 and
24 September 2020. A session with the third parties took place on 2 4 September 2020. A s
restrictions to curb the spread of COVID -19 prevented the panelists from travelling to Geneva, the
Panel conducted the meeting via secure videoconference.
1.10. The Panel held a second substantive meeting with the parties on 27 and 28 January 2021. In
view of the public health restrictions in force, the entire meeting took place via secure
videoconference.
1.11. On 8 March 2021, the Panel issued the descriptive part of its Panel Report to the parties. The
Panel issued its Interim Report to the parties on 7 May 2021 and issued its Final Report to the parties
on 28 June 2021.
1.3.2 Preliminary ruling
1.12. On 19 June 2020, Morocco submitted to the Panel a request for a preliminary ruling, arguing
that certain grievances set forth in Tunisia's first written submission do not appear in the panel
request or are too vague . M orocco requested the Panel to make a preliminary ruling that the
submission of those claims was not in accordance with Article 6.2 of the DSU and that they were
therefore not properly before the Panel's jurisdiction. Morocco thus requested the Panel to find that7:
a. the claim under Articles 2.1, 2.2 and 2.2.2, relating to the "distribution costs", is outside
the Panel's terms of reference because it was not specified in the panel request8;
b. the claim under Article 2.2.2, relating to the exclusion of domestic sales in Tunisia, made
in Tunisia's first written submission, is outside the Panel's terms of reference because it
was not specified in the panel request9;
c. the claim under Articles 2.1, 2.2 and 2.2.2, relating to the exclusion "from the calculation
of the profit margin of administrative costs and certain expenses not part of the product
price", made in Tunisia's first written submission, is outside the Panel's terms of reference
because it was not specified in the panel request10;
d. the claim under Article 2.4 of the Anti-Dumping Agreement, relating to the mathematical
formulas used by Morocco to calculate the margin of dumping, made in Tunisia's first
written submission, is outside the Panel's terms of reference because it was not specified
in the panel request11;
e. the claim under Articles 3.1 and 3.2 is outside the Panel's terms of reference because it
was not clearly stated in the panel request, in violation of Article 6.2 of the DSU12;
f. the following claims made by Tunisia in the panel request have been abandoned : the
violation of Article 5.8 of the Anti -Dumping Agreement specified in paragraph 1 of the
panel request; the violation of Article 6.8 and paragraphs 3, 5, 6 and 7 of Annex II of the
Anti-Dumping Agreement specified in pa ragraph 4 of the panel request ; the violation of
Article 2.2.1.1 of the Anti -Dumping Agreement specified in paragraph 5 of the panel
request; the violation of Articles 3.1 and 3.2 of the Anti-Dumping Agreement, concerning
the fact that "the investigating a uthority failed to properly and objectively consider the
volume of the dumped imports, in absolute terms", specified in paragraph 7 a) of the panel
request; the claim specified in paragraph B.11 of the panel request13; and

7 Morocco's preliminary ruling request. See also Morocco's first written submission, para. 284.
8 Morocco's preliminary ruling request, section II.B.1.
9 Morocco's preliminary ruling request, section II.B.2.
10 Morocco's preliminary ruling request, section II.B.3.
11 Morocco's preliminary ruling request, section II.B.4.
12 Morocco's preliminary ruling request, section II.B.5.
13 Morocco's preliminary ruling request, section III.A.

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g. Tunisia's claim under Articles 3. 1 and 3.2 of the Anti -Dumping Agreement, according to
which the Ministry of Industry, Investment, Trade and the Digital Economy (MIICEN) of
Morocco failed to objectively consider the volume of imports in relative terms, concerns
an examination that Morocco was not required to carry out, and therefore cannot be
upheld.14
1.13. Tunisia submitted its response to the preliminary ruling request to the Panel on 8 July 2020.
Canada, the European Union, Japan and the United States submitted their comments on the request
on 10 July 2020.
1.14. The Panel issued it preliminary ruling on 14 September 2020.15
2 FACTUAL ASPECTS
2.1 The measures at issue
2.1. This dispute concerns the definitive anti-dumping measure imposed by Morocco on imports of
school exercise books from Tunisia, as a result of the investigation initiated by MIICEN.
2.2. On 5 November 2018, MIICEN published the Report on the Definitive Determination of
Dumping, Injury and Causation, recommending the imposition of definitive anti -dumping duties on
imports of Tunisian exercise books .16 The definitive measure imposed by Morocco came into force
on 14 January 2019 for a period of five years .17 The anti-dumping duty rates imposed by Morocco
on Tunisian exporters of school exercise books are as follows: SOTEFI - 27.71%, SITPEC - 15.69%,
other Tunisian exporters - 27.71%.18
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. This section contains the parties' requests for findings and recommendations, as set forth in
their respective first and second written submissions.
3.2. Tunisia requests that the Panel find that Morocco acted inconsistently with19:
a. Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement , by failing to exclude
administrative costs and other expenses from the profit margin calculation used to
calculate the constructed normal value;
b. Articles 2.1, 2.2 and 2.2.2 of the Anti-Dumping Agreement, by improperly excluding sales
of numbered or watermarked exercise books from the profit margin calculation used to
calculate the constructed normal value;
c. Articles 2.1 and 2.2 of the Anti-Dumping Agreement, by including the "distribution cost",
comprising the domestic transportation cost, port charges and ocean freight costs, in the
calculation of the constructed normal value for the [[***]] models of SOTEFI exercise
books;
d. Articles 2.1 and 2.4 of the Anti -Dumping Agreement, by using an erroneous formula to
compare normal value to the export price;
e. Articles 2.1 and 2.4 of the Anti -Dumping Agreement, by disregarding the use of licences
as a characteristic that affects the product's pr ice when classifying the product under
consideration;

14 Morocco's preliminary ruling request, section III.B.
15 Preliminary Ruling of the Panel (Annex A-3).
16 Report on the definitive determination (Exhibits TUN-7, MAR-1).
17 Circular No. 5895/211 (Exhibit TUN-8); Official Journal No. 6744 of 17 January 2019 (Exhibit TUN-9),
pp. 38 and 39.
18 Tunisia's first written submission, paras. 3.1-3.8; Tunisia's panel request, section A.
19 Tunisia's second written submission, para. 7.1. See also Tunisia's first written submission, para. 9.1.

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f. Article 12.2.2 of the Anti -Dumping Agreement, by failing to address, in its report on the
definitive determination, the key factual elements when determining the impact of
licensing on the cost and price of the exercise books under licence;
g. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, by failing to conduct an objective
examination of the evolution of Tunisian imports in relative terms and by finding that those
imports had increased during the investigation period;
h. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, by finding, erroneously, that there
was price undercutting;
i. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, by finding, erroneously, that the
domestic product's price was depressed;
j. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, by finding, erroneously, that the
domestic product's price was suppressed;
k. Articles 3.1 and 3.4 of the Anti -Dumping Agreement, by determining that the domestic
industry had been materially injured on the basis, erroneously, of the negative
performance of four economic factors;
l. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, by finding a causal link based on
invalid considerations;
m. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, by ignoring the negative effects
resulting from competition from Moroccan producers not part of the domestic industry ;
and
n. Articles 5.2, 5.3 and 5.8 of the Anti-Dumping Agreement, by considering, improperly, that
there was sufficient evidence to justify initiating an investigation.
3.3. Tunisia further requests that the Panel recommend that Morocco immediately bring its
measures into conformity with its WTO obligations.20 Moreover, Tunisia requests the Panel to issue
a suggestion, under the second sentence of Article 19.1 of the DSU, that Morocco meet its obligations
by revoking the anti-dumping measure at issue.21
3.4. With regard to the Panel's jurisdiction, Morocco requests the Panel to find that22:
a. claim B.5 in Tunisia's panel request is, by reason of the reference to multiple obligations,
not consistent with Article 6.2 of the DSU because the wording is too imprecise;
b. claim B.6 in Tunisia's panel request is, by reason of the reference to multiple obligations,
not consistent with Article 6.2 of the DSU because the wording is too imprecise;
c. claim B.3 in Tunisia's panel request has, by reason of the absence of any further
development of arguments under Article 2.2.1 of the Anti-Dumping Agreement by Tunisia,
been abandoned by Tunisia; and
d. claim B.4 in Tunisia's panel request has, by reason of the absence of any further
development of arguments under Article 6.8 of the Anti -Dumping Agreement, been
abandoned by Tunisia.

22 Morocco's second written submission, para. 308.

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3.5. Furthermore, with regard to Tunisia's claims under Article 2 of the Anti -Dumping Agreement,
Morocco requests the Panel to find that23:
a. under Articles 2.1, 2.2 and 2.2.2 of the Anti-Dumping Agreement:
i. the claim relating to the "profit margin" is inadmissible because the arguments in
support thereof were never raised before the authority;
ii. Tunisia's claim regarding the "actual declared profit margins" is legally flawed and, in
any case, is not properly before the Panel; and
iii. the claim relating to "numbered or watermarked exercise books" must be re jected
because it lacks any factual or proper legal basis.
b. under Articles 2.1 and 2.2 of the Anti -Dumping Agreement, the claim relating to
"distribution costs" is inadmissible because the arguments in support thereof were never
raised before the authority; and
c. under Articles 2.1 and 2.4 of the Anti-Dumping Agreement:
i. the claim relating to "formulas" is inadmissible because the arguments in support
thereof were never raised before the authority and the claim is, in any case, devoid of
any factual or legal basis; and
ii. the claim relating to "licences" must be rejected because it lacks any factual or legal
basis.
3.6. With regard to Tunisia's claims under Article 3 of the Anti -Dumping Agreement, Morocco
requests the Panel to find that24:
a. under Articles 3.1 and 3.2 of the Anti-Dumping Agreement:
i. Tunisia's conditional claims are not necessary to dispose of the dispute and that judicial
economy should be exercised in respect thereof;
ii. the claim relating to the examination of "import volumes in relative terms" must be
rejected because it is devoid of any legal basis;
iii. the claim relating to "undercutting" must be rejected because it is devoid of any legal
basis;
iv. the claim relating to the " investigation period" must be rejected because it is devoid
of any legal basis; and
v. the Panel may exercise judicial economy with regard to Tunisia's other claims, given
the cumulative nature of the examination obligation.
b. under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, Tunisia's claim must be
rejected because the arguments relating to "upward trends", to the alleged "seasonality"
and to the domestic industry's alleged "strategy" are all devoid of any factual and legal
basis; and
c. under Articles 3.1 and 3.5 of the Anti -Dumping Agreement, Tunisia's claim must be
rejected because the arguments relating to the causation determination and to
non-attribution are devoid of any factual and legal basis.

23 Morocco's second written submission, para. 308. See also Morocco's first written submission,
para. 284.
24 Morocco's second written submission, para. 308. See also Morocco's first written submission,
para. 284.

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3.7. With regard to Tunisia's claims under Article 5 of the Anti -Dumping Agreement, Morocco
requests the Panel to find that25:
a. under Article 5.2 of the Anti-Dumping Agreement:
i. Tunisia's claims must be rejected because Tunisia has failed to establish a prima facie
case by ignoring the key condition of "reasonably available to the applicant"; and
ii. alternatively, Tunisia's claims must be rejected beca use they are devoid of any legal
basis.
b. under Article 5.3 of the Anti -Dumping Agreement, Tunisia's claims must be rejected
because Article 5 does not provide for a succession of multiple obligations and,
furthermore, Tunisia's claims are devoid of any legal basis; and
c. under Article 5.4 of the Anti -Dumping Agreement, Tunisia's claim must be considered to
have been abandoned because Tunisia stated that it is not pursing its claim.
3.8. Lastly, with regard to Tunisia's claims under Article 12 of the Anti -Dumping Ag reement,
Morocco requests the Panel to find that26:
a. Tunisia's claim under Article 12.2.2 of the Anti-Dumping Agreement, with respect to sales
of numbered or watermarked exercise books, must be considered to have been abandoned
because Tunisia stated that it is not pursing its claim; and
b. Tunisia's allegedly still active claim under Article 12.2.2 of the Anti -Dumping Agreement,
concerning the difference in the use of licences, must be rejected because it has been
treated as an afterthought.
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 24 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Canada, the European Union, Japan and the United States are reflected in
their executive summaries, provided in accordance with paragraph 27 of the Working Procedures
adopted by the Panel (see Annexes C -1, C-2, C-3 and C -4). Brazil, China, Madagascar and t he
Russian Federation did not submit written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. On 21 May 2021, Tunisia submitted a written request for the review of precise aspects of the
Interim Report. Morocco, meanwhile, did not request an interim review. The parties did not request
an interim review meeting. On 4 June 2021, Morocco submitted comments on Tunisia's requests for
review. Our discussion and disposition of those requests and comments are set out in Annex A-4.

25 Morocco's second written submission, para. 308. See also Morocco's first written submission,
para. 284.
26 Morocco's second written submission, para. 308. See also Morocco's first written submission,
para. 284.

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7 FINDINGS
7.1 General principles regarding treaty interpretation, the applicable standard of review
and burden of proof
7.1.1 Treaty interpretation
7.1. Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the
existing provisions of the covered agreements "in accordance with customary rules of interpretation
of public international law". Article 17.6(ii) of the Anti-Dumping Agreement similarly requires panels
to interpret that Agreement's provisions in accordance with the customary rules of interpretation of
public international law. The principles codified in Articles 31 and 32 of the Vienna Convention are
generally accepted as such customary rules.
7.1.2 Standard of review
7.2. Article 11 of the DSU provides, in relevant part, that:
[A] panel should make an object ive assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements.
7.3. In addition, Article 17.6 of the Anti -Dumping Agreement sets forth the special standard of
review applicable to disputes under the Anti-Dumping Agreement:
(i) in its assessment of the facts of the matter, the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of those
facts was unbiased and objective. If the establishment of the facts was proper and the
evaluation was unbiased and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with
customary rules of interpretation of public international law. Where the panel finds that
a relevant provision of the Agreement admits of more than one permissible
interpretation, the panel shall find the authorities' measure to be in conformity with the
Agreement if it rests upon one of those permissible interpretations.
7.4. Thus, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement together establish
the standard of review we will apply with respect to both the factual and the legal aspects of the
present dispute. When a panel is reviewing an investigating authority's determination, the "objective
assessment" standard in Article 11 of the DSU requires a panel to review whether the authority has
provided a reasoned and adequate explanation as to (a) how the evidence on the record supported
its factual findings ; a nd (b) how those factual findings support the overall determination .27 In
reviewing an investigating authority's determinati on, a panel should not conduct a de novo review
of the evidence, nor substitute its judgement for that of the investigating authority . A panel must
limit its examination to the evidence that was before the investigating authority during the
investigation and must take into account all such evidence submitted by the parties to the dispute.28
At the same time, a panel must not simply defer to the conclusions of the investigating authority; a
panel's examination of those conclusions must be "critical and searching".29
7.5. In the context of Article 17.6(i) of the Anti-Dumping Agreement, the Appellate Body has noted
that, while the text of this provision is couched in terms of an obligation on a panel, in effect it
defines when an investigating authority can be considered to have acted inconsistently with the
Anti-Dumping Agreement in the course of its "establishment" and "evaluation" of the relevant
facts.30 Therefore, a panel must assess if the establishment of the facts by the investigating authority

27 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS, para. 186; US – Lamb,
para. 103.
28 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, para. 187.
29 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
30 Appellate Body Report, US – Hot-Rolled Steel, para. 55.

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was proper and if the evaluation of those facts by that authority was unbiased and objective .31 If
these broad standards have not been met, a panel must hold the investigating authority's
establishment or evaluation of the facts to be inconsistent with the Anti-Dumping Agreement.32
7.6. We note, as a preliminary remark, that Morocco requests us to reject two of Tunisia's
grievances relating to the calculation of normal value 33 and one of its grievances relating to fair
comparison34, on the grounds that the issues raised before the Panel were not first raised before the
investigating authority. Morocco thus requests us to:
[D]eclare as inadmissible all Tunisia's claims concerning arguments that Tunisia or its
exporters could have raised before the authority, but did not.35
7.7. Morocco considers that, by examining those arguments made by Tunisia, the Panel would be
conducting a de novo review, prohibited under Article 17.6(i) of the Anti-Dumping Agreement, since
"the authority could not consider and address them".36
7.8. Before examining Tunisia's arguments in support of its claims concerning the determination of
normal value and fair comparison, we will therefore ensure that the findings requested from us do
not lead to a de novo review of any evidence or arguments that might not hav e been submitted to
the investigating authority.
7.1.3 Burden of proof
7.9. The general principles applicable to the allocation of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO agreement must assert
and prove its claim. Therefore, as the complaining party in this proceeding, Tunisia bears the burden
of demonstrating that the challenged aspects of the measures at issue are inconsistent with the
Anti-Dumping Agreement and G ATT 1994. A complaining party sa tisfies its burden when it
establishes a prima facie case, namely a case which, in the absence of effective refutation by the
defending party, leads a panel to rule in favour of the complaining party.37 Lastly, it is generally for
each party asserting a fact to provide proof thereof.
7.2 Tunisia's claims concerning dumping
7.10. In this dispute, Tunisia presents two sets of grievances to the Panel concerning the margin of
dumping determined by the Moroccan investigating authority in its anti -dumping investigation on
exercise books.
7.11. The first set of grievances is based on Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping
Agreement and addresses the establishment of the normal value of the exercise books . Tunisia
explains that it raises "three arguments" on this issue38:
a. MIICEN acted inconsistently with Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping
Agreement by not excluding administrative costs and certain expenses that are not part
of the product's price from the calculation of the profit margin;
b. MIICEN acted inconsistently with Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping
Agreement by, erroneously, excluding sales of numbered or watermarked exercise books
from the calculation of the profit margin used for the constructed normal value; and

31 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
32 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
33 Morocco's first written submission, paras. 60, 61, 64 and 65. See also Morocco's response to Panel
34 Morocco's second written submission, para. 101.
35 Morocco's first written submission, para. 62 (bold type original; italics added). See also ibid.,
para. 31.
36 Morocco's second written submission, paras. 8 and 22.
37 Appellate Body Report, EC – Hormones, paras. 98 and 104.
38 Tunisia's second written submission, para. 2.1.

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c. MIICEN acted inconsistently with Articles 2.1 and 2.2 of the Anti-Dumping Agreement by
including a "distribution cost" in the reconstructed normal value of most of SOTEFI's
exercise book models.
7.12. The second set of grievances, based on Articles 2.1 and 2.4 of the Anti-Dumping Agreement,
accuses the Moroccan investigating authority of failing to carry out a fair comparison between the
normal value and export price of the exercise books. Tunisia explains that it raises two arguments
on this issue39:
a. MIICEN acted inconsistently with Articles 2.1 and 2.4 of the Anti -Dumping Agreement by
using an erroneous formula to compare the normal value with the export price; and
b. MIICEN acted inconsistently with Articles 2.1 and 2.4 of the Anti -Dumping Agreement by
disregarding the use of licences of certain exercise books sold by SOTEFI for the purposes
of comparing the normal value with the export price.
7.13. In the following sections, we examine these claims, starting with those addressing the
determination of normal value . Before carrying out this examination, we note, nevertheless, that
Morocco requests us to find that some of the claims made by Tunisia in its Panel request fall outside
our jurisdiction.40
7.14. We already answered, in our preliminary decision of 14 September 2020, the question of
whether the "claims" relating to ( a) the distribution cost, ( b) the exclusion of administrative costs
and certain expenses that are not part of the product's price from the calculation of the profit margin,
and (c) the mathematical formulas used to calculate the margin of dumping, were "missing" from
the panel request.41 In this regard, we noted that:
Morocco does not ask us to rule on whether the claims, set forth in paragraphs B.5 and
B.6 of the panel request, are made in accordance with Article 6.2 of the DSU. Morocco's
request is limited to asking the Panel to rule that new claims are presented in the first
written submission, which is not in conformity with Article 6.2, and that these claims
therefore fall outside the Panel's terms of reference.42
7.15. We had concluded that Morocco had failed to demonstrate that the grievances concerning the
distribution cost, the exclusion of administrative costs and certain expenses from the calculation of
the profit margin, and the mathematical formulas used to calculate the margin of dumping were
"claims" that were "missing" from the panel request.43
7.16. In its second written submission, Morocco presents new objections concerning our jurisdiction.
This time, the objections directly address the conformity of paragrap hs B.5 and B.6 of the panel
request with Article 6.2 of the DSU. These objections concern the same grievances relating to (i) the
distribution cost, (ii) the exclusion of administrative costs and certain expenses that are not part of
the product's price from the calculation of the profit margin, and (iii) the mathematical formulas
used to calculate the margin of dumping. Morocco no longer asserts that these "claims" are "missing"
from the panel request, but rather that the manner in which Tunisia formulated paragraphs B.5 and
B.6 of its request is not in conformity with the requirements of Article 6.2, as interpreted by the
Appellate Body in Korea – Pneumatic Valves (Japan).44
7.17. Tunisia considers that Morocco's new submission was late and argues that the Panel should
not reopen the question of its terms of reference at this stage of the procedure. Nevertheless, Tunisia
addresses the merits of Morocco's objections.45

39 Tunisia's second written submission, para. 3.1.
40 Morocco's second written submission, para. 6.
41 Preliminary ruling of the Panel, section 3.2
42 Preliminary ruling of the Panel, para. 3.20.
43 Preliminary ruling of the Panel, paras. 3.35 and 3.42.
44 Morocco's second written submission, paras. 61 and 72.
45 Tunisia's response to Panel question Nos. 1.27 and 1.28, paras. 28-51.

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7.18. We recall that our working procedures provide that:
4. (1) If Morocco considers that the Panel s hould make a ruling before the issuance of
the Report that certain measures or claims in the panel request or the complainant's
first written submission are not properly before the Panel, the following procedure
applies. Exceptions to this procedure shall be granted upon a showing of good cause.
a. Morocco shall submit any such request for a preliminary ruling at the
earliest possible opportunity and in any event no later than in its first
written submission to the Panel . Tunisia shall submit its response t o the
request before the first substantive meeting of the Panel, within a
reasonable period to be determined by the Panel in light of the request.
7.19. Paragraph 4. (2), however, provides that "[t]his procedure is without prejudice to the parties'
right to request other types of preliminary or procedural rulings during the proceeding, and to the
procedures that the Panel may follow with respect to such requests."
7.20. The working procedures therefore require parties to submit their objections concerning the
Panel's jurisdiction "at the earliest possible opportunity and in any event no later than in its first
written submission to the Panel". This rule allows the Panel to take note of any objections concerning
its jurisdiction as soon as possible and, if it sees fit, t o resolve those matters in the form of a
preliminary ruling, after having gathered the comments of the requesting party (Tunisia in this
particular case) and third parties, if appropriate.
7.21. In the present case, we find that Morocco did not submit all its ob jections concerning the
panel request in its preliminary ruling request of 1 9 June 2020. In its request, Morocco presented
arguments concerning the conformity of Tunisia's claim under Articles 3.1 and 3.2 of the
Anti-Dumping Agreement with Article 6.2 of the DSU, to which we responded in our preliminary
ruling. Other objections on the same grounds could therefore have been submitted as part of the
same request.
7.22. Although we share Tunisia's view that Morocco's new submissions were late, we believe it is
important to leave no room for doubt concerning our jurisdiction before examining Tunisia's
substantive requests. We have therefore decided to respond to Morocco's objections, after having
invited Tunisia to submit a full response.46
7.23. In our preliminary ruling we recalled the requirements under Article 6.2.47
7.24. In this particular case, Morocco's request relates to the fact that the provisions raised by
Tunisia in paragraphs B.5 (Articles 2.1, 2.2 and 2.2.2) and B.6 (Articles 2.1 and 2.4) contain several
obligations48 and therefore do not set out an "obligation that is distinct and well defined"49, contrary
to the requirements of Article 6.2 as interpreted by the Appellate Body in Korea – Pneumatic Valves
(Japan).50
7.25. We disagree with Morocco's objections for the following reasons.

46 Tunisia's response to Panel question Nos. 1.27 and 1.28, paras. 28-51. See also Tunisia's response to
Morocco's preliminary ruling request.
47 Preliminary ruling of the Panel, section 3.1
48 Morocco's second written submission, paras. 58, 59, 71 and 72.
49 Morocco's second written submission, para. 60. See also ibid. para. 42 (quoting Appellate Body
Report, Korea – Pneumatic Valves (Japan), para. 5.89).
50 Morocco's second written submission, paras. 31-49.

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7.26. Paragraph B.551 of Tunisia's panel request refers to Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the
Anti-Dumping Agreement . T hese provisions concer n the establishment of normal value by the
investigating authority and contain multiple obligations in that regard. When read together, however,
these provisions relate to the obligation to establish normal value based on the cost of production
plus a reasonable amount for administrative, selling and general costs and for profits. Furthermore,
Tunisia asserts that MIICEN committed errors "leading to the calculation of an artificially high normal
value".52
7.27. Given these factors and the standard of review recalled above, it is clear to us that this panel
request, as drafted, is consistent with Article 6.2 of the DSU, since:
a. it clearly establishes which specific aspect of the measure at issue is being addressed (the
construction of normal value); and
b. it clearly sets out the provisions of the Anti-Dumping Agreement that are alleged to have
been violated: as such, although Articles 2.1 and 2.2 of the Anti -Dumping Agreement
contain multi-layered obligations in relation to the establishment of normal value, Articles
2.2.1.1 and 2.2.2 refer, "[f]or the purpose of paragraph 2" (i.e. for the purposes of
constructing normal value), to the amount of "costs" that the investigating authority must
use in its calculation.
7.28. Tunisia also explicitly connected the measure a t issue with the obligation that is alleged to
have been violated, by stating that the investigating authority committed errors leading to the
calculation of an artificially high normal value.
7.29. The exact manner in which the investigating authority violated the provisions in question, i.e.
the demonstration that the measure does indeed infringe the identified treaty provisions, comes
under arguments, which Tunisia must develop in its submissions. In particular, in our opinion, Tunisia
did not have to indicate which element in the calculation led to "the calculation of an artificially high
normal value".
7.30. Furthermore, in its preliminary ruling, the Panel recalled that "in considering the sufficiency
of a panel request, submissions and statements made during the course of the panel proceedings,
in particular the first written submission of the complaining party, may be consulted in order to
confirm the meaning of the words used in the panel request and as part of the assessment of whether
the ability of the respondent to defend itself was prejudiced".53
7.31. In this particular case, the Panel's review of Tunisia's first written submission allowed it to
"confirm the meaning of the words used", in particular, which aspect of the calculation Tunisia is
challenging and the distinction it made between its claims and its arguments.
7.32. With respect to paragraph B.6 54 of the panel request, it also seems to us that Tunisia
indicated:
a. what the specific aspect of the measure at issue was (the comparison between the normal
value and the export price); and

51 In paragraph B.5 of its panel request, Tunisia requests the Panel to find that Morocco violated:
"Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the Anti-Dumping Agreement and Article VI:1 of GATT 1994, because
the investigating authority committed errors leading to the calculation of an artificially high normal value. In
particular, but not exclusively, when reconstructing normal value, the authority failed to take into account all
the sales made in Tunisia for the calculation of the profit margin".
52 Panel request, para. B.5.
53 Preliminary ruling, para. 3.4, (quoting Appellate Body Report, US – Carbon Steel, para. 127).
54 In paragraph B.6 of its panel request, Tunisia requests the Panel to find that Morocco violated:
"Article 2.4 of the Anti-Dumping Agreement and Article VI:1 of GATT 1994, because the investigating authority
failed to make a fair comparison between the normal value and the export price, by not making allowance, in
particular, for all the physical characteristics affecting price comparability that were cited by the exporters".

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b. the provisions alleged to have been violated: Article 2.4 of the Anti-Dumping Agreement,
which obliges the investigating authority to make a fair comparison between the export
price and the normal value55, and Article VI:1 of GATT 1994.56
7.33. Tunisia also explicitly connected the measure at issue with the obligation that is alleged to
have been violated by stating that "the investigating authority failed to make a fair comparison
between the export price and the normal value", which indicat es that the relevant legal basis is
limited to the first sentence of Article 2.4 of the Anti-Dumping Agreement.57 We do not believe that
Tunisia should have explained in its panel request which factual aspects of the comparison lead to
an unfair comparison and, in particular, which adjustments were not made by the authority or which
aspects of the calculation led to an unfair comparison.
7.34. In the light of the foregoing, we decide to reject Morocco's objections concerning the
conformity of paragraphs B.5 and B.6 of the panel request with Article 6.2 of the DSU.
7.35. We shall now examine Tunisia's claims concerning the determination of dumping.
7.2.1 Tunisia's claims concerning the construction of the normal value of certain models
of exercise books
7.2.1.1 Whether the reasonable amount for profits was calculated in a manner consistent
with Articles 2.1, 2.2 and 2.2.2 of the Anti-Dumping Agreement
7.2.1.1.1 Introduction
7.36. We recall that under certain circumstances, listed in Article 2.2 of the Anti -Dumping
Agreement, an investigating authority may decide to "construct" the normal value of the product
subject to an anti-dumping investigation. This happens when sales of the like product in the domestic
market of the exporting country do not permit a "proper comparison" . The normal value may then
be constructed using "the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits".58 To that end, the Anti-Dumping Agreement
provides that the amount for profits shall be based on "actual data pertaining to production and
sales in the ordinary course of trade of the like product by the exporter or producer under
investigation".59
7.37. To "construct" the normal value of certain exercise book models of the two Tunisian
producers/exporters that took part in the investigation60, the Moroccan investigating authority used
a "reasonable amount" for profits, within the meaning of Article 2.2 of the Anti-Dumping Agreement.
7.38. Tunisia claims that MIICEN overestimated ("inflated" 61) the amount for profits by including
expenditure that was unrelated to profits .62 While recognizing that the Anti -Dumping Agreement
does not prescribe a methodology or define a reasonable profit, "Tunisia considers that a reasonable
amount for profits must, at the very least, exclude all elements that are not part of the profits".63

55 The Appellate Body in EC – Bed Linen distinguished, in Article 2.4, between a "general obligation to
make a 'fair comparison'" and the "specific obligations" set forth in the subsequent sentences of Article 2.4.
(Appellate Body Report, EC – Bed Linen, para. 59)
56 In the end, Tunisia did not pursue its claim under Article VI:1 of GATT 1994. (Tunisia's response to
Panel question No. 2.22, para. 132).
57 A reading of Tunisia's first written submission confirms that the legal basis selected by Tunisia is
indeed limited to the first sentence of Article 2.4 of the Anti-Dumping Agreement. See Tunisia's first written
submission, paras. 5.93-5.97.
58 Article 2.2 of the Anti-Dumping Agreement.
59 Article 2.2.2 of the Anti-Dumping Agreement.
60 MIICEN constructed a normal value for " models of exercise book exported to Morocco and not sold in
the Tunisian market, as well as for models that did not exceed the standing threshold and models that were
not sold in the ordinary course of trade". (Tunisia's first written submission, para. 5.12)
61 Tunisia's second written submission, para. 2.17.
62 Tunisia's response to Panel question No. 1.4, para. 21.
63 Tunisia's response to Panel question No. 1.4, para. 26.

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7.39. Tunisia is of the opinion that such a profit margin is not a "reasonable amount … for profits"64
within the meaning of Article 2.2 and that, contrary to the requirements of Article 2.2.2, it does not
reflect "actual data"65 pertaining to domestic "sales".66 Lastly, Tunisia considers that, as a result of
the error in the calculation of the profit margin of the two producers/exporters, "MIICEN did not
have a valid factual basis to 'consider', under Article 2.1 of the Anti-Dumping Agreement, the product
"as being dumped".67
7.2.1.1.2 Analysis
7.40. We recall that Morocco requests, in the first instance, that we do not to examine this argument
put forward by Tunisia, on the grounds that it would amou nt to asking the Panel to conduct a de
novo review, which is prohibited under Article 17.6(i) of the Anti-Dumping Agreement. In this case,
Morocco asserts that the interested parties never raised this matter before the authority and
therefore cannot do so for the first time before us.68
7.41. We consider Morocco's objection to be without merit.
7.42. We recall that Article 17.6(i) of the Anti-Dumping Agreement, read together with the
provisions of Article 11 of the DSU, sets out the standard to be applied by panels whe n assessing
whether a Member's investigating authorities have "established" and "evaluated" the facts
consistently with that Member's obligations under the covered agreements .69 This provision
precludes a panel from substituting the investigating authority by engaging in an independent
fact-finding exercise. However, if requested to do so by the parties, a panel must determine whether
the authority's establishment of the facts was proper and whether its evaluation of those facts was
unbiased and objective.
7.43. In this case, Tunisia is not asking us to re-evaluate the facts and substitute our evaluation for
that of the authority. It is asking us to find, on the basis of the facts contained in the investigating
authority's record, that the authority did not apply a reasonable amount for profits, in a manner
inconsistent with Articles 2.2 and 2.2.2 of the Anti -Dumping Agreement. It is therefore a question
of application of the rules of the Anti-Dumping Agreement, which clearly falls within our jurisdiction.
7.44. We will therefore proceed to examine the arguments put forward by Tunisia.
7.2.1.1.2.1 Has Tunisia established that the amount used by MIICEN as a reasonable
amount for profits was inconsistent with Articles 2.2 and 2.2.2 of the Anti -Dumping
Agreement?
7.45. Tunisia's argument under Article 2.2.2 of the Anti -Dumping Agreement "relates to the fact
that a profit margin that includes, in addition to ordinary profits, administrative costs and other
expenses that are not part of the price of the product could not be based on 'actual data' pertaining
to sales in the ordinary course of trade of the like product".70 Furthermore, "since the profit margin
was obtained using an erroneous formula, it cannot be described as 'reasonable' within the meaning
of Article 2.2 of the Anti-Dumping Agreement".71
7.46. The relevant provisions of Articles 2.2 and 2.2.2 of the Anti -Dumping Agreement stipulate
that when an investigating authority constructs the normal value of the like product, it does so based
on the "cost of production in the country of orig in plus a reasonable amount for administrative,
selling and general costs and for profits". In turn, the reasonable amount for profits must be "based
on actual data pertaining to production and sales in the ordinary course of trade of the like product

64 Tunisia's second written submission, para. 2.45.
65 Tunisia's second written submission, para. 2.18.
66 In response to a Panel question, Tunisia confirmed that it does not dispute that MIICEN decided to
estimate a reasonable amount for profits rather than use the exporters' actual declared profits. (Tunisia's
response to Panel question No. 1.24, para. 18. See also Morocco's second written submission, paras. 126 and
127)
67 Tunisia's response to Panel question No. 1.4, para. 29.
68 Morocco's first written submission, paras. 60 and 61.
69 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84.
70 Tunisia's response to Panel question No. 1.24, para. 18. See also Tunisia's response to Panel question
No. 1.4, para. 23; and second written submission, paras. 2.16 and 2.18.
71 Tunisia's first written submission, para. 5.58.

BCI redacted, as indicated [[***]]

by the exporter or producer under investigation" . Article 2.2.2 does not provide for any particular
methodology in order to determine those amounts72 based on "actual data": only if these amounts
cannot be determined on that basis does the Anti-Dumping Agreement envisage alternative methods
in subparagraphs (i), (ii) and (iii) of Article 2.2.2.
7.47. MIICEN's report on the definitive determination73 and the electronic files provided by MIICEN
to producers/exporters show how the Moroccan investigating authority determ ined the reasonable
amount for profits attributable to sales of exercise books in the Tunisian market . Specifically, the
report on the definitive determination states:
[T]he profit margin was obtained from costs of production data and sales prices and
adjustments data provided by the Tunisian exporters in their responses to the
questionnaires and in the additional information submitted to the Ministry in response
to the deficiency letters.74
7.48. The electronic files sent to the two Tunisian producers/exporters that cooperated with the
investigation with the essential facts75 show that the average profit margin of exercise books sold in
the domestic market was determined by MIICEN by subtracting a unit cost of production for each
declared sale from the unit sales price , then adding the profit/loss amount from all sales . Tunisia
challenges before us the respective composition of the unit sales price and the unit cost of production
used for each of the two producers/exporters.76
7.49. With respect to SITPEC, in its response to MIICEN, the company declared a non-adjusted unit
price (as charged to the customer) and an adjusted unit price, i.e. taking into account certain selling
expenses charged to the customer.77 The company also declared a cost of production for each sale,
which consisted of fixed and variable manufacturing costs.78 For its calculation of the profit margin,
MIICEN used the non -adjusted unit price and the cost of production declared by SITPEC .79
Subtracting these two figures therefore res ults in a profit margin that includes not only the profit
itself, but also expenses that are not linked to the profit (such as "taxes", "credit costs", "discounts"
and "domestic transportation").
7.50. With respect to SOTEFI, in its response to MIICEN, the company declared the value and
quantity sold for each transaction, as well as an adjusted unit price, which thus takes into account
certain selling expenses charged to the customer.80 Concerning the cost of production, the company
declared a cost of production that included "administrative costs and financing costs" . I t also
declared separately a distribution cost and a marketing cost .81 In response to MIICEN's deficiency
letter, SOTEFI clarified that those cost categories comprised the following:

72 Panel Report, US – Softwood Lumber V, para. 7.263. See also Morocco's comments on Tunisia's
response to Panel question No. 1.24, para. 64.
73 Report on the definitive determination (Exhibits TUN-7, MAR-1).
74 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 95. (emphasis added)
75 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)).
76 Tunisia's first written submission, para. 5.36.
77 SITPEC declared the unit price per tonne in the Excel file submitted as an attachment to SITPEC's
responses to the initial questionnaire dated 10 July 2017 (Exhibit TUN-16 (BCI)). In its responses to the initial
questionnaire, SITPEC indicated that the mode of delivery for domestic sales was "rendu dépôt client" (return
delivery customer ), which means that the sales price included certain selling costs charged to the customer.
(SITPEC's responses to the initial questionnaire (Exhibit TUN-35 (BCI)))
78 The cost of production is taken from the "Copdomvaleur harmonie pivot" sheet. (Revised data
provided by SITPEC (Exhibit TUN-10 (BCI)), column P)
79 The non-adjusted unit price appears in column N of the "Profitabilité" sheet of the Excel file containing
the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)). The adjusted unit price appears in column Q
of the same sheet.
80 These price data come from the Excel file provided with SOTEFI's responses to the MIICEN
questionnaire (Exhibit TUN-55 (BCI)). The mode of delivery given for domestic sales is "rendu magasin" (in-
store), which means that the invoice price included certain selling costs charged to the customer. We
understand that these data were revised in the Excel file named SOTEFI VENTEDOM COPDOM REVISE
CONFIDENTIEL dated 23 May 2018 (Exhibit TUN-11 (BCI)).
81 Those data come from column F of the COPDOM and H.2 sheets of the Excel file provided with
SOTEFI's responses to the MIICEN questionnaire (Exhibit TUN-55 (BCI)). We understand that these data were

BCI redacted, as indicated [[***]]

The cost of production comprises : c onsumed purchases of raw materials or
consumables, staff costs other than distribution and marketing costs, depreciation and
provision expenses, State, tax and duties payments, and net financial co sts. T he
distribution cost consists of : transportation costs and distribution staff costs . T he
marketing costs comprises the marketing expenditure (sponsorship, advertising, fairs,
licences, etc.) and the staff costs of the marketing service.82
7.51. To calculate SOTEFI's profit margin, MIICEN used a non -adjusted unit price, which therefore
includes not only the cost of production declared by SOTEFI, but also certain selling expenses
charged to the customer.83 Meanwhile, the unit cost of production used by MIICEN comprises fixed
and variable manufacturing costs, as well as a "distribution cost" and a "marketing cost". 84
Subtracting these two figures therefore results in a profit margin that includes not only the profit
itself, but also expenses that are not linked to the profit (such as credit costs, rebates and refunds).
7.52. We note that Morocco does not contest these factual elements presented by Tunisia .85 In
particular, Morocco does not contest that the "profit" used by MIICEN for the two exporters is greater
than the difference between the ex-factory level sales price and the cost of production. Nevertheless,
Morocco asserts that MIICEN did indeed use actual data provided by the two producers/exporters.86
Therefore:
[I]n all its calculations, the authority used the data it received from the exporters, and
only those data pertaining to production and sales. There is therefore no doubt that the
amounts "for administrative, selling and general costs and for profits" were "b ased on
actual data pertaining to production and sales".87
7.53. Morocco states that the cost of production and profits data submitted by one of the two
Tunisian exporters (SOTEFI) were not presented in the format required by MIICEN, which created a
certain amou nt of "confusion" regarding the exact composition of the cost of production, the
administrative costs, the cost price and the profits.88
7.54. We are aware that it can be difficult for a company to extract the data required by an
investigating authority from its accounts, and that errors may slip into responses to the investigation
questionnaires. Similarly, it can be difficult for the investigating authority to interpret the responses
provided by the interested parties . Nevertheless, any error or ambiguity in th e manner in which a
company responds to the authority's questions does not exempt the investigating authority from its
obligation to ensure "the accuracy of the information supplied by interested parties upon which their
findings are based"89 and to establish the facts " proper[ly]". Nor does such an error or ambiguity
exempt a Member from its obligation to establish the product's normal value, in accordance with the
provisions of Articles 2.2 and 2.2.2 of the Anti -Dumping Agreement. The obligation to "base" the
amount used for the profits on "actual data" unquestionably rests with the investigating authority :
that obligation is not limited to gathering data from businesses, but also implies that the authority
must use the data correctly to determine the amount for profits on that basis. In this case, MIICEN
did gather the relevant data, but failed to establish the actual profit from the sale of exercise books.
7.2.1.1.2.2 Has Tunisia established a consequential violation of Article 2.1?
7.55. Lastly, we recall that Tunisia requests us to find that, as a result of the error in the calculation
of the profit margin of the two producers/exporters, "MIICEN did not have a valid factual basis to

revised in the Excel file named SOTEFI VENTEDOM COPDOM REVISE CONFIDENTIEL dated 23 May 2018
(Exhibit TUN-11 (BCI)).
82 Reply from SOTEFI to the deficiency letter dated 15 August 2017 (Exhibit MAR-6), p. 7.
83 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column Q of
the "Profitabilité" sheet.
84 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column R of
the "Profitabilité" sheet; Fichier Excel intitulé SOTEFI VENTEDOM COPDOM REVISE CONFIDENTIEL du
23 mai 2018, données révisées fournies par la SOTEFI (Exhibit TUN-11 (BCI)), columns I, J and K.
85 Morocco's response to Panel question No. 1.1, para. 12.
86 Morocco's comments on Tunisia's response to Panel question No. 1.24, para. 53.
87 Morocco's comments on Tunisia's response to Panel question No. 1.24, para. 59. (emphasis original)
88 Morocco's response to Panel question No. 1.2, paras. 13, 14, 15 and 17.
89 Article 6.6 of the Anti-Dumping Agreement.

BCI redacted, as indicated [[***]]

'consider', under Article 2.1 of the Anti -Dumping Agreement, the product 'as being dumped'" .90 In
particular, Tunisia considers that normal value established on the basis of an "inflated" amount for
profits cannot constitute a "comparable price" within the meaning of Article 2.1 of the Anti-Dumping
Agreement. In response to a Panel question, Tunisia indicated that its claim under Article 2.1 was
"consequential to its claims under Article 2.2 and Article 2.2.2. As a result, a finding of violation of
the latter provisions would necessarily lead to a finding of vio lation of Article 2.1".91, 92 In general,
Tunisia "is of the opinion that any inconsistency with any obligation under Article 2 of the
Anti-Dumping Agreement that has the effect of inflating the margin of dumping leads to an
inconsistency with the requirement in Article 2.1 that a product 'is to be considered as being dumped'
only if the normal value is higher than the export price".93
7.56. Morocco responds that "when an authority makes a calculation error in relation to one of the
other provisions of Ar ticle 2, a panel cannot find, on that basis alone, that there was no dumping
under Article 2. Indeed, a panel is simply not in a position to duplicate an authority's calculations
based on its own assessment of what a correct method would be in a given set of circumstances".
Moreover, Morocco considers that:
Article 2.1 is not a consequential obligation to be invoked as a result of another violation,
but is instead a separate obligation that must be asserted and established.94
7.57. We note that other panels and t he Appellate Body have regarded Article 2.1 of the
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations. 95
Furthermore, we do not share Tunisia's view that a violation of Article 2.2 and/or Article 2.2.2 of the
Anti-Dumping Agreement "would necessarily result in a finding of violation of Article 2.1". In that
sense, we consider that, in order to establish a violation of Article 2.1, even a consequential violation,
the party requesting those findings must explain how the measure at issue specifically violates that
provision of the Anti-Dumping Agreement.
7.58. In the present case, we consider that Tunisia's arguments in support of its claim under
Article 2.1 are the same as those developed in support of its claim under Articles 2 and 2.2.2 of the
Anti-Dumping Agreement. In our view, they are not sufficient to establish what Morocco's obligations
under Article 2.1 are, or how those obligations were violated as a result of errors made by MIICEN
when it established a reasonable amount for profits.
7.2.1.1.3 Conclusion on the reasonable amount for profits
7.59. We therefore conclude that Tunisia has shown that the amount used by the investigating
authority to construct the exercise books' normal value was not based "on actual data pertaining to
production and sales in the ordinary course of trade of the like product by the exporter or producer
under investigation" and, therefore, is not in conformity with Article 2.2.2 of the Anti -Dumping
Agreement. C onsequently, the figure used by MIICEN to establish the profit margin of the two
Tunisian exporters was not a "reasonable amount" for profits within the meaning of Article 2.2 of
the Anti-Dumping Agreement. We also conclude, however, that Tunisia has failed to demonstrate
any violation of Article 2.1 of the Anti-Dumping Agreement.
7.60. We now turn to Tunisia's argument concerning MIICEN's decision to exclude subsidized
numbered and watermarked exercise books from the determination of the reasonable amount for
profits.

90 Tunisia's response to Panel question No. 1.4, para. 29.
91 Tunisia's response to Panel question No. 1.26, para. 20.
92 Tunisia also considers that the Panel could apply the principle of judicial economy to this claim in the
event of a finding of violation of Article 2.2. (Tunisia's response to Panel question No. 1.25, para. 19)
93 Tunisia's response to Panel question No. 1.26, para. 24.
94 Morocco's comments on Tunisia's response to the Panel questions, para. 22. (emphasis added)
95 Appellate Body Report, US – Zeroing (Japan), para. 140; Panel Report, Ukraine – Ammonium Nitrate,
para. 7.120.

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7.2.1.2 Whether excluding sales of subsidized numbered and watermarked exercise
books from the establishment of the reasonable amount for profits was inconsistent with
Articles 2.1, 2.2 and 2.2.2 of the Anti-Dumping Agreement
7.2.1.2.1 Introduction
7.61. The second issue raised by Tunisia in this case also concerns the determination of the
reasonable amount for profits within the meaning of Article 2.2 of the Anti-Dumping Agreement. We
recall that MIICEN constructed the normal value of certain models of exercise books96 and sought to
determine a "reasonable amount" for profits using the sales price and the cost of production reported
by the two Tunisian producers/exporters that cooperated with the investigation.
7.62. The investigation record shows that MIICEN decided nevertheless that, for this calculation, it
would disregard the sales price and the cost of production of certain models sold in the domestic
market, on the grounds that they were subject to an export ban. Those models were the numbered
and watermarked exercise books subsidized by the Tunisian Government. The profit margin used to
construct the normal value of certain exercise book models is therefore not based on the profit
generated from the sale of numbered and watermarked exercise books in the domestic market.
7.63. Tunisia makes the case before us t hat the investigating authority had "no valid justification
for excluding the numbered or watermarked exercise books from the calculation of the profit
margin"97, because:
a. numbered and watermarked exercise books are actually included in the definition of t he
product under investigation and are therefore "like" products within the meaning of
Article 2.2.2 (which is not contested by Morocco)98, 99; and
b. the authority did not determine that the sales of numbered and watermarked exercise
books were made at a loss during the investigation period or that they did not take place
in the ordinary course of trade (which is not contested by Morocco).100
7.64. Tunisia's argument is therefore that:
Sales of numbered and watermarked exercise books – which are covered by the
definition of the product under consideration – [are] (1) "actual" sales (2) made "in the
ordinary course of trade" (3) of the "like product" and, theref ore, these sales should
have been taken into account for the purpose of calculating the profit margin.101
7.65. Regarding the alleged violations of the Anti -Dumping Agreement, Tunisia argues that, by
excluding numbered and watermarked exercise books from the calc ulation, MIICEN acted
inconsistently with Article 2.2.2 of the Anti-Dumping Agreement. According to Tunisia, Morocco also
breached its obligation under Article 2.2 to add a "reasonable amount" for profits when constructing
normal value.
7.66. Tunisia adds that t he market share of subsidized numbered exercise books in Tunisia was
sizeable during the investigation period (up to [[***]] % of domestic sales of the two Tunisian
exporters/producers that cooperated with the investigation) .102 As a result, the exclusion o f
numbered and watermarked exercise books from the calculation of the profit margin of each
producer greatly inflated the profit margin, "since the profits from sales of this type of exercise book

96 MIICEN constructed a normal value for "exercise book models exported to Morocco and not sold in the
Tunisian market, as well as for models that did not exceed the standing threshold and models that were not
sold in the ordinary course of trade". (Tunisia's first written submission, para. 5.12; report on the definitive
determination (Exhibits TUN-7, MAR-1), paras. 91 and 92)
97 Tunisia's first written submission, section 5.2.4.2.
98 Tunisia's first written submission, paras. 5.62 and 5.63.
99 Tunisia's response to Panel question No. 1.4, para. 39 (quoting the report on the definitive
determination (Exhibit MAR-CONF-3 (BCI)), para. 56).
100 Tunisia's first written submission, para. 5.67.
101 Tunisia's response to Panel question No. 1.4, para. 42.
102 Tunisia's response to Panel question No. 1.20, para. 14.

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are lower".103 Therefore, according to Tunisia, "an inflated profit margin necessarily results in both
an inflated normal value and an inflated margin of dumping, which is inconsistent with the definition
of 'dumping' set forth in Article 2.1 of the Anti-Dumping Agreement".104
7.67. Tunisia clarifies, however, that it does not dispute the fact that MIICEN decided to calculate a
profit margin instead of relying on the profits declared by the exporters105, and that it is not pursuing
its claim under Article 12.2.2 of the Anti -Dumping Agreement concerning sales of numbered or
watermarked exercise books.106
7.68. Lastly, concerning the order of analysis of its claims, we note that Tunisia requests us to
address first the claim under Articles 2.2 and 2.2.2, then, if we find that both provisions or either of
the two were violated, to find that there was a "consequential" violation of Article 2.1 of the
Anti-Dumping Agreement 107 or to "take note of the fact that Tunisia requested a finding of
inconsistency with each of those provisions but that the Panel decided to exercise judicial
economy".108
7.2.1.2.2 Analysis
7.2.1.2.2.1 Has Tunisia established that excluding sales of subsidized numbered and
watermarked exercise books from the establishment of the reasonable amount for profits
was inconsistent with Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement?
7.69. On the matter of the exclusion of numbered and watermarked exercise books, MIICEN's report
on the definitive determination indicates:
Concerning sales of so-called "numbered" exercise books, these types of exercise books
are produced using state-subsidized off set paper, which is watermarked, unlike the
so-called "super" school exercise books, which are made of paper that is not subsidized.
These numbered exercise books are sold only in the domestic market and it is strictly
prohibited to export them . In addition, the exporters explained that the watermarked
paper used to produce the numbered exercise books is purchased from the Tunisian
National Cellulose and Esparto Paper Company (a public company) at a regulated
transfer price and that this watermarked paper m ay not be used for exercise books
destined for export … Furthermore, heavy penalties are imposed if exercise books made
of watermarked paper are exported. Thus, given these facts, and for the purposes of a
fair comparison between the normal value and the e xport price, sales of these
(numbered) types of exercise books were not included in the calculation of the normal
value, since no comparable types of exercise books made with watermarked paper are
sold for export to Morocco.109
7.70. In practice, although sales o f numbered and watermarked exercise books were indeed
declared by the two producers/exporters that cooperated with the investigation, those sales were
excluded from the calculation of the reasonable amount for profits used to construct the normal
value of certain other models of exercise books .110 It is clear from the passage quoted above that
the reason why numbered and watermarked exercise books were excluded was because of the
export ban imposed on these exercise books. 111 Tunisia notes, however, that MIIC EN did include

103 Tunisia's response to Panel question No. 1.4, para. 43. See also Tunisia's first written submission,
para. 5.68.
104 Tunisia's response to Panel question No. 1.4, para. 43.
105 Tunisia's response to Panel question No. 1.24, para. 18.
106 Tunisia's response to Panel question No. 1.5, para. 44.
107 Tunisia's response to Panel question No. 1.26, para. 20.
108 Tunisia's response to Panel question No. 1.25, para. 19.
109 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 94. (fns omitted)
110 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)): although sales of these exercise
books do appear in the "Ventedom brut" sheet, they do not appear in the "Ventedom" sheet, which was used
as the basis for calculating the reasonable amount for profits. (See also Tunisia's first written submission,
para. 5.8)
111 We note that, in its preliminary determination, the investigating authority had asserted that
numbered and watermarked exercise books were "excluded from the scope of the definition of the product

BCI redacted, as indicated [[***]]

other models of exercise books that were not exported in the calculation of the reasonable amount
for profits.112
7.71. We recall that Article 2.2 of the Anti-Dumping Agreement establishes how the normal value
of the product under investigation is determined when domestic sales of the like product do not
allow for a proper comparison with the export price . In those specific circumstances, the normal
value may be constructed . T his constructed normal value includes, in particular, a " reasonable
amount" for profits, which is determined pursuant to Article 2.2.2:
For the purpose of paragraph 2, the amounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales in
the ordinary course of trade of the like product by the exporter or producer under
investigation.
7.72. This provision sets out three principles on which these costs and profits must be "based": the
investigating authority must use (a) actual data from domestic production and sales, (b) of the like
product, and (c) in the ordinary course of trade.
7.73. Morocco's defence is based primarily on the argument that any determination of dumping is,
by definition, a matter of comparing two prices – a domestic price (normal value ) and an export
price113 – for the same product or for a like product, and that the reference to "actual data pertaining
to production and sales" in Article 2.2.2 is not a reference to all sales, but to those that are subject
to a fair comparison.114
7.74. We share Morocco's view that the reference to "actual data pertaining to production and sales"
in Article 2.2.2 "does not refer to all sales" of the like product by the producer/exporter concerned.
In point of fact, that article states that the investigating authority should disregard sales that were
not in the ordinary course of trade.
7.75. In this dispute, however, Morocco insists that sales of the numbered and watermarked
exercise books were excluded not because of the "extraordinary" nature of those sales in the
Tunisian market, and therefore the potentially "extraordinary" nature of the profits from those sales,
but solely because the exercise books are subject to an export ban . Therefore, although MIICEN's
report on the definitive determination notes that the paper used is " state-subsidized" and is
purchased "at a regulated transfer price", and therefore might not reflect "sales [made] under
normal conditions of competition in the domestic market"115, Morocco confirmed, in response to the
Panel's questions, that " [t]he question … of the watermarked exercise books is very simple and is
based entirely on the authority's specific determination in respect of the watermarked exercise
books: does Article 2.2.2 require an authority to examine products which, under the legislation of
the exporting country, are not allowed to be exported?" 116 Similarly, in response to Tunisia's
arguments pertaining to whether sales of numbered and watermarked exercise b ooks were
"ordinary" or not, Morocco considered that those assertions were "not relevant" .117 In the light of
Morocco's explanations, we will not examine whether sales of numbered and watermarked exercise

under consideration". (Report on the preliminary determination, (Exhibit MAR-17), para. 25) Nevertheless, in
response to a Panel question, Morocco accepted that "[t]he purpose of paragraph 25 of the preliminary
determination was to explain that numbered exercise books had been excluded from the calculation of the
normal value, and not from the definition of the product". (Morocco's response to Panel question No. 1.5,
para. 24) We note also that MIICEN's final report states that "the exclusion of the so-called 'numbered'
exercise books is for technical needs linked to the dumping calculation (comparison of normal value and export
price of comparable sales) and in no way influences the definition of the product under investigation and/or the
product under consideration, since this definition is established on the basis of the product's technical
considerations and customs considerations stemming from the customs tariff". (Report on the definitive
112 Tunisia's second written submission, para. 2.47.
113 Morocco's second written submission, para. 141.
114 Morocco's second written submission, para. 142.
115 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 94 and fn 26.
116 Morocco's response to Panel question No. 1.22, para. 13 (quoting Morocco's opening statement at
the second meeting of the Panel, para. 66). See also Morocco's first written submission, para. 69: "the
fundamental issue, already underlined in the Essential Facts (a document on which the exporters have
commented) and confirmed several times by Tunisia and the exporters, was the fact that these exercise
books are not exported, under penalty of heavy sanctions"". (emphasis original)
117 Morocco's first written submission, para. 71.

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books could have been excluded from the calculation of the reasonable amount for profits, on the
grounds that those sales did not take place in the ordinary course of trade.
7.76. The question before us, therefore, is whether excluding sales that did not take place in the
ordinary course of trade, as explicitly e nvisaged in Article 2.2.2, is the only possible exclusion, or
whether other domestic sales may be excluded from the determination of the reasonable amount
for profits for other reasons . Since Article 2.2.2 does not provide for other exceptions, we must
consider the context of this provision and, in particular, the other paragraphs of Article 2.
7.77. Before us, Morocco and the European Union justify the exclusion of the numbered and
watermarked exercise books based on the need to make a fair comparison between the normal value
and the export price, within the meaning of the first sentence of Article 2.4. Thus, the European
Union asserts that:
When the type of product, not -exported or rarely exported, is sold in substantial
quantities in the market of the country of origin, consideration of the price of domestic
sales of this type of product is likely to distort the normal value of the product under
consideration, either by inflating its normal value or by unduly reducing it.118
7.78. The European Union therefore consider s that "insofar as the exclusion of sales of numbered
or watermarked exercise books from the calculation of the profit margin of Tunisian exporters seeks
to ensure a fair comparison between the export price and the normal value, no breach of Articles 2.1,
2.2 and 2.2.2 of the Anti-Dumping Agreement can be found to exist as a result of that exclusion".119
For its part, Morocco asserts that:
The authority simply excluded sales of products that, under Tunisian law, are not
exported from Tunisia "for technical n eeds linked to the dumping calculation
(comparison of normal value and export price for comparable sales)".120
7.79. Morocco also considers that:
Tunisia's claim would have an absurd outcome for anti-dumping investigations, since it
would mean that, for the purposes of the dumping calculation, products would have to
be taken into account that, under the laws of the exporters' host country, are unable to
be dumped.121
7.80. We recall that Article 2.2 concerns the determination of the normal value, and in particular a
constructed normal value. It states that the purpose of constructing a normal value is to allow a "fair
comparison" when domestic sales of the like product do not permit such a comparison . Therefore,
in this case, MIICEN constructed the normal value of ce rtain models (other than numbered and
watermarked exercise books) the sales of which did not permit a "proper comparison", either
because they did not take place in the ordinary course of trade or because their volume in the sense
of Article 2.2 was too small.122 This is therefore a separate issue to the one addressed by Article 2.4,
which concerns (a) comparability between the normal value so ascertained and the export price ;
and (b) the comparison of these two prices, i.e. the calculation of the margin of dumping.
7.81. We also recall that Tunisia does not challenge before us Morocco's right to exclude numbered
and watermarked exercise books from the comparison, on the grounds that numbered and
watermarked exercise books are not exported and are, therefore, in fa ct, unable to be dumped .
What Tunisia does contest is that these sales not being taken into account in the calculation of the
reasonable amount for profits under Article 2.2, i.e. in the construction of the normal value of those
models of exercise books that are exported.
7.82. In our opinion, it is not clear from the investigation record – and Morocco has failed to
demonstrate before us – that including sales of numbered and watermarked exercise books in the

118 European Union's third-party submission, para. 25.
119 European Union's third-party submission, para. 27. (emphasis added)
120 Morocco's first written submission, para. 71 (quoting the report on the definitive determination,
(Exhibit MAR-1), para. 56).
121 Morocco's first written submission, para. 73.
122 Tunisia's first written submission, para. 5.12.

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determination of the reasonable amount for profits wou ld not result in a normal value that would
permit a "proper comparison" with the export price. Conversely, disregarding domestic sales of those
exercise books led to a reasonable amount for profits that was not "based" on "actual data pertaining
to production and sales in the ordinary course of trade of the like product by the exporter or producer
under investigation", within the meaning of Article 2.2.2 of the Anti-Dumping Agreement.
7.2.1.2.2.2 Has Tunisia established a consequential violation of Article 2.1?
7.83. Lastly, we recall that Tunisia requests that, if a violation is found under Articles 2.2 and 2.2.2,
we find a "consequential" violation of Article 2.1 of the Anti-Dumping Agreement123 or "take note of
the fact that Tunisia requested a finding of inconsistency with each of those provisions but that the
Panel decided to exercise judicial economy".124 In this regard, we note that Tunisia does not develop
specific arguments in support of its claim under Article 2.1 and does not explain how additional
findings under Article 2.1 would help to settle the dispute.
7.84. We noted above125 that other panels and the Appellate Body have regarded Article 2.1 of the
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations.126
Furthermore, we indicated that we did not share Tunisia's opinion that a violation of Article 2.2 or
Article 2.2.2 of the Anti -Dumping Agreement "would necessarily result in a finding of violation of
Article 2.1". In that sense, we consider that, in order to establish a violation of Article 2.1, even a
consequential violation, the requesting party must explain how the measure at issue specifically
violates that provision of the Anti-Dumping Agreement.
7.85. In the present case, we consider that Tunisia's argument s in support of its claim under
Article 2.1 are the same as those developed in support of its claim under Articles 2 and 2.2.2 of the
Anti-Dumping Agreement. In our view, they are not sufficient to establish what Morocco's obligations
are under Article 2.1, or how those obligations were violated by the exclusion of the numbered and
watermarked exercise books.
7.2.1.2.3 Conclusion on the decision to exclude numbered and watermarked exercise
books
7.86. In the light of the foregoing, we conclude that Tunisia has demonstrated that, by excluding
sales of numbered and watermarked exercise books, MIICEN did not base the reasonable amount
for profits on "actual data pertaining to production and sales in the ordinary course of trade of the
like product by the exporter o r producer under investigation", thereby violating Article 2.2.2.
Morocco therefore violated Article 2.2 of the Anti -Dumping Agreement by not using a "reasonable
amount" for profits when constructing the normal value of certain models of exercise books. We also
conclude, however, that Tunisia has failed to demonstrate any violation of Article 2.1 of the
Anti-Dumping Agreement.
7.2.1.3 Whether including the distribution cost in the constructed normal value was
inconsistent with Articles 2.1 and 2.2 of the Anti-Dumping Agreement
7.2.1.3.1 Introduction
7.87. Tunisia takes issue with MIICEN for including in the constructed normal value expenses related
to the distribution cost (domestic transportation and port fees), which are not among the normal
value components described in Article 2.2 of the Anti-Dumping Agreement.
7.88. Tunisia maintains that "domestic transportation costs are not included in the 'cost of
production' or in the 'administrative [and] selling...costs'" described in Article 2.2. Therefore, MIICEN
erred by including domestic transportation costs in the reconstructed normal value.127

123 Tunisia's response to Panel question No. 1.26, para. 20; second written submission, para. 2.50.
124 Tunisia's response to Panel question No. 1.25, para. 19.
125 Para. 7.57.
126 Appellate Body Report, US – Zeroing (Japan), para. 140; Panel Report, Ukraine – Ammonium Nitrate,
para. 7.120.

BCI redacted, as indicated [[***]]

7.89. Tunisia also claims that "including the 'per -unit distribution cost' in the normal value
calculation caused the margin of dumping to increase" in a manner that is inconsistent with the
provisions of Article 2.1 of the Anti-Dumping Agreement.128
7.2.1.3.2 Analysis
7.90. We recall that Morocco requests, in the first instance, that we do not examine this argument
put forward by Tunisia, on the grounds that it would amount to asking the Panel to conduct a de
novo review, prohibited under Article 17.6(i) of the Anti-Dumping Agreement. In this case, Morocco
asserts that the interested parties never raised this matter before the authority and therefore cannot
do so for the first time before us.129
7.91. We consider Morocco's objection to be without merit.
7.92. We recall that Article 17.6(i) of the Anti-Dumping Agreement, read together with the
provisions of Article 11 of the DSU, sets out the standard to be applied by panels when assessing
whether a Member's investigating authorities hav e "established" and "evaluated" the facts
consistently with that Member's obligations under the covered agreements .130 This provision
precludes a panel from substituting the investigating authority by engaging in an independent
fact-finding exercise. However, if requested to do so by the parties, a panel must determine whether
the authority's establishment of the facts was proper and whether its evaluation of those facts was
unbiased and objective.
7.93. In this case, Tunisia is not asking us to re-evaluate the facts and substitute our evaluation for
that of the authority. It is asking us to find, on the basis of the facts contained in the investigating
authority's record, that the authority did not construct the normal value in a manner consistent with
Articles 2.1 and 2.2 of the Anti-Dumping Agreement. It is therefore a question of application of the
rules of the Anti-Dumping Agreement, which clearly falls within our jurisdiction.
7.94. We will therefore proceed to examine the arguments put forward by Tunisia.
7.2.1.3.2.1 Has Tunisia established that the normal value constructed by MIICEN was
inconsistent with Article 2.2 of the Anti-Dumping Agreement?
7.95. We recalled above that the investigating authority constructed a normal value for certain
models sold by SOTEFI.131
7.96. The investigation record shows that, for SOTEFI, this normal value was constructed by adding
the "cost price"132 and the "profit" established by MIICEN on the basis of data provided by SOTEFI.133
However, the spreadsheet that MIICEN provided with the essential facts sho ws that, in this case,
the "cost price" was the sum of a "unit production cost" 134 and a "unit distribution cost", including
domestic transportation and port fees .135 Morocco does not dispute this factual description of the
composition of the normal value established by MIICEN.
7.97. Tunisia therefore takes issue with the investigating authority for including a "unit distribution
cost" in the constructed normal value of certain SOTEFI models, even though Article 2.2 of the
Anti-Dumping Agreement describes construct ed normal value as being composed of the "cost of

128 Tunisia's first written submission, paras. 5.85 and 5.87.
129 Morocco's first written submission, paras. 63-65.
130 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84.
131 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), in the "Cout
de production" sheet. See also Tunisia's first written submission, paras. 5.77-5.79; second written submission,
paras. 2.54-2.56.
132 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column M of
the "Cout de production" sheet.
133 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column N of
the "Cout de production" sheet.
134 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column J of
the "Cout de production" sheet.
135 Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column K of
the "Cout de production" sheet.

BCI redacted, as indicated [[***]]

production in the country of origin plus a reasonable amount for administrative, selling and general
costs and for profit".136
7.98. The question before us is therefore whether a distribution cost that includes do mestic
transportation and port fees could, in this case, be included in the constructed normal value of
certain SOTEFI models.
7.99. The parties agree that the Anti-Dumping Agreement does not contain a precise definition (or
a methodology for determining the amo unt) of each component of normal value .137 Morocco
therefore asserts that "what should be included in the 'cost of production' depends on the specific
circumstances of each case" .138 Tunisia, for its part, accepts that "the terms 'cost of production in
the country of origin' and 'administrative, selling and general costs' are not explicitly defined in the
Anti-Dumping Agreement".139 Thus, while "administrative, selling and general costs" is a concept
"widely used in the fields of business management and accoun tancy… there is no formal definition
that can be used to identify its components. Each company therefore has some margin of discretion
in determining how to classify certain expenses".140
7.100. Nevertheless, Tunisia recalls that "Article 2.2.1 mentions that 'per unit … costs of production'
refers to 'fixed and variable' costs" .141 On the other hand, it considers that, if the investigating
authority decides to construct normal value at the "ex -factory stage", it should take into account
only administrative, selling and general costs and expenses that are part of an ex -factory level
price-.142 In this case, the "distribution cost" (and, in particular, the costs for transportation from
the factory door to the delivery point specified in the contract) is not part of the ex-factory level
price. It would therefore not be "reasonable" to include the "distribution cost" in a constructed normal
value at the ex-factory level.143
7.101. Morocco responds that the authority is not accountable for any error that may occur in the
construction of normal value when that error is based on data provided by the producers/exporters
that cooperated with the investigation. In the case at hand, MIICEN considers that it simply accepted
exporters' data as presented and that "if an error occurred in the formula for the constructed profit
margin, that was not brought to its attention".144
7.102. We disagree with Morocco's argument. First, we note, like Tunisia, that SOTEFI did declare
a unit distribution cost separately from the cost of production145 and that it broke down the content
of that distribution cost ("domestic transportation + port fees") . There was therefore no ambiguity
regarding the components of these different elements. Furthermore, as we already noted above146,
any error or ambiguity in th e manner in which an interested party responds to the authority's
questions does not exempt the investigating authority from its obligation to ensure "the accuracy of
the information supplied by interested parties upon which their findings are based" 147 and to
establish the facts " proper[ly]". Nor does such an error or ambiguity exempt a Member from its
obligation to establish the product's normal value, in accordance with the provisions of Article 2.2 of
the Anti-Dumping Agreement.
7.103. In the case at hand, we c onsider that Tunisia has demonstrated that, although MIICEN
constructed the normal value of certain models of exercise books at the ex -factory level 148, it

136 Tunisia's first written submission, para. 5.83.
137 Morocco's response to Panel question No. 1.9, paras. 37 and 38.
138 Morocco's response to Panel question No. 1.9, para. 39.
139 Tunisia's response to Panel question No. 1.9, para. 55.
140 Tunisia's response to Panel question No. 1.9, para. 57. See also Tunisia's second written submission,
paras. 2.58 and 2.59.
141 Tunisia's response to Panel question No. 1.9, para. 56.
142 Tunisia's response to Panel question No. 1.9, para. 58. See also European Union's third-party
response to Panel question No. 1.2, paras. 11-13.
143 Tunisia's response to Panel question No. 1.9, para. 59.
144 Morocco's response to Panel question No. 1.9, para. 43.
145 Tunisia's second written submission, para. 2.65; Excel file containing the dumping margin calculation
(SOTEFI) (Exhibit TUN-14 (BCI)), column K in the "Cout de production" sheet.
146 See paragraph 7.54 above.
147 Article 6.6 of the Anti-Dumping Agreement.
148 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 103.

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included domestic transportation costs and port fees in its calculation149, which are not part of normal
value at the ex -factory level. We therefore conclude that the amount used by MIICEN as normal
value for certain SOTEFI models is not a correct "normal value" within the meaning of Article 2.2 of
the Anti-Dumping Agreement.
7.2.1.3.2.2 Has Tunisia established a consequential violation of Article 2.1?
7.104. Lastly, we recall that Tunisia requests us to find that "MIICEN acted inconsistently with
Article 2.1 of the Anti-Dumping Agreement, because a normal value inflated by the inclusion of the
'distribution cost' results in an inflated margin of dumping" .150 In this regard, we note that Tunisia
does not develop specific arguments in support of its claim under Article 2.1 and does not explain
how additional findings under Article 2.1 would help to settle the dispute.
7.105. We noted above151 that other panels and the Appellate Body have regarded Article 2.1 of the
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations.152
Furthermore, we indicated that we did not share Tunisia's view that a violation of Article 2.2 or
Article 2.2.2 of the Anti -Dumping Agreement "would necessarily result in a finding of violation of
Article 2.1". In that sense, we consider that, in order to establish a violation of Article 2.1, even a
consequential violation, the requesting party must explain how the measure at issue specifically
violates that provision of the Anti-Dumping Agreement.
7.106. In the present case, we consider that Tunisia's arguments in support of its claim under
Article 2.1 are the same as those developed in support of its claim under Article 2.2 of the
Anti-Dumping Agreement. In our view, they are not sufficient to establish what Morocco's obligations
are under Article 2.1 , or how those obligations were violated as a result of errors made by MIICEN
when it established the normal value.
7.2.1.3.3 Conclusion on the inclusion of distribution costs in the constructed normal value
7.107. In view of the foregoing, we conclude that Tunisia has established that the inclusion of
distribution costs in the constructed norma l value of certain models of SOTEFI exercise books was
inconsistent with the obligation under Article 2.2 of the Anti-Dumping Agreement to construct normal
value on the basis of the "cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profit" . We also conclude, however, that Tunisia
has failed to demonstrate any violation of Article 2.1 of the Anti-Dumping Agreement.
7.108. We now turn to Tunisia's claims concerning Articles 2.1 and 2.4 of the Anti-Dumping
Agreement.
7.2.2 Tunisia's claims concerning fair comparison
7.2.2.1 Whether the determination concerning licences as a factor affecting price
comparability was inconsistent with Articles 2.1, 2.4 and 12.2.2 of the Anti -Dumping
Agreement
7.2.2.1.1 Introduction
7.109. Tunisia asserts that MIICEN should have taken into account the existence of a licence
agreement between SOTEFI and the [[***]] company under the factors affecting price
comparability.153 According to Tunisia, the investigating authority had all the information necessary

149 Tunisia's second written submission, para. 2.62.
150 Tunisia's second written submission, para. 2.73.
151 See paragraph 7.57 above.
152 Appellate Body Report, US – Zeroing (Japan), para. 140; Panel Report, Ukraine – Ammonium Nitrate,
para. 7.120.
153 For Tunisia, this licence agreement constitutes an authorization to use an intellectual property right
(for example, a design on the cover of the exercise books) and generates a significant price difference,
particularly as a result of the royalties to be paid by SOTEFI. (Tunisia's first written submission, paras. 5.127-
5.132; second written submission, para. 3.37)

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to make allowance for this difference in the typology of the different exercise book models 154 or to
make an adjustment for physical characteristics155 when comparing the normal value and the export
price. Thus, according to Tunisia:
First, the [dome stic industry] itself acknowledged in the petition that licence use
affected the price of exercise books by up to 5-10%. Second, SOTEFI provided a list of
all the licensed exercise book models exported to Morocco . Third, SOTEFI placed on
the record the contract entered into with the [[***]] company requiring SOTEFI to pay
[[***]] so that the exercise books could bear an image of this entertainment company.
Fourth, SOTEFI reported all sales of licensed and non -licensed exercise books in the
Excel file dated 23 May 2018.156
7.110. Tunisia considers that if, despite the information on the investigation record, MIICEN
considered that it required additional information, or wished that the information before it be
submitted in a different format, MIICEN should have "'indi cate[d] … what information [was]
necessary to ensure a fair comparison' as required by Article 2.4 of the Anti-Dumping Agreement".157
7.111. According to Tunisia, this difference had a significant impact on the margin of dumping
calculated by MIICEN since, "by lumping together licensed and unlicensed exercise books in order
to compare normal value and export price, the 'margin of dumping' for such models was inflated
significantly".158
7.112. Tunisia therefore claims that the investigating authority violated the fair comparison
obligation under Article 2.4 of the Anti -Dumping Agreement by failing to make due allowance for
this difference in physical characteristics . It also requests the Panel to find that this violation of
Article 2.4 gives rise to a "consequential" violation of Article 2.1 of the Anti-Dumping Agreement.159
Lastly, Tunisia claims that MIICEN's decision to not take licences into account is not based on the
evidence on the record and is, therefore, inconsistent with Article 12.2.2 of the Anti -Dumping
Agreement.160
7.2.2.1.2 Analysis
7.2.2.1.2.1 Tunisia's claim under Article 2.4 of the Anti-Dumping Agreement
7.113. The relevant provisions of Article 2.4 of the Anti-Dumping Agreement state that:
A fair comparison shall be made between the export price and the normal value. … Due
allowance shall be made in each case, on its merits, for differences which affect price
comparability … and any other differences which are also demonstrated to affect price
comparability. … The authorities shall indicate to the parties in question what

154 The record shows that MIICEN classified the exercise books according to certain characteristics
"affecting price comparability", namely: the types of binding, the exercise books' format, the number of pages,
the paper grammage, the types of cover and the types of varnish used on the cover. However, it refused to
make allowances for three other physical characteristics requested by SOTEFI: the presence of round corners,
the ruling and the use of licences. (Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 85;
see also Tunisia's first written submission, para. 5.138; and second written submission, para. 3.36)
155 Tunisia's first written submission, para. 5.139.
156 Tunisia's response to Panel question No. 2.7, paras. 53 and 54 (italics original; fns omitted; bold
type added). Tunisia adds that in the presentation by the exporters' representative at the public hearing on 30
April 2018, it was also noted that the determination of "types/specifications" should include the use of licences.
(Presentation by SITPEC and SOTEFI (30 April 2018) (Exhibit TUN-21), p. 8; Tunisia's first written submission,
para. 5.133. See also Tunisia's second written submission, paras. 3.41-3.45)
157 Tunisia's response to Panel question No. 2.7, para. 54. See also Tunisia's second written submission,
para. 3.53.
159 Tunisia's response to Panel question No. 2.9, paras. 68 and 69. See also Tunisia's second written
submission, para. 3.38.
160 Tunisia's first written submission, para. 5.143; second written submission, para. 3.67. In response to
a Panel question, Tunisia states, however, that it does not "object to the Panel exercising judicial economy with
respect to Tunisia's claim under Article 12.2.2 of the Anti-Dumping Agreement, insofar as the Panel finds an
inconsistency with Articles 2.4 and 2.1 of the Anti-Dumping Agreement". (Tunisia's response to Panel question
No. 2.20, para. 130. See also Tunisia's second written submission, fn 90)

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information is necessary to ensure a fair comparison and shall not impose an
unreasonable burden of proof on those parties.161
7.114. This article focuses on the comparison between the normal value and the export price and
contains the requirements enabling an investiga ting authority to ensure a "fair" comparison . I n
particular, it provides that the investigating authority shall, in its comparison, "make allowance" for
differences which affect the "comparability" between the normal value and the export price .
Article 2.4 does not prescribe a specific methodology for making allowance for such differences and
therefore leaves the authorities the choice to classify the product under investigation by types
presenting the same characteristics and/or to make the necessary adjus tments when making the
comparison.
7.115. Article 2.4 also allocates the burden of proof between the interested parties and the
investigating authority in order to make allowance for differences affecting price comparability.
7.116. Thus, the obligation to ensure a "fai r comparison" is lies on the investigating authorities 162
and it is therefore up to them to "make allowance" for differences when making a comparison .
However, it is up to the party seeking an adjustment to "demonstrate" that there is a difference and
that it affects price comparability . Therefore, in other dispute settlement proceedings, exporters
were found to bear the burden of substantiating, "as constructively as possible", their requests for
adjustments. Failing this, there is no obligation for the authority to make an adjustment.163 In turn,
the last sentence of Article 2.4 further states that the authorities shall nevertheless indicate to the
parties what information is necessary to ensure a fair comparison, without imposing an
"unreasonable" burden of proof on those parties.
7.117. This process, which is likely to continue throughout the investigation, has been described as
a "dialogue" between the authority and interested parties.164 The distribution of the burden of proof
between the authority and the interested parties is the same, regardless of the method used by the
authority to "make allowance" for differences affecting price comparability . A rticle 2.4 does not
differentiate in this regard between whether the investigating authority uses - for the purposes of
comparability - a typology of models or makes adjustments at the comparison stage.
7.118. In the present dispute, we are therefore faced with two questions in the light of Tunisia's
arguments:
a. Did the investigating authority indicate to SOTEF I what information was necessary to
ensure a fair comparison?
b. Did SOTEFI demonstrate that licenses affected price comparability?
7.119. In the following paragraphs, we examine these two questions in turn.
7.2.2.1.2.1.1 Did MIICEN indicate to SOTEFI what information was necessary to ensure a
fair comparison?
7.120. The investigation record shows that MIICEN did establish a "dialogue" with SOTEFI in respect
of the requested adjustments:
a. The questionnaire sent to SOTEFI upon initiation of the investigation requested the
company to explain "in detail" each of the requested adjustments, including by reporting
"actual expenditure" and indicating whether such expenditure is subsidized . A specific
section was provided for the requested adjustments relating to the physical characteristics
of the exercise books . The company was also requested to identify the market value of
those adjustments and the corresponding references in the company's accounts, so that

161 Fn omitted; emphasis added.
162 Appellate Body Report, EC – Fasteners (China), para. 487 (quoting Appellate Body Report, US – Hot-
Rolled Steel, para. 178).
163 Appellate Body Report, EC – Fasteners (China), para. 488 (quoting Panel Report, EC – Tube or Pipe
Fittings, para. 7.158).
164 Appellate Body Report, EC – Fasteners (China), para. 489.

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they could be verified.165 Lastly, the company was asked to report the adjustments in the
electronic file in the "Ventedom" sheet.166
b. Subsequently, "[o]n 1 5 August 2017, MIICEN sent the exporters a deficiency letter in
which it asked the following question : '[p]lease explain further whether there are any
licensed trademarks used on the covers of the exercise books'".167
c. Lastly, on 4 May 2018, M IICEN requested SOTEFI to revise "the classification used" for
domestic sales and for sales to Morocco "by adding cover criteria (varnished or not,
laminated, cardboard, under licence, etc.)".168
7.2.2.1.2.1.2 For its part, did SOTEFI "demonstrate" that licences affected price
comparability?
7.121. The record shows that SOTEFI did not request an adjustment in its questionnaire response.
It is only in response to the deficiency letter t hat SOTEFI provided a list of licensed exercise books
sold in the Tunisian and export markets169, and the licence contract between SOTEFI and the [[***]]
company.170 It also appears that in a revised version of its initial response to MIICEN's questionnaire,
SOTEFI included a column in the "Ventedom" sheet of its electronic file to distinguish between those
exercise books that were sold under licence and those that were sold without a licence.171
7.122. Subsequently, the report on the definitive determination states that "[f]ollowing the
publication of the preliminary determination … [the exporters] requested that other criteria be
included in the classification and comparison, namely : t ypes of covers (coated paper, coated
cardboard, rigid, PP -rigid), cover varnishes (without varnish, UV varnish or acrylic varnish,
polypropylene, film), the presence of round corners (with or without), rul ed (5/5, 10/10, seyes,
uniseyes-uni) and the use of licences".172
7.123. It can therefore be deduced that, having not requested an adjustment for licences in its
initial response to the questionnaire, SOTEFI clarified its request in various exchanges with the
investigating authority.
7.124. However, as Morocco notes before us 173, it is clear from the record that SOTEFI never
provided the information requested by the authority in the questionnaire, that is to say, by explaining
the requested adjustment in detail, reporting the actual expenditure, as well as the market value of
these adjustments and the corresponding references in the company's accounts. S imilarly, the
revised electronic spreadsheet submitted to MIICEN by SOTEFI does refer to which exercise book
models are sold under licence, but does not demonstrate how that difference affected price
comparability.174
7.125. Another panel considered that an exporter was not obliged to request an adjustment in its
response to the initial questionnaire and could do so later in the investigation.175 We agree. However,
we believe that there remains a requirement to provide the information requested by the authority,
provided that the burden of proof imposed on the exporter is not "unreasonable", within the meaning

165 SOTEFI's responses to the questionnaire (Exhibit MAR-CONF-15 (BCI)), p. 31.
166 SOTEFI's response to the questionnaire (Exhibit MAR-CONF-15 (BCI)), p. 31.
167 Tunisia's response to Panel question No. 2.1, para. 81; Morocco's second written submission, para.
152.
168 Email dated 4 May 2018 (Exhibit TUN-72).
169 List of licensed products sold in the domestic and export markets (Exhibit TUN-44 (BCI)).
170 Tunisia's response to Panel question No. 2.1, para. 81.
171 Tunisia's response to Panel question No. 2.7, para. 53 and fn 31. See also revised data provided by
SOTEFI (Exhibit TUN-11 (BCI)), column N of the "Ventedom" sheet. The data relating to licences also appear in
the file provided by MIICEN. (Excel file containing the dumping margin calculation (SOTEFI) (TUN-14 (BCI)),
column M of the "Ventedom brut" sheet). In this regard, see Tunisia's second written submission, para 3.43.
172 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), para. 83.
173 Morocco's first written submission, fn 75. See also Morocco's response to Panel question No. 2.3,
para. 51.
174 Morocco's first written submission, fn 75.
175 Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.83.

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of the last sentence of Article 2.4 of the Anti -Dumping Agreement. We note that in the present
dispute, Tunisia does not assert that the burden of proof imposed by MIICEN was "unreasonable".
7.2.2.1.2.1.3 Conclusion on consistency with Article 2.4
7.126. In view of the foregoing, it therefore appears that the investigating authority did comply with
the requirement of Article 2.4 of the Anti -Dumping Agreement by indicating to SOTEFI what
information was necessary to ensure a fair comparison . However, the record shows that SOTEFI
never provided the information requested by MIICEN and therefore failed to "demonstrate" that
licences affected price comparability w ithin the meaning of Article 2.4 of the Anti -Dumping
Agreement.176
7.127. Tunisia insists that, in this case, SOTEFI was not asking for a precise adjustment for each
transaction, but for an allowance to be made for licences in the classification of the exercise bo oks
by model. It asserts that, unlike a strict adjustment, the creation of a classification by model at the
start of the investigation would not require specific information on the magnitude of the price
difference.177
7.128. As noted above178, we are not convinced that how an authority decides to make allowances
for differences affecting price comparability (by developing a typology of different models or by
making adjustments) changes the burden of proof falling on the authority and the interested parties,
respectively. It is up to the party seeking an adjustment to "demonstrate" that there is a difference
and that it affects price comparability. It is also incumbent on this party to respond "as constructively
as possible" to requests for information made by the authority, provided that it does not impose an
unreasonable burden of proof.
7.129. We therefore conclude that Tunisia has failed to demonstrate that Morocco violated the
provisions of Article 2.4 in this case.
7.2.2.1.2.2 Tunisia's claim under Article 2.1 of the Anti-Dumping Agreement
7.130. Tunisia also requests the Panel to find that the alleged violation of Article 2.4 gives rise to a
"consequential" violation of Article 2.1 of the Anti-Dumping Agreement.179
7.131. In particular, Tunisia explains that, "any inconsistency with Article 2.4 of the Anti-Dumping
Agreement that has the effect of inflating the margin of dumping leads to an inconsistency with the
requirement under Article 2.1 that a product 'is to be considered as being dumped' only if the normal
value is higher than the export price".180
7.132. It also explains that:
[I]nsofar as the Panel finds that, by disregarding the use of licences as a relevant
criterion for the classification of the product under consideration, MIICEN failed to make
a fair comparison, this is inconsistent not only with Article 2.4 but also, and
consequentially, with Article 2.1, which requires a comparison between the normal value
and the export price.181
7.133. Having failed to find any "inconsistency with Article 2.4 of the Anti-Dumping Agreement that
has the effect of inflating the margin of dumping ", or find that "by disregarding the use of licences,
MIICEN failed to make a fair comparison", we need not consider whether there is a "consequential"
violation of Article 2.1.

176 The panel in EC – Tube or Pipe Fittings, faced with similar facts, reached the same conclusion. (Panel
Report, EC – Tube or Pipe Fittings, para. 7.189)
177 Tunisia's second written submission, para. 3.52.
178 See para. 7.117 above.
179 Tunisia's response to Panel question No. 2.9, paragraphs 68 and 69.
180 Tunisia's response to Panel question No. 2.9, para. 68. (with italics in the original)
181 Tunisia's response to Panel question No. 2.9, para. 69.

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7.2.2.1.2.3 Tunisia's claim under Article 12.2.2 of the Anti-Dumping Agreement
7.134. We recall that Tunisia makes a claim under Article 12.2.2 of the Anti-Dumping Agreement.182
7.135. Thus, Tunisia considers that MIICEN's explanation that the record lacked "satisfactory
justification of [the effect of the licences] on costs and prices and … their impact on price
comparability is insignificant"183 does not comply with the obligation contained in Article 12.2.2 to
indicate all relevant information.184
7.136. The provisions of Article 12.2.2, relevant to this case, state that:
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. … In particular, the notice or report shall contain the information described
in subparagraph 2.1, as well as the reasons for the acceptance or r ejection of relevant
arguments or claims made by the exporters and importers[.]
7.137. Tunisia refers to several panel reports that have interpreted Article 12.2.2 as follows:
[Requiring] that the investigating authority set forth in the relevant opinion or repor t
"the findings and conclusions reached on all issues of fact … considered material by the
investigating authorities". An "issue of fact" under Article 12.2.2 was interpreted to be
an "issue that [had] arisen in the course of the investigation and that must necessarily
be resolved in order for the investigating authorities to be able to reach their
determination".185
7.138. Conversely, Morocco insists that Article 12.2.2 of the Anti-Dumping Agreement only requires
an authority to discuss the "relevant" arguments in its report .186 It considers that "[w]here an
interested party has not presented arguments before an authority, there is consequently no
'argument' to be evaluated by the authority and, a fortiori, there is no argument to be disclosed
under Article 12.2.2 and, ultimately, there is nothing for a panel to examine".187
7.139. In this case, MIICEN referred in its report on the definitive determination to SOTEFI's
arguments concerning the licences, as follows:
a. The report states that at the meetings held on 30 April 2018, "the matter of allowance not
being made for characteristics was discussed at length" and that MIICEN informed the
exporters "that their background files did not allow certain characteristics to be taken into
consideration because [the files] were not completed, nor did they make it possible to
justify [the characteristics] importance".188
b. The report then states that MIICEN "did not include in the classification certain
characteristics for which there was no satisfactory justification of their e ffect on costs or
prices, and whose impact on price comparability was found to be insignificant . T his
concerns ruling, round corners and the use of licences".189
7.140. The report on the definitive determination therefore does explain that the exporters
requested that allowance be made for licences as a difference affecting price comparability . The

182 Tunisia's first written submission, para. 5.143; second written submission, para. 3.67. See also
Tunisia's response to Panel question No. 1.5, para. 48.
183 Tunisia's first written submission, para. 5.143 (quoting the report on the definitive determination,
(Exhibit TUN-7), para. 85).
184 Tunisia's response to Panel question No. 1.5, para. 48.
185 Tunisia quotes Panel Reports, EC – Tube or Pipe Fittings, para. 7.424; and EU – Footwear (China),
186 Morocco's response to Panel question No. 2.23, para. 21.
187 Morocco's response to Panel question No. 2.23, para. 26.
188 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 84.
189 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 84.

BCI redacted, as indicated [[***]]

report does not cite all the evidence on the record, which, according to Tunisia, should have led
MIICEN to grant an adjustment for the licences, such as the c ontract between SOTEFI and the
[[***]] company, or the revised spreadsheet indicating which models were sold under licence .
However, like other previous panels, we do not understand Article 12.2.2 to "impose a formalistic
obligation to identify each and ev ery relevant argument and explicitly provide the reasons for
accepting or rejecting each such argument".190 On the other hand, we consider it essential that the
report explain "the reasons" for rejecting the argument that MIICEN should have "made allowance"
for licences as a factor affecting price comparability.
7.141. However, on this point, Tunisia considers191 (and Morocco recognizes192) that paragraph 85
of the report on the definitive determination is imprecise . T hus, this paragraph can be read as
indicating both that there was no satisfactory justification for the effect of the licences on costs or
prices and that MIICEN nevertheless found that their impact on price comparability was
"insignificant". We consider that this sentence is contradictory since an authority could only find that
the impact of licences on price comparability is insignificant if the record contained justifications in
this regard.
7.142. Moreover, before us, Morocco adds that the term "insignificant" used in this context was, in
fact, referring to the share of licensed exercise books in the volume of exercise books exported to
Morocco.193 However, this aspect of MIICEN's findings does not appear on the investigation record
and therefore cannot be used before us to explain MIICEN's decision to reject SOTEFI's request for
an adjustment. We also find that the adjective, "insignificant", does apply to "the impact on price
comparability" in MIICEN's report.
7.143. We therefore consider that the contradictory nature of paragraph 85 of the report on the
definitive determination does not allow interested parties to understand why the request for an
adjustment or classification for licences was rejected by MIICEN. We conclude, for this reason, that
the report on the definitive determination does not give "the reasons for the … rejection of relevant
arguments or claims made by the exporters" and that Morocco did not therefore act in conformity
with the provisions of Article 12.2.2 of the Anti-Dumping Agreement.
7.2.2.1.3 Conclusion on licences
7.144. In view of the foregoing, we therefore conclude that Morocco did not act in conformity with
the provisions of Article 12.2.2, by failing to explain clearly the reasons for the rejection of the
exporters' argument to take licences into account as a factor that may affect price comparability .
However, we reject Tunisia's claim that Morocco violated the fair comparison obligation by failing to
take due account of licences as a factor affecting price comparability . H aving failed to find any
inconsistency with Article 2.4, we need not consider whe ther there is a "consequential" violation of
the provisions of Article 2.1 of the Anti-Dumping Agreement.
7.2.2.2 Whether the mathematical formula used by MIICEN to calculate the margin of
dumping was inconsistent with Articles 2.1 and 2.4 of the Anti-Dumping Agreement
7.2.2.2.1 Introduction
7.145. Tunisia contests the mathematical formula used by MIICEN to establish the margin of
dumping of the two Tunisian exporters that participated in the investigation . Tunisia contests, in
particular, the numerator and the denominator chosen by the Moroccan investigating authority, for
the following reasons:
MIICEN calculated, erroneously, the overall dumping amount placed in the numerator
of the dumping margin formula, as well as the total export value placed in the
denominator of that formula. These errors resulted, against all logic, in a "margin of
dumping" expressed in a unit of volume (a percentage of the volume of sales in the

190 Panel Report, US – OCTG (Korea), para. 7.301.
191 Tunisia's response to Panel question No. 2.8, para. 64.
192 Morocco's response to Panel question No. 2.3. paras. 49-53.
193 Morocco's response to Panel question No. 2.3, para. 52.

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Moroccan market), instead of a margin of dumping in a unit of currency (a percentage
of the export price), which is contrary to the very nature of the margin of dumping.194
7.146. Tunisia summarizes its claims as follows:
Tunisia requests the Panel to examine whether the calculation of the margin of dumping
obtained on the basis of a formula containing a numerator and a denominator expressed
in a unit of volume violates the obligation under Articles 2.4 and 2.1 to make a "fair
comparison" between the normal value and the export price.195
7.147. It asserts that these errors led to an "inflated" margin of dumping for the two exporters and
that this margin is inconsistent both with the obligation to make a "fair comparison" between the
normal value and the export price within the meaning of Article 2.4 , and, in a "consequential"
manner196 (i.e. subject to a finding of violation of Article 2.4), with Article 2.1 of the Anti -Dumping
Agreement.197
7.148. Morocco, for its part, takes the view that Tunisia is contesting intermediate calculations that
do not represent the margin of dumping as such, and that therefore cannot be contested on the
basis of Article 2.4.198 Morocco also asserts that the fair comparison obligation in Article 2.4 of the
Anti-Dumping Agreement does not apply to the facts described by Tunisia . Morocco thus explains
that:
Tunisia requests the Panel to build from the first sentence of Article 2.4 a "catch -all"
obligation where any calculation error in the "comparison after having obtained both
the normal value and the export price" results in a twofold violation of Article 2.4 and,
"consequentially", Article 2.1.199
7.149. Thus, if Tunisia had wanted to contest MIICEN's calculation method, it should have relied on
Article 2.4.2 of the Anti-Dumping Agreement and not on the first sentence of Article 2.4:
Tunisia chose not to make a claim under Article 2.4.2 in its panel request . The Panel
should reject Tunisia's attempt to raise arguments concerning issues specifically
addressed in Article 2.4.2 by erroneously importing them to the first sentence of Article
2.4 through Article VI:2 of GATT 1994.200
7.2.2.2.2 Analysis
7.150. We recall that Morocco requests, in the first instance, that we do not examine this argument
put forward by Tunisia, on the grounds that it would amount to asking the Panel for a de novo
review, prohibited under Article 17.6(i) of the Anti -Dumping Agreement . I n this case, Morocco
asserts that the interested parties never raised this matter before the authority and therefore cannot
do so for the first time before us.201
7.151. We consider Morocco's objection to be without merit.
7.152. We recall that Article 17.6(i) of the Anti-Dumping Agreement, read together with Article 11
of the DSU, sets out the standard to be applied by panels when assessing whether a Member's
investigating authorities have "established" and "evaluated" the facts consistently with that
Member's obligations under the c overed agreements .202 This provision precludes a panel from
substituting the investigating authority by engaging in an independent fact -finding exercise .

194 Tunisia's first written submission, para. 5.88.
195 Tunisia's response to Panel question No. 2.14, para. 88.
196 Tunisia's response to Panel question No. 2.18, paras. 113 and 114.
197 Tunisia's panel request contains a claim under Article VI:1 of GATT 1994 relating to the fair
comparison obligation. However, in its responses to the Panel's questions, Tunisia indicates that it is not
pursuing this claim. (Tunisia's response to Panel question No. 2.21, para. 132)
198 Morocco's second written submission, para. 101.
199 Morocco's comments on Tunisia's response to Panel question No. 2.16, para. 155.
200 Morocco's comments on Tunisia's response to Panel question No. 2.16, para. 158.
201 Morocco's second written submission, para. 101.
202 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 84.

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However, if requested to do so by the parties, a panel must determine whether the
authority's establishment of the facts was proper and whether its evaluation of those facts was
unbiased and objective.
7.153. In this case, Tunisia is not asking us to re -evaluate the facts and substitute our evaluation
for that of the authority. It is asking us to find, on the basis of the facts contained in the investigating
authority's record, that the authority determined the margin of dumping of Tunisian
producers/exporters in a manner that was inconsistent with Articles 2.1 and 2.4 of the Anti-Dumping
Agreement. It is therefore a question of application of the rules of the Anti -Dumping Agreement,
which clearly falls within our jurisdiction.
7.154. We will therefore proceed to examine the arguments put forward by Tunisia.
7.155. In the sections that follow, we conclude that the mathematical fo rmula used by MIICEN to
calculate the margin of dumping was erroneous, and we analyse whether this error constitutes, as
Tunisia asserts, a violation of the fair comparison obligation in Article 2.4 of the Anti -Dumping
Agreement.
7.2.2.2.2.1 The mathematical formula used by MIICEN was erroneous
7.156. The record, and particularly the electronic spreadsheets sent by the authority to the
producers/exporters cooperating in the investigation, show that the margins of dumping for each of
them were established as follows:
7.157. As regards the formula's numerator, the spreadsheets show that MIICEN compared, for each
exercise book model, the normal value and the export price and, in doing so, obtained a dumping
amount per model 203 that it then expressed as a percentage of the export price .204 The problem
identified by Tunisia does not stem from this intermediate calculation, but from the fact that MIICEN
then, for each model, multiplied the exported amounts 205 by the percentage of du mping obtained
per model206 and presented this result as the "dumping amount"207 for each model. This result does
not, however, represent the value of dumping per model, but simply a portion of the exports of each
model. The sum of these "dumping amounts" is therefore, in reality, only a sum of fractions of
exports by model. This figure is, logically, irrelevant to the calculation of a margin of dumping.
7.158. As regards the formula's denominator, these same exhibits show that MIICEN divided this
"dumping amount" by the amounts exported.208
7.159. The result of this division does not allow for the expression of a percentage of dumping for
the product exported by each producer/exporter, insofar as it represents the division of a partial
export volume by the total volume of exports. The calculation made by MIICEN does not therefore
represent a margin of dumping.
7.160. In making this finding, we are not questioning the fact that a margin of dumping can be
expressed in different ways and, in particular, in ad valorem form, i.e. by expressing the dumping
value as a percentage of the export value, or in a specific form, i.e. in a unit of currency per unit of
volume. What is at issue here is the ability of MIICEN's formula to express dumping when using as
a numerator a figure that does not represent an amount of dumping but rather an irrelevant export
volume.

203 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column H of the "Dumping" sheet.
204 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column K of the "Dumping" sheet.
205 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column G of the "Dumping" sheet.
206 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)), column J of
the "Dumping" tab; Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)),
column K of the "Dumping" sheet.
207 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), column L of the "Dumping" sheet.
208 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)); Excel file
containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)), cell L116 of the "Dumping" sheet.

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7.161. Having established that the formula used by MIICEN was erroneous, there are two questions
we must address in order to respond to Tunisia's claim under Article 2.4 of the An ti-Dumping
Agreement:
a. whether the fair comparison obligation really applies to the issue of the calculation of
margins of dumping, which is more specifically covered by the second subparagraph of
Article 2.4 (Article 2.4.2); and, if so,
b. whether the error identified by Tunisia in the mathematical formula used to calculate the
margin of dumping really violates the fair comparison principle set out in Article 2.4.
7.162. We will address these two questions in turn in the following paragraphs.
7.2.2.2.2.2 Does the fair comparison principle apply to the formula used to calculate the
margin of dumping?
7.163. In other dispute settlement proceedings, the obligation to make a fair comparison was found
to apply not only to price comparability issues, but also to the calculation of the margin of dumping,
as described in Article 2.4.2.209
7.164. That finding was based primarily on the following elements:
a. the fact that provisions on currency conversions and the establishment of margins of
dumping during the investigation phase are not contained in separ ate paragraphs of
Article 2 but are indented as subparagraphs of Article 2.4 means that these provisions and
the provisions in the chapeau of Article 2.4 are part of a whole210; and
b. the expression "[s]ubject to the provisions governing fair comparison in paragraph 4" in
Article 2.4.2 supports an interpretation that the "fair comparison" requirement is of
broader application than the issue of price comparability.211
7.165. We find this approach to be convincing and are adopting it in this dispute.
7.166. In the present case, we note that the comparison between the normal value and the export
price of each exercise book model is not - in itself - the root of the problem : this comparison was
made for each model sold and gave rise to the establishment of intermediate margins expressed in
percentage terms, which are accurate .212 The problem identified by Tunisia instead concerns the
aggregation of these intermediate margins and, in particular, the use, as numerator, of a figure that
is irrelevant to the calculation of the margin of dumping.
7.167. Another panel took the view that the process of aggregation was an integral part of the
comparison that is undertaken between export prices and weighted-average normal values and thus
fell "squarely within the 'comparison' that i s envisaged and regulated under the first sentence of
Article 2.4".213 We also note that Tunisia refers to the provisions of Article VI:2 of GATT to provide
context and asserts that:
Article VI:2 of G ATT 1994 defines the "margin of dumping" as "the price di fference
determined" between the export price and the normal value . This "price difference" is,
necessarily, related to the comparison between the normal value and the export price.
Therefore, the obligation to make a "fair comparison" within the meaning o f the first
sentence of Article 2.4 (in order to identify the "price difference" referred to in Article
VI:2 of GATT 1994) applies to the entire dumping margin calculation, i.e. to the whole

209 See, for example, Panel Report, US — Zeroing (EC), para. 7.258.
210 Panel Report, US - Zeroing (EC), para. 7.254.
211 Panel Report, US - Zeroing (EC), para. 7.255.
212 Excel file containing the dumping margin calculation (SITPEC) (Exhibit TUN-12 (BCI)), column J of
the "Dumping" sheet; Excel file containing the dumping margin calculation (SOTEFI) (Exhibit TUN-14 (BCI)),
column K of the "Dumping" sheet.
213 Panel Report, US - Orange Juice (Brazil), para. 7.144.

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mathematical process of comparison after having identified both t he normal value and
the export price.214
7.168. We agree with the finding that the fair comparison obligation applies not only to the
comparison made between the normal value and the export price for each model or transaction, but
also to the aggregation of these individual margins so as to reflect a margin of dumping for the
product as a whole. From this perspective, we therefore agree with Tunisia's argument that the fair
comparison principle does apply to the mathematical formula used by MIICEN to calculate the margin
of dumping of the two Tunisian exporters.
7.2.2.2.2.3 Does the calculation error made by MIICEN violate Article 2.4 of the
Anti-Dumping Agreement?
7.169. Having decided that the fair comparison principle was indeed applicable to the mathematical
formula used by MIICEN, we still need to determine whether the error identified by Tunisia
constitutes a violation of this obligation.
7.170. In the case on the zeroing of margins of dumping, the panel considered that:
[I]n order to determine what is "fair" under the [Anti-Dumping] Agreement in relation
to the calculation of margins of dumping, we must take into account substantive rules
and concepts in the [Anti-Dumping] Agreement relevant to the issue of the
determination of margins of dumping. In particular, our analysis must take into account
Article 2.4.2 of the [Anti-Dumping] Agreement, which is the only provision of the [Anti-
Dumping] Agreement that specifically addresses the subject of methods of determining
margins of dumping.215
7.171. While the conclusion drawn by that panel at the time - that zeroing negative margins of
dumping is not necessarily inconsistent with the fair comparison obligation - was subsequently
invalidated by the Appellate Body, its reasoning relating to "what is fair" for the calculation of
margins of dumping seems, in our view, to be relevant in the context of the present dispute. Indeed,
as the same panel observed, Article 2.4.2 of the Anti -Dumping Agreement is "the only provision of
the … Agreement that specifically addresses the subject of methods of determin ing margins of
dumping". A rticle 2.4.2 of th e Anti-Dumping Agreement "explains how domestic investigating
authorities must proceed in establishing 'the existence of margins of dumping', that is, it explains
how they must proceed in establishing that there is dumping".216
7.172. In the present case, we recall that Tunisia does not claim in its written submissions that the
erroneous methodology used by MIICEN is inconsistent with Article 2.4.2 of the Anti -Dumping
Agreement. We cannot therefore examine the conformity of the formula used by MIICEN with the
provisions of Article 2.4.2 in order to draw conclusions as to its conformity with Article 2.4 .
Nevertheless, Tunisia has demonstrated that the mathematical formula used by MIICEN was
incorrect and did not therefore represent a dumping calculation. The fact that Tunisia did not raise
an argument under Article 2.4.2 does not therefore, in our view, preclude a finding that Morocco
violated the Article 2.4 fair comparison obligation.
7.173. The Larousse dictionary defines the te rm "équitable" (fair) as that which is "conforme à
l'équité, à la justice" (in accordance with fairness, with justice).217 Similarly, the Le Robert dictionary,
defines it as that which is "conforme à l'équité, qui ne lèse personne" (in accordance with fairn ess,
which does not wrong anyone).218
7.174. In US — Softwood Lumber V , the Appellate Body defined the "[t]he term 'fair' … [as]
connot[ing] impartiality, even -handedness, or lack of bias" .219 In that case, the Appellate Body

214 Tunisia's response to Panel question No. 2.16, para. 96. (with italics in the original)
215 Panel Report, US - Zeroing (EC), para. 7.262.
216 Appellate Body Report, EC - Bed Linen, para. 51. (emphasis original)
217 Dictionnaire Larousse, definition of "équitable" https://www.larousse.fr/dictionnaires/francais/ per
centc3 per centa9quitable/30708 (accessed 15 April 2021).
218 Dictionnaire Le Robert, definition of "équitable" https://dictionnaire.lerobert.com/definition/equitable
(accessed 15 April 2021).
219 Appellate Body Report, US — Softwood Lumber V (Article 21.5 — Canada), para. 138.

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considered that the use of zeroing in a transaction-to-transaction comparison was not "fair" within
the meaning of Article 2.4 of the Anti-Dumping Agreement because:
[T]he use of zeroing under the transaction -to-transaction comparison methodology
artificially inflates the magnitude of dumping, resulting in higher margins of dumping
and making a positive determination of dumping more likely . This way of calculating
cannot be described as impartial, even-handed, or unbiased. For this reason, we do not
consider that the calculation of " margins of dumping", on the basis of a
transaction-to-transaction comparison that uses zeroing, satisfies the "fair comparison"
requirement within the meaning of Article 2.4 of the Anti-Dumping Agreement.220
7.175. In the present case, we are not ruling on whether the error identified by Tunisia "tends to
result in higher margins of dumping". Indeed, we recall another panel's conclusion that:
[T]he obligation under Article 2.4 is focused on the "comparison" between export price
and normal value, not its impact . In other words, it is the nature of the "comparison"
itself, and not the results of that comparison, that is disciplined under Article 2.4.221
7.176. We share this view. The fact that MIICEN's error "accidentally" led to a margin of dumping
higher than that which would have been the case with a correct mathematical formula is not sufficient
to prove a violation of Article 2.4.
7.177. In this case, we found that the calculation methodology used was incapable of:
a. correctly expressing dumping, i.e. determining whether Tunisian exercise books are
introduced into the commerce of Morocco at less than their normal value; and
b. yielding a result that correctly reflects the margin of dumping for each producer/exporter.
7.178. This is therefore the nature of the comparison made by MIICEN, which (a) by not permitting
dumping to be expressed correctly, i.e. by not permitting a determination as to whether Tunisian
exercise books are introduced into the commerce of Morocco at less than their normal value ; and
(b) by not reflecting the reality of the dumping attributable to each exporter, is incapable of ensuring
a fair comparison.
7.179. In the light of the foregoing, we therefore conclude that MIICEN's use of an erroneous
formula did indeed violate the fair comparison obligation contained in Article 2.4 of the Anti-Dumping
Agreement.
7.180. We turn next to Tunisia's claim under Article 2.1.
7.2.2.2.2.4 Does the calculation error made by MIICEN violate Article 2.1 of the
Anti-Dumping Agreement?
7.181. With regard to the alleged violation of Article 2.1 of the Anti -Dumping Agreement, Tunisia
summarizes its claim as follows:
MIICEN failed to make a fair comparison as required under Article 2.4, and therefore
did not correctly establish whether the product under consideration "is to be considered
as being dumped" under the terms of Article 2.1 of the Anti-Dumping Agreement.
Accordingly, if the Panel finds inconsistency with the first sentence of Article 2.4 in
respect of the use of an erroneous mathematical formula to calculate the margin of
dumping, any inconsistency with Article 2.1 will necessarily be consequential.222

220 Appellate Body Report, US - Softwood Lumber V (Article 21.5 — Canada), para. 142.
221 Panel Report, US — Orange Juice (Brazil), para. 7.156.
222 Tunisia's response to Panel question No. 2.18, paras. 113 and 114.

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7.182. We noted above223 that other panels and the Appellate Body have regarded Article 2.1 of the
Anti-Dumping Agreement as a purely definitional provision, i.e. as not itself imposing obligations.224
Furthermore, we co nsider that establishing a violation of Article 2.1, even a consequential one,
requires the requesting party to explain how the measure at issue specifically violates that provision
of the Anti-Dumping Agreement.
7.183. In the present case, we consider that Tunisia's arguments in support of its claim under Article
2.1 are the same as those developed in support of its claim under Article 2.4 of the Anti -Dumping
Agreement. In our view, they are not sufficient to establish what Morocco's obligations are under
Article 2.1, or how these obligations were violated on account of the error made by MIICEN in the
choice of mathematical formula for calculating the margin of dumping.
7.2.2.2.3 Conclusion on the mathematical formula
7.184. In view of the foregoing, we therefore conclude that Tunisia has demonstrated that Morocco
violated Article 2.4 of the Anti-Dumping Agreement by using an erroneous mathematical formula to
calculate the margin of dumping of the Tunisian exporters. We also conclude, however, that Tunisia
has failed to demonstrate any violation of Article 2.1 of the Anti-Dumping Agreement.
7.3 Tunisia's claims regarding the determination of injury
7.185. In this dispute, Tunisia criticizes several aspects of the determination of injury by the
Moroccan investigating authority. According to Tunisia, MIICEN acted inconsistently with:
a. Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing to objectively analyse the
volume of imports relative to the domestic production and consumption of exercise
books225;
b. Articles 3.1 and 3.2 of the Anti -Dumping Agreement by erroneously and non -objectively
analysing the effects of imports on the price of domestic exercise books; and
c. Articles 3.1 and 3.4 of the Anti -Dumping Agreement by failing to objectively analyse the
economic situation of the Moroccan industry.
7.186. First, we analyse the claim concerning the effects of Tunisian imports on prices and address
the other two claims in turn in the following sections.
7.3.1 Whether MIICEN examined the effects of imports on the price of the domestic
product in a manner incon sistent with Article 3.1 and the second sentence of Article 3.2
of the Anti-Dumping Agreement
7.3.1.1 Introduction
7.187. As part of this claim, Tunisia challenges MIICEN's findings on the effects of Tunisian imports
of exercise books on the prices of the domestic produc t. M IICEN's report on the definitive
determination states:
The dumped imports of exercise books originating in Tunisia had a significant effect on
the prices of the locally manufactured exercise book in terms of undercutting, significant
price depression and price suppression of locally manufactured exercise books.226

223 Para. 7.57.
224 Appellate Body Report, US - Zeroing (Japan), para. 140; Panel Report, Ukraine - Ammonium Nitrate,
para. 7.120.
225 At the first hearing, Tunisia clarified that it was making two separate claims under Articles 3.1 and
3.2 of the Anti-Dumping Agreement. One of the claims relates to the analysis of the volume of imports relative
to production and domestic consumption, while the other addresses certain aspects of the examination of the
effects of imports on the price of the domestic product. However, Tunisia would like the Panel to address the
three price effects referred to in Article 3.2 and to make findings on each of these effects. (Tunisia's response
to Panel question No. 3.2 at the first meeting of the Panel)
226 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180. (emphasis added)

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7.188. Tunisia's claim is thus divided into three parts : t he "erroneous" and non -objective
examination of price undercutting, price depression and price suppression.
7.189. Below, we address these three grievances outlined by Tunisia.
7.3.1.2 Analysis
7.3.1.2.1 Applicable requirements of Article 3.1 and the second sentence of Article 3.2 of
the Anti-Dumping Agreement
7.190. Article 3.1 of the Anti-Dumping Agreement provides:
A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these imports on domestic producers
of such products.
7.191. Article 3.1 requires a determination of injury to be based on positive evidence and involve
an objective examination . T he term "positive evidence" in Article 3.1 refers to "the f acts
underpinning and justifying the injury determination" and relates to "the quality of the evidence that
[an investigating authority] may rely upon in making a determination".227 The word "positive" means
that the "evidence must be of an affirmative, objective and verifiable character, and ... credible".228
7.192. The term "objective examination", on the other hand, is concerned with the investigative
process itself, i.e. "the way in which the evidence is gathered, inquired into and, subsequently,
evaluated".229 In order to qualify as "objective", the investigative pr ocess must "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".230 Moreover, to conduct an objective examination, the authority must
take into account conflicting evidence and plausible explanations that may contradict its own
hypotheses.231
7.193. The Anti-Dumping Agreement does not establish a specific period or any guidance for the
selection of the period of injury data collection . However, regardless of the period selected, the
investigating authority must ensure that its examination of the data from the selected period is
objective and based on positive evidence.
7.194. The second se ntence of Article 3.2 of the Anti -Dumping Agreement provides for an
examination by the investigating authority of the effects of imports on the price of the like product:
With regard to the effect of the dumped imports on prices, the investigating authorities
shall consider whether there has been a significant price undercutting by the dumped
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 prevent price increases, which otherwise would have occurred, to a significant
degree. No one or several of these factors can necessarily give decisive guidance.
7.195. Article 3.2 refers to three types of price effects that are separated by the words "or" and
"otherwise". The use of the word "or" indicates, in our view, that the investigating authority may
rely on one of the three price effect inquiries to meet the requirements of this provision . Moreover,

227 Appellate Body Report, US - Hot-Rolled Steel, paras. 192 and 193.
228 Appellate Body Report, US - Hot-Rolled Steel, para. 192. See also Appellate Body Report,
China ‒ GOES, para. 126.
229 Appellate Body Report, US - Hot-Rolled Steel, para. 193.
230 Appellate Body Report, US - Hot-Rolled Steel, para. 193. See also Appellate Body Report,
China ‒ GOES, para. 126.
231 Panel Report, Pakistan — BOPP Film (UAE), para. 7.258. See also Appellate Body Report,
US - Softwood Lumber VI (Article 21.5 - Canada), para. 97.

BCI redacted, as indicated [[***]]

this Article does not impose specific methodologie s for this examination, and the Appellate Body
considered that the investigating authority had a measure of discretion in this regard.232
7.196. However, Article 3.1 and the second sentence of Article 3.2, read together, require the
authority to conduct an objective examination based on positive evidence. Furthermore, these three
types of effects describe separate economic mechanisms, which require separate evidence to be
proven. Therefore, a price effect examination requires an investigating authority to take into account
the differences between the three price effects, as the elements relevant to the consideration of
significant price undercutting differ from those relevant to the consideration of significant price
depression and suppression .233 For this reason, we do not agree with Morocco's cross -cutting
argument that "[p]rice undercutting, price depression and price suppression [are not] … set in stone
or immune to change" and "Article 3.2 does not identify three separate categories of price analysis,
each with its own separate basket of evidence".234
7.197. Thus, the price undercutting examination provided for in the second sentence of Article 3.2
must establish a "link between the price of subject imports and that of like domestic products" .235
This inquiry requires a "d ynamic assessment of price developments and trends in the relationship
between the prices of the dumped imports and those of domestic like products over the entire period
of investigation (POI)".236 This means that the investigating authority cannot conduct this analysis
"by a static examination of whether there is a mathematical difference at any point in time during
the POI without any assessment of whether or how these prices interact over time".237 At the same
time, price depression and price suppression inquiries are intended to determine whether the
dumped imports have "explanatory force" for the occurrence of such price effects.238
7.198. Whether a price effect qualifies as "significant" depends on the evidence before the authority,
how long the observed effect has been taking place and to what extent, as well as the relative
market shares of the products.239 In another dispute settlement proceeding, it was found that "[i]n
all cases, an investigating authority must, pursuant to Article 3.1, objectively examine all positive
evidence, and may not disregard relevant evidence suggesting that prices of dumped imports have
no, or only a limited, effect on domestic prices".240
7.199. Bearing these considerations in mind, we shall proceed to examine MIICEN's determination
regarding the effects of imports on prices.
7.3.1.2.2 Was MIICEN's consideration of price undercutting consistent with Articles 3.1
and 3.2 of the Anti-Dumping Agreement?
7.200. Tunisia's first grievance concerns the consideration of significant price underc utting of
Tunisian exercise books in relation to the price of Moroccan exercise books.
7.201. In the present case, Tunisia takes issue with the investigating authority for having:
a. compared the price of Tunisian exercise books with a notional ("reconstructed") pri ce of
Moroccan exercise books;
b. reconstructed this notional price on the erroneous basis of the profit margin of Tunisian
exporters; and
c. based its consideration on a single year rather than the entire period of investigation.241

232 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.233.
233 Appellate Body Report, China - GOES, para. 137.
234 Morocco's second written submission, paras. 202 and 203; response to Panel question No. 3.17,
para. 57.
235 Appellate Body Report, China - GOES, para. 136.
236 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.159.
237 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.160.
238 Appellate Body Report, China - GOES, para. 136.
239 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.161.
240 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.161.
241 Tunisia's second written submission, para. 4.44.

BCI redacted, as indicated [[***]]

7.202. We begin by recalling the fac ts as they appear in the record and we will consider the
arguments of the parties with regard to the relevant obligations under Articles 3.1 and 3.2.
7.203. The record shows that MIICEN did not find any price undercutting when comparing the price
of the imported Tunisian exercise books with the prices reported by Moroccan producers . MIICEN,
however, considered that the prices reported by Moroccan producers were not profitable, because
of import pressure on prices 242, and therefore should be replaced, for the purpos es of considering
price undercutting, by a target selling price . Thus, the authority "reconstructed" the price of the
domestic product by including a profit margin of 15% to 25%, based on the profit margin made by
the Tunisian exporters in their domestic market.243
7.204. Tunisia's first argument concerning the price undercutting examination is that the selection
of a notional price is "contrary to the very nature of the concept of 'price undercutting' under Article
3.2, which relates to a comparison between two ac tual prices". It specifically contests the fact that
the constructed price of the domestic product was not the actual price charged in the Moroccan
market by the domestic industry, but rather, a hypothetical price based on a scenario in which there
were no dumped imports.244 Tunisia argues that the authority "had already reached its conclusion
on the effects of imports on the price of the domestic product" before conducting its price
undercutting analysis.245 It also recalls that, in other dispute settlement proceedings, it was found
that the price undercutting inquiry required "a dynamic assessment of price developments and
trends in the relationship between the prices of the dumped imports and those of domestic like
products over the entire period of investigation (POI)".246
7.205. Morocco responds that Article 3.2 does not refer to the "actual" price.247 It also asserts that,
in the particular scenario where sales of the domestic product are made at a loss, Article 3.2 allows
the investigating authority to reconstruc t this price at the profitable level, for the purposes of the
price undercutting analysis .248 To support this argument, Morocco draws our attention to the
distinction that Article 2.2.1 of the Anti -Dumping Agreement makes between profitable and
non-profitable prices . T his provision allows the investigating authority to disregard certain
non-profitable transactions in the calculation of normal value.249
7.206. We do not agree with Morocco on this point.
7.207. In our view, even if Article 2.2.1 allows the investigating authority to exclude sales not being
made in the ordinary course of trade from the construction of normal value because of their price,
this provision applies to the determination of dumping and not to the determination of injury . As
Tunisia points out, the price comparison in the price undercutting analysis is different from the price
comparison in the margin of dumping calculation.250 Furthermore, Article 2.2.1 sets out strict
conditions for disregarding unprofitable sales in determining normal value : these sales "may be
disregarded in determining normal value only if the authorities determine that such sales are made
within an extended period of time in substantial quantities and are at prices which do not provide
for the recovery of all costs within a reasonable period of time".251 As the possibility of disregarding
certain sales, because of their prices, is explicitly and conditionally established in the very specific

242 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 134.
243 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 136.
244 Tunisia relies on Canada's assertion that "an examination of significant price undercutting should be
based on actual prices, and not on hypothetical prices based on a scenario in which there are no dumped
imports." (Tunisia's second written submission, para. 4.49 (quoting Canada's third-party written submission,
para.10)) See also Tunisia's first written submission, para. 6.39 ("the purpose of adjustments cannot be to
completely replace actual prices") and para 6.42.
245 Tunisia second written submission, para. 4.51. Canada agrees and considers that "while the analysis
under Article 3.2 is aimed at determining whether the dumped imports are causing injury through their price
effects, the method of constructing a target price presupposes that imports have such effects." (Canada's
third-party written submission, para. 11 (emphasis original))
246 Tunisia's first written submission, para. 6.35 (quoting Appellate Body Reports, China - HP-SSST
(Japan) / China - HP-SSST (EU), para. 5.159). See also Tunisia's second written submission, para. 4.47.
247 Morocco's first written submission, paras. 127 and 131; second written submission, para. 199.
248 Morocco's first written submission, para. 130; opening statement at the first meeting of the Panel,
paras. 89 and 92; and second written submission, paras. 199, 200 and 208.
249 Morocco's second written submission, para. 200.
250 Tunisia's opening statement at the second meeting of the Panel, para. 5.4.
251 Fns omitted.

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context of constructing normal value, we do not think that such discretion may be presumed in the
context of the price undercutting examination.
7.208. However, although Article 3.2 does not refer to "actual" prices, the context of this article
provides useful guidance as to the nature of the prices to be used for the undercutting examination.
First, Article 3.1 of the Anti -Dumping Agreement provides that a determination of injury shall be
based on an objective examination of "the effect of the dumped imports on prices in the domestic
market for like products".252 As price undercutting is one of these effects, this provision indicates
that, in its Article 3.2 analysis, the investigating authority must examine prices that are related to
the domestic market conditions of the importing Member, i.e. the actual prices charged and not
hypothetical prices . S econd, with regard to the prevention of price increases, the investigating
authority must consider whether the effect of the dumped imports is "otherwise to prevent price
increases, which otherwise would have occurred, to a significant deg ree".253 The use of the
conditional in this passage (in italics) suggests that the authority may have recourse to a
counterfactual analysis of the domestic prices that would have been charged in the absence of
dumped imports . T herefore, the possibility of r ecourse to a counterfactual analysis is expressly
provided for in the text of the Agreement . But, as noted by Canada, such terms are not used in
relation to the undercutting examination254, and thus the wording of Article 3.2 regarding the price
undercutting analysis does not permit the construction of a target price for the domestic product.255
7.209. Lastly, we recall that Articles 3.1 and 3.2 require the investigating authority to examine the
"effects" of imports on the price of the domestic product in order to b e able to subsequently
determine whether such imports are causing injury to the domestic industry by means of these
effects. In the light of this objective, we agree with Tunisia's argument that "if the investigating
authority constructs the price of the d omestic product, it will no longer be possible to identify the
'effect' that imports actually [ sic] have on the price of the domestic product using the resulting
ratio".256 This confirms the interpretation that the investigating authority must examine the p rices
of the domestic product that are actually charged in the market and not hypothetical prices.257
7.210. We therefore find that MIICEN's price undercutting analysis, based on the comparison of the
price of Tunisian imports and the constructed price of the domestic product, does not meet the
requirements of Article 3.2 of the Anti-Dumping Agreement.
7.211. We recall that Tunisia raises a second argument regarding the construction of this target
selling price: it considers that MIICEN "improperly" used the Tunisian exporters' profit margin to
attribute it to Moroccan producers, on the grounds that it was "legitimate for Moroccan producers to
be able to aspire to the same level of profit [as] their Tunisian counterparts in their domestic
market".258 In the light of our finding that MIICEN's price undercutting analysis, based on the
comparison of the price of Tunisian imports and the hypothetical price of the like product, was not
consistent with Article 3.2 of the Anti-Dumping Agreement, we consider that it is not necessary for
us to address this argument from Tunisia separately.259
7.212. The third argument raised by Tunisia concerning the price undercutting examination refers
to the period of time during which the examination was conducted . The record indicates that this
examination only concerned the period from 1 May 2016 to 3 1 April 2017, while the injury
investigation period was spread over four years and four months.260 Tunisia's first grievance is that
this examination over a year is not sufficient to make a "dynamic assessment of price developments

252 Emphasis added.
253 Emphasis added.
254 Canada's third-party written submission, para. 10.
255 See also European Union's third-party written submission, para. 105.
256 Tunisia's first written submission, para. 6.40.
257 We note that Canada and the European Union agree with Tunisia that the practice of reconstructing
the price of domestic producers is not consistent with the notion of price undercutting. (Canada's third-party
written submission, paras. 9-11; European Union's third-party written submission, paras. 103-105)
258 Tunisia's first written submission, paras. 6.48 and 6.49 (quoting the report on the definitive
determination (Exhibit TUN-7), para. 140).
259 Tunisia's first written submission, paras. 6.48-6.54; second written submission, paras. 4.64-4.72.
Tunisia admits that a finding regarding the construction of the price of the domestic product in its favour would
render unnecessary a finding regarding the selection of the profit margin for the purposes of constructing the
price of the domestic product. (Tunisia's response to Panel question No. 3.18, paras. 139 and 140)
260 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 29 and 145.

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and trends".261 It recalls that in another dispute settlement proceeding, the Appellate Body found
that an inquiry into price undercutting could not be limited to a "static examination of whether there
is a mathematical difference at any point in time during the POI without any assessment of whether
or how these prices interact over time".262
7.213. Morocco argues that the investigating authority "conducted a more deeply dynamic analysis
by examining all the evidence before it and recogni zing that price effects over a long period are
necessarily fluid".263 Morocco also explains that MIICEN did not try to link the price effects observed
in the market to the "immutable categories" in the second sentence of Article 3.2.264
7.214. We note that MIICEN's undercutting examination was in fact limited to finding an
undercutting margin of 11.24 %, by comparing the constructed price of the domestic product
(index 100) to the price of the imported Tunisian exercise book (index 89.89) for the period from
1 May 2016 to 30 April 2017. This comparison formed the basis of its conclusion that "the dumped
imports of exercise books originating in Tunisia had a significant effect on the prices of the locally
manufactured exercise book in terms of undercutting" .265 MIICEN's reasoning therefore does not
demonstrate any analysis of price "trends in the relationship between the prices of the dumped
imports and those of domestic like products", including whether import and domestic prices are
moving in the same or contrary direc tions. I t is well established that finding a "mathematical
difference" between import prices and domestic prices does not meet the requirements of Article 3.2
regarding the price undercutting examination .266 We agree with this interpretation . Therefore, we
find that MIICEN did not examin e price undercutting in a manner consistent with Article 3.2 of the
Anti-Dumping Agreement, by disregarding price trends and focusing only on a comparison between
a single constructed price of the domestic product and the price of the imported product.
7.215. Tunisia further considers that the inconsistency between the injury investigation period and
the period used for the price undercutting examination does not satisfy the requirements of
Articles 3.1 and 3.2 .267 Tunisia emphasizes that MIICEN selected the investigation period from
1 January 2013 to 3 0 April 2017 for the injury investigation .268 However, when analysing price
undercutting, MIICEN took only the last 12 months of the investigation period into consideration
without explaining this inconsistency.269
7.216. We note that the title of Article 3 "Determination of Injury" and the wording of Article 3.5
("[i]t must be demonstrated that the dumped imports are, through the effects of dumping, as set
forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement") 270 confirm that
consideration of price effects is one of the steps in the determination of injury. As Tunisia recalls271,
this inquiry is part of a "logical progression ... leading to an investigating authority's ultimate injury
and causation determination".272 Therefore, in order to determine whether imports cause, through
the effects of dumping (including price effects) injury, the effects analysed must, in principle, relate
to the period selected for the examination of the economic situation of the domestic industry.
7.217. The record shows that MIICEN indicated that the period from 1 January 2013 to
30 April 2017 was the period of data collection for the purposes of the injury assessment 273;
however, it made the price comparison for the purposes of the price undercutting analysis only on
the basis of the last 12 months of that period . For the reasons outlined above, we consider that
MIICEN failed to conduct an objective examination, as it selecte d a different period of price

261 Tunisia's first written submission, para. 6.44.
262 Tunisia's first written submission, para. 6.44 (quoting Appellate Body Reports, China - HP-SSST
(Japan) / China - HP-SSST (EU), para. 5.160).
263 Morocco's opening statement at the first meeting of the Panel, para. 84. (emphasis original)
264 Morocco's opening statement at the first meeting of the Panel, paras. 86 and 91-96.
265 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
266 Appellate Body Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.160.
267 Tunisia's response to Panel question No. 3.14, paras. 134 and 138. See also Tunisia's response to
Panel question No. 3.19, paras. 146-148.
268 Tunisia's response to Panel question No. 3.14, paras. 135-136.
269 Tunisia's responses to Panel questions No. 3.14, paras. 136-137; No. 3.20, para. 151.
270 Emphasis added.
271 Tunisia's response to Panel question No. 3.14, paras. 134 and 137 (referring to Appellate Body
Report, China - GOES, para. 128).
272 Appellate Body Report, China - GOES, para. 128.
273 Report on the definitive determination, para. 29 (Exhibits TUN-7, MAR-1). MIICEN examined several
injury indicia, as well as price depression and price suppression over a period of four years and four months.

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undercutting analysis from the one used for the rest of the injury analysis and did not show good
cause in its report for selecting a different period.274
7.218. We note that, according to Morocco, when the price effects analysis period is the same as
the dumping analysis period, there is a presumption of conformity with the requirements of
Article 3.1.275 In this regard, MIICEN noted that "[w]ith regard to the undercutting assessment, the
Ministry made a comparison, for the period from May 2016 to April 2017, corresponding to the
margin of dumping determination period".276
7.219. In order to assess whether a presumption of conformity is created when the periods of price
undercutting analysis coincides with the period of dumping analysis, we find Mexico - Anti-Dumping
Measures on Rice to be relevant, as the respondent in that case raised a similar argument to justify
the selection of the period of injury analysis. W e recall that the Appellate Body rejected this
argument, noting that the determinations of dumping and injury are not "integrated" and that "these
determinations are two separate operations relying on distinct data seeking to determine differen t
things".277 Another panel also expressed the view that the Anti-Dumping Agreement does not contain
any rule as to the relationship between or overlap of the period of dumping analysis and the period
of injury analysis.278 We share this view. Nothing in the text of the Anti-Dumping Agreement requires
the period of undercutting and the period of dumping analysis to coincide . M oreover, the
Anti-Dumping Agreement does not establish a presumption of conformity should the two periods
overlap.
7.220. We note that, becaus e it limited itself to a one -year period, MIICEN did not consider the
evidence of the interaction between domestic and import prices over the period of four years and
four months that had been placed on the record.279 Moreover, those data indicated that the price of
imports was higher than the price of the domestic product between 2014 and 2016 . In the light of
these facts, we agree with Tunisia 280 that, because of the inconsistent selection of the price
undercutting examination period, MIICEN disregarded cer tain evidence that did not support its
conclusion.
7.221. Morocco also draws the Panel's attention to the fact that "in practice, the authority
systematically takes a period of more than three years to assess injury indicators and factors, except
for undercutting "281 and that "the period selected is defined in a pre -existing rule" (Decree
No. 2-12-645).282 Even if the selection of the undercutting examination period was not arbitrary,
this selection creates a doubt as to whether the undercutting analysis conducted over the 12-month
period can serve as a valid basis for the final determination of injury, for which most of the factors
were examined over a period of four years and four months . The fact that MIICEN's actions are
based on a pre -existing rule th erefore does not address the lack of objectivity resulting from the
inconsistency between the periods selected for the purposes of investigating injury.283
7.222. For the reasons set out above, we find that MIICEN's analysis fails to reflect an objective
examination of price undercutting under Article 3.1 and the second sentence of Article 3.2 of the
Anti-Dumping Agreement.

274 We note that a panel has ruled on a similar topic:
[T]here is a prima facie case that an investigating authority fails to conduct an "objective" examination
if it examines different injury factors using different periods. Such a prima facie case may be rebutted if
the investigating authority demonstrates that the use of different periods is justifiable on the basis of
objective grounds (because, for example, data for more recent periods was not available for certain
injury factors).
(Panel Report, Argentina - Poultry Anti-Dumping Duties, para. 7.283)
275 Morocco's response to Panel question No. 3.15(b), para. 40.
276 Emphasis added.
277 Appellate Body Report, Mexico - Anti-Dumping Measures on Rice, para. 183.
278 Panel Report, EC - Tube or Pipe Fittings, para. 7.320.
279 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148 and 191.
280 Tunisia's comments on Morocco's response to Panel question No. 3.15(b), paras. 76 and 77.
281 Morocco's response to Panel question No. 3.16, paras. 46 and 47.
282 Morocco's response to Panel question No. 3.15(b), para. 41.
283 We note that the provisions of Decree No. 2-12-645 have not been challenged before us and are
therefore not ruling on their conformity with the Anti-Dumping Agreement. Our findings are limited to MIICEN's
decision to examine the existence of price undercutting during the period from May 2016 to April 2017 in the
anti-dumping investigation in this case.

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7.3.1.2.3 Was MIICEN's examination of price depression objective and based on positive
evidence?
7.223. The second aspect of the examination of the effect of import prices on the price of domestic
exercise books criticized by Tunisia concerns MIICEN's consideration of price depression.
7.224. First, we note that Morocco requests that we exercise judicial economy for Tunisia's
grievances regarding significant price suppr ession and price depression should we find that the
authority conducted a proper price undercutting analysis.284 In the previous section, we concluded
that MIICEN's price undercutting examination did not meet the requirements of Article 3.2 . As the
condition for Morocco's request has not been met, we shall proceed to assess MIICEN's determination
regarding the other price effects.
7.225. In the present case, Tunisia takes issue with MIICEN for having:
a. used a distorted factual basis when considering whether price de pression existed to a
significant degree285; and
b. failed to sufficiently explain how imports had the effect of decreasing the price of Moroccan
exercise books, when the price of imports increased.286
7.226. For Tunisia, MIICEN's conclusion that "significant" price depression exists is therefore not
based on an objective examination and positive evidence within the meaning of Articles 3.1 and 3.2
of the Anti-Dumping Agreement.287
7.227. The record shows that MIICEN conducted its price depression examinati on on the basis of
the data presented in the table below288:
Table 1
(Index 2013 = 100)
 2013 2014 2015 2016 2016
(Jan-April)
2017
(Jan-April)
Average unit selling price of
the domestic industry
(Dhs/tonne)
100 99.11 98.53 98.31 93 94
Source: Report on the definitive determination (Exhibits TUN-7, MAR-1), para.148.
7.228. The report on the definitive determination thus concludes that:
The average selling price charged by the domestic industry remained at a very low level
without being able to rise to satisfactory levels . In index terms, this price was 100 in
2013 and then decreased to 94 during the first four months of 2017.289
7.229. The report attributes this decline in prices to pressure from imports, because "domestic
producers of exercise books are forced to constantly match the low prices on the market offered by
the competition, who are primarily importers of Tunisian exercise books" .290 The record also shows
that, starting from a comparable level in 2013, the price of exercise books, respectively, decreased
(for Moroccan exercise books) and increased (for exercise books imported from Tunisia) between
2014 and 2016.291
7.230. Tunisia argues, first, that MIICEN used a distorted factual basis to consider whether price
depression existed to a significant degree. According to Tunisia, this analysis is inconsistent with

284 Morocco's first written submission, paras. 147, 148 and 167; second written submission, para. 188.
285 Tunisia's first written submission, paras. 6.58-6.63 and 6.69; second written submission, paras.
4.75-4.87.
286 Tunisia's first written submission, paras. 6.64-6.69; second written submission, paras. 4.88-4.92.
287 Tunisia's first written submission, para 6.63.
288 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 148.
289 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 146.
290 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), para. 147.
291 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148 and 191.

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Articles 3.1 and 3.2 of the Anti -Dumping Agreement, insofar as MIICEN simply "compare[d] the
selling price of the domestic product from 2013 to its price from the first four months of 2017" 292,
which "accentuate[d] the fall in the price" by finding a 6% drop, when the price decrease observed
between 2013 and 2016 was only 1.69%.293 Tunisia notes that, although the price for the whole of
2016 is signific antly higher than the price for the period January -April 2016, MIICEN disregarded
what appears to be a seasonal fluctuation in prices during the first months of the year and failed to
ensure that the data for the four-month period could be compared with those for the full year.294
Lastly, Tunisia argues that MIICEN should have examined the price trends for the four full years to
conclude whether the price depression could be characterized as "significant".295
7.231. Morocco responds that MIICEN found , in a "holistic " manner, that the impact of the three
price effects under Article 3.2 was significant .296 We note, however, that contrary to Morocco's
assertions, it is clear from the report on the definitive determination that MIICEN did not examine
the three price effec ts in a holistic manner, but rather, addressed these three effects in separate
sections.297 Moreover, even if the authority did not describe the price depression as " notable"
("significant"), it used the French synonym " importante"298, confirming that MIICEN implicitly
examined whether price depression existed "to a significant degree", as stated by Tunisia.299
7.232. With regard to the factual basis for this examination, like Tunisia300, we observe that, to find
a decline in the price of the domestic product, the investigating authority relied on a comparison
between an index of "100 in 2013 [that] decreased to 94 during the first four months of 2017" .301
As MIICEN'S only finding regarding movements in domestic prices during the period 2013-2017, we
agree with Tunisia that this finding served as a basis for MIICEN's conclusion of "importante"
("significant") price depression .302 However, the data for an entire year usually provide a more
accurate picture of the situation than the data for part of the year.303 In this case, the data available
to MIICEN showed a significant difference between the price index for the whole of 2016 and the
price index for the first four months of 2016 (98.31 compared to 93). We therefore consider that an
objective and unbiased authority should at least have explained why, notwithstanding the price
difference between the full year and the first four months of the year, the data for four months (in
2017) compared with the data for entire years could be decisive in judg ing the magnitude of price
depression. Yet, we do not find any discussion on this point in MIICEN's report on the definitive
determination.
7.233. We recall that Tunisia also considers that instead of focusing on an end -point-to-end-point
analysis (2013 and the f irst four months of 2017), MIICEN should have examined the price trends
during the four full years in order to conclude whether the price depression could be characterized
as "significant" .304 Morocco responds that the authority observed a downward trend in prices
throughout the period of data collection and was not limited to an end-point-to-end point analysis.305
We understand that Tunisia specifically criticizes the fact that the authority failed to examine the
magnitude of the price decline during the per iod of investigation. The record indicates that MIICEN
found a gradual decline in the prices of Moroccan exercise books throughout the period of
investigation306, without addressing the magnitude of this decline . However, it also shows that the
price decline was, at most, only 1.69% during the four full years between 2013 and 2016 . MIICEN
nevertheless disregarded those data and instead chose, without explaining why, to substantiate its

292 Tunisia's second written submission, para. 4.86; response to Panel question No. 3.12, para. 126.
293 Tunisia's first written submission, paras. 6.59 and 6.61; second written submission, para. 4.86.
294 Tunisia's first written submission, para. 6.60; response to Panel question No. 3.12, para. 126.
295 Tunisia's first written submission, paras. 6.61 and 6.62; second written submission, paras. 4.82 and
4.83; and response to Panel question No. 3.10, paras. 113 and 114.
296 Morocco's first written submission, paras. 154 and 155.
297 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 128-150.
298 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
299 Tunisia's second written submission, paras. 4.77 and 4.78.
300 Tunisia's second written submission, paras. 4.78 and 4.86.
301 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 146.
302 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
303 02 The Appellate Body noted, in a slightly different context, that " examining data relating to the
whole year would result in a more accurate picture of the 'state of the domestic industry' than an examination
limited to a six-month period". (Appellate Body Report, Mexico - Anti-Dumping Measures on Rice, para. 183)
304 Tunisia's first written submission, paras. 6.61 and 6.62; second written submission, paras. 4.82 and
4.83; and response to Panel question No. 3.10, paras. 113 and 114.
305 Morocco's first written submission, paras. 156 and 157.
306 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 146 and 147.

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conclusion of "importante" price depression on the basis of an end -point-to-end-point comparison
of the period of investigation . In our view, this approach undermines the objectivity of MIICEN's
analysis of whether price depression existed to a significant degree.
7.234. We now turn to Tunisia's second argument concerning the price depression examination. In
view of the "opposite" trend in the respective prices of Moroccan exercise books and exercise books
imported during the period, Tunisia considers that "Tunisian imports" had no "explanatory force" for
the fall in the price of the domestic product and that, therefore, MIICEN was not in a position to find
that price depression was the result of "'the effect' of Tunisian imports".307
7.235. The investigation record confirms that the prices of Tunisian exercises books were higher
than those of the exercise books produced by the Moroccan industry between 2014 and the first four
months of 2017.308 While the price of imports increased (in comparison to 2013) in 2014, 2015 and
2016, the price of the domestic product decreased during the same period.309 Thus, not only were
the prices of the Tunisian product higher than the price of the domestic like product, but they also
followed an opposite trajectory.310 Although this evidence was available to the authority, the price
depression section of the report does not contain any analysis of these data. We recall that MIICEN
found that "domestic producers of exercise books [were] forced to constantly match the low prices
on the market offered by the competition, who [were] primarily importers of Tunisi an exercise
books"311, but did not explain how this conclusion was consistent with the data on the pricing of
Tunisian exercise books. Moreover, MIICEN failed to explain how imports would have had the effect
of depressing prices when import prices were higher than the price of the domestic like product. On
this point, we agree with two previous panels, which considered that such a situation could create a
doubt as to the impact of imports on domestic prices and therefore required an explanation from
the authority.312 We therefore consider that by disregarding this evidence that could contradict its
conclusions, MIICEN failed to conduct an objective examination of whether the dumped imports of
Tunisian exercise books had the effect of depressing the prices of d omestically produced exercise
books.
7.236. We therefore consider that by disregarding certain evidence on the magnitude of the decline
in the prices of the domestic product and the interaction between the prices of the domestic and the
Tunisian product, MIICEN f ailed to consider objectively whether price depression existed to a
significant degree, as required by Article 3.1 and the second sentence of Article 3.2 of the
Anti-Dumping Agreement.
7.3.1.2.4 Was MIICEN's consideration of price suppression objective and based on
positive evidence?
7.237. The third and final aspect of the examination of the effect of import prices on the price of
domestic exercise books criticized by Tunisia concerns the objectivity of the examination of price
suppression within the meaning of Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
7.238. In the present case, Tunisia takes issue with MIICEN for both:
a. having used a distorted factual basis when considering whether there had been significant
price suppression313; and
b. not having analysed in an objective manner whether the price suppression observed was
due to imports.314

307 Tunisia's first written submission, para 6.68. (original emphasis)
308 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148, 149 and 191.
309 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 148 and 191.
310 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148, 149 and 191.
311 Emphasis added.
312 Two previous panels considered that the investigating authority should have provided an explanation
of how it had concluded that there was price depression in a situation where the prices of the dumped imports
were higher than the price of the domestic like product. (Panel Reports, China - Cellulose Pulp, para. 7.86;
China - Autos (US), para. 7.272)
313 Tunisia's first written submission, paras. 6.74, 6.77 and 6.78; second written submission, paras.
4.96-4.103.
314 Tunisia's first written submission, paras. 6.80-6.84; second written submission, paras. 4.104-4.108.

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7.239. We address these two arguments in turn below.
7.240. In its first line of argumentation, Tunisia claims that MIICEN chose a distorted factual basis
for assessing whether the observed increase in the ratio between the cost of production and the
selling price of the domestic product was "to a significant degree".315
7.241. In Morocco's view, this argument by Tunisia falls outside the scope of the claim made in
paragraph B.7.c. of the panel request.316 We recall that this paragraph reads as follows:
[T]he analysis regarding the depression of sales prices and the prevention of price
increases is not based on positive evidence and does not involve an objective
examination.317
7.242. In this regard, Morocco notes that Tunisia's arguments concerning the characterization of
10% and 3% values as "significant" raise a question of interpretation of the word "significant",
whereas Tunisia's claim in the panel request is limited to the issues of an objective examination and
positive evidence.318
7.243. We disagree with Morocco in this respect . A s in its price depression arguments, Tunisia
challenges the investigating authority's choice of factual basis for finding a "significant" increase in
the ratio between the cos t of production and the selling price of Moroccan exercise books .319 This
means that we should examine the objectivity of MIICEN's analysis of price suppression data . This
argument is therefore not outside the scope of the claim made in the panel request.
7.244. The investigation record shows that in its price suppression analysis, MIICEN relied on the
data in the table below. It found that the cost of production of the domestic product had increased
"from 100 in 2013 to 101 in 2016 and 103 in 2017", while the selling price of exercise books gradually
decreased from 2013 onwards . T he authority thus noted that the ratio between the cost of
production and the selling price of exercise books produced by the domestic industry increased "from
100 in 2013 to 110 in 20 17". This confirmed, in its view, "the presence in the domestic market of
pressure preventing the domestic industry from increasing its prices".320
Table 2
(Index 2013 = 100)
 2013 2014 2015 2016 2016
(Jan-April)
2017
(Jan-April)
Average cost of production
of the domestic industry
(Dhs/tonne)
100 102.26 98.76 101.24 103 102.81
Average selling price of
the domestic industry
(Dhs/tonne)
100 99.11 98.53 98.31 93 94
Unit margin -100 -917.86 -157.14 -862.5 -2693 -2388
Cost of production /
Selling price 100 104 101 103 111 110
Source: Report on the definitive determination (Exhibits TUN-7, MAR-1), para.149.
7.245. We note that the comparison of the index for the full year 2013 (100) with the index for the
first four months of 2017 (110) was MIICEN's only finding concerning the ratio between the cost of
production and the selling price of domestic exercise books . On this basis, MIICEN concluded that

315 Tunisia's first written submission, paras. 6.78 and 6.79; second written submission, paras. 4.95-
4.103.
316 Morocco's first written submission, paras. 163 and 164.
317 Tunisia's panel request, para. B.7.c. (emphasis added)
318 Morocco's first written submission, paras. 163 and 164.
319 Tunisia's first written submission, para. 6.78.
320 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 149.

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"dumped imports of Tunisian exercise books have had … the effect of ... preventing [price]
increase[s] to a significant degree".321
7.246. The above table shows that there were considerable variations in the ratio between the cost
of production and the selling price of Moroccan exercise books in 2016 (index 103 for the whole year
as opposed to index 111 during the January-April period). In Tunisia's view, this indicates that the
data for the four months of the year were unreliable as a basis for the definitive finding of significant
price suppression.322 Indeed, in our opinion, an objective and unbiased autho rity should have at
least addressed this difference between the full year and the first four months of the year and
explained why, notwithstanding this difference, the data for the four -month period could be
compared with the data for full years when examining the increase in the ratio between the cost of
production and the selling price of the exercise books . M IICEN's report on the definitive
determination does not, however, contain any discussion of this matter.
7.247. In this regard, Tunisia also considers that MIICEN failed to objectively analyse the trends in
the ratio between the cost of production and the selling price during the investigation period in order
to be able to assess whether prices were suppressed to a "significant" degree.323 As we have already
noted, Article 3.2 of the Anti -Dumping Agreement requires the investigating authority to consider
whether the effect of the dumped imports is to "prevent price increases, which otherwise would have
occurred, to a significant degree ".324 This means that the magnitude of the price suppression can
have consequences for the finding of this effect . We note, however, that MIICEN failed to examine
the evolution of the ratio between the cost of production and the selling price of exercise books
throughout the entire investigation period, and focused exclusively on comparing the data for 2013
and the first four months of 2017. The record shows that between 2013 and 2016 the annual increase
in the ratio between the cost of production and the selling price of exercise books was up to 4% (in
2014), while comparing the 2013 data with the data for the first four months of 2017 showed an
increase of 10%. MIICEN therefore chose to rely on the comparison of the 2013 data with the data
for the first four months of 2017, without explaining why this limited comparison was more relevant
than the trend over the four full years.325 This failure to examine the evolution of the ratio between
the cost of production and the selling price of exercise books throughout the enti re investigation
period, together with the absence of any explanation as to the choice of factual basis for finding
price suppression to a significant degree, reflects, in our view, a lack of objectivity.
7.248. We recall that Tunisia raises a second argument acc ording to which the facts gathered by
the investigating authority contradicted its assertion that the Tunisian imports were exercising
"pressure preventing the domestic industry from increasing its prices to a level that [would] enable
it to cover its production and selling costs".326 In particular, Tunisia highlights the analysis of trends
in the prices of the imports and the domestic product and the cost of production, which shows that
in three of the four years and four months of the investigation period "the price of the imports was
above the cost of production of the [domestic industry] which , in turn, was above the price of the
domestic product".327
7.249. We recall that consideration of price suppression requires the investigating authority to
consider whether this price effect is a consequence of subject imports .328 In another dispute
settlement proceeding, it was found that "an investigating authority may n ot disregard evidence
regarding elements that call into question the explanatory force of dumped imports for significant
price suppression".329 We note that the only paragraph in MIICEN's report dedicated to the analysis

321 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 150. (emphasis added)
322 Tunisia's response to Panel question No. 3.11, paras. 120 and 124.
323 Tunisia's first written submission, paras. 6.73-6.79 and 6.84; second written submission, paras.
4.94-4.103.
324 Emphasis added.
325 Morocco contends that "[w]hen an industry is not only unable to recover the increase in production
costs, but also sells at a loss over a long period of time, any price suppression is by definition significant".
According to Morocco, an increase of 3% is "clearly 'significant'". (Morocco's first written submission, paras.
165 and 166 (bold type and underlining original)) We note that this reasoning is not reflected in MIICEN's
report. Given our standard of review, we are unable to rely on this explanation.
326 Tunisia's second written submission, para. 4.108 (quoting the report on the definitive determination
327 Tunisia's second written submission, para. 4.107.
328 Appellate Body Report, China - GOES, para. 136. See also Appellate Body Report,
Russia - Commercial Vehicles, para. 5.53.
329 Appellate Body Report, Russia - Commercial Vehicles, para. 5.96.

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of price suppression does not mentio n Tunisian imports .330 Having concluded that the cost of
production and the ratio between the cost of production and the selling price of the domestic product
had increased, MIICEN asserted that this "indicate[d] the presence in the domestic market of
pressure preventing the domestic industry from increasing its prices to a level that [would] enable
it to cover its production and selling costs".331 Beyond that, MIICEN failed to examine whether this
price pressure stemmed from the Tunisian imports . At the same time, in the following paragraph,
the investigating authority found that the dumped imports of Tunisian exercise books had had the
"effect of ...preventing [price] increase[s] to a significant degree".332 This conclusion is therefore not
based on an objective analysis of the Tunisian imports' explanatory force for the price effect observed
by MIICEN.
7.250. The record shows that between 2014 and 2016 (i.e. for three years of a data collection period
of four years and four months), the price of the imports was above the domestic industry's cost of
production, which, in turn, was above the price of the domestic product .333 Nevertheless, MIICEN
did not examine the interaction among the price of the domestic product, the cost of production and
the price of the Tunisian imports, and did not explain why the domestic producers could not increase
their prices between 2014 and 2016, when the prices of Tunisian exercise books were higher than
the price of the domestic product and the cost of production of the domestic product.
7.251. In these circumstances, we believe that an objective and unbiased authority should not have
ignored the evidence that called into question the Tunisian imports' explanatory force for the price
suppression. We therefore conclude that MIICEN's analysis was inconsistent with Article 3.1 and the
second sentence of Article 3.2 of the Anti-Dumping Agreement.
7.3.1.3 Conclusion on the examination of the effects of imports on prices
7.252. On the basis of these elements, we find that MIICEN considered price undercut ting, price
depression and price suppression in a manner that was inconsistent with Article 3.1 and the second
sentence of Article 3.2 of the Anti-Dumping Agreement.
7.3.2 Whether MIICEN objectively considered the volume of Tunisian imports in relation
to domestic production and consumption of exercise books
7.253. Tunisia claims that MIICEN failed to consider objectively the volume of imports in relative
terms compared to production or consumption in Morocco .334 Morocco, for its part, requests the
Panel to either reject this claim335 or resort to the principle of judicial economy.336
7.254. In what follows, we consider whether resorting to the principle of judicial economy in relation
to this claim would be justified.
7.255. We recall that the investigating authority's consideration of the volume of the imports and
their price effects pursuant to Article 3.2 "is also subject to the overarching principles, under
Article[ ] 3.1 ..., that it be based on positive evidence and involve an objective examination".337 The
detailed requirements applicable to the investigating authority's consideration of the volume of the
imports are set out in the first sentence of Article 3.2 of the Anti-Dumping Agreement:
With regard to the volume of the dumped imports, the investigating authorit ies shall
consider whether there has been a significant increase in dumped imports, either in
absolute terms or relative to production or consumption in the importing Member.
7.256. Morocco contends, first of all, that since the examination under Article 3.1 and the first
sentence of Article 3.2 is disjunctive, after having considered the volume of imports in absolute

330 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 149.
331 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 149.
332 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 150.
333 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148, 149 and 191
(tables).
334 Tunisia's first written submission, paras. 6.16-6.33; second written submission, paras. 4.29-4.42.
336 Morocco's second written submission, para. 175.
337 Appellate Body Report, China - GOES, para. 130.

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terms, the authority was not required to consider an increase in volume in relative terms.338 Morocco
therefore requests the Panel to resort to judic ial economy with respect to this claim .339 Tunisia
responds that if a discretionary analysis serves as the basis for a conclusion of injury, it must meet
the requirements of Article 3.1 of the Anti-Dumping Agreement.340
7.257. We note that Article 3.2 does indeed provide for three alternative examinations of the
increase in imports (which can be assessed " either in absolute terms or relative to production or
consumption in the importing Member") and does not require the authority to conduct more than
one of these examinations.341 However, Article 3.1 requires that "[a] determination of injury ... be
based on positive evidence and involve an objective examination of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic market for like
products, and (b) the consequent impact of these imports on domestic producers of such products".
On its face, the obligation in Article 3.1 applies to the analysis of the volume of dumped imports and
does not distinguish between mandatory analyses and discretionary analyses that an authority may
undertake under Article 3.2. On the basis of this text, we agree with Tunisia's argument 342 that, if
the authority chose to undertake an analysis of the evolution of the volume of imports no t only in
absolute terms but also in relative terms and to base its conclusions on that analysis, the analysis
must comply with the requirements of Article 3.1 in its entirety.343
7.258. In the present case, MIICEN considered the volume of imports in three ways (i n absolute
terms, relative to consumption and relative to production)344 and reached its definitive conclusion of
material injury on the basis of, inter alia, its consideration of the volume of Tunisian imports in
relative terms.345 Thus, having chosen to un dertake this consideration and having relied in part
thereon in its definitive injury determination, MIICEN was required to comply with the requirements
of Articles 3.1 and 3.2 of the Anti-Dumping Agreement.
7.259. Morocco also contends that the Panel's findings regarding this claim would not be needed
"to resolve the dispute and [would be] of no relevance for the implementation of any DSB
recommendations".346 It should be recalled that Tunisia only contests the two considerations in
relative terms and does not adv ance any argument regarding the consideration of the volume of
Tunisian imports in absolute terms347 that also served as the basis for the investigating authority's
definitive conclusion of injury.348 Nevertheless, Tunisia explains that the finding regarding the
increase in imports in relative terms forms an integral part of the injury determination and that,
therefore, the Panel's finding on this issue "would have practical effects for resolving this dispute".349
7.260. We do not agree with Tunisia . Even if we upheld this claim by Tunisia, Morocco could, in
principle, rely, at the implementation stage, on the consideration of the volume of imports in absolute

338 Morocco's preliminary ruling request, paras. 50-53; second written submission, para. 173.
339 Morocco's second written submission, paras. 173, 175 and 176.
340 Tunisia's response to Morocco's preliminary ruling request, para. 8.5.
341 Emphasis added. The parties agree that Article 3.2 does not require consideration of the increase in
imports in absolute terms and in relative terms. (Morocco's first written submission, para. 14; preliminary
ruling request, para. 52 (referring to Panel Report, China - Cellulose Pulp, paras. 7.34-7.38); and Tunisia's
response to Morocco's preliminary ruling request, para. 8.5)
342 Tunisia's response to Morocco's preliminary ruling request, paras. 8.6-8.10; second written
submission, paras. 4.37 and 4.38.
343 We recall in this regard another panel's findings that the investigating authority was not required to
consider the volume of imports in relative terms, but by undertaking such an examination and relying thereon
for its injury determination, it was indeed subject to the requirements of Articles 3.1 and 3.2 of the Anti-
Dumping Agreement. (Panel Report, Pakistan - BOPP Film (UAE), para. 7.281)
344 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 110-125.
345 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 180 and 181. We note that
the indexed data on the volume of Tunisian exports compared to domestic production and consumption are
given in paragraph 123 of the non-confidential version of MIICEN's report. (Report on the definitive
determination (Exhibits TUN-7, MAR-1), para. 123) However, MIICEN's analysis in paragraphs 122-125 of the
report (in the confidential and non-confidential versions) is based on unindexed data from the confidential
version of MIICEN's report. (Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), para. 123)
346 Morocco's second written submission, para. 175.
347 Tunisia's response to Morocco's preliminary ruling request, fn 1.
348 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 180 and 181.
349 Tunisia's opening statement at the second meeting of the Panel, para. 4.4.

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terms, which has not been contested by Tunisia . F rom this perspective, our finding would not
contribute to resolving this dispute.
7.261. We recall that "[t]he practice of judicial economy ... allows a panel to refrain from making
multiple findings that the same measure is inconsistent with various provisions when a single, or a
certain number of findings of inconsistency, would suffice to resolve the dispute".350
7.262. In these proceedings, Tunisia contests both MIICEN's examination of the volume of imports
and the examination of the effects of imports on the prices of the domestic product . In an injury
determination, these two examinations are closely linked . Thus, Article 3.1 requires "an objective
examination of ... (a) the volume of the dumped imports and the effect of the dumped imports on
prices in the domestic market for like products" .351 Furthermore, Article 3. 2, which concerns the
examination of the effects of the imports on prices and the examination of the volume of imports,
explicitly states that "[n]o one or several of these factors can necessarily give decisive guidance" .
In view of this close relationship between the two examinations and the inconsistencies we have
found in the examination of the effects of imports on the prices of the domestic product, it is not
necessary for us to rule on this claim in order to resolve this dispute.
7.3.3 Whether MIICEN examined objectively the state of the domestic industry
7.3.3.1 Introduction
7.263. Tunisia claims that the investigating authority violated Articles 3.1 and 3.4 of the
Anti-Dumping Agreement by failing to conduct an objective analysis of the factors listed in Article
3.4.352
a. First, Tunisia contends that MIICEN ignored the fact that several factors had evolved
positively.353
b. Second, Tunisia criticizes the authority's decision to rely on the data from
January-April 2017 to find negative trends in the sales, market share and output of the
domestic industry, despite the positive trends in these factors between 2013 and 2016.354
c. Third, Tunisia argues that MIICEN failed to objectively examine the negative profitability
of the domestic industry.355
7.264. Morocco rejects this claim in its entirety.356
7.3.3.2 Analysis
7.265. We begin by briefly recalling the requirements of Articles 3.1 and 3.4 of the Anti -Dumping
Agreement before turning to the consideration of Tunisia's three arguments.
7.3.3.2.1 Applicable requirements of Articles 3.1 and 3.4 of the Anti-Dumping Agreement
7.266. Article 3.4 of the Anti-Dumping Agreement provides as follows:
The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices having
a bearing on the state of the industry, including actual and potential decline in sales,
profits, output, market share, productivity, return on investments, or utilization of
capacity; factors affecting domestic prices ; the magnitude of the margin of dumping ;

350 Appellate Body Report, Canada - Wheat Exports and Grain Imports, para. 133. (emphasis added)
351 Emphasis added.
352 Tunisia's first written submission, paras. 6.85-6.134; second written submission, paras. 4.110-4.154.
353 Tunisia's first written submission, paras. 6.99-6.106; second written submission, paras. 4.112-4.120.
354 Tunisia's first written submission, paras. 6.107-6.120; second written submission, paras. 4.121-
4.139.
355 Tunisia's first written submission, paras 6.121-6.132; second written submission, paras. 4.140-
4.152.
356 Morocco's first written submission, paras. 168-196; second written submission, paras. 213-241.

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actual and potential negative effects on cash flow, inventories, employment, wages,
growth, ability to raise capital or investments . This list is not exhaustive, nor can one
or several of these factors necessarily give decisive guidance.
7.267. This provision focuses on the state of the domestic industry 357 and lists 15 factors that are
to be evaluated by the investigating authority . It is apparent from the text of Article 3.4 that this
provision does not prescribe a particular methodology for the evaluation of, or weight to be attributed
to, the various factors .358 As stated in the last sentence of Article 3.4, the list of 15 factors is not
exhaustive, nor can one or several of these factors necessarily give decisive guidance . In the light
of this last sentence, several panels have held that Article 3.4 does not require all relevant factors,
or even a majority of them, to show negative developments in order for injury to be found.359
7.268. Since the first sentence of Article 3.4 requires an examination of the impact of dumped
imports on the domestic industry, the Appellate Body noted that Article 3.4 is concerned with "the
relationship between subject imports and the state of the domestic industry".360 In other words, the
investigating authority is required to examine "the 'explanato ry force' of subject imports for the
state of the domestic industry".361 However, under this provision, the investigating authority is "not
required to demonstrate that dumped imports are causing injury to the domestic industry, which is
an analysis specifically mandated by Article 3.5".362
7.269. The obligation set out in Article 3.4 must be read in the light of Article 3.1, which requires
that a determination of injury be based on positive evidence and involve an objective examination .
The Appellate Body has stated that these two provisions read together "instruct [ ] investigating
authorities to evaluate, objectively and on the basis of positive evidence, the importance and the
weight to be attached to all the relevant factors".363
7.3.3.2.2 Was the analysis of the domestic industry's sales and market share objective?
7.270. Regarding the analysis of the domestic industry's sales and market share, Tunisia criticizes
MIICEN's decision to give determinative weight to the data for the period January-April 2017, without
taking into account the seasonal nature of exercise book sales .364 According to Tunisia, the
investigating authority should have attributed more importance to the fact that sales and market
share increased between 2013 and 2016.365
7.271. In order to address this argument, we review in detail the analysis conducted by MIICEN. In
this case, MIICEN noted that "[s]ales of exercise -books ... [had] increased s lightly as of 2014 and
then [fallen] by 9 points in January-April 2017 compared to the same period in 2016".366 Similarly,
MIICEN considered that the increase in market share had been "slight and insufficient, followed,
however, by a decline in the first four months of 2017".367 In its conclusion of material injury, MIICEN
explained that "[t]he state of the domestic exercise book industry [was] of material injury indicated

357 Appellate Body Reports, Korea - Pneumatic Valves (Japan), para. 5.167; China - HP-SSST (Japan) /
358 Appellate Body Reports, Korea - Pneumatic Valves (Japan), para. 5.168; China - HP-SSST (Japan) /
359 Panel Reports, China - Cellulose Pulp, para. 7.117; EU - Footwear (China), para. 7.413; EC - Tube or
360 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.166 (quoting Appellate Body
Report, China - GOES, para. 149).
361 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.166 (quoting Appellate Body
Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.205, in turn quoting Appellate Body Report,
China - GOES, para. 149).
362 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.166 (quoting Appellate Body
Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.205, in turn referring to Appellate Body
Report, China - GOES, para. 150 (emphasis original)).
363 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.168 (quoting Appellate Body
Reports, China - HP-SSST (Japan) / China - HP-SSST (EU), para. 5.207).
364 Tunisia's first written submission, paras. 6.117 and 6.119; second written submission, paras. 4.133
and 4.135.
365 Tunisia's first written submission, para. 6.120.
366 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 160.
367 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 160.

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by … the decline … in sales [and] market share recorded in the first four months of 201 7 despite
their positive development during the period 2013-2016".368
7.272. MIICEN relied on the data presented below369:
Table 3
(Index 2013 = 100)
 2013 2014 2015 2016 2016
(Jan-April)
2017
(Jan-April)
Sales of exercise books in
Morocco (tonnes) 100 114 117 122 27 18
Domestic industry's
market share 100 103 100 103 68 35
Source: Report on the definitive determination (Exhibits TUN-7, MAR-1), para.161.
7.273. It is therefore our understanding that the investigating authority found a decline in sales and
market share solely on the basis of the fall in these indices in January -April 2017 compared to the
same period in 2016 and despite the upward trend between 2013 and 2016.
7.274. The question before us is whether, by giving determinative weight to the comparison of the
data for four-month periods from 2016 and 2017 in its analysis of sales of exercise books and market
share, MIICEN examined these two injury factors in an objective manner.
7.275. We note that, according to MIICEN's findings, deliveries of exercise books do not occur
regularly throughout the year, but are concentrated in the months of April and May:
[S]ales of exercise books are, by nature, seasonal . Indeed, the sector is driven by the
start of the school year. Wholesalers or large-scale retailers place orders with exercise
book manufacturers around December. Production begins then and orders are delivered
during April and May, in anticipation of back-to-school purchases.370
7.276. Tunisia contends that "MIICEN had sufficient data not to rule out the possibility that the
decline in sales and market share in January-April 2017, compared to January-April 2016, had been
largely offset during the rest of the year" .371 Indeed, since the January -April period ends in the
middle of the period when deliveries take place, this four-month period does not take into account,
by definition, deliveries that take place in May, which can create an incomplete picture of the
evolution of sales and market share. Thus, the confidential data for the year 2016 showed that the
domestic industry's market share was lower in the period January -April [[***]] % when compared
to its market share for the entire year [[***]] %.372 For these reasons, we agree with Tunisia that
an objective and unbiased authority should have taken into account the seasonality of sales in its
assessment of the importance of the data for the periods January -April 2016 and 2017, and
examined the possibility that the declin e in these indices in the first four months of 2017 was not
sufficiently representative . H owever, the paragraphs presenting MIICEN's analysis of sales and
market share contain no remarks on either the seasonal nature of exercise book sales or the
reliability of the data for the January -April period . F or this reason, we consider that giving
determinative weight to the data for the four-month periods without addressing whether these data
present a representative picture of the evolution of these factors affec ts the objectivity of the
analysis.
7.277. In response, Morocco stresses that the authority compared the same seasons (the first four
months of 2016 with the first four months of 2017) and that the industry's seasonal nature was
therefore not a relevant consideration.373 Regarding this argument, we agree with Tunisia that the

368 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
369 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 161.
370 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 63. See also the initiation
report (Exhibits TUN-2, MAR-10), para. 11. (emphasis added)
371 Tunisia's first written submission, para. 6.119; and second written submission, para. 4.135.
372 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), para. 161. See also Tunisia's
second written submission, para. 4.11.
373 Morocco's first written submission, para. 189; and response to Panel question No. 4.2, para. 78.

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comparison between the first four months of 2016 and the first four months of 2017 is problematic
"because the period selected, while the same for 2016 and 2017, ends in the middle of the peri od
during which sales occur" 374 and therefore does not take into account subsequent deliveries . We
consider that an objective and unbiased authority should have explained how it took into account
the possibility that the decline in sales and market share during the first four months was offset later
in the year, and why this consideration does not affect the comparability of the two four -month
periods. Thus, the fact that the same months were compared does not change our reasoning above.
7.278. Morocco also draws our attention to a panel's finding that "nothing in Article 3.1 prohibits an
investigating authority from focusing on a part of the period of investigation for a more detailed
analysis of developments during that part of the period of investigation" .375 We agree that nothing
in Article 3.1 prohibits an authority from examining part of the investigation period in more detail .
In this case, however, we consider that MIICEN failed to conduct an objective examination of the
sales and market share of the domestic industry, since it gave determinative weight to the data for
the four-month periods, without reconciling this approach with its finding regarding the seasonality
of exercise book sales.
7.279. Lastly, according to Morocco, since the date of the initiation of the investigation was
11 May 2017, MIICEN did not have a full set of data for 2017 and therefore took into account the
available data for the first four months of 2017 . M orocco asserts that taking into account the
available data for the most recent period is n ot inconsistent with Articles 3.1 and 3.4 .376 Indeed,
taking into account recent data is generally desirable, as such data may reveal current injury .377
However, we note that Tunisia is not contesting the choice of investigation period or the taking into
account of data for the first four months of 2017, but rather the fact that MIICEN decided to draw
definitive conclusions from these data without taking into consideration the seasonality of the
product at issue.378 We consider that, while taking into account the data for the first four months of
2017, MIICEN could have examined what weight to give to these data in the context of its own
findings regarding the seasonal nature of sales and in the light of the data for the four-month period
of 2016 and for that year as a whole.
7.280. Based on the foregoing, we find that MIICEN failed to conduct an objective examination of
the evolution of the sales and market share of the domestic industry, as required by Articles 3.
7.3.3.2.3 Was the analysis of the domestic industry's production objective?
7.281. Tunisia criticizes the examination of the domestic industry's production because "it was not
objective for MIICEN to give decisive weight to the data for January-April 2017".379 According to
Tunisia, production is affected by the seasonality of the product at issue, and the data for the
four-month period are not necessarily representative and reliable as a basis for a definitive
judgement.380 Tunisia highlights that production "increased over the four full years of the
investigation period, and that MIICEN erroneously concluded that production performed negatively
based on the data for January-April 2017."381
7.282. We recall that, according to MIICEN, the domestic industry's production "increased by 33
points between 2013 and 2016, to then decrease over the first four months of 2017".382 MIICEN also
noted that one of the domestic producers had been forced to stop production in 2017 because of the
pressure from Tunisian imports of exercise books .383 MIICEN pointed out that "the positive
developments in production between 2013 and 2016, examined in the light of the non -profitable
sales made [during] this entire period, give rise to the conclusion that the increase in production is
not an indication of the performance of the [domestic indus try], which explains the [domestic

374 Tunisia's second written submission, para. 4.17.
375 Morocco's second written submission, para. 222 (quoting Panel Report, Russia - Commercial
Vehicles, para. 7.42).
377 Appellate Body Report, Mexico - Anti-Dumping Measures on Rice, paras. 166 and 167.
378 Tunisia's second written submission, para. 4.10.
379 Tunisia's second written submission, para. 4.130.
380 Tunisia's first written submission, para. 6.111; second written submission, paras. 4.128 and 4.129.
381 Tunisia's second written submission, para. 4.128. See also Tunisia's response to Panel question
No. 4.5, para. 158.
382 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 153.
383 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 153.

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industry's] inability to maintain this pace and led it to decrease its production in
January-April 2017".384 Lastly, MIICEN relied upon this decrease in production (and three other
factors) in its finding of injury.385
7.283. In its analysis, MIICEN relied upon the data set forth in the table below386:
Table 2
(Index 2013 = 100)
 2013 2014 2015 2016 2016
(Jan-April)
2017
(Jan-April)
Domestic exercise book
production (tonnes) 100 117 118 133 42 34
Source: Report on the definitive determination (Exhibits TUN-7, MAR-1), paragraph 123.
7.284. Thus, the question before us is whether, by giving determinative weight to the first four
months of 2017 in its analysis of domestic production, MIICEN examined this inj ury factor in an
objective manner.
7.285. We begin our analysis with Tunisia's main argument that the seasonality of the product
means that the data relating to exercise book production for the four -month period are unreliable.
To support its position, Tunisia re fers to MIICEN's finding concerning the seasonality of the
product.387 We have already examined this finding, but we recall it below:
It should be noted that sales of exercise books are, by nature, seasonal . Indeed, the
sector is driven by the start of the school year. Wholesalers or large-scale retailers place
orders with exercise book manufacturers around December. Production begins then and
orders are delivered during April and May, in anticipation of back -to-school
purchases.388
7.286. According to Tunisia, this finding demonstrates that "[p]roduction does not therefore take
place regularly throughout the year but is dictated by the orders, which are placed around
December."389 Tunisia asserts that "the central question linked to seasonality is to what extent this
proportion [in January-April] varies from one year to the next".390 MIICEN's finding does not provide
any indication of what fraction of production takes place between January and April of each year and
whether the proportion of production for this period varies depending on the year . The production
data set forth in the table also fail to provide indications in this regard because 2016 is the only year
for which we find data for the January-April period, as well as for the full year. The record does not
therefore show to what extent the proportion of production that takes place between January and
April varies from one year to the next . For this reason, we are not convinced that the information
before the authority clearly indicated what impact the seasonality of the sales of exercise books had
on production in the January-April period.
7.287. Tunisia criticizes two further aspects of MIICEN's analysis of production.
7.288. First, Tunisia draws our attention to the fact that MIICEN used a limited set of data for the
four months of 2017, without putting them in the context of the data for the entirety of 2017 . In

384 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 153.
385 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
386 We note that the table in paragraph 153 of MIICEN's report on the definitive determination contains
a transposition error in the data for January-April 2017. Table 4 therefore uses the correct data taken from
paragraph 123 of MIICEN's report. (Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 123;
Morocco's first written submission, paras. 185 and 186; and Tunisia's second written submission,
paras. 4.3-4.9, 4.11, 4.127 and 4.128)
387 Tunisia's second written submission, para. 4.6; response to Panel question No. 4.5, paras. 154-156.
388 Initiation report (Exhibits TUN-2, MAR-10), para. 11; report on the preliminary determination
(Exhibits TUN-5, MAR-17), para. 32; and report on the definitive determination (Exhibits TUN-7, MAR-1),
para. 63. (emphasis added)
389 Tunisia's second written submission, para. 4.11.
390 Tunisia's response to Panel question No. 4.5, para. 158. (emphasis original)

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this respect, Tunisia compares MIICEN's approach to that of the Mexican investigating authority in
Mexico - Anti-Dumping Measures on Rice and Mexico - Steel Pipes and Tubes, in which the authority
examined an incomplete set of data, which did not allow it to make an objective examination of
injury.391
7.289. We consider that the requirements of Article 3.1 mean that an investigating authority is
obliged to ensure that the data on which it bases its injury determination accurately and credibly
reflect the state of the domestic industry . As we have already noted, the data for the whole year
typically provide a more accurate picture of the state of the domestic industry than the data for part
of the year.392 In a similar vein, we agree with the panel in Mexico - Steel Pipes and Tubes, which
cautioned against the use of "temporal subsets within a period, without a sufficient explanation and
without a consideration as to whether the developments within that temporal subset are reflective
of developments throughout the period or whether and why these subse ts are justified and not
anomalous."393
7.290. It is apparent from MIICEN's explanation that the decrease in production observed during
the period January-April 2017 was a key element of the conclusions of injury . In this regard, we
note that MIICEN failed to explain how it had ensured that the four-month period provided a reliable
picture of the production trends and was not anomalous . I n these circumstances, focusing
definitively on a very limited subset of data within the investigation period in order to dra w a
definitive conclusion on the production trends demonstrates, in our view, a lack of objectivity.
7.291. Second, Tunisia criticizes the fact that MIICEN based its conclusions on the decrease in
production in January-April 2017, while the rest of the investigation period (the four full years from
2013 to 2016) showed a positive trend .394 The record shows that MIICEN did indeed describe this
four-year positive trend in its examination, but chose to focus on the decrease in production in
January-April 2017.395
7.292. We consider that, in the light of the 33 -point increase in production over four years, an
objective and unbiased authority should have outlined why it considered the data for the four-month
period of 2017 to be determinative. However, the only explanation that we find in the report on the
definitive determination is that "the positive developments in production between 2013 and 2016,
examined in the light of the non -profitable sales made [during] this entire period, give rise to the
conclusion that the increase in production is not an indication of the performance of the [domestic
industry], which explains the [domestic industry 's] inability to maintain this pace and led it to
decrease its production in January -April 2017".396, 397 In our view, this sentence does n ot explain
why the data for the first four months of 2017 more accurately reflected the state of the domestic
industry than the data over four years.
7.293. We recall that Morocco refers to the findings of the panel in Russia - Commercial Vehicles to
support its position that an investigating authority may "compare the data for part of an investigation
period to the data for the corresponding period of the previous year" .398 Although the Russian
investigating authority did compare two half-year periods in its injury analysis, the question before
us in the present case is different. Indeed, in that other case, the European Union was not claiming

391 Tunisia's opening statement at the first meeting of the Panel, para. 8.6 (referring to Panel Reports,
Mexico - Anti-Dumping Measures on Rice, paras. 7.85 and 7.86; and Mexico - Steel Pipes and Tubes, para.
7.254).
392 The Appellate Body noted that "examining data relating to the whole year would result in a more
accurate picture of the 'state of the domestic industry' than an examination limited to a six-month period".
(Appellate Body Report, Mexico - Anti-Dumping Measures on Rice, para. 183) See also Panel Report, Mexico -
393 Panel Report, Mexico - Steel Pipes and Tubes, para. 7.252.
394 Tunisia's response to Panel question No. 4.5, para. 158.
395 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 153.
396 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 153.
397 In the same paragraph of the report, MIICEN noted that "one of the largest domestic producers of
exercise books was forced to stop production in 2017 owing to the market situation characterized by an
increased presence of dumped imports of Tunisian exercise books". (Report on the definitive determination
(Exhibits TUN-7, MAR-1), para. 153) However, neither MIICEN during the investigation, nor Morocco in the
context of this dispute, argued that the period January-April 2017 was determinative because of to this
production shutdown.
398 Morocco's second written submission, para. 223 (referring to Panel Report, Russia - Commercial
Vehicles, para. 7.39).

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that the Russian authority had based its determination on half-year data, thereby ignoring the trend
over several years.399 However, what is at issue before us is precisely the fact that MIICEN relied
exclusively upon the data for the first four months of 2017 in its finding of a decline in the domestic
industry's production.
7.294. In sum mary, we recall that, under Ar ticle 3.1 of the Anti -Dumping Agreement, the
investigating authority is required to conduct an objective examination of the evidence before it .
More specifically, it must ensure that the data substantiating its determination credibly and
accurately reflect the state of the domestic industry. In our view, an objective authority should have
explained why a decrease in the first four months of 2017 was more relevant than a trend over four
years and should have addressed how the data for the four months were representative of the state
of the domestic industry . The absence of an explanation of these points affects, in our view, the
objectivity of the examination conducted by MIICEN.
7.295. Based on these elements, we find that MIICEN failed to conduct an objective examination of
the developments in the Moroccan industry's production, as required by Articles 3.1 and 3.4 of the
Anti-Dumping Agreement.
7.3.3.2.4 Was the analysis of the profitability of the domestic industry objective?
7.296. Tunisia argues that MIICEN failed to conduct an objective and unbiased examination of the
profitability of the domestic industry.400 Specifically, according to Tunisia, MIICEN ignored evidence
concerning profitability .401 Therefore, Tunisia argues that the price of the domestic product has
always been lower than the price of Tunisian exercise books, and that the domestic industry thus
had some margin to convert its losses into profit by increasing its prices .402 Tunisia asserts that
MIICEN had before it all the elements to conclude that the negative profitability was not a sign of
injury, but rather a business strategy .403 MIICEN therefore possessed evidence enabling it to
question the impact of the imports on the negative profitability of the domestic industry.404
7.297. Morocco defends MIICEN's decision to base its finding of injury on the negative profitability.
In this connection, Morocco contends that "profitability is the primus inter pares of indicators".405
According to Morocco, the data demonstrate that the purported margin for manoeuvre in terms of
price was "barely perceptible" or "non-existent".406 Furthermore, Morocco emphasizes the fact that
MIICEN did not have before it any evidence pointing to a business strategy whereby the domestic
industry decided to sell at a loss.407
7.298. In the light of the parties ' arguments, the question before us is whether MIICEN assessed
the negative profitability of the domestic industry in an objective manner.
7.299. We recall that MIICEN found negative profitability in the domestic industry during the entire
period of investigation, which is supported by the record data.408 MIICEN expressly linked the
negative profitability to the impact of the Tunisian imports on prices. The authority thus found that
"[i]n order to maintain production and sales volumes, the domestic industry was forced to offer
prices lower than the prices of the dumped imports from Tunisia, thereby sacrificing its profit margins
and accepting to sell a t a loss" .409 MIICEN also stressed the importance of profitability as a key

399 Panel Report, Russia - Commercial Vehicles, paras. 7.28, 7.32-7.52.
400 Tunisia's first written submission, para. 6.121; response to Panel question No. 4.3, para. 135.
401 Tunisia's second written submission, paras. 4.146 and 4.151.
402 Tunisia's second written submission, paras. 4.144 and 4.145; response to Panel question No. 4.3,
paras. 135, 138 and 139.
404 Tunisia's second written submission, paras. 4.148 and 4.151; response to Panel question No. 4.3,
paras. 135 and 140.
405 Morocco's first written submission, para. 194. (emphasis original)
406 Morocco's second written submission, paras. 232 and 233.
407 Morocco's second written submission, para. 237.
408 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 174; Morocco's first written
submission, p. 64. We note that, in its first written submission, Tunisia challenged the data underlying the
calculation of profitability. However, after having consulted the confidential data presented by Morocco, Tunisia
abandoned this argument. (Tunisia's second written submission, para. 4.143; response to Panel question
No. 4.1, para. 127)
409 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 173.

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indicator of injury and explained the relationship between the prices and profitability levels as
follows:
Moreover, if the establishment of material injury is not necessarily depen dent on the
negative development of all the economic indicators of a domestic industry, then surely
these economic indicators do not and cannot all have equal weight . The Ministry thus
considers profitability to be one of the key indicators, since it repre sents the ultimate
objective of any company. Price level is another important indicator of material injury
because of its major and direct impact on profitability . In the present case, negative
levels of profitability were found throughout the period considered and the pressure on
prices, particularly from the dumped imports of Tunisian exercise books, prevented the
[domestic industry] from reaching non -injurious price levels, as has been mentioned
above. The pressure exerted by the dumped imports of Tunisian exercise books was so
significant over the first months of 2017 that the [domestic industry] was no longer able
to maintain its production and sales volumes, demo nstrating that, at the end of the
investigation period, the [domestic industry] was in a situation that had become
untenable.410
7.300. We begin by assessing Tunisia's main argument that MIICEN should have examined whether
the negative profitability of the domestic industry was the result of a domestic industry strategy. In
response to our request to explain why MIICEN should have conducted such an examination under
Articles 3.1 and 3.4 of the Anti-Dumping Agreement, Tunisia clarified that it "[was] not claiming that
an investigating authority [was] required to systematically analyse whether negative profitability
may be the result of something other than imports, such as a business strategy of the [domestic
industry], under Articles 3.1 and 3.4" .411 Instead, Tunisia asserts that, in the light of the evidence
before it, MIICEN should have called into question the explanation offered by the applicants (in
particular, that the negative profitability was due to the need to maintain a low price level in the
face of the Tunisian imports).412
7.301. It should be recalled that Article 3.4 of the Anti-Dumping Agreement requires an examination
of "the impact of the dumped imports on the domestic industry" and an evaluation of all relevant
economic factors and indices "having a bearing on the state of the industry". Nothing in the text of
this provision requires the investigating authority to examine all the possible causes of the indices
showing negative developments .413 In this regard, we agree with the Appellate Body's view that
Article 3.5 of the Anti -Dumping Agreement covers a broader scope than the examination under
Article 3.4 and requires a non-attribution analysis.414 The investigating authority must examine other
known injury factors as part of this analysis. Therefore, we are not convinced that the investigating
authority was required to examine under Articles 3.1 and 3.4 of the Anti -Dumping Agreement
whether the negative profitability was attributable to reasons other than the imports . According to
our assessment, Tunisia's argum ent falls within the scope of Article 3.5 rather than that of
Article 3.4.415 We thus agree with Morocco's view that MIICEN was not required to examine this
particular issue, albeit for different reasons.

410 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 178. (emphasis added)
411 Tunisia's response to Panel question No. 4.3, para. 137.
412 Tunisia's response to Panel question No. 4.3, paras. 135, 137, 139 and 140.
413 Two third parties expressly support this view. (Canada's third-party response to Panel question No.
3.1, para. 1; European Union's third-party response to Panel question No. 3.1, para. 23) The European Union
adds that "Article 3.4 of the Anti-Dumping Agreement could thus require the examination of the question of
whether the negative profitability is due to reasons other than the dumped imports - only if this examination is
necessary for considering 'the impact' of these imports on the domestic industry". (European Union's third-
party response to Panel question No. 3.1, para. 22 (emphasis original)) The United States, meanwhile, notes
that "[t]he reasons underlying observed trends [in the state of the domestic industry], however, [are]
generally more relevant to an analysis of causation under Article 3.5 of the [Anti-Dumping] Agreement".
(United States' third-party response to Panel question No. 3.1, para. 5)
414 Appellate Body Report, China - GOES, para. 150.
415 We note that the panel in China - X-Ray Equipment was confronted with a very similar claim and
commented that:
In the Panel's view, Nuctech's alleged start-up situation, business expansion and aggressive pricing
strategy are best considered as potential causes of an industry's condition, rather than factors indicative
of the state of the industry akin to those listed in Article 3.4 of the Anti-Dumping Agreement.
(Panel Report, China - X-Ray Equipment, para. 7.255)

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7.302. We now turn to the assessment of Tunisia's argument that MIICEN failed to objectively
examine the evidence casting doubt on the explanatory force of the imports for the negative
profitability. In particular, Tunisia states that, in 2014, 2015 and 2016, the price of the imports was
above the domestic industry's cost of production, which, in turn, was above the price of the domestic
product.416 According to Tunisia, the domestic industry thus had some margin to increase its prices
while keeping them below the price of the Tunisian imports.417 Tunisia asserts that, by ignoring those
data that contradicted the applicant's explanation regarding the impact of the imports on
profitability, MIICEN failed to conduct an objective examination of this evidence.418
7.303. Given that the first sentence of Article 3.4 requires an examination of the impact of dumped
imports on the domestic industry, this Article is concerned with "the relationship between subject
imports and the state of the domestic industry" .419 Accordingly, the inves tigating authority is
required to examine "the 'explanatory force' of subject imports for the state of the domestic
industry".420
7.304. We note that, according to the questionnaire responses from two producers, the price level
of Tunisian imports was a factor in the setting of prices for the domestic industry.421
7.305. The data taken from the record by Tunisia demonstrate that the price of the Tunisian imports
exceeded the domestic industry's cost of production between 2014 and 2016 (for three years of a
data collection period of four years and four months) which, in turn, exceeded the price of the
domestic product.422 However, the analysis of the domestic industry 's profitability conducted by
MIICEN makes no reference to the interaction among the prices of the domestic product, the Tunisian
product and the cost of production of the domestic product . M IICEN simply asserted that "the
dumped imports of Tunisian exercise books prevented the [domestic industry] from reaching
non-injurious price levels" 423 and that "[i ]n order to maintain production and sales volumes, the
domestic industry was forced to offer prices lower than the prices of the dumped imports from
Tunisia, thereby sacrificing its profit margins and accepting to sell at a loss."424
7.306. Morocco contends that t he domestic industry was seeking to maintain its market share by
reducing its prices to remain competitive .425 In this regard, MIICEN clarified that the domestic
industry had chosen to continue "selling at prices as competitive as those of Tunisian exporter s in
order to limit market share losses, thereby directly affecting profitability margins".426 We have found
above that MIICEN's conclusions concerning the developments in the domestic industry's market
shares and sales were not based on an objective examination of the data. We also note that MIICEN's
explanation fails to consider the specific interaction among the prices of the domestic product, the
Tunisian product and the cost of production of the domestic product. The record shows that not only
were the prices of the Tunisian product higher than the price of the domestic like product, but they
also followed an opposite trajectory between 2014 and 2016.427 However, MIICEN failed to explain
why, in view of the upward trend in the prices of the Tunisian product, the domestic industry was
forced to continue lowering its prices, thereby sacrificing its profits . MIICEN thus failed to examine
in an objective manner whether the subject imports had "explanatory force" for the negative
profitability of the domestic producers.

416 Tunisia's second written submission, para. 4.145; response to Panel question No. 4.3, para. 139.
417 Tunisia's second written submission, para. 4.145; response to Panel question No. 4.3, para. 135.
418 Tunisia's second written submission, para. 4.148; response to Panel question No. 4.3, para. 135.
419 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.166 (quoting Appellate Body
Report, China - GOES, para. 149).
420 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.166 (quoting Appellate Body
Reports, China - HP-SSST (Japan)/China - HP-SSST (EU), para. 5.205, which quotes Appellate Body Report,
China - GOES, para. 149).
421 MAPAF's responses to the questionnaire (Exhibit TUN-66), p. 16, section F.2 ("Fixation des prix ");
and Promograph's responses to the questionnaire (Exhibit TUN-67), p. 16, section F.2 ("Fixation des prix ").
422 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148, 149 and 191
(tables); Tunisia's response to Panel question No. 4.3, para. 138; and second written submission, para. 4.144.
423 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 178.
424 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 173.
426 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 176.
427 Report on the definitive determination (Exhibit MAR-CONF-3 (BCI)), paras. 148, 149 and 191.

BCI redacted, as indicated [[***]]

7.307. For the reasons set out above, we conclude that MIICEN failed to examine the negative
profitability of the domestic industry in an objective manner and therefore violated Articles 3.1 and
3.4 of the Anti-Dumping Agreement.
7.308. We note that Tunisia also argues that MIICEN did not take into account the fact that many
factors showed positive developments in its finding of injury .428 On the basis of another panel
decision, Tunisia asserts that the authority must explain in a "thorough and persuasive" manner why
the positive performances were "outweighed by any other factors".429 Tunisia considers that MIICEN
has not provided such an explanation.430
7.309. We note that MIICEN's definitive conclusion regarding the state of the domestic industry was
based on the negative development of four factors: the domestic industry's production, sales, market
share and profitability.431 The fact that we have concluded that MIICEN's examination of these four
factors was not objective means that entire conclusion regarding the state of the domestic industry
is inconsistent with the requirements of Articles 3.1 and 3.4 of the Anti -Dumping Agreement .
Accordingly, we consider that there is no need to address this additional argument made by Tunisia
in order to resolve this dispute.
7.3.3.3 Conclusion on the examination of the state of the domestic industry
7.310. In view of the foregoing, we find that MIICEN violated Articles 3.1 and 3.4 of the
Anti-Dumping Agreement by failing to conduct an objective examination of the developments in the
domestic industry's sales, market share and production , and by failing to examine in an objective
manner, on the basis of the evidence before it, whether the negative profitability of the domestic
industry was due to the Tunisian imports.
7.4 Tunisia's claims regarding the causation determination
7.4.1 Introduction
7.311. Tunisia claims that MIICEN violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement for
two reasons: (a) because it found a causal relationship between the injury observed and the Tunisian
imports on the basis of its flawed analysis of the volume of imports in relative terms, of the effects
of the imports on prices, and of the state of the domestic industry 432; and (b) because it failed to
properly examine competition from domestic producers (specifically Imprimerie Moderne) as part of
its analysis of non-attribution factors.433
7.312. With regard to Tunisia's first argument, Morocco recalls that it is contesting Tunisia's claims
under Articles 3.2 and 3.4 and, on this basis, requests that we a lso reject the related claim
concerning the causation examination.434 With regard to Imprimerie Moderne, Morocco explains that
the exporters did not submit evidence of competition from this company in the Moroccan market
and that the company did not coopera te with the investigation .435 Therefore, MIICEN was not
required to examine the effects of the presence of this company on the market.436
7.313. In the next section, we recall the requirements of Articles 3.1 and 3.5 of the Anti -Dumping
Agreement concerning the causation examination. We then examine Tunisia's two grievances.

428 Tunisia's first written submission, paras. 6.99-6.106; second written submission, paras. 4.112-4.120.
429 Tunisia's first written submission, para. 6.105 (quoting Panel Report, Thailand - H-Beams,
para. 7.249).
430 Tunisia's first written submission, para. 6.106.
431 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 180.
432 Tunisia's first written submission, paras. 7.10-7.15; second written submission, paras. 5.3-5.6.
433 Tunisia's first written submission, paras. 7.16-7.29; second written submission, paras. 5.7-5.24.
434 Morocco's first written submission, para. 205.
435 Morocco's opening statement at the first meeting of the Panel, paras. 108 and 109; opening
statement at the second meeting of the Panel, para. 104; and response to Panel question No. 5.6, para. 83.
436 Morocco's second written submission, para. 246.

BCI redacted, as indicated [[***]]

7.4.2 Analysis
7.4.2.1 Applicable requirements of Articles 3.1 and 3.5 of the Anti-Dumping Agreement
7.314. We have set out the requirements of Article 3.1 above and shall not repeat them here.
7.315. The relevant provisions of Article 3.5 of the Anti-Dumping Agreement provide that:
It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.
The demonstration of a causal relationship between the dumped imports and the injury
to the domestic industry shall be based on an examination of all relevant evidence
before the authorities. The authorities shall also examine any known factors other than
the dumped imports which at the same time are injuring the domestic industry, and the
injuries caused by these other factors must not be attributed to the dumped imports.
7.316. Article 3.5, together with Article 3.1, thus establishes a number of obligations. First, it "must
be demonstrated that the dumped imports are, through the effects of dumping, as set forth in
paragraphs 2 and 4, causing injury" . This demonstration "shall be based on an examination of all
relevant evidence before the authorities".
7.317. By virtue of the phrase "through the effects of dumping, as set forth in paragraphs 2 and 4",
the causation analysis is the culmination of a logical progression in the injury analysis. The Appellate
Body noted that "to the extent that a panel f[ound] that an investigati ng authority's volume, price
effects, and impact analyses [were] inconsistent with its obligations under Articles 3.2 and 3.4, such
inconsistencies would likely undermine an investigating authority's overall causation determination
and consequentially lead to an inconsistency with Article 3.5".437 Similarly, other panels have found
violations of Article 3.5 based on the inconsistencies of the investigating authorities' analyses with
Articles 3.2 and 3.4.438
7.318. Under the third sentence of Article 3.5, the investigating authority is required to examine
any known factors other than the dumped imports which at the same time are injuring the domestic
industry. The Appellate Body noted that the obligation to conduct this non -attribution analysis is
triggered when the factor at issue (a) is "known" to the investigating authority; (b) is a factor "other
than dumped imports"; and (c) is injuring the domestic industry at the same time as the dumped
imports.439
7.319. Lastly, we note that the Anti-Dumping Agreement "does not expressly state how such factors
should become 'known' to the investigating authority, or if and in what manner they must be raised
by interested parties, in order to qualify as 'known'".440
7.4.2.2 Was the causation examination , based on the flawed analyses of the imports'
price effects and of the injury indicia, inconsistent with Articles 3.1 and 3.5 of the
Anti-Dumping Agreement?
7.320. Tunisia considers that MIICEN's conclusion that Tunisian imports had contributed to the
injury to the domestic industry was based on : (a) the effects of the volume of Tunisian imports,
(b) the effects of the imports on the prices of the domestic product, and (c) the analysis of the
economic situation of the domestic industry.441 According to Tunisia, the inconsistency of the injury
examination with Articles 3.1, 3.2 and 3.4 of the Anti-Dumping Agreement means that MIICEN had
no grounds to conclude that there was a causal relationship between the dumped imports and the
injury found and it therefore violated Articles 3.1 and 3.5.442

437 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.196. (emphasis original)
438 Appellate Body Reports, China - X-Ray Equipment, para. 7.239; China - Autos (US), paras. 7.327
and 7.328; Russia - Commercial Vehicles, para. 7.182; and China - Broiler Products (Article 21.5 - US),
para. 7.186.
439 Appellate Body Report, EC - Tube or Pipe Fittings, para. 175.
440 Appellate Body Report, EC - Tube or Pipe Fittings, para. 176.
442 Tunisia's first written submission, paras. 7.10-7.15; second written submission, paras. 5.3 and 5.4.

BCI redacted, as indicated [[***]]

7.321. In the report on the definitive determination, MIICEN concluded that "the increase in dumped
imports of exercise books originating in Tunisia, because it coincides with the deterioration of the
domestic industry, and in view of the volume and prices of these imports, is a cause of the material
injury suffered by the [domestic industry]".443 This finding suggests that MIICEN based its causation
determination on the increase in the volume of imports, the effects of the imports on prices and the
injury to the domestic industry.
7.322. We recall that, under Article 3.5 of the Anti-Dumping Agreement, the investigating authority
is required to demonstrate that the dumped imports are, through the effects of dumping, as set
forth in paragraphs 2 and 4, causing injury. This means that the flawed analyses under Articles 3.2
and 3.4 may consequentially lead to an inconsistency with Article 3.5.444
7.323. We have found several inconsistencies with Articles 3.2 and 3.4 in MIICEN's analysis of the
effects of the imports on the prices of the domestic product, as well as in the analysis of the indicia
of the domestic industry underlying the determination of material injury. These inconsistencies lead
us to conclude that the causation examination was also inconsistent with Article 3.5. We consider in
this regard that relying, in the causation examination, upon analyses under Articles 3.2 and 3.4 that
were not objective within the meaning of Article 3.1 of the Anti -Dumping Agreement taints the
causation analysis, meaning that it too cannot be objective.
7.324. Accordingly, we conclude that the analysis of the causal relationship between the injury
found and the Tunisian imports was inconsistent with Articles 3.1 and 3.5 of the Anti -Dumping
Agreement.
7.4.2.3 Did MIICEN act inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping
Agreement by failing to examine the effects of competition from Imprimerie Moderne on
the domestic industry?
7.325. We note that, in the present case, MIICEN defined the domestic industry as comprising three
of the five domestic producers of exercise books (MAPAF, PROMOGRAPH and Med Paper).445 As part
of its non -attribution analysis, MIICEN examined competition among these producers .446 While
MIICEN noted the existence of two other domestic producers - Imprimerie Moderne and
Sopalemb - which accounted for 30-40% of domestic exercise book production in 2016447, it did not
examine competition from these two other producers as a non-attribution factor.
7.326. Tunisia contends that MIICEN was aware of the significant presence of Imprimerie Moderne
in the Moroccan market and that competition from Imprimerie Moderne was a "known factor" that
"injur[ed] the domestic industry" within the meaning of the third sentence of Article 3.5 .448 Tunisia
specifically challenges the fact that MIICEN failed to examine the effe cts of competition from
Imprimerie Moderne on the state of the domestic industry and, thus, violated Articles 3.1 and 3.5 of
the Anti-Dumping Agreement.449
7.327. We recall that, under the requirements of Article 3.5, the investigating authority is required
to conduct a non -attribution analysis when the factor at issue (a) is "known" to the investigating
authority, (b) is a factor "other than dumped imports" , and (c) is injuring the domestic industry at
the same time as the dumped imports.450

443 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 219.
444 Appellate Body Report, Korea - Pneumatic Valves (Japan), para. 5.196.
445 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 14 and 73.
446 Report on the definitive determination (Exhibits TUN-7, MAR-1), paras. 198-200.
447 Initiation report (Exhibits TUN-2, MAR-10), para. 6; report on the definitive determination
(Exhibits TUN-7, MAR-1), paras. 14, 16 and 77.
448 Tunisia's response to Panel question No. 5.2, para. 144.
449 Tunisia's response to Panel question No. 5.1, para. 143; second written submission, para. 5.24.
Tunisia clarifies that, "according to the data before MIICEN, Imprimerie Moderne was the only producer other
than the applicants with the ability to adversely affect the state of the [domestic industry]" (Tunisia's second
written submission, para. 5.15) In the light of these explanations, we understand that Tunisia is not claiming a
violation of Article 3.5 on the grounds that MIICEN failed to examine competition from Sopalemb as a known
factor injuring the domestic industry.
450 Appellate Body Report, EC - Tube or Pipe Fittings, para. 175.

BCI redacted, as indicated [[***]]

7.328. With regard to the requirements of Article 3.5, we do not share Tunisia's position that mere
knowledge of the existence of a potential injury factor is sufficient to trigger the obligation to
investigate this factor.451 We recall that Article 3.5 requires the examination of "any known factors
other than the dumped imports which at the same time are injuring the domestic industry ." Other
panels have considered that if there is no evidence before an investigating authority to indicate that
a factor is injuring the domestic industry, the investigating authority is not required to examine this
factor as part of the non -attribution analysis.452 We agree with this interpretation and adopt it for
the purposes of our examination.
7.329. Morocco does not contest the fact that the exporters drew MIICEN's attention to competition
from Imprimerie Moderne .453 It is therefore clear that the presence of Imprimerie Moderne was
"known" to the authority . It is also undisputed that competition from Imprimerie Moderne was a
factor "other than the dumped imports".
7.330. However, the parties disagree as to whether there was evidence before MIICEN to indicate
that competition from Imprimerie Moderne caused injury to the domestic industry .454 The question
before us is therefore whether MIICEN had evidence before it concerning the negative effects of the
presence of Imprimerie Moderne on the state of the domestic industry.
7.331. On this point, Tunisia provided us with the following elements: the data reflecting Imprimerie
Moderne's production, the estimation of Imprimerie Moderne's market share and certain submissions
made by exporters to MIICEN. We shall examine these elements in turn.
7.332. According to MIICEN, Imprimerie Moderne began operations in 2015 .455 We note that the
main argument put forward by Tunisia is that the presence of Imprimerie Moderne in the Moroccan
market was very significant, as indicated by its share of domestic production.456 MIICEN found that
Sopalemb and Imprimerie Moderne accounted for 30 -40% of the domestic production of exercise
books in 20 16.457 Given that Sopalemb "produced only extremely limited volumes of exercise
books"458, Tunisia, on the basis of the record data, estimates that Imprimerie Moderne's share of
production must have been [[***]] % in 2015 and [[***]] % in 2016.459 According to Tunisia, "this
producer can be expected to have had a significant share of the market" and could have had an
impact on the domestic industry's market share.460
7.333. In our view, the data on this company's share of production do not provide specific
indications as to the effect of competition from Imprimerie Moderne on the domestic industry,
because the record does not demonstrate what proportion of this producer's sales were made in the
Moroccan market and in export markets, and how its sales affected the domestic industry. Thus, we
agree with Morocco that "[i]t is unclear, on the basis of the facts before the authority, what fraction
of Imprimerie Moderne's production was exported during the final year of the investigation perio d,
what competition existed with the products at issue, and what actual competition existed in the
market".461
7.334. Both parties confirm that MIICEN did not establish Imprimerie Moderne's market share .462
However, Tunisia insists that the market share of this pro ducer was significant . According to the
estimate made by Tunisia on the basis of the data contained in the initiation report, its market share

451 Tunisia's first written submission, para. 7.20 (referring to Panel Report, China - GOES, para. 7.636).
452 Panel Reports, EU - Fatty Alcohols (Indonesia), para. 7.196; China - X-Ray Equipment, para. 7.267.
453 Morocco's comments on Tunisia's response to Panel question No. 5.9, para. 245 a).
454 Tunisia's first written submission, paras. 7.21-7.28; second written submission, paras. 5.14-5.24;
Morocco's opening statement at the first meeting of the Panel, paras. 108 and 109; opening statement at the
second meeting of the Panel, para. 104; response to Panel question No. 5.6, para. 83; and comments on
Tunisia's response to Panel question No. 5.9, paras. 245-247.
455 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 77.
456 Tunisia's response to Panel question No. 5.9, para. 166.
457 Initiation report (Exhibits TUN-2, MAR-10), para. 6.
458 Report on the definitive determination (Exhibits TUN-7, MAR-1), para. 77.
459 Tunisia's second written submission, para. 5.15 (referring to the Excel file on the applicants
(Exhibit TUN-30 (BCI), "Représentativité" sheet); report on the definitive determination (Exhibit MAR-CONF-3
(BCI)), paras. 210 and 211.
460 Tunisia's second written submission, para. 5.15.
461 Morocco's response to Panel question No. 5.11, para. 60 d).
462 Tunisia's response to Panel question No. 5.9, paras. 160-165; Morocco's comments on Tunisia's
response to Panel question No. 5.9, paras. 241, 242 and 245 b).

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would have been around 13%.463 Tunisia obtained this figure by multiplying the domestic industry's
market share taken from the initiation report (45-50%) by Imprimerie Moderne's share of domestic
production (30%).464 This calculation presumes that this company sold all its exercise books in the
Moroccan market and does not take into account the possibility that it may be export-oriented. As
we have already noted, the investigation record does not indicate what fraction of Imprimerie
Moderne's sales were made in the Moroccan market . For this reason, we cannot rely upon this
estimate by Tunisia, which is not substantiated by evidence.
7.335. Tunisia also asserts that the entry into the market of a producer that rapidly gained a large
share of domestic production would certainly have influenced the domestic industry's pricing
decisions.465 However, the investigation record does not provide information on the price levels of
the exercise books offered by Imprimerie Moderne 466 allowing for an assessment of whether this
producer could have exert ed pressure on domestic industry prices. This assertion by Tunisia thus
remains speculation that is unsubstantiated by evidence in the investigation record.
7.336. Lastly, Tunisia refers to the exporters' submissions to MIICEN. The exporters drew MIICEN's
attention to the fact that Imprimerie Moderne had opened a new factory in 2014 (citing the
company's website).467 They also asserted that "new producers, such as the company Imprimerie
Moderne, [were] successfully develop[ing] new brands (e.g. Bleu Marine) and [had] expanded their
production and sales" .468 Although these assertions confirm the emergence of a new Moroccan
producer of exercise books, they did not provide other elements as to the effects of competition
from Imprimerie Moderne on the state of the domestic industry.
7.337. In summary, we are not convinced that an objective authority would have concluded, on the
basis of the elements contained in the record, that competition from Imprimerie Moderne was
injuring the domestic industry . For this reason, we find that MIICEN was not obliged to examine
competition from Imprimerie Moderne as part of its analysis of non-attribution factors.
7.338. We note that Tunisia does not raise any independent arguments in support of its claim under
Article 3.1. Thus, Tunisia has failed to establish that Morocco violated Article 3.1 of the Anti-Dumping
Agreement by failing to examine the effects of competition from Imprimerie Moderne.
7.4.3 Conclusion on the causation examination
7.339. In view of the foregoing, we conclude that MIICEN's analysis of the causal relationship
between the injury found and the Tunisian imports was inconsistent with Articles 3.1 and 3.5 of the
Anti-Dumping Agreement.
7.340. With regard to the non-attribution examination of the injury caused by other known factors,
Tunisia has failed to establish that Morocco violated Articles 3.1 and 3.5 of the Anti -Dumping
Agreement by failing to examine the effects of competition from Imprimerie Moderne.
7.5 Claims by Tunisia concerning the initiation of the investigation
7.5.1 Introduction
7.341. Tunisia questions whether the complaint filed with MIICEN by the domestic industry
contained sufficient evidence of dumping.469 Tunisia submits that MIICEN should not have initiated

463 Tunisia's first written submission, para. 7.24 (referring to the initiation report (Exhibit TUN-2),
table 11).
464 Tunisia's first written submission, para. 7.24 and fn 346.
465 Tunisia's response to Panel question No. 5.9 at the second hearing; comments on Morocco's
response to Panel question No. 5.11, para. 98.
466 Tunisia's first written submission, para. 7.27. Exhibit TUN-30 reflects the value of Imprimerie
Moderne's production for 2015 and 2016. (Excel file listing the applicants (Exhibit TUN-30 (BCI))) However,
those data do not indicate whether Imprimerie Moderne exerted pressure on domestic industry prices.
467 Tunisian exporters' comments on the investigation (27 February 2018) (Exhibit TUN-29), p. 11.
468 Tunisia's response to Panel question No. 5.9, para. 166; Tunisian exporters' comments on the
investigation (27 February 2018) (Exhibit TUN-29), p. 10.
469 Although Tunisia's panel request stated that "the petition ... does not contain sufficient evidence of
dumping, injury or causation", Tunisia confirmed that its claims under Article 5 are based solely on there being
insufficient evidence of dumping. (Tunisia's response to Panel question No. 6.2, para. 153)

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the investigation because of a lack of evidence of dumping or, at least, it should have explained in
its notice of initiation how the evidence was sufficient to justify initiating an investigation.470 Tunisia
requests the Panel to find that:
MIICEN failed to sufficiently examine the accuracy and adequacy of the evidence
provided in the application to justify the initiation of an anti -dumping investigation in
accordance with Article 5.3 of the Anti-Dumping Agreement. Contrary to the provisions
of Article 5.2 of the Agreement, the petition filed by the three petitioning firms does not
contain sufficient evidence of dumping, in particular a demonstrable normal value in
Tunisia. However, despite that deficiency, MIICEN failed to terminate the investigation,
as required by the first sentence of Article 5.8 of the Anti-Dumping Agreement.471
7.342. Tunisia therefore considers that several pieces of evidence included in the domestic
industry's complaint were insufficient to meet the criteria set out in Article 5.2 of the Anti-Dumping
Agreement:
a. The export price evidence was based on just one invoice from the period from
December 2015 to November 2016, and the notice of initia tion did not include any
explanation as to why "export prices on that day should be considered representative of
the whole dumping investigation period".472
b. The export price information was limited to just a few models of the product under
investigation, even though the investigation covered a wide range of products with very
different prices.473
c. The domestic transport adjustment made by the applicant to convert the FOB price into
an ex-factory price did not reflect the various domestic means of transport used in Tunisia
to move the product concerned, because of the differences in the weight of the exercise
books and the variable distances between the factories and ports of export 474 (for the
same reason, Tunisia criticizes the adjustment for the same value made to the sales prices
in Tunisia to determine the normal value) .475 Tunisia also notes that the adjustment
corresponds to a return journey between the factory and the port of export, without
justification.476
d. The normal value evidence was based on the online catalogues of a retail supermarket
chain and retail bookshops, but without demonstrating that the prices shown in those
catalogues were those of the Tunisian product .477 Moreover, those catalogues only show
the price of certain models of the product, but t he complaint fails to explain how these
prices were representative.478
e. The distribution margins used for the normal value were adjusted on the basis of
information concerning the business practices of a Moroccan wholesaler, but the applicant
fails to explain why these margins were representative of practices in Tunisia .479
Meanwhile, the margins were adjusted on the basis of wholesale prices even though the
references used for the normal value in Tunisia corresponded to retail prices.480
f. Lastly, the adjustment for royalties for certain licensed exercise books was not based on
evidence of such payments in the Tunisian market.481

470 Tunisia's first written submission, para. 8.8.
471 Tunisia's first written submission, para. 8.1. See also Tunisia's second written submission,
para. 6.65.
472 Tunisia's first written submission, para. 8.22.
473 Tunisia's first written submission, para. 8.23.
474 Tunisia's first written submission, para. 8.26.
475 Tunisia's first written submission, para. 8.37.
476 Tunisia's first written submission, para. 8.27.
477 Tunisia's first written submission, para. 8.31.
478 Tunisia's first written submission, paras. 8.33 and 8.34.
479 Tunisia's first written submission, para. 8.35.
480 Tunisia's first written submission, para. 8.36.
481 Tunisia's first written submission, para. 8.38.

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7.343. We note that Tunisia does not contend that the complaint is devoid of elements cited in
paragraph (iii) of Article 5.2 of the Anti-Dumping Agreement. When examining the record, it appears
that the complaint did include information on export prices of the product under investigation, and
on the normal value of the like product on the Tunisian market . What is at issue is therefore the
sufficiency and relevance482 of that evidence, taking into account what could reasonably be expected
from the applicants.
7.344. With regard to the alleged violation of Article 5.3, Tunisia asserts that MIICEN did not act as
an unbiased and objective authority, as it failed to examine suffi ciently the accuracy and adequacy
of the evidence relating to the export price and the normal value contained in the petition to initiate
an investigation.483 In particular, according to Tunisia, MIICEN should have assessed:
a. whether the prices in the export documents and the domestic sales in Tunisia, limited to
certain models from the range of models of the product under investigation, were
representative of the export prices and normal values of the product under consideration
as a whole;
b. whether the expor t prices set on one day were representative of export prices for the
whole investigation period;
c. whether the information contained in the catalogues submitted as evidence of the normal
value was accurate in relation to the producers in question or those who made the product
at issue; and
d. whether the adjustments applied to the export price and to the normal value were based
on correct assumptions.484
7.345. Although these four arguments concerning the examination conducted by the authority are
advanced in support of its claim under Article 5.3, Tunisia clarified, in response to the Panel's
questions, that they are "closely linked to evidentiary shortfalls identified by Tunisia within the
meaning of Article 5.2".485 Tunisia argues that "by failing to conduct such an ex amination, MIICEN
acted inconsistently with Articles 5.3 and 5.8 of the Anti-Dumping Agreement".486
7.346. In this regard, Tunisia explains that it is requesting "a finding of inconsistency with each of
these provisions (5.2, 5.3 and 5.8)"487, but that "if the Panel considers that, based on the standard
of review applicable to Articles 5.2 and 5.3, it could resolve Tunisia's claim by finding a violation of
one of these two provisions (and Article 5.8), Tunisia will not object to the Panel exercising judicial
economy in respect of the other provision in question".488
7.347. Meanwhile, Morocco asks us to find "that there is no independent obligation for the authority
under Article 5.2" 489 and that MIICEN did not act inconsistently with Articles 5.3 and 5.8 of the
Anti-Dumping Agreement by agreeing to initiate an investigation.490
7.5.2 Analysis
7.348. We recall that Article 5 of the Anti-Dumping Agreement concerns "initiation and subsequent
investigation". I t specifies the conditions under which an investigating authority may accept a
complaint and initiate or terminate an investigation.
7.349. The arguments advanced by Tunisia in this dispute question both the sufficiency of the
evidence provided by the domestic industry and the examination of the evidence by the investigating

482 Tunisia's second written submission, para. 6.65.
483 Tunisia's first written submission, para. 8.41.
484 Tunisia's first written submission, para. 8.43.
485 Tunisia's response to Panel question No. 6.23, para. 176.
486 Tunisia's first written submission, para. 8.44.
487 Tunisia's response to Panel question No. 6.22, para. 175.
488 Tunisia's response to Panel question No. 6.22, para. 174.
489 Morocco's comments on Tunisia's response to Panel question No. 6.22, para. 250. (emphasis
original)
490 Morocco's second written submission, para. 306.

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authority. We shall therefore begin by analysing Morocco's obligations under Articles 5.2, 5.3 and
5.8 of the Anti -Dumping Agreement . W e will then examine the parties' arguments under these
provisions and the facts on the investigation record.
7.5.2.1 Applicable requirements of Article 5.2 of the Anti-Dumping Agreement
7.350. Article 5.2 of the Anti-Dumping Agreement consists of a "chapeau" and four subparagraphs
that describe the "information" that must be included in the written application submitted by the
domestic industry or on its behalf to initiate an investigation (the complaint) . The chapeau states
that a complaint:
[S]hall include evidence of (a) dumping, (b) injury within the meaning of Article VI of
GATT 1994 as interpreted by this Agreement and (c) a causal link between the dumped
imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence,
cannot be considered sufficient to meet the requirements of this paragraph . T he
application shall contain such information as is reasonably available to the applicant on
the following[.]
7.351. The "information" on dumping (subparagraph (iii) of Article 5.2) relates to the normal value
and the export price as established by the applicant.491 Other panels have been of the opinion that
Article 5.2 (iii) should be read in the light of Article 2 of the Anti-Dumping Agreement, which defines
dumping and methodologies for establishing a margin of dumping .492 This information covers the
various components of the dumping margin calculation, i.e. elements for determining a normal value
(on the basis of either the sales price or a reconst ructed normal value), an export price, as well as
any adjustments as may be necessary for a fair comparison.
7.352. Meanwhile, the chapeau provides that "evidence of dumping" must "substantiate" the normal
value, export price and adjustments submitted by the applicant. The definition of the word "étayer"
preuves, le fonder, l'établir ou en être la base, la preuve"493 ("to support something with arguments,
evidence, to determine it, to establish it or to be grounds for, proof of it"), while the word "preuve"
("evidence") is defined as an "[é]lément matériel … qui démontre, établit, prouve la vérité ou la
réalité d'une situation de fait ou de droit"494 (a "material element … that demonstrates, establishes,
proves the truth or reality of a de facto or de jure situation"). This word choice indicates that the
information provided in support of the complaint must have some probative value . With regard to
dumping, the applicant must provide evidence that permits the actual normal value, export price
and value of any adjustments to be established for the period identified in the complaint . A normal
value and export price not substantiated "by relevant evidence" would be "insufficient" to meet the
requirements of Article 5.2.495
7.353. Article 5.2 nevertheless accepts that the applicant can only be required to provide such
evidence as is "reasonably available to [it]". The standard of evidence required in a complaint may
therefore not go beyond what information may be reasonably available to a firm that is part of the
domestic industry, which excludes, in particular, confidential information . This stipulation has been
interpreted in other dispute settlement procedures as seeking "to avoid putting an undue burden on
the applicant to submit information which is not reasonably available to it".496 Meanwhile, a number

491 Article 5.2(iii) provides that the complaint shall include "information on the prices at which the
product is sold from the country or countries of origin or export ... and information on export prices or, where
appropriate, on the prices at which the product is first resold to an independent buyer in the territory of the
importing Member".
492 Panel Report, Guatemala - Cement II, para. 8.35. See also Panel Report, Pakistan - BOPP Film
(UAE), para. 7.22.
493 Dictionnaire Larousse, definition of "étayer"
https://www.larousse.fr/dictionnaires/francais/%c3%a9tayer/31335 (accessed 14 April 2021).
494 Dictionnaire Larousse, definition of "preuve"
https://www.larousse.fr/dictionnaires/francais/preuve/63855 (accessed 14 April 2021).
495 As stated in Panel Report, Pakistan - BOPP Film (UAE), "inherent in the very meaning of evidence is
its relationship to the facts that it tends to establish, i.e. its relevance. Information that does not tend to
establish the facts called for does not fit this definition". (Ibid., para. 7.19 (fn omitted))
496 Panel Report, US - Softwood Lumber V, para. 7.54.

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of panels have recognized that the quantity and quality of evidence provided at the complaint stage
would necessarily be lower than the evidence required to impose anti-dumping measures.497
7.354. Lastly, we note that the parties differ over whether Article 5.2 of the Anti -Dumping
Agreement lays down obligations, the violation of which may be found by a pa nel. In that respect,
Tunisia maintains that by "setting forth, in a prescriptive manner, the basic content of an application
for initiating an anti-dumping investigation, Article 5.2 imposes an obligation that the authorities
must comply with when assessing such an application" .498 On the other hand, Morocco considers
that "nothing in Article 5.2 imposes any legal obligation to do or not do something on" the
investigating authority .499 To the extent that Tunisia makes claims based on Article 5.2 in this
dispute, Morocco considers it "essential that the Panel find that Article 5.2 does not contain an
independent obligation for the authority".500
7.355. In this regard, we find that Article 5.2 determines the content of the complaint submitted by
the domestic industry a nd does not therefore create directly an obligation for the investigating
authority. It is Article 5.3 that, as we will see in the next section, sets the criteria for the review that
the authority must undertake to determine whether the evidence contained in the complaint
is sufficient to justify the initiation of an investigation . W e therefore agree with Morocco that
Article 5.2 describes the evidence and information that a n applicant must include in its complaint,
but that the relevant obligations that apply to the investigating authority are set out in Article 5.3.
7.5.2.2 Applicable requirements of Article 5.3 of the Anti-Dumping Agreement
7.356. The text of Article 5.3 is composed of just one sen tence, which requires the investigating
authority to examine "the accuracy and adequacy of the evidence provided in the application to
determine whether there is sufficient evidence to justify the initiation of an investigation" . T his
provision covers explicitly the investigating authority and requires it to examine the complaint filed
by the domestic industry, with a view to determining whether there is "sufficient" evidence to initiate
an investigation.
7.357. The authority's examination must focus on the "accur acy" and "adequacy" of the evidence
provided in the complaint . T he word "exact itude" ( "accuracy") means something "[q]ui est
rigoureusement conforme à la réalité" 501 ("which is strictly in line with reality ") and "adéquat ion"
(adequacy) refers to the "[c]onformité à l'objet, au but qu'on se propose" 502 ("conformity with the
purpose, with the objective that one has in mind "). Thus, the authority must examine whether the
evidence provided in the complaint is (a) in line with reality, and (b) in line with the objective of the
complaint, which, in this case, is to "prove" the existence of dumping, injury and a causal link.503 As
other panels before us, we note however that "Article 5.3 says nothing regarding the nature of the
examination to be carried out . N or does it say anything requiring an explanation of how that
examination was carried out" .504 To know what evidence an authority must examine for accuracy

497 Panel Report, Argentina - Poultry Anti-Dumping Duties, para. 7.62. On this subject, another panel
report states that:
the difference between the evidence that must sustain a determination and the evidence needed for
initiation is not one of subject matter but of degree, or, as other panels have described it, of "quantity
and [of] quality". The "quantity and [the] quality" of the evidence needed to initiate an investigation
are lesser than required to impose anti-dumping measures. However, it is still evidence of those same
elements that is necessary to justify initiation of an investigation.
(Panel Report, Pakistan - BOPP Film (UAE), para. 7.23 (fn omitted; emphasis original))
498 Tunisia's response to Panel question No. 6.3, para. 154 (emphasis added). See also the
European Union's third-party response to Panel question Nos. 4.1 and 4.2, para. 33.
499 Morocco's response to Panel question No. 6.3, para. 84.
500 Morocco's comments on Tunisia's response to Panel question No. 6.22, para. 250. (emphasis
original)
501 Dictionnaire Larousse, definition of "exactitude"
https://www.larousse.fr/dictionnaires/francais/exactitude/31922 ( (accessed 22 June 2021).
502 Dictionnaire Larousse, definition of "adéquation"
https://www.larousse.fr/dictionnaires/francais/ad%C3%A9quation/1060 (accessed 14 April 2021).
503 Panel Report, Pakistan — BOPP Film (UAE), paras. 7.21 and 7.22.
504 Panel Report, EC - Bed Linen, para. 6.198.

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and adequacy, reference must be made to the context of this provision and, in particular, to
paragraph 2 of Article 5, which determines what the material content of a complaint must be.505
7.358. At the end of its examination, the authority must "determine" whether the evidence before
it is sufficient to initiate an inquiry .506 The Larousse dictionary defines the word "suffisant"
("sufficient") as "[q]ui correspond juste à ce qui est nécessaire" 507 ("corresponding exactly to what
is necessary"). The investigating authority must therefore determine whether it has before it the
evidence necessary to initiate an investigation, i.e. whether an investigation appears to be justified,
but also whether it has the information it needs to initiate its investigation . In that regard, the
standard of review applied by other panels to a claim under Article 5.3 has been to verify "wheth er
or not an objective and unbiased investigating authority, looking at the facts before it, could properly
have determined that there was sufficient evidence of dumping, injury and causal link to justify the
initiation of an anti -dumping investigation" .508 We agree with this standard of review and have
adopted it for this dispute.
7.5.2.3 Applicable requirements of Article 5.8 of the Anti-Dumping Agreement
7.359. Article 5.8 provides that an "application under paragraph 1 shall be rejected and an
investigation shall be te rminated promptly as soon as the authorities concerned are satisfied that
there is not sufficient evidence of either dumping or of injury to justify proceeding with the case" .
Other panels have taken the view that Article 5.8 does not require an additional examination in
relation to Article 5.3.509 We share this view. Article 5.8 regulates the situation in which an authority,
following the examination required under Article 5.3, determines that there is not sufficient evidence
to initiate an investigation. If that is the case, the complaint must be rejected by the authority.
7.360. Nevertheless, we note that Article 5.8 obliges the authority to terminate an investigation
when it is "satisfied" that the evidence is not sufficient. Thus, reading Article 5.8 in its entirety shows
that the obligation to reject the complaint (or to terminate an investigation already initiated) follows
a determination by the authority that there is no basis (or no longer a basis) for an investigation .
Article 5.8 says nothing, however, abo ut an authority that has determined that the evidence is
sufficient, as is the case in this dispute. For this reason, we do not believe that a panel that finds a
violation of Article 5.3 - because some evidence was not sufficient to initiate an investigation - should
automatically find a consequential violation of Article 5.8.
7.5.2.4 Conclusion on the standard of review applicable in this dispute
7.361. Despite their differences as to the precise nature of the obligations contained in Articles 5.2
and 5.3, the parties agree on the fact that, in order to understand the standard of proof required of
the applicant, the Panel must examine Tunisia's claim under Article 5.3 by making reference to
Article 5.2.
7.362. Thus, according to Tunisia, the standard of review "is the same for A rticles 5.2 and 5.3
(i.e., the sufficiency, or not, of evidence)".510 It adds that "[p]rovided that the Panel finds that there
was insufficient evidence to initiate the investigation, according to the common standard of review
of the provisions in question, the Panel will have grounds to find a violation of either Article 5.2, or
Article 5.3, or of both provisions together".511

505 Other panels considered that Article 5.2 provides context for understanding the requirements of
Article 5.3. See, for example, Panel Reports, Guatemala - Cement II, paras. 8.35 and 8.72; and Pakistan -
BOPP Film (UAE), para. 7.22.
506 As Canada notes in its third-party submission, the standard of "sufficiency" in Article 5.3 is not
related to the examination to be carried out, but to the sufficiency of the evidence provided in the application.
(Canada's third-party submission, para. 16)
507 Dictionnaire Larousse, definition of "suffisant"
https://www.larousse.fr/dictionnaires/francais/suffisant/75259 (accessed 14 April 2021).
508 Panel Report, Argentina - Poultry Anti-Dumping Duties, para. 7.60; see also Panel Report, Mexico -
Steel Pipes and Tubes, paras. 7.26 and 7.32 (which is cited in Tunisia's first written submission, fn 361).
509 Panel Report, Mexico - Steel Pipes and Tubes, para. 7.25. (fn omitted)
510 Tunisia's response to Panel question No. 6.22, para. 170.
511 Tunisia's response to Panel question No. 6.22, para. 172.

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7.363. Meanwhile, Morocco "propose[s] a comprehensive approach to the interpretation and
application of Article 5".512 Thus:
The content of the necessary application is set forth in Article 5.2, even if the provision
does not impose, in and of itself, a particular obligation on an authority; the authority's
responsibility for verifying the accuracy of and grounds for that content is to be found
in Article 5.3, but that obligation is linked to the purpose of the exercise (as set out in
Article 5.1) and the provisions of Article 5.2 (concerning reasonable availability, for
example)[.]513
7.364. The parties also agree on the standard of review tha t we must apply to Tunisia's claims .
Thus, for Tunisia, the Panel should determine "whether an unbiased and objective authority, looking
at these facts, could properly have determined that there was sufficient evidence of dumping to
justify the initiation of an anti-dumping investigation".514 Morocco, on the other hand, considers that
"[w]hat is at issue is the reasonableness of the authority's examination of the accuracy and adequacy
of the evidence before it to initiate an investigation. That examination by the authority involves both
quantitative and qualitative elements, as does a panel's review of the reasonableness of the
authority's examination".515
7.365. With regard to the arguments developed before us by the parties, we will therefore consider
in the next s ection whether it is apparent from the record that MIICEN properly examined the
accuracy and adequacy of the evidence of dumping contained in the domestic industry's complaint
and determined in an unbiased and objective manner that there was sufficient evidence of dumping
to justify the initiation of the investigation
7.5.2.5 Application of the standard of review to the facts raised by the parties
7.366. We recall that Tunisia criticizes of the following aspects of MIICEN's examination:
a. whether the prices in the export documents and the domestic sales in Tunisia, limited to
certain models in relation to the range of models of the product under investigation, were
representative of the export prices and normal values of the product under consideration
as a whole;
b. whether the export prices set on one day were representative of export prices for the
whole investigation period;
c. whether the information contained in the catalogues submitted as evidence of the normal
value was accurate in relation to the producers in question or those who made the product
at issue; and
d. whether the adjustments to be applied to the export price and to the normal value were
based on correct assumptions.516
7.367. We will begin by analysing Tunisia's argument regarding the "representativeness" of the
evidence put forward by the applicants to substantiate the export price (points (a) and (b)), before
turning to the manner in which the authority treated the normal value evidence and the adjustments
proposed by the applicants (points (c) and (d)).

512 Morocco's response to Panel question No. 6.3, para. 85.
513 Morocco's response to Panel question No. 6.3, para. 87. (emphasis original) See also Morocco's
response to Panel question No. 6.9, para. 100.
514 Tunisia's first written submission, paras. 8.11 and 8.12 (quoting Panel Report, Mexico - Steel Pipes
and Tubes, para. 7.32). See also Tunisia's response to Panel question No. 6.23, para. 177 (fn omitted). See, in
the same sense, the European Union's third-party submission, para. 122.
515 Morocco's response to Panel question No. 6.19, paras. 73 and 75. (emphasis original)
516 Tunisia's first written submission, para. 8.43.

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7.5.2.5.1 Did MIICEN's examination of the export price evidence comply with the
provisions of Article 5.3?
7.368. With regard to the evidence substantiating the export price, the record shows that the
applicants relied on one invoice issued by one of the Tunisian producers/exporters for exports of
exercise books to Morocco.517
7.369. Tunisia criticizes the fact that proof of t he export price was based on only one invoice and
on certain types of exercise books.518 Thus:
The invoice only covered exercise books of one particular grammage (60 g/m2) (despite
the wide range of exercise books of grammage between 55 g/m2 and 120 g/m2); was
limited to three formats 21x29.7 cm, 9x14 cm and 11x17 cm; and to three forms of
presentation: stapled, register and cloth bound.519
7.370. Tunisia considers that the prices found on a single invoice (thus relating to a single
transaction) cannot be "represent ative" of export prices for the entire period covered by the
complaint.520 In support of this argument, Tunisia cites the conclusions of another panel that found
that:
[I]t is indeed quite possible that an individual, isolated transaction may be an aberration
from the typical prevailing prices and/or conditions, and therefore if the applicant has
provided only such temporally isolated evidence, the authority should not assume
without some corroboration that this evidence is representative of the period as a
whole.521
7.371. With regard to the models of exercise books, Tunisia considers the sample presented by the
applicants was not representative of the product as a whole . Tunisia cites in this regard the same
panel report, according to which:
Where the evidence pertains to only a thin sliver of a broad overall product range, the
authority should not assume without some corroboration that this evidence represents
pricing for the full product range.522
7.372. Nevertheless, according to Tunisia, there is nothing on the record t hat allows the
"representativeness" or not of the invoice to be adjudicated.523
7.373. Morocco recalls that at the moment of initiating an investigation, the investigating authority
is not required to have before it the quantity and quality of evidence that would be necessary to
substantiate a preliminary or final determination. It finds support in this regard in the Panel Report
in Mexico - Steel Pipes and Tubes, which considered that:
[I]t is not necessary for an investigating authority to have irrefutable proof of dumping
or injury prior to initiating an anti-dumping investigation.524

517 Tunisia's first written submission, para. 8.5; Morocco's response to Panel question No. 6.17,
para. 61. See also the submission by SITPEC and SOTEFI (Exhibit MAR-11), p. 5; and the initiation report
(Exhibits TUN-2, MAR-10), para. 24.
518 Tunisia's first written submission, para. 8.23. See also Tunisia's response to Panel question No. 6.23,
para. 178 i).
519 Tunisia's first written submission, para. 8.5 (referring to the initiation report (Exhibits TUN-2,
MAR-10), para. 26).
520 Tunisia's first written submission, paras. 8.21 and 8.22. See also Tunisia's response to Panel
question No. 6.23, para. 178 ii).
521 Tunisia's first written submission, para. 8.19 (quoting Panel Report, Mexico - Steel Pipes and Tubes,
para. 7.37).
522 Tunisia's first written submission, para. 8.19 (quoting Panel Report, Mexico - Steel Pipes and Tubes,
paras. 7.38 and 7.39).
523 Tunisia's first written submission, para. 8.8; comments on Morocco's response to Panel question
No. 6.17, paras. 112 and 113.
524 Morocco's first written submission, para. 237 (quoting Panel Report, Mexico - Steel Pipes and Tubes,
para. 7.22).

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7.374. Morocco also notes that Article 5.2 concerns only information that may be "reasonably
available to the applicant" .525 In that regard, Morocco asserts that an invoice is a very compelling
piece of information, which is difficult 526 for an applicant composed of small and medium -sized
enterprises to obtain.527 It also points out that this invoice was particularly relevant to the extent
that:
a. it is an invoice issued by one of the two exporters528;
b. it is a wholesale invoice529;
c. it covers the nine best-selling models of exercise books for export530; and
d. it corresponds to transactions that occurred in the middle of the data-collection period.531
7.375. Lastly, Morocco asserts that the investigation record contained "other elements that
substantiate how that one invoice was representative of the export price over the period selected by
the applicants, notably official statistical data from the Foreign Exchange Board" showing the tren d
over the period 2013-2016 of the average import price of exercise books from Tunisia.532
7.376. However, we do not find, in the record, confirmation that those statistics formed the basis - in
addition to the contested invoice - for the examination, by MIICEN, o f the domestic industry's
complaint. L ike Tunisia, we note that the initiation report does not refer to those statistics as
evidence substantiating the export price .533 The section on the export price in the initiation report
refers only to data taken from a single invoice.534
7.377. We further note that the investigation record contains only a few undisputed pieces of
information concerning this invoice and that the parties did not submit the invoice to the Panel. We
only know that it is an invoice issued by one of the Tunisian exporters that cooperated with the
investigation, that the invoice covers several models of exercise books and that it was issued during
the period selected for the complaint.535

525 Morocco's first written submission, para. 252.
526 Morocco's first written submission, para. 257; response to Panel question No. 6.17, para. 62 b) 1);
and comments on Tunisia's response to Panel question No. 6.23, para. 259.
527 Morocco's first written submission, para. 254.
528 Morocco's comments on Tunisia's response to Panel question No. 6.23, para. 259. However, neither
the issuer of the invoice nor the Moroccan client feature in the elements on file.
529 Morocco' comments on Tunisia's response to Panel question No. 6.23, paras. 257 and 258. The level
of trade of the invoice in question is contested by Tunisia. (Tunisia's comments on Morocco's response to Panel
question No. 6.17, para. 112)
530 Morocco's first written submission, para. 257. See also Morocco's response to Panel question
No. 6.17, para. 62 b) 6). This point is contested by Tunisia, which notes that the popularity of these models is
not substantiated by any objective evidence. (Tunisia's second written submission, para. 6.63 h); response to
531 Morocco's first written submission, para. 257. However, Tunisia contests the date provided by
Morocco. (Tunisia's second written submission, para. 6.63 e))
532 Morocco's response to Panel question No. 6.17, para. 61 (quoting the initiation report, para. 82
(Exhibit TUN-2)). These import price statistics are included in the section of the initiation report on "the
analysis of factors other than imports", and not in the section on the margin of dumping.
533 Tunisia's comments on Morocco's response to Panel question No. 6.17, para. 105.
534 "The export price is calculated by the applicant on the basis of the FOB/Tunisia price contained in an
invoice for Tunisian exports of exercise books to Morocco in 2016." (Initiation report, (Exhibits TUN-2,
MAR-10), para. 24 (emphasis added))
535 Exhibit TUN-48 (Annex 17, export invoice) contains only a non-confidential description of the invoice
in question. In its oral statement at the first substantive meeting of the Panel, Tunisia asserted: "we know very
little about the content of this invoice, because it was submitted as confidential without a non-confidential
summary being provided. We only know that it would have been issued by a Tunisian exporter on a date in
2016. We do not know the type, quantity or price of the exercise books concerned". (Tunisia's opening
statement at the first meeting of the panel, para. 10.1) We also note that Morocco submitted the invoice as
evidence before this Panel after the period allowed for the submission of its comments on Tunisia's responses
to the Panel. Tunisia objected to that late submission of evidence request and asked the Panel to disregard it in
its analysis. Having recalled that paragraph 5 (1) of our working procedures requires a showing of "good
cause" to allow a party to place new evidence on the record outside the dates or steps established for that

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7.378. We recall that Tunisia was critical of the insufficient "repre sentativeness" of the prices put
forward by the applicants to substantiate the export price and the normal value .536 We understand
that by "representativeness" Tunisia means the capacity of the evidence provided to substantiate
the price of the product "in its entirety" and for the whole period covered by the complaint .537
However, we do not consider that the examination of the accuracy and adequacy of the evidence
requires the investigating authority to ensure that the information provided is "representative " of
the whole period and of all types of the product under investigation. We note in this regard the view
of Canada in its third-party submission, which we share:
Article 5.3 does not require the authority to explain or expound in the initiation report
"the resolution of all issues of fact underpinning the determination that there is sufficient
evidence to justify the initiation of an investigation" . Accordingly, Tunisia's claim that
the Moroccan authority failed to fulfil its obligation under Article 5.3, as it did not provide
"any explanation in the initiation report as to how evidence concerning the export price
and normal value - which was limited to certain product models - was representative of
the entire range of products under investigation", is bas ed on a questionable legal
foundation.538
7.379. Similarly, we note the European Union's view that:
[I]t would certainly be an exaggeration to require evidence for all the products covered
and producers concerned, or even concrete (irrefutable) arguments on
representativeness. On the other hand, at the other end of the spectrum, a single piece
of evidence concerning an insignificant subset of the product concerned or prices would
be insufficient without the investigating authority making any effort to establi sh its
representativeness.539
7.380. Our review seeks to determine whether MIICEN properly examined the accuracy and
adequacy of the export price evidence and, notably, whether the complaint contained the elements
needed to initiate an investigation. In that regard, we consider that invoices for sales of the product
concerned during the relevant period normally have a high probative value540, and that it cannot be
reasonably expected that an applicant has at its disposal multiple invoices for a large sample of
transactions and models of the product concerned over the period covered by the complaint . As
another panel before us 541, we consider, however, that a single invoice cannot, without some
corroboration, be sufficient to substantiate the export price of the product concerned. In particular,
we believe that an authority cannot ensure the accuracy and adequacy of such information without
cross-checking it against other "information on export prices" . H owever, although the initiation
report indicates that MIICEN did " examine and verify" the "petition data and supporting
documents"542, we find no reference to other information substantiating the export price . Neither
the investigation record, nor the arguments presented by Morocco before us, allow us to conclude
in this case that the invoice submitted by the applicants was both relevant and sufficiently probative,
or that the investigating authority sought to verify the relevance of that evidence by cross-checking
it against other export price information for Tunisian exercise books.
7.381. From that point of view, and in the light of the information available to us, we consider that
Tunisia has established that the investigating authority failed to examine the accuracy and adequacy
of the export price evidence when d etermining whether that evidence was sufficient to justify the
initiation of an investigation.

purpose in the timetable, we decided to decline Morocco's request. We considered that Morocco's request to
place Exhibit MAR-22 on record did not cite a "good cause", to the extent that the parties had already been
long aware of the existence of the exhibit in question and that its nature and content had already been
discussed at each stage of the proceedings.
536 Tunisia's response to Panel question No. 6.23, para. 178 i) and ii). See also Tunisia's first written
submission, para. 8.8; and comments on Morocco's response to Panel question No. 6.17, paras. 112 and 113.
537 Tunisia's response to Panel question No. 6.23, para. 176.
538 Canada's third-party submission, para. 17. (fn omitted)
539 European Union's third-party submission, para. 124. (fns omitted)
540 Morocco's response to Panel question No. 6.13, para. 118; comments on Tunisia's response to Panel
question No. 6.23, para. 259.
541 Panel Report, Mexico - Steel Pipes and Tubes, para. 7.37.
542 Initiation report (Exhibits TUN-2, MAR-10), para. 38.

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7.5.2.5.2 Did MIICEN's examination of the normal value evidence comply with the
provisions of Article 5.3?
7.382. With regard to the normal value, the initiation report indicates that the retail sales prices of
certain models were "taken from sales catalogues published by [a supermarket chain] and [specialist
bookshops]".543 Tunisia criticizes of the fact that those catalogues only showed the price of certain
exercise book models, without the complaint explaining how those prices were representative .544
Tunisia argues, inter alia, that "MIICEN has done nothing more than accept the prices proposed by
the applicant and the explanation that around 85 % of exercise books imported into Mor occo from
Tunisia were the models for which the prices were provided" .545 It also considers that there is no
evidence that the prices in the catalogues were those of the Tunisian product.546
7.383. At the same time, the normal value was the subject of certain adjustments in the petition to
make allowances for VAT, the distributor's profit margin, domestic transportation and royalties (for
exercise books with a protected trademark).547 Tunisia contests those adjustments for the following
reasons:
a. The distribution marg ins used for the normal value were adjusted on the basis of
information concerning the business practices of a Moroccan wholesaler, without the
applicant justifying why those margins were representative of the practice in Tunisia .548
Meanwhile, the margins were adjusted on the basis of wholesalers even though the
references used for the normal value in Tunisia corresponded to retail prices.549
b. The adjustment for royalty payments for certain exercise books was not based on evidence
of such payments in the Tunisian market, but on "a contract between a Moroccan exercise
book producer and a French company for a licence to use a trademark".550
c. The adjustment for domestic transportation was fixed and based on transportation costs
per tonne in Tunisia 551, whereas "the weight of each exercise book varies considerably
depending on the format and the grammage of the paper used".552
d. The average distance selected by MIICEN did not reflect the situation of different factories
and corresponds to a return journey between one of the factories and the port of Tunis.553
7.384. We will begin by examining Tunisia's criticisms regarding the origin of the exercise books in
the catalogues, used to substantiate the normal value proposed by the applicants . We note first of
all that, in response to the Panel's questions following the second substantive meeting with the
parties, a disagreement arose between the parties over the exact nature of the evidence that the
authority used as the basis for establishing the normal value. Morocco stated that those catalogues
were "objective information sources published on the exporters' website, covering different types of
exercise books sold on the Tunisian market similar to the exercise books sold for export [, and that

543 Initiation report (Exhibits TUN-2, MAR-10), para. 28; Tunisia's first written submission, para. 8.31. In
its opening statement at the first meeting of the Panel, Tunisia specified that "the evidence presented to
demonstrate normal value consisted of a series of screen shots of certain models sold at retail". Tunisia
submitted Exhibit TUN-49, entitled "Annexe 11b à la requête pour l'ouverture de l'enquête - Preuves valeur
normale" (Annex 11b to the petition for the initiation of the investigation - Normal value evidence), which
contains those screen shots.
544 Tunisia's first written submission contains a table showing that the catalogues provided in support of
the normal value cover only three models of the exercise books under investigation. (Tunisia's first written
submission, paras. 8.33 and 8.34. See also Tunisia's response to Panel question No. 6.23, para. 178 i))
545 Tunisia's response to Panel question No. 6.23, para. 178 i).
546 Tunisia's first written submission, para. 8.31. See also Tunisia's response to Panel question No. 6.23,
para. 178 iii).
547 Initiation report (Exhibits TUN-2, MAR-10), paras. 29 and 30.
548 Tunisia's first written submission, para. 8.35. See also the initiation report (Exhibits TUN-2, MAR-10),
paras. 25 and 29.
549 Tunisia's first written submission, para. 8.36.
550 Tunisia's first written submission, para. 8.38; initiation report (Exhibits TUN-2, MAR-10), para. 29.
551 Tunisia's first written submission, para. 8.37. See also the initiation report (Exhibits TUN-2, MAR-10),
para. 29.
552 Tunisia's first written submission, para. 8.25.
553 Tunisia's first written submission, paras. 8.26 and 8.27.

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they] were therefore an appropriate source for comparison".554 Tunisia, on the other hand, contests
Morocco's assertion that the catalogues in question came from the Tunisian exporters' website :
instead, it indicates that the catalogues were published on the website of distributors in Tunisia.555
The initiation report seems to confirm Tunisia's assertions, since it states that the retail sales prices
of certain models were "extracted from sales cata logues published by [a supermarket chain] and
[specialist bookshops]".556 In any case, it appears that the catalogues in question were properly
appended to the complaint.557
7.385. Consultation of that annex confirms that the pages of the websites provided by the applicants
do include the retail price of exercise books produced by SOTEFI558, and it is not contested that this
is one of the producers/exporters that cooperated with MIICEN's investigation . We therefore reject
Tunisia's argument that the applicant "failed to submit documentation to show that the prices
indicated in the catalogues reflected the prices of products manufactured by the identified producers
(SITPEC, SOTEFI-Selecta, Yamama, Imprimerie Le Livre), or to demonstrate that the product sold
by [a chain of supermarkets] and certain bookshops was in fact of Tunisian origin".559
7.386. We will now examine Tunisia's argument concerning the lack of alleged "representativeness"
of the catalogues provided by the applicants . We recalled above that we did not consider that the
examination of the accuracy and adequacy of the evidence requires the investigating authority to
ensure that the information provided is "representative" of the whole period and of all types of the
product under investigation. In this case, the record shows that:
a. the online catalogues provided in support of the petition do contain the retail prices in
August and November 2016, on the Tunisian market, of nine exercise books of 60 and 64
g/m2, including those manufactured by one of the Tunisian producers/exporters that
cooperated with the investigation, as we noted above; and
b. the prices reflected in those catalogues correspond to a grammage of 60 and 64 g/m 2,
which in turn corresponds to the exercise book prices used as evidence of the e xport
price.560
7.387. Nevertheless, as another panel before us561, we consider that such a limited sample of retail
prices cannot, without some corroboration, be sufficient to substantiate the normal value of the
product concerned . I n particular, we believe that a n authority cannot ensure the accuracy and
adequacy of such information without cross -checking it against other "information on the normal
value". However, in this case, we find that the initiation report does not refer to other information
substantiating the normal value : t he section on the normal value in the initiation report only
mentions data taken from those website pages .562 Neither the investigation record, nor the
arguments presented by Morocco before us, allow us to conclude in this case that the w ebsite
excerpts submitted by the applicants were both relevant and sufficiently probative, or that the
investigating authority sought to verify the relevance of that evidence by cross -checking it against
other information on the normal value of Tunisian exercise books.
7.388. From that point of view, we therefore consider that Tunisia has established that the
investigating authority failed to examine the accuracy and adequacy of the normal value evidence
in accordance with the provisions of Article 5.3 of the Anti -Dumping Agreement when determining
whether that evidence was sufficient to justify initiating an investigation.

554 Morocco's response to Panel question No. 6.20, para. 77 a). See also Morocco's response to Panel
question No. 6.14, para. 120; SOTEFI, Catalogue 2017-2018 (Exhibit MAR-21); and SITPEC, Catalogue 2016
(Exhibit MAR-22).
555 Tunisia's comments on Morocco's response to Panel question No. 6.20, para. 117.
556 Initiation report (Exhibits TUN-2, MAR-10), para. 28.
558 Seven of the nine web pages contained in Exhibit TUN-49 bear the logo "SELECTA", which refers to
SOTEFI, as the initiation report demonstrates. (Initiation report (Exhibits TUN-2, MAR-10), para. 18;
Annexe 11b à la requête pour l'ouverture de l'enquête - Preuves valeur normale (Exhibit TUN-49))
559 Tunisia's first written submission, para. 8.31. (fn omitted)
560 Initiation report (Exhibits TUN-2, MAR-10), para. 23.
561 Panel Report, Mexico - Steel Pipes and Tubes, paras. 7.38 and 7.39.
562 Initiation report (Exhibits TUN-2, MAR-10), para. 28.

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7.389. We now turn to the examination of Tunisia's arguments concerning the adjustments to the
normal value. In that regard, we recall that an applica nt must provide, in support of its petition,
"information on prices at which the product in question is sold when destined for consumption in the
domestic markets of the country or countries of origin or export ... and information on export
prices".563 We consider that any adjustments made to the normal value and to the export price to
allow a fair comparison are part of that "information", and must be both probative and relevant,
within the meaning of Article 5.2 of the Anti-Dumping Agreement. We also recall the stipulation that
such information must be "reasonably available to the applicant".
a. With regard to the level of trade adjustment, the record indicates that the applicant
proposed an adjustment that sought to reduce the retail price of the exercise boo ks (as
reflected in the catalogues appended to the complaint) to the ex -factory level. To that
end, the applicant subtracted a distributor mark-up, corresponding to the amount charged
for the same transactions in Morocco, from the retail price found in the catalogues.
b. With regard to the royalties adjustment, the record indicates that the applicant proposed
an adjustment for the royalties paid by the Tunisian exercise books producer to use
trademarks on the cover of its exercise books .564 According to the initiation report, the
proposed adjustment is based on "a contract between a Moroccan exercise book producer
and a French company for a licence to use a trademark".565
7.390. In that regard, Tunisia considers that the information substantiating the proposed normal
value adjustments "does not pertain to the source or the export market, i.e. Tunisia" and that "no
explanation is offered as to why these margins 'are similar' to those that could be obtained in Tunisia"
and, in particulier, "why the market conditions in Morocco with respect to that profit margin could
have been representative or a reasonable indicator of distribution margins in Tunisia" .566 Morocco,
on the other hand, insists that the margins made and royalties paid by the Tunisian producers are
confidential data, which cannot be reasonably available to the applicants.567
7.391. In the light of these record elements, we do not share Tunisia's opinion that the initiation
report or the complaint should have contained additional explanations "as to why these margins 'are
similar' to those which could be obtained in Tunisia".568 In fact, it seems to us that MIICEN could not
reasonably require the applicants to provide evidence of the exact amount of royalties or margins
paid in Tunisia : w ith respect to an applicant's dif ficulty in obtaining such evidence, relying on
comparable data for the same business operations in the same region is relevant evidence in this
case. We therefore reject Tunisia's argument on this point.
7.392. Tunisia also contests the adjustment made for domestic freight, in particular, the fact that
the amount deducted is a fixed amount that fails to take into account the different weights of the
different models of exercise books. Likewise, Tunisia criticizes the fact that the adjustment applied
corresponds to a return journey between the factory and the port, instead of a one -way trip.569
Morocco responds that the fixed price is based on an independent study570 and was calculated using
an average weight per exercise book .571 It also states that "the FOB price of the invoice [used as
evidence of the export price] included transportation costs, by using a return rate to calculate an
ex-factory export price".572 Morocco adds that the same fixed amount was deducted from the export

563 Article 5.2(iii) of the Anti-Dumping Agreement.
564 The initiation report states that the applicant made "[a]n adjustment for the distributor's mark-up,
estimated at [35-50] % on the basis of the difference between the price at which a Moroccan manufacturer
sells an exercise book to a larger retailer in Morocco and the resale price of that product to the end consumer".
(Initiation report (Exhibits TUN-2, MAR-10), para. 29)
565 Initiation report (Exhibits TUN-2, MAR-10), para. 29.
566 Tunisia's first written submission, para. 8.35.
567 Morocco's response to Panel question No. 6.20, para. 77.
568 Tunisia's first written submission, para. 8.35.
569 Tunisia's first written submission, paras. 8.25-8.28.
570 Morocco's response to Panel question No. 6.19, para. 66. See also Annex 14b, input costs in Tunisia
(Exhibit TUN-51 (BCI)).
571 Morocco's response to Panel question No. 6.19, para. 69. See also Annex 14a, domestic
transportation in Tunisia (Exhibit TUN-50 (BCI)).
572 Morocco's response to Panel question No. 6.19, para. 70.

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price (which is reflected in the initiation report)573 and that the impact on the margin of dumping
calculated by the applicant was, in any case, inconsequential.574
7.393. Further reading of the evidence of the transportation cost provided in support of the
complaint, we find that the applicant provided the data needed to make a proper assessment of the
transportation price in Tunisia.575 Notwithstanding this, MIICEN accepted the adjustment proposed
by the applicants, based on a return journey between one factory and one port. In its response to
the Panel's questions, Morocco actually admits that "nothing on the record justifies the use of a
return rate to determine either the ex-factory export price or the normal value. A correct application
would have used a one -way rate for both..." .576 We find no indication in the record that the
investigating authority sought to explain or correct that error in the freight adjustment.
7.394. From that point of view, we therefore consider that Tunisia has established that the
investigating authority failed to examine the accuracy and adequacy of the evidence concerning the
domestic transportation adjustment 577 in accordance with the provisions of Article 5.3 of the
Anti-Dumping Agreement.
7.5.3 Conclusion
7.395. In the light of the foregoing, we therefore conclude that Tu nisia has demonstrated that
MIICEN failed to examine the accuracy and adequacy of the evidence of the export price, the normal
value and the adjustment for transportation costs, in accordance with the provisions of Article 5.3
of the Anti-Dumping Agreement.
7.396. We recall that Tunisia is requesting "a finding of inconsistency with each of these provisions
(5.2, 5.3 and 5.8)" 578, but that "if the Panel considers that, based on the standard of review
applicable to Articles 5.2 and 5.3, it could resolve Tunisia's allegation by finding a violation of one of
these two provisions (and Article 5.8), Tunisia will not object to the Panel exercising judicial economy
in respect of the other provision in question".579
7.397. In this case, we recall our findings that:
a. Article 5.2 dete rmines the content of the complaint submitted by the domestic industry
and does not therefore create directly an obligation for the investigating authority; and
b. a panel that finds a violation of Article 5.3 - because some evidence was not sufficient to
initiate an investigation - should not automatically find a consequential violation of
Article 5.8.
7.398. We therefore conclude that Tunisia has failed to demonstrate that Morocco violated
Articles 5.2 and 5.8 of the Anti-Dumping Agreement by initiating its investigation.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set out in this Report, we conclude that:
a. Morocco has failed to demonstrate that paragraphs B.5 and B.6 of the panel request did
not respect the provisions of Article 6.2 of the DSU.
b. Tunisia has established that the definitive anti -dumping measure applied by Morocco to
exercise books originating in Tunisia was inconsistent with:

573 Initiation report (Exhibits TUN-2, MAR-10), paras. 26 and 31.
574 Morocco's response to Panel question No. 6.19, para. 71.
575 See in particular Annex 14a, domestic transportation in Tunisia (Exhibit TUN-50 (BCI)) and
Annex 14b, input costs in Tunisia (Exhibit-51 (BCI)).
576 Morocco's response to Panel question No. 6.19, para. 74.
577 As the same adjustment was made to the export price, our conclusion extends to the transportation
adjustment applied to the export price.
578 Tunisia's response to Panel question No. 6.22, para. 175.
579 Tunisia's response to Panel question No. 6.22, para. 174.

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i. Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement, because the amount for profits
used by the investigating authority to construct the normal value of certain exercise
books sold by SOTEFI and SITPEC was not based "on actual data pertaining to the
production and sales, in the ordinary course of trade, of the like product by the
exporter or producer under investigation" a nd was therefore not a "reasonable
amount" for profits within the meaning of Article 2.2;
ii. Article 2.2 of the Anti -Dumping Agreement, because the investigating authority, by
including a distribution cost in the constructed normal value of certain models of
SOTEFI exercise books, did not construct the normal value on the basis of the cost of
production in the country of origin, plus a reasonable amount for administrative, selling
and general costs and for profits, within the meaning of this provision;
iii. Article 2.4 of the Anti -Dumping Agreement, because, by using an erroneous
mathematical formula to establish the margin of dumping of two Tunisian exporters,
the investigating authority failed to make a "fair comparison" between the export price
and the normal value, within the meaning of this provision;
iv. Articles 3.1 and 3.2 of the Anti -Dumping Agreement, because the investigating
authority failed to conduct an "objective examination" of price undercutting, price
depression and price suppression;
v. Article 3.2 of the Anti-Dumping Agreement, because the investigating authority failed
to conduct a proper examination of price undercutting;
vi. Articles 3.1 and 3.4 of the Anti -Dumping Agreement, because the investigating
authority failed to conduct an "objective exa mination" of the trend in sales, market
shares, and the domestic industry's production and profitability;
vii. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, because the investigating
authority based its causation determination on an injury analysis that was inconsistent
with Articles 3.1, 3.2 and 3.4 of the Anti-Dumping Agreement;
viii. Article 12.2.2 of the Anti -Dumping Agreement, because the report on the definitive
determination does not give "the reasons for the ... rejection of relevant arguments or
claims made by the exporters" concerning the impact of licences on price
comparability; and
ix. Article 5.3 of the Anti -Dumping Agreement, because MIICEN failed to review the
accuracy and adequacy of the evidence submitted by the Moroccan applicants to
determine whet her the evidence was sufficient to justify the initiation of an
investigation.
c. Tunisia has failed to establish that the measure was inconsistent with:
i. Article 2.4 of the Anti -Dumping Agreement, because MIICEN did not accept to make
allowance for licences as a difference affecting price comparability;
ii. Articles 3.1 and 3.5 of the Anti -Dumping Agreement, because MIICEN failed to
examine competition from Imprimerie Moderne as a "known factor" injuring the
domestic industry; and
iii. Articles 2.1, 5.2 and 5.8 of the Anti-Dumping Agreement.
8.2. We have applied the principle of judicial economy to Tunisia's claim under Articles 3.1 and 3.2
of the Anti-Dumping Agreement concerning the investigating authority's consideration of the volume
of Tunisian imports in relation to domestic production and consumption.
8.3. Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measure at issue is inconsistent

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with the Anti -Dumping Agreement, it has nullified or impaired benefits accruing to Tunisia under
that Agreement.
8.4. Pursuant to Art icle 19.1 of the DSU, we recommend that Morocco bring its measure into
conformity with its obligations under the Anti-Dumping Agreement.
8.5. We recall that Tunisia further requests, as is permitted under Article 19.1, that, in addition to
our recommendation, w e suggest to Morocco how to implement this recommendation . T unisia
specifically requests that we suggest that Morocco fulfil its obligations by revoking the anti-dumping
measure at issue .580 Article 19.1 of the DSU allows, but does not require, us to sugges t ways in
which the Member concerned could implement the Panel's recommendations . Furthermore, under
Article 21.3 of the DSU, the implementation of DSB recommendations and rulings is left, in the
first instance, to the discretion of the implementing Member .581 We therefore decline Tunisia's
request.